Volume 31 — South Dakota Reports

Hon. William Williamson, Judge. Action by Henry Bergman against Frank Margeson’, for damages for cutting hay. From a judgment of the circuit court dismissing an appeal from justice’s court, defendant appeals.

Hon. Joseph H. Bottom, Judge. Action by William D. Boyce against Mary J.. Boyce, for a divorce. Decree for plaintiff. Subsequently defendant obtained an order to show cause why the decree should not be set aside, pending the hearing upon which Viriginia Dee Boyce intervened. Motion denied, and defendant appeals. The brief on behalf of appellant does not seem to discuss any points other than those held by the Court to be' irrelevant under the record as a whole.

Hon. Frank B. Smith, Judge. , . Action by M. E.-Smith.& Company against James- Kimble, on an -alleged- contract of guaranty of payment for merchandise. Judgment.for plaintiff -on a directed verdict, and defendant appeals.

Hon. John E. Hughes, Judge. Action by the Dakota National Bank against Ga H. Kleinschmidt. From a judgment in favor of defendant, -plaintiff appeals. Appellant, in its brief, does not set forth any assignment of errors. We submit that appellant should be required to set forth its assignments of error, and upon its failure to do so, the court should refuse to' consider same.

Hon. Alva E. Taylor, Judge. Action by the First National Bank of Frederic, Wisconsin, against C. N. Mcllvaine. From an order in the present action directing- plaintiff to dismiss a second action brought 'by -him against the same defendant and another, plaintiff appeals.

H'on. Alva E. Taylor, Judge. Action by First National Bank of Frederic, Wisconsin, against C. N. Mcllvaine 'and another. From an order dismissing the action, plaintiff appeals.

Hon. R. B. Tripp, Judge. Action by Western Town Site Company against the Lamro Town Site Company and others, for rescission of a contract of sale of lands, and -to enjoin the transfer of checks deposited as purchase money. It appears only inferentially in the record that the land in question is located in or adjacent to the town of Lamro. .Prom a judgment for defendants, plaintiff appeals.

Hjon. Frank McNulty, Judge. Action by Reeves & Company against John J. Block and another upon notes given in part payment for threshing machinery purchased under a warranty, by 'defendants of plaintiff. Plaintiff counterclaimed for value of property given in part payment under the purchase. From a judgment for defendants and an order denying a new trial, plaintiff /appeals.

Hon. Gko. H. Marquis, Judge. Action by Bernard Schmidt and others .against John Jutting, upon a promissory note and to foreclose a chattel mortgage for purchase money. From a judgment for plaintiffs, defendant appeals. No particular form or language is necessary to create a -warranty: the expression “warrant” need not occur specifically, though that is the term- most often used.

Appeal' from 'Circuit Court, Minnehaha • County. Hon. Joseph W. Jones, Judge. Action by J.' H. Ferny'hough against F: W. Rockwell, to quiet title. From a judgment for plaintiff, defendant appeals. The only purpose of recording an instrument is that a purchaser may not be prejudiced’ by such’ failure.

- Hon. Hyman T. Bo-ucher, Judge'. ■ . « • Action by Dennis Gallan .'against William Seth-er for rec’o-very of cattle taken for' alleged trespass, and for damages for detention and misuse of the cattle. Defendant justified as, and counterclaimed for fees 'as,- poundmastér, and for dam'ages to the owner resulting' from the. trespass.. From a judgment for defendant, plaintiff appeals.

Hon. Levi McGee, Judge. Action 'by Charles Geiger against Frank McMahon, to restrain defendant’s alleged land trespass, and for damages. Judgment for defendant, and plaintiff appeals. An oral agreement to allow another to construct a ditch across his land even though executed is revocable at any time, creates no interest in the land, is contrary ¡to the statute of frauds, and neither specific performance or estoppel can be based thereon. Spawn v. 'So.

¡Appeal from Circuit C-ou-rt, Brule County. Hoh. Frank B. Smitti, Judge. Action by Bryan Coffee against S. -E. Dor-wart and others for damages for personal injuries resulting from negligence. From an order sustaining a general demurrer to die ■ complaint, jointly interposed by defendants, plaintiff appeals.

Hon. John F. Hughes, Judge. Action by the City of Miller against E. J. Miller and others, to quiet title.

■ Appeal from Circuit Court, Sanborn County. Hon. Frank B. Smith, Judge. Action by C. H. Clark against T. j. Lanam and wif-e, to recover -a commission on an alleged land sale. From a judgment for plaintiff and an order denying a new trial, defendants appeal., It is not claimed by Clark that he 'had any exclusive right to sell the land. His testimony no where says that his alleged listing was' an exclusive -one.

Hon. Joseph W. Jones, Judge. Action -by 'F. T. Howard against E. C. Ward, for criminal conversation. From an order refusing to set aside a settlement of the case between plaintiff and defendant, and from an order, refusing to render judgment against defendant for the purpose of allowing George W. Egan, plaintiff’s attorney, to enforce his claim for attorney’s fees, plaintiff appeals, the appeal being in the interest of appellant’s attorney.

Hon. Frank McNulty, Judge. Application for writ of prohibition- by the State -on the relation of N..J. Pryor against O. .T. Axness, a-s- mayor, and others. From a judgment in favor of relator, defendants appeal.

