Volume 36 — South Dakota Reports

Hon. Thomas L. Bouck, Judge. Proceeding by Charles Nedved and others before the Board of Railroad Commissioners, to compel the Chicago, Milwaukee & St. Paul Railway Company- to construct and maintain a side track. Prom an order of the Board requiring defendant to construct a side track, affirmed by the circuit court, and from its • judgment affirming said order, defendant appeals. (1) Under point one of the opinion, Appellant submitted that: Sec. 534,- Civ.

Hon. Arva E. •Tayror, Judge. ' Action by the Haley & Bang Company again-st the City of Huron, to recover damages for injury to plaintiff’s stock in -the basement of his building, caused by negligent flooding thereof by defendant. From a judgment in favor of defendant, and an order denying a new trial, plaintiff appeals.

Hon. Alva E. Taylor, Judge. Action by Elizabeth M. Walters against the City of Carthage, to recover for damages to her son from negligence. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

<p>Appeal, from Circuit -Court, Marshall County. Hon. Thomas L. Boucic, Judge.</p> <p>The defendant, John Adney, was convicted of the crime of adultery, and h-e appeals.</p> <p>Respondent cited: Nelson on Divorce and Separation, Section 579; Alt v. Banholzer, 39 Minn' 311; State v. Eaton, 85 Wis. 587, 35 N. W. 890; Teter v. Teter, 88 Ind. 494; Nelson on D. & S., Sec. 382; Cook v. Cook, 144 Mass. 163, to N. E. 749; Googins v. Googins, 152 Mass. 533, 25 N. E. 833.</p>

Hon. Frank McNulty, Judge. Action by Adolph Johnson against Rose E. Sayer, in claim and delivery. From a judgment for plaintiff, and' from an order denying a new trial, defendant appeals.

Hon. Joseph H. Bottom, Judge. Action 'by Clement F. Porter, receiver of the Independent Elevator Company, a domestic corporation, ag'ainst C. PI. Lien, to recover moneys paid to defendant by plaintiff’s manager, for bank stock. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Hon. Alva E. Taylor, Judge. ' ■ Action- by -the Virgil State Bank against S. M. Miller, based upon -checks causing an overdraft in defendant’s account with plaintiff (certain promissory notes being involved- in another branch of the case). From- a judgment for -defendant upon the cause of action involving- the overdraft, and from an order denying- a new trial, -plaintiff appeals.

Hon. John F. Hughes, Judge. Action by J. A. Brekke agains-t William W. Waite, for a money judgment, _ in which an, attachment was- issued and dissolved. From the order dissolving the attachment, plaintiff appeals, and moves for relief from a default in timely filing of brief on appeal; the brief having been stricken from files upon other grounds.

John F. Hughes, Judge. Action by Johin Van Abel against G. F. Wemmering, to recover damages upon a contract for sale of land. From- a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Hon. William 0. Rice, Judge. Action by William P. Casey against Louis D. Smith and oihers, to quiet title. From a judgment for defendants, and form an order denying a new trial, plaintiff appeals. (2) Under point two of the opinion, Appellant cited; Code Civ. Proc., Sec. 54; Stearns v. Gittings, 23 111. 387; Duck Island Club v. Bexstead, 174 111. 435, 51 N. E. 831; Bennett v. Moore, 18 S. D. 109; 1 Cyc. un, subd.

<p>Appeal from Circuit Court, Codington County. Hon. Carl G. Sherwood, Judge.</p> <p>Action by George W. Egan against George H. Eastwood and Lydia R. Eastwood, -to recover damages for libel. From an order sustaining a demurrer to the complaint, and refusing to permit jxlaintiff to amend, he appeals.</p> <p>(2) Under point two of the opinion, Appellant cited: Brown v. Providence Telegram Pub. Co., (R. I.) 54 Atl. 1061; D’Auxy v. Star Publishing Co., 64 N. Y. S. 283; Palmerlee v. Nottage, 138 N. W. 3x2.</p> <p>Respondent cited: Newell on Libel and Slander, pp. 291, 5.79, 2nd Eid.</p>

<p>Principal and Agent — Bank Account in Principal’s Name — Notes, Authority to Sign.</p> <p>In an action íby a bank upon notes executed in defendant’s name by bis son, involving a bank account opened as a basis £or buying and shipping cattle, held, that the conversations between defendant and the bank cashier and an employee, concerning authorization by defendant to his son to check against the account in defendant’s name, and the course of subsequent dealings in which various notes, including those in suit, were executed by the son as agent, some of which notes were'paid in course of the business, constituted sufficient evidence to sustain findings by trial court for plaintiff.</p> <p>Whiting, J., dissenting.</p>

Hon. Joseph H. Bottum, Judge. Action by T. C. Sherman against J. W. Harris, to recover 'damages for deceit; plaintiff 'being assignee of one of the original claims. From a judgment for plaintiff, and from -an. order denying a new trial, defendant appeals. (i) Under point one of the opinion, Appellant cited: Civ.

Original petition in the Supreme 'Court by the State, on the relation .of E.i E. Theurer, against W. J. Heberlein, as Mayor of the 'City of Wessington Springs, and others, for a writ of mandamus to compel the city 'commission to canvass and declare the result of a special election to determine whether or not the city would incorporate under the general law. Defendants cited: Pol.

Hon Joseph W. Jones, Judge. Action -by the Haley & Lang Company against G. Del Vecchio, to recover for goods sold on account. From a judgment for plaintiff entered on a referee’s report, and from an order denying a new trial, defendant appeals. Appellant cited: Nat. Ulster Co. Bk. v. Madden, (N. Y.) 21 N. E. 408; Lyman v. Bechtel, 55 Iowa, 437, 7 N. W. 673; State v. N. Y. & N. J. Tel. Co., 8 Atl. 290; Am. Fire Ins. Co. v. Nat.

Hon. Robert B. Tripp, Judge. Action by Joseph Sohweinforth against the Schwenk-Barth Brewing Company, to recover for personal injury. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Appellant cited: Erdman v. Illinois Steel Company, (Wis.) 69 N. W. 993; Yerkes v. Northern Pac. Ry. Co.. (Wis.) 88 N. W. 33; Stephenson v. Duncan, (Wis.) 41 N. W. 337; Glenmont Lumber Co. v. Roy, 126 Fed. 524, 61 C. C. A. 506; 14 Am.

