Volume 31 — Utah Reports

Akpeal from District Court, Sanpete County; E. Erickson, Judge. Action by George M. Bartholomew against the Fayette Irrigation Company. From a judgment for defendant, plaintiff appeals. APPELLANT'’S POINTS. When a suitor comes into a court of proper jurisdiction to settle “differences of opinion,” “claims of rights” or conflicts of interest in relation to his property the court must not avoid the duty imposed upon it, and the'reby defeat the objects of jurisprudence.

<p>1. Mines and Mining — Contracts—Evidence.—Evidence examined, and held to show, that sufficient ore had been extracted from a mine to have paid a balance due on the purchase price had the ore been sold.</p> <p>2. Same — Liability for Purchase Price — Construction of Contract. — Defendant assumed an obligation to pay as the balance of the purchase price of a mining claim a certain sum out of the first net profits derived from the sale of ores thereafter extracted therefrom. An abundance of ore was extracted to have paid such balance out of the net profits thereof. Held, that defendant could not, by selling the mine before selling the ore, escape liability on the contract.</p> <p>3. Contracts — Making Performance Impossible — Liability. — Where one voluntarily puts it out of his power to do what he agreed to do, in the way agreed upon, he commits a breach of contract and becomes liable generally.</p>

.A. Howell, Judge. Action by Ella 0. Van Wliy, as administratrix ofsthe estate of John C. Van Why, deceased, against the Southern Pacific Company and another. Erom a judgment in favor of plaintiff, defendants appeal. On motion to strike a pretended bill of exceptions from the record. RESPONDENT*S POINTS. The court was therefore, without jurisdiction or authority to settle or allow the bill. (Butler v. Lamson [Utah], 82 Pac. 473.).

A. Howell, Judge. Action by J. D. Skeen against William Craig. From a judgment for defendant, plaintiff appeals. APPELLANT'S POINTS. The court erred in sustaining the demurrer of the defendant to the fifth paragraph of the amended complaint. There is no distinction between a city councilman refusing and neglecting to investigate and oppose the allowance of improper claims against a city and a ¿sheriff refusing and neglecting to serve a summons.

A. Howell, Judge. Action by J. D. Skeen against Fred W. Chambers. Judgment for plaintiff. Defendant appeals. APPELLANT'S POINTS. It is to be observed that this being a penal statute it will be strictly construed and will not be extended by implication to cases not strictly within its terms.

II. Rolapp> J udge. Action by the Nelden-Judson Drug Company and others against the Commercial National Bank and another. Erom a judgment for defendants, plaintiffs appeal.

A. Howell, Judge. Action by Matilda Jobanson against the Grand Lodge of the Ancient Order of United Workmen of Utah, Wyoming, and Idaho-. From a judgment for plaintiff, defendant appeals. APPELEANt’s points.

D. Lewis, Judge. Judicial accounting by A. E. Cranney, as administrator of John T. Garr, deceased. From an order directing distribution of intestate’s estate to- bis collateral next of kin, as against the heirs of a son of intestate born out of wedlock, they appeal. APPELLANT’S POINTS. The rule of law, that statutes in derogation of common law, should be strictly construed, has been by statute expressly abrogated in Utah since 1884 as to all civil matters.

Action by James C. Gaboon against James W. Hoggan. Erom a judgment in favor of defendant, plaintiff appeals. APPELLANT’S POINTS. In an action for damages for breach of contract, only tbe parties to tbe contract should be joined as defendants. (Es-tee’sPl. [4 Ed.], sec. 161.) In an action on a bond or written undertaking there can be no constructive parties jointly liable with the proper obligors.

D. Lewis, Judge. Mandamus, on the relation of Caleb Tanner, to compel John A. Edwards, as auditor of public accounts, to issue a warrant in favor of relator, and from, a judgment issuing the peremptory writ, respondent appeals. APPELLANT^ POINTS.

— Appeal from District Court, Salt Lake County; C. W. Morse, Judge. Suit by Martha Lloyd Price against John H. Lloyd, as executor of the will of William Lloyd, deceased. From a judgment for plaintiff, defendant appeals.

