Volume 33 — South Dakota Reports

Hon. LEvx McGee, Judge. Mandamus by the Boston Investment Company, a corporation, and others, against the Board of Education of the City of Hot Springs, and Charles E. Sage and others, as members of the board, to compel a levy of taxes to pay an alleged balance due upon a judgment owned by plaintiffs. From a judgment denying the -writ, plaintiffs apeal.

<p>1. Elections — Nomination by Primary Election — “Richards Primary” — Judicial Candidates — Party Recall, and Indorsement of Principles.</p> <p>Laws 1911, Ch. 201, known as “Richards Primary Act,” provides in Sec. 21, that the words “party recall,” as used therein, mean the, right and official act of the regular party organization to request the resignation of any .public official elected or appointed as a party candidate, except judges of the Supreme and circuit courts. Sec. 23 .provides that no candidate’s name shall appear on the official primary ballot more than once, except the names of candidates for said judgships, who may he. endorsed by the minority and majority proposal committee and. whose names may appear in each of the three columns. Sec. 50 requires candidates for judges of the Supi’eme and circuit courts to file individual proposal petitions, and that their names shall appear in the independent column, ■but may be indorsed by either proposal committee, and that no. such candidate shall be required to sign the recall declaration. Held, that it was intended ¡by these provisions to relieve candidates for those judicial offices from the provisions of the “party recall’ and the indorsement of the declaration of principles of any party or faction thereof, and to allow the indorsement of such candidate by one or both of the proposal committees of his Party, which .purpose should be carried into effect if possible.</p> <p>2. Elections — Primary Nominations — Petitions—Individual Proposal Petitions — Time of Filing.</p> <p>Laws 1911, Ch. 201, Sec. 46, provides that the name of no candidate, for certain offices, including judges of the Supreme and circuit courts, shall appear on the official primary ballot, except the candidate of one majority and one minority committee proposals, unless at least '60 days .prior to the .primary election an individual candidate proposal petition shall he filed in the office of the secretary of state or county auditor. See. 50 requires candidates for said judgships to file individual proposal ¡petitions 90 days before date of ¡primary. Sec. 48 provides that no name shall be counted on any individual proposal ¡petition unless it appears to have been signed within 3 months prior to holding of .primary election. Held, that this provision of Sec. 48 ¡cannot apply to proposal petitions filed under Sec. 50, which must be filed 9 0 days before the primary; that it applies only to petitions filed under Sec. 46; that the act fixes no time for obtaining signatures to a petition to -be filed under Sec. 50; that petitioners are therefore entitled to¡ obtain them; that the electors ¡by Sections 46 and 48, have said that 30 days is such reasonable time, and hence such petitions, filed under Sec. 50, may be signed at any time not more than 120 days prior to the primary election.</p> <p>3. Elections — Nomination- by Primary — Individual Proposal Petition — Where Filed.</p> <p>While Laws 1911, Ch. 2 01, Sec. 50, requires candidates for judges of the Supreme and circuit courts to file individual proposal petitions 90 ¡days before the primary, the act makes no express provision for the place of filing such petitions, but Sec. 60 requires the secretary of state to certify to the ¡county auditors a list of the independent candidates for whom individual proposal petitions have been filed “in his ¡office.” Held, that the ¡petitions to be filed in the secretary of state’s office under Sec. 60 are those for candidates for state and national offices, and hence a candidate for circuit judge, which is a state office, should file his petition in that ¡office.</p>

<p>Appeal from Circuit Court, Minnehaha County. Hon. Joseph W. Jones, Judge.</p> <p>Action -by E. C. Ward against George W. Egan. From a judgment for .plaintiff, defendant appeals'.</p>

Hon. Joseph W. Jones, Judge. Action by F. M. Hackett against Agnes L. Straw and another, to recover for a broker’s commission -on sale of land. From an order granting a new trial after a verdict for plaintiff, he appeals. The assignment that the court erred in not giving the instructions requested by the defendant is not tenable, as the instructions given covered all of the issues in the case.

Original action by Norbeck & Nicholson Company against the State of' South Dakota, to recover a money judgment under an alleged contract -for equipment by plaintiff of an artesian 'well sunk on state grounds. Upon demurrer to the amended complaint. The power of the Board of Regents to enter into the contract with the plaintiff, set forth In the complaint, was ample, with this ’limitation only, that funds must first be provided for carrying out this contract.

Hon. Joseph W. Jones, Judge. Action by Elizabeth Cullen against R. W. Dickinson and others, to recover damages for false imprisonment. Erom a judgment for -defendants, and from an order -denying a new trial, plaintiff appeals. The court erred in -the receipt of evidence ': The answer -consists alone of a general denial, anid under such general denial the only issue which can be presented i-s— Did the defendants -deprive -the plaintiff of her liberty?

Hon. Arva E. Tayror, Judge. Action by John S. Hepner against Grant Wheatley. From a judgment for plaintiff, and from an -order denying a new trial, defendant appeals.

