Volume 35 — South Dakota Reports

Hon. Josepii W. Jonís, Judge. Action by Harry H. Howe against T. T. Thompson, to recover damages for alleged libel. From an order overruling a demurrer to the complaint, defendant appeals. (1) Under point one of the opinion, Appellant cited. Sec. 29, Civ. Code. (2) Under point two of the opinion, Appellant cited: Nichols vs. Daily Reporter Co., 30 Utah, 74, 83 Pac. 573, 116 Am. St. Rep. 796; 18 Am. & Eng. Ency. of Law .182; Pittsburgh Ry. Co. v. McCurdy, 114 Pa.

Hon. Alpha F. Oru, Judge. Action by E. L. Smith, against George W. Egan, to recover for rentals, 'for certain damages, and for use of electric lighting. From a judgment entered upon a tender by defendant, and for taxable costs, defendant appeals. (1) Under point one of the opinion, Appellant cited: Sec. 410, Code Civ. Proc.; Sec. 1166, Civ. Code; Hill v. Place, (N. Y.) 36 How. Pr. 26. Respondent -cited: Sec. 1166, 1160, Civ.

Hon. CharuOS A. Davis, Judge. Action for slander by F. C. Bebout against E. E. Pense and wife. From an order overruling a demurrer to the amended ■complaint, defendant appeals. (1) Under point one of the opinion, Appellant cited: Newell •on Slander & Libel (ad Ed.) Sec. 42; Sec. 102 Civ. Code; Curtis vs. Dinneen, 4 Dak. 245.

<p>1. Criminal Law — Indictment and Information — Sufficiency—Designation of Offense — Constitutional Provisions.</p> <p>Code Crim. Proc., Sec. 229, malting sufficient an information from which it can be understood that the offense is designated in such manner as to enable a person of common understanding to know what is intended, held, to require an information which, as required by Const. Art. 6, Sec. 7, states the nature and cause of the accusation against him, and such statute is valid.</p> <p>2. Same — Indictment and Information — Requisites—Inclusion of Minor Offense — Assault.</p> <p>Though the offense of assault with intent to kill necessarily includes the lesser offenses of assault, and assault with a dangerous weapon, an information charging, the major offense need not incorporate all ingredients of the lesser offenses.</p> <p>3. Same — Homicide—Assault With Intent to KiP — Information—■ “Malice Aforethought.” Necessity of Allegation of.</p> <p>An information alleging that accused committed the crime of assault with intent to kill a person named, by willfully, unlawfully, and feloniously shooting at such person with a loaded pistol with intent to kill him, stated the offense defined in Pen. Code, Sec. 285, punishing assaults with intent to kill; and it was unnecessary to use the words “with malice aforethought” to indicate premeditated design, since they are not contained in the statute.</p> <p>4. Same — Jury—“Challenge to Panel” — Indefinite Allegations — Conclusion — Intentional Omission.</p> <p>Under Code Cr. Proc., Secs. 320-322, defining a “challenge to the panel” as an objection to all trial jurors, and providing that it may be founded on a material departure from forms prescribed by law, a challenge to the panel, “that the same was not selected or drawn in manner provided by law,” is but an allegation of a conclusion; while the assertion that the jury drawers “drew from the jury box some names that were not included in the list summoned to appear as jurors” was indefinite; and “that some of the jurors drawn from the box were not summoned and are not present as jurors” is insufficient, in not alleging that the omission was intentional; and sai'd challenges were properly overruled.</p> <p>5. Same — Jury—Challenge to Panel — Discarding Names Drawn, Drawing Others — Prejudice.</p> <p>A challenge to the panel on ground that officers, after drawing from box the number of names provided for in court order, discarded certain names and drew others in their place, wan properly overruled, under Laws 1913, Oh. 280, Sec. 1, in that it failed, to show prejudice to defendant’s substantial rights, although there was a departure from the forms prescribed by law, in the discarding, by the person drawing the names, of solhe of those names.</p> <p>6. Same — Jury—Challenge to Individual Jurors — Drawing Excess of Names.</p> <p>The objection that an excess of names of jurors was drawn, does not go to the whole panel, but applies only to the excess, and is only a matter of challenge to individual jurors drawn in excess.</p> <p>T. Same — Jurors—State’s Exception to Challenge, Necessity — Prejudice.</p> <p>While the state should have excepted or answered to a challenge to the panel of jurors by defendant, the failure to do so in advance of the overruling thereof by the court was not prejudicial, where the challenge was not tenable.</p> <p>8. Same — Jurors—Implied Bias — Actual Bias — Making Affidavit •Against Change of Venue — Statute.</p> <p>One giving an affidavit that he believes that defendant, seeking a change of venue, may obtain a fair trial in the county, may not be challenged as a juror for implied bias, under Code Cr. Proc., Sec. 339, which, in specifying grounds for such challenge, does not include making of such affidavits. Held, further, that giving of such affidavit is not ground for challenge for actual bias.</p> <p>Polley, J., dissenting.</p> <p>9. Criminal Law — Appeal—Jurors—Actual Bias — Challenge—Judicial Discretion — Statute.</p> <p>The determination of Question of actual bias being, under Code Cr. Proc., Sec. 338, a matter resting in sound discretion of trial court, a ruling upon a challenge for such bias will not be disturbed on appeal except for abuse of discretion.</p> <p>10. — Same—Review—Ruling on Challenges of Jurors — Specifications, Assignments, of Error, Necessity Eór — New Trial.</p> <p>The denial of a challenge to a juror whose examination is alleged to show he has an opinion as to defendant’s guilt, will not be considered on appeal, where the ruling is not alleged as errors in specifications of error on motion for new trial, and is not asigned in assignments of error.</p> <p>11. Criminal Law — Homicide—Assault With Intent to Kill — Self-Defense — Instructions, Want of Evidence Applicable to— Statute.</p> <p>Where, on trial for assault with intent to kill by shooting, accused admitted that, in pointing the revolver at prosecutor, he intended to “bluff” him into talking sensibly, and claimed it was pressure of prosecutor’s hand in which the revolver was held .that caused its discharge, and there was evidence that prosecutor had, a few minutes previously, called defendant a vile name, that the parties had separated, and accused was searching for prosecutor at time .of shooting, held, there was no evidence upon which to base an instruction on question of self-defense, especially in view of Laws 19 09, Ch. 11, making use of abusive language, intended or tending to provoke an assault, a misdemeanor, and the taking of the law into one’s own hands for such abuse is not acting in self-defense.</p> <p>12. Same — Homicide—Assault With Intent to Kill — Verdict Referring to Statute, Uncertainty of — Elements of Grime — Degrees — Statute.</p> <p>The offense of assault with intent to kill, under Pen. Code, Sec! 285, though 'containing the elements of assault from Simple assault to assault with intent to kill, is not divided into degrees within Code Cr. Proc., Sec. 408, requiring jury to find degree of crime where it is divided into degrees; and a verdict finding defendant “guilty as charged under Section 285, Penal Code,” is sufficiently certain.</p> <p>13. Criminal Daw — Verdict, Certainty of — Instructions as to Different Offenses — Absence of< Exceptions — Prejudice.</p> <p>Where, on trial for assault with intent to kill, the court charged that, if jury did not find accused guilty of the offense charged, they could find him guilty of assault with a dangerous weapon, or of simple assault, or not guilty, and submitted four forms of verdict, no exceptions being taken thereto, held, that a verdict of guilty as charged “under Section 285, Penal Code” was sufficiently certain.</p>

Hon. Joseph W. Jones, Judge. Action by Alvina Cole against Eugene Reiley, sheriff, to recover money alleged. to have been seized by defendant under an execution, on deposit as proceeds of payment. made upon promissory notes alleged to belong' to plaintiff. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. (2) Under point two of the opinion, Respondent cited: Secs. 2368, 2370, Civ.