W. ' Morse, Judge. Action by Peter N. Garff against Jesse M. Smith, and others. Prom a judgment in favor of plaintiff against defendant James P. Sharp, he appeals. APPELLANT’S POINTS.

D. Lewis, Judge. Action by Ella J. Blake, administratrix of of Edward Blake, deceased, against John W. Farrell. From an order directing partial satisfaction of plaintiff’s judgment, she appeals. APPELLANT'S POINTS. “A motion to vacate a final jfidgment comes too' late after the term has expired and after th© time-in which a motion for a new trial can be made, and it should be denied.” (Jones v. N. Y. Life Ins. Co. 14 Utah; Canadian & American Inv. Go. v. Land & Inv.

L. Ritchie, Judge. Action by Frank Sanipoli against the Pleasant Valley Coal Company. From a judgment for defendant, plaintiff appeals. APPELLANT'S POINTS. A demurrer on the ground that the court has^no jurisdiction over the person of defendant, raises only the question whether the defendant is such a person as can be subjected to the process of the court. (Belden v. Wilkinson, 44 N. T. App. Div. 421; Railroad v. Railroad, 4 Hun '712.).

-W. Morse, Judge. Action by W. E. Johnson and another against C. Frank Emery and others. From a judgment in favor of defendants, plaintiff Johnson appeals. appellants’ points. Proceedings in attachment, being a statutory proceeding and in derogation of the common law, are strictly construed, and no intendment whatever will be indulged in its favor, but the statute must be strictly complied with.

L. Ritcbie, Judge. Action by the Utah Savings & Trust Company, as administrator with the will annexed of the estate of James E. Woodman deceased, against Simon Bamberger. Erom a judgment for defendant, plaintiff appeals. APPELLANT'S POINTS. The opinion of the Supreme Court upon the first appeal is the law of this case and should have been followed by the district court upon the second trial, and is binding on this court on this appeal.

W. Morse, Judge. Action by Daniel Hamer against James Albert Howell to contest an election. From an adverse judgment, contestant appeals. APPELLANT'S POINTS.

D. Lewis, Judge. Action by James M. Lockhart, administrator of John G. Ebodin, deceased, against James Farrell. From a judgment for defendant, plaintiff appeals. APPELLANT’S POINTS. Tie South Mountain was located August 21, 1900, and the owners were not required to do any assessment work thereon, until 1901, and had the whole of that year in which to do it. (R. S. U. S., 2324; Act June 22, 1880, 21 Stat.

<p>Appeal from District Court, Utah County; J. E. Booth, Judge.</p> <p>Clyde Hows and William Watson were acquitted of a charge of burglary, and the state appeals.</p>

<p>1. Appeal — Questions Reviewable. — On appeal in a law ease, where the evidence is conflicting, the only question the appellate court can consider and determine is whether there is any legal or competent evidence on which the judgment and verdict can rest.1</p> <p>2. Witnesses — Disceepancies in Testimony — Explanation. — Defendant, having testified that plaintiff was not his agent for the purpose of taking possession of certain chattels under a mortgage and that plaintiff had acted in his own behalf, and that defendant had no interest whatever in such chattels, was properly permitted to explain that testimony given on a former trial between parties to the effect that plaintiff had acted as such agent was given under representations of plaintiff’s alleged attorney that as the mortgage was executed to defendant, although really for the benefit of plaintiff, and for convenience only, it was necessary to so testify, independently of whether such alleged attorney was in fact plaintiff’s attorney or whether plaintiff was himself present when such representations were made or not.</p>

Ceetioeari by Frank Hoffman against T. I>. Lewis, judge of the Third Judicial District, to review tbe action of the judge in respect to the dismissal of an appeal from a justice’s court. Respondent’s points. The authorities under such statutes all hold as we have contended, and that a failure to justify when required, renders the appeal ineffectual. (Pratt v. Jarvis, 8.