Hon. Robiüu,' B. Tripp, Judge. Mandamus by the State, on the relation of V. J. Wagner, against John W. Summers, as City Auditor of the City of Yank-ton. From a judgment of dismissal, relator appeals. The right to require the submission of this question to the electors of the city is established and guaranteed by the express-provisions oif Section 39, et seq., of Chapter 86, Laws of 1907. Section 1, article 3, State Constitution, as amended in 1898. Laws 1899 ch. 93 (Pol.

Hjon. Joseph W. Jones, Judge. Action- by Charles H. Edmunds against the- Mutual'Ei-fe Insurance Company of New York, to recover upon a life insurance policy. Prom -a judgment overruling a demurrer toi the complaint, defendant appeals.

Bon. Joseph W. Jones, Judge. Condemnation proceedings by the Illinois' Central Railroad Company against the East Sioux Falls Quarry Company and another.

<p>1. Taxation — Void Tax Deed — Remedy—Injunction Against Issuance of Deed.</p> <p>A property owner may enjoin issuance of a v-o-id tax- deed, and thus prevent clouds on title, where the assessment is inequitable as well -as void.</p> <p>. 2. Tax Deeds — Action to Enjoin — Unknown Amount Due — Tender of Taxes.</p> <p>If, in a suit to enjoin issuance of tax deed, as void and inequitable, the amount of tax the owner should be required to ■pay appears by the -complaint' to be uncertain -otr unknown, no tender of the taxes need be made, though, if during the trial the amount of taxes plaintiff should pay in order to proceed became certain, the court mignt require such payment before proceeding.</p> <p>3. Assessment — Lost Return — Oral Evidence — Supplying Defects.</p> <p>Oral evidence is admissible to prove the contents of a 1-o-st written return to -an assessment of property for taxation; hut it is not admissible to supply a return, or defects in a return as made. The return is an integral .part of the assessment, which m-ust stand or fall as made and returned.</p> <p>4, Assessment — Statutory Regulations — Mandatory.</p> <p>Statutory provisions regulating assessments, which are enacted for the taxpayer’s benefit o-r protection, are mandatory, and an assessor’s failure to comply therewith makes the assessment void.</p> <p>5. Assessment — Return—.Detached Oath to Return — Presumption— Irregular and Void Returns — Valuation.</p> <p>Where an assessor’s oath was not “attached” to his return, as provided by statute, but .was merely laid in the assessment roll, held, there was. no -presumption that it remained in the book; and the assessment was invalid for want of proper oath, as were assessments where the form of oath attached to the real estate return was that provided for personal property returns, and where it showed the assessment to be “a full and true value” instead of the "cash value” thereof.</p> <p>O. Void Tax Reeds — Relief by Injunction — -Inequitable and Unjust Assessment — Burden of Proof.</p> <p>The issuance of tax deeds will be enjoined, at the suit of the property owner, where the assessment is so inequitable and unjust as to amount to a fraud up-on him; and the burden of proof is upon plaintiff to -prove that such assessment would, if valid, have been inequitable and unjust.</p> <p>7. Assessment — Defective Oath — Presumption as to Valuations.</p> <p>While an assessment roll, invalid for w?,nt of- a .proper oath, is not evidence of the uniformity or equality -of the purported valuations therein contained, yet no presumption arises therefrom, that such valuations are inequitable; and in absence of proof that such valuations were inequitable and unjust in comparison with valuations -of -other property, such purported valuations will, for purposes of a suit to enjoin issuance of tax deeds, be presumed to be equitable and just when so compared with other valuations.</p> <p>8. Invalid Assessment — -Right to Px’ove, In Uquity — Restraining Collection oí Taxes — Remedy.</p> <p>Where an assessment of property is invalid, the property -owner had the right to prove that the purported assessment was unjust and inequitable, in a suit to enjoin issuance of tax deeds, and need not resort to a suit to restrain collection of the taxes.</p> <p>9. Tax Sales — Sale Certificate Held by County — Recitals in — Competitive Bidder — Contradiction of Recitals.</p> <p>Under Pol. Code, Sec. 2199, providing thát a purchaser of land at tax sale is entitled to a certificate describing the land, the sum paid, and stating the time when purchaser will be entitled to a deed, held, that a certificate containing all that said section provides it should contain, is prima facie evidence of the regularity of “the proceedings” pertaining to such sale; and if it 'contains other recitals which would tend to show some irregularity in proceedings, such further recitals would simply destroy the certificate as evidence of the regularity of such particular proceedings, and evidence is admissible to contradict the superfluous statements in such certificate, since the tax deed rests upon the sale and not upon the certificate thereof; hence, a recital in such certificate issued to a county, that the county was a competitive bidder, may be contradicted by evidence aliunde.</p> <p>3 O. Tax Sales — Sale to County — Necessity of Bid — Voidable Sale— “Secret Sale.”</p> <p>Where evidence shows that at tax sales there were no bidders other than the county, but also shows that no .public bids were made on behalf of the county, and that when property was offered and there were no bidders, the treasurer issued certificates to county without any formal bid on behalf of county, held, that, in view of Pol. Code, Sec. 2203, leaving to county treasurer discretion whether he shall bid in property for the county at tax sales, and Sec. 2201, providing for a ■private sale after the tax sale is closed and the treasurer has made his return of the lands unsold for want of bidders, sales to county, shown as aforesaid, were at least voidable, if not absolutely void, as “secret sales.”</p> <p>11. Limitation of Actions — Tax Sale Certificates, to County — Agency For State.