<p>Certiorari — Intoxicating Liquors — License Election — Petition for License — Jurisdiction—Evidence Dehors Record, Admissibility.</p> <p>Where the record -of an election to determine whether intoxicating liquors should he sold, and. of a petition for permit to sell, showed upon its face that the petition for the permit was signed by a sufficient number of voters, and there was nothing on the faca -of the return to the writ of certiorari to .show that any petitioners on the petitions were not legally qualified signers, nor that the members of the license board, wbo passed upon their -sufficiency, were among the signers, held, that, as in certiorari proceedings the- case is determinable on tbe record appearing fr-om return -of writ, and matters outside the record will not be considered to determine whether the action of the inferior -board is warranted by the facts, while, for the purpose of enabling the reviewing court to ascertain whether jurisdictional facts were established, it' will require return -of the evidence up-on which such facts were based, which evidence is that which was presented to the inferior tribunal and upon which it based its determination, yet evidence dehors the record, offered to rehut the return and to show that the -petitions did not contain the requisite number of signers, and that the inferior board acted without authority, is inadmissible.</p>

Hon. Revi McGee, Judge. In the Matter of the guardianship of the persons and estate of Edgar Mumford and Mabel Mumford. (i) Under point one of the opinion, Respondent cited: Sup. Ct. Rple 5. (2) Under point two of the opinion, Respondent cited: Sup. Ct. Rule 5; ITiepner v. Wheatley, 144 N. W. 924 (S. D.) ; Dúprel v. Collins, 146 N. W. 594 (S. D.).

<p>1. Indians — Indian Lands — Allottee Under Trust Patent — Alienation, Restrictions on, Effect on Allottee, on Hears — Federal Statute.</p> <p>A restriction, in a trust patent to an Indian allottee, under Act of Congress of March 2, 1889, Chap. 405, 25 Stat. 888, upon alienation of the land so held, for 2 5 years, is binding not only upon the allottee, hut- upon this heirs, and such restrictions run with the land.</p> <p>2. Indians — Indian Allotments — Restrictions on Alienation, Removal of by Subsequent Statute — Right of Heirs to Sell Land.</p> <p>Under,Act Cong. May 27, 1902, Sec. 7, 32 Stat. at Large, 275, providing that the adult heirs of any deceased Indian to whom a trust or other patent containing restrictions upon alienation is issued for land allotted to ¡him, may sell and convey the lands inherited from such decedent, subject to approval of the Secretary of the Interior, and, as to minor heirs, that their interests shall he sold by guardian appointed by the proper court, upon which approval title shall pass, held, that these provisions, upon death of the allottee, in effect removed restriction upon alienation found in a patent issued pursuant to Act of Congress of March 2, 1889, Chap. 405, 25 State. 888, and a deed executed by the adult heirs of the allottee, and approved by the Secretary of the Interior, conveys a merchantable! titlei to such land.</p> <p>3. Indians — Restriction on Alienation — Power of Congress to Remove.</p> <p>The federal Government, acting through Congress, has power to remove restrictions upon alienation of land allotted to an Indian, and to change the manner of transferring title thereto.</p> <p>4. Courts — State Circuit Court — Indian Heirships to Allotted Lands —Jurisdiction, After Conveyance by Heirs — Termination of Government’s Jurisdiction.</p> <p>The jurisdiction of the federal Government over Indian allotment lands is terminated upon execution, by the adult heirs of an Indian allottee, of a deed conveying the land, ap,proved -117 the Secretary of the Interior, and the land then came under exclusive jurisdiction of the state courts, whether such approval -was based upon a decree of final distribution of a state county court,. or upon information derived from other sources.</p> <p>5. Vendor and Purchase!* — Merchantable Title — Indian Land — Heir-ships of Allottee — Jurisdiction of State Ciircuit Court to Determine.</p> <p>Where the state circuit court acquired jurisdiction of heirs of an Indian allottee in an action to quiet title begun after a federally approved deed was executed by such heirs, whereby federal jurisdiction over the land was terminated, the unknown heirs, devisees, legatees, and the executor or administrator of the allottee being made parties, held, that such court had jurisdiction to- determine .the title to the land, and its decree declaring the plaintiff in the suit to be owner in fee, set the title at rest.</p>

Hon. Thomas L. Boucic, Judge. Election contest by A. L. Ward and others, against C. C. Fletcher and others, members of the Board of Commissioners of the City of Aberdeen, Brown County, S. D., Ed. M. Hall, Mayor, and H. C. Behrens, member of the Board of Commissioners; involving the question whether intoxicating liquors should be sold at retail. From a judgment for contestees, contestants appeal. (1) Under point one of the opinion, Respondent cited: First Nat.

<p>Appeal from 'Circuit Court, Beadle County. Hon. Arva E. Tayror, Judge.</p> <p>Action by E. L. Sobager against S. D. Dinneen, to recover on a purchase money note. From a judgment for plaintiff, and from an order denying a new trial, defendant a-peals.</p> <p>(1) Under point one of the opinion, Respondent cited: Code Civ. Proc., Secs. 524, 525, 526.</p> <p>(2) Under point two -of the opinion, Appellant cited. 2d Ed. Vol. 14, Am. & Eng. Ency. of. Eaw, 120, and cases there cited.</p> <p>Respondent submitted that: The guarantee, Exhibit 7, was no- part of the written contract 'between the parties at the time the note, Exhibit A, was delivered.</p> <p>(4) Under point four of the opinion, Respondent submitted that: No fraud or mistake being pleaded, or shown in the case, appellant is bound by his written -contracts as he signed them. That defendant received' the consideration, for which he contracted, and cannot claim failure of consideration; and ■ cited: Hil-1 v. Dilland, (Mo.) 161 S. W. 881; Sutrow v. Rhodes, (Cal.) 28 Pac. 98; Cobb v. Herron, 5 N. E. 189; Otis v. Cullum, (U. S.) 23 E. Ed. 496; Am. & Eng. Ency. of Law, 2d Ed., Vol. 6, p. 870.</p>

H|on. Alva E. Taylor, Judge. Action by A. C. Karsten against D. O. Root, to recover for purchase price of pianos sold by plaintiff’s assignor to defendant; defendant counterclaiming for profits on certain sales made by said assignor. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals.

<p>Appeal from Circuit Court, Charles Mix County. Hon. Robert B. Tripp, Judge.</p>

Hon. Cray Carpenter, Judge. Action by Eva Gruba against G. P. Chapman and others, to quiet title. From a judgment for defendants, and from an order denying a new trial, plaintiff appeals. (i) Under point one of the opinion, Appellant cited: Civ. Code, Secs, io, 15, 16; Beach on Modern Law of Contracts, Sec. 1345; Fonda v. VanHorne, 15 Wend. (N. Y.) 631; S. D. Civil Code, Secs. 330 and 337; 26 Am. & Eng.