<p>1. ■ Pleadiwg — Complaint—Separate Causes op Action. — Plaintiff alleged that he performed labor, at defendant’s request on defendant’s mining claims as a miner, and performed other work and labor on such claims as foreman and manager; that the labor performed, the services rendered and moneys paid out by plaintiff at defendant’s request amount in the, aggregate to $1,177, all of which •were done and performed between!'April 5, 1904, and February 26, 1905; that no part thereof had been paid, except $800.67, leaving a balance of $376.33 due from defendant to plaintiff. Held, that such complaint properly stated a single cause of action, and was not objectionable for failure to separate plaintiff’s claim for services as a miner on the amount due as defendant’s foreman and man-</p> <p>2. Same — Bile of Paetiouiaes — Demueree—Grounds.—Where a complaint for seervice and money paid alleged the different items sought to be recovered, and made brief mention of the character of each class, it was not demurrable for failure to state each item more specifically; defendant’s x'emedy, if he desires a more specific statement, being by motion for a bill of particulars, authorized by Revised Statutes 1898, section 2988.</p>

L. Eitchie, Judge. Action by Herbert J. Earney against tbe Oregon Short Line Eailroad Company. From a iudgment for plaintiff, defendant appeals. RESPONDENT’S POINTS. Grounds of motion for judgment of nonsuit must be specifically stated.

A. Howell, Judge. Action by Edward B. Graves, receiver, against Elora I. Sei-fried and others. Erom the judgment, plaintiff appeals. APPELLANT'S POINTS.

<p>1. Dtvobce — Acttoít—State Cotjet — Jubisdiction — Domicile. — Where a husband and wife were married and resided in Utah, where .the husband abandoned the wife, the matrimonial domicile was in that state, which was all that was essential to confer jurisdiction on its courts to decree a divorce, though the husband could not be personally served there.</p> <p>2, Same — Change—Abandonment oe Wiee. — Where a husband abandons his -wife and "moves to another state, such abandonment does not affect the matrimonial domicile for the purposes of an action for divorce by the wife, and draw the same to the domicile of the husband.</p>

D. Lewis, Judge. Action by E. W. Little and another as copartners against Henry Blank. A justice’s judgment was rendered in favor of plaintiff, from which defendant appealed to the district court, and from an order of dismissal, defendant appeals. APPELLANT’S POINTS. Upon tbe proposition that tbe motion filed with tb© clerk on January 23, 1906, by appellees was not tbe notice required by chapter 50, Laws 1899, w© submit tbe following citations: Secs. 3330, 3331, 3334, Bev.

Axel Thompson was convicted of adultery, and he appeals. APPELLANT’S POINTS. It was error to permit Tora Jensen to testify to alleged acts of sexual intercourse occurring at a time on or about the 1st day of February, 1905, a time wholly outside of the time alleged in the information.

A. Howell, Judge. Action by the Eedes Lumber. Company against Ann IL Martin, executrix of J ames E. Horrocks, deceased, and others. Erom a judgment of dismissal, plaintiff appeals. appellant’s points. The authorities are almost uniform in holding that where work is done or material furnished in the ¡erection of two. or more houses under an entire contract upon one lot or parcel of land owned by one person.

Armstrong, Judge. Application by petitioner Annie F. A. Hilton against tbe estate of John R. Park, deceased, S. W. Stewart, executor. Demurrer to tbe petition sustained, and petitioner appeals.

A. Howell, Judge. Suit by Lee Bichey against Marion Bens. From a decree for plaintiff, defendant appeals. APPELLANT'S POINTS.’ “A judgment in a former action is well pleaded as a bar in a second action, provided tbe cause of action is the same though the form of action has been changed.

<p>Boundaries — Establishment—Erection oe Improvements and Fences' — Long Acquiescence — Subsequent Surveys,, — Improvements calculated to mark the boundary line between adjacent lots were erected by the owners of the lots and existed for more than thirty years, during all of which time rents for the ground upon which the improvements stood were collected by the owners, each for his own lot. A fence conforming to the boundary established by the improvements was also erected. Many years after this a survey of the lots was made and a new boundary was fixed, not coinciding with the fence. The line shown by the survey was determined from street monuments placed long after the improvements were made and the fence established. Held, that the line determined by the erection and continued existence of the improvements and fence, and acquiesced in by the owners, was the true boundary.</p>

