Volume 32 — South Dakota Reports

Hon. Joseph W. Jones, Judge. Proceedings in probate- -by R.' D. Burr, administrator, with the will annexed of Eliza M. Kimberly, otherwise known as Eliza M. Vandeveer, deceased, for settlement of his final account and the 'hearing of his petition for final distribution.

Hon. Alva E. Tayror, Judge. Action by T. W. Child & Company against the Fuller & Johnson Manufacturing Company, to recover for conversion of personalty. From an order denying an application to vacate a verdict directed against plaintiff upon its failure to produce evidence on trial, plaintiff appeals.

Hon. Joseph W. JONES, Judge. Action by the J. P. Schalíer Company and another against the Canistota Grain Company, to enjoin the construction of an elevator near plaintiffs’ elevators. From an order sustaining a demurrer to the complaint, plaintiffs appeal. It would be useless to allege in the complaint any facts that must of necessity have been intended 'by the Legislature to be embodied in the spirit if not the letter of the statute whose protection -we invoke.

Hon. Wm. Williamson, Judge. Loyd Forgraves and another were convicted of keeping and maintaining a house of ill fame, and they appeal. The indictment should have been set aside for the reason that it was not found by a legal grand jury; that no jury was drawn after the filing of the said order; that there was no jury for said term of court, and that every act of the body .assembled was void. Sections 710, 716, 717, Pol. Code, section 162, Code Cr.

<p>Appeal from 'Circuit Court, Miner County. Hon. Auva E. TayuoR, Judge.</p> <p>Action by the Northwestern Port Huron Company against H. W.' Zickrick, to recover for an alleged balance due on sale of threshing machinery by plaintiff to defendant, who counterclaimed for alleged commissions on agency sales of machinery. From a judgment for defendant on the counterclaims, and from an order denying a -new trial, and from an order made on motion for new trial, reducing the amount of defendant’s recovery, plaintiff appeals.</p> <p>The court should not ’have allowed that part of the counterclaim covering expense of moving machinery, to go. to the jury, because one party to a contract, in pursuance to the request or agreement of the other party, performs it, he must bear the burden (if one should be incurred) as set forth in the contract.</p> <p>Defendant was not entitled to a commission on the sale to Martin Rote of the same machine and which the said Rote refused to execute or .perform on his part, for the reason that the machine could not be delivered in time. ■</p> <p>It would be a violation of the contract between the plaintiff and defendant. That contract provides as follows: ‘‘No commission is to be paid or allowed on any order not filled, or any machines returned or taken back for any cause whatever.” This machine was never delivered, and therefore the person who made the agreement with the company, viz: Martine Rote, was fully justified in refusing to receive.</p> <p>The error in'ordering the reducing of the amount of the verdict, and when it was accepted, denying the motion for a new trial, is governed by Murray v. Leonard, n S. D., page 22, and it was the duty of the court under the statute to grant a new trial without ordering any remittitur.</p> <p>The trial court had authority to reduce the jury’s verdict as to counterclaim .for expenses, the amount thereof being clear and certain. Murray v. Leonard, 11 S. D. 22; 29 Cyc. 1015 and 1020.</p> <p>Defendant can not be required to pay the expense of moving from Carthage to Howard the outfit shipped by the plaintiff. Defendant never promised to move the rig actually shipped, without compensation, and it appears that he did move or attempt to move this machine on .the strength of instructions from the company’s general manager.</p>

Hon. Frank McNulty, Judge. Action by Edna Lovelett against Lizzie Humpfner and another, for damages for assault and battery. From á judgment for plaintiff and from an order denying a new trial, defendants appeal. The whole theory of the complaint is the fact of the defendants conspiring together.

Action by Frank Block against A. W.- Lehman, as town treasurer. From a judgment for plaintiff, defendant appeals. On motion to vacate default of appellant for failure to file briefs, and to vacate the judgment of the Supreme Court affirming the judgment below because of such default.

<p>On rehearing.</p> <p>The court did not consider, pass upon, or determine the question as to> whether the trial court erred in instructing the jury as follows: “With reference to this provision of the law in regard to previous chaste character the court charges that the law presumes a woman to be of chaste character until the contrary is shown, but if there is reasonable doubt as I will hereinafter define it, of her chastity under all the evidence he will be entitled to the benefit of that doubt.”</p> <p>Appellant’s claim that California holds that there is no presumption of previous chaste character in this class of cases is untenable. People v. Kehoe, 55 Pac. 911.</p> <p>At the time of the California- decisions above referred to they had no -statute such as ours in regard to' this peculiar class -of oases.</p> <p>Our court has passed upon this question in the case of State v. King, 9 S. D. 628, and we submit that our cour-t was well within the authorities in holding as -they did in this last case, and that the case ought not to be overturned as argued by appellant; that it is sufficient if the prosecuting witness is corroborated by evidence tending -to connect the defendant with the -offense charged in thi-s case, and that that evidence may be such as tends to show that the defendant had -illicit intercourse wi-th some one at or about the time charged in the indictment, or that there is other corroborative evidence tending to show that the defendant was with the complaining witness at that time, and had -opportunity to commit the ■offense, and that 'he had been going with her more or less frequently for some year-s prior thereto, or any or all these, and that there is no evidence showing, or fending to show that any other man had been going with' her, or was in any way familiar with her at or about this time. Tedford v. U. S., 104 S. W. 608, Arkansas; Sta-te v. Riggs, 25 S. D. 275, dissenting opinion. -</p>

Hon. Levi Mc-GEE, Judge. Action by the Hundley Dry Goods Company against Anna A. Albien and others, to enforce plaintiff’s alleged rights under execution levies made under its judgment against the defendant W. H. Walling Mercantile Company, upon defendant Anna A. Albien’s judgment in replevin against the defendant J. R. Smith as receiver ■of said Mercantile Company, and upon an appeal bond executed by defendant United States Fidelity & Guaranty Company upon appeal from said…

Hon. C. X. SttwARD, Judge. Action by Jessie Rowe against O. H. Richards and another and the 'City oí Watertown, to recover damages resulting from the death of plaintiffs husband caused by a falling wall. From a judgment overruling a demurrer to the complaint, defendant city appeals. Tliis action, and all actions for damages resulting from the death of a person by the negligence of another, are purely creatures of the statute. ’Smith v. C. M. & St. P. Ry.