<p>Appeal from Circuit Court, Hand County. Hon. John F. Hughes, Judge.</p> <p>On rehearing.</p> <p>(1) Under point one of the opinion, Appellant cited; Blackwell, iSec. 498, citing M-orro-w v. Lander, 77 W-is. 77, 45 N. W. 256; Allen v. Ozark Land 'Co., (Ark.) 18 B. W. 1042; 32 Fed. 2; Slyco-rd v. Healy, Bl-ackwell, Sec. 498; u D-esty, Sec. 148, p. 960; Larkin v. Wilson, 28 Kans. 515; Raburn v. Kuhl, 10 la. 92 et al; Blackmor-e v. Cooper, 15 N. D. 5, 106 N. W. 566, 4 L. R. A. (N. S.) 1074; Swope v. Prior, 10 N. W. 659, 58 la. 4x2; McGavock v. Poll-ook, 14 N. W. 659, 13 Neb. 535; Whittlesey v. Iioppinger, 35 N. W. 355, 72 Wis. 140; Nisbett v. Milner, 124 N. W. 22, 159 Mich. 537. Tax deed though regular on its face — special limitation does not apply when there is jurisdictional defect in proceedings. 3 N. D. 354, 56 N. W. 150 ; Roberts v. First Natl. Bank, 8 N. D. 504, 79 N. W. 1049; Sweigle- v. Gates, 9 N. D. 535, 84 N. W. 481; Eaton v. Bennett, 10 N. D. 346, 87 N. W. 188; P'ower v. Retching, 10 N. D. 260, 86 N. W. 737; Salmer v. Lathrop, 10 B. D. 216, 72 N. W. 570; Sheets v. Paine, 10 N. D. 106, 86 N. W. 117; Horswill v. Farnum, 16 S. D. 414, 92 N. W. 1082; Clifford v. Hyde Co., 24 S. D. 237, 123' N. W. 872.</p> <p>Respondent cited: Pol. Code, Sec. 2214; Bandow v. Wol-ven, 20 S. D. 445, and cases there cited: O’Keefe v. Dellenbeck, (Okla.) 83 Pac. 540; Keffingwell v. Warren,-2 Black 599; Pillow v. Roberts, 13 How. 476; Callanan v. Hurley, 93 U. -S. 390; Walker v. Kronkeit, 40 Fed. 133; Kinsey v. Fay, 25 Wis. 460; Waterson v. Davoe, 18 Kans. 223; Nmol' v. Myers, 109 N. W. 335; Moran v. Thomas, 19 S. D. 469; Bandow v. Wolven, 20 S. D. 445; Northwest Mortgage Co. v. Revtzow, 23 S. D. 562; Cornelius v. Ferguson, 23 S. D. 187; Sobek v. Bidwell, 24 S. D. 469; Gibson v. Smith, 24 S. D. 514; Gibson v. Pakarek, 27 S. D. 423; Rauderdale v. Pierce, 27 S. D. 460; McKinnon v. Fuller, (S. D.) 146 N. W. 910.</p>

Hon. Joseph W. Jones, Judge. Action by the Citizens' Bank of Newton., Iowa, against H. S. Rowe and another, to recover upon a .promissory note. From, a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (2) Under point two- of the opinion, Appellants cited: Black Hills Nat. Bank v. Kellogg, 4 S. D. 312; First Nlat. Bank v. Harvey, 29 S. D. 303.

Hon. Joseph W. Jones, Judge. Action by H. M. Hessenius against Harry A. Wetmore, doing business as the Sioux Fall's Auto. Company, to recover a deposit made by .plaintiff under a sales contract; defendant counterclaiming. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Hon. Joseph W. .Jones, Judge. Action by Martin Roskay against H. M. Hessenius, to recover damages for malicious prosecution. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (1) Under point one of the opinion, Appellant cited: Sec. 157, Jones Com. on Evidence,; Jones Com. on Evidence, Vol. 1, pp. 797, 799; Claiborne v. Chesapeake & O. Ry. Co., (W. Va.) 33 S. E. 262; 5 Am. & Eng.

<p>Appeal from Circuit Court, ' McPherson County. Hon. Thomas L. Boucic, Judge.</p> <p>Action by E. C. Sigler against- Katrina Lehr. From an order for defendant on taxation of costs, plaintiff appeals.</p> <p>Respondent cited: Laws 1913, Chaps. 172, 178; Sup. Ct. Rules 5, 6, 7.</p>

Hon.' Arva E. Tayror, Judge. Election contest by Daniel P. Wborton and others against Fred Bager, as Mayor of the City of Wolsey, and others. From a judgment for plaintiffs, defendants appeal. Appellants cited: State v. Gregory, (-S. D.) 127 N. W. 733; Pol. Code, Secs. 1910, 1907; 15 Cyc. 320. Respondents cited: Pol.

' Action by the Farmers’ & Merchants’ State Bank of Hecla, and by the First National Bank of Hecla, against J. I,. Michael, -the causes of action involved having been settled and action dismissed pending appeal from orders refusing to dissolve attachments in the suits. From, such orders, defendant appeals in each cáse.

Hon. Levi McGee, Judge. Action by Clara Belle Thomson against the Meridian Life Insurance Company of Indianapolis, Tnd. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (i) Under point one of the opinion, Appellant cited: Sec. 878, 879, 880, Civ. Code, p. 167; Germantown Trust Company v. Whitney, 19 S. D. 108; Citation 112. (3) Under point three of the opinion, Appellant cited: .Laws 1913, Oh. 178; Code Civ.

Action by C. M. 'Conger ’against George Ra Plant. On petition for rehearing, and- to be relieved- from default in serving and filing brief of appellant.

<p>Appeal — Affirmance—Settled Record Stricken, Rehearing, Refused— Procedure).</p> <p>Settled record and appellant’s brief having been stricken from files, and, upon rehearing, the order striking record remaining undisturbed, nothing is left for consideration by Supreme Court; and affirmance follows.</p>

Hon. Arva E.' Tayror, Judge. Action by John Owens against M. B. Reed, to recover value of plaintiff’s share of certain crops grown upon his land under a lease and supplementary contract, and other indebtedness. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Two original proceedings by the State against Tee Kirby; one charging contempt of court, the other seeking disbarment, tried together by consent.