Hon. Lnivi McGee, Judge. Action by Frank C. Crocker against the Cumberland Mining & Milling Company. From a judgment for defendant and from an order denying a new trial, plaintiff appeals.

Hon. John F. PIughES, Judge. Application for writ of mandamus on the relation of the Methopolitan Casualty Insurance Company of New York, against Ü. S'. Basford, Commissioner of Insurance of the State of South Dakota. From a judgment refusing a peremptory writ and dismissing the proceedings, relator appeals.

Hon. J. ..H. Bot-tum, Judge. . Action by Wesley J. Wilson against the Western Surety Company and another, for damages .for destroying, by fire plaintiff’s hay. From a judgment for plaintiff, defendant Surety Company appeals.

County. Hon. Joseph W. Jones, Judge. - ■ Action by John F. McEwen against Ed. J. Gotthelf, for an ac-county for proceeds of co-tenancy in land sold. From a judgment, on -trial to the court, for plaintiff and 'from an order denying a new trial, defendant appeals.- The counsel says, that this optional contract, which is marked Exhibit “A” in this case, is not enforceable, is not binding, and is of no consequence of any name, nature or description, in this case.

Appeal .from County -Court of Spink County. Hon. Alva E. Taylor, Judge. Action by Malvina Sullivan against B. F, Lyons and another, co-partners as Lyons Brothers. From a judgment for plaintiff and an -order denying a new trial, defendants appeal. The defendants were, as a matter of course, entitled to these instructions.

Hori. John F. Hughes, Judge. Action by William Dring, as administrator, against .the Township oj S-t. Lawrence, of Hand County, for recovery for a loan to defendant under a bond issue. From a judgment for' plaintiff, ■claimed .to be insufficient, and from an order denying a new trial, plaintiff appeals. New trial more readily granted -because of smallness of the recovery in actions for breach of contract.

Appeal'from Circuit Court, Corson County. Hon. Clay Carpenter, Judge. Action by Albert B. Carlberg against A. L. Field and others. From an order denying a new trial, made after an appeal 'from a judgment for plaintiff had been taken'by defendants, defendants appeal; and plaintiff moves to dismiss thé appeal. No briefs were filed by either party upon the motion to dismiss appeal.

Hon. C. X. Seward, Judge. Action by the Minder & Jorgenson Rand Company against Ole P. Brustuen, first, to recover a commission on an alleged land trade, and, second, to recover money paid by plaintiff at defendant’s request, in said transaction. (From a judgment for defendant on the first cause of action and from an order denying a new trial, plaintiff appeals.

Hon.' John F. Hughes, Judge. Action 'by' Mrs. C. P. 'Newton against J. A. McGee, to determine validity, of defendant’s tax deed; defendant interposing a counterclaim for improvements. From a judgment for plaintiff, defendant appeals. Chapter 127, page 194,.

Hon. Josiípii W. Joints, Judge. ' Action by A. A. Roisseau against H. N. Gates and another, for damages for breach of warranty on sale of a 'stallion. From a judgment for plaintiff and an order denying a- new trial, defendants appeal. In the following cases, and many others, you have commented on the meaning of section 1239, Civ. Code: Anderson v. Mat-heny, 95 N. W. 911; Schriner v. Dickinson, 107 N. W. 536; Bowén v. Rife Ins.

Hoñ. Robert B. Tripp, Judge. , Action by William E. Niles against Andrew E. Bee, for an accounting upon an alleged 'partnership. From a judgment for defendant; and an order denying a new trial, plaintiff appeals. “The intention which -controls in determining the existence of a partnership is the legal intention deducible from the acts of the parties, and, if they dp a thing which in law constitutes ,a partnership, they are partners.

Hon. Frank McNulty, Judge. Action by -the National Cable & Manufacturing Company, a corporation, against W. F. Filbert, for. recovery of purchase price of lightning rod materials sold. From a judgment for plaintiff upon a directed verdict, defendant appeals.

Original proceeding in mandamus by the State of South Da■kota on the relation of Samuel- C. Polley against Henry B. Anderson, as State Auditor of the State of South Dakota, 'to require defendant to issue a warrant for salary and official expenses. The terms of office of ex-judges Corson and Planey expired on the 7-th day of January, 1913, being the first Tuesday after the first Monday in January, as fixed by the constitution. Section 19, Article 26, State Constitution.

Hon. Alva E-Taylor, Judge. Action by Arthur Carbon against M. B. Reed. Erom a judgment of the Circuit Court dismissing an 'appeal from justice’s court, defendant appeals. In maintaining the position that the Circuit Court erred in dismissing the appeal we are not unmindful of the fact that this Court has passed directly upon .the question now presented, and ■that in so doing it has held adversely to appellant’s contention.

Hon. Frank B. Smith, Judge. Action.by F. G. Davis against the C. & J. Michel Brewing Company,’for recovery of damages for personal injuries. From a judgment for plaintiff and an order denying a new trial, defendant appeals.

Hon. Joseph W. Jones, Judge. Action by E. C. Ward and another against R. F. Brown, to determine adverse claims to realty and for possession thereof. From a judgment for defendant and an order denying a new trial, plaintiffs appeal.

Hon. Joseph W. Jones, Judge. Action by Peter J. Yeager against the South Dakota Central Railway Company, to recover damages for personal injuries. From a judgment for plaintiff and an order denying a new trial, defendant appeals.