Hon. FRANie McNulty, Judge. Action by the International Harvester Company of America against Nick Pott, Peter Pott, Joseph Pott, and N. M. Pott, co-partners as N. Pott & Sons, to recover upon a promissory note given by defendants to plaintiff for part of purchase price of personalty sold to them by plaintiff under an alleged conditional sale. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. Under section 2303, Civ.

Appea-l from Circuit Court, Codington County. Hon. Carl G. Sherwood, Judge. Action by A. Sherin against George H. Eastwood and another, for damages for libel. From a judgment for plaintiff, defendants appeal. -Respondent mowed to strike from appellants’ abstract all matters not a part of the judgment roll proper; and appellants procured an order to show cause why the record should not be returned to the -trial court for settlement and completion of the record.

Hon. Joseph W. JoNEs, Judge. Action by S. G. Tuthill against P. F. Sherman, upon a promissory note; defendant counterclaiming for alleged- damages for an excessive levy of an attachment in the suit. From an order sustaining a demurrer to his counterclaim, defendant appeals. The counterclaim states a cause of action.

<p>Appeal — Error—Judgment Roll — Affirmance.</p> <p>No error appearing on judgment roll, and all other matters save judgment roll having been stricken from record, judgment is affirmed.</p>

Hon. Alva E. TayloR, Judge. Action by A. N. Louder against E. E. Hunter and others, to recover on a supersedeas appeal bond. Erom a judgment for plaintiff, defendants appeal. The bond should be interpreted as if it read that Hunter would pay Louder the amount of his Miles judgment directed to be paid by the decree appealed from.

Hon. Lyman T. Boucher, Judge. Action by Lydia R. Eastwood against John Coplan, to quiet title to realty alleged to belong to plaintiff, and to enjoin defendant from trespassing u-pon and from erecting- thereon a building wall, etc. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. The sufficiency of the evidence to sustain the findings and judgment is not subject to review.

Hon. JOHN F. Hughes, Judge. Action by O. N. Hoyt against Hughes County, to recover on a claim for compensation for services rendered for the county as superintendent of the county board of health. From a judgment for plaintiff, defendant appeals. Plaintiff’s proper remedy should have been an appeal from-the act of the board and this action cannot be sustained.

Hon. Joseph W.- Jones, Judge. Action by the Plumbing 'Supply Company against the Board of Education of Independent School District of the City of Canton, Lincoln County, and others, to recover for labor and materials performed and furnished in the construction of a school building. From an order sustaining a demurrer to the complaint, plaintiff appeals.

Hon. Wiiliam WiuuiamsoN, Judge. Action by Frank Somers against R. M. Miller, in whioh action defendant set up a counterclaim for damages for loss of use of lands leased to him by plaintiff, and alleging an alteration by plaintiff of the lease so as to terminate it on sale of the land, and that defendant, by being dispossessed by the purchaser, was deprived of such use, etc. From an order sustaining a demurrer to the counterclaim, defendant appeals. The counterclaim is good.

Hon. William WILLIAMSON, Judge. Action by Engebrit J. Holter against John Wagoner and others to enjoin the construction of artesian wells by Norbeck & Nicholson Company for Grouse Township, Lyman County, South Dakota. From a judgment for defendants dissolving a temporary injunction and dismissing the action, and from an order denying a new trial, plaintiff appeals.

Hon. Auva E. TayloR, Judge. Action by A. E. Hollister against Mary V. Sweet and another, for specific performance of an agreement to execute to plaintiff a realty mortgage securing certain advances to pay for labor and materials for repairs of defendant’s house; and another action by H. W. Snelson against said Mary V. Sweet and said Hollister, for balance due plaintiff from Sweet for labor on said house, and to enforce a mechanic’s lien on said premises in plaintiff’s favor,…

Hon. Wiuliam WiluiamsoN, Judge. Action by Frederick B. Townsend against Jacob Weinburger and others, to foreclose a chattel mortgage. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. To entitle plaintiff to sheriff fees, he should allege and prove mileage and other fees.

Hon. Joseph W. JoNEs, Judge. Action by the 'Sioux Falls Adjustment Company against Frank R. Aikens, to recover for a balance alleged to be due under a conditional contract of sale of personalty. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. As applied to the completion of contracts, there should be no acceptance of the Encyclopaedia of Evidence previous to the time of the delivery or offer of delivery of all of the books.

Hon. Alva E. TayloR, Judge. On motion to have the original record returned to trial court to settle bill of exceptions.

Hon. Carl G. Sherwood, Judge. Action by Samuel N. Eounsberry and another against E. J. Kelly, for specific performance of a contract to convey realty. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Hon. William Williamson, Judge. Action by H. A. Dixson against W. P. Ladd, in claim and delivery for an office desk. From a judgment for defendant, and from -an order denying a new trial, plaintiff appeals. The desk in controversy was covered by the mortgage. If not in express terms, under all the evidence. Appurtenances as applied to real estate has a strict legal and technical meaning but as applied to personal property it is given a broad and liberal construction.

<p>Appeal — Error—Judgment Roll — Affirmance.</p> <p>No error appearing on judgment roll — all other matter having been stricken from record, (32 S. D. 95, 142 N. W. 176), judgment below is affirmed.</p>

Hon. Joseph W. JONES, Judge. Action by the First National Bank of Oldham against Henry Rippe, administrator of the estate of E. A. Rippe, deceased, and W. I. Thompson. From a judgment in favor of defendant Thompson, upon a directed verdict, and from an order denying a new trial, plaintiff appeals. The defendant Thompson had personally executed the note by signing “E. A. Rippe Co.” He was one of the owners of the elevator property.

Hoíi. John F. Hughes, Judge. Mandamus by J. Phelan against J. J. Morris, as sheriff,- to compel issuance of a redemption certificate on a mortgage foreclosure. From a judgment for plaintiff on demurrer to the petition, defendant appeals. Mortgagor cannot redeem after expiration of one year from date for foreclosure salé. Secs. 640, 648, 376, 379, Code Civ. Proc.

Hon. Alva E. Taylor, Judge. Action by the First National Bank of Frederick, Wisconsin, against C. N. Mellvaine and another. From a judgment of dismissal and cancelling a notice of lis pendens, plaintiff appeals. The recitals in the oTder of the court of July 26, 1912, show that the court regarded the action of Bank v. C. N. Mellvaine and Sara T. Mellvaine as the same action as that of Bank v. C. N. Mellvaine.