<p>1. Appeal — Notice—Sufficiency.—'That the notice of appeal shows an attempt thereby to appeal from the order overruling motion for new trial is immaterial if the notice is otherwise sufficient, as such part is mere surplusage.</p> <p>2. Same — Transfer op Cause. — Though a transcript is not prepared in strict conformity with the rules of the court, and the abstract and briefs are served and filed a few days after time, the right to be heard will not be denied where no matter of substance has been disregarded and no material prejudice results.</p> <p>3. Same — Assignment op Errors — Necessity.—An appeal will be dismissed for an entire failure to comply with Supreme Court rule 26, requiring appellant to assign errors in writing, signed by himself or counsel, and serve a copy thereof on the respondent and file the original with the clerk of the Supreme Court five days from the time of the filing of the transcript and permitting respondent to assign cross-errors.</p> <p>4. Same — Supficiency.—Supreme Court rule 26, requiring appellant to assign errors in writing, signed by himself or counsel, to be served on the respondent and filed with the clerk of the Supreme Court, is not complied with by appellant placing in his abstract what purports to be an assignment of errors.</p>

D. Lewis, Judge. Action by Mrs. L. J. Reams against Josephine Taylor. Erom a judgment dismissing the action, plaintiff appeals. APPELLANT'S POINTS. ■ The guardian having the authority, and it being his duty tc rent the premises, he is also' authorized to make necessary repairs and to make those necessary repairs no authority from the court is necessary.

A. Howell, Judge. Action by Pauline Griffin as administratrix of -the estate of H. J. Griffin, deceased, against tbe Southern Pacific Company and another. From a judgment for plaintiff, the railroad company appeals.

W. Morse, J udge. Action by George F. Felt, doing business as tbe George F. Felt Lumber Co., against Alzora Cook and others. From a judgment in favor of .defendants, plaintiff appeals.

<p>1. Appeal — Assignment or Errors — Waiver. Errors' assigned, but not argued in the brief or on ,oral argument are waived.</p> <p>2. Railroads — Operation—Injuries to Animals. In an action against a railroad company for the value of a cow killed at a public crossing, evidence that the cow was restless because separated from her calf, and the owner had placed her in a pasture some distance from the barn, from which there was an inference that shei had escaped, and was on her way to the barn when struck, did not tend to show contributory negligence on the part of the owner, and the court did not err in refusing to submit that question to .the jury.</p>

D. Lewis, Judge. Action by William H. Davis against the Oregon Short Line Railroad Company. Judgment for plaintiff. Defendant appeals. STATEMENT OF FACTS.

A. Howell, Judge. Action by William Brown against tbe Southern Pacific Company and others. Elom a judgment for plaintiff, defendants appeal. APPELLANTS'’ .-.POINTS. To apply the general rule, as affecting the liability, joint and several,vof tortfeasors because of their union in-act, there must be some community in the wrong doing; the injury must be in some sense the result of joint work.

L. Ritchie, Judge. Action by the Honerine Mining & Milling Company and another against the Tallerday Steel Pipe & Tank Company and another.- Erom a judgment quashing the summons for failure of… Held: namely: 1st. It must appear as a matter of fact that the corporation is carrying on its business in such foreign state or district ; 2nd. That such business is transacted or managed by some agent or officer appointed by and representing the corporation in such state; and 3rd.

A. Howell, Judge. William E. Swan was convicted of false pretenses, and be appeals.

A. Howell, Judge. Action by A. R. C. Smith against Gideon Alvord. From a judgment in favor of defendant, plaintiff appeals. APPELLANT'S POINTS. It hardly seems necessary to discuss the proposition that a tort cannot be offset against a tort. Our Supreme Court has so decided, and in harmony with this decision are all the text-boohs we have so far examined.

<p>1. Trial — INSTRUCTIONS — Construction. — Instructions should he considered as an entirety, and if, as a whole, they correctly and fairly present the law, even if some particular instruction or portion thereof standing alone may he erroneous, it will he no ground for reversal.</p> <p>2. Same — Province oe Court and Jury. — Where plaintiff, while driving along the street, was injured by collision with a street car, and there was evidence that his horse was unruly and unmanageable, it was error, as an invasion of the jury’s province, to instruct that it was not negligence on his part to drive along and near defendant’s track.</p>

W. ■Morse, Judge. Action by Annie F. A. Hilton against George W. Tbatcber. On the death of the defendant, Robert W. Sloan and others were submitted as defendants. From a judgment in favor of defendants, plaintiff appeals. APPELLANTS POINTS. The dower interests of the wife is a favorite of the law.

