Volume 36 — Utah Reports

<p>1. MUNICIPAL CORPORATIONS-POWER TO INCUR INDEBTEDNESS. Const. art. 14, sec. 4, provides that no city shall become indebted to an amount, including existing indebtedness, exceeding four per cent, of the value of taxable property therein, that no part of the indebtedness so allowed shall be incurred for other than strictly city purposes, and that any city shall be allowed to incur additional indebtedness not exceeding four per cent, for supplying the city with artificial lights, water, and sewers, when the works for supplying them are owned and controlled by the city. Comp. Laws 1907, sec. 308, also provides for a city’s indebtedness, not to exceed four per cent, of the value of taxable property, to supply the city with artificial light, water, and sewers, when the works for supplying them are owned and controlled by the city. Held, that a bonded indebtedness of four per cent may be incurred for general city purposes, which would include the supplying of lights, water, and sewers, and an additional indebtedness of the same amount for lights, water, and sewers alone. (Page 4.)</p> <p>2. Municipal Corporations — Power to Incur Indebtedness — Issue oe Bonds — Notice oe Purpose — Sufficiency. Const, art. 14, sec. 5, provides that all moneys borrowed by any legal subdivision of the state shall be used solely for the purpose specified in the law authorizing the loan. Section three provides that no debt in excess of the taxes for the current years shall be created by a city, unless the proposition, to create such debt be submitted to the qualified electors of the city. Comp. Laws 1907, sec. 308, provides for submission of a proposition to incur a four per cent indebtedness for lights, water, or sewers to taxpaying electors. Section 309 provides that, when the city council shall have decided to submit the question of incurring a bonded indebtedness, it shall by order specify the particular purpose for which the indebtedness is to be created, and the amount of bonds proposed to be issued. Held that, where such an order or resolution, and also the published notice to the electors of an election to> vote on an issue of bonds which were intended to supply the city with lights, merely stated that the indebtedness was to be created, and the bonds issued, for general corporate purposes of the city, they were insufficient. (Page 4.)</p>

<p>1. Bills and Notes — Action by Indorsee — Defenses. Where, in ■ an action on a note by an indorsee, the presumptions created by Comp. Laws 1907, sec. 1578, 1608, 1609, 1611, that be was an, in-dorsee before maturity for value and in good faith, were not overcome, the defense of partial failure of consideration was properly rejected. (Page 9.)</p> <p>2. Bills and Notes1 — Negotiable Note — Stipulation fob Attob-ney’s Fees — Effect. Under Comp. Laws 1907, sec. 1554, providing that a provision in a note for an attorney’s fee does not make the amount to be paid uncertain, a provision in a note by which the maker agrees to pay a reasonable sum as an attorney’s fee does not render the note non-negotiable. (Page 11.)</p> <p>3. Bills and Notes — Stipulation fob Paymentdf Attorney’s Fees. A provision in a note for an attorney’s fee, but leaving blank the amount thereof, amounts to a promise to pay a reasonable sum as an attorney’s fee. (Page 11.)</p> <p>4. Bills and Notes1 — Recovery of Attorney’s Fees. A plaintiff, in an action on a note stipulating for a reasonable attorney’s fee, who employed an attorney, who conducted the case, need not to recover an attorney’s fee prove an express agreement with his attorney as to fees, or that he paid the attorney a specified sum before suit was commenced. (Page 12.)</p> <p>5. Bills and Notes — Attorney’s Fees — Stipulations'—Effect. The amount of the attorney’s fee stipulated for in a note should be allowed, unless it is unjust, oppressive, or unreasonable in view of the circumstances. (Page 13.)</p> <p>6. Bills and Notes — Allowance of Attorney’s Fees. The court in an action on a note for $1167 on which $791.22 had been paid, stipulating for a reasonable attorney’s fee, defended on the ground that plaintiff was not a bona fide holder, but held the ■ note subject to defenses, may, on plaintiff proving that $75 is a reasonable attorney’s fee, allow such sum as an attorney’s fee. (Page 13.)</p> <p>7. Bills and Notes — Issues—Evidence. Where, in an action on a note, the issue was whether a stipulation in a note provided for the payment of an attorney’s fee, the testimony of the maker that, before or at the time of the signing of the note, it was understood that it should not provide for an attorney’s fee, was properly disregarded. (Page 13.)</p>

