Volume 33 — Utah Reports

<p>Appeal from District Court, Salt Lake County; C. W. Morse, Judge.</p> <p>Action by A. F. Christensen against the Colorado Investment Loan Company. From a judgment for plaintiff, defendant appeals.</p>

D. Lewis. Action by Joseph S. Richards 'against Joseph F. Smith. From the judgment entered on an award of arbitrators, plaintiff appeals. APPELLANT'S POINTS. It is well settled that the award is void, if it goes beyond the issues limited by the submission, where the matter ultra vires cannot be separated. (White v. Arthur. 59 Cal. 34 [citing Cald., Arb. 227-232, Morse on Arb. 340] ; Stubbings v. McGregor, 86 Wis. 248, 56 N. W. 641; Am. & Eng. Ehc.

<p>1. LANDLORD AND TENANT-LIABILITY OF LANDLORD -ACTS OF OTHER Tenants. A landlord, except for an existing nuisance, is liable to Ihis tenants for his own overt acts of negligence only, and not for mere nonfeasance nor for injuries resulting from the acts of other tenant's.</p> <p>2. Mines and Minerals — Leases — Duty of Landlord — Acttons —Instructions. Where plaintiff, defendant’s lessee of a lower level of a mine, sued defendant for injuries sustained by the cav- ■ 5ng of the ground caused by workings of defendant’s other tenants at a higher level, and plaintiff based his right to recover on the allegation that defendant, with intent to injure plaintiff, caved the ground on the ore bodies on which plaintiff was working, hut the proof showed that the ground was caved through the willful or negligent acts of defendant’s tenants of the upper level of which defendant had notice, an instruction that it was defendant’s duty to take active measures to prevent such injury was erroneous.</p> <p>3. Landlord and Tenant — Liability for Nuisance. To render a landlord liable for a nuisance, the nuisance must be one necessarily arising from the tenant’s ordinary use of the premises for the purpose for which they were let, unavoidable by reasonable care ■on the tenant’s part.</p>

L. Ritchie, Judge. Action by Christine Pugmire against the Oregon Short Line Railroad Company. Judgment for plaintiff, and defendant appeals. APPELLANT^ POINTS. The relationship of master and servant is a contractual one, and that contract must possess all the essential elements necessary to the formation of a contract, the same as in all matters of contract.

E. Booth, Judge. Application of Don C. Fullmer and others, real property owners of the town of Mapleton, to restrict its corporate limits. From a decree of severance, the town appeals.

Application of Alexander Barton and others, real property owners of Manti City, to restrict its corporate limits. From a decree of severance, the city appeals.

<p>Appeal from District Court, Carbon County; Ferdinand Erickson, Judge.</p> <p>Action by John B. Boberts against M. P. Braffett. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from District Court, Salt Lake County; 0. W. Morse, Judge.</p> <p>Action by Johannab Brixen ■ against Elsa Jorgenson and another. From a judgment for plaintiff, defendants appeal.</p>

G. Armstrong, Judge. Arthur Brown appeals from a conviction. APPELLANTS POINTS. While it may be true that it is only necessary in a case like the one at bar to prove that a corporation exists d& facto, yet that can be proven only by general reputation, and general reputation, as stated by our supreme court in the case of the State v. Marks, can only be proven by some person who knows the general reputation, so declares and is thus able to testify.

