Volume 36 — Idaho Reports

Hon. Raymond L. Givens, Judge. Motion by defendants to quash an attachment. From order denying motion, defendants appeal. The affidavit for attachment must state facts sufficient to conform to all the statutory requirements.

Hon. Wm. A. Babcock, Judge. Condemnation proceeding. From an order refusing to appoint appraisers, plaintiffs appeal. No person can appropriate the water of one stream and divert it into another and then, refusing to use it himself, bar others from using it. (Sec. 5560, C. S.; Hagerman Irr. Go. v. East Grand Flam Drainage Dist., 25 N. M.. 649, 187 Pae. 555.) This water was again subject to appropriation.

Hon. Ed L. Bryan, Judge. Action on contract. Judgment for plaintiff. The facts in this case come squarely within the case of Welch v. Spokane etc. By. Go., 32 Ida. 668, 186 Pac. 915. While Rule 26 has been amended since the Welch case, nevertheless the rule has been interpreted to mean that the appeal is perfected and completed in the supreme court, where it embodies a reporter’s transcript, only when the transcript is settled and allowed by the trial court.

Hon. Ed L. Bryan, Judge. Action on contract. Judgment for defendant. A reporter’s transcript prepared under C. S., sec. 6886, will not be stricken from the record on appeal because it was not prepared, lodged, served and settled within the time allowed, where appellant has obtained and served the proper order and paid the fees, and the delay is not due to any negligence on his part.

<p>APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. R. M. Terrell, Judge.</p> <p>Appellants were convicted of murder of the first degree and murder of the second degree, respectively.</p> <p>The court’s action in passing judgment on defendants while motion for a new trial was pending constitutes reversible error. (People v. Felix, 45 Cal. 163.)</p> <p>Prejudice from separation of jury is presumed, unless state proves beyond a reasonable doubt that no prejudice occurred. (People v. Backus, 5 Cal. 275; Hempton v. State, 111 Wis. 127, 86 N. W. 596; Organ v. State, 26 Miss. 78; People v. Adams, 143 Cal. 208, 76 Pac. 954; United-States v. Swan, 7 N. M. 306, 34 Pae. 533; State v. Church, 7 S. D. 289, 64 N. W. 152; Nicholson v. State, 18 Wyo. 298, 106 Pac. 929; Carter v. State, 78 Miss. 348, 29 So. 148; Barnett v. State, 50 Tex. Cr. 538, 99 S. W. 556; People v. Thornton, 74 Cal. 482, 16 Pac. 244; State v. West, 11 Idá. 157, 81 Pac. 107; State v. Sly, 11 Ida. 110, 80 Pac. 1125.)</p> <p>The court improperly allowed occurrences after the homicide, and statements of Rebecca Chacon, to be admitted in evidence. (Holt v. Commonwealth (Ky.), 13 S. "W. 71; People v. Lane, 100 Cal. 379, 34 Pae. 856.)</p> <p>The court improperly permitted evidence of conditions on September 8, 1921, in the room where the shooting occurred on July 12, 1921. (Abernathy v. State, 129 Ala. 85, 29 So. 844.)</p> <p>The court improperly refused Rebecca Chacon’s motion for advisory verdict. (Wharton on Homicide, secs. 32, 38.)</p> <p>If it appears that a defendant was not prejudiced by the separation of the jury a new trial will not be granted. (16 C. J., p. 1167, sec. 2675, note 4; State v. Levy, 9 Ida. 483, 75 Pae. 227; State v. Sly, 11 Ida! 110, 80 Pac. 1125; State v. West, 11 Ida. 157, 81 Pac. 107.)</p> <p>Alleged misconduct or improprieties of the jury or counsel should be objected to and exceptions saved to an adverse ruling of the court thereon, at the time of the alleged misconduct or improprieties. (State v. Reed, 3 Ida. 754, 35 Pac. 706; People v. Quote Wah Choi, 2 Ida. 90, 6 Pac. 112; State v. Harness, 10 Ida. 18, 76 Pac. 788; State v. Murphy, 7 Ida. 183, 61 Pac. 462; People v. Ah Hop, 1 Ida. 698; State v. Schieler, 4 Ida. 120, 37 Pac. 272; State v. Roolce, 10 Ida. 388, 79 Pac. 82; State v. Corcoran, 7 Ida. 220, 61 Pae. 1034; State v. Moon, 20 Ida. 202, Ann. Cas. 1913A, 724, 117 Pac. 757; State v. McCmnis, 12 Ida. 336, 85 Pac. 1089; State v. Rowe, 19 Ida. 416, 113 Pac. 461; State v. Rigley, 7 Ida. 292, 62 Pac. 679; State v. Marquardsen, 7 Ida. 352, 62 Pac. 1034; State v. Sutiles, 13 Ida. 88, 88 Pac. 238; State v. Smith, 4 Ida. 733, 44 Pae. 554; State v. Peck, 14 Ida. 712, 95 Pac. 915; State v. Harris, 18 Ida. 620, 111 Pae. 406; State v. Hurst, 4 Ida. 345, 39 Pae. 554; Schumacher v. Trwman, 134 Cal. 430, 66 Pac. 590.)</p> <p>Statements made by the accused immediately after assault resulting in homicide are admissible as a part of the res gestae. (1 Wharton, Crim. Ev., sec. 262, and cases cited; State v. Ellington, 4 Ida. 529, 43 Pac. 60; State v. Webster, 21 Wash. 63, 57 Pac. 361; Parrish v. State, 139 Ala. 16, 36 So. 1012; Crowder v. State, 78 Tex. Cr. 344, 180 S. W. 706; State v. Messervey, 105 S. C. 254, 89 S. B. 662; State v. Lantz, 149 N. C. 551, 63 S. E. 198; People v. Sampo, 17 Cal. App. 35, 118 Pac. 957; State v. Driskill, 26 Ida. 738, 145 Pac. 1095.)</p> <p>The question of remoteness of evidence rests largely with the trial court. (16 C. J. 1087, notes 82, 83, p. 561.)</p> <p>The admissibility or rejection of evidence is a question for the court to decide. (16 C. J., sec. 2290, notes 85, 86, p. 929.)</p> <p>It is not prejudicial error to refuse a motion for an advisory verdict. (State v. Sullivan, 34 Ida. 68, 17 A. L. R. 902, 199 Pac. 647; People v. Daniels, 105 Cal. 262, 38 Pac. 720.)</p>