Hon. Wm. G. Rice, Judge. Action by Susie R. Reed and others against Ella M. Boland, to compel conveyance of realty to' them by defendant. From a judgment for defendant and an order denying a new trial, plaintiffs appeal. The evidence shows that the agreement between Mrs. Kingsley and the defendant was never carried out or complied with, on the part of the defendant. 1. The defendant never made any provision by will or otherwise, for taking care of Mrs-.

Hon. Wm. G. Rice, Judge. Action by the Black Hills Brewing Company against the Middle West Fire Insurance Company, to recover, as assignee, on a chose in action alleged to -have ‘been purchased under execution against -defendant’s creditor.

Hon. Wm. Wirriamson, Judge. Action by C. O. Hjilliard against Gus C. Roeb. Rrom a judgment for plaintiff, on appeal from a 'default judgment in justice’s court, 'defendant appeals. If any complaint existed at all upon which to support the judgment it must recessarily be shown by the transcript of the proceedings on the appeal from the Justice, and the papers transmitted with and made a part of such return.

PI on. Frank B. Smith, Judge. ■ Action for divorce by Eesbie G. Cameron against Alexander Cameron. A judgment was rendered for divorce in^ favor of plaintiff, and plaintiff petitions, by motion in the original action, for an allowance of alimony. From an order denying the petition, plaintiff appeals.

Hon. Joseph W. Jones, Judge. Action by William Millerke against Eugene Reiley, as sheriff, and another, for conversion of property claimed as exempt. From, a judgment overruling defendants’ joint demurrer, they appeal. It is clear under Secs. 362, 345, Code Civ. Proc., that no ex- • emptions of any kind or character, absolute or otherwise, can be allowed against an execution or attachment issued for the purchase money of property claimed to be exempt.

Hon. Wm. G. Ricu, Judge. Action by William L. Barber and another against Ben Fidler and another. From1 on order vacating “an order changing the venue, defendants appeal. If the' plaintiffs can thus voluntarily appear in the new tribunal, what more is required,to constitute such general appearance than due admission of service of an issuable pleading entitled in the new tribunal?

<p>1. Appeal — Harmless Error — Specifications in Complaint.</p> <p>Where defendant railway company, in an action for damages for overflow of land -by reason of insufficient drainage by it through right of way grade, answered the complaint long before it moved to amend complaint so as to specify the alleged negligence, refusal to require the amendment was not ¡prejudicial error, the evidence on both sides clearly showing the negligent acts.</p> <p>2. Error — Record—Motion to Direct Verdict.</p> <p>It was not error to. refuse to dirept verdict for defendant where material exhibits, introduced rby plaintiffs, are not in the appeal record, the evidence being conflicting, and the jury having viewed the premises in question after motion for verdict made, the motion not having been renewed after the view.</p> <p>3. Directing Verdict — Presumption from Jury’s View of Land.</p> <p>This Court, in passing on propriety of refusing to. direct a verdict, must presume that the jury’s view of laud involved was of some value in determining issues of fact, especially as neither party objected to such view.</p> <p>4. Assignment of Error — Brief Failing to Discuss — Abandonment.</p> <p>An assignment of error involving special findings was abandoned by failing to discuss it in appellant’s brief.</p> <p>5. Railroads — Effect of Right of Way Deed — Release of Damages.</p> <p>A right of way deed only releases a railway company from those damages following or reasonably expected to follow such proper construction and maintenance of railway as -would affect rights of adjoining land-owners by interfering with natural flow of ordinary surface waters. ■</p> <p>6. Appeal — Conflicting' Abstracts — Record Examined.</p> <p>Where conflict between the abstract and an additional abstract exists this Court will examine original records.</p> <p>7. Exceptions to Instructions.</p> <p>An exception to giving of “.plaintiffs’ request for instructions Nos. 1, 2, 3, 4 and 5,” is insufficient.</p> <p>8. Instructions — Negligent Construction of Roadbed.</p> <p>An instruction that if appellant railway constructed its roadbed according to usual and approved methods it would not be liable for injuries resulting from overflow of waters, and that failed to require jury to consider proven facts as to surrounding conditions and rights of adjacent land-owners, was properly refused.</p> <p>9. Instructions — Defining Negligence.</p> <p>It is not reversible error to fail to define, in instructions, negligence, where those given clearly pointed out what would be negligence in this case,, and placed burden on plaintiff to establish it.</p>

Hon. Revi McGee,, Judge. Action by O. R. Cooper against John B. Henry, Charles G. Juliand, and others. From a judgment for plaintiff on the merits, after a default judgment had been entered and not formally, but in effect, set aside, and from an order denying' a new trial, the defendants named appeal. The court erred in overruling the objections df the answering defendants to the plaintiff’s offer in evidence of the original judgment roll in this case.