<p>1. Pleading — Waiver of Objections. Where, in an action against the railroad company for damages to plaintiff’s easement in a street, hy the extension of the railroad’s use thereof, defendant’s counsel at the trial admitted that plaintiff was the owner of the abutting property when the action was begun, and that title had been vested in her for a number of years prior thereto, it could not object that the complaint was defective for failure to directly aver that plaintiff was the owner of the property at the time the acts complained of were committed. (Page 17.)</p> <p>2. Eminent Domain — Use of Streets — Rights of Abutting Owners. An abutting owner is entitled to recover damages to her property by the construction and operation of a commercial railroad in a public street, in front thereof, by which ingress and egress is impeded and the use of property otherwise directly affected, under Const, art. 1, sec. 22, providing that private property shall not be taken or damaged for public use without just compensation. (Page 18.)</p> <p>3. Railroads — Use of Streets — Rights of Abutting Ownees— Damages. In an action by an abutting owner against a railroad company to recover damages for the impairment of the use of his property by the construction and operation of a commercial railroad in the street in front thereof, the, measure of damage is the depreciation of the' market value of the property. (Page 18.)</p> <p>4. Trial — Requested Charge — Instructions Given. It is not error to refuse a requested charge substantially covered by instructions given. (Page 19.)</p> <p>5. Witnesses — Refreshing Recollection — Memoranda. Where a witness had made a memorandum as to the number of trains that passed in front of plaintiff’s property on a particular day, he was entitled to use the memorandum to refresh his recollection in testifying in an action for depreciation of plaintiff’s property due' to the increased operation of the commercial railroad in the street in front thereof. (Page 19.)</p>

<p>1. Appeal and Error — Review op Evidence — Findings. The court on appeal in a law case may look into the evidence to ascertain whether a finding oí fact is supported by the evidence, but it cannot look into the evidence to make a finding, nor treat as found that which might have been found. (Page 25.)</p> <p>2. Insurance — Action on Pike Policy — Issues—Findinos. Where, in an action on a fire policy stipulating for immediate notice of loss in case of fire, the pleadings put in issue the question whether notice of loss was given, a finding of fact on the issue was essential, and a finding that notice was not given, but that it was waived by insurer without finding the facts on which the conclusion of waiver was based, was insufficient to support a judgment against insurer. (Page 25.)</p> <p>3. Trial — Findings oe Fact — Sufficiency. Findings of fact which merely announce legal conclusions deducible from facts not stated do not support a judgment. (Page 26.)</p> <p>4. Insurance — Action on Fire Policy — Issues—Finding—Sufficiency. Where, in an action on a fire policy requiring proofs of loss within sixty days after a fire, the complaint alleged that proofs of loss were furnished in accordance with the policy, and the answer specifically alleged that proofs of loss were not furnished, and the reply averred that proofs of loss were furnished nearly six months after the fire, and that insurer because of a disclaimer of liability waived proofs, findings that proofs of loss were furnished substantially as provided in the policy except that they were not rendered within sixty days after the fire, but that insurer was not prejudiced by the failure and waived it without any finding of fact as to the waiver, were insufficient to support a judgment against insurer. (Page 26.)</p> <p>5. Trial — Findings—Sufficiency. A general finding that all the material allegations of the complaint are true, and that defendant failed to establish by any competent proof its defense, is too indefinite, and is insufficient. (Page 28.)</p> <p>6. Appeal and Error — Power to Remand Cause — Statutes. Under Comp. Laws 1907, sec. 3304s, authorizing the Supreme Court when the findings are incomplete to order the -trial court to