<p>APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. O. R. Baum, Judge.</p> <p>Conviction for crime of adultery.</p> <p>Testimony that it was generally reputed that the defendant was a married man is not sufficient to sustain a verdict of guilty in an adultery prosecution. (Graft v. State, 13 Ga. App. 79, 78 S. E. 776; State v. Coffee, 39 Mo. App. 56; Miner v. People, 58 111. 59; Wood v. State, 62 Ga. 406.)</p> <p>An extrajudicial confession by the defendant of his marriage is not alone sufficient proof thereof to sustain a conviction. (State v. Downing, 23 Ida. 540, 130 Pac. 461; Craft v. Siate, supra; People v. Isham, 109 Mich. 72, 67 N. W. 819; State v. Timmens, 4 Minn. 325 (Gil. 241).</p> <p>Evidence of opportunity alone to commit the offense of adultery is not sufficient to sustain a conviction, (State v. Thompson, 133 Iowa, 741, 111 N. W. 319.)</p> <p>The brief of appellant shall contain a distinct enumeration of the several errors relied on. (Rule 42, Rules Supreme Court; State v. Maguire, 31 Ida. 24, 169 Pac. 175; State v. Snook, 34 Ida. 403, 201 Pae. 494.)</p> <p>Marriage may be established by the introduction of the original marriage license. (C. S., sec. 4608; 2 C. J., see. 59, p. 26, note 36.)</p> <p>Marriage may be established by reputation (2 C. J., see. 58, p. 26, note 35; Plummer v. State, 27 Ga. App. 185, 108 S. E. 128); and by the confession of the defendant where it is corroborated by other testimony. (2 C. J., sec. 61, p. 27, note 47.) ,</p>

Hon. Robt. M. Terrell, Judge. Action for breach of contract. Judgment for plaintiff. The statute requiring application for relief from a judgment or order to be made within six months after the adjournment of the term does not apply to void judgments and orders.