<p>1. Words and Phrases — “Gypsum.” Gypsum is a . mineral, and constitutes a mineral deposit under tlie mineral laws.</p> <p>2. Statutes — Construction — Meaning op Words. In determining the meaning oí words used in a statute or Constitution, the construction placed upon them by the courts must prevail over the popular conception of the terms.</p> <p>3. Words and Phrases — “Mines” — “Minerals.” The term “mines” is not limited to mere subterranean excavations or workings, nor is “minerals” limited to the metals or metalliferous deposits, whether contained in veins that have well-defined walls, or in beds or deposits that are irregular and are found at or near the surface, or otherwise.</p> <p>4. Constitutional Law — Construction op Provisions •— Ejusdem Generis — Taxation. While, under the doctrine of ejusdem gen-eris, when general words in a Constitution or statute follow particular words, the things contained within the general words must be of the same class or kind as those particularly mentioned, and general words will not be held to include anything which is of a class superior to the class mentioned in the particular words, the doctrine is only a rule of construction to aid in arriving at the intent of the lawmaker, and cannot be applied to override the fundamental principles that all words in a law must, if possible, be given their ordinary meaning, and that the intention of the lawmaker must be gathered from the language employed in the light of the context and of the subject-matter to which it is applied, and that when the intention is clear it must prevail, except that courts cannot assume that the lawmaker really intended tc enact either absurd or unjust laws.</p> <p>5. Taxation — Property Subject to Tax — Constitutional Provisions — Construction — Mines and Proceeds Thereof. Constitution, article 13, section 4, provides that all mines and mining claims, etc., containing or bearing gold, silver, copper, lead., coal, or other valuable mineral deposits, shall be taxed, etc., and the net annual proceeds of all mines and mining claims shall be taxed, etc. At the time the Constitution was framed the specified metals were the only ones mined in large quantities in the territory, and coal, with the exception of lime and common rock, was the only nonmetallie product mined in quantity sufficient to justify the method of taxation proposed. Held, that' the classification was not intended as a limitation, hut an enumeration of substances then produced in quantity sufficient to warrant the method of taxation imposed, and, under the exception to the rule of ejusdem generis that where the particular things enumerated' are complete so that there remain no others of like kind, then the things that fall within the general words must be assumed to be of a different kind and not ejusdem generis with those enumerated, the phrase “other valuable mineral deposits” embraces all mineral deposits, including a deposit of gypsum, and the net annual profits from the sale of products manufactured therefrom are taxable under the section.</p>

A. Howell, Judge. Action by A. R. C. Smith against the Ogden, & Northwestern Railroad Company. From a judgment for defendant, plaintiff appeals. appellant's points.

<p>Appeal from District Court, Eiftb District; Joshua Greenwood, Judge.</p> <p>Action by Peter Anderson against the Mammoth Mining Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Fifth District; Joshua Greenwood, Judge.</p> <p>Action by Joseph H. Dearden against the San Pedro, Los Angeles'& Salt Lalie Railroad Company. Prom a judgment for plaintiff, defendant appeals. ,</p>

Ritchie, Judge. Action by Jesse Gesas, by bis guardian ad litem, Morris Levy, against the Oregon Short Line Railroad Company. Judgment for defendant, and plaintiff appeals. APPELLANT^ POINTS. It is the duty of all persons seeing a child in a place of danger to give it warning. (Devereaux v. Thornton, 4 Ohio Dec. 449; Railroad v. Toban, 12 Tex. Civ.

<p>1. CARRIERS — TRANSPORTATION OP PROPERTY — LIMITATION OP LIABILITY — Nature op Eight. Though common carriers are as a general rule liable as insurers of property, and are responsible for loss or damage, unless caused by the act of God or of the public enemy, this liability may be limited by a fair and reasonable contract as to any loss not caused by its negligence or misconduct, or that of its servants.</p> <p>2. Same — Liabilities Subject to Limitation — Negligence ob Misconduct. A carrier cannot by contract exempt itself from nor limit its liability for the loss of or damage to property caused by its negligence or misconduct or that of its servants.1</p> <p>3. Same — Transportation op Live Stock. Provisions in a contract with a carrier that a shipper of sheep assumed all risk of damage from delay in transportation, or loss or damage from any other cause than willful or gross negligence, and other provisions exempting the carrier from or limiting its liability for loss or damage from failure to exercise a proper degree of care, contravene public policy and are void.</p> <p>4. Same. A contract provision that the rules, regulations, and conditions prescribed by a carrier of live stock, as evidenced by its published tariffs, classifications, and circulars, were binding on the shipper, and that his signature of the contract was conclusive evidence of his knowledge of and assent to the conditions thereof, is void.</p> <p>5. Appeal — Beview—Findings—Effect. Findings by the court as to a carrier’s delay and negligence in the transportation of sheep are binding on the carrier on appeal.</p> <p>6. Cabriers — Transportation op Live Stock — Limitation op Liability — Validity. A stipulation with a carrier of live stock, fairly entered into and reasonable under all the circumstances, requiring the presentation of a claim for loss or damage, is not ineffectual in all cases where the loss or damage results from negligence.</p> <p>7. Same. Where a contract for the shipment of sheep limits the carrier’s liability to loss from willful or gross negligence, a paragraph requiring the presentation of a claim within ten days as a condition of liability must be construed as referring only to claims for willful or gross negligence.</p> <p>8. ¿5ame. A contract exempting carrier of sheep from liability except for willful or gross negligence, and then only on presentation of a claim, is void.</p> <p>9. Tbial — Findings by Court — Conformity to Pleading and Evidence. In an action for injuries to a shipment of sheep, a finding, not based on any pleading or evidence, that a stipulation requiring notice within ten days of claim for damage is reasonable, is a mere conclusion of law, without effect.2</p>

A. Howell, Judge. Action by John Bowman against Ogden City. Judgment for plaintiff, and defendant appeals, and plaintiff moves to dismiss. Motion to dismiss denied.