</p> <p>Unless the statute specifically so provides, a statute of limitations cannot apply to a county and prevent it performing its public duty as agent or trustee of tbe state, as well as of political divisions less than itself, such as the collection of taxes; hence, Laws 1909, Ch. 10, fixing a limitation of six years from date of issuance of a tax certificate within which to commence proceedings to procure tax deeds, does not apply to certificates held by a county.</p> <p>13. Taxation — Redemption—Condition of — Payment of Subsequent Taxes — “Subsequent Tax.”</p> <p>Pol. Code, Sec. 2203, provides that, whenever a county acquires an interest in realty by bidding at tax sale, such realty shall not he again advertised and sold for delinquent taxes so long as county retains its interest therein, and that all taxes subsequently accruing against such realty, or that were unpaid at time of sale and a lien thereon, hut not included in the bid, shall be deemed a “subsequent tax,” and before tbe county can make an assignment of its interest in the realty, or assign such certificates, all such taxes must be paid in full, including tbe amount for which the land was bid off, and gives the county as such purchaser all rights, legal and equitable, that any purchaser could acquire at'tax sale purchase.' Sec. 2205 provides that one seeking to redeem from a sale to county shall ■pay the amount of taxes, with penalty and interest, up to date of redemption, and cost of sale, and upon, making such payment the treasurer shall issue a certificate of redemption and a tax receipt in duplicate for “said taxes, penalty, interest and costs.” Sec. 2206 provides that any person desiring to purchase the interest of the county in a tax sale certificate may pay the amount of the taxes, penalty, interest, and costs of sale and transfer up to the date he so. pays, and that treasurer shall deliver to him the county. certificate of sale, which assignment and transfer shall convey to purchaser of rights of county, legal and equitable, the same as if he had been the original tax sale purchaser. Sec. 22 09 provides that one claiming a .part of any land sold for taxes may redeem on paying the purchase money of such part, together with interest and subsequent taxes. All of said sections as they now exist, except .Sec. 2203,' were enacted as part of Ch. 28, Laws 1897, a general statute upon assessment and taxation; while the provisions in Sec. 2203 (which section was originally part of said law of 1897), prohibiting a re-sale after county has purchased, etc., .and concerning the payment of subsequent and prior unpaid taxes by a purchaser of county’s certificate, and making such taxes “subsequent taxes,” etc., were inserted therein by an amendment in 1901. Held, that the owner of land, in .order to redeem from a tax sale made to the county and where the tax certificate is still held by it, must also .pay the taxes due and payable aft-er date of tax sale to county; that the word “taxes” in Sec. 2205, must be construed to mean “subsequent taxes” as defined in-Sec.. 2203, and a tender of the amount covered iby the tax sale certificate itself, with -penalty, interest and cost of the sale on which the certificate issued, is not sufficient to effect redemption therefrom; .although, prior to. said amendment, such tender would have been sufficient. •</p> <p>13. Statutes — Construction—Re-enactment—Legislative Intent.</p> <p>The Supreme Court will .presume that the legislature, when it re-enacted a law by adopting it in the Code, intended that such law, except as amended, should be construed as it would have been construed prior to such re-enactment.</p> <p>14. Statutes — Construction—Taxation, to Effectuate Legislative Purpose — Express Words, When Unnecessary.</p> <p>In construing statutes relating to tax proceedings, the legislative- intent_ is the vital and controlling factor, as in other cases; and a construction which will effectuate the general legislative purpose» should be adopted rather than one which necessarily defeats such purpose. In .ascertaining the legislative intent, the entire language and general purpose of the enactment will be taken and construed together. And where the purpose and- intendment of a statute as a whole are apparent, express words as to such .purpose are not always necessary.</p> <p>15. Taxation — Tax Sales — Enjoining Tax Deed — Compromise of Taxes by County Commissioners — Other Property Owners— Evidence — Plaintiff’s Remedy.</p> <p>The fact that county commissioners 'compromised taxes against .property of taxpayers other than plaintiff, similarly situated, neither shows that such compromises were proper, nor that compromises should be made on plaintiff’s taxes, and hence evidence of such other compromises was not admissible in a suit to enjoin issuance of tax deeds to a county on a certificate issued to it; plaintiff's only remedy as to any improper compromises being to 'compel county commissioners to -pay into county treasury the money lost to county by such compromise. So held, in construing Secs. 2222, 2223, and 2224, Pol. Code.</p> <p>16. Tax Sale — Irregular Sale — Injury to Plaintiff — Costs of Sale.</p> <p>Where tax sales were irregular, and voidable, if not void, held, that in a suit to enjoin issuance of tax deeds on such sales, the injury which .plaintiff has shown was done to him by reason of such sales, is only the amount of costs of the sales.</p> <p>17. Tax Sales — Suit to Enjoin Issuance of Tax Deeds- — Decree Refusing Injunction — Time For Plaintiff to Redeem.</p> <p>Where, in a suit to enjoin issuance of tax deeds under tax certificates issued to a county, upon irregular and voidable sales, the trial court denies such .relief, held, the decree should have .provided for a reasonable time within which plaintiff might redeem from the several sales.</p> <p>Polley, J., dissenting.</p>

Hon. Arva E. Tayror, Judge. Action by E; L. Sc-hager against S. D. Dinneen, -to recover upon a note. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. Gardner & Churchill, and C. A. Christofherson, for Appellant.

