Volume 34 — South Dakota Reports

Hon. JOHN F. Hugi-dís, Judge. Action by the Missouri River Transportation Company against the Minneapolis & St. Louis Railway -Company, for recovery for conversion' of property by defendant as'bailee. From a judgment for plain-tiff, and from an order denying a new trial, defendant appeals. The complaint under which the case was tried, stated a cause of action for the recovery of specific -personal property.

Original proceeding by prohibition, by the State, on the relation of the Bots-ford Lumber Compan)'1, a corporation, against Ai-wa It.

<p>Appeal from Circuit Court, -Pennington County. Hon. Lkvi. MeGiviv, Judge.</p> <p>Action by.Henry Musekamp against James E. Riley and another, to 'recover personalty. From a judgment for plaintifí, and from; an order denying a, new trial, defendants' appeal.</p> <p>In the sheriff’s answer herein, no justification is claimed under the attachment but only under the execution issued upon the judgment in the Riley-Potter suit.</p>

Hon. Robert B. Teipp, Judge. Action by Thomas O’Gorman, trustee, and others against John L. Jolley, administrator, (intervenor), and others, to recover upon a certificate of deposit. From a judgment for defendants, -and -from -an order denying a. new trial, plaintiffs appeal. A bank deposit may be the subject of a gift, and delivery of the certificate of deposit is sufficient to^ pass the title to the money. 20 Cyc. 1,238; 1244.

Hon. Alva E. Taylor, .Judge. Action by Melvin Grigsby against Gustav P. Verch, to quiet title to realty. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. Respondent claims -under a warranty deed and cannot set up estoppel as a defense. Goes v. Herman, 20 N. D.; 127 N. W.; Gjerstadengen v. Hartzell, 9 N. D., 268; 83 N. W. 231. No laches or estoppel lias been shown which would bar the title of Day and his grantee the appellant.

Appeal' from Circuit Court, Yankton County. Hbn. Robert B. Tripp, Judge. Election contest by Robert J. Gordon against Edwin T. White and others, to determine the validity ■ of an election upon question of sale of intoxicating liquors.

ITon. Joseph W. Jones, Judge. Action by the South Dakota Commercial Association, a corporation, against W. H. Ramsey, to recover a money judgment against defendant as a noo-resident. From an order quashing service of summons, plaintiff appeals. If a non-resident has no» property within the state, there is nothing -upon which the tribunals can ■ adjudicate. Pennoyer v. Neff, 95 U. S. 714.

Hon. John F. Hughes, Judge. Action by Ulrick P. Solberg and another against Frank P. Robinson, as administrator of Charles 'C. Robinson, -deceased, and others, for brfeach of ■wlarran-ty of title to realty. From a judgment for -plaintiffs, 'and from an order -denying -a new trial, the defendant named appeals.

H'on. Cari, G. SiiAwooD, Judge. Proceedings under petition by A. H, Cole and others against the City of Watertown, for the exclusion of certain territory from the city limits of that city. From a judgment excluding a portion of the 'territory described in the petition, and from an order 'denying a new trial, the city appeals. The Court was without jurisdiction to grant the petition in part 'and deny the same in part. Sections 1509 to 15x3, inclusive, Political Code.

Hon. Wxuuiam G. Rice, Judge. The defendant, John T. Beard, was convicted of larceny, and he appeals. No testimony whatever was offered iby the State, showing knowledge of the whereabouts of ithe horse after October, 1912. Something like five months elapsed after the horse was in the possession of Harold Sheldon until he was found in the possession of the defendant.

Hon. Alva E-Taylor, Judge. Action by Jacob Sollcim against the Norbedc & Nicholson Company, to recover for personal injuries. From a judgment for defendant upon a directed verdict, and from an order denying a new trial, plaintiff appeals. There was sufficient evidence introduced by plaintiff at the trial to warrant the submission of the cause to the jury.

Hon. -CaRI, G. Si-uiRWOOD, Judge. Action iby the Culhane Adjustment Company against John D. Farrand, upon a judgment. From an order Vacating an' attachment, defendant appeals. There is a distinction between “residence” andi “domicile,” and even the word “residence” depends upon the statute ‘in or the purpose for which it is used. One may 'have a residence in one state and a domicile in another.

Hon. Wiujam Williamson, Judge. Action by Clara Hieying against George Roane, for conversion of a horse. From a judgment for defendant, and from ■an order denying a new trial, plaintiff appeals. There is no evidence that any other person than plaintiff owns the property. There is no evidence that plaintiff made any representations to defendant, nor that she remained silent at any time he was present when it was her duty to speak.

Hon. Wieeiam G. Rice, Judge. John T. White, the defendant, was convicted of keeping articles used for gambling, and' he appeals.

Hon. Ikvxn H. Mybes, 'Judge- Action by J. E. Kennel against the Atlas Elevator Company, for conversion of flax. From an order overruling a demurrer to the complaint, the defendant appeals. Tn an action, for conversion, ithe complaint must allege -ownership or possession of the property in plaintiff, at the time of the conversion. Jones v. Winsor, 22 S. D. 480, and cases cited; 38 Cyc. 2068, and cases cited.

Hon. Robert B. Tripp, Judge. Action on aj judgment by the C. Shenkberg Company against Maggie Maloy. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. The'court erred in finding that plaintiff recovered a judgment in an action wherein ithe defendant herein was defendant; there was no evidence that this defendant was the defendant in said action. There was no evidence that Maggie Maloy ever promised to pay said judgment.

Hon. Joseph W. Jokes, Judge. Action by E. Ml Sbotw-e-11 against the Sio-ux Falls Savings Bank, to recover for part of the -proceeds of sale of plaintiff’s grain -deposited in a grain elevator and sold -by the operator, draft for which proceeds had been deposited in defendant bank in the name of the operator. From a judgment for defendant, and from an order denying- a new trial, plaintiff appeals.

Original action in the Supreme Court by A. E. Hitchcock against the State of South Dakota, to recover for alleged expenses of attending a meeting of the State Board of Regents of Education. Upon demurrer ¡to the ‘Complaint. The complaint shows that plaintiff traveled to Huron on the evening of September 9th, and that he remained in the City of Huron for two days, from the evening of September 9th to the evening of September nth.