<p>1. Appeal — Questions for Review — Record.</p> <p>On appeal by a surety for costs, from judgment against tbe surety, where the only files transmitted with notice and undertaking on appeal were the affidavit and notice of motion for judgment and the objection’ thereto, an objection, unsupported by counter-affidavit or other 'evidence, that defendant knew the surety was insufficient, because in another action between same ■parties defendant therein procured a dismissal on that ground, is not sufficiently presented for determination.</p> <p>2. Appeal — Question n!ot Presented Below.</p> <p>Where not raised below, a surety for costs cannot, on appeal, object that judgment could not be entered against surety until time • for taking appeal from judgment against plaintiff for costs had expired.</p> <p>3. Appeal — Judicial Notice — Scope of Charter.</p> <p>In absence of facts of record, a court cannot take judicial notice that a savings bank, under its charter, was not authorized to become surety for costs for non-resident plaintiff.</p>

Hon. Arva E. Tayror, Judge. Action by Lucy J; Carter and another against Frank Frahm and others, to set aside a decree of distribution and to recover, as heirs, realty involved in such decree. From a judgment for plaintiffs, defendants appeal. The county court had jurisdiction of the subject matter. County courts of this state have jurisdiction, among other things, “2. To grant letters of administration and of guardianship and to revoke the same. 7.

Hon. Wm. Williamson, Judge. Action by J. L. Lynn against Cary A. Donahue and others, members -of the Commercial Club of Witten, an unincorporated association, for compensation for removal of buildings from \one town to another. From a judgment for plaintiff and an order denying a new trial, defendants appeal. The contract (Ex. A) was received in evidence. Under what theory this contract was offered and received is to- us inconceivable.

Hon. Arva E. Tayror, Judge. Action, by S. Loomis, trustee, against the Chicago & Northwestern Railway Company, to foreclose upon certain. street sewer certificates. From findings and judgment in favor of defendant on the first cause of action, plaintiff appeals; and from findings and judgment in favor of plaintiff on the other causes of action, defendant appeals.

<p>Appeal from Circuit Court, Gregory County. lion. Wxx,uam Wiluiamson, Judge.</p> <p>Defendant, J. H. Gregory, was convicted of larceny, and he appeals.</p> <p>Appellant, who was not a lawyer, undertook to defend himself on the trial of this action, and, as stated in his affidavit attached to the motion for new trial, he alleges that the' reason why he would not accept the appointment of the attorneys assigned to defend him was that they insisted that he should plead guilty. (Page 16 of abstract). I refer to this feature of the case for the reason that I have an impression that this court will not hold the appellant to as strict consideration of the methods of saving the exceptions, etc., as would be the case had the defendant been represented by counsel. ■ .</p> <p>As the examining trial of the defendant took place one day and on the next he is put upon trial and had only been brought back from Nebraska a few days prior to that time, and the fact of his being an absolute stranger in the community would place him at a further disadvantage. As he states in his affidavit, commencing on page 15 hereof, he did not know nor have any inkling of the fact that the witness, Flannagan, would testify to his having hired appellant a team nor that the Brinkmans, from whose place the theft took place, one of whom was the owner of the stolen horses, would identify any particular team that had been driven to their place, hence, when said witnesses had testified that on the 2d day, of October, 1911, the defendant had obtained from Flan-" nagan and had driven to Brinkman’s such a team as that described by said witnesses, then and there it became of the utmost importance to the defendant to meet and overcome this testimony, for this reason among others, that no one ever saw the defendant, or any other person for that matter" steal the team, and, therefore, not only, the larceny itself, but the identity of the thief were wholly dependent upon circumstantial evidence.</p> <p>When all the surrounding circumstances are taken into consideration, the defendant cannot be charged with failure to exerelse due diligence in procuring the attendance of the Fowlers. Indeed, he did not even recall their names at the time, as he explains in. his affidavit, and this is not to be wondered at, since they were all strangers to each other, and the defendant was laboring under the attendant excitement of the trial which was taking a turn that he had no means of anticipating beforehand, and it therefore occurs to the writer that the trial court erred in not granting the motion. The Fowlers swore positively and unequivocally that the defendant was at their place in the city of Gregory during the entire day of the second, and Gregory swore to the same thing in his affidavit. Moreover, the Fowlers -stated under oath that the defendant obtained a team from G. V. Fowler on the morning of the 3d and returned - about six o’clock the same evening, this being the day after the one on which Flannagan testified having hired his team to a man, and the Brink-mans testified as having seen a man at their residence, and that on the morning of the 4th of October, he took the train and went east. Therefore, when all these facts are viewed in connection with each other, can this court -say that the defendant -has had a fair trial? - I do not believe that it either can or will. And there was no contradiction of the affidavits of either the defendant or the Fowlers. See State v. De Marias, 27 S. D. 303; Sluman v. Dolan, 24 S-. D. 32; Kellogg v. Finn, 22 S. D. 578.</p> <p>The Fowlers both have -sworn that he was at their house and slept there the same night that the theft is alleged to have taken place, and that he left Gregory on the train the next morning. Now, would it not be but natural to assume that if the Fowlers had been present and testified along the lines hereinbefore stated, that the jury in all probability would have found in favor of the defendant.</p> <p>Granting the truth of these Fowler affidavits, and conceding that the evidence is not cumulative, for the sake of argument, the same do not disprove the defendant’s guilt. The affidavits do not state in any way the description of the team and buggy loaned to the defendant, do not state the direction defendant went with the team on the 3d day of October, 1911, and do not state where he went or what arrangements he made, nor what he might have done with the team during the day while he may have been wandering around in-the cornfields laying the plot; but simply state that he was absent from eight in the morning until six in the evening, at which time he paid for their use and his board and lodging; that defendant stayed at Fowler’s house that night and left on the six o’clock train in the morning of the 4th, which was the last time Fowler ever saw him. While the defendant may have stayed at Fowler’s house that night, it does not state that he remained at the house from six o’clock until,bed time. The testimony showed that Mr. Brinkman dived about seven or eight miles from Gregory; an hour’s drive. The defendant might have driven 'over to the vicinity of Brinkman’s in the afternoon and laid the plot by wandering around in the cornfield after having tied up the team in some obscured place, and returned the team at six. He may have returned under cover of darkness, by numberless meáns of conveyances, and reached Brinkman’s sod barn near the com field at the time the team was placed in the barn, with the aid of a lantern, and fed. The defendant could have removed the team shortly after.</p> <p>The hiring of that team may have 'been a mere ruse to throw off suspicion. The defendant testified 'that he had no object in making the trip, did not state where he.stopped, that he was just looking over the country, and had nothing else to do.</p> <p>The affidavits further state that defendant was in Gregory during the entire day of October 2d. If this be . true, then with the fact on October 3d 'he hired Fowler’s team apd went in an an opposite direction, would it not be the first object in the defendant’s mind to prove his alibi?</p> <p>There is no sufficient showing of record that the defendant in any way used due diligence in procuring his main witness. Appellant explains that at the time of trial, he did not know the name of Mr. Fowler,-but does not explain why the same could not have been procured by diligent inquiry. The distance is not -so great from the place of trial to where Fowler lived but what defendant might .have procured the presence of this witñess by subpoena, forthwith. : ,</p> <p>Again, conceding for the, purpose of 'argument that the witness could not be had, there appears to'be no motion for continuance of record. In fact, the appellant’s abstract does not contain the information, charging the date on which the crime was committed. Nor does the abstract show that an appeal to the supreme court has been taken.</p> <p>In the first place, there may be some question as to whether such evidence as • contained in the affidavits is newly discovered evidence. State v. Barnes,'26 S: D. 622, 129 N. W. 116.</p> <p>The newly discovered evidence must be material or important to the moving party. Evidence on a matter collateral to the issues is .seldom ground for a new trial. It is not sufficient that the new evidence, had it been offered on the trial, might have ■ changed the verdict. According to the weight of -authority, it must be sufficiently important to make it probable that a different verdict will be returned on another trial. According to some authorities, the new evidence must be of a decisive or conclusive character or such as to render a different result reasonably certain. 29 Cyc. 898-902; Palmer v. Sehurz, 22 S. D. 283, 117 N. W. 150; Estate of Do-lbeer, 153 Cal. 652, 15 Am. & Eng. Ann. Cas. 207.</p> <p>Again, due diligence does not appear to have been • used in producing this alleged newly discovered evidence. If any surprise, legally, existed here it has been waived by the failure of the defense to move for a continuance at that time. This is an elementary principle, illustrated by numerous cases, including Gaines v. White, 1 S. D. 434. The defense- makes no pretense that it could not have been secured if proper effort had been made. 2, Hill’s Dakota Dig. 712; 29 Cyc. 886-892; Seheuer v. State, 31 Mont. 461, 3 Am. & Eng. Ann. Gas. 952.</p>