Hon. Alva E. Taylor, Judge. Action by Edward H. Sanford and others against Maria H. Potter and others, to determine adverse title to realty. From an order vacating a default judgment for plaintiffs, and permitting some of the defendants to answer, plaintiffs appeal.

<p>Appeal from Circuit Court, Roberts County. Hon. Feank McNulty, Judge.</p> <p>Application in the Supreme Court for the inclusion of ten per cent, damages in the taxation of costs.</p>

Original action by the Norbeck & Nicholson Company against the State of South Dakota, to recover upon a contract for sinking and. furnishing equipments for an artesian well by plaintiff. Section 12, Art. 3, of the Constitution is directory, and no penalties either civil or criminal are connected therewith. This is an action on quantum meruit, the plaintiff seeking to recover the reasonable value only of services performed and material furnished.

<p>1. Trial — Objections to Evidence — Baggage.</p> <p>In an action against a carrier for loss of baggage, an objection to questions' concerning articles in .a lost trunk, on tbe ground that' there was nothing to show that they were, or were intended to be used by the passenger as 'baggage within the statute, was properly overruled, since the question as to th'eir character as baggage could nJot be raised merely by an objection to. evidence.</p> <p>2. Motion to Strike Evidence, and Dismiss A,ction — Directed Verdict — Sufficiency of Motion — Theory of Trial.</p> <p>In an action against a carrier for loss of baggage, defendant objecting to evidence concerning articles lost, on ground- that there w.as nothing to show that they constituted, or were intended by the passenger to be used as baggage, and at close of all evidence moved, separately, to strike out the testimony as to each item, and to dismiss action, on the grounds stated in said objection, held, the trial court erred in refusing to grant such motions, which were in effect motions to direct a verdict, as regards articles not .shown to be so connected with the purpose and object of the passenger’s trip as to constitute baggage-, the grounds of the motion being broad enough to raise "the question whether, as matter of law, all articles lost were or were not -baggage. Held, further, that defendant’s theory in making the motions was, that said articles were not baggage as matter of law, in this particular case.</p> <p>Whiting, P. J., dissenting.</p> <p>3. Appeal — Trial—Directing Verdict — No Exception to Instruction-— Waiver as to Verdict.</p> <p>Failure to submit requested instructions, or to except to instructions given, does not deprive defendant of the benefit of its exceptions to denial of its motions to direct verdict.</p> <p>4. Carriers — “Baggage”—Baggage as Matter of Law — Evidence.</p> <p>A gun -and gun case taken by a passenger on a railroad trip, not shown to -be in any manner connected with the purpose and object of the trip, do not constitute, as matter of law, baggage.</p> <p>Whiting, P. J., dissenting.</p>

Hon. Wiiaiam WiKUamson, Judge. Application for an order to show cause why a default judgment should not be vacated and leave granted to defendant to answer, after such judgment has been affirmed on appeal (30 SD. 310, 138 N. W. 957; 31 S. D. 571, 141 N. W. 979).

Circuit Court, Beadle County. Hon. Ai/va E. TayuoR, Judge. Action by Helen A. Brown against Frank M. Brown, to recover, in part, upon a promissory note, executed by defendant; defendant counterclaiming. From a judgment for plaintiff, upon the note, defendant appeals. It is evident from the instrument that the intention of the contracting parties was to settle all property matters absolutely, by the separation agreement.

Hon. Alva E. Taylor, Judge. Action by the First National Bank of Frederick, Wisconsin, against C. N. Mcllvaine, on promissory notes and notes in renewal thereof. From a judgment for plaintiff on a directed verdict, and from an order denying a new trial, defendant appeals. As a condition precedent to plaintiff’s right to recover on the original notes, renewal notes must have been delivered up for cancellation.

Hon. William G. Rios, Judge. Action by Thomas Brown against Prescott F. Hall and another, to quiet title to real property as against defendants'claiming under foreclosure of a mortgage in trust executed by plaintiff; the defendant and appellant, Blakely Hoar, counterclaiming on the foreclosure title. From a judgment for plaintiff, and from an order denying a new trial, defendant Hoar appeals. The. mortgage was signed by the mortgagee as required by law.

<p>Appeal from Circuit Court, Edmunds County. Hon. H. G. FuLLhR, Judge.</p> <p>Action by Thomas Jones against Robert R. Walker and others, for foreclosure of a mortgage. From an order vacating a decree of foreclosure, plaintiff appeals.</p>

Hon. Levi McGee, Judge. Action in the nature' of quo warranto by the State of South Dakota, on the relation of Albert R. Denu, Slate’s Attorney for Pennington county, against the Rapid City Library Association, a corporation, to annul its charter for non-user. From a judgment in favor of defendant, and from an order denying a new trial, plaintiff appeals.

Ore, Judge. Action by M. E. Silvius against O. K. Brunsvold. From an order vacating a default judgment and allowing defendant to answer and defend, on terms, plaintiff appeals. On defendant’s motion to dismiss the appeal. The order of June 20th, 1913, (pp. 4 & 5 of Res.

Original application by the State, on relation of David Rea-rick, against Frank C. Leggett, County Auditor, and others, for an order directing the trial judge to amend the settled record, or, in lieu thereof, for an order of the Supreme Court amending such record. Order issued directing trial court to reconsider the application.

Hon. William G. Rice, Judge. Action by the St. > ¡Germain Irrigating Company against the Hawthorne Ditch Company and others, to determine plaintiff’s and defendant’s respective rights and claims to user of certain waters. From an order sustaining a demurrer to the complaint and from a judgment dismissing the action, plaintiff appeals.