H-on. William G. Rice, Judge. Action -by Moses E. Clapp and others against the Gilt Edge Consolidated1 Mines Company, J. S. Ford, and others. From a judgment -for plaintiff's against defendant Ford, and from an order denying him a new trial, he 'appeals, .and the other defendants appeal from an order granting a new trial after judgment -in their favor.

Hon. John E. Huches, Judge. Action, by the Dakota National Bank against G. H. Kleinschmidt, administrator of the estate of Murwin E. Eelty, deceased, upon a promissory note from a judgment for defendant, plaintiff appeals. The first contention of the respondent in this appeal is that the plaintiff did not state, in his complaint, nor did it prove at the trial any cause of action against the defendant. This contention may be made at any time, and for the first time on appeal.

<p>Appeal from Circuit Court, Beadle County. Hon. Arva E. Tayror, Judge.</p> <p>On rehearing.</p>

Appea-l from Circuit 'Court, Spink County. Hon. A uva ETayuor, Judge. Action 'by S. Jennie Sorg and' others against William Wells. From a judgment for defendant, and from an order denying a new trial, plaintiffs, -appeal.

Hon. Ai,va E. Taylor, Judge. A-cti-on -by G. W. Froeli-ch -against C. G. Swafford- an-d others, for foreclosure o-f -a junior mortgage -and to redeem from a senior mortgage. From, -a decree for defendants, and from an order denying -a new trial, plaintiff appeals.

Ap-pea-l from- 'Circuit Court, Bead-le Co-unty. ITo-n. Alva E. Taylor, Judge. Action 'by Caroline AY. Gilfillan against -Ralph R.. Seballe-r. Erom the taxation of -costs for -printing a brief of less than 50 pages at the rate of $1 -per page, plaintiff appeals.

Hon. C. X. Seward, Judge. Action by Jappe 'Christensen against Chris Holm and another, for assault and battery. From a judgment for'plaintiff, and from an order denying’ a new trial, defendants appeal. The evidence did not tend to show that the defendant 'Christensen, either singly, or jointly with the defendant Holm, committed any assault or battery upon the- plaintiff. Defendants’ plea of son assault de mesne is supported 'by practically undisputed testimony.

Appeal .from Circuit Court, Butte County. Hon. William G. Rick, Judge. Defendant, Ladd A. Knapp, wag convicted of statutory rape, and appeals. Attention of jury was called to the fact that defendant had not testified in his own behalf in said remarks. State v. Jones, 113 N. W. 716. There is no. way of telling what the jury understood his meaning- to ¡be.

Hon. Frank B. Smith, Judge. Action by Hiram Rodee and another against I. W. Seaman, to recover damages for fraud and deceit in an exchange of real properties. From a judgment -for defendant, entered upon sustaining an objection to the introduction of evidence under the complaint, for failing to state a cause of action, plaintiffs appeal. The complaint presents facts sufficient to constitute a cause of action under our statute. Section 1201, Revised1 Civil Code.

Hon. Joseph W. Jones, Judge. Action by George E. Adams-against Miark D. Scott, for damages for,libel. From an order requiring plaintiff to amend the complaint and insert particulars, he appeals. The matter published could not fail to have a tendency to injure plaintiff in his business, as it, in effect, charges him with running a disorderly house, or house of ill fame, which under the provisions of Sections'376 and 3yf, Penal Code, would be an indictable offense.

Hon. Wiluam G. Rice, Judge. Action by Charles S. Hardin against James D'. Hardin, and Charles W. 'MoCutchen, to establish a resulting trust in realty in favor of plaintiff. From a judgment in favor of plaintiff, defendant McCutcheon appeals. The effect of a lis pendens as constructive notice is confined to the limits of the county in which it is filed. A notice of lis pendens must appear of record.

Hon. Robert B. Tripp, Judge. Application for the probate of the will of Jane Hackett. From a judgment for contestants, Elmer E. Blackett and others, and from an order denying a new trial, Eugene Hackett appeals. The testimony is entirely uncontradicted, and shows a strong and rational mind.

Hon. Frank B. Smith, Judge. Action by C. J. Bliss against W. E. Waterbury, in the nature ■of ejectment, to. recover possession of realty. From a judgment for plaintiff, and from an -order denying a new trial) defendant appeals. The -court erred in sustaining the plaintiff’s- objection to the following question asked the witness Frances Mount. Q. Was there anything -said at that time by your father in reference to this -paper?.