Hon. Arva ETayror, Judge. Action by S. Jennie Sorg and others against William Wells. From a judgment for defendant, plaintiffs appeal. Motion to dis-hiss appeal denied.

<p>Appeal from Circuit -Court, Brookings County. Pión. C. X. S®ward, Judge.</p> <p>Action by the State, on the relation of C. S. Paulson, against E. E. Van Dyke, as County Treasurer of Brookings County. From_. a judgment for plaintiff, defendant appeals.</p>

Hon. Wieeiam G. Rice, Judge. The defendant, David Perkins, was convicted of the crime of assault with intent to commit rape, an'd he appeals. Accepting the evidence of the state as being absolutely true, we contend that there is not sufficient evidence for a jury to -say that the defendant intended to commit the crime of rape.

■ Appeal from Circuit Court, Day County. Plon. Frank Mc-Nulty, Judge. Action by Peter J. Alsager against John P. Peterson, to enjoin continuance of a wafer ditch affecting plaintiff’s land! From a judgment for defendant and an order denying a new trial, plaintiff appeals.

Hon. Frank JB. Smith, Judge. Action by J. H. Wolf against George Jacob Gramm. From a judgment for defendant and an order denying a new trial, plaintiff appeals. We would call the attention of this court specifically to the trial court’s certificate to the statement of the case.

Hon. Frank McNulty, Judge. Action ¡by Helen Caystile Narregang against Spencer W. Narregang, for divorce and alimony. From an order denying defendant’s petition to' be relieved from payment of part of the unpaid portion of the alimony, he appeals. Under section 92, Civ. Code, this court seems to have held uniformly that it was intended thereby that all judgments for alimony were subject to such revision from time to time as the changed condition of the parties might require.

Hon. Wiiaiam Wiuwamson, Judge. Action by J. W. Sanford and others against Oscar E. Helgerson, to recover rents for use and occupation of realty. From a judgment for defendant and from an order denying a new trial, plaintiffs appeal.