<p>1. Mortgages — Redemption—Mortgage Lien — Bar of Limitations, Application of — 'What Statute Applies.</p> <p>The right of Redemption mentioned in Civ. Code, Sec. 2034, is barred by limitations, the same as other rights. Held, further, that the ten-year statute relates to actions wherein redemption is sought, and is applicable to redemption by a subsequent mortgagee from a prior mortgage.</p> <p>' 2. Limitation of Actions — Redemption—Accrual of Action — Notice of Adverse Right — Possession Under Foreclosure Deed.</p> <p>When a junior mortgagee is advised that a purchaser under a senior mortgage has entered into possession under his foreclosure deed, he receives implied notice that any right of his, inconsistent with the title under which the possession is held is denied by such possessor, and then, if never before, limitations begin to run against his right of redemption.</p> <p>Smith, J., dissenting.</p> <p>3. Actions — Relating to . Realty — Jurisdiction of States Beyond Locus — Decree in Personam — Character of Suits.</p> <p>Actions relating "to realty, which can be brought in states other than those where the land is situate, provided jurisdiction of parties can be acquired therein, are limited almost, or quite exclusively, to equitable actions wherein the relief sought can be enforced through a decree in personam, such as eases based upon fraud, trust, or some privity of contract or estate.</p> <p>4. Actions — Affecting Realty — Jurisdiction Over Res — Service of Process, Character of — Actions “In Rem”, or “Quasi In Rem.”</p> <p>Under Code Civ. Proce., Sec. 112, authorizing service of process by publication, where the subject of the action is realty in the state, and defendant has or claims a lien or interest therein, or the relief demanded consists in excluding him from any such lien or interest, held, that every action affecting such realty, whether one which might be brought in the state of residence of defendant or not, can be brought in courts of this state, and complete relief given by virtue of the court’s jurisdiction • over . the res, though defendant is a non-resident; and such actions, whether service upon such defendant is personal or constructive, are, though personal in nature, yet, because the decree entered acts directly upon the right, etc., claimed in the res, sometimes regarded as actions “in rem,” though more properly as “quasi in rem.” '■</p> <p>Smith, J., dissenting.</p> <p>5. Actions — Redemption From Senior Mortgage — Transitory, Local, Action — Functions of Bach — Decree.</p> <p>An action by a junior mortgagee for redemption, so far as it seeks relief through defendant, is transitory, while in so far as it seeks a decree affecting directly a right, etc., in realty, it is local; and in the former the decree would direct defendant to execute necessary instruments in protecting plaintiff’s rights; in the other, the court, by decree, would directly protect such rights.</p> <p>Smith, J., dissenting.</p> <p>6. Limitation of Actions — Non-Residence—Statute, Purpose of — * Construction.</p> <p>The purpose of Code Civ. Proc., Sec. 69, providing that if, when a cause of action accrues against a person, he is out of the state, the action may be commenced within the time limited therein, after his return into the state, is to protect from loss, through mere lapse of time, all- legal rights of action for preservation and enforcement of which a party has a right of action in our courts, but which rights, but for- said section, might become lost by limitations. •</p> <p>7. Statutes — Construction—Maxim of Jurisprudence — “Reason of Rule.”</p> <p>- The maxim, recognized by Civ. ■ Code, Sec. 2409, that when the reason of a rule ceases the rule shall also cease, is applicable to the C-ode of Civil Procedure, though not so ■ declared by express provision of statute.</p> <p>8. Limitation of Actions — Actions Quasi In Rem — Absence From State — Non-Applicability of Statute.</p> <p>Where a party has a complete remedy through an action in the state courts, the enforcement of which is unaffected by absence from the state, such absence does not, under Code Civ. Proc., Sec. 69, extend the time within which the action must be brought to- enforce his rights; that statute having no application where, regardless of such absence, such right can be fully enforced through decree acting directly upon property within this state, ' and which decree can rest upon constructive service of process.</p> <p>9. Mortgages — Junior Mortgagee, Right to Redeem, to Foreclose— Separate Right of Action.'</p> <p>A junior mortgagee’s right to redeem from a senior mortgage, is a right distinct from his right to foreclose his own mortgage, and may be enforced in a separate action, at any time after the right of redemption accrued.</p> <p>10. Mortgages — Foreclosure—Jurisdiction—Suits Concerning Realty —Redemptioner Defendant — Personal Service On Redemption-er, Necessity.</p> <p>Personal service upon the person from whom redemption from a senior mortgage is sought, is not necessary to give to courts of this- state jurisdiction to enter a decree which would determine and protect such redemptioner’s rights.</p> <p>11. Actions — Realty Mortgage Foreclosure — Without Deficiency Judgment — Service On Defendants, Necessity of..</p> <p>A mortgagee who does not pray for personal judgment for deficiency, in a suit .to foreclose and to redeem from senior mortgage, may at any time after accrual of his right to foreclose, sue to foreclose, and to redeem, though personal service of procees could not be made upon any defendant.</p> <p>Smith, J., dissenting.</p>

<p>Elections — Contest—Appeal, Time Eor Taking — Dismissal of Appeal —Jurisdiction.</p> <p>Upon an appeal from a judgment in an election contest, held, that, under Pol. Code, Sec. 1997, providing that in election contests appeals must be taken -within 60 days after entry of final judgment, an appeal taken more than 60 days after such entry will be dismissed; the right to appeal being purely statutory, and an appellate, court lias no jurisdiction, unless the appeal is taken within the time and in manner provided by statute.</p>

Hon. Joseph W. Jones, Judge. Action by Edmund Sanders against the Independent School District of the City of Sioux Falls, and others, to test the validity of the school bond election. From a judgment for defendants, plaintiff appeals. (i) Under point one of the opinion, Appellant submitted that: Laws 1911, Ch. 133, repealed Educational Code, Laws 1907, Ch. 135.

H-on. Wiuuiam Wiuuiamson, Ju-dge. Action -by Vern R. Clark -against Walter Mo-sier, -to recover ' for damages for trespass by -cattle. From a judgment for plaintiff, an-d from an order -denying a new trial, defendant -appeals. (3) Under point -three of -the opinion, Respondent cited: Wood et al. v. Dodge, 23 S. D. 97.

Hon. Frank; McNurty, Judge. Action by George T. Elliott against the Chicago, Milwaukee &. St. Paul Railway Company, to recover for injury to horses, through negligence, shipped over defendant’s railway as a connect ing carrier. From, an order overruling a demurrer to the complaint, defendant appeals. (1) Under point one of the opinion, Appellant cited; Sec. 1693, Civil Code of South Dakota; Am. & Eng.

Hon. Ai/pi-ia F. Orr, Judge. Action by Agnes Sullivan, against Ii|enry .0. Rim-e, to . recover purchase -price of certain patterns eo-ld by plaintiff’s assignor to defendants. From an -order overruling defendants’ demurrer to the complaint, 'defendants appeal. Appellant- cited: ’Sec. 127, Civ. Code; Laws 1909, Ch. 224; Const. Art. 17, Sec. 20; Laws 1907, Ch. 131; Standard Oil Company v. United States, 131 Su.p. Ct.

Hon. Joseph W. Jones, Judge. Action 'by Bessie V. Pettigrew against the City of Sioux Falls anid others, -to have declared void a street paving contract, and for a permanent injunction against enforcement of the contract. From -an order denying a temporary injunction, plaintiff .appeals. (1) Under point one of the opinion, Appellant cited: City of Bluffton v. Miller, 70 Ni E. Rep. 989.

Hon. Carr G. Sherwood, Judge. Action by Jenn-ie Riley against J. T. Jorgenson, Sheriff o-f Hamlin -County, and another, to enjoin an execution sale of realty. From a judgment for plaintiff, and from an order denying a new trial, -defendants appeal. (a) Under point one of the opinion, Appellants-cited: 4 Ency. of Etv. 223, 158-; Smith v.'Cole, 109 N. Y. 43Ó, 17 N. E. 356.

Hon Alva E-Taylor, Judge. Action by the Culhane Adjustment Company against Richard D. Whorton, to recover upon an alleged judgment. Erom a judgment entered upon findings by the 'court, plaintiff appeals. Under point one of the opinion, Appellant cited: Code Civ. Proc., Sec. 786; Black on Judgments, Sec. m, p. 121; Thompson v. Bickford, 19 Minn. 17 (Gil. 1) ; State v. MacElrath, (Ore.) 89 Pac. 803; S'prigg v. Stump., 8 Fed. 207; King v. Higgins, 3 Oregon, 406.

H011. Joseph W. Jones, Judge. Action by W. D. Castle against John Gleason and Jonas Warren, for reformation of a chattel mortgage on crops, and for recovery against Gleason for conversion of part of the crops. From a judgment for plaintiff, and from an order denying a new trial, defendant Gleasom appeals. (1) Under -point one of the opinion, Appellant cited: nth A. & Eng.