<p>1. Contempt — Publication of Interview Concerning Disbarment— Ascribing Improper Motives to Supreme Court — Impeding Course of Justice.</p> <p>A corporation, publisher of a newspaper in which it published an interview of an attorney who predicted that the Supreme Court would not disbar another attorney who was a candidate for governor, for the reason that such candidate, “proposes to use every argument within his command, in the coming campaign for the governorship, and that if pressed to it, he will bear down upon the fact that the Supreme Court * * * saw fit to decide against” the state auditor in a recent decision wherein the constitutionality of a statute providing for payment of expense money to thei Judges of the Supreme Court was upheld, was guilty of contempt of court; the evidence showing in effect that the publication charges that the Court “will be influenced by selfish and improper motives” in considering the disbarment proceedings, and that such publication, pending the trial and decision, would tend to embarrass, impede, and interrupt the due administration of justice in fairly and impartially trying the. issues.</p> <p>3. Contempt — Disclaimer of Editor, by Apology, as Defense — Insincerity of Apology — Previous Contemptuous Publication, Effect.</p> <p>A published apology by an editor of a newspaper expressing regret for the publication, and disclaiming knowledge by the editor of publication at the time thereof, or any intention to reflect upon the integrity of the Court, and affirming “that we have never bean found wanting in respect for the ability, dignity,, and honor of the judges of the Supreme Court,” did not purge the contempt; since the Court, in view of several previously published articles therein, both original and copied, reflecting seriously upon the Court and its Judges, is convinced of the insincerity of the apology, disclaimer, and profession of respect for the Court and its Judges.</p> <p>3. Contempt — Newspaper Publication — Want of Knowledge of Publication by Managing Editor, as Defense.</p> <p>Where the evidence was insufficient to show that the editor, who was also president and manager of the defendant corporation, personally took part therein, or had any knowledge of the fact of the publication of the contemptuous article, or the contents of the article until after ¡publication thereof, the contempt .proceedings will be dismissed as against the editor.</p>

<p>Appeal from Municipal Court of Sioux Ealls. Hon. Alpha E. Orr, Judge.</p> <p>Action by John Seubert, against the Eawick Tractor Company. From a denial of a motion to set aside a default judgment, defendant appeals.</p>

Hon. Joseph H. BoTTum, Judge. Action by Nancy Reed against Wilbert A. Todd and' others. From a judgment for defendants, and from an order denying a new trial, plaintiff appeals. (1) Under point one of the opinion, Respondent cited: Comp. Laws (1887) Sec. 5232, 5219; Hazeltine v. Browne, 9 S. D. 351, 69 N. W. 5793 Code Civ. Proc., Secs. 458, 445; Donovan et al. v. Woodcock, 18 S. D. 29, 99 N. W. 82.

<p>Appeal from Circuit Court, Pennington Count}''. PI011. Levi McGee, Judge.</p> <p>Action by Elmer G. Johnson against Ole Peterson.; defendant counterclaiming. From a judgment for defendant on a counterclaim, plaintiff appeals.</p> <p>Appellant cited:</p> <p>S'imps-on v. .Jennings, 19 N. W. 473; Strauss v. Ins. Co., Ohio St. 59; 23 Cyc. 753-4, 1483; Arnold v. Johnson, 28 Howard Pr: 249; Lewis v. Sheaman, 28 Ind. 427; Am. Dig. Cent. Ed. Vol 18 “Set-off,” Sec. 52; 22 Am. & Eng. Enc. 457; Jones v. Chalfant, 55 Cal. 505; 43 Cent. Dig. 3270; Gilman v. Van Slyck, 7 Cowan 469.</p>

Hon. Joseph H. Bottom, Judge. • Action by Thomas Ki-ppen against the Grant County Milling Company. From a judgment for plaintiff, and from an order ■denying a new trial, defendant appeals.

<p>Appeal from Circuit Court, Brule County. Hon. Frank B. Smith, Judge.</p> <p>. Action by the La Crosse Rubber Mills Co. against the Dakota Wholesale Coffee Company; From a judgment for defendant plaintiff appeals.</p>

Hon. William Williamson, Judge. Action by John C. Noziska and others, against A. K. Aten, Jr., to recover a money judgment. From an order vacating and discharging the attachment, plaintiff appeals. (2) To point two of the opinion, Appellant cited: Comp. Laws, Sec. 4996; Brown v. Tidrick, (S. D.) ,.85 N. W. 185, 186; Bedard v. Mahoney, 136 Am.

Hon. William Williamson Judge. Action by Enoch Halverson, against James Glass, to recover damages for trespass by defendant’s animals. An order dismissing the action having 'been made upon defendant’s motion, and a subsequent order having been made vacating and setting aside such order of dismissal, defendant appeals from the vacating order.

<p>Original proceeding in the Supreme Court. In the Matter of the disbarment of George W. Egan, Attorney. Motion to amend complaint.</p>

Hon. Joseph W. Jones, Judge. Action by S. G. Tuthill against P. F. Sherman, to recover purchase price under an alleged sale of corporate stock to defendant. From an order granting defendant a new trial, plaintiff appeals. (3) To point three of the opinion, appellant cited: Mechem on (Sales, Vol. 1, Secs. 1, 2, 3, 4, 5, 483, 35 Cyc. 274-276; Decker v. Furniss, 14 N. Y. 611; Acme Food Co. v. Older, 17 L. R. A. (N. S.) 807; Goddard v. Binney, 15 Am.

Hon. Jambs H. McCoy, Judge. Action by S. J. Simonson, against Otto Monson, to' determine conflicting claims to realty. From a judgment for plaintiff, defendant appeals.

<p>Mandamus — Health Officer — Removal of Patient to Pesthouse — Necessity of Appropriation Ordinance — Statute—Commission Government.</p> <p>Where a city ordinance made it the duty of the health officer to cause infected persons to be removed “to the pesthouse or city hospital, or some other safe and proper place,” and- empowered the health board, with approval of city council, to provide a site for such pesthouse and to establish same and erect buildings therefor, held, that, no ordinance having been passed under which respondent, the health officer, was provided with, or given power to obtain, means or funds necessary to provide such pesthouse, and no means therefor having been provided him from any source, and no “appropriation ordinance” providing funds for such a purpose having been passed by city council acting under commission government (Laws 1913, Ch. 119, Sec. 116,) and no funds being expendible by such officer without such ordinance having been previously passed, respondent' could not be required -by writ of- mandamus to re- • move a smallpox patient from relator’s house to “the pesthouse or city hospital, or some other safe and proper place';” the city having no pesthouse, hospital, or such “place.”</p>

Hon. Joseph W. JoNEs, Judg-e. Action by L. W. Meeker and another, copartners as Meeker & Dobson, against the city of Madison, to recover the balance due under a contract for constructing a sewer. From a judgment for defendant, and from an order denying a new trial, plaintiffs appeal.