Appeal f-rom Circuit Court, Brookings- County. Hon. Cari, G. Sherwood, Judge. Final accounting by Ole C. Hjavsgord, as administrator of the estate of Martin C. Havsgord, deceased, in which Erick Sv-erson, claiming as heir, appeals f-rom -an order of distribution. Under the provisions of section 136, Revised Civ.

Appeal f-rom ■Circuit Court, Tripp County. Hon. William WILLIAMSON, Judge. Action by E.. L- Barnum and -another, as co-partners, against the Chamberlain- Land and Loan Company, to recover a commission on a land sale. From a judgment for defendant entered upon a directed verdict, plaintiffs appeal. No exception to the direction of the verdict was taken, and error in the charge of the count cannot be considered in the absence of an exception.

lion. Joseph H. Bottom, Judge. Action by A. -C. Sprowls- against A. PI. Sprowls and others, to be subrogated- to a co-tenancy interest -in realty, and to- a corresponding interest in a note secured on the common interest of plaintiff and his -co-tenant of the realty, a judgment for the amount of which note had- been satisfied by sale of plaintiff’s interest in the realty. From a judgment granting plaintiff insufficient relief, he appeals.

<p>1. Sales — Exchange of Safos — Acceptance of Injured Safe by Agent— Knowledge of Injury — Directed Verdict.</p> <p>Where a vendor agreed to accept an old safe in part payment for a new one, the act of its agent, who did not know nf an injury to the old safe occurring after the sale contract was made, in giving buyer directions where to ship it, was not an acceptance of the safe in its injured condition, and did not relieve buyer of duty of tendering the safe in the same condition as it was at time 'of contract; and a verdict was properly directed for vendor.</p> <p>2. Sales — Action for Price — Old Safe as Agent’s Commission — Party in Interest.</p> <p>Where a vendor, which.agreed to accept an old safe in part payment for a new one, also agreed to turn over the old safe to its agents as a commission, and the old 'safe was injured before received by vendor, thus entitling vendor to payment of entire purchase price, held, that the vendor’s right to recover cannot be defeated on ground that it was not the real party in interest.</p>

Hon. Clay Carpenter, Judge. Action by Abraham. Slimmer and Lane J. Thomas, co-partners as Slimmer & Tilomas, against the Meade County Bank, in claim and delivery to recover alleged’ mortgaged property. From a judgment for defendant, and from an order denying a new trial, plaintiffs appeal. (i.) Under point one in the opinion, Appellants cited: First Nat.

Hon. Joseph W. JoNks, Judge. Action by F. T. Jackson against the Chicago & Northwestern Railway Company for injuries to livestock shipped over defendant railway. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Hon. Levi McGee, Judge. Action by James B. Barnes against the Hill City Lumber Company, to recover money under a written contract. From a judgment'for defendant, and from an order denying a new trial, plaintiff appeals. (3) Under point three of the opinion, Appellant cited: Section 1287, Civil Code; Manufacturing Co. v. Galloway, 5 S. D. 205; Barton v. Roon, 20 S. D, 7.

Hon Feanic McNulty, Judge. Application for ,a writ of mandamus, by John H. Streich against the Board of Education of the Independent School District of the City of Aberdeen, in the County of Brown, State of South Dakota, and another. From an order refusing a peremptory writ, the petitioner appeals.

Hon. Chas. X. Suward, Judge. Consolidated actions by Hauff & Stormo, copartners, and bv Andrew B. Stormo, individually, against the South Dakota Cen-ti al Railway Company, to recover for damages from an injury to . an automobile, and for personal injuries. From judgments for plaintiffs, and from an order denying a new trial, defendant appeals. (2) Under point two in the opinion, Appellants submitted: That Stormo was guilty of contributory negligence. And cited: N. 1’. Ry.

Hon. Carl G.. Sherwood, Judge. Action by Guilder Inlagen against the Town of Gary, a. municipal corporation, for damages for personal injury caused by a defective sidewalk. From, a judgment for plaintiff, and from an • order denying a new trial, defendant appeals. (1) .Under .point one of the opinion, Respondent cited: Brewster v. Miller, 141 Ni W. 778; Sanford v. H-elgerson, 141 N. W. 390; Todd v. Berger, 141 N. W. 515; State v. Doran, 134 N. W. '53.

Hon-. Frank Mc-Nurty, Judge. Action iby Olaf Arneson against E. A. Nerger, for -conversion' of corporate stock. -From a judgment for plaintiff, and from ' an order denying a new trial, defendant appeals. (i) Under point one of -the opinion, Appellant cited: 31 Cyc. P'age-s 507-8; Hlolyke v. Adams, 59 N. Y. 233; Dusty v. Dancing, 3 N. Y. St. 699. Respondent cited: Munier v. Zachery, 138 Iowa, 219; 16 Am. !& Eng. Ann. Cases, 526; Donley v. Gladiator Co., 134 Io-wa, 468.

Hon. Frank McNulty, Judge. Action by Sena Oswood against Perry Kruidinier, for damages for seduction under promise of marriage. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Appellant submitted that: The actual settlement depends upon •the averments of the complaint in the former case which was settled, and these must be proved by evidence.

Hon. Joski’ii H. BoTTum, Judge. • , Action 'by Mrs. George W. Jolley against Archie Dunlop, for conversion of grain. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. (i) Under point one of the opinion, Appellant cited: Lowremore v. Berry, 19 Ala. 130; 54 American Decisions, p. 188; Jeffries v. Great Western Ry.

Circuit Court, Beadle -County. Hon. Alva E. Tayuok, Judge. Information ¡by the State, on the -relation -of Frank -C. Kron-schnabel, against John Isenhuth and another, for the removal of the other defendant, Celeste Isenhuth, from, his custody arid her surrender to an incorporated society for securing homes for destitute children. Prom a judgment for plaintiff, and from an order refusing to grant a rehearing, the defendant Kronschnabel appeals.

Hon. Joseph W. Jones, Judge. Action by August Halseth against the South Dakota Central Railway Company, to recover damages for hogs killed by defendant’s -train'. From 'a judgment for plaintiff, -defendant appeals. (1) Under point one of the opinion, Appellant submitted that: There is' no evidence that the bo-gs killed belonged to- the plaintiff.