Original application for writ of .mandamus by the State, on relation of IT. S. Jarvis and another, agains-t H. W. Brown, and others-, constituting the County Commissioners of Gregory -Coun-ty, and P. T. Amibroz, as County auditor of such .county. Writ denied.

Hon. Carl G. Sherwood, Judge. Action by John Coplan against Lydi-a E. Eastwood, and others. Fr-om an order sustaining a demurrer -to the complaint, plaintiff appeals. Right to appeal from the ruling on the -demurrer not waived by appellant. The election to amend occurs when the am-ended pleading is filed. O' Hallo ram- v. Marshall, 35 N. E. 926. Until the amended -pleading has been filed, there -is clearly no waiver.

Hon. Robert B. Tripp, Judge. Election contest 'by Robert J. Gordon against Edwin T. White, as mayor of Yankton, and1 others. From a judgment in favor of contestant, and from an order denying, defendant’s motion for a new trial, they appeal. It does not appear why the deed was- -turned over to Mr. Wilson, and under -the evidence we contend that the first delivery of the deed it» Mr. H'eaton was sueh that -the legal title to the property then passed- to him-.

<p>Original proceeding in mandamus by the State, on the relation of Prank McNulty, against Frank Glasner, Secretary of State.</p>

Appeal irom Circuit Court, Tripp County. Hon. William Williamson, Judge. Thomas DaVijes, the defendant, was convicted1 of,.grand larceny, and he appeals. , If' it appears from the .nature of the 'case and all the .facts that a party' is entitled 'to a 'continuance,- dhe refusing to grant the -same would not he a. matter of sound judicial dis-cretion, but an abuse o-f discretion and therefore -error.. 9. Cyc. P. 72.

Hon. Joseph W. Jones, Judge. Action by Mary Gotthelf against the Merchants’ Bank. From an order denying a change of venue, defendant appeal's. This notice, which was subscribed and sworn to by the -defendant, constituted- a -demand -under Chapter 177, Laws' of 1913. The -plaintiff was notified that defendant was a resident of San-born county and that defendant demanded that said action be tried in Sanborn county.

Hon. Joseph W. Jones, judge. Action by Eivind Klaveness against John M. Freese, for damages for alleged deceit. From a judgment for .plaintiff for an alleged insufficient amount, he appeals. The value of the real estate transferred in exchange for the stock, is immaterial. The .plaintiff is entitled to the ¡benefit of any bargain he may have made. The court’s -instruction on this point did not eliminate the error or modify the .prejudicial effect of the evidence.

Hfon. Wiui.iam G. Ríes, Judge. Action by Reeves & Company against John W. McGee and others. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. The trial court was fully advised in the specification of error of the questions that would be presented to this court, and if so, it served its purpose.

Hon. Alva E. Taylor, Judge. • Action by Joseph W. Catlett against W. H. Stokes, for conversion of mortgaged wheat. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. There is no demand alleged’ or proved sufficient to1 support an action for conversion.

Hon. Frank B. Smith, Judge. Action by the Spriele Brothers- Investment Company against -J. D. Whipple, to 'recover for goods furnished to a third person ■on defendant’s alleged promise to pay for ’them. From a judgment for defendant entered upon a directed verdict, plaintiff appeals. A verdict should not be directed except where the .evidence is so conclusive that reasonable minds could not -differ as to the result to be reached. Eggland v. South 22 S. D. 467.

Hon. Frank B. Smith, Judge. Action 'by the Commercial & Savings Bank against C). E. Cassem, to recover upon a guaranty of a promissory note. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. The guaranty sued upon never .became effective, because of a failure on the part of plaintiff to comply with, or fulfil], the conditions upon which defendant signed the same.

Hon. Joseph H. B'ottum, Judge. Action by Herman Gab-rins'ld against the United .States Annuity & -Life Insurance Company, tp recover the amount of judgment recovered against plaintiff by defendant’s agents upon a promissory note alleged to ihav-e been wrongfully taken from escrow, etc. From a judgment for plaintiff, entered upon an order overruling a demu-rrer to the complaint, defendant appeals.

Hon. Pkanic B. Smith, Judge. Action by James D. Carroll ag'ainst W. A. Fowler -and others, to quiet title. From a judgment against defendant Fowler, he appeals. The affidavit upon which the order for the publication of the summons was based, was insufficient to authorize such order in that it did not show that the .plaintiff had used due diligence to find the appellant within the State of South Dakota.