Hon. Carr G. Sherwood, Judge. Action by F. H. Peterson against C. J. Hoftiezer, upon d promissory note executed in consideration of a contract between defendant and plaintiff’s assignor. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. (i) Under point one of the opinion, Appellant cited: Sioux Remedy Co. v. Cope et al., (S. D.) 133 N. W. 683.

Hon. Joseph H. Bottum, Judge- Action by State Bank Examiner, in the name of the Farmers’ State Bank of Mohnidge, á corporation*, against Catherine B. Empey, to enforce -defendant’s statutory liability as stockholder in said bank. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals.

Hon. John F. Hughes, Judge. Action :by the M. Rumely Company against J. P. Anderson and another, to recover upon promissory notes, J. P. Anderson defending as surety. From- a judgment for defendant J. P. Anderson, and from an order denying a new trial, plaintiff appeal's. (2) Under point two of- the opinion, Appellant cited: Civ. Code, Sec. 2182; 1 Par. N. & B. P. 380; 1-Daniel Neg. Inst., Sec. 812-1503; 2 Rand. Com.

Hon. Cray Carpenter, Judge. Action by Dan Bailly, an infant, and others against the Farmers’ State Bank of Sisseton and others, to- cancel a deed and to recover possession of realty;- defendant bank counterclaiming, and for subrogation to rights of a mortgagee. From a judgment granting relief to plaintiffs and -certain -of defendants, and from an -order denying a new trial, the defendant bank appeals. (2) Under point two- of the opinion, Appellant cited: Sec. 153, Rev. Prob.

Hon William G. Ricl, Judge. Action by the Black Hills Brewing Company 'against 'the Middle West Fire Insurance Compnay, to recover upon a policy of fire insurance. From a judgment for .plaintiff, and from an order denying a new trial, defendant appeals. (1). Under point one of the opinion, Appellant cited: McLaughlin v. Alexander, 2 S. D. 232, 49 N. W. 99; Acme Harvester Machine Company v. Hinkley, 23 S. D. 309, 122 N. W.-482; Ireland v. Adair, 12 N. D. 29, 102 Am.

Action by John Long-staff -again-st the State of So-uth Dakota, to recover moneys paid by plaintiff's assignor, as license fee, to the State Board of Medical Examiners, o-n Demurer to Complaint. (1) Under p-oin-t one -o-f the opinion, Plaintiff submitted that; The alleged agreement was valid; and cited; Town of Columbia City v. Anthes, (I-nd.) 43 Amer. Rep. 80; McQ. Mun. Corp., Vol.

Hon. John F. Hughes, Judge. Action by M. R. Baskervil'le against the Hughes County CoOperative -Store andi others-, to recover 'a balance due upon a promissory 'note. From a judgment for plaintiff, and from an order denying -a new trial, defendant, R. Osterkamp, appeals. (1) Under -point one of the opinion, Appellant cited: Randolph & Randolph v. Scruggs, 190 U. S. 553, 47 R. Fd. 1165.

Hon. Luvi McGee, Judge. Action fby Josephine Shade against Barnes- Brothers, a corporation, and Charles S-chmit, to procure 'cancellation of realty mortgage and note secured thereby. Prom a judgment for plaintiff, and from an order denying a new trial, defendants appeal. (1) Under point one of the opinion, Appellant cited: Ene. PI. & Prac.

Hon. Frank B. Smith, Judge. Action 'by J. M. Burchfield' against H. E- Hageman, to enforce forfeiture of part .payment of purchase money upon a contract for -sale of land, and for other relief; defendant counterclaiming.

<p>Appeal from Circuit Court, Ouster County. Hon. Levi McGee, Judge.</p> <p>Action by William H. Smith against Erland H. Johnson. From a judgment for plaintiff defendant appeals.</p>

<p>Appeal from 'Circuit Court, Bennett County. Hon. William Williamson, Judge.</p> <p>Separate proceedings by Frank Livermont, Joseph E. Livermont, Alexander Livermont, and Louis C. Peck, against E. G. Ward and others, County Commissioners, and Edward B. Battelyoun, County Auditor, as the Board of Equalization of Bennett County, and H. B. Anderson, State Auditor. From a judgment for petitioners in each action, defendants appeal.</p>

Hon. Raymond L. Diillman, Judge. 'Action by Edith French against the 'State Savings Bank of Ortley, in claim and delivery and for damages. From a judgment for plaintiff and from an order denying a new trial, defendant appeals. Appellant cited: 3 Cyc. 386, and cases cited; Wendt v. Chicago, St. P. M. & O. Ry. Co'., 57 N. W. 226. Respondent submitted that: The record must not only show error, but also that the party' complaining was in some manner thereby prejudiced.

Hon. . Robert B. Tripp, Judge. Action by the Des Moines Mutual Hail & Cyclone Insurance Association against W. W. Clu-te, J. D. Rynch intervening. From a judgment for defendants, and from an order denying a new trial, plaintiff appeals. (2) Under point two of the opinion, Appellant cited: Code Civ. Prcc., Sec. 151; Circuit Court Rules, 10, 11; Searles v. Lawrence, 8 S. D. xx; J-udd! v. Patton, 13 S. D. 648-55. Respondent submitted no brief.

Hon. Joseph H. Bottum, Judge. Proceedings, by the State of South Dakota, on relation of John Lavery and another as chairman and clerk, respectively, of and tax payers of and in Logan. School District No. 1, of Potter County, State of 'South Dakota, against A. G. Williams and others as County Commissioners, of, within, and for Potter County, South. Dakota, and W. J. Breene as Superintendent of Schools of, within, and for the count}'.

Hon. Alva E. ■ 'Taylor, Judge. Action by the Mitchell Fruit and Grocery Company against James Nicholl. From am order of the Circuit Court refusing to dismiss the appeal from the Justice Court, defendant appeals. (2) Under point two of opinion, Appellant cited; McLaughlin v. Michel, 14 S. D. 190, 84 N. W. 777-9. Respondent cited; Justice Code, Secs. 102, 106.

Hon. William Wiiliamson, Judge. Action by the Lamro Townsite Company against the Bank of Dallas, to recover upon certain checks, the Western Townsite Company intervening. From a judgment for plaintiff, and from an order denying a new trial, intervenor appeals. (1) Under point one of the opinion, Appellant cited: 34 Cyc. 1218; Fulton & Hanlow, 20 Cal. 450; Cramer v. Moore, 36 Ohio St. 247; Barnett v. Smart, 59 ¡S. W. 235, 237; Neafie v. Neafie, 7 Johns.

<p>Appeal from Circuit Court, McCook County. Hon. Joseph W. Jones, Judge.</p> <p>Action by Hannah M. Conniff against R. E. Allen and others, to quiet title. From a judgment for defendants, and from an order denying a new trial, Plaintiff appeals.</p>

Hon. Wieeiam G. Rice, Judge. Action by Henry O. Anderson and others against the Scandia Mining Sjmdicate and others. From a judgment for defendants, and from an order denying a new trial, ■ plaintiffs appeal.

Circuit Court, Dewey County. Hon. Raymond R. Dirrman, Judge. ■Action by Fred Sales against. Charles A. Maupin, C. R. Reynolds and Fred Haenen, to recover damages for conversion of a horse. From a judgment for plaintiff, and from an order denying a new trial, Reynolds appeals. (i) Under point one of the opinion, Appellant cited: Code Civ. Proc., Sec. 301; Dong v. Collins, 12 S. D. 621; Crawford v. State, 24 Am..

Hon. Carl G. S'íilrwood, Judge. Action by J. F. Vogt against Charles Aldrich to recover damages for seduction' of plaintiff’s daughter. From a judgment entered on a verdict directed for defendant, and' from an order denying a new trial, plaintiff appeals. (1) Under point one of the opinion, Appellant cited: Pance v. Dozier, 7 Bush, (Ky.) 133; Scott v. Cook, 1 Duv.

Hon. James McNenny, Judge. Action by Henry Stearns, Trustee, against Ch-arles E. McHugh and o-thers and the Baker Ice-Machine Company, for reformation, of ’a sheriff’s -deed. From a judgment for plaintiff, and from an order denying a new trial, the first-named defendants appeal. (i) Under point one of the opinion, Appellant cited: White v. Lunning, 93 U. S'. 940; Barclay v. Howell,. 6 Peters, 482; Shipp v. Miller, 2 Wheaton-, 250.