<p>1. Schools — School Districts — Officers—Personal Liability — Common Law Liability.</p> <p>Under Laws 19 09, Ch. 245, providing that public or quasi public corporations shall require the contractor under contract for erection or improvement of a building, to furnish a bond for payment of all labor and material entering into such erection or improvement, and that, if the corporation fail to require such bond to be given, it shall be liable to any person, etc., performing such labor or furnishing such materials, held, the members of the board of education of a school district, which failed to require such bond from a contractor, were not individually liable, since they are within the class of officers representing the sovereign power of the state in a public official capacity, against whom no liability exists, nor are they individually, or as such officers, liable at common law, nor otherwise than under an express statute, creating the individual duty of the officer and also authorizing suit against him, for failure to 'perform such duty.</p> <p>2. Counties — Towns—Schools—School Districts — Liability for Neglect of Duty — “Quasi Municipal Corporations.”</p> <p>Counties, civil townships, and school districts are classified as “quasi municipal corporations,” and are regarded as public or state agencies, charged with performance of public or governmental functions as agents of the state, and as such are not liable for damages caused by neglect to perform such duties consisting of acts of omission only, unless such cause of action is expressly given by statute.</p>

Hon. Joseph W. Jones, Judge. Action by Urbain S. Perreault against the Wisconsin Granite ■ Company, to recover for personal injuries as defendant’s servant. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

<p>Appeal from Circuit Court, Roberts County. Hon. Frank McNui/ty, Judge.</p> <p>Action by A. L. Gottwerth against Nils Thompson. From a judgment for plaintiff, defendant appeals. On motion to dismiss appeal.</p>

Mandamus by the State, on the relation of Mark D. Scott, against George W. Burnside and others, as the Board of Commissioners of the City of Sioux Falls, to compel respondents to call a city election to' determine whether -the city should be governed by a board of five, or one of three commissioners. From a judgment order denying a peremptory writ, relator appeals.

Hon.' William: G. Rice, Judge. Action by Huella M. Henry against the Meade County Bank of Sturgis, South Dakota. From a judgment for defendant, plaintiff appeals. Upon order to show cause why the bill of exceptions should not be stricken from the record.

<p>Appeal from Circuit Court, Potter County. Hon LoriNG E. Garry, and Hon. J. H. Bottum, Judges.</p> <p>Action by O. E. Herron against Alva M. Allen, to quiet title. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals.</p> <p>Where the property of the judgment debtor has been sold for less than the amount of the judgment, and redeemed from: such sale by the judgment debtor, the property may again be sold on a second execution issued on the same judgment for the balance due thereon. Seaman v. Galligan et al., 8 S. D. 277.</p> <p>In some states where real estate has been attached and the attachment preserved, an execution levied under a judgment recovered in such suit operates as a lien from the' date of the attachment, prior to all incumbrances created by the debtor subsequent to the levy of the writ of attachment. Salem First Nat. Bk. v. Redman, 57 Me. 405; Brackett v. Ridlon, 54 Me. 426; Brown v. Williams, 31 Me. 403; Nason v. Grant, 21 Me. 160; Huxley v. Harrold, 62 Mo. 516; Eackey v. Seibert, 23 Mo. 85; Harbison v. McCartney, 1 Grant (Pa.) 172; Mattocks v. Farring-ton, 16 Fed. Cas. No. 9,298, 2 Hask. 331.</p> <p>A redemption by the debtor renders the sheriff’s sale null and void as though it had never taken place. The very judgment on which the sale was had becomes again a lien, if it was not fully satisfied by the sale, and the land may be again sold. Bodine v. Moore, 18 N. Y. 347, on page 351; Phyfe v. Riley, 15 Wend. 248; Warren v. Fish, 7 Minn. 432 (Gill.) 347; S-uttlemire v. Newsome,' 10 Ore. 446; Bois v. White, 2 Abb. N. C. 163.</p> <p>We now know from the new'ly discovered evidence that there was a warrant Issued, levy made under it and that Herron is nominal plaintiff only and that For-ing is the real party in interest. These facts are of great importance in this -case. The judgment is based on wrong conclusions, hence should be set aside.</p> <p>There was no “newly discovered evidence” shown below, and none is shown here. As the record in Woodward v. Loring stood, and still stands, all that plaintiff Woodward had (if she even had that) was a personal judgment against the defendant George E. Loring, based' upon a purported service outside of the state of South Dakota, and that without the issuance of an attachment.</p> <p>As shown by the record, the attorney for Woodward, in Woodward v. Loring, both in that case and in this case, proceeded upon the theory that such a judgment was a good and valid personal judgment; and this is especially shown to have been the case after H. S. Mottser ceased to be attorney for the plaintiff Woodward, and A. L. Elli's became the attorney for the plaintiff Woodward.</p> <p>The second execution in Woodward v. Loring was caused to be issued by this same “A. L. Ellis, attorney for judgment creditor” ; and that execution itself shows that at that time, Ellis regarded the judgment in Woodward v. Loring as a mere personal judgment, and the fact is that there has been, in this case, a discovery, not of new evidence, but of the materiality of evidence which was at the beck of the defendants at the time the case was tried, but which they did not then think or consider material to their- defense herein.</p> <p>Such evidence, and not merely its materiality,- must have been discovered since the trial. Spelling on New Trial and Appellate Practice, Sec. 207; Hayne on New Trial and Appeal, (Ed. 1912) Secs. 211, 212.</p> <p>The most that can be claimed for Woodward v. Loring is that Woodward had a personal judgment against Loring based upon personal service outside of the state. Such a judgment is absolutely null and void.</p> <p>Even -if everything had been legally done and the attachment regularly issued, and levied upon this land, that fact cannot justify, -or give the court jurisdiction -to render, a personal judgment against Loring. Exchange Bank v. Clement, 109 Ala. 280, 19 So. 817; Cudabac v. Strong, 67 Miss. 709, 7 So. 544.</p> <p>And, if the attachment -does not entirely satisfy the judgment, plaintiff -has no redress for unsatisfied part. Eastman v. Dearborn, 63 N. H. 366.</p> <p>While a court may decree foreclosure of a mortgage on a nonresident’s property, it cannot enter a deficiency judgment, unless he appears. Blumberg v. Birch, 99 Cal. 417, 37 Am. St. Rep. 68, 34 Pac. 102; Williams v. Pollett, 17 Colo. 54, 28 Pac. 331.</p> <p>The mere rendition of a personal judgment against a nonresident cannot create a lien on his property. Demmy v. Ashley, 12 Colo. 167, 20 Pac. 332; Gorver, etc., Co., v. Radcliffe, 66 Md. 517, 8 Atl. 267; Fowler v. Lewis, 36 W. Va. 126, 14 S. E- 451-</p> <p>Even if it were shown — which is not at all admitted — that Herron was a mere title-holder for Loring, or even if it were shown that Loring was, and always had been, the real owner of the land; still there is nothing in Woodward v. Loring that could have divested Herron, or Loring, of the ownership or title, either or both, to the land in controversy.</p>

Hon. J. H. Bottum, Judge. Action by G. Clement Colburn, administrator of George D. Colburn, deceased, against D. H. Latham and another, to quiet title. From a judgment for defendant, plaintiff appeals. Plaintiff had a right to maintain this action in his representative capacity under his appointment as administrator of the estate of George D. Colburn by the New Hampshire courts. Section 253, Probate Code; Germantown Trust Co. v. Whitney, (S. D.) 102 N. W. 304.