<p>1. Brokers — Commission Contract — Ordinary Commission — Evidence —Immateriality.</p> <p>In a suit upon an express contract for one-half of the • ■ • proceeds, or commission, on a sale of realty, 'evidence as to what was the ordinary commission on such sales at the time, is immaterial.</p> <p>S. Evidence — Documentary Evidence — Foundation—Signature.</p> <p>Testimony that witness knew defendant’s signature, was equivalent to a statement that he knew defendant’s handwriting, iand a letter, shown to witness, who testified that he knew defendant’s signature and that the signature to the letter was that of defendant, was properly admitted in evidence, as against objection that no- foundation was laid.</p> <p>3. Appeal — Review—Sufficiency of Evidence — Defective Record.</p> <p>Where grounds of motion for new trial do not appear in the record, and it affirmatively appears that the whole of the evidence was not brought up, the sufficiency of evidence to sustain findings will not be considered.</p>

<p>Bankruptcy — Act oii Bankruptcy — Insolvency—Payment of Judgment From Debtor’s Effects.</p> <p>In an action by a trustee in bankruptcy against a creditor of the bankrupt who had within four months prior to filing of petition in' bankruptcy recovered judgment ‘against him, which judgment was, prior to said filing, paid by debtor out of 'proceeds of a sale of his entire stock in trade, in which action recovery was sought for the amount of the judgment, an adjudication in involuntary bankruptcy having followed the petition; the issues being, whether the debtor was insolvent when said judgment was paid, and whether defendant at time of said payment had reasonable causé to believe that the debtor was insolvent at that time; held, the evidence before trial court upon those issues, being disputed questions of fact, was sufficient to justify findings in the affirmative under the issues.</p>

Circuit Court, Brookings 'County. Hon. Carl G. Sherwood, Judge. Certiorari (by the State, on the relation of Sam Alberts, against Joseph Noethe, as Mayor of the City of Elkton, and others, alleging that the defendants as city officials of said city exceeded their jurisdiction in granting a permit to sell intoxicating liquors at retail to one Paulson. Judgment' for 'the relator, and certain of the defendants appeal.

Hon. Joskph H. Bottum, Judge. Action 'by May H. Hill against the City of Huron, to quiet title to a party wall, etc., and to recover rentals for use of same, etc. From a judgment for defendant, and from an order denying a new trial, .plaintiff appeals. A stipulation in a party wall contract, providing therein that the contract shall be ia covenant running with the land passes to the grantees of each lot owner, adjoining the party wall. McChesney, Adm. v. Davis, 86 111.

Hon. Joseph W. Jones, Judge. Election contest, (by Paul Krakowski, contestant, against George ;PI. Waskey, as Mayor, and Jake Kundert and another, as City 'Commissioners of the City of Madison, involving an election upon the proposition of granting permits for the sale of intoxicating liquors at ¡retail. From a judgment for plaintiff and contestant, defendants appeal. The enrolled bill cannot be contradicted or impeached by the entry in House Journal.

' Appeal from Circuit Court, Perkins Counity. Hon. Cray Carpenter, -Judge. Action by Olive Connolly against Cornelius B. Connolly, fc-r divorce. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. The court did not have jurisdiction to enter the judgment. Section i of Chapter 132 Laws of 1907. The “residence” required -by the Statute above cited means “domicile” and not merely actual residence.

Hon. Joseph W. Jones, Judg'e. Action -by John FI. Gingles, as executor of the estate o-i R. C. Gingles, deceased, and another, ag'ains-t the Savings Bank ot Hartford- and others, to recover money held in escrow by defendant -bank, involved in an alleged sale and exchange of lands. From a judgment for defendants, and from an order denying a new trial, plaintiff's appeal.

Hon. Joseph W. Jones, Judge. Action by the Symms-Powers- Company against C. B. Kennedy, with which was consolidáted an action by the Plumbing Supply Company -against said defendant, -to- enforce -mechanics liens. From a judgment establishing mechanics-’ liens- in favor of both plaintiff and the Supply 'Company, defendant, owner of the property affected by the liens, appeals.

Hon. William G. Ricl, Judge. Action by Andre Duprel against Joseph Collins, as sheriff of Meade. County, to' recover for personalty 'alleged to have been wrongfully attached and sold under execution. From a judgment for plaintiff, and from an order denying a new trial, 'defendant appeals. Court’s instruction assumed evidence to be true.

Hon. Frank McNulty, Judge. Action by fhe Nichols & Shepard Company against Johannes Horstad and others, to recover upon an appeal bond. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal.

Hon. Carr G. Shrrwood, Judge. Action by the Farmers’ Elevator Company of Waverly against E. M. Swanson and others, to recover upon a surety bond given by defendant and his sureties, under his agency as plaintiff’s manager and grain buyer. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. The evidence is insufficient to justify the verdict, because, First.

Hon. Cray Carpenter, Judge. Action by Oscar C. Olson and others against the City of Lemmon and others, for contest of an election involving votes on the question of sale of intoxicating liquor's at retail. From a judgment for defendants, plaintiffs appeal. .

BHon. Joseph W. Jones, Judge. Action by the John B. Webster Company and another against S. M. Grossman and others, for recovery of rents of leased premises. From a judgment for plaintiffs, and from an order denying a new trial, defendants appeal. As to the requested instructions, we insist that appellants, under the undisputed facts, were entitled to 'have them given and even had the facts been disputed they were as much entitled to them.