<p>Beal Property — Contracts — Sales — Payment of Purchase Price Contingent upon Making of Loan by Purchaser — Mutuality, Lack of — Specific Performance — Subsequent Offer to Perform.</p> <p>1. Where a contract for the sale of certain realty at a purchase price of $8,500 provides that the purchaser shall obtain a loan to make payment of $5,000 of the purchase price and upon receiving said loan such payment will be made, and that the balance of the purchase price shall be paid in three successive instalments, the contract lacks mutuality.</p> <p>2. Where in a contract for the sale of real property the initial payment upon the purchase price is made payable upon the happening of an event which may or may not happen, at the pleasure of the payor, the contract lacks mutuality.</p> <p>3. Mutuality of obligation is an essential element of the right to enforce specific performance in a court of equity.</p> <p>4. Laek of mutuality in a contract for the sale of real property is not remedied by a subsequent offer by the party not bound to perform the obligation to which he should fairly have bound himself in the contract.</p>

Hon. Edgar C. Steele, Judge. Motion to dismiss appeal. “The question of waiver is mainly a question of intention, which lies at the foundation of the doctrine. Waiver must be manifested in some unequivocal manner, and to operate as such it must in all cases be intentional. There can be no waiver unless so intended by one party and so understood by the other, or one party has so acted as to mislead the other and is estopped thereby.” (40 Cyc. 261; Coeur d’Alene v. Spokane ete.

<p>Promoter’s Contract — Liability op Corporation.</p> <p>If a contract is made with the promoters of a corporation in contemplation of its organization and for its benefit, it eonstitutes a continuing offer, and if, after the organization of the corporation, it accepts the benefits of the contract, it accepts this continuing offer and makes the contract its own.</p> <p>Publisher’s Note.</p> <p>Liability of corporation to third parties on promoters’ contracts, see notes in 13 Am, St. 28; 8 Ann. Cas. 262; Ann. Oas. 1916C, 105.</p>

<p>Replevin — Title to Maintain Action — Evidence.</p> <p>1. In an action in claim and delivery, plaintiff must recover on the strength of his own title, and not on the weakness of defendant’s title.</p> <p>2. Held, under the facts of this ease, appellant failed to establish his title to or right to possession of the personal property involved.</p>

<p>Evidence — Documentary—Oral—Error Invited by Party.</p> <p>1. Where the material evidence is not all documentary, hut is in part oral and conflicting, this court will not disturb either the verdict of the jury or the finding of the trial court if there is substantial evidence to support either.</p> <p>2. A party who invites an error by the trial court cannot be heard to complain thereof.</p>