Erickson, Judge. Action by the Manti City Savings Bank against' Niels Peterson and others. Judgment for plaintiff. Defendants appeal. APPELLANTS POINTS. No rule is better settled tban that one tenant in common cannot maintain replevin against his co-tenant for his individual interest in the property. This is for the reason that one party only has as much right to the possession of the common property as the other.

D. Lewis, Judge. Action by Lettie A. Brown against Salt Labe City. From a judgment for plaintiff, defendant appeals. APPELLANTS POINTS. The statute says, all claims for damages or injury must be presented to the city council. (Sec. 312, Laws 1903, p. 12.) A claim for death of a person must be presented to the city authorities.

<p>Original application for mandamus by tbe state, on the relation of Justin E. Davis, against J. A. Edwards, State Auditor.</p>

<p>1. Executors and Administrators — Allowance and Payment of Claims — Presentation—Claims Which Most be Presented— Time for, Presentation. Plaintiff purchased from defendant’s testator property by warranty deed. After paying the taxes on the property due before the testator’s death, he sued defendants for the amount of the taxes so paid. Held, the claim arose from a breach of a covenant in a deed, and was a claim arising on contract within Eevised Statutes 1898, section 3851, providing that “all claims arising upon contracts . . . must be presented within the time limited in the notice” given by the executor or administrator to creditors of the estate.</p> <p>2. Same — Taxes. The taxes were not claims which need not be presented to the executor within the exception of Revised Statutes 1898, section 3858, providing that an action may be brought against the representatives of the estate without notice by any holder of a lien to enforce it against the property of the estate subject thereto, the lien of the taxes being against the land bought and not against any property of the estate.</p> <p>3. Same. Revised Statutes 1898, section 2613, requiring the district court to require executors and administrators to pay all taxes due from the estate and forbidding discharge till such taxes are paid, does not affect the necessity of presenting to the representatives of a deceased vendor of land by warranty deed a claim by the purchaser for reimbursement for taxes paid by him which were liens on the land at the time of the purchase.</p> <p>4.' Same.' An administrator or executor is affected with notice of taxes levied against property of the estate in his custody, or against property of the decedent in his lifetime which has become property of the estate, and such claims need not be presented to the representative for allowance.</p> <p>ñ. Same. The executor or administrator is not affected with notice of unpaid taxes on property which the decedent conveyed in his lifetime, and in which he had no interest at the time of his death.</p> <p>6. Same — Presentation of Claims — Actions. Revised Statutes 1898, section 3851, provides that “all claims” against an estate “arising upon contracts . . . must be presented within the time limited in the notice.” Section 3S52 provides that every claim when presented to the executor or administrator must be supported’'by the affidavit of the claimant, that the amount is justly due, etc., and a copy of the instrument on which the claim is based must accompany it. Held, the commencement of a suit, the complaint in which contains substantially all the averments required for a regularly verified claim, to have a claim established and paid out of the general funds of the estate and the service of the complaint upon the executors within the time in which a claim could have been properly presented, operated as a presentation of the claim.</p> <p>7. Same — Necessity fob Presentation of Claims. Mere knowledge on the part of the executor or administrator of the existence of the debt or claim against the estate is not sufficient to -dispense with the necessity of presentation.</p> <p>8. Same- — Jurisdiction. The presentation of the claim to the executors is not jurisdictional to such an action.</p> <p>9. Same — Actions—-Defenses by Executors or Administrators. The defense that the claim is barred by the statute of limitations cannot be waived by the executor or administrator.1</p> <p>10. Same — Presentation of Claims — Actions—Costs. Where a suit is begun against executors without a presentation of the claim, and the executors find the claim to be just, and confess the demand within the time to appear and plead to the merits, there should be no judgment for costs, but, if issue is joined on the merits and plaintiff is required to prove his claim, costs should follow as though suit- had been brought on a rejected claim.</p> <p>11. Same — Actions—-Time to Sue. Where an action on a claim against an estate is brought against the executors within the time in which a claim could have been presented, but without a previous presentation of the claim, the action, at most, is only prematurely brought, which is merely ground for a plea in abatement but not for a plea in bar.</p> <p>12. Pleading — Plea in Abatement — Time to Plead — Waiver, of Right. Where a suit on a claim against the estate of a decedent was brought without a previous presentation of the claim and no plea of that fact either in abatement or in bar was made by defendants, but they pleaded to- the merits, on which issues the ease stood until too late for the presentation of the claim when the failure to present the claim was pleaded in bar of the action, such a plea was addressed to the merits, and, not being effectual at the commencement of the suit, could not be so later, under the rule, that a defendant having the right to plead matter in abatement must do so at the first opportunity and before or at'the time of pleading to the merits or it will be waived, nor can it be made available by a plea in bar.</p> <p>13. Executoks and Administb atoes — Actions — Judgment. Under Revised Statutes 1898, section 3862, providing “a judgment rendered against an executor or administrator upon any claim for ’ money against the estate of his testator . . . must be that the executor or administrator pay, in due course of administration, the amount ascertained to be due,” a judgment against executors on a claim against the estate is improperly entered against them personally.</p>