<p>Appeal from Circuit Court, Pennington County. Hon. William G. Ricu, Judge.</p> <p>Action by the St. Germain Irrigating Company against the Hawthorne Ditch Company and others. Erom an adverse judgment and order, plaintiff appeals.</p>

Hon. J. H. BoT-tum, Judge. Action by B. F. Fyons and another against Fred Archer and another, in claim and delivery; the Farmers’ State Bank of Rock-ham intervening. From a judgment for defendants and inter-vener, and from an order denying a new trial, plaintiffs appeal. Each party to an action is in that action conclusively .bound •by those admissions which he expressly makes in his pleadings. Jones on Evidence, Sec. 276; Commercial Bank of Jackson, 70 N. W. 846 (S. D.)..

Hon. Joseph W. Jones, Judge. Action by Anton Iverson against Carl Look, to recover damages for personal injury. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. In the absence of evidence to the contrary, the law will presume that at the time a person was injured he was in the exercise of ordinary care.

Hon. William Williamson, Judge. Action by E. L. Squier against George W. Mitchell and W. H. Pratt, Jr., to foreclose a mechanic’s lien. From a judgment for plaintiff, defendants appeal. Evidence fails to show M. E. Noonan or M. F. Noonan to be agents of defendants for procuring materials or labor. To bind defendants a contract either express or -implied must have been made with plaintiff.

Hon. Frank: McNulty, Judge. Action by Andrew Johnson against Neis K. Olberg and others, for rescission of an executory contract of sale of realty, and to recover back purchase money paid thereunder. From a judgment for defendants, dismissing the action, plaintiff appeals.

Hon. Alva E. Taylor, Judge. Action by Ernest D. Ede against Harry J. Ward and another, co-partners as Ward & Brawner, to recover back purchase money under a contract of sale of realty through defendants as brokers. From an order granting a new trial on defendants’ motion, after a verdict for plaintiff, plaintiff appeals. Election of counts can be compelled only when there is an absolute incompatibility in the facts alleged so that the proof of the one will disprove the other.

Hon. Ai,va E. TayuoR, Judge. Action by the Acme Harvesting Machine Company against F. M. Brown, to recover upon a promissory note given in settlement under an agency contract. From a judgment for defendant upon a directed verdict, and from an order denying a new trial, plaintiff appeals. There was no proof received at the trial which disclosed that Brown ever bought this machine under this express warranty — or under any warranty whatever.

Appeals from Circuit Court, Hanson County. Hoh. R. B. Tripp, Judge. Four actions, by Christ Heineman; P. F. Wickhem and others; Alvin Heller and others; and William Brandt and others, against the City of Alexandria, in which plaintiffs as petitioners sued for orders disconnecting and excluding certain tracts of land from the corporate limits of defendant city. From judgments in favor of petitioners in each action, defendant appealed.

Hon. FRANK McNulty, Judge. George M. Fosburgh was convicted of criminal libel, and lie appealed. The information under Secs. 315, 316, Pen. Code, and Sec. 29, Civ. Code, is faulty in two particulars. One is that it fails, except by way of recital, to state that the libel was false, and the other is that it fails to allege that the publicaion was made “with a malicious intent to injure another.” Sec. 317, Pen. Code; State v. Ullman, 5 Minn. 13; State v. Butcher, 1 S'.

Hon. Levi McGtíE, Judge. Proceeding to determine the heirs of John H. Shelly, deceased. Prom a judgment in favor of Daniel Shelly and others, and from an order denying a new trial, Edward Shelly and others appeal. A reading of the testimony as it appears in the record, discloses a large preponderance in favor of the appellants.

Hjon. Fraxk Mc-Nulty, Judge. Action by the Waubay Motor Sales Company against G. G. Lasell and others as trustees of the town of Waubay, to enjoin obstruction of the flow of certain water through town water pipes, etc. From a judgment of the trial court finding defendants guilty of contempt of court in disobeying a temporary injunction in the pending action, defendants appeal.

Hon. Frank B. Smith, Judge. Action by George W. Sturtz against Peter Ommen, for specific performance of a contract for exchange and conveyance of realty. From an order overruling defendant’s demurrer to the complaint, he appeals. The amended complaint doés not state facts sufficient to constitute a cause of action, because it does not allege title in the plaintiff. Freeman v. Stokes, 12 Phila. (Pa.) 219; DeFord v. Hyde, 10 S. D. 386.

Hon. Lyman T. Boucher, Judge. ■ Action by C. E. Roper and another against Charles E- Noel and others, to recover for alleged fraud and deceit. From a judgment for plaintiffs, and from an order denying a new trial, defendant Noel appeals. There was no agreement between Noel and Elliot to defraud the plaintiffs. Plaintiffs abandoned the theory of conspiracy and tried the case along the line of fraud by Mr. Elliot as agent of Mr. Noel.

<p>Appeal — Brief, Time of Filing — Abandonment of Appeal — Affirmance.</p> <p>Notice of appeal was served and filed March 8, 1913; the record was settled May 20, 1913; no stipulation for, nor any application for an order for extension of time to file appellant’s brief, was made, and appellant is in default therein. Held, appeal will he deemed abandoned, and judgment will be affirmed. Gates, J., taking no part in this decision.</p>

<p>Appeal from Circuit Court, Day County. Hon. Frank: Mc-Nulty, Judge.</p> <p>Action by Reeves & Company, a corporation, against August Block, and the First National Bank of Waubay, intervener. From a judgment in favor of intervener, plaintiff appeals.</p>

Hon. Frank B. Smith, Judge. Action by William McGarvey against O. C. Prince and another, to recover possession of crops grown on land covered by lease from plaintiff to defendant Prince. From an order sustain-, ing a demurrer to the complaint, plaintiff appeals. ' By reason of said clause plaintiff had a lien upon said crops in dispute, until the rent for the land was satisfied. The defendant South Dakota Grain Company had actual notice of this contract between the parties.

Hon, Alva E-Taylor, Judge. Action by Maggie Ohlwine against M. A. Bushnell, and LH. Jones, Treasurer of Beadle County, to enjoin Bushnell from taking out a tax deed, and Jones from issuing a tax deed upon plaintiff’s land. From a judgment for plaintiff, defendant Bus'h-nell appeals. Said tax deed fails to state the bid made by the purchaser, as required by section 1639, Code of 1887.