Hon. William WilliamsoN, Judge. Action by Fmra Watt against John Aylward- and another, to set -aside an alleged fraudulent conveyance of land. From a judgment for plaintiff, and from an order -denying a new trial, -defendants appeal. (1) Under point one of -the opinion, Appellants submitted that: There is no evidence to show either fraudulent intent on part of vendor, or vendee’s knowledge of such- intent if ini fact it existed.

Iilon. Card G. Sherwood, Judge. Action by -the .National Bank of WEeaton,. Minn., against G. W. Myers, upon a promissory note assigned to plaintiff. From a judgment for defendant, and from an order denying a new trial,, plaintiff appeals. Appellant cited.: Laws 1909, Oh. 222, Sec. 32; Oh. 27, Laws 1891, Sec. 19; ■Oh. 79, Laws 1903, Sec. 21; Nicollet Nat. Bank of Minneapolis v. City Bank, 35, N. W. 577. Respondent cited: Sec. 32, Oh. 222, Laws 1909.

Court, Beadle County. Hon. Alva E. Taylor, Judge. Action by D'avid 'S. Wilson agalinst Melvin Grigsby and another, to quiet .title. From a. judgment for plaintiff, and from: an order denying1 a new. trial, defendants appeal. Appellants submitted:. No' estoppel has been shown which would bar the. title of Day and .'his grantee, the appellant. And cited: . . . .......

Hon. Chas. X. SS-ward, Ju-dge. Action by Th-omas H. Davis, as receiver of the Blue Bell Medicine Company, against Harry Woolsey an-d others, -to recover upon an ag'ency sale contract. From a judgment for defendants, plaintiff appeals.

Hon. William Williamson, Judge. Action by Joe Kirby against Leon Drapeau, for a money judgment and to establish a lien -in -plaintiff’s favor against certain realty. From an order discharging- an-d -cancelling a notice o-f lis pendens filed by h-im in- said action, p-l-aintiff appeals. On, motion to dismiss appeal.

Appeal -from Circuit Court, Brown County. Hon. Carr G. Sherwood, Judge. Action 'by 'Sarah R. Korte and another against Laura M. O’Neill and others, for 'reformation of a written agreement for conveyance of realty, and for specific performance of s-uch covenants. From a decree in favor of plaintiffs, and from an order denying a new trial, defendants appeal. (1) Under point one of the opinion, Appellants cited: 2 Kent, 511, 12th Ed.; Hamilton v. Ogee, 62 Pac. 710; 4 Am. & Eng.

Hon. William WilliamsoN, Judge. Mandamus by the State of South- -Dakota, on the relation of David R-earick, against the Board o-f County Commissioners -of Lyman County an-d others, to compel said board to- a-dmi-t relator to the office of county commissioner. From' a judgment for plaintiff, and from an order denying a new trial, defendants appeal. Mandamus is not the proper remedy.

Hon. Wil-uiam G. Rice, Judge. . Action by the Black Hills Brewing Company against the Middle West Fire Insurance Company, to recover, as assignee, on a chose in action alleged to have been purchased under execution, against defendant’s creditors. On plaintiff-respondent’s application to have the original record returned below for correction, and for a rehearing.

Hon. FRANK Mc-Nulty, Judge. Action by A. B. Holbart, as indorsee, against Martin Laurit-son and others, upon a promissory note. From a judgment for defendants, and from an order denying a new trial, plaintiff appeals.

Hon. Alva E. Taylor, Judge. Petition of William Hoffert for bis discharge upon habeas corpus, he having been arrested for alleged violation of the automobile license law of this State. From a judgment denying- relief and remanding petitioner to custody, he appeals. (1) Under point one of the opinion, Appellant 'submitted that: The automobiles are taxed as property. To impose any further taxation by way of license is to impose a double tax on these -vehicles.

Hon. Franic B. Smith, Judge. Action by Jorg'en Jorgenson against C. D. Tidrick and others. From a judgment for defendants, and from an order denying a new trial, plaintiff appeals.

<p>Appeal from Circuit Court, Beadle County. Hon. Auva E. Tayror, Judge.</p> <p>Action, by U.- G. Bridenbaugh against C. A. McElrath. From a judgment for plaintiff, defendant appeals.</p>

Hon. William Williamson, Judge. Action by Joe Kirby against Mary Sully, Winnie N. Keller, and others, to recover for legal services rendered. From an order directing the discharge and- -cancellation of record of a notice of lis pendens, plaintiff appeals.

<p>Appeal — Dismissal of Appeal — Appealable Order.</p> <p>An order directing the discharge and cancellation of record of a notice of lis pendens, is not appealable; following Kirby v.. Drapeau, 34 S. D. 239, 147 N. W. 982.</p> <p>Smith, P. J., and McCoy, J., not sitting.</p>

Hon. Wiiaiam . W iuuiam So N,. Judge. Action by Joe Kirby against Leon Dirapeau and others. Erom an order directing the discharge and cancellation of record of a notice of lis pendens, plaintiff appeals.

<p>Appeal — Prosecution of Appeal — Brief—Affirmance.</p> <p>Appellants being in default in filing briefs, and no extension of time having been applied for by stipulation -or order, the appeal will he deemed abandoned, and the order appealed from affirmed.</p>

<p>‘ Action by Joe Kirby against Mary Sully .and others. From an order discharging and cancelling of record a notice of lis pendens, plaintiff appeals.</p>

Hon. Carl G. Sherwood, Judge. The 'defendant,' Joe Kirby, was convicted of the offense of hunting game -birds without a license, and he appeals. (4) Under .point four of tire opinion, Appellant cited: 1 JJish. New Cr. Proc., Secs. 636-642; State v. Turnbu-ll, 6 Atl. (Me.) 1; Burke v. State, 52 Ind. 522; Comm. v. Maxwell, 2 Pick. (Mass.) 139; Hirn v. State, 1 Ohio St. 15-23; Gee Wo- v. State, 54 N. W. (Nebr.) 513; State v. Trefet'hern, 8 Atl.