<p>1. CORPORATIONS — MEMBERS AND STOCKHOLDERS — INSPECTION OF CORPORATE Books and Records. Under section 329, Revised Statutes 1898, providing that the books of every corporation organized in this state shall at all reasonable hours be subject to the inspection of any bona fide stockholder of record, the right to make an inspection and examination of the books at reasonable times, by a stockholder, is an absolute, and not a qualified, right.</p> <p>2. Same. The fact that the right of a. stockholder to inspect the corporate records is sought tó be strictly enforced by section 4415, Pen. Code, providing that a refusal to allow a stockholder to inspect the books is a misdemeanor, emphasizes the existence of the right, rather than qualifying it.</p> <p>3. Same. The right of a stockholder to inspect the corporate books is qualified only, in that he must examine them at reasonable times, and shall not unnecessarily interfere with the corporation’s work.</p> <p>4. Mandamus' — Inspection of Corporate Books — Right of Stockholder — Enforcement—Presumptions. Where a stockholder demands an inspection of the corporate hooks from a bad motive, or at a time and in a manner which unnecessarily interferes with the corporate officers or their work, the exercise of the right will not be enforced by the court, but these objections are matters of defense, and not things the stockholder must negative in the first instance, nor will they he presumed because he selects an agent to make the inspection for him.</p> <p>5. CORPORATIONS-STOCKHOLDERS-INSPECTION OP CORPORATE BOOKS. The doctrine that an act which is not a mere personal privilege or which does not involve a personal trust may, as a general rule, he done through another, applies to the right of a stockholder to inspect corporate books.1</p> <p>6. Same. The business hours of a corporation are “reasonable hours” in which to inspect its books, within the meaning of section 329, Revised Statutes 1898, providing that the books of every corporation organized in this state shall at all reasonable hours be subject to the inspection of any bona fide stockholder of record.</p>

<p>Master and Servant — Injuries to Servant — Violation oe Instructions — Liability oe Master. That an engineer in charge of a donkey engine in a mine had no authority to vacate his post as engineer, or to permit another to operate the engine, and in so doing violated his contract of employment, and that the employee, who was incompetent, attempting to operate the engine, likewise violated his instructions, and did that which he was forbidden to do when he took charge thereof, does not relieve the employer from liability for injury to another employee due to such attempted operation of the engine; the test being not whether an employee was acting in accordance with the instructions given him, but whether he was performing a service in furtherance of the employer’s business.</p>

E. Booth, Judge. Action by A. B. Acord against A. L. Booth and others, members of the city council of Provo City, a.nd William K. Henry, marshal, for damages for exclusion from a session of the council while sitting as a committee of the whole. Judgment for plaintiff, and defendants appeal. •

A. Howell, Judge. Action by James J. Brummitt and others against tbe Ogden Waterworks Company and another. From a judgment for defendants, plaintiffs appeal. APPELLANT'S POINTS. The covenants on the part of the waterworks company being given in consideration of valuable privileges conferred, became the law applicable in the particular case and are just as binding as if they were enacted in the statutes or the constitution of this state.