Hon. Frank McNulty, Judge. Action by M. R. Baskerville against _R. F. Thomas and another. From a judgment for defendants,-and from an order denying a new trial, plaintiff appeals. That assignments of error were necessary-had been the settled doctrine of this court since its institution, and the court had in numerous cases subsequent to the 1911 law,, and immediately prior thereto, held that no case could be reviewed by the Supreme Court without assignments of error.

Hon. J- H. Bottcm, Judge. Action by Elmina E. Phillis against Robert A. Gross, to quiet title; in which Oscar D. Bost intervened. From a decree for defendant and intervener, and from an order denying a new trial, plaintiff appeals. Possession of real estate is notice of the possessor’s title.

<p>1.' Trial — Jury—Right to Jury Trial — Specific Performance.</p> <p>In. an action for specific performance of a contract, plaintiff is not entitle/d to-a jury trial as matter of right.</p> <p>2. ■ Same — Right to Jury Ti'ial — Specific, Performance, Answer Seeking’ Rescission.</p> <p>The fact that, in an action for specific performance of a contract, the answer, .after admitting the making .of the contract, seeks a rescission thereof for fraud, the only defense interposed, does not entitle defendant to a jury trial, since such defense is of equitable cognizance.</p> <p>Gates, J., taking no part in the decision.</p>

Hon. Wiuliam WiuuiAMSON, Judge. Action by J. A. Ganow against 'George M. Ashton, to recover damages for alleged fraud and deceit in exchange of properties. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. The complaint does not allege or show any intent on part of defendant to defraud or deceive plaintiff.

Hon. Frank McNulty, Judge. Action by Mathilda L- Krueger against August F. Krueger, for divorce; this proceeding therein involving alleged contempt of court by defendant, in refusing to comply with the decree. From a judgment finding defendant guilty of contempt of court, he appeals. Findings of fact should have been made by the court before the order' was made adjudging the defendant to be in contempt of court. Hoffman v. Hoffman, (S. D.) 127 N. W. 478.

Frank Devers was convicted of offering slaughtered beef for sale without exhibiting the hides, and appeals. Venue must be proved as laid in the information. State v. Crowley, 108 N. W. 941. If it is necessary to describe the place at all in the information and the same is described specifically therein, the proof must conform thereto-, substantially. State v. O'Neal, 124 N. W. 69. The cattle must be butchered at some place within this state.

On rehearing-. This court has overlooked the fact that the mistake was one of opinion, and necessarily continued until that opinion was changed, and that, as appears by the affidavit of Geo. H. Marquis, particularly that part of it relating to a conversation over the telephone line -with Walter H. Shu-rtleff, it contiuued until this court had ruled on May 8, 1913, and that a bill of exceptions or statement of the case was necessary.

Hon. Joseph YV. Jokes, Judge. Action by A. L. Hoisington against George A. Price and another, to foreclose certain drainage ditch assessment certificates. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. This waiver and consent by its own language shows that all it pertained to was extending the ditch further west 8o rods, that it in no manner consented that the whole course of the ditch should be changed.

<p>Appeal from Circuit Court, Buffalo County. Hon. FRANK B. Smith, Judge.</p> <p>Action by Charles E. Gates against J. K. Marshall. From a judgment for defendant, plaintiff appeals.</p>

Hon. FRANK B. Smith, Judge. Mandamus proceedings by 'the State, on the relation of A. J. Curtis and others, as County Commissioners of Davison County, South Dakota, and another, against S. S. Pound and others, as Supervisors of Union Township, and another, to require defendants to levy a tax to pay a drainage district assessment. From a judgment for plaintiff that a peremptory writ issue, defendants appeal.

Hon. Levi McGee, Judge. Action by Edward W. Johnson against the Hawthorne Ditch Company, to recover possession of realty. From a judgment for plaintiff, and from an order denying a new trial, defendant appealed, and plaintiff prosecuted a cross-appeal.

Hon. Alva E. Taylor, Judge. Mandamus by Philip J. Mack and others against Georgia Costello, as owner, manager, and publisher of the Cavour Clarion, to compel publication of a statutory notice. From a judgment issuing a peremptory writ of mandamus, defendant appeals.

Hon. Robert B. Tripp, Judge. Action by A. E. Cowie against Emma W. Harker and another, as executors of Joseph Harker, deceased, to determine adverse claims to realty. From an order vacating defendants’ default and permitting them to answer, plaintiff appeals.

'Hon. Ai.va E-Taylor, Judge. Prohibition by the State, on the relation of the Sooth Dakota Chl'dren’s Home Society, against C. A. Kelly, as Judge of the County Court of Beadle County, and A. J. Larson, as sheriff, to enjoin continuance of certain proceedings in said County Court. From a judgment issuing a peremptory writ, respondents appeal.

Hon. Robert B. Tkipp, Judge. Action by Charles King against the Hutterische Bruder Gem-einde, a corporation, and the Hoderische Bruder Gemeinde, a corporation, to recover damages from alleged overflowing of plaintiff’s land caused by defendants’ milldam. From a judgment for defendants, plaintiff appeals. The provisions of section 857 do not apply to this action.

Hon. Dbvi McGee, Judge. Action by Jessie Harris against School District No. 48 of Pennington County, to recover money because of non-transportation of plaintiff’s children to school. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Action by the Dirks Trust & Title Company against Joseph H. Koch, Charles Hill, and another, to recover damages for deceit. From an order overruling defendant Hill’s demurer to the complaint, defendants appeal. The party making the sale is not ordinarily liable for defects in title. 27 Cyc., p. 1488, Subdivision G.; Roberts v. Hughes, 81 Ill. 130; Vanscoyoc v. Kinder, 77 Ill. 151; Riggs v. Purcells, 60 N. Y. 193.

Hon. Robert B. Tripp, Judge. Action by the Floete Lumber Company against Harry Hodges and wife and the Farmers’ State Bank, to foreclose a mechanic’s lien. From a judgment in part for plaintiff, 'defendant Hodges and his wife appeal, and plaintiff takes a cross-appeal. A house is such a habitation as is usually inhabited by human beings belonging to the same race and same standard of civilization as those who enacted the law in question.

Hon. Frank McNulty, Judge. Action by the Aberdeen Clothing Company against Paul Just. From an order vacating an order in a proceeding supplementary to execution, plaintiff appeals. The order of Judge Carpenter referred to, is in the usual and ordinary form. New York Code of Civil Procedure, 4 Wait Pr. 169.