<p>Appeals — Abandonment of — Failure to File Brief — Affirmance.</p> <p>Where, for over five months after filing in Supreme Court appellant’s notice of appeal and undertaking, no brief, stipulation, or other papers were filed, held, that appellant’s application to ibe relieved from default in failing to file brief and for extension of time for that purpose will be denied, the appeal being abandoned, and judgment appealed from affirmed; following Conger v. La Plant, 36 S. D. 180, 153 N. W. 934.</p>

Hon. Alva E. Taylor, Judge. Proceedings by the State, on the relation of R. O. Richards and others, against M. D. Whisman, as County Auditor of Beadle County, to enjoin. defendant from complying with provisions of the primary election law of 1915. From a judgment for defendant, and from an order denying a new trial, relators appeal.

Hon. John F. Hughes, Judge. Action -by the Red Wing Sewer Pipe Company against the City of Pierre .and others, ¡to enforce a mechanic’s lien. From a judgment for defendants, and from ¡an order denying a new trial, plaintiff appeals. (i) To point one of the opinion, Appellant cited: Code Civ. Pr-oc., Secs. 713 to 721; Pol. Code, Sec. 1366; Pol. Code, Arts. 19, 20; Laws 1903, Ch. 2x3, Sec. 17, 18, 19; Laws 1909, Ch. no, Secs. 17, 21; Laws 1911, Ch. 228 Sec. 2.

Appeal fro-m Circuit Court, Tripp- County. Hbn. W|iliam Wiiliamson, Judge. Action by Alice Dickmann, against F. C. Thomas, to recover damages caused by sale of intoxicating liquors to- plaintiff’s husband. From a judgment for plaintiff, and from an order denying a new trial', defendant appeals. (x) Under point one of the opinion, Appellant submitted that: There is no proof- of Dickmann’s ¡d'eaith by suicide.

; Appeal frpm Circuit. Court,, Tripp. County.. Hon. William ■ Williamson, Judge. . . . . • ■ Action by • Harry-Leggett and another, against John D. Moore and'others, for specific' performance bf‘ a'contract of sale of land. From'¿'judgment for plaintiffs, and from an order denying a new trial, defendants Moore and, Richard C. .Gerenz, appeal : ,(l) Under point one of the-opinion, Respondent submitted •that: Winchell was not an agent to purchase.

Appeal' from' Circuit Count, Lawrence County. Hon. James McNenny, Judge. The defendant, Michael Carmel, was convicted of the crime of rape, and from a judgment of conviction, and from an order denying a new trial, he appeals.

Hon. Joseph W. Jones, Judge. Action by Emma Josephine Trumbauer and others, against Wallace Rust,, to cancel an alleged deed of conveyance of land, and to establish, title in .plaintiffs, From a' judgment.'for defepd-r áñt, plaintiffs appeal. (i) To point one of the opinion, Appellant cited: McGarigle V. Orphan Asylum, .145 Cal. 693, i.L. R. A.' (,N. S.) 315; Donald v. Nesbet, 89 Ga. 290, 15 S'.

Hon. Thomas L. Bouck, Judge. Action by the Turner Creamery Company, against the Chicago, Milwaukee & St. Paul Railway Company, to determine the reasonableness or otherwise of freight tariffs and charges, and for reparation for excess charges paid for carriage of cream and milk. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Hon. Alpha F. Orr, Judge. Action -by -the Rumely Products Company, against Andrew O. ' Stakke and another. From an order overruling defendant’s motion for change of venu-e, he appeals.

Hon. Wiidiam Wimjamson, Judge. Action by John Davis against John W. Davis and others, to recover the value of plaintiff’s personal property sold, the proceeds of which were -held by defendant bank. From a judgment for plaintiff, and from an order denying a new trial, defendant, Dallas State Bank, appeals. (1) To point one of the opinion, Respondent cited: Hepburn v. Wheatley, (S. D.) 144 N. W. 923.

Hon. Joseph H. Bo'i'Tum, Judge. Action by William R. Moulton and J. D. Newcomer Company, against the Globe Mutual Insurance Company, to recover damages under a policy of cyclone insurance. From a judgment for plaintiff, and from an. order denying a new trial, defendant ■appeals. (2) To point two. of the opinion, Appellant cited: In re McClennan’s Estate, 20 S. D. 509; Higgs v. Ry. Co. (N. D.) 13 R. R. A. (N. S.) 1162; Dedericks v. Ry. Co., 35 R. R. A. 802.

<p>1. Bardes and Banking — Bank Endorsee, Notice of Voidness of Note —Officer of Endorse© and Endorser Coi'poration, Effect as Notice.</p> <p>Where a bank purchased a note void in its inception, held, that the fact that the president of the -bank at the time of the purchase was also president of the corporation from which thei note was purchased, and endorsed it as president of the latter corporation, did not charge the bank, nor its president, with constructive notice of the irregularity of the note; it appearing that such -officer was not the president of the corporation endorsor at the time of the execution of the note. Former opinion modified.</p> <p>S. Negotiable Instruments — Endorsee of Void Note — Burden of Proof of Bona Eide Purchase — Question for Jury.</p> <p>Where a note was void in its inception, held, that the burden of proof is upon the purchasing bank to show that it was a bona fide purchaser of thei note for value before maturity; and this question was one for the jury.</p>

■ Original proceedings by Stanley County, against Jackson County and others, and against Haakon County and others, for writs of mandamus, to compel defendant counties to pay their pro rata shares of the indebtedness of plaintiff county.

Hon. Raymond L. Diuuman, Judge. Action 'by Hugo Gerlce, against D. Zimmerman, to recover damages from injury to plaintiff while operating defendant’s hay-stacker. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Original proceeding, 'by Oscar W. Phelps, against Frank M. Byrne, Governor, to obtain a writ of mandamus requiring the defendant to appoint plaintiff to the office of superintendent of the State Board of Health and Medical Examiners. (1) To point one of the opinion, Defendants cited: State v. Copeland, 74 Minn. 371, 77 N. W. 221; Allison v. Board, 125 Cal. 72, 57 Pac. 673; People v. CotnmTs, 63 Hun 169, 20 N. Y. Supp. 21; People v. Simonson, 64 N. Y. App.