<p>1. Pleadings — Complaint—Master and Servant — Action for Injuries.</p> <p>In an employee’s action against a railroad, company for ordering Mm to. board a speeder or small car operated by gasoline power, after assuring him that he would have a clear track, although an engine was then 'being carelessly and negligently operated over such track in an opposite direction, held, it was proper to aver that the alleged acts of negligence were done by the company, instead of by their servants or employees.</p> <p>An allegation of negligence of a railroad company warrants admission of ¡proof of negligent acts of its employees within the scope of their authority.</p> <p>2. Pleading — Complaint—Master and Servant — Action for Injuries.</p> <p>Under a section hand’s complaint for injuries alleging that he, his foreman, and other section hands were directed to board a handcar after being assured they would have a clear track, although an engine was then being operated in the opposite direction on same track, was not demurrable on ground that the person giving the order and assurance was a fellow-servant ■of the section hand, there being no presumption from the pleading that he was, or was not, such fellow-servant, even though the defendant corporation must act through its officers, agents, or employees.</p> <p>3. Pleading — Two Negligent Acts, One Cause of Action.</p> <p>Such complaint, wherein it alleged, as acts of negligence, the foreman’s order to board the handcar, and the assurance that plaintiff would have a clear track, did not state two distinct acts of negligence, but that the two, coupled together, constituted the proximate cause of the injury, and it therefore states a cause of action against defendant railway company.</p>

Hon. Joseph W. Jones, Judge. Action by Elica E. Kroeger against E. A. Warren, as administrator of the estate of Edward E. 'Smith, deceased, and others, for specific performance of an alleged contract -of decedent to convey realty. From a judgment for defendants, plaintiff appeals. The court finds that the performance of the contract as claimed by plaintiff was complete on plaintiff’s part in every respect.

Hon. LSvi Mc-GSk, Judge. Action by the Independent Publishing -Company against Stanley County, to recover for certain county printing. It is -the contention of the appellant, Stanley county: 1. That neither the board of county commissioners nor George D. Mathieson had any authority at law to authorize the publication of a notice that tax deed would issue to Stanley county. 2.

Hon. Joseph W. Jones, Judge. Action by Frank E. Huntimer against the South Dakota Central Railway Company to recover double damages for killing of livestock. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Prior to the trial of this case this court had, in Jensen v. S. D. C. Ry. Co. and Lidel v. same, 127 N. W., pp. 650 and 653, respectively, held that chapter 218 of the Laws of 1907 was in each and all of its details in force.

Hon. Joseph W. Jones, Judge. Action .by E. O. Baum'berger against the Soqth Dakota Central Railway Company to recover double damages for killing of livestock. From a judgement for plaintiff, and an order denying a new trial, defendant appeals. The briefs of respective counsel in this case were identical with those in the case of Huntimer v. South Dakota Central Railway Company, 31 S. D. 487.

<p>1. Municipal Corporations — Officers—Resignation, When Effective.</p> <p>Under Pol. Code, Sec. 1236, providing for approval toy city council of an appointment of city auditor by mayor, and Sec. 180s, sutod. 6, providing that resignation of appointive officers shall toe .made to tij.e appointing body or officer, held, the acceptance toy mayor of the auditor’s resignation did not effectuate the resignation until accepted by the council. ' ,</p> <p>2. Mandamus — Findings and Conclusions — Adopting Alternative Writ Recitals.</p> <p>Where alternative writ of mandamus fully ■ recited the facts, an order making such writ peremptory in' effect adopted such facts as findings.</p> <p>3. Mandamus — No Formal Findings, None Requested — Harmless Error.</p> <p>While failure to make findings and conclusions in mandamus in awarding a .peremptory writ is irregular, it was not reversible error, no request that court make them having been made; and therefore no prejudice resulted.</p> <p>4. Municipal Corporations — Resignation of Officer — Filling Vacancy —“Next Regular City Election.”</p> <p>Under Pol. Code, Sec. 12S4, -providing for annual election of city officers, the “next regular city election” after resignation of mayor and an alderman within Sec. 1292, authorizing city council to appoint to fill vacancies until the next regular city election, was the first annual election following, although, had no resignations been filed, their successors would not have been elected until the following year.</p>

<p>1. Drains — Drainage System — Assessments.</p> <p>Under Laws 19 07, Chap. 134, Sec. 6, defining benefits accruing under a drainage system, held, that lands that will be benefited by laterals are subject to assessment for the main ditch, being an outlet for laterals, whether the latter are provided as part of the system or not.</p> <p>2. Drains — Damages for Right of Way — Relevancy of Issue.</p> <p>The question of damages for right of way for drainage ditch and to lands outside thereof is not ordinarily one for consideration in connection with establishment or non-establishment of the ditch, though, where cost of proposed drainage system is large in proportion to benefits, it might become material.</p> <p>3. . Drains — Main Ditch and Laterals — Relevancy of Issues — Discretion of Commissioners.</p> <p>Where, on appeal from an order of county commissioners in .proceedings to establish drainage system, while construction of main ditch alone will be conducive to public health, convenience and welfare, yet, held, that it would be wisdom for the joint commissioners to determine all matters relating to laterals and dikes in establishing the drainage system; the trial court did not err in so deciding.</p>

<p>1. Pleadings — Issues—Sales Contract.</p> <p>Where, in. a suit to recover on an alleged contract for sale of certain implements, defendant pleaded a general denial, and further alleged that at no time did. defendants purchase any machines or implements of plaintiff, held, the making of the contract was put in issue, and this .Court, in deciding the case, on appeal, did so upon a relevant issue.</p> <p>2. Sales — Cpntract, Evidence of Approval of.</p> <p>Where the answer denies execution of an alleged contract of sale of machinery, and plaintiff introduced a written order for machinery, which provided that the contract was subject to personal approval of the president or secretary of plaintiff corporation, plaintiff was hound to follow with evidence that the contract had been accepted, and, failing this, had not proved its case.</p>

Hon. Arva E. Tayror, Judge. Action by Berenice Eacey Sawyer against Charles C. Issenhuth, to recover an alleged balance of purchase money for land of plaintiff sold by defendant as plaintiff’s agent, but which defendant claims to1 have himself purchased of plaintiff. From a judgment for plaintiff, defendant appeals. Defendant never at any time was the agent of the plaintiff and he at all times had a right to individually purchase the land of her.