<p>Appeal from Circuit Court, Tripp County. Hon. Wiixiam Wii.iuamson, Judge.</p> <p>Action by the Western Town Site Company against John Novotny, to recover fo-r balance of purchase price of realty sold by plaintiff to defendant, to establish a vendor’s lien for purchase money against the realty, and for foreclosure of such lien. From a judgment in favor of plaintiff, entered upon an order sustaining a demurrer to defendant’s counterclaim, defendant appeals.</p> <p>The rule that an expression of an opinion is not actionable, it has been said, applies only “when the opinion stands by itself and is intended to be taken as distinct from -anything else.” In support of this the following cases 'are cited: Hickey v. Morrell, 102 N. Y. 454, 463, 7 N. E. 321, 55 Am. Rep. 824; see, also McDonald v. Smith, (Mic'h. 1905) 102 N. W. 668; People v. Peckens, 153 N. Y. 576, 47 N. E. 883 (affirming 12 N. Y. App. Div. 626, 43 N. Y. Suppl. 1160).</p> <p>If the representations alleged relate to a matter concerning which positive statements can be made, although of which plaintiff can judge as well as defendant if he has an opportunity of examination, the fact that plaintiff relied upon the representations must be deemed conclusive that they do not relate merely to matters of opinion. 20 Cyc. 98, at note 69; Witton v. Goddard, 36 Vt. 730; 20 Cyc. 17.</p> <p>False representation as to the future earnings of a proposed corporation are fraudulent, if made with the intent to deceive by a person having superior knowledge as to such matters. French v. Ryan, 104 Mich. 625, 62 N. W. 10x6.</p> <p>While promises and opinions ■ ordinarily, if false, do .not constitute actionable fraud, yet where they are the device used to consummate the fraud, they become a part of the transaction, and the false token whereby the fraud is effected. Cerney et al. v. Paxton-Gallegher, 110 N. W. 882.</p> <p>An apparent exception to the general rule ■ is that, if the intention not to perform exists when the promise is made, the promise is fraudulent. McGready v. Phillips, 56 Neb. 446, 6 N. W. 885.</p> <p>There is no allegation that plaintiff controlled the railway company or was in a position to cause it to so build its line of road.</p> <p>The rule is almost universal that before a misrepresentation can be made the basis of a legal action it must clearly appear that it relates to a past or existing fact or state of facts.</p> <p>Statements as to what a person or thing will or would do in the future are seldom actionable upon the ground of fraud. Plolton v. Noble, 23 Pac. 58; Sawyer v. Pickett, 89 U. S. 19; 22 L. Ed. 105. A “promissory statement” is not ordinarily the subject either of an indictment or an action. Id.</p> <p>An actionable, false representation must be one relating to an existing fact or a past event. A mere opinion, prediction or promise of a future condition of things is not a representation upon which a party has any right to rely. Warner v. Benjamin, 62 N. W. 179, 180; Sheldon v. Davidson, 55 N. W. 161; Myer v. Alpena Loan Bldg. Assn., (Mich.) 75 N. W. 944, 945; Bank-son v. Lagerlof, (Iowa) 75 N. W. 661; Spence v. Gerlfuss, (Wis.) 62 N. W. 529, 531; Milwaukee Brick & Cement Co. v. Schockneekb 84 N. W. 832, 840.</p> <p>The failure of the occurrence of future events in accordance with statements, predictions or expressed opinions of either of the parties to a contract have never been held actionable at law and only under special circumstances in equity. Eromer & Co. v. Stanley, (Wis.) 69 N. W. 820. Patterson v. Wright 25 N. W. 10</p> <p>Unless such matters are made conditions, and so expressed in the agreement itself, the)’-* amount to nothing in the eye of the law. Davis v. Reynolds, (Me.) 77 A. 409.</p> <p>The fulfillment of the promise made must depend upon the will of the person making it, and not upon the action of some third person not connected with the transaction. Buckingham v. Thompson, 135 S. W. 652; J. H. Clark & Co. v. Rice, 106 N. W. 221, 226; Esterly Mfg. Co. v. Berg, 71 N. W. 952, 953; Press v. Harr, 133 Ill. App. 528.</p>

Hbn. Wixuam Wii.t.tamsoN, Judge. Defendant Grover Squirrel Coat, was convicted of larceny, and he appeals. As a part of the cross-examination, the state asked David Thigh if he did not make certain statements to these witnesses relative to what the defendant had told him on Friday.

Original mandamus proceeding by the State, on relation of ■the Bank of BPerrick, against the Circuit Court of Gregory County. • On demurrer to the order requiring defendant to show cause why a peremptory writ of mandamus should not issue out of 'the Supreme Court, compelling respondent to issue an order for publication oE summons.

Hon. Robert B. TRIPP, Judge. Action by John R. Dunlap against the Chicago, Milwaukee & St. Paul Railway Company, for damages for failure to transport freight with reasonable, dispatch. From an order overruling a demurrer to the complaint, defendant appeals. Two causes of action are improperly united. 'Sec. 144, Code Civ. Proc.; Meloche v. Chicago, M. & St. P. Ry. Co., (Mich.) 74 N. W. 301; London & L. Lire Ins.

Hon. William WILLIAMSON, Judge. Action by O. E. Helgerson against George W. Mitchell and W. H. Pratt, Jr., copartners as the Mitchell Land & Loan Company, and another, to foreclose a mechanic’s lien. From a judgment for plaintiff, defendants appeal.

Hon Alva E. Taylor, Judge. Action by George A. Mann against L. K. Hvammen. From a judgment for plaintiff, and from an ordei denying a new trial, defendant appeals. The summons was not sufficient to give the justice jurisdiction. Secs. 13 and 19, Justices’ Code; Leonosio v. Bartilinc, 7 5. D. 93; Henry v. Maher, (N. D.) 71 N. W. 127.

Hon. Frank McNulty; Judge. Action by A. Share against F. S. Coats, to recover for commissions as broker on land exchanges. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. The court erred in directing a verdict for the plaintiff, for the reason that the evidence of plaintiff was uncorroborated, and the credibility of the witness and the weight -to ibe given his testimony were questions for the jury.

Hon. Joseph W. JONES, Judge. Action by Philip W. Schmidt, by his guardian, Henry M. Schmidt, and others, against P. W. Scanlan and another, to quiet title to realty. From a judgment for defendant Scanlan, and from an order denying a new trial, plaintiffs appeal.