L. Ritch-ie, Judge. Action by Emeline Spiking and others against the Consolidated Railway & Power Company and another. Judgment for plaintiffs, and defendants appeal. APPELLANT^ POINTS. To say, or to prove, that a man is ordinarily cautious and careful, constitutes no evidence whatever that at a particular time he was not negligent, because one may be ordinarily both cautious and prudent, and upon a' given occasion fail to be either.

Original application by L. P. Lnnd for a writ of certiorari against John E. Booth, judge of the Fourth judicial district court to review the proceedings of the district court in the ease of L. P. Lund against Ellen Ivers. APPELLANT^ POINTS. The court had no jurisdiction to make the orders complained of and its jurisdiction was not invoked by the bringing of any action to set aside the judgment of the justice.

<p>1. Habeas Cokpus — Nature of Proceeding — Civil ok Criminal. Habeas corpus proceedings are civil, and not criminal.</p> <p>2. Same — Special Proceedings. Habeas corpus belongs to what, under the Code, are termed “special proceedings.”</p> <p>3. Same — Appeal. Revised Statutes 1898, section 3627, provides that a party prosecuting a special proceeding may be known as plaintiff, and the adverse party as defendant. Section 3303 provides that any party to a judgment may appeal therefrom, and that the party appealing shall be known as appellant, and the adverse party as respondent. Held, that a proceeding in Habeas corpus being civil, the applicant is the plaintiff and the party who restrains the applicant is the defendant, and therefore an appeal by defendant is not an attempted appeal “by the state.</p> <p>4. Appeal and Bkkok — Decisions Reviewable — “Finality of Judgment.” The test of finality for the purpose of an appeal is not necessarily whether the whole .matter involved in the action is concluded, but whether the particular proceeding or action is terminated by the judgment.</p> <p>5. Habeas Corpus — Appear—Decisions Reviewable — Einaiity. In a habeas corpus proceeding, the judgment of the court which either remands or discharges the petitioner is a final judgment, notwithstanding the fact that another similar proceeding may he commenced hy the petitioner if he elects to do so.1</p> <p>6. Same — Effect—Stay of Proceeding. Without an express statutory provision to that effect, an appeal does not of its own force suspend the judgment in a habeas corpus proceeding.</p> <p>7. Same — Grounds for Reeeef. Where the common law is in force or under statutes which are in effeet merely declaratory of the common law, courts, on habeas corpus, may not extend the investigation beyond jurisdictional matters.</p> <p>8. Same — Review of Evidence. There is no statutory authority in this state whereby a court or judge on habeas corpus may review the evidence adduced before a magistrate in support of a criminal charge for the purpose of determining whether the evidence was either competent or sufficient to warrant the magistrate in holding the accused for trial to the district court and in committing him for that purpose.</p> <p>9. Same. If the accused should allege and offer to prove that the magistrate did not in fact hear any evidence in support of the charge, and the accused did not waive examination, and that the record showing the proceedings of the magistrate is false, then the court or judge in habeas corpus proceedings should hear the evidence in that regard; and, if it is found that there was no preliminary examination by the magistrate, the accused should be discharged.</p>

W. Maugban, Judge. Action by William Jones against John Blytbe. Judgment for plaintiff, and defendant appeals. APPELLANTS POINTS. It is well settled that in. this section of the country the' principle does not prevail that a man is bound to keep, his own stock confined within his own grounds, or else be liable for their trespasses upon the unenclosed grounds of his neighbors.

<p>1. Carriers — Eights or Hackmen on Depot Grounds — Constitutional Provisions. Constitution, art. 12, section 12, declaring all railroad and other transportation companies common carriers and subject to legislative control, and that sueb companies shall receive and transport each other’s passengers and freight without discrimination or unnecessary delay, even if applying to drivers of cabs, hacks, and express wagons, does not confer on such persons the right to enter on a railroad company’s depot grounds to solicit business, or prevent a railroad company inhibiting the soliciting of business on its grounds, except by one concern operating carriages.</p> <p>2. Same — Monopolies. It being conceded that a railroad company may exclude all persons from going on its depot grounds to solicit business, the granting by the railroad company to one concern operating carriages the exclusive privilege of soliciting business thereon gives others no right to do so, even if such exclusive privilege be void as creating a monopoly, and though the grantee thereof be not excluded.</p> <p>3. Same. /A railroad may, subject only to regulation by the state, in the'interest of the public, as to fares to be charged and service to be furnished, prohibit all but one carriage concern soliciting on its depot grounds the carriage therefrom of passengers and their baggage. /</p>