Hon. Joseph W. Jones, Judge. Action by O. W. Eller, against Warren A. Lord, for damages for seduction. From a judgment for plaintiff, and form an order denying a new trial, defendant appeals. (2) To point two of the opinion, Appellant cited: Bullard v. Boston & M. R. R. Co., 5 Atl. 838; Brown v. Swineford, 44 Wis. 282; Henry v. Sioux City & Pac. R. R. Co., 30 N. W. 630; Ausland v. Parker, 14 S'. D. 273. Respondent cited: E. & N. Ry.

Hon. Joseph W. Jones, Judge. Action by J. W. Kahney, .against H. E. Thayer, upon a promissory note. From a judgment for plaintiff, and from an order denying -a new trial, defendant appeals. (1) Under point one of the opinion, Respondent submitted that: The Grant Park State & Savings Bank, respondent’s endorser, being a purchaser of the note in suit for full value, before maturity, in due course and without notice, was an innocent purchaser.

Hon. Geo. W. Crane, Judge. Action by G. N. Williamson, against the Aberdeen Automobile and Supply Company, upon a promissory note and an account for goods sold. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. Appellant cited: .Dewey v. Komar, (21 S. D. 117) no N. W. 90; Sioux Remedy Co-, v. Cope, 59 U. S. D. Ed., 57.

Hon. Thomas L. Bouck, Judge. Action by E. G. Anderson, against the Standard Accident Insurance Company of Detroit, Michigan, upon an insurance policy. From a judgment for .plaintiff, and from an order denying a new trial, defendant appeals. (3) To point three of the opinion, Respondent cited: Hazen v. Thompson (S. D.) 146 N. W. 1070; So-rg v. Wells (S. D.) 144 N. W. 918; Smith et al. v. P-ense and Bier (S. D.) 146 N. W. 709.

Hon. Raymond L. Diluman, Judge. Action by De Rockbraine School District No. 1 of Corson County, against the Northern Casualty Company, to recover upon a school district bond. From a judgment for plaintiff, -defendant appeals. Appellant cited: . United States v. Thomas, 15 Wall. 337, 82 Law Erf. 91; State v. Copeland, 96 Tenn. 396, 34 Arner.

County. Hon. Thomas L. Boucic, Judge. The defendant, Arthur Cotton, was convicted of assault and ■battery, and from 'an order denying- a motion in arrest -of' judgment, he appeals. (2) To point two of the opinion, Appellant cited; Const. Art. 6, Sec. 7; Code Cr. P'roc. 'Sec. 89; Pen. Code, Secs. 310, 31 x, 409; McClain on Criminal Daw, (Vol. 1, p. 239.) ; State v. Marcks (N. D.) 58 N. W. 25; Cyc. Vol. 3, p. 1042. Respondent cited: Mulloy v. State, 58 Neb. 209, 78 N. W. 525.

Hon. Joseph W. Jones, Judge. Action by J. A. Fletcher, against the South Dakota Central Railroad Company, and Henry S. Stebbins, as receiver, to recover for injuries received while in defendant railroad company’s employ. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. (1) To point one of the opinion, Appellants cited: Federal Employers’ Liability Act, of 1908; 'Safety Appliance Act, Sec. 2, as amended March 2, 1903.

Hon. Joseph W. Jones, Judge. Action by Jacob Hjatland, an incompetent, by Thomas Wangsness, guardian; against Geo. W. Egan, for cancellation of a contract and repayment of money paid by plaintiff’s incompetent to defendant. Erom an order overruling a demurrer fit the complaint, ■defendant appeals. Appellant cited: ' Hoke v. Applegate, 88 Ind. 530; Brown v. Cory, (ICans.) 59 Pac. 1097; Rhoades v. Fuller, (Mo.) 40 S. W. 760. Respondent c-ited: C'iv.

H¡on. Tiios. L. Eouck, Judge. The defendant, Alfred Ward, was indicted with others, for contributing to the delinquency of a minor, was convicted, and appeals. Appellant cited: Laws 1909, Ch. 275, Sec. 7; Pol. Code, Sec. 676; Const. Art. 6, Sec. 10; Sec. 3, Code Crim, Proc.; Secs. 3, 207, 211, Code Crim.

<p>Criminal Law — Burglary—Allegation of Ownership of Building, Necessity — Statute.</p> <p>Where an information for burglary failed, to allege tbe ownership of tbe -burglarized building, but did identify it by tbe city lot and block, and also.as a -building in which a firm whose individual names and firm • name were stated as those of tbe owners of a hardware store kept by them therein, and in which they were doing a hardware business, held, that, under Code Cr. Proc. Sec. 226, as amended by Laws 1913, Cb. 242, providing 1 that, when an offense involves commission of larceny or private: injury, and is described with sufficient certainty in other respects to identify the act,' an erroneous allegation as to .the person injured or the ownership of tbe property taken, is not material, held, that t'bei information sufficiently describes tbe building, and was sufficient to sustain a conviction.</p>

<p>Appeals — Review—Failure to Assign Errors — Specifications in Notice of Intentions — Affirmance.</p> <p>Where', although appellant’s printed record shows alleged specifications of error contained in notice of intention to move ■for a new trial, yet, there toeing no assignments of error anywhere in the record, and appellant not having remedied this defect after respondent urged this point in motion to dismiss appeal and in his brief, held, that there is no jurisdiction in the Supreme Court to review alleged errors upon such a record.</p>

Hon. Joseph W. Jones, Judge. Action by J. Hoeven, against Harry Morley, to recover upon open accounts. From a judgment for plaintiff, and from an order denying a- new trial, defendant appeals. (1) To point one of ¡the opinion, Appellant cited: Waugenheim v. Graham, 39 Cal. 169. (2) To point two of the opinion', Appellant cited: Hamer v. Sídway, (N. Y.) 12 D. R. A. 463; Devecmon v. Shaw, 69 Md. 199; 9 A. S. R. 422. Respondent cited: Civil Code, Section 1224.

lion. Joseph W. Jones, Judge. Action by Alvina Cole, against John S'chamber and others, upon promissory notes, with complaint -in intervention by Eugene Reiley as sheriff. From an order overruling a demurrer to the complaint in intervention, plaintiff appeals. (1) To -point one of -the opinion, Appellant cited: Code Civ.