<p>Original proceeding for Writ of Prohibition.</p> <p>Where a judge is disqualified, if he acts in a pending suit he acts without or in excess of jurisdiction, and a permanent writ of prohibition should be granted against him. (Forest Coal Co. v. Doolittle, 54 W. Ya. 210, 46 S. E. 238'; North Bloomfield eta. Co. v. Keyser, 58 Cal. 316; State v. Seattle Board, 19 Wash. 8, 67 Am. St. 706, 52 Pac. 317, 40 L. R. A. 317; State v. Judge of Third Judicial District, 38 La. Ann. 247; State v. Judge of Twenty-first Judicial District, 37 La. Ann. 253; Oalcley v. Aspinwall, 3 N. Y. 547; People v. Gill, 131 N. Y. Supp. 902; People v. District Court, 60 Colo. 1, 152 Pac. 149.)</p> <p>Where a judge or court has no jurisdiction to proceed in an action, or where no contempt has been committed at all, a permanent writ of prohibition should be granted against contempt proceedings. (State v. Circuit Court, 97 Wis. 1; 65 Am. St. 90, 72 N. W. 193, 38 L. R. A. 554; People v. Mayer, 24 N. Y. Supp. 621; Buggies v. Superior Court, 103 Cal. 125, 37 Pae. 211; B'iirke v. Superior Court, 7 Cal. App. 178, 93 Pac. 1058; Gordon v. Buckles, Judge, 92 Cal. 481, 28 Pac. 490; People v. Carrington, 5 Utah, 531, 17 Pac. 735; State v. Superior Court, 31 Wash. 481, 71 Pac. 1095; State v. Langhorne, 8 Wash. 447, 36 Pac. 438.)</p> <p>The commencement of a proper action against a judge, or the making of allegations in any paper filed that are material to the relief sought, authorized and legalized, is not contempt of a judge or of a court, although the allegations may, to some extent, be a reflection on the judge or court. (Works v. Superior Court, 130 Cal. 304, 62 Pae. 507; In re Cottingham, 66 Colo. 335, 182 Pac. 2; Younger v. Superior Court, 136 Cal. 682, 69 Pac. 485; Harkness v. Hyde, 31 Ida. 784, 176 Pae. 885.)</p> <p>The judgment of the district court in a matter of contempt is final and conclusive. (C. S., sec. 7396; McDougall v. Sheridan, 23 Ida. 191, 128 Pae. 954.)</p> <p>The district court as a court of record has inherent power to punish contempts and to expunge from its records and files all scurrilous, scandalous, impertinent and defamatory matter or pleadings. (McDougall v. Sheridan, 23 Ida. 191, 128 Pae. 954; In re Debs, 158 U. S. 564, 15 Sup. Ct. 900, 39 L. ed. 1092; Ex parte Terry, 128 U. S. 225, 9 Sup. Ct. 77, 32 L. ed. 405; Ex parte Robinson, 86 U. S. 505, 22 L. ed. 205; Ex parte Tillinghast, 4 Pet. 708, 7 L. ed. 798; Bradley v. Fisher, 80 U. S. 352, 20 L. ed. 646; Lamberlson v. Superior Court, 151 Cal. 458, 91 Pac. 100, 11 L. R. A., N. S., 619; Hughes v. Monour, 28 Cal. App. 462, 152 Pac. 968; Ex parte Ah Men, 77 Cal. 198, 19 Pac. 380.) This rule is applied without exception by the different states and federal courts as appears by copious note shown in 8 A. L. R. 1543 et seq.; People v. Durrant, 116 Cal. 179, 48 Pac. 75.</p> <p>The fact that the pleading purported to be filed against the judge does not relieve the plaintiffs herein from liability for contemptuous matter contained therein, and does not relieve this defendant from the duty of punishing such contempt and does not disqualify him from taking action in regard to such contempt. (Const. Ida., art. 5, sec. 13; Morrison v. Snow, 26 Utah, 247, 72 Pae. 924; In re Snow, 27 Utah, 265, 75 Pac. 741; Ropes v. Steiawrt, 54 Fla. 185, 45 So. 31; Kélley v. Boettcher, 85 Fed. 55, 29 C. C. A. 14; Kruegel v. Bolanz, 100 Tex. 572, 102 S. W. 110; McDougall v. Sheridan, supra.)</p> <p>Public policy demands, and for time immemorial the law has been, that a judge of a court of record be immune from suit because of any matter arising out of the exercise of his judicial function. {Hill v. Morgan, 9 Ida. 777, 76 Pae. 765; Bradley v. Fisher, supra; Randall v. Brigham, 74 U. S. 283, 19 L. ed. 285; Casserleigh v. Malone, 50 Colo. 597, 115 Pac. 520; Comstoclc v. Eagleton, 110 Okl. 487, 69 Pae. 955; Kroegel v. Murphy (Tex. Civ.), 126 S. W. 343; Kruegel v. Cobb (Tex. Civ.), 124 S. W. 723; Kruegel v. Bolanz, supra; Alzua v. Johnson, 231 U. S. 106, 34 Sup. Ct. 27, 58 L. ed. 142; Grove v. Van Duyn, 44 N. J. L. 654, 43 Am. Rep. 412; Broom v. Douglass, 175 Ala. 268, 57 So. 860; Harrison v. Redden, 53 Kan. 265, 36 Pac. 325; Pickett v. Wallace, 57 Cal. 555.)</p>

Hon. Raymond L. Givens, Judge. Action to foreclose mechanic’s lien.