Hon. Lijvi. McGkk, Judge. Action by the People’s National Bank against Pat Boyles and another, upon a promissory note; in which the Cable Transfer Company and another were summoned as garnishees. From a judgment dismissing the garnishee proceeding-, and from an order •denying a new trial, plaintiff appeals. Appellant cited: •Lindley v. Miller, 67 Ill. 244; Griffin, v. Maxwell, 23 Ill. Appeals, 405; Alder v. Yeoman, 29 Ill.

Hon. Frank Mc-Nulty, Judge. Action :by Arthur W. Barker against F. S. Coats, to. recover for fraudulent representations in an exchange- of lands. From a judgment for defendant, and from an order denying a new1 trial, ■plaintiff appeals. Appellant cited: Thompson -on Trials (2nd Ed.), Sec. 2315, -note 42; Co-mpt-oir D’Es-compte De Paris v. Dresbach, 20 Pac. (Cal.) 28-33; Calkins’ Estate v. -Calkins, 44 Pac.

<p>Appeal from Circuit Court, Roberts County. Hon. FRANK McNulty, Judge.</p> <p>Action -by Moses- Bickford against Mary E. 'Cooley, to recover for breach -of a contract of lease of land, in which W. E. Bickford was substituted- as party plaintiff. From, a judgment for -plaintiff, defendant appeals.</p> <p>(1) Under point one of the opinion, Respondent -cited:</p> <p>Vo-1. 20 '¡A. & E. Ency. (2nd Ed.) P. & P. p. 1034; Sykes v. Beck, 12 N. D. 242; 20 A. & E. Ency. -of P. & P. ,p. 1048.'</p> <p>(2) Under point two of the opinion, Appellant cited-:</p> <p>C. C. P., Section 81; 17 A. & E. E. E. 556; Snyder v. Philips, 66 Iowa, 481, 24 N! W. 6.</p>

Appeal -from Circuit Court, -Codington County. Hon. Ciias. X. SiiwARD, Judge. Action by D. L. Keyes against the Blue Bell Medicine Company and others. From a judgment for defendants, and from- an order denying a new- trial, plaintiff appeals. (i) Under point one of the opinion, Appellant cited: Park v. Kri-bs, 6o S. W. 904 (Tex.) ; Day.ton v. Monroe, 10 N. W. 196 (Mich.); Duffield v. Iron Works, 31 N. W. 310 (Mich.); Higgins v. -Crouse,'42 N. E. 6 (N. Y.).

Hon. Levi McGee, Judge. Action by Thomas Sweeney against Tom Plew-ett, as Sheriff of Pennington County, and another, to cancel a judgment entered against plaintiff, and to enjoin enforcement of an execution thereunder. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal.

Hon. Leve McGEE, Judge. Action .by Margaret Appel again-st the 'Chicago-, Milwaukee & St. Paul Railway Company, to -recover -dam-ages for interference with plaintiffs residence property by reason of the operation of -defendant railroad in the street in front thereof. -From a judgment for defendant, and from an- order -denying a new trial, plaintiff appeals.

Hon. ERANK B. Smith, Judge. Action by Thomas Kirkus. against George B. Bender, im-pleaded with another, to recover for price of breaking land. From a judgment for plaintiff, and from an order denying- a new trial, defendants appeal. Appellants cited: Oiv. Code, Sec. 1661.

Hon. Robert B. Tripp, Judge. Action by J. R. Dlunlap against the Great Northern Railway Company, to recover damages for injury to apples during- shipment. Verdict for defendant, and it appeals from' an order granting plaintiff a new trial. (1) Under point one of the opinion, Appellant cited: Shéble v. Oregon R. & Nav. Co-. (Wash.), 98 .Pac. 745; Elliott on Railroads, 2nd Ed. § 1450; Ency. of Ev., 907, and cases' cited.

Hon. Joseph W. JONES, Judge. Action by J. F. Malloy against the Chicago, Milwaukee & St. Paul Railway Company, for damages for malicious prosecution. From a judgment for defendant upon a directed verdict, and from an order denying a new trial, plaintiff appeals.

Hon. Ai,va E. TayloR, Judge. Action by John S. Iiepner against 'Grant Wheatley, to recover for goods furnished by plaintiff to defendant’s sons, but sold to defendant. Judgment for plaintiff, and from an order denying defendant’s motion for a new trial, lie appeals. (2) Under point two of the opinion, Appellant cited: Abbott’s Civil Trial Brief, p. 749; Carrer v. Detroit Company, 43 N. W. 370 (Mich.).' Respondent cited: Atlas Lumber & Coal Co. v. Flint,- 20 S. D. 118.

Hon. RobijrT, B. Tripp, Judge. Action by the Southern Commission Company against John H. Wier, to recover for an alleged interest in land. From a judgment for defendant upon a directed' verdict, and from an order denying a new trial, plaintiff appeals. (1) Under, point one of the opinion, appellant cited: Code Civ. Pfoc., Sec. 150; Murphy v. Plankinton Bank, (S. D.) et al., 100 N. W. 614; Weatherer v. Herron, (S. D.) 132 N. W. 232; Ward v. Yorba, 45 Pac. 80 (Cal.).

Hon. William G. Rios, Judge. Action (by 'Meade County against James K. Welch, as admin-' istrator of the estate of Nezor La Flamme, deceased, and others,' to recover by way of reimbursement for moneys paid to the State for support of decedent, in his lifetime, as an insane patient. From a judgment for defendants, -and from an order denying a new trial, plaintiff appeals.

Hon. Eevi Mc-GEE, Judge. Action by Ernest Schleuning against Samuel M. West and another, upon a re-delivery bond in replevin, for value of personalty involved in the original suit. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. (2) Under point two of the opinion, Appellants cited: Leeper et al. v. First National Bank (Okla.)- no Pac. 655, 29 L. R. A. (Ni. S.) 747; Am. & Eng. Ann.

Hon. Joseph H. Bottum, Judge. Action by the Citizens’ Trust & Savings Bank against E. E. Empey and others, upon a promissory note of which plaintiff was transferree. From a judgment in favor of Catherine B. Empey, but in favor of plaintiff as against the other defendants, and from an order denying -plaintiff’s motion for a new trial, it appeals. (2) Under point two of the opinion, Appellant cited: Civ.