W. Morse, Judge. Action by the Kooky Mountain 'Bell Telephone Company against the Utah Independent Telephone Company and another. • From a judgment in favor of defendants, plaintiff appeals. RESPONDENT'S POINTS. - Excepting cases of conspiracy to injure, annoy or oppress another, the motive by which an act, in itself not unlawful, is prompted, is immaterial.

L. Ritchie, Judge. Action by F. Garcia, doing business as F. Garcia & Co., against John F. Free and another. From a judgment in favor of defendants, plaintiff appeals. APPELLANT'S POINTS.

<p>1. Ple¿ding — Amending Complaint — Changing Cause of Action — Alleging Seasonable Value. Where a complaint alleged the facts in respect to a contract, the performance of services thereunder and breach by defendant, an amendment merely adding a statement as to the reasonable value of the services rendered does not change the cause of action, or add a new cause of action, though it allows a recovery on a quantum meruit, instead of on an express contract.</p> <p>2. Trial — Limiting Instructions to Evidence. Refusal of a general instruction, in an action for commissions for making a sale, that plaintiff could not recover if he exercised bad faith towards defendants, and giving an instruction that he could not recover if he did a certain tiling with fraudulent intent, there being no evidence of any other exercise of bad faith, is proper.</p>

L. Eitcliie, Judge. Action by the Continental Life Insurance & Investment Company against Thomas B. Jones and another. From a judgment of dismissal, plaintiff appeals. APPELLANT'S POINTS. This is a transitory action and may be brought wherever the defendant can be found. The defendant was found and served in Salt Lake County.

H. Hart, Judge. Action by Bengt Johnson against Abraham B. Johnson.From a judgment for plaintiff, defendant appeals. appellant's points.

W. Morse, Judge. Action by Margaret Miller and others against Elizabeth Livingston, as administratrix of Margaret Miller, deceased, and individually. From a judgment for defendant, plaintiffs appeal. appellant's poiNts. A circumstance to be considered was tbe confidential relation existing between the testator and devisee, and also> the unnaturalness and injustice of disinheriting his children whom he loved and always calculated to provide for.

<p>Contracts — Modotoation—Actions—Evidence—Stjmtoienot. In an ación by a vendor contracting to convey mining claims to purchasers on specified conditions for the recovery of money due under an ■ alleged modified contract, evidence examined, and held to warrant a finding that the purchases agreed to pay the sum sued for in consideration of the vendor waiving his right to forfeit the purchasers’ right in the contract of conveyance, authorizing a judgment for the vendor.</p>