Honorable Joseph H. Bottum, Judge. Action by E. H. Jennings against the Des Moines Mutual Hail and Cyclone Insurance Association. From an order vacating an order sustaining a demurrer to the complaint, defendant appeals. Treating the proceeding in the nature of an application for a new trial, it is fatally defective in that it lacks all the essential statutory steps required upon- an application of this kind.

Hon. Lkvi McGep, Judge. Action by Clarence N. Mcllvaine and others against the First National Bank of Frederic, Wisconsin, to recover proceeds of converted personal property. From a judgment for plaintiffs, and from an order denying a new trial, defendant appeals. It is necessary to show the conspiracy before the plaintiff can show the declarations of any party charged as -a co-conspirator to bind the other co-conspirator subsequent to the time, and it is incompetent.

Hon. Aiwa E. Tayror, Judge. Action by Ben Peterson against S. M. Miller, to recover purchase price of 'merchandise sold. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. None of the plaintiff’s testimony is set out in the appellant’s statement, and of page 9 of the transcript there is only the testimony of one question, objection and answer shown at page 5 of appellant’s statement.

Hon. Alpha F. Orr, Judge. Action by the Yankton National Bank against F. 'C. Benson, upon a judgment of a justice of the peace. From a judgment for defendant, plaintiff appeals. The judgment rendered February io, 1896 in Justice Court in favor of this plaintiff and against this defendant, is conclusive on the question of plaintiff’s corporate existence.

lion. Cart, G. Sherwood, Judge. Action by IX J. Quinn .against S. J. Conklin, begun in justice’s court and appealed by defendant on both law and fact, to the Circuit Court. From an order sustaining a demurrer to the answer and counter-claim, defendant appeals. This action, from 'the nature of ,the appeal, is to be tried de novo in the circuit court. Bank of Worthing v. Sanderson, 24 S. *D. 443; Justice -Code, Section 101.

Circuit Court, -Corson County. Hon. Cray Carprntrr, Judge. Action by Albert P>. Carlsberg against A. L,. Fields and another, to recover for damages by trespassing animals. From a judgment for .plaintiff, and from an order denying a new trial, defendants apppeal.

Hon. Joseph IT. BootumJ Judge. Action 'by Charles. W. Hardy against George A. Woods and others, to quiet title to realty. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal.

Hon. Carr G. Shurwood, Judge. Action iby M. R. Baskerville against Mattie Culver, administratrix of B. L. Culver, deceased, and others, to recover upon a guaranty 'contract. From' a judgment for defendants, other than defendant administratrix, and from an order denying a new trial, plaintiff appeals. Oral - testimony is not admissible to show an agreement with a surety independent of the contract. Anderson v. Mathcny, (S. D.) 95 N. W. R. 911.

Court, Lawrence County. Hon. William G. Rice, Judge. . Action by Ed. H. Danielson against Anna H. Gustafson, for restoration of a lost deed; in which Donald G. Gustafson intervened. From a judgment for .defendant, and from an order denying a new trial, plaintiff appeals. It is conceded, and the court finds, that the lost deed from defendant to plaintiff, conveying the premises in controversy, was executed and delivered to the plaintiff in 1895.

Ho-n. Frank McNulty, Judge. Action by Albert Berry, as administrator of the estate of E-berhart Thomson, deceased, against Charles A. Howard and another, for cancellation' of a -tax deed and to quiet title. From a judgment for plaintiff, and an- order denying a new trial, the defendant named- appeals.

Hon. Frank B. Smith, Judge. Action by D. J. Noble, administrator, against the Kansas City Life Insurance Company, to recover upon a life insurance policy. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Hon. Frank. McNuuty, Judge. Action by Jane D. West against the Middlesex Banking Company and others, to determine adverse claims and to quiet title to realty. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. The defendant, Central Investment Company, was a mortgagee in possession, and its possession was adverse.

Hon. Auva E. Tayi.or, Judge. Actions by J. R. Piper and O. 'S. Hagen against Harry J. . Steele upon a promissory note in which Steele petitioned for leave to bring the amount claimed into court, and 'that his adversaries litigate between themselves; the actions being consolidated. On the issues between Piper and Hagen, judgment, upon a directed verdict, was for Plagien, from which judgment, and from an order denying- a new trial, Piper appeals.

Hon Cuu. G. Sherwood, Judge. Action by Joseph S. Clement against H. S. R-owe, to recover for value of land conveyed by plaintiff to a third party, upon promise of defendant to reimhurse, etc. From an order of trial court setting aside a directed verdict for defendant, and granting a new trial to plaintiff, defendant appeals.

Hbn. GkORGE H. Marquis, and H-on. Frank McNulty, Judges. Action by Frank Weller against J. E. Platt, to quiet title to land, and for possession, etc. From a judgment for plaintiff, and from an order denying a new -trial, defendant appeals. The 'affidavit of Mr. Sherwood refers to the notice to redeem and the affidavit of Mr. Cook, the sheriff, refers to- the notice.