On rehearing. The word “include” in sec. 721, C. C. P., does not operate to embrace the case at bar. Nehr v. McCook County, ix S. D. 422. Standard Dictionary. The board of county commissioners, not the county, constructs the ditch. Secs. 5 and 6, chap. 102, Daws 1909, amending chap-134, Daws 1907. The rule of liberal construction of mechanics lien statutes has always prevailed in this state.

Hon. Frank McNulty, Judge. Action by Andrew G. Carson against the Chicago, Milwaukee & Puget Sound Railway Company, for damages for injury to plaintiff as a -passenger. From a judgment for plaintiff and from an order denying a new trial, defendant appeals. There is no evidence of negligence or negligent act in the record, and -the defendant’s motion to direct a verdict upon that ground should have -been granted. So. Ry. Co. v. Johnson, 39 So. Rep. 376; Boston Elev. Ry.

Hon. Joseph W. Jones, Judge. Action 'by the American National Bank against the Wheeler-Adams Auto Company and others, to foreclose a chattel -mortgage. From, a judgment for plaintiff, defendants appeal. Section 434, Civ. Code, was taken from the -Civil Code of California, Beveridge V., N. Y. E. R. Co., 112 N. Y. 1; Hopt v. Thompson’s Exr., 19 N. Y. 216. Petitioner’s mortgage is not a valid lien upon this property.

Appeal - from Circuit 'Court, Spink County. Hon. Ar,va E. Tayror, Judge. Action by George M. Watters against J. W. Ryan, for specific performance of contract for conveyance of land. From a judgment for plaintiff, defendant appeals. The -contract, as construed 'by plaintiff, is' not just, and reasonable so as to warrant a court of equity in enforcing hs performance. Section 2345 of the Civil Code of 1903.

Hon. Cray Carprntrr, Judge. Mandamus by the- State of South Dakota, on the relation of George Rice and others, Railway Commissioners, against the Chicago, Milwaukee & Puget Sound Railway Company, to- enforce the Commission’s order for construction of a railway station. From a judgment for defendant and from an order denying a new trial, plaintiff appeals. The transcript of evidence taken- before the Railway Commissioners was admissible-in evidence before the/circuit court.

Hon. Joseph W. Jones, Judge. Action by William Kinkaid against J. (TDonovan Rossa, to set aside an execution sale of realty. From a judgment for plaintiff add an order denying a new trial, defendant appeals. Plaintiff’s only excuse for neglecting the matter is that he had an agreement with John Schwinn, the judgment creditor, that no execution was to be issued for three years.

On rehearing. In the opinion in the case at bar it is stated: “If service upon an officer of a foreign corporation within this state may be deemed due process of law, we see no reason why service of process upo’n an officer of a domestic corporation residing in a foreign state may not likewise be deemed due process as well.” .

H-on. Joseph W. Jones, Judge. . Action by John G. Lee and others against the Clark Implement Company and others, to cancel certain drainage ditch certificates; defendants counterclaiming for foreclosure thereof. Judgment dismissing complaint and for defendants on the counterclaim. An order denying a new trial was entered, but the appeal -by plaintiffs was from -the judgment only.

<p>Appeal from 'Circuit Court, Union County. Hon. Joseph W. Jones, Judge.</p> <p>Action by W. D. Castle against John Gleason, for the value of alleged mortgaged crops converted by defendant. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.</p> <p>In this case the mortgage clearly fixes the year as that of 1912. Such a mortgage is not the basis of proof that the mortgage was to cover the crop of the year 1911. 22 Enc. PI. & Pr. 527'; Robinson v. Kilpatrick Dry Goods Co., 50 Neb. 795, 70 N. W. 378; First Nat. Bank v. Hamer, 47 Fed. 36; Bromley v. Goff, 75 Mich. 213, 42 N. W. 810.</p> <p>T-he plaintiff on -the -trial offered testimony to the effect that the writing of the year “1912” was a clerical error, the intention being to write “1911.” • This testimony was obected to as parol testimony offered to contradict the terms of a written instrument, and such objection should have been sustained. Tossini v. Dona-hoe, (S. D.) 117 N. W. 148; Barnard v. Colonial & U. S. Mtg. Co., (S. D.) 105 N. W. 737; Bowen v. Mutual Rife Ins. Co., (S. D.) 104 N. W. 1040; Anderson v. Matheny, (S. D.) 95 N. W. 911; and see Section 1239, Code of 1903.</p> <p>Plaintiff must have a reformation of such mortgage in order to enable him to recover. MacVeagh.v. Burns, 2 S. D. 83, 48 N. W. 835; Tossini v. Donahoe, (S. D.) 117 N. W. 148; Forester v. Van Auken, 12 N. D. 175.</p> <p>A clerical error is one which can be detected without the aid of extrinsic evidence. Hughes v. Payne, (S. D.) 1x7 N. W. 363.</p> <p>1. The instrument shows upon its 'face that it was designed and intended for, and is a mortgage upon the 'crop- to be grown in the year 1911, and that the writing, of the figure 2 in place of the figure 1, thus making it read crop of 1912, is clearly and unmistakably a clerical error. The mortgage is dated February 9th 1911, the notes secured are dated the same day and due Nov. 1, 1911, and Jan. 1, 1912. Gorder v. Hilliboe, (N. D.) 115 N. W. 843-</p> <p>The testimony of Jerry Ryan and Will Ryan as to the clerical error in the mortgage was admissible because of the fact that the evidence at that time in the record -disclosed that the defendant had actual knowledge of the mortgage and of the property intended and designed to be mortgaged, and of the fact that the year 1912 was written therein instead of the year 19IT, by error. Rove vPutman, 59 N. W. 691 (Neb.); Adamson v¡ Peterson, 29 N. W. 321 (Minn.)</p>