<p>1. SPECIFIC PERFORMANCE — PARTIES AGAINST WHOM PERFORMANCE Mat Be Enforced. Under Devised Statutes 1898., section 2826, providing that one-third in value of all estates in real property possessed by a husband at any time during the marriage, and to which the wife had made no relinquishment, shall be set apart as hers in fee simple if she survive him, where a husband contracted to sell land, and the purchaser knew that the vendor was married, and there was no fraud or concealment, the contract was not enforceable against the wife after the husband’s death. 1</p> <p>2. Same. Revised Statutes 1898, section 2826, provides that one-third in value of all the estates in real property possessed by a husband at any time during the marriage, and to which the wife had made no relinquishment of her rights; shall be set apart as her property in fee simple if she survive him. A husband contracted to sell a parcel of land, and on distribution of the real estate, after his death the wife received, as her third, land other than that in question, the children receiving the remaining two-thirds of the land, and thereafter the purchaser in the contract sued for specific perform-anee, the wife being made a party merely as guardian of the children. Seld, that the transaction involved in the distribution amounted to an exchange by the wife of her interest in the particular land for an equal interest in another piece, and the children were subrogated to the legal rights of the wife, and entitled to defend on the ground that specific performance could not, under the statute, be enforced against the wife.</p> <p>3. Same — Equities of Plaintiff. The owner of land agreed to sell it to the tenant thereof for $7,000, the tenant to remain in possession at a rental of one dollar per month. After the death of the vendor, the tenant endeavored to purchase the property from the executor, independently of the contract, but the transaction fell through, and when the guardian of the vendor’s children threatened to dispossess the purchaser, she entered into a new contract with him, and paid an increased rent for three years, and she permitted the estate to be distributed without making any claim under the writing except a claim to the executor at the time of the attempted purchase. The purchaser permitted the children to pay - special assessments. The agreement between the vendor and purchaser amounted to no more than a mere option on the part of the purchaser. Seld, that there were no equities in favor of the purchaser warranting a judgment in her favor for specific performance.</p> <p>4. Same — Issues and Proof. Where the purchaser in a contract for the sale of land sued on the contract for specific performance, he could not recover on the theory that his right was that of an equitable owner to redeem the premises.</p> <p>5. Vendor and Purchaser — -Redemption by Purchaser. Where the purchaser in a contract for the sale of land, who was in possession . of the premises, sued to redeem, as an equitable owner, she should be required to pay all taxes which the holder of the legal title was compelled to pay to protect the same.</p> <p>6. SPECimo Performance — Conditions Precedent. Revised Statutes 1898, sections 3935-3940, in relation to the administration of estates of decedents, makes provision for a decree of specific performance against an executor or administrator on a contract for the sale of land by the decedent, and section 3938 provides that, if the right of petitioner is found to be doubtful, the court must dismiss the petition without prejudice, and that petitioner may, within six months thereafter, sue to enforce specific performance. Seld that, where the purchaser in a contract for the sale of land knew of the death of the vendor, and of the administration of his estate, but failed to present any petition under the statute before the closing ot the administration, he could not thereafter sue for specific performance, and this though, when the estate was closed, the purchaser’s option had not expired.</p>

<p>Vendor Aim Purchaser — Rescission—Recovery of Payment. Plaintiff contracted to purchase land of defendant and made a payment. The contract was mutually rescinded and another entered into by ■which defendant agreed to transfer city lots to plaintiff and credit the payment on the price. This contract was also mutually rescinded and negotiations begun for the purchase of a house and lot, and defendant executed to plaintiff a bond for deed of the property in which plaintiff was given credit for the payment. Plaintiff never returned the bond. Held, that plaintiff could not recover the payment.</p>

<p>1. Certiorari — Scope op Inquiry. While, on certiorari to review a judgment, the question of the judge’s right to hold the office, whether hy reason of the invalidity of the law under which he was chosen or appointed, or because of his want of the proper qualifications, cannot he considered, the question whether the law under which he acts, and on which the validity of his acts depends, is unconstitutional may he considered.</p> <p>2. Courts — Creation—Power of Legislature. Laws 1905, p. 182. c. 117, establishing juvenile courts, is not unconstitutional because conferring on them jurisdiction and powers previously exercised by the district courts; Const, art. 8, section 1, vesting the judicial power in a Supreme Court, in district courts, in justices of the peace, and in such other courts inferior to the Supreme Court as may be established by law.</p> <p>3. Statutes — Special Legislation. Laws 1905, p. 182, e. 117, creating juvenile courts in cities of the first and second classes, with exclusive jurisdiction within their limits over juvenile offenders, is not special legislation.</p> <p>4. Same — Amendments—Titles oe Acts. Laws 1905, p. 182, c. 117, creating juvenile courts in cities of the first -and second classes, being an independent and complete act in-itself, not purporting to amend any other act, is not an amending act, within the provision of the constitution as to the title of such acts, though incidentally it affects some older laws.</p> <p>5. Infants — Proceedings Affecting Custody. Laws 1905, p. 182, e. 117, creating juvenile courts, with jurisdiction to provide for custody of “delinquent children” as defined by it, not being a criminal law, but having for its object the surrounding- of such Children with proper environments, violates no constitutional provisions because not providing for trial by jury, for arraignment and plea, a warrant to bring a child before the court, for notice to his parent, or because of the manner of trial and examination, and the child being required to be a witness.</p> <p>6. CONSTITUTIONAI< LAW-DUE PROCESS - CRIMINAL PROSECUTIONS. — ■ Laws 1905, p. 186, e. 117, sec. 7, providing that where a child shall be a “delinquent child” as defined by the act, the parent responsible for or by any action encouraging, causing, or contributing to the -delinquency of such child, shall be guilty of a misdemeanor, and, when a complaint is made against him, he shall be brought before the juvenile court, and be examined by it, and, if guilty, such court may on his conviction impose conditions on him, and, so long as he shall comply therewith to its satisfaction, the sentence may be suspended, is unconstitutional, as denying such parent the right of a trial as for any other crime.</p> <p>7. Statutes — Partial Invalidity. — Laws 1905, p. 182, c. 117, creating juvenile courts with jurisdiction to provide for the custody of “delinquent children” as there defined, is not otherwise affected by the invalidity of section 7 (page 186) relative to punishing the parent responsible for delinquency of a child, this being in no way connected with the principal provisions of the act.</p> <p>7. Infants — Proceedings Aitecting Custody — Findings as to Parent’s Fitness. — Even if there is nothing in Laws 1905, p. 182, c. 117, creating juvenile courts, with jurisdiction to provide for custody of “delinquent children,” as therein defined, requiring the court, in taking the custody of a child from its parent and committing it to another, to find, in addition to the fact of the child’s delinquency, that the parent is incompetent or has neglected its duty, yet, there being nothing to the contrary, the act will be construed to require it, in view of Revised Statutes 1898, section 82, providing that a parent cannot be deprived of the custody of a child unless it is made to appear that he is unfit or incompetent to have such custody.</p>