Hon. Thomas L. Bouck, Judge. Action by G. S. Bechtel against the Dakota National Bank, to quiet title, in which Angus E. Kruger intervened. From a judgment for defendant and intervenor, plaintiff appeals. (1) Under point one of the opinion, Appellant cited: Mc-Kechnie v. Sterling, 48 Barb. 330; Dart. Vend-. & P., p. 116; 1 Sugden, Vend. & P.’, 468; State Mut. Fire Ins. Co. v. Updegraph, 21 Pa. 513; Elterman v. Hyman, 192 N. Y. 113, 84 N. E. 937; 3 Pomeroy Eq.

Appeal- from Circuit Co-urt, Pennington County. Hon. Levi McGee, Judge. Action by the Adams Company against the Western Surety Company and others, to- recover on a fidelity bond. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. (i) Under point one of the opinion, Appellant cited: Schwenk v. Naylor, 49 N. Y. Sup. Ct. 99; Rumsey v. Robinson, (la.) 12 N. W. 243.

Hon Carr- G. Shiírwood, Judge. • Action by Jessie Row-e, widow and administratrix of William D. Rowe, deceased, against O. H. Richards and others, to recover damages resulting to herself and child, through the death of 'her husband, caused by defendants’ negligence. Prom an order sustaining a demurrer to the answer, alleging settlement and release of damages by decedent after receiving the injury, defendants appeal.

'Hon. Alva E. Taylor, Judge. Action. -by the Scribner State Bank against -A. J. Ransom and others, upon a promissory note. From a judgment in favor of certain defendants, and from an order denying a new trial, Plaintiff appeals. (1) Under point one of the opinion, Appellant cited: Buchanan v. Hicks, (Ark.) 136 S. W. 177, 34 E- R. A. (N. S.) 1200.

Hon. Arva E. Tayror, Judge. Action by U. 'G. Plank against Hol'lace Hopkins and another, upon a promissory note, plaintiff being indorsee. Er-om an order striking irrelevant matter from his answer, -the defendant named appeals. (1) Under point one 'of the opinion, Appellant -cited: ITo-t Springs Co. v. Eerguson et al., (S. D.) 67 N. W. 615; Bliss on Code Pleading, Sec. 421. Respondent cited-: Vol. 27, Cyc. p. 1274; Grable v. Beatty, (Neb.) 77 N. W. 49; Bennett v. Ellis, (S-.

Hon. William G. Rich, Judge. Action by the Clinton Mining & Mineral Company against the Trust Company of North American and others, to> have plaintiff’s judgment decreed a superior lien upon mortgaged property of the Trust Company. From a judgment for defendants, and from an order denying a new trial, Plaintiff appeals. [1] Under point one of the opinion, Appellant cited: Rev. Civ.

Appeal front Circuit Court, Hamlin County. Hon. Alva E-Taylor, Judge. Action by J. K. Gorman against P. H. Madden and another. From an order refusing to set aside certain orders involving extensions of time to move for a new trial, defendants appeal. (i) Under point one of the opinion, Appellants cited: Code Civ. Proc. 'Sec. 306. (4) Under point four of the opinion, Appellants cited: 28 Cyc. 14-15; Weiland v. Ashton, 18 S. D. 331, 100 N. W. 737.

Hon. Frank B. Smith, Judge. Action by Joseph Houska ag'ainst John Hrabe, to recover damages for injury to plaintiff’s horse. From a judgment for defendant, and from an order denying a new trial, Plaintiff appeals. (2) Under point two of the opinion, Appellant cited: Sec. 817, Code Civ. Procedure; Bestwick v. Minneapolis R. R. Co., 51 N. W. 781; Keith v. Tilford, 12 Nab. 271; Van Leuven v. Lake, 1 N. Y. 515, 49 Am.

Hon. Frank B. Smith, Judge. Action by) the Kimball State Bank against W. B. Harker and another, to recover upon a promissory note. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. (1) Under point one of the opinion, Appellant cited: Code Civ. Proc., Sec. 126. Respondent cited: Enoyc. PI. & Pr., Vol. 14, p. 599; Brown v. Weldon, 71 Cal. 393; Sankey v. Trump, 35 la. 267. (2) Under point two of the opinion, Appellant cited: Code Civ.

Hon. James . McNenny, Judge. Action 'by Frances B. Dewey against the Chicago, Burlington & Quincy Railroad Company.. From a judgment for defendant, and from an order denying a new trial,' p-laintiff appeals. (i) Under .point one of the opinion, Respondent cited: Whaley v. Vidal, 128 N. -W. 331 (S. D.); Morris v. Stanley County, 128 N. W. 153 (S. D.); State v. Cullom, 23 S. D. 528; Iiepner v. Wheatley, 144 N. W. 923 (S. D.) Donahoe v. A'debar, 149 N. W. 175 (S. D.).

Hon. Arva E. Tayror, Judge. Action- by A. IT. Davison- against James A. Kellar, for an accounting under land leases, and for a money judgment for balance due; defendant interposing a counterclaim. From a judgment for -plaintiff, and from a order denying a new trial, defendant appeals. (1) Under point one of the opinion, Appellant cited: Code Civ. Proc., Sec. 277; Telephone Co. v. Mitchell, 22 S. D. 193; Kierbow v. Young, 21 S. D. 180; Gull River Lumber Co. v. School Dist.

<p>Appeal from Circuit Court, Beadle County. Hon. Alva E. . Taylor, Judge.</p> <p>Action by E. R. Brumwell against Ernest D. Ede. Erom a-judgment for defendant, plaintiff appeals.</p>

Hon. John F. Hughes, Judge. Action 'by J. A. Brooks against Ellen Clifford, for cancellation of a mortgage; in which Joe Kirby intervened, and in. which- D. T. Jelcyll, as- administrator of the estate of Ellen Clifford, was substituted as defendant. From a decree in favor of plaintiff, and from- an order denying a new trial, the Intervenor appeals. (2) Under point two of the opinion, Appellant cited: Stakke \.

Circuit Court, Clark County. Hon. Carl G. Sherwood, Judge. Action by Adelbert B. Annis and others against Flora E. Huggins and -others, to- enforce an alleged trust in property in favor of plaintiffs. From a judgment for plaintiff, and from an order denying a new trial, 'defendants appeal.

Hon. Alva E-Taylor, Judge. Action 'by U. G. Bridenbaugh against C. A. McElrath, for recovery for loss from failure of defendant to insure buildings. From a judgment for plaintiff, and from1 an order denying- a new trial, defendant appeals.

Hon. Charles A. Davis, Judge. Action' 'by Edwin M. Starcher against T. J. Thompson, to recover for value of a motor-cycle alleged to have been sold by plaintiff to defendant. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. (2) Under point two of the opinion, Appellant cited: Landon v. Proctor, 39 Vt. 78; Mechem on Agency, Sec. 83, 84; Thurber v. Anderson, 88 111. 167.

Hon. Arva E. Tayror, Judge. Action by Ernest D. Ede against Harry J. Ward and • another, to recover back .purchase money under an alleged purchase of lands. From a judgment for defendants, and from an order denying a new trial, plaintiff appeals. Respondents cited: Sioux Falls Banking Co. v. Kendall, 6 S. D. 543.

Hon. Alva E. Taylor, Judge. Action 'by I. O. Hollenbeck against William Louden to foreclose a chattel mortgage upon a stock of merchandise; in which W. A. Hazle as trustee in bankruptcy, intervened. From a judgment for plaintiff, and from an order denying a new trial, intervener appeals. (i) Under point one of the opinion, Appellant cited: National Bankruptcy Act, Sec. 47; First Nat.

Hon. Arva ETayror, Judge. Action by the Maytag Co., a corporation, against S. D. Dinneen to recover the value of a self-feeder. From- a judgment for plaintiff on directed verdict, and from an order denying a new trial, defendant appeals. Appellant cited: Hawley, Dodd & Co. v. Kenyon, 1st Wash. Ter. 609; Girard v. Taggart, 5 S. & R. 1933 (Pa.) ; Pittsburg Ry. Co. v. Aeck, 50 Ind. 303, 19 Am.

Hon. Alva E-Taylor, Judge. Action -by S. A. Hoy and others against William Louden, in which W. A. Hazle, as Trustee in Bankruptcy of William Louden, intervened. From a judgment for plaintiff, and from an order denying a new trial, the intervenor appeals.

Hon. Robert B. Tripp, Judge. Action by T. J. Spang-ler against the City of Mitchell, to enjoin defendant from issuing bonds for and' from contracting for construction of, and from the operation of, a telephone ex-cliS.ng^.-JProm a judgment for defendant, plaintiff appeals. (i) Under point one of the opinion, Appellant cited. Section 2, Article io, Constitution; Dodge v. Mission Twp., 46 C. C. A. 661; Loan Assn. v. Topeka, 20 Wall. 655.