Hon. Joseph W. ■JONES, Judge. Action by W. H. Crisp and another against H. R. G.ochnour, in which a default judgment was rendered. From an order refusing to quash service of the summons and complaint, defendant appeals. (1) Under point one of the opinion, Appellant cited: Civ. Code, Sec. • 2458; Laws 1907, Ch. 181; Gladwin v. Lewis, 6 Conn. 49, 16 Am. Dec. 33; Leonosio v. Bartilino, 7 S. D. 93. . Respondents cited: Civ. Code, Secs'. 2458, 2460; Laws 1907, Ch. 181; Pen.

Hon. William G. Rice, Judge. Action by Huella M. Henry against the Meade County Bank of Sturgis, S. D., to have cancelled and set aside a mcrtg'age, and the foreclosure thereof, upon an alleged homestead, and for other relief. From a judgment for defendant, and from an order denying a new trial, plaintiff- appeals.

Hon. 'Carl G. Sherwood, Judge. Action by Conrad Kohlhase against the Wallace Farmers’ Elevator Company,, to recover for the value of grain stored in a warehouse. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. (i) Under point one of the opinion, Appellant cited: Pol. Code, Sec. 485; Watkins v. Peck, 40 Am. Dec. 158; Lincoln v. Wright, 62 Am. Dec. 318; DleVoss v. City of Richmond, 98 Am. D'ec. 651; Sec. 2452, Civ. Code.

Hon. CaRR G. Si-niRWioO'D, Judge. Action by the Public Opinion Publishing Company against A. W. Ransom,'to recover damages for violation of a contract of sale of good will of a printing and publishing -business. From an order overruling a demurrer to the complaint, defendant appeals. (1) Under point one of the opinion, Appellant cited: Bowers v. Whittle, 63 NL Y. 147, 56 Am.

Hon. Joseph H. Bottom, Judge. Action 'by the Central Lumber Company, a corporation, against Hienry Braun, the Loyalton State Bank and another, to- recover for building material and for foreclosure of a mechanic’s lien. From an order setting aside a default judgment and permitting the two last-named defendants. to come in and defend, plaintiff appeals. (1) Under point one of the opinion, Appellant cited; Black on Judgments (2nd Ed.) Sec. 325; Denton v. Noyes (N. Y.) 5 Am.

Hon. Joseph W. Jones, Judge. Action by Jesse A. Neilson against Ira J. Edwards, to recover damages for deceit in sale of land. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Hon. Alva E. Taylor, Judge. Action by the Incorporated Town of Wessington against Frank E- Matejka, to restrain defendant’s continuance of the sale of intoxicating liquor on the west side of Wessington Avenue. From a judgment for defendant, plaintiff appeals. Appellant cited: Pol. Code, Sec. 1546; Town of Britton v. Guy et al., 17 S. D. 588; Pol.

Hon. JosErxx W. Jones, Judge. Action by P. S. Gordon against A. R. Churchill, to recover a balance claimed to be due plaintiff upon a sale of land; defendant' counterclaiming. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (i) Under point one of the opinion, Appellant cited: Anson on Contracts, 13, 14, 22, 23.

Hon. Wiuuiam Wimjamson, Judge. Action by the Lamro State Bank against the Farmers’ State Bank of Winner and the Public Examiner, plaintiff 'claiming a preference. From a judgment for defendant, plaintiff appeals. (2) Under point two of the opinion, Appellant cited: Whitcomb v. Carpenter (Iowa) 10 L. R. A. (N. S'.) 928; Widman v. Kellogg (N. D.) 133 N. W. 1020; Brown v. Sheldon ■State Bank, 117 N. W. 289.

Hon. William; Williamson, Judge. Action by James E. Gray against the .Western Townsite Company, a corporation, to recover the value of a building placed upon -defendant’s lot under a contract of purchase. Erom a judgment for plaintiff, and .from an order denying a new trial, defendant appeals. (1) Under point one of the opinion, Appellant cited: Civ.

Hon. Irvin H. Myers, Judge. Action by Mabel C. Poulson against Henry W. Markus, upon a promissory note; defendant counterclaiming, and for specific performance, etc. From an order sustaining a demurrer to the answer, defendant appeals.

Circuit Court, Codington County. Hon. Cari, G. Sherwood, Judge. Action by the Minnesota-, Dakota. & Pacific Railway Company against Thomas Way and others, to recover a money judgment under a contract between plaintiff and the defendant Thomas Way, and upon a collateral contract -between defendant Thomas Way and other defendants, and the 'plaintiff, to secure performance of the principal contract; and for other relief.

Hon. .Wirriam G. Ric®, Judge. Action by James Henderson, sometimes known as James Cushing, against Robert W. Goforth and others, to quiet title in plaintiff, to water rights, as against defendants. From a judgment in favor of defendants, and from, an order denying a new trial, plaintiff appeals. (2) Under point two of the opinion, Respondents cited: Wutchumna Water Co. v. Ragle (Cal.) 84 Pac. 162-166.

Hon. Guorg© W. CraND, Judge. Action by Ered Larson against W. P. Seguin, to recover the amount paid by plaintiff upon a promissory note alleged to have been delivered conditionally, and to have been transferred to an innocent purchaser, etc. From a judgment for plaintiff, -and from an order denying a new trial, defendant appeals. (i) Under point one of the opinion, Appellant cited: 20 Cyc. 13; 14 Am. & Eng. Ency. of Raw 20 (2d Ed.).

Hon. Levi McGee, Judge. Action by Frank M. Kennedy against the First State Bank of Wall, S. D., a corporation, to recover the amount of an alleged deposit in defendant’s bank, and certain commissions, and other moneys expended for defendant’s benefit, etc. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (i) Under point one of the opinion, Appellant submitted: Plaintiff’s evidence stands alone with no' corroboration.

<p>Appeal from Circuit Court, Jerauld County. Hlon. FRANK B. Smith, Judge.</p> <p>Action by D. J. Donahoe against H. A. Adebar, Gustav A. Adebar, and others. From a judgment for -Plaintiff, the Defendants named appeal.</p>

Hon. Joseph W. JONES, Judge. Action by George W. Egan against Alice E. Burnight, to recover upon an express contract for legal services. From a judgment for Plaintiff, and from an order denying a new trial, Defendant áppeals.