<p>1. Witnesses — Competency—Privileged Communications — Attorney and Client — Statutes. Under Revised Statutes 1898, section. 3414,. subd. 2, providing that an attorney cannot •without consent of his client be examined as to any communication made by the client to him or his advice given therein in the course of his professional employment, the privilege of excluding the attorney’s testimony is purely personal to the client as at common law, the statute being merely declaratory of the common law, and the fact that the common-law privilege was declared by statute did not extend the scope of its operation.</p> <p>2. Same — Communications to Physician. At common law, communications between physician and patient were not privileged, and the right of the patient to exclude testimony by the physician as to such communication rests upon statute.</p> <p>3. Same — Communications to Attorney — Instructions as to Win. In a contest between heirs and beneficiaries to declare testator’s will invalid because of undue influence and want of testamentary capacity, the attorney who prepared the will under the direction of deceased may be required to testify as to communications made to him by his client during .the preparation of the will which are relevant to the issues, including the contents of a former will which testator had made, and neither side can exclude such testimony under the rule making communications between attorney and client privileged, as that rule does not apply to will contests, on the ground of mental incapacity or undue influence.1</p> <p>4. Wills — Requisites and Validity — Undue Influence — Evidence —Admissibility—Dormer Will. In a contest between heirs and beneficiaries to have a will declared invalid on the ground of undue influence and want of testamentary capacity, evidence of the contents of a former will may be material on such issues and should be admitted unless it is clear beyond a reasonable doubt, under all the circumstances, that the changes in the latter will could not affect the result of the contest.</p> <p>6. Same. A testator not only has the legal right to make a will, but he may make as many wills as he chooses, and the mere fact that a change is made in a later will is not of itself evidence that testator was unduly influenced in making such change.</p> <p>6. Trial — Reception of Evidence — Offer of Proof — Evidence Partly Immaterial. While the exclusion of evidence is not erroneous where it appears from the offer that it was immaterial, offers of proof need not he made in all cases, and will not control in all cases when made, and, in a will contest, where questions were asked an attorney as to what testator said concerning his will when making it, which the witness refused to answer, the fact that the offer of proof included some immaterial matter did not exclude the proof of that which appeared material.</p>

<p>Appeal from District Court, Cache County; J. H. Howell, Presiding Judge.</p> <p>Action by W. H. Bentley against A. Brossard and others. Prom a judgment for a part of defendants, plaintiff appeals.</p>

<p>Waters and Water Courses — Appropriations—Dams—Injunction. Interference by defendants, prior appropriators of water, with the dam of plaintiffs, junior appropriators, by which water was diverted to plaintiffs’ lands for irrigation, held properly enjoined, the evidence sustaining findings that plaintiffs had not diverted any water to which defendants were entitled as prior appropriators, even if a prior decree was res judicata, or showing that, as the dam was allowed to be maintained, as much water would reach defendants’'land as though there were no dam.</p> <p>STRAUP, J., dissenting.</p>

L. Ritchie, Judge. Contempt proceedings by the North Ogden Irrigation Company against George A. Fuller and others for violation of the decree in the action of William Geddes and others against the North Ogden Irrigation Company and others. From a judgment of contempt, Fuller and others appeal.

<p>Telephones — Injuries from Maintenance — Negligence—Question for Jury. In an action against a telephone company for injuries to a traveler on a highway caused hy his horse coming in contact with a broken wire in the highway, evidence held, to authorize a finding of actionable negligence.</p>

. Appeah from District Court, Second District; J. A. Howell, Judge. Action by Richard Duerden against James Solomon and others. From a judgment for plaintiff, defendants appeal. APPELLANT^ POINTS. “To support a finding that a deed absolute on its face was intended as a mortgage only, tbe evidence must be clear, convincing, and satisfactory, and of such a character as will leave in mind of the chancellor no hesitation or substantial doubt.

<p>Mortgages — Absolute Deed as Mortgage — Evidence — Sueeicienct. Evidence held to support a finding that a deed absolute in form is a mortgage.</p>

L. Ritch-ie, Judge. Action by Harlan Loofbourow against the Utah Light & Railway Company. Judgment for plaintiff, and defendant appeals.

D. Lewis, Judge. Action by A. H. Outright against the Union Savings & Investment Company. Judgment for defendant, and plaintiff appeals. appellant's points.