Hon. Robert B. Tripp, Judge. Action by Theodore Kicklancl, against George W. Egan and another, to- recover plaintiff’s -alleged interest in a residuary estate, and to set aside certain transactions between plaintiff and defendant, Egan. From a judgment for defendants, and from an -order denying a new trial, plaintiff appeals.

Hon. Frank B. Smith, Judge. Action by John W. Maiden, -against James E. Boyd, to recover damages for alienation of affections and criminal conversation. From a judgment for plaintiff, and from an- order denying a new trial, defendant appeals. (1) To point one of the opinion, Appellant cited-: Houghton v. Rice, (Mass.) 54 N. E. 843, 47 L. R. A. 310; Lell-is v. Lambert, 24 Qnt. App. 653. Respondent -cited: Civ. Code, Sec. 2286, 2287; Gessner v. Horne, (N. D.) 132 N. W. 431.

Hon. Joseph W. Jones, Judge. Action by George W. Egan, against C. L. Dotson and another, for damages for defamation of character. From a judgment for plaintiff, and from, an order denying a new trial, defendants appeal. (1) To point one of the opinion, Appellants-cited: Briggs v. Garrett, in Pa. St. 414, 56 Am.

Hon. Thomas L. Bouck, Judge. Action by M. O. Sjoberg, against the Chicago, Milwaukee & St. Paul Railway Company, to recover damages for personal injuries. From a judgment for plaintiff, and from ah order -denying a new trial, defendant appeals.

Original proceeding in Supreme Court, by the St. Charles State Bank, of St. Charles, South Dakota, for a writ of prohibition, against J. L. Wingfield, Public Examiner of the State of South Dakota, to prohibit him from enforcing a certain order. (i) To point one of the opinion, Petitioner cited: Laws 1915, Ch. 102, Secs. 31, 32, 53.

Action by Thomas Lytle and another, against John. McGruder and others, for foreclosure of a realty mortgage; in which William McGruder, as administrator, .was substituted for John Mc-Gru-der. From a judgment for plaintiff, • and from an order denying a new trial defendants appeal.

Hon. Rorert B. Tripp, Judge. Action by Thomas Jordan, against O. G: Anderson, to recover a commission as a land broker. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (i) To point one of the opinion, Respondent cited: Lang-ford v. Issen'huth, (S. D.) 134 N. W. 889.

■ Appeal from Circuit Court, Minnehaha County. Hon. Joseph W. Jones, Judge. Action by Malker W'ig, against the Manchester Biscuit Corn-Company, to recover damages for injuries suffered through negligence of deefndant’s ■co-employee.. From, a judgment for defendant, and from on order granting plaintiff’s motion for new trial, -defendant .appeals. (x) To point one of the opinion, Appellant cited: Solleim v. Norbeclc & Niiekolson Company, 34 S-.

Circuit Court, Turner County. Hon. Robert B. Tripp, Judge. Action -by Anderson & Son, against Bina Nelson H'jerrild. Judgment in Circuit Court on appeal, for. plaintiff; from which judgment defendant appeal's. (1) To point one of the opinion^ Appellant cited: Laws 1909, Ch. 61; Leomosio' v. Eartilino, 7 S. D. 93. Respondent cited: William Deering & Co. v. Venne, (N. D.) 75 N. W. 926; Post v. Brownell & Co., 36 Iowa, 497; Fanton v. Byrum, 26 S. D. 366.

Hon. JamSS McNenny, Judge. Aotion 'by James D. Hardin, against Walter E. Graham, and others. From a judgment for defendants, and from an order denying a new trial, plaintiff appeals. On orders to show cause.

Hon. Alva E. Taylor, Judge. Action by F. R. Brumwell, against Ernest D; Ede, to recover for merchandise sold. From a judgment for defendant, and. from an order denying a new trial, plaintiff appeals.

Hon. Joseph H. Bottum, Judge. Action by C. W. Johnson, against the Geo. C. Bagley Elevator Comipany, -to' recover certain grain or its value. Erom a judgment 'for plaintiff, and from an order denying a new trial, defendant appeals. (i) To point one of the opinion, Appellant cited. Fanset v. Garden City State Bank, 123 N. W. 686; McCord v. Western Union Telegraph Co., (Minn.) 39 N.‘W. 3x5; Sec. 1684, Civil Code; Penáis v. C. M. & St. R. Ry.

H'on. Care G. •Sherwood, Judge. Action by Elizabeth J. Huempfner, against Charles W. Bailly, •to recover damages for seduction. Erom a judgment for .plaintiff, and from an order denying a new trial, defendant appeals. (2) To point two of the opinion, Respondent cited: Code Civ. Proc., Sec. 119. (3) To point three of the opinion, Appellant cited: 5 Cyc. 1004, and note; Erost v. Vought, 37 Mich. 65.

Hon. Carl G. Sherwood, Judge. Action 'by Bell Peterson, Annie Peterson-Spooner, and Gertie Peterson, agiainst the Grand Lodge of the Ancient Order of United Workman -of South Diakota, to recover upon a beneficiary certificate. Prom a judgment for plaintiffs, and from an order denying a motion for a new trial, defendant appeals. (i) To point one of the opinion, Appellant cited: Peterson v. Manhattan Life Ins. Go., 244 111. 329, 91 N. E. 466, 18 Ann.

<p>1. Master and Servant — Inability to Pay Employee — Ownership of Employer’s Business — Sufficiency of Evidence.</p> <p>In a suit to recover a -balance due for services in a millinery establishment and for value of employee’s time during' the balance of the term, for which, as she- claimed, she was employed, involving the question -as to whether .the employment was by defendant, or by one who was running the millinery business in her own name-, but solely as manager for defendant, held, the evidence was sufficient to sustain the verdict for plaintiff.</p> <p>2. Trial — Province of Jury — Determination of Veracity of Witnesses.</p> <p>The question of the veracity of witnesses is for the determination of the jury. So held, on re-hearing, involving the liability to pay for service rendered in a millinery establishment, as to the ownership of which it was a question whether defendant, or one who was in possession of the business, and who, it was claimed by plaintiff, was simply defendant’s manager, was liable.</p> <p>Whiting, J., dissenting.</p>

Hon. George W. Crane, Judge. Action by G. W. Roberts, against J. 'S. Shaffer, for conversion. From a judgment for plaintiff, and from an order denying a-new trial, defendant appeals. (2) To point two of the opinion, Appellant cited: Blount v. Medburry, 16 S. D. 562, 94 N. W. 428; Gilwicz v. Gol'berg, 74 N. Y. S. 984, 69 Ap.p. Div. 438; Griffin v. Sutherland, 14 Barb. 456; Porch v. Arkansas Milling Co., 45 S. W. 51, 65 Ark. 40, 67 Am. St. Rep. 895.