Hon. Frank; B. Smith, Judge. Action by Maude Stemler, a minor, by Anna Streeck, her guardian, against John D. Stemler, for recovery of the amount of a benefit under a fraternal beneficiary certificate issued by the Modern Woodmen of America. From a judgment for defendant, plaintiff appeals'. The contract of insurance by and between the society and the member includes the application, the certificate, by-laws and constitution.

PJon. William Williamson, Judge. Action 'by James A. Smith against Ida Stow Bowder and others, to foreclose a mechanic’s lien, etc. From a judgment for defendants and from an order denying a new trial, plaintiff appeals.

Hon. 'Frank McNulty, Judge. Action by Clara E. Brewster against George W. Miller, to recover for part of the consideration of an alleged sale of land and personalty by plaintiff and her husband to defendant. From ■a judgment for plaintiff and from an order denying a new trial, defendant appeals.

Hon. Charles A. Davis, Judge. Action by F. C. Bebo-ut against E. E. Pense and another jointly, for slander: Erom an order overruling a demurrer to the complaint, defendants appeal. There is a misjoinder - of defendants and a misjoinder of causes of action — one against E. E- Pense and one against Emma Pense. Each -defendant should only be responsible for the injury inflicted by his own independent act.

Lion. Frank B. Smith, Judge. Action by Charles Todd against Fred P. Burger and another. From a judgment for plaintiff, defendants appeal. Appellant’s procedure on this appeal has been -so faulty that he is not entitled to have the merits of the case considered, and the judgment should be affirmed because of irregularities in procedure alone.

<p>1. Highways — Establishment—Petition Eor — Jurisdiction.</p> <p>Under Pol. Code, Sec. 1707, authorizing establishment of a highway by town supervisors upon petition of not less than six legal voters, etc., the supervisors have no jurisdiction, and the petition should not have been filed, where but four qualified persons sign it.</p> <p>2. Establishment — Jurisdiction'—Estoppel.</p> <p>Signers of a petition for establishment of a highway were not estopped to question jurisdiction of town supervisors to lay it out, because the petition was not signed by the required six qualified signers; the signers not having received or accepted damages allowed them.; and brought action to restrain opening of the highway before it was opened, since it is presumed that they signed expecting and'believing that sufficient persons would sign it to render it legal.</p> <p>Smith .and Gates, J. J., dissenting.</p> <p>3. Establishment — Waiver of Damages — E'stoppel.</p> <p>The signer of a petition for establishment of a highway was not, by waiver of damages allowed her in the proceedings, estopped to question jurisdiction of town supervisors to act on tlie petition, on the ground that it did not have the statutory number of signers.</p> <p>Smith and Gates, J. J., dissenting.</p> <p>4c. Appeal — Dedication of Highway — Pleadings—Presumption in Support of Judgment.</p> <p>In a suit to restrain establishment of a highway, defendants pleaded regularity of proceedings to establish and that plaintiffs were estopped, but did not plead a common-law dedication by plaintiffs. Held, it cannot be presumed, in support of trial court’s judgment, that it based its decision' upon a finding of such dedication.</p> <p>Smith and Gates, J. J., dissenting.</p> <p>5. Highway — Dedication—Acts Constituting.</p> <p>Where land owners fenced in a strip of land described in a petition for establishment of a highway, until the fence was removed by town supervisors, and continued to use it as their property, did not, by signing an inadequate petition for establishment of such highway, dedicate the strip- described in the petition as :a highway, since the beeping !u,p of fences and gates rebuts any presumption of intention to so dedicate.</p> <p>Smith and Gates, J. J., dissenting.</p>

-Circuit Court, Union -County. Hon. Joseph W. Jones, Judge. Action by Alfred Hallam against Henry Henkin and another, to recover on a promissory note and to foreclose a mortgage securing same. From an order refusing to enter judgment for defendants on an alleged counterclaim and granting to plaintiff leave to reply, defendants appeal. Defendants are entitled to judgment on their counterclaim. Sections 131 and 237, of the Code of Civil Procedure.

Original petition in the Supreme Court, by James S. McClellan and others for a writ of prohibition restraining the Circuit Court of Minnehaha County from permitting the State to appear in a proceeding therein pending upon appeal from the County ■Court, for the final distribution of the estate of John McClellan, deceased.