<p>Application of Emma Sahlberg for a writ of habeas corpus.</p>

In the matter of the estate of Peter J. Syndergaard. Petition by Annie C. Syndergaard, administratrix, praying that certain property be set apart to her and her minor child. From an order denying the petition, petitioner appeals.

<p>1. Evidence — Best and Secondary — Railroad Tickets. — Plaintiff, in an action against a railway company ior injuries caused by its failure to provide him with proper accommodations and protection as a passenger, could introduce' oral evidence to show the class of his ticket, where he had surrendered it to the railway and had served proper notice on the same to produce it.</p> <p>2. Same. — Revised Statutes 1898, section 3410, providing i(hat there can be no evidence of - the contents of a writing, other than the writing itself, except when the original is in the possession of the party against whom the evidence is offered and he fails to produce it after reasonable notice, contemplates a railway ticket as such writing.</p> <p>3. Same. — The rule that where.the cause of action is founded upon an alleged writing, and both the execution and contents of the writing are denied, and the alleged writing is shown to be in the possession of a person residing outside the state, secondary evidence of its contents is not admissible unless proper effort is made to obtain the original, does not apply where the cause of aqtion is not based upon a written contract, but is for tort.1</p> <p>4. CARRIERS — Tickets—Nature and Effect. — In the absence of evidence to the contrary, railroad tickets are not deemed to be contracts in writing, and no presumption arises, from the purchase of a ticket, that the ordinary duties of a carrier imposed by law are modified in the ticket.</p> <p>5. Same. — Where through tickets are in the form of coupons, each coupon is to be regarded as a distinct ticket for each road, sold by the first company as agents for the other companies.</p> <p>6. Same — Personal Injuries — Contributory Negligence — Question for Jury. — In an action for injuries to a passenger resulting from the failure to provide him proper accommodation and protection, evidence examined, and held insufficient to show, as a matter of law,' that plaintiff was negligent.</p>

<p>Carriers — Duty to Passenger — Instructions.—In an action for personal injuries tp a passenger, an instruction that a railway, as a common carrier of passengers, owes a duty to its passenger to carry him safely and properly, and to use due care to see that the car in which he is being carried is kept in a decent and habitable condition, and so as to afford that degree of comfort to him and other passengers which is usual and practicable in cars of the kind in which he is being carried, was not erroneous because of the words “and other passengers.”</p>

<p>Appeal from District Court, Third District; T. D. Lewis, Judge.</p> <p>Action by Agnes W. Fitzgerald against the Southern Pacific Company. Judgment for plaintiff, and defendant appeals. t</p>