Hon. Ti-iomas L. Boucic, Judge. Action ¡by -Mary Sando, as guardian of the estate of Oluf Sando, insane, against Roberts County, to recover proceeds of crops from certain alleged homestead lands of plaintiff and her insane husband. From an order that the complaint be amended by adding plaintiff individually as a party plaintiff, and that defendant answer or demur to the complaint, and overruling a motion to make the complaint more definite and certain, defendant appeals.

Hon. Joseph W. J.onES, Judge... . ....’■ Action by -the Detroit Automatic Scale Company, a corporation, formerly the Stimpson Computing Scale Company, a corporation, against Trina Torgeson, as administratrix of the estate of T. R. Torgeson, deceased, to recover upon a claim against said estate. From an order sustaining a demurrer to the complaint, and from a judgment of dismissal entered thereon, plaintiff appeals. (1) To point one of the opinion, Appellant cited: Prob.

Hon. Carl G. Si-iErwood, Judge. Original proceeding in the nature of guo warranto, by the state, on relation of John Mort, against Ole Tralstead and others, directors of a consolidated school district, and said school district. From an order overruling a demurrer to the complaint, defendants appeal. (2) To point two of the opinion, Appellant cited: Laws 1907, Ch. 135, Sec. 1x5; Sec. 176, Subd. 7. Respondent cited: Code Civ.

Hon: Robert B. Tripp, Judge. Action for divorce, ¡by Ada L. Warne, against Rodell C. Warne. From a modified judgment for plaintiff setting' apart certain property, including- realty other than homestead, defendant apipeáls. (i) To point one of the opinion, Appellant cited: i R. C. L. 926; Cizek v. Cizek, 5 A. & E. Ann. Cases, 464, and notes. (3) To point three of the opinion, Respondent cited: B-er-thelemy v. Johnson, (Ky.) 38 Am.

Hon. Wiuuiam ; G. Ric®, Judge. The defendant, Henry E. Perkins, was convicted of aiding and abetting in receiving bank deposits into the Meade 'County Bank of Sturgis, of which he was an officer, knowing- it to. be' insolvent, and he appeals. (2) To point two of the opinion, Appellant cited: State v.’ Billing's, (Iowa) 42 N. W'.~ 457-;-Ridhmond v. State, (Neb.) 20 N. W. 282; People v. Sues'sier,' 14 Crim.

Hon. Joseph W. JONES, Judge. Action by the Western 'Surety Company, against Henry M. Boettcher and others. From an order granting defendant permission to move to -vacate a default judgment for plaintiff, and from an order vacating such judgment, plaintiff appeal's. (i) To. point one of the opinion, Appellant cited: Weber v. Tschetter, i S-. D. 205-12; Hall v. Harris, 1 S. D. 279; Vert v. Vert, 3 S. D. 619; Travelers’ Ins.

H'on. Carr G. Si-iErwood, Judge. Action by the Hanten Bond Company, a corporation, against J. A. Patterson and others, constituting the County Board of Equalization of Codington ‘County. From a judgment for plaintiff, defendants appeal.

Hon. FraNK B. Smith, Judge. Action by the City of Mitchell, against the Dakota Central Telephone Company, to recover 'the amount of certain taxes. From, a judgment for plaintiff, defendant appeals. Appellant cited: Mitchell v. Telephone Co., 25 S. D. 409. Respondent cited: City of Mitchell v. Dakota Central Telephone Company, 25 S. D. 409, 127 N. W. 582, and cases there cited; 'City of Pensacola v.'Southern Bell Tel.

Hon, Alva E. Taylor, Judge. Action by J. W. Catlett, administrator of the estate -of E. M. Pope, deceased, agains-t George J. Ehrler, to recover money due upon contract. From' an order dissolving an attachment, plaintiff appeals. (1) To point one of the opinion, Respondent cited: Piper v. Wade, 2S S. D. 196; Park v. Armstrong, 9 S. D. 269 ; Jones v. Meyer, 7 S. D. 152; Wyman y. Wilmarth, 1 S. D. 172; Tre-■biloock v. Mining Co., 9 S. D. 206; Bark v. Armstrong, 9 S. D. 269.

Appeal frona Circuit Court, Hughes County. Hon. John F. Hughes, Judge. Action by Jacob Klinkoosten, against William J. Mundt, to recover upon a promissory note. From- an order overruling plaintiff's motion for directed verdict, and from a judgment for defendant, plaintiff appeals. Appellant cited: Civ. Code, Sec. 1181, 1182; Barnard & Leas Man. Co. v. Galloway, 5 S. D. 205; Lemon v. Little, 21 S. D. 628; Grissel v. Bank of Woonsocket, 12 fi.

Hon. Jambs McNüNNY, Judge. Election contest by John A. Rogers, against John Walsh. From a judgment dismissing the contest, and 'from an order overruling contestant’s motion for new trial, he appeals. (1) To point one of the opinion, Appellant cited: La-then v. Campbell, i^K-as.) 51 Pac. 931; People v. Stone, (Mich.) 44 N. W. 334; Laws 1909, Ch. 176, Sec. 2; Laws 1907, Ch. 191, Sec. 7, 6; Laws 1907, Ch. 86, Sec. 106 to no; Pol.

Original proceeding- by the State of South Dakota, for a writ of mandamus, against the board of county commissioners of Ed-munds County. (2) To- point two of the opinion, Defendant cited: Const., Art. 13, Sec. 4; 26 Cyc. 435 (B.) ; Peck v. Eos Angeles Co., 90 Cal. 384; Schwartz v. Wilson, 75 Gal. 502; Hoxie v. Somerset Co., 25 Me. 333; State v. Lewis, 74 Pac. 498 (Mon.) State v. Beckman, 4 Ohio Cr. Ct. 246. (3) To. point three of'the opinion, Plaintiff cited: Code Civ.

Original application for writ of prohibition, by the State of South Dakota, on the relation of Frank M. Byrne, as Governor, against A. W. Ewert, as State Treasurer of the State of South Dakota. Upon motion to quash the alternative writ. (4) To point four of the opinion. Defendant cited: Chap. 34, Art. IV., Sec. 777-780 inclusive. Code Civ. Proc; Spelling Extr.