ITon. John H. Rogers, Judge. Action by the George IT. Bowman Company against Walter A Quiniby, to recover a money judgment. From an- order of the Municipal Court modifying its judgment, plaintiff appeals.' Appellant cited: Code Civil Procedure, Sec. 236; Hunter v. Karcher, 8 S. D. 554; Mouser v. Palmer, 2 S. D. 466; Williams v. Wait, 2 S. D. 210; Bode v. Ins. Co., 1 N. D. 121; Laws 1913, Ch. 278, Sec. 26.

Appeal -from 'Circuit Court, 'Charles Mix County. Hon. Robert B. Tripp, Judge. Action by the state, on the relation of Ambrose B. Beck, against A. E. Bossingham, to abate a liquor nuisance. From an order overruling a demurrer to the complaint, defendant appeals. (1) Under point one of the -opinion, Appellant cited: Pol. Code, Secs. 942, 928, 98 Amer. & Eng. Ency. of Law, (2d Ed.) Vol. 3, p. 481. ' Respondent cited: Civ. 'Code, Secs. 2394, 2400, 2403; Pol.

Hon. A uva E. Tayuor, Judge. Action by John L. Niblo ag-ainst Ernest D. Ede, -to recover damages for libel. From an order overruling a demurrer to the complaint, defendant appeals. (2) Under point two of the opinion, Appellant cited. Orms■by v. Douglas, 37 N. Y. 472. (3) Under -point three, Appellant cited: 5 En-cy. PI. & Pr., 776-7; Zier v. Hoffin, 33 'Minn. 66, 53 Am. Rep. 9 ; New'bold v. Bradstreet, 57 Md. 38, 40 Am.

■Appeal from Circuit Court, Charles Mix County. Non. Robert B. Tripp, Judge. Action by the state, on the relation of Ambrose B. Beck, against A. L. Kifterman, to enjoin a public nuisance. From an order overruling a demurrer to the complaint, defendant appeals. Affirmed; following State ex rel. Beck v. Bossingham, 35 S. D. 355, 152 N:. W. 285.

Hon. Frank B. Smith, Judge. Action by John Althen, Jr., against Charles Fowler, to contest an election. From a judgment for defendant, plaintiff appeals.

<p>Appeal from Circuit Court, Marshall County. Hon Thomas L. Bouck, Judge.</p> <p>Action by Rose E. Sayer against Ered N. Lee. Judgment for plaintiff, and defendant appeals.</p>

Hon. JosEpi-i H. Bottum, Judge. Action 'by G. A. Gallup against the Chelsea State Bank, to recover -the value of bank stock. From a judgment for plaintiff, defendant appeals. (2) Under point two of the opinion, Appellant cited: Am. & Eng. Ency. of Raw, Vol. 11, pp. 421-423.

Hon. Frank B. Smith, Judge. Action by J. J. Blliott against Frank A. Bidwell, to recover for the value of labor and material furnished. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. ’ (3) Under point three of the opinion, Appellant cited: Civ. Code, Sec. 1741, subd. 1.

Court, Hamlin County. Hon. Carl G. Sherwood, Judge. Action by James W. S. Peters against Mary V. Lohr and others, to set aside a tax deed' and to quiet title. From a judgment for defendants, and from an order denying a new trial, plaintiff appeals. (3) Under point three of the opinion, Appellant cited: Peters v. Lohr, 24 ■$■. D. 605, 124 N. W. 853; Elliott on Evidence, Secs. 91, 92, 93; Wigmore on Evidence, Secs. 2490, 2491.

<p>Appeal — Abandonment of Appeal — Stipulation for Time, after Notice of Appeal — No Brief — Affirmance.</p> <p>Where, after notice of appeal served and filing copy of the same in this Court, nothing further being done except that a stipulation extending time to file abstract and brief was filed three days after filing of notice of appeal, no brief being filed, the appeal will be deemed abandoned and the decision below affirmed.</p>

Hon. Revi McGee, Judge. Action by the Northwestern Mortgagee Trust 'Company against Albert Schatz, to establish a mortgage lien upon realty. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. (3) Under point three of the opinion, Appellant cited. Sec. 6, Code Civil Procedure; Flickinger v. Cornwell, 22 S. D. 382; Archer v. Tubbs Sheep Co., (S. D.) 126 N. W. 577.

Hon. William Williamson, Judge. Action by the Farmers-’ State Bank of Reliance against the Equitable Fidelity & Title Guaranty Company and another, to recover upon a policy of indemnity insurance. From an order refusing an application for a change of place of trial, defendants appeal. (i) Under point one of the opinion, Appellants citedi: Code Civ.

Hon. GsorgB W. Crane;, Judge. Action by G. N. Williamson against the Voedisch Jewelry Company, to recover for the value of advertising service. From a judgment for plaintiff, defendant appeals. (1) Under -point one of the opinion, Appellant cited: Jones Lumber & Mercantile Co. v. Paris, 5 S. D. 349; Baskerville v. Thomas, 143 N. W. 371. (2) Under point two of the opinion, Appellant cited: Fountain City Drill Company v. Lindiqjuist, 114 N. W. 1098 ('S. D.).

<p>Appeal from Circuit Court, Meade- County. Hon. John F. HugiiUs, Judge.</p> <p>The defendant, Louis Frank Pock, was convicted of larceny, and he appeals.</p> <p>(i) Under point one of the opinion, Appellant cited: State v. Smith, (S. D.) 67 N. W. 619; People v. Maughes, (Cal.) 86 Pac. 18-7; State v. Webb, (Idaho) 55 Pa-c. 892; Thompson on. Trials, Sec. 2421; Dwyer v. Basset, 63 Tex. 277; Muely v. State, fTex.) 19 S. W. 915; Clark v. State, (Tex.) 59 S. W. 887; Madison v. State (O'kla.) 118 Pac. 617; Keigans v. -State, (P'la.) 41 Southern, 886; Eidson v.' State, (Okla.) 115 Pac. 606; Vaughn v. State, (Ark.) 24 S. W. 888; Unru-h v. State, (Ind.) 4 N. E. 453; Burk v. State, (Neb.) 112 N. W. 575; Clark v. State, (-Neb.) 49 N. W. 367; Harriott v. -Holmes, (Minn.) 79 N. W. 1003.</p> <p>Respondent cited: Anderson v. State, 104 Ind. 467, 4 N. E. 63; State v. Weeden, 133 Mo. 70, 34 S. W. 473; 'State v. D'ilts, 191 Mo. -665, 90 S. W. 782; Hon-s-h v. State, 43 Neb. 163, 61 N. W. 571; Ga-tliff v. Territory, 2 Okla. 5-23, 37 Pac. 809; ■State v. Tarter, 26 Ore. 44, 37 Pac. 53; State v. Eiske, 63 Conn. 388, 28 Atl. 572; 30 Am. & Bncy. of Raw, 1139; 1 Brickwood Sacket Instructions, 365; 2 Brickwood- Sackett Instructions, 2533-52; 12 Cyc. 638; 2 Thompson 011 Trials, 2445; 11 Ency. of PI. & Frac., 315, 316; State v. -Smith, 8 S. D. 547, 67 N. W. 619; Brown v. State, 142 Ala. 2-87, 38 S-o. 268; State v. Thornton, 10 S. D. 350, 73 N. W. 196; Henry v. Peo., 198 111. 162, 65 N. E. 120; Reagain- v. U. S., 157 U. S. 301, 15 Sup. Ct. 610; Peo. v. Herrick, 59 Mich. 563, 26 N. W. 767; Peo. v. Newcomer, 118 Cal. 263, 50 Pac. 805; State v. Morrison, 104 Mo. 638, 16; State v. Miller, 190 Mo. 449, 89 S. W, 337.</p> <p>(2) Under point two of the opinion, Appellant cited: Code Crim. Proc., Sec. 350, Subd. 6; Territory v. O-’Hare, (N. D.) 44. N. W. 1003; State v. Coleman, (S. D.) 98 N. W. 175 p. 180; State v. Barry, (N. D.) 92 N. -W. 803; 12 Gyc. 604; Hauser v. People, (111.) 71 N. E. 416; Parker v. State, (Neb.) 93 N. W. 1037; State v. Halverson, (M'inn.) 114 N. W. 957.</p> <p>Respondent cited: State v. Wiggins, 50 La. 330, 23 So. 334; State v. iSterrett, 71 la. 10, 32 N. W. 387.</p>

Hon. Joseph W. Jones, Judge. Action by C. O. Armstrong against the Chicago, Milwaukee & S’t. Paul Railway Company, to recover damages for loss of rental value of an automobile. From an order 'sustaining a demurrer to the complaint, plaintiff appeals. (1) Under point one of the opinion, Appellant submitted that: Sec. 2309, Civ. Code, does not apply; and cited: Jones v. New York & Erie Ry. Co., 29 Bar'b. 633; Kent v. Hudson River Ry. 22 Barb. 278; 26 Barb. 564.