Hon. Arva E. Tay-ROR, Judge. Action by J. N. Jensen to enforce a mechanic’s lien against Richard Griffin and wife -and D. A. McCollough, in -which Peter Olson and other lien claimants were joined as defendants. From a judgment for plaintiff and the other lien claimants against Richard Griffin personally only, plaintiff and certain claimants appeal. Homestead must not embrace more than one dwelling house in which he resides. Sec. 3225 Pol. Code.

Apeal from Circuit Court, Minnehaha County. Hon. Joseph H. JONES, Judge. Action by W. G. Milne against Thomas McKinnon and others, constituting the Board of County Commissioners of Minnehaha County, the County of Minnehaha, and Harry B. Benson as county treasurer, to enjoin .collection of a special assessment for construction of a 'drainage ditch. From a judgment for defendants, entered upon an order sustaining a demurrer to- the complaint, plaintiff appeals.

Appea-l from Circuit Court, Union County. Hon. Joseph W. Jones, Judge. Action by Dr. George Schott against Henry Henkin and another, upon a 'foreign judgment. From a judgment for plaintiff, defendants appeal.

<p>1. Appeal — Sufficiency of Evidence — Review—Record.</p> <p>The Supreme Court cannot consider tire sufficiency of the evidence to support findings, where it does mot affirmatively appear, from appellant’s 'brief, that it contains a statement of all the material evidence received on the trial, as required by Supreme Court Rule 6 (140 N. W. viii), and Laws 1918, Ch. 172.</p> <p>S?. Frauds, Statute of — Sale of Realty — Agreement Upon Method of Acquiring Title.</p> <p>Testator having conveyed a quarter section of land to his wife, which he had previously willed to defendant with another quarter section of which testator died seized, subject toi payment by defendant out of said property of certain sums to testator’s other -children, including plaintiff, defendant refused to accept the provisions of the will unless he could have both quarter sections, and, testator’s wife being then dead, it was orally agreed by -plaintiff and the other heirs, with defendant, that he should have both quarters, -and should acquire title to the quarter which testator had conveyed, by foreclosing a mortgage thereon wMcIl Rad -been assigned to testator in his lifetime and belonged to the estate, of which defendant was executor, and buying in the .property for his, defendant’s individual benefit. Held, that such agreement between the heirs was not for a sale of realty, or an interest therein, within the meaning of Sec. 1238, Civ. Code, subd. 5, but was rather one as to the method by which one party thereto should acquire title to the property.</p> <p>3. Estoppel-Estoppel in Pais — Agreement Between Heirs — Title to Realty.</p> <p>Testator devised two quarter sections of land to defendant, subject to his paying certain sums to testator’s other children, including plaintiff; but, testator having conveyed one of the quarter sections in his lifetime to 'his wife, who had also died, defendant refused to take under the will unless he could _ obtain both quarter sections, for which purpose it was orally agreed by plaintiff and the other heirs, with defendant, that he should have both quarters and should acquire title to the one conveyed, by foreclosing a mortgage thereon belonging to the estate. On the faith of the agreement, he foreclosed the mortgage, bought in the property individually, probated his father’s estate, paid the expenses and the bequests to plaintiff and other heirs, and later made valuable improvements on the property, of which facts ¡plaintiff had knowledge, she for six years making no claim of interest in the land. Held, that she was estopped to claim that the agreement was void and that defendant, by purchasing the land under the foreclosure sale, became a trustee thereof for the heirs.</p> <p>4. Equity — Baches.</p> <p>Plaintiff, having made no claim to the land, in which she now seeks to have decreed to her an interest, for nearly six years, after making an oral agreement which defendant, a party thereto, carried out by, among other things, making valuable improvements thereon to plaintiff’s knowledge, was barred from relief by laches.</p> <p>5. Specific Performance — Part Performance of Oral Agreement— Evidence — Prevention of Fraud.</p> <p>Though an oral agreement between heirs be regarded as within the statute - of frauds' for sale of an interest in realty, evidence of its terms and the fact that defendant, a party thereto and relying thereon, had accepted his father’s will, performed the conditions thereof, acquired title to the land through foreclosure of a mortgage thereon belonging to the estate, pursuant to the agreement, and constructed permanent improvements ¡on the land aggregating $4000 in value, to the knowledge of plaintiff, a party to the agreement, was admissible and material to show part performance which would entitle defendant to sp.ecific performance of tlie contract, under Civ. Code, Sec. 1311, and remove same from the operation of the statute; and to hold that such evidence was incompetent would be, in effect, to render the statute an instrument of fraud.</p>

<p>1. Appeal — Error—Postponement of Trial — Costs on Postponement —Question Not Raised — Exceptions.</p> <p>Where trial court, on defendant’s motion, as matter of grace, granted him a continuance on payment of costs occasioned by the postponement, which the court found to foe $50, defendant, ‘having failed to object that ¡proof did not show costs in that amount, on a hearing on plaintiff’s motion for judgment for defendant’s failure to comply with the order, and having failed to except thereto, held, he is not entitled to a review, on appeal, of question whether the amount was excessive.</p> <p>S. Continuance — Application, At Whose Request — Conditions.</p> <p>Where defendant applied for a continuance on the case being reached for trial, and same having been granted as matter of grace on condition that he pay costs fixed at $50, the entire order, including the condition, will be regarded as having been made at his request.</p> <p>3. Trial — Jury Trial — No Notice of Trial — Waiver—Continuance.</p> <p>An action to recover money 'only, triable to a jury, having been reached for trial, defendant, who had served no notice of trial, applied for a continuance, which was granted as matter of grace, on condition that he pay $50 costs, the order further providing that if he should fail to pay such sum within a specified time, plaintiff might proceed to prove his case before the court at any place within the circuit, on notice1. Held, that by accepting the terms of the order, defendant waived his constitutional right to detnand a jury trial, and to have the case heard at a regular term on his failing to pay the amount specified.</p> <p>4. Continuance — Place of Trial — Waiver.</p> <p>Where an order, granting a continuance to defendant as matter of grace, was conditioned on his paying $50 costs, failing to pay which plaintiff might prove his case before the court at any place within the circuit on notice to defendant, defendant having accepted the terms of the order and failed to pay same, Iield, it was not error for the court to try the case in another county in the circuit than that in which the suit was instituted.</p>