Hon. Frank B. Smith, Judge. Action, 'by C. W. Smith and others against Pence & Pier and others, to enjoin the completion of a drainage ditch and the spreading of assessments therefor. From a judgment for defendants, and from and order denying a new trial, plaintiffs appeal. The statute requires sureties. Section 2, Chapter 134 of the Laws of 1907. This -bond is a jurisdictional requirement. Case)', et al., v. Burt Co., 81 N. W. (Neb.) 851.

-'Appeal from Circuit Court, Hand County. Hon. John F. Hughes, Judge. Action by James -Cain against Wilhelmina Ehrler and another, as heirs of Gustave Lehmann, deceased, to quiet title. From a judgment for plaintiff, and from' an order denying a new trial, defendants appeal. As to the three year limit' — It is not sufficient that a deed be fair on its face. 1903 Code C. .P. 399, Sec. 2214; Bandow v. A’Volven, 23 S. D. 124.

Hon. John F. Hughes, Judge. Action 'by John Van Abel against G. F. Wemmering, to enforce specific performance of a contract for sale of realty. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

ITon. Frank B. Smith, Judge. Action by Lafayette Somers against Peolia L. Somers and another, to recover an interest in land. From a judgment for plaintiff, and from an order denying- a new trial, defendants appeal.

Hon. Franic B. Smith, Judge. Action by Dean Mason and others against Fred Braught, to determine the identity of a quarter section of land. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. In cases of this character, if the corners and lines established by the Government survey can be identified they must control, regardless of whether they are right or wrong.

Prohibition 'by the State of South Dakota, on the relation of John Longstaff, against H. B. Anderson, State Auditor, to prohibit -defendant from drawing' state warrants against certain special funds of state moneys. Chapter 210, Session Laws, .1907, by Section 9, it is provided that all money received by- the commissioner of Insurance shall be paid into the State Treasury for an Insurance Fund and shall be used for the purpose of -defraying the expenses of the Department.

Appeal f-rom Circuit Court, Potter County. Hon. Joseph H. Bottum, Judge. Action -by Archie D. McKinnon, administrator of Allen LMcKinnon, deceased, against George W. Fuller and another, to quiet title. From a judgment for plaintiff, and from an order denying a new -trial, defendants appeal. The court erred in making any finding of fact or conclusion of law to the -effect that the scavenger tax judgment was invalid.

. Appeal from 'Circuit Court, Lawrence County. Hon. William G. Ric®, Judge. Action by Adoniram J. Plowman ag-ainst Samuel E. Morden, •to quiet title to realty. From a judgment - for -defendant, and from an order denying a new trial, plaintiff appeals. The purchase by the county at public sale is void. (S. D.) Joy v. Midland State Bank, 128 N. W. page 152 (End of second column.) ; (S. D.) Reckett v. Knight, 16 S. D. 395, 92 N. W. 1077.

Hon. Carr G. Sherwood, Judge. Action by Samuel N. Lounsberry and another against EJ. Kelly, for specific performance. From a judgment for plaintiff, affirmed on a prior appeal therefrom and from an order denying a new trial, and from an order denying a motion to vacate said judgment after determination of first appeal, defendant appeals. Upon motion to dismiss the present appeal.

Hon. Chas. X. Seward, Judge. Action by Andrew R. Street' against the Farmers’ Elevator Company of Elkton, -for conversion of grain. From an order sustaining a demurrer to the answer, defendant appeals. The correct interpretation of secs. 487, 494, 496, Pol. ■Code, is that the receipt shall be conclusive, only, when in the hands of an innocent purchaser or where there has been no1 demand by or surrender to a title paramount!

Hon. Frank McNulty, Judge. Action by John L,. Bourcy -against Charles Kaufman, in claim and 'delivery, for recovery of hay cut upon land leased by an Indian. From a judgment for plaintiff, defendant appeals. This action cannot be maintained by only one of the two joint tenants in common and alleged owners; in a replevin action it is necessary for the plaintiff to have the sole and exclusive right of possession. Palmer y. Hurst, Sheriff, 22 S. D., 68.

Hon. Wirriam G. Rice, Judge. Louis Erickson, the defendant, was convicted of larceny of cattle, and he appeals. The -defendant is 11-ot connected ini any way except by the very unsatisfactory evidence upon the pant of the State, of James Lodge.

Honorable Joseph PI. Bottum, Judge. Action' by A. Slimmer and another, co-partners as Slimmer & Thompson,, against Philipp Zenker, to recover possession of alleged mortgaged' cattle. From a judgment for defendant, and from an order denying a new trial, plaintiffs appeal. The verdict for the defendant is so clearly without any competent material evidence to sustain it that it should not be permitted to stand.

Hon. Robert B. Tripp, Judge. Action by Arthur V. Hazen against K. Thompson, for foreclosure of a mortgage -of realty. Erom a judgment for plaintiff, and from an orcfer denying a new trial, defendant appeals.

Hon. Robert B. Tripp, Judge. Action by W. E. Ege against the Centerville Telephone Exchange Company, to recover upon a promissory note. Held: because those who had subscribed for capital stock were stockholders with the legal right to' attend and participate in the proceedings of the first stockholders’ meeting.