Hon. Frank B. Sm-itii, Judge. Action by Frederick Barnard and another, partners as Barnard & Miller, v. C. D. Tidrick, to recover against an indorsee on a promissory note. From a judgment 'for defendant, and from an order denying a new trial, plaintiffs appeal. (i) Under point one of the opinion, Respondent cited: Blount v. Medbery, 16 S. D. 562; Taylor v. National Bank, 6 S. D. 511; Fargo Gas Light, etc., v. Elec.

. Hon. Robert B. Tripp, Judge. The Fullerton, Lumber Company and others, defendants, were convicted of a violation of Laws 1909, Chapter 224, Prohibiting conspiracies in restraint of trade, and they appeal. (1) Under point one of the opinion, Appellants cited: Const. Art. 5, Secs. 27, 28; Pol. Code, Sec. 661. Respondent cited: Benedict v. Ralya, 1 S. D. 167; Meyer v. Mitchell, 1 S. D. 249; In re Nelson, 19 S. D. 214; Const., Art. 5, Secs. 27, 28, 33; Pol.

Hon. Wiuliam Wiujamson, Judge. Action by Henry G. Sherman against Emil H. Wichner and others, to foreclose a mortgage. From a judgment for plaintiff, defendant Mart Coffman appeals-. (i) Under point one of the opinion, Appellant cited: Code Civ. Proc., Sec. 227; Roberts v. Parker, 14 S. D. 323, 85 N. W. 591.

Hon. John F. Hughes, Judge. Action by J. W. McGilvery against Henry Lawrence, to recover for commissions on the sale of realty. From a judgment for plaintiff, defendant appeals.

Hon. Joseph W. Jones, Judge. Action by Mark D. Scott against Minnehaha County, to recover for printing - and furnishing court calendars. From a judgment for the plaintiff, defendant appeals. (1) Under point one of the opinion, Respondent cited: Pol. Code, Sec. 849; Dewell v. Board of County Commissioners, 8 S. D. 454; People v. Board of Supervisors of New York, 21 Ploward’s Practice, 325.

Hon. William Williamson, Judge. Action by John C. Noziska and others against A. K. Aten, Jr., for damages resulting from negligence of defendant as an attorney. From a judgment for plaintiffs, and from an order dertying a new trial, defendant appeals. (1) Under point one of the opinion, Appellant cited: Shull v. Barton, 77 N. W. 132, 136; Central State Bank of Geneseo et al. v. Walker, 53 Pac. 379; Code Civ.

Hon. Alva E. Taylor, Judge. Action by Ole N. Elisrand against M. Chris Madson and another, to quiet title and to determine conflicting rights to realty, being an island in an inland lake. Erom a judgment for. defendants, and from an order denying a new trial, plaintiff appeals.

. Appeal from Circuit Court, Beadle County. Hon. Alva E. Taylor, Judge. Action by Frank Hartzell against Henry Wagner, to recover damages for injury to plaintiff’s trees by fire. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. (1) Under .point one of the opinion, Appellant cited: Vol. 30, .Am. & Eng.

<p>Appeal from Circuit Court, Hanson County. Hon. Frank B. Smith, Judge.</p> <p>Action by the Independent School District of Alexandria against the Independent School District No. 2, AVayne Township, Hanson County, South Dakota, and Independent School District No. 3, AVayne Township', Hanson County, South' Dakota, and others, interveners,, to enjoin defendants from' interfering with plaintiff’s exercise of authority, as a school corporation over certain territory, and for other purposes. From a judgment for plaintiff, defendants and the interveners appeal. Modified and</p> <p>(1) Under point one of the opinion, Appellant cited: City of Winona v. School District, 40 Minn. 13, 41 N. W. 536, p. 540; ■State v. West Duluth Land Co., 75 Minn. -456, 78 N. W. 115, p. 118; Jackson v. Board of Education, 112 Minn. 167, 127 N. W. 569, P- 57°i McGurn v. Board of Education, 133 111. 122, 24 N. E. 529.</p> <p>(2) Under point two of the opinion, Appellant cited: Pol. Code, Secs. 1170, 1178, 2407; Laws 1905, Ch. 101, -Secs. 242-4.</p> <p>Respondent cited: 35 Cyc. 813; Laws 1905, Ch. 101, Sec. 2; Laws 1907, Ch. 135, 'Sec. 176.</p>

Hon. Frank B. Smiti-i, Judge. Action by the Ponca State Bank against Adolph FI. Adebar and' others to foreclose a realty mortgage. From a judgment for plaintiff,, and from an order denying a new trial, defendants appeal. '(i) Under point one of the opinion, Appellants cited: Work Bros. v. Braun, 19 S. D. 437, affirmed on rehearing in 23 S. D. 582, 5 L,. R. A. Note pp. 282-3.