<p>1. Cbiminai, Law — Evidence—Admissions—Mabklage. In a prosecution for adultery, a deed signed and acknowledged by defendant and a woman as husband and wife is admissible as an admission by defendant that the woman was his wife.</p> <p>2. Same — Trial—Evidence Admissible eor Special Purpose. Where' evidence in a criminal prosecution is competent for certain purposes, but is admitted generally, the remedy of the party objecting to its admission is to ask for instructions limiting it to the purposes for which it is admissible.1</p> <p>. 3. Same — Trial—Instructions—Sufeiciencv oe Evidence, ii is error for the court to give an instruction which expresses his opinion as to the weight of the evidence on a controverted question of fact.</p> <p>4. Same. In a prosecution for adultery, in which the evidence that defendant was a married man consisted entirely of his admissions that the woman he lived with was his wife and their reputation in the community. The court during the progress of the trial remarked in the presence and hearing of the jury that a man should not be permitted to live in a community for years with a woman as his wife, holding her out to be so, and then because the state cannot produce direct evidence of the marriage ceremony, go scot free. Held, an expression of opinion on the weight of evidence and prejudicial error.</p>

<p>1. Pleadings — Construction—Statutes. Eevised Statutes 1898, section 2986, providing that pleadings shall be construed liberally with a view to substantial justice between the parties, is ineffective to cure a defect in the complaint which is insufficient for failure to allege an indebtedness.1</p> <p>2. Same — Allegation of Indebtedness — Legal Conclusions. A complaint alleging that on a specified date defendant was indebted to plaintiff in the sum of $6,009.20 was an allegation of a mere legal conclusion, and was insufficient without a further statement of the material facts from which the indebtedness arose.</p> <p>3. Same. An allegation that a certain sum is now due and owing from defendant to plaintiff is ineffective as an allegation of an indebtedness, unless preceded by a statement of the facts out of which the indebtedness arose showing a promise and consideration therefor.</p> <p>4. Mortgages — Deed as Mortgage — Foreclosure—Merger or Debt— Complaint. Where a complaint alleged that a deed sought to be foreclosed as a mortgage was given to secure an antecedent indebtedness, the debt was not merged in the mortgage, and hence a reference in the complaint to the deed and an option agreement to reconvey attached as an exhibit was insufficient to obviate the necessity of a,n allegation in the complaint of an existing indebtedness from defendant to plaintiff.</p> <p>'5. Same — Foreclosure—Personal Judgment. In an action to foreclose a mortgage given to secure a debt or obligation, it must be made to appear by proper averments that there is an existing obligation to pay, precisely tlie same as though the action were instituted to obtain a personal judgment merely since, where there is no right to a personal judgment in case the mortgage is given as security for- money only, there can be no right to foreclosure or to subject the property to the payment of the debt until the right to a judgment at law is made to appear from the complaint.</p> <p>6. PleadiNg — Cubing Defects bv Answek. If there is a defect of substance in a complaint by reason of which no cause of action is stated, and the, answer supplies such defect, the defendant may not avail himself thereof after verdict and judgment, under Revised Statutes 1898, section 2965, providing that the pleading over to any action after the overruling of a demurrer shall not be deemed or considered a waiver of the demurrer.</p> <p>7. Judgment — Suppokt in Pleadings. Whether a judgment is supported by the pleadings depends, not on the allegations of the complaint alone, but on a reasonable construction of all the pleadings considered together.</p> <p>8. Pleading — Defective Complaint — Effect of Answer. Where a complaint to foreclose a deed as a mortgage alleged that the deed was given to secure payment to plaintiff of $6,009.20, and prayed judgment for $7,491.59, with interest, etc., but failed to allege an “existing” indebtedness by defendant to plaintiff, such defect was' not cured by a general denial followed by an admission that the deed was given as security for an indebtedness then, existing by defendant to plaintiff, not exceeding $4,000; such allegation not being an admission of any indebtedness at the time suit was brought.</p> <p>9. Móbtgages — E&beclosube—Pleadings. Where a complaint to foreclose a deed as a mortgage sought to enforce the same as security for defendant’s payment to plaintiff of $7,491.59 and interest, but the complaint failed to allege an existing indebtedness, and the answer contained an admission that the deed was given to secure a debt amounting to only $4,600, the pleadings were insufficient to sustain a judgment for plaintiff for $8,292.69, though the answer be regarded as curing the defect in the complaint to the extent of the amount defendant admitted the deed was given to secure.</p>