<p>On petition for rehearing.</p>

<p>Appeal from Circuit Court, Dawrence County. Hon. Jamks McNBNNY, Judge.</p> <p>Action by Anna C. Daugherty against Robert L. Daugherty, for divorce. From a judgment in favor of the Defendant, Plaintiff appeals.</p>

Hon. FRANK McNulty, Judge. Action by the Minnesota Threshing Machine Company against Roberts County, to recover the amount of personalty taxes paid by it as mortgagee, upon certain threshing machines. From a judgment for Defendant, and from an order denying a new trial, Plaintiff appeals. (1) Under point one of the opinion, Appellant cited: Secs. 2042, 2057, Rev. Civ.

Hon. -Cari, G. Sherwood, Judge. The defendants, W. H. Parks and another, were convicted of larceny, and appealed. (i) Under point one of the opinion, Appellant cited: Sec. 408, Code Crirri. Proc.; People v.'Marquis, 15 Cal. 38; People v. Coch, 53 Cal. 627; People v. Travei-s, 15 Pac. 293; People v. Bannister, 34 Pac. 710. Respondent cited: Sec. 401, Code Crim. Proc.; St. Clair v. U. S-, 154 U. S. 133, 38 I/.

Hon. Jamiís McNbNNY, Judge. . Clara D. Coe, the defendant, was convicted of violating an ordinance of the City- of Deadwood, and she appeals. . Under point two of the opinion, Appellant cited: Mich. City of Port Huron v. Jenkinson, 77 Mich. 414, 6 L. R. A. 54.

■ Appeal from Circuit -Court, Roberts County. Hon. Caiu, G. ■■Sherwood, Judge. The defendant, B. A. Connelly, was convicted of a crime 'charged in the information,- and he -appeals. (2) Under point two of the opinion, Respondent cited: Secs. 263, 264, Code Cr. Proc.; State v. Rozum (N. D.) 80. N. W. 477.

<p>1. Constitutional Law — Warehousemen—Due Process of Law — Invasion of Province of Judiciary — Warehouse Receipt, as Conclusive Evidence of' Ownership — Statute.</p> <p>Pol. Code, Sec. 495, prohibiting a warehouseman, having issued a receipt for grain storage, from denying that the grain represented thereby is the property of the receiptee, and making such receipt, so far as the duties of the bailee are concerned, conclusive evidence that such receiptee is owner, is not invalid as an invasion of the province of the judiciary, or as depriving the owner of property without due process, contrary to Const. U. S. Amend. 14, and Const. S. D. Art. 6, Sec. 2; since the statute proclaims a rule of substantive law, and not a rule of evidence, and merely enlarges the rules of contract of bailment by creating an estoppel, and in effect provides that one who has assumed a certain relation to another in' regard to such property cannot question the title of such person to the' property. Smith, P. X, and McCoy, X, dissenting.</p> <p>:2.' Warehousemen — Public Business — Regulation of, Under Police Power.</p> <p>The business of a public warehouseman, being public in its nature, is a subject of regulation under the police power •of the state.</p>

Hon. Levi McGEB, Judge. Action by George F. Schneider, as administrator of the estate of Chauncey L. Wood, deceased, against Bessie F. Wood, in which Ben M. Wood intervened and was substituted in lieu of the original administrator, and in which, upon the death of defendant, Fred C. McCain, administrator of her estate, was substituted as defendant and appellant; the suit being brought to set aside certain assignments of rents, made by said Chauncey L. Wood to said Bessie F.…

Hon. FRANK B. Smith, Judge. Action by the Clark Implement Company against Mary J. Wadden and another, for leave to redeem from a mortgage foreclosure sale by advertisement, as a subsequent incumbrancer. From a judgment for defendants, and from an order denying a new trial, plaintiff appeals.

Hon. Thos. L. Boucic, Judge. Action by Harry E. Hart against N. E. Bjerke, administrator of Emil K. Bjerke, deceased, upon a claim against decedent, which was the subject of a pending suit at the death of decedent. From a judgment for plaintiff, and from an, order denying a new trial, defendant appeals. Appellant cited: Raws 1913, Ch. 207; Const. Art. 5, Sec. 20; In re Sjurson, 137 N. W. 341; State ex rel. Ochsenreiter v. Blegen, 128 N. W. 488.

<p>Taxation — Taxes Imposed by Wrong County — Recovery Back — Voluntary Payment, Immateriality of.</p> <p>The rule that taxes voluntarily paid cannot be recovered does not apply to taxes unlawfully imposed .by a 'county' against lands in another county; since the county imposing such taxes is wholly without jurisdiction or authority to levy them. -So held, where two counties had claimed the land in question, and plaintiff, seeking to recover back such taxes, had previously paid taxes in both counties during the years in question.</p>

Hon. Wxi.uiam Wiluiamson, Judge. The defendant, James Oherrington, was convicted of grand larceny, and he appeals. (1) Under point one of the opinion, Appellant cited: Sess. Laws 1895, Ch. 64, Sec. 2; State v. King, 9 S. D. 630; State v. Reddington, 7 S. D. 377; State v. Matejousky, 22 S. D. 33- Respondent cited: State v. Eulwider, 28 S. D. 622.

Proceedings by the State, on the relation of T. H. Null, by prohibition, to restrain Samuel C. Policy, Secretary of State, from certifying the nomination of candidates for the office of •Judge of the Supreme Court.

Hon. Joseph H. BoTRum, Judge. Action b}r Andrew Richelson against R. L- Mariette and another, to quiet title by annulling a guardian’s sale of plaintiff’s realty. From a judgment for defendant Mariette, and from an order denying a new trial, plaintiff appeals.

Hon. Lsvi McGiiE, Judge. Action by Albert C. Hockett against Elsie Hockett, for divorce. From an order denying a motion to change the place of trial, defendant appeals. Appellant cited: Code Civ. Proc. Secs. 101, 102; Warner v. Warner, (Cal.) 34 Pac. 523; Hancock v. Burton, 61 Cal. 70; Usher v. Usher, (Cal.) 36 Pac. 8; People v. District Court, (Col.) 69 Pac. 597; Hurning v. Hjurning, (Minn.) 83 N. W. 342. Respondent cited: Civ.