<p>1. Courts — Judges—Supreme Court Judges — Disqualification of— Judges’ Expenses, Payment of — Mandamus for Issuance of Expense Warrant — Disqualification Because of Financial Interest — Necessity to Act, as the Only Existing Adequate Tribunal, Notwithstanding Judges’ Interest — Circuit Judges, Disqualification of, to Act — Statutes—Constitutional Provisions.</p> <p>Under Laws 1911, -C'h. 239, providing that whenever a judge of the Supreme Court, whose legal residence is at some place other than the state capital, shall have changed his actual residence to the capital, there shall be paid to such judge, in consideration of expenses incident to removal to the capital, the increased expenses of living at the capital, and the expenses of traveling to and from said legal residence the fixed sum of $50 per month, payable upon certified vouchers of the judge filed with the state auditor, held, that, where the state auditor refused to issue warrants to the members of the Supreme Court for the amounts due under said statute, and plaintiff, who, as well as the other judges of said Court, had previously changed his place of actual residence to the capital in order that he might better discharge the duties of his office, brought mandamus in said Court to compel issuance to him of a warrant for $50, the amount claimed by him to 'be due under said statute for the month of April, 1915, the Supreme Court was. not legally disqualified to hear and determine, consider, and partici.pate in the proceeding, because of financial interest in the questions involved, since a disqualification for interest, if permitted to prevail against action by the Supreme Court, would leave no tribunal in which plaintiff could seek relief, thereby depriving a litigant of his constitutional right to sue and have due process of law, granted to him by the Bill of Rights, Const., Art. 6, Secs. 2 and 20; and therefore the Judges of the Supreme Court may decide this cause; that Court being, in the instant case, the only court having authority to determine the validity of plaintiff’s claim and grant him adequate relief; because, while the circuit court has jurisdiction, and might have been applied to for a writ herein, it is customary, whenever, through such writ, a public officer is applied to to perform some ministerial act which, to be of any effect, must be performed within a very limited period, to seek such writ of the Supreme Court, and because also there is a right of appeal from any decision of the circuit court to the Supreme Court, and before an appeal from the circuit court could have been determined by the Supreme Court in the instant case, the date when the current appropriation to meet the provisions of said Ch. 239 elapses (June 30, 1915) would have passed, thus rendering ineffective the -writ, while, in determining the questions, constitutional and statutory, involved, the circuit court would have, had a direct financial interest, because upon such decision might rest the right of the circuit judge to receive the benefits of Laws 1907, Ch. 49, which provides for reimbursements of certain traveling “expenses” incurred in the discharge of the duties of circuit judges.</p> <p>2. Courts — Decisions—Obiter Dicta — General Expressions in Opinions, Weight Accorded Them.</p> <p>General expressions of the court, in an opinion, if they go beyond the case, may be respected, but should mot control the judgment in a subsequent suit when the very point is presented for decision.</p> <p>3. Mandamus — Mandamus Against State Auditor — Warrant for Supreme Court Judge’s Expenses — Remedy, Mandamus, or Action Against State — Propriety of Remedy — Statutes, Distinct Remedies Under.</p> <p>The presiding Judge of the Supreme Court brought mandamus against the state auditor, who had refused to issue warrants to the applicant and the other Judges of that Court, for a certain month, to compel him to issue a warrant in payment of the month’s allowance in consideration of increased expenses incident to a change of actual residence by such Judge from his legal residence to the capital, pursuant to Laws 1911, Ch. 239, providing that, where a Supreme Court judge, not a legal resident .of the state capital, shall remove thereto, he shall be paid $50 monthly in consideration of such increased expenses; the application being made under Code Civ. Proc., Sec. 764, authorizing the Supreme Court and the circuit courts to issue a writ of mandamus to any person or 'Officer “to compel the performance of an act specially enjoined as a duty resulting from an office, trust, or station,” and Sec. 7 65, providing that-the writ “must issue in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law.” The auditor contended that plaintiff’s remedy was by an action at law against the state in the Supreme Court, pursuant to ■Code Civ. Proc., Sec. 25, et seq., which provide that any person aggrieved by refusal of state auditor 'to allow any just claim may sue the state. Held, that Sec. 25 refers to, and applies only to, cases where the auditor is vested by law with some judgment or discretion as to the amount, if any, of liability on a claim against the state; that, there- being no dispute in the instant case: as to the amount to be paid, if anything, the .payment was a purely ministerial duty, imposed by the statute, and the auditor is vested with no discretion in the matter -of allowing the claim, and a writ of mandamus was the proper remedy.</p> <p>4, Mandamus — Mandamus, Distinguished from Action at Law Against State to Recover Claim — Statute—Adequate Remedy at Law, Defined.</p> <p>Upon an application, by the presiding Judge iof the Supreme Court, against the state auditor, to compel him to issue a warrant upon state treasurer to cover .plaintiff’s claim for a monthly allowance for expenses, arising under Laws 1911, Ch. 239, providing for payment to judges -of said Court not legally resident at the state capital and who have changed their actual residence thereto, shall be paid the fixed sum of $50 per month, for his increased expenses incident to such removal, payable on certified vouchers of such judge, and the. auditor having refused to issue warrants to the members of said Court to cover such amounts for a certain month, held, that, in the ordinary course of law, an action by such judge against the state, under Code Civ. Proc., Sec. 25, .commenced after plaintiff’s cause of action had accrued, could not have -been prosecuted to final judgment prior to a date when the appropriation for the payment would have lapsed, thus requiring plaintiff to wait, in any event, until the money for that purpose had been appropriated by some future Legislature; that, further, it requires more than a right to recover on a future date to constitute adequate relief and to justify a refusal of relief by mandamus; that such suit at law is not a plain, speedy, and adequate remedy, since such remedy, to obviate mandamus, must be equally convenient, beneficial, and as effective as mandamus, -placing the relator in the same position he would have been in had the duty sought to be enforced been .performed; and no substitute for a warrant for $50 on the state treasurer, to which warrant plaintiff is entitled, can afford him an adequate remedy.</p> <p>5. Constitutional Law — Statute, Validity of — Test of Unconstitutionality of Statute.</p> <p>State constitutions do not grant powers to the representatives -of the- people, but such representatives have all powers of the sovereign people not withheld from them by the Constitution, or given to the federal government by the federal -Constitution; hence it follows that an act of a state legislature will not be held unconstitutional unless its unconstitutionality appears-practically bey-ond reasonable doubt.</p> <p>6. Constitutional Law — Statute, Validity of — Interest of Court in Question Determined — Rule of .Determination in Such Case.</p> <p>Where the court has a direct pecuniary interest in the decision to be rendered, it will not be content to base the decision upon the rule that a legislative act will not be held unconstitutional unless its unconstitutionality appears beyond a reasonable doubt, but, owing to such interest, the court should refuse to uphold the act and issue a writ of mandamus in favor of one of the j-udges of the court, unless it appears clear that, upon both reason and authority, the law in question is constitutional.</p> <p>7. Judges — Supreme Court Judges — Allowance for Increased Expenses of Living — “Increase of Salary” — “Salary”—“Compensation” — “Pay”—r-“Wages” — “Pees” — “Perquisites,” and “Emoluments,” Distinguished from “Expenses.”</p> <p>Laws 1911, Oh. 239, provides that when a Supreme Court judge not legally resident at the state capital shall have changed •his actual residence thereto, there shall be paid to said judge, in consideration of expenses incident to removal to the capital, the increase >of expenses of living at the capital, and the expenses of traveling to and from such legal residence the fixed sum of $50 per month, payable on the certified vouchers of such judge. Const., Art. 21, Sec. 2, after fixing the salaries of Supreme Court judges, provides that they shall receive no fees or perquisites whatever for the performance of any duties connected with their offices, and prohibits increase of their salaries by the Legislature except as provided in the Constitution itself. Art. 5, Sec. 30, provides that the judges of thei Supreme Court shall receive such salary as may be provided by law, consistent with the Constitution, and no such judge shall receive any compensation, -perquisite or emoluments for or on account of his office, in any' form whatever, except such salary. The state auditor having refused to pay to the Presiding Judge of the Supreme Court the amount provided hy said Ch. 239 to be paid to him, such Judge brought mandamus in the Supreme Court to compel the auditor to issue a warrant covering such amount. Held, that the allowance of expenses incident to the performance of his official duty, by a judicial or other officer, is not violative of the constitutional prohibitions against the allowance of perquisites to public officers; since the intent of the statute, in allowing such expenses, was to save the official salary to him free of encroachments thereon, through expenses imposed by his official position; and such expense is not an “increase in salary,” a “perquisite,” not an “emolument of office,” within the constitutional inhibition; the word “emolument” being a term broad and comprehensive, including within it “perquisites,” “salary,” “compensation,” “pay,” “wages,” and “fees,” and the word “perquisites” being defined as a gain or profit incidentally made from employment in addition to regular salary or wages, something gained by a place or office beyond the legal salary or fee, which terms do not include an allowance for expenses, incident to the discharge of the duties of a public office.</p> <p>McCoy, P. J., taking no part herein.</p>

Hon. Jambs McNbnny, Judge. Action by James W. Curran and .another, co-partners as Curran & Curran, against Christina Kent, to compel specific performance of a contract for the sale of realty. From á judgment in favor of plaintiffs, and from an order denying a new trial, defendant appeals.

Hon. William G. Rice, Judge. George E. Flavin, the defendant, was convicted, a new trial being denied, and he appeals. (i) Under point one of the opinion, Appellant cited: Code Cr. Proc., Sec. 206; Ekern v. McGovern et al, (Wis.) 142 N. W. 595, 617; McKay v. State, 132 N. W. 741, and 135 N. W. 1024; Laws 1895; Ch. 64; 'Const. Art. VI., Sec. 10; Const.

<p>Judgment — Default—Opening Default — Affidavit of Merits — Attorney’s Personal Knowledge of Merits, Necessity of Showing.</p> <p>Affidavits of merits made by defendant’s attorneys for the purpose of opening a default judgment, one of which affidavits was that from defendant’s statement of the case to him he verily 'believed defendant had a good and substantial defense on the merits, the other stating that defendant had a good and meritorious defense on the merits, held, insufficient, in that there is no showing that either attorney had any personal knowledge as to the merits of the action; following Des Moines Ins. Ass’n. v. -Clute, 35 S. D. 154, 151 N. W. 281.</p>

ITon. Carl G. Sherwood, Judge. Action 'by John Culhane and another, partners as Culhane & Kinney, against George Btting and another. From a judgment for defendants, and from an order denying a. new trial, plaintiffs appeal. (1) Under point one of the opinion, Appellant cited: Hunt v. Brown, 15 N. E. 590 (Mass.); Brown v. Gallaudet, 80 N. Y. 413; Eessler v. Gerli, 126 N. Y. Suppl. 698. Respondent cited: 23 C)”c. 729; 24 Esncy. of Law, 796; Brigg v. Richmond, (Mass.) 20 Am.

Hon. Robiírt B. Tripp, Judge. Action by E. A. Eads against L. L. Wagner, Sheriff, to recover possession of specific personal property. From. an order overruling a demurrer to the complaint, defendant appeals. (x) Under point one of the opinion, Respondent cited: Johnson v. Flillenbrand, 18 S. D. 446.

Hon. Robert B. Tripp, Judge. Action by James Carlon against the Western Union Telegraph Company, to recover damages resulting from plaintiffs sale of oats at a lower price, owing to defendant’s understating the price in a telegram, caused by mistake in transmission. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (i) Under point one of the opinion, Appellant cited: Sis-son v. Cleveland Toledo.

Hon. Devi McGee, Judge. Action by James A. Cessna against the Otho Development & Power Company, the Otho Gold Mining and Milling Company, the Chicago Savings Bank and Trust Company, and Deverett Thompson, Trustee, and others, to enforce miners’ liens. From an order appointing a receiver for the defendant, Otho Development ancl Power Company, the named defendants appeal. (i) Under point one of the opinion, Appellants cited.

<p>1. Specific Performance — Cancelled Desert Land Filing — Value of Desert Dand Contracted to be Sold, Sufficiency of Evidence.</p> <p>In an action by vendor for specific performance of contract of sale of realty, embracing a desert land filing which was can-celled after t'he sale was made, held, that the evidence was insufficient to sustain finding that the value of such filing was trifling.</p> <p>2. Vendor and Purchaser — Action for Price — Desert Dand Filing— Doss of Filing by Vendee’s Neglect — Measure of Damages.</p> <p>Where title has passed to vendee under a contract of purchase of land, including a desert land filing, and his rights under such filing were thereafter Lest through his neglect to perform the necessary work under the filing, held, that plaintiff, the desert land entryman, could, in a suit for purchase money under the contract, recover full purchase price without deduction, notwithstanding the cancellation of the filing. Dictum.</p> <p>3. Vendor and Purchaser — Action for Damages — Doss of Desert Dand Filing by Vendor’s Failure to Perform Work After Sale-Right to Recover Damages.</p> <p>If vendor sued for breach of contract to. purchase land, including a desert land filing, he would be entitled to recover damages, regardless of the cancellation of the filing for failure to perform the necessary work on the land after date of contract, the cancellation of the filing being foreign to his right to recover. Dictum.</p> <p>4. Specific Performance — Sale of Desert Dand Entry Filing — Plaintiff's Inability to Perform, Owing to His Failure to do Work Under Filing — Effect of, on Remedy.</p> <p>Where a vendor under a contract of sale of land, including a desert land filing, failed, after contracting to sell, to perform work on the land necessary to preserve the filing, so that it was cancelled, held, that he could not maintain specific performance against the vendee; since he must at all times have kept himself ready and able to fully perform his contract of sale, and must preserve the property and control of the title thereto, although a court of equity may excuse a vendor who has innocently contracted to convey something slightly different or greater than he is able to convey.</p>

Hon. Carr G. Shrrwood, Judge. Action by th-e John Hoodie Dry Goods Company against A. C. Gilruth, to recover -for damages to plaintiff’s- goods from water caused by caving in of a r-oo-f on- defendant landlord’s -building. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Hon. Joseph W. Jones, Judge. ■ ■ Action by Henry Bunkers against O. E. Guernsey to recover back part of purchase money on a- sale of land. From a judgment for plaintiff, and from an order denying a new tidal, defendant appeals. (1) Under .point one of the opinion, Appellant cited: Ross v. Mather, 51 N. Y. 108; Neudecker v. Kohlberg et ah, 81 N. Y. 302; Cassidy v. Uhlmann, 170 N. Y. 537; Francisco v. Hatch, (Wis.) 93 N. W. 1118; First Nat.

Hon. Frank McNulty, Judge. Action -by the First National Bank of Morrison against Rose E. Sayer, upon’a .promissory note. From a judgment for defendant, and from, an order denying a new trial, plaintiff appeals. Appellant submitted that: There being no suspicious circumstances surrounding the endorsement and. transfer of this paper, there was no question to be submitted tO' the jury, and the court should have granted ’ plaintiff’s motion for an instructed verdict.

Hon. Frank B. Smith, Judge. Condemnation proceedings by the incorporated Town of Emery against the Chicago,. Milwaukee & St. Paul Railway Company, to condemn defendant’s right of way for the extension of a street across it. From a judgment awarding compensation, the defendant appeals. (i) -Under point one of th-e opinion, Appellant submitted that: Neither the amendment to Sec. 1441, Pol.

Hon. Alva E. Taylor, Judge. Action-(by the Murphy Liquor Co. against John D; Medbery and others, to- enjoin the city 'Commission of the city of Huron from revoking a liquor license. Upon hearing of a motion for temporary injunction, it was denied, and a .temporary restraining order vacated. Plaintiff appeals from the order -denying the temporary injunction and vacating- the restraining -order. (3) Under point -three of the opinion, Appellant cited: Secs. 2380, 2854, Pol.

Hon. Carr G. Sherwood, Judge. Action by Martha Moem against the Equitable Life Insurance Company of Iowa, a corporation, to recover upon a policy of life insurance. From an order overruling defendant’s demurrer to the complaint, it appeals.

Hon. Joseph W. Jones, Judge. Action by 'George W. Egan against C. L- Dotson and others to recover damages for libel.

Hon. Lüvi McGEB, Judge. In the matter of the election of directors and officers' of the Cumberlaind Mining & Milling Company, a corporation. From a judgment of the Circuit Court, in favor of Frank C. Crocker, A. M. McCall, and others appeal. Respondent submitted that: There are no assignments of error in appellant’s abstract or statement of the case. No specifications of error are referred to.

H-on. Joseph W. Jones, Judge. Action by Delia A. Prew against the South Dakota Central Railway ¡Company. Ero'm an order directing the clerk to- tax costs of the stenographer’s transcript of evidence, against plaintiff, she appeals.

Hon. Joseph H. Bottom, Judge. Action, 'by E. P. Evans against Tom C. Doolittle and others, to quiet title to land. From a judgment for defendants, plaintiff, appeals. Appellant submitted that: There is no sufficient description in the deed of any lot or tract sold at tax sale because there is no designation of any county or state; and cited: Tucker v. Van-Winkle, 105 N. W. 607; G. E. -Sanborn & Co. v. Alston et al., 116 N. W. 1099.

Hlon. Robert B. Tripp, Judge. Louis ITorner, the defendant, was convicted of a violation of the liquor laws; a judgment of conviction having been entered upon overruling a demurrer to the information; .and from the judgment, and from the order overruling the demurrer, defendant appeals. (i) Under point one of the opinion, Respondent cited: Code Cr.

Hon. Joseph H. Botttjm, Judge. Action by Ethel M. Roberts against A. H. Brown, to recover for services alleged to have been performed for him as owner of a store business. From' a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Appellant ■ submitted that: Plaintiff is- conclusively denied a recovery on account of her contractual admissions which are irreconcilably inconsistent with her theory of the case.

Hon. Levi McGkk, Judge. Action by Hans Olson against Frank H. Kirk and others, for possession of land patented to plaintiff’s grantor under the federal homestead laws; defendants claiming under a canceled placer mining claim and possession thereunder. From a judgment for plaintiff, and from an order 'denying a new trial, defendants appeal.

Hon. Frank McNulty, Judge. Action by Thomas Schultz against the Des Moines Mutual Hail Insurance Association, to recover upon a policy of hail insurance. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (i) Under point one of the opinion, Appellant cited: Secs, io, 18 and 20, Defendant’s by-laws.

Hon. James McNenny, Judge. Action by J. W. Scott against H. C. Hjantz as sheriff, for conversion of personalty. From a judgment for defendant, plaintiff appeals. (1) Under point one of the opinion, Appellant cited: Myrick ,v. Bill, 3 Dak. 284, N. W. 268; Ackee v. Campbell, 23 Wend. 371; Burket v. Purdy, 2 Okla. 396, 37 Pac. 1053. Respondent cited: Civ. Code, Sec. 2369; Howard v. Dwight, 8 S. D. 398. (2) Under point two of the opinion, Appellant cited: Civ. ■Code, Sec. 2369.

Hon. Arva E. Tayror, Judge. Action ¡by Winfield S. Van Horn -against Duke Simpson and another, to recover for personal injuries from negligence. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal.

Hon. Carl G. Sherwood, Judge. Action by Elizabeth E. Gamble against E. R. Keyes for damages for -forcibly entering and injuring plaintiff’s house, assaulting her, etc. From an order refusing to strike out certain paragraphs of the answer and overruling a demurrer thereto, plaintiff appeals. (1) Under point one of -the opinion, Appellant cited: U. S. Const., Art. 6, Sec. ii; Const.