Hon. Robiírt B. Teipp, Judge. ■ Action by Martin Byrne against William McKeachie, to determine title to, and to recover damages for use and occupation of land. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

<p>1. Appeal — Reversal-—Proceedings in Trial Court — Mandate, for New Trial — Misapprehension by Trial Court.</p> <p>A judgment having been reversed by .Supreme Court, and case remanded to trial court to determine question of homestead in the light of views of Supreme Court as to effect of loss of homestead in the land in controversy by the taking up of certain government land, held, that such mandate necessarily contemplated a new trial, and the trial court, having, by misapprehension of the scope of Supreme Court’s opinion, entered findings and judgment without a re-trial, properly vacated the same and re-tried the case.</p> <p>2.' Supreme Court, Jurisdiction oí, on Appeal — Determination of Facts — Directing Final Judgment.</p> <p>While the Supreme Court, on appeal, may-direct trial court to enter judgment when its views of the law are such as to determine, absolutely and finally, the rights of the parties, its jurisdiction is strictly appellate; and while, in equity cases, it may vacate findings of fact when against preponderance of evidence, it cannot determine issues of fact, or direct entry ■of particular findings hy trial court.</p> <p>S. Appeal — Error—Disposition of Case by Supreme Court, When— Undisputed Facts.</p> <p>It is only when all the facts are absolutely undisputed, and such that but one conclusion can he drawn therefrom hy reasonable men, that the Supreme Court may direct entry of judgment hy trial court, in which case the rights of the parties are determined hy Supreme Court solely as questions of law; and the fact that that Court had once reversed an equity case on matters of law, does not justify it in making findings of fact in accord with preponderance of evidence, or in directing trial court to make them.</p> <p>4. Homestead — Conveyance of — Husband’s Right — Burden of Proof.</p> <p>Where a husband, after death of his wife, sues to set aside a deed executed by her, conveying land which she separately owned, held, the burden was on him to show facts entitling him to an interest in the land as husband of decedent, to do which it was necessary for him to prove that at time of the conveyance the premises constituted a homestead.</p> <p>5. Homestead — “Family”—“Head of Family” — Sufficiency of Evidence to Establish.</p> <p>Where a woman left her homestead in charge of her sons, and took up her residence on government land entered as a homestead, and continued to live there until she proved up, after which she returned to the land from which she moved, held, that the evidence aduced on the trial is insufficient to establish that such residence constituted her a “family,” or “the head of a family,” so as to render the land her homestead, under Pol. Code, Sec. 3215, and Code Civ. Proc., Sec. 325; but that -the preponderance of evidence shows she did not resume control of the land she had so formerly left, but that she returned to and became a dependent upon her children, with whom she lived.</p>

<p>Appeal from Circuit Court, Spink County. Hon. Frank McNulty, Judge.</p> <p>The defendants, Charlotte Johnson and another, were convicted of taking personal property from the custody of an officer having possession thereof under an execution, and they appeal.</p> <p>(1) Under point one of the opinion, Appellant cited: Code Civ. Proc., Secs. 140, 146, 518.</p> <p>Respondent cited: State v. Wiggins, 50 La. Ann. 330, 23 ’ So. 334; State v. Allen, 37 La. Ann. 685.</p> <p>(2) Under point two of the opinion, Appellants’ cited: Code Cv. Proc., Sec. 146.</p> <p>Respondent cited: State v. Rozum, 80 N. W. 477, 8 N. D. 548; State v. Crook, 16 Wash. 212, 51 Pac. 1091; State v. Clark, (Idaho) 3c; Pac. 710: Peo. v. Wallace, (Cal.) 29 Pac. 950; Peo. v. Tarbox, (Cal.) 46 Pac. 896.</p> <p>(5) Under point five of the opinion, Appellants cited: People v. Mulkey, 65 Calif. 501, 4 Pac. 507; Corey v. State, 43 Tex. 414; Bacchus v. State. 18 Tex. App. 15; State v. Metsch, 37 Kan. 222, 15 Pac. 251; Hix v. People, 157 Ill. 382, 41 N. E. ■862; Pen. Code, Secs. 187, 142.</p> <p>Respondent cited: State v. Rozum, 8 Ni. D. 548, 80 N. W. 477; Trimble v. Ter’y., 15 Okla. 620, 86 Pac. 64.</p> <p>(6) Under point six of the opinion, Appellants cited:' Vol. 12, Cyc., page 614; State v. McCaskey, 104 Mo. 644, 16 S. W. 511; State v. Tulford, 124 N. C. 798, 32 S. E. 377; Territory v. Bach, (N. M.) 71 Pac. 640.</p> <p>(7) Under point seven of the opinion, Appellants cited: Freeman on Executions, 2nd Ed., Sec. 254, p. 801; Allen v. McCalla,'25 la. 464, see p. 487; Van Pelt v. Rittler et al., 14 Calif. 194; Powell .v- MeKichnie, 3 Dak. 3x9; Jones Dumber & Mercantile Co. v. Pams, 6 S. D. 112; McLaughlin v. Alexander, 2 S. DL 226; Auby v. Rathburn, ix S. D. 474; Pen. Code; .Sec. 142; Vol. 17, Cyc. 942; Dickson v. Nicholl, 39 Ill. 372, 89 Am. Dec. 312.</p> <p>Respondent cited': State v. Cassiday, 4 S. D. 58, 54 N. W. 928; Code Civ. Proc., Sec. 343; 29 Cyc. 1330, and cases cited in notes; State v. Richardson, 38 N. IT. 208, and extended note following this case in 75 A. D. 173; People v. Hall, 31 Hun (N. Y.) 404; State v. Downer, 8 Vt. 424, 30 Am. Dec. 482; Witherspoon v. State, 42 Tex. Crim. 532, 61 S. W. 396, 96 Am. St. Rep. 812.</p> <p>(8) Under point eight of the opinion, Appellants cited: MeClen.ny y. Inveracity, 80 Kan.' 569, 24 L. R. A. (N. S.) 301; Parris v. State, 3rd Ohio St. 159.</p> <p>Respondent cited: State v. Cassidy, 4 S. D. 58; State v. Devitt, 107 Mo. 573, 17 S. W. 900, 28 Am. St. Rep. 440; Sava-cool v. Boughton, 5 Wend. 170, and note in 21 A. D. 181; 29 Cyc. 1328; Appling v. State, (Ark.) 128 S. W. 866, 28 L. R. A.</p> <p>(N. S.) 548; State v. Weed, 21 N. H. 262.</p> <p>(9) Under point nine of the opinion, Appellants cited: People v. Clements, 68 Mich. 655, 36 N. W. 792; Smith v. People, 99 Ill. 445; State v. Welsh, 37 Wis. 196; Commonwealth v. Kennard, 8 Pick. (Mass.) 133.</p> <p>(10) Under point ten of the opinion, Respondent cited: Sec. 354, Criminal Procedure; State v. Calkins, 21 S. D. 24;. State v. Church, 6 S. D. 89; State v. Boughner, 5 S. D. 461; Ter’y- v. Keyes, 5 Dak. 244, 38 N. W. 440; Brickwood Sackett Instructions, Secs. 401-2; People v. Worden, 113 Cal. 569, 45, Pac. 844; Brickwood Sackett Instructions, Sec. 2620.</p>

Joseph H. Bottum, Judge. Action by Charles Mix against the Chicago, Milwaukee & St. Paul Railway Company, to recover damages for loss of and injury to livestock shipped over defendant railroad. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (i) Under point one of the opinion, Appellant cited: Toledo etc. R. Co. v. Foss, 88 Ill. 551; Reading v. C. B. & Q. Ry. C., (Mo.) 145 S. W. 1166; Peterson v. C. M. & St. P. Ry.

Hon. Frank B. Smith, Judge. Action by J. F. Polt against the Chicago, Milwaukee & St. Paul Railway Company, to recover 'damages to plaintiff’s property by fire from defendant’s locomotive engine. From a judgment for plaintiff, defendant appeals.

Hon. Joseph W. Jones, Judge. Action by C. B. Kennedy against the Chicago, Milwaukee & St. Paul Railway Company, for damages to plaintiff’s property by fire from defendant’s locomotive engine. From a judgment for plaintiff, defendant appeals.

On petition for rehearing. [1] Under point one of the opinion, Appellants cited: Laws 1907, Oh. 134, Sec. 4, 5; Laws 1909, Ch. 102; 29 Cyc. 1132; Chicágo etc., R. Co. v. Smith, 78 Ill. 96; O. B. 72-81; Zumbro v. Parnin, (Ind.) 40 N. R. 1085, and cases cited. Respondents cited: Drainage Ditch v. Richardson Co., 86 Neb. 358, 360; Laws 1909, Ch. 102, Secs. 3, 12. (2) Under point two’ of the opinion, Respondents cited: Section 530, Code Civ. Proc.; Sec. 1849, Pol.

Hon. Alpha F. ORR, Judge. Joseph Manley, the defendant, was charged by information with keeping, selling, using, and serving as food oleomargarine. From an order sustaining a demurrer to the information, the State appeals. • (i) Under point one of the opinion, Appellant submitted that: Sec. 15, Ch. 163, Raws 1909, is not applicable.

Hon. Frank McNuuty, Judge. Action by Ende P. Hopkins ag-ainst Hollace R. Hopkins, for a divorce. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Appellant cited: Root vs. Root, (Mich.) 32 L,. R. A. (N. S.) 837, íS0 N. W. 194; Beeler v. Beeler, (S. D.) 14 N. W. 696; Mc-Allister vs. McAllister, 75 N. W. 256; Mosher v. Mosher, '(N. D.) 113 N. W. 99; Morrison v. Morrison, (Mich.) 30 N. W. 903.

Non. Carl. G. S'HSRwood, Judge. Action by E. W. Hickman, as administrator of P. A. Hickman, deceased, and another against W. W. Long and others, and William W. Arns, to enforce a contract for sale of land, and for other relief. From a judgment for plaintiffs, the defendant Aims, appeals. (1) Under point one of the opinion, Appellant cited: 39 Cyc. 1383-4; Miner v. D'ickey, (Mich.) 103 N. W. 855-6; Auxier v. Taylor, (Iowa) 72 N. W. 291; Sec. 2285, Civ. Code; Barnes v..

Hton. Joseph W. Jones, Judge. In the matter of the Estate of Patrick W. Merrigan, deceased. From' a portion of a decree of final distribution, Arthur Merrigan, a devisee, appeals. (2) Under point two- of the opinion, Appellant cited: Sec. 1036 Civil Code; 49 Gen. Dig. Wills, 955 and 988; 20 Dec. Digest, 470; 40 Cyc. 1386B; Stewart v. Jones, 219 Mo. 614, 118 S. W. 1, 131 Am.

<p>I Executive Office — Courts—Supreme Court — Advisory Opinion to Governor — Constitutional Law — “Solemn Occasion" — Loss ol Revenue.</p> <p>Only the .gravest and most urgent necessity will justify the Judges of the Supreme Court in rendering an ex parte opinion, where private rights' are involved, in response to a question hy the Governor under Const. Art. 5, Sec. 13; and loss of expected revenue from taxation of two ‘express companies, involved in ltiigation in the federal court, does not present a “solemn occasion” within the meaning of said section, upon which the ■ Governor may require their opinion.</p> <p>2. Courts — Supreme Court — Constitutional' Law — Advisory Opinion to Governor — Not Court Decision — Binding Effect.</p> <p>The opinion of the Judges of the Supreme Court, which, under Const., Art. 5, Sec. 13, the Governor may require, does not amount to a decision of that Court, .but is merely an advisory opinion of the Judges, and is not conclusive upon rights of parties, nor binding upon any one.</p> <p>3, Courts — Supi'eme Court — Constitutional Law — Advisory Opinion to Governor — Effect o®, on Federal Courts.</p> <p>The ‘ rule of duty of federal courts to follow the decisions of the Supreme Court of a state in matters pertaining to construction of the state Constitution, does not apply to an advisory opinion of the Judges of such state Court to the Governor of the state, which does not have the force of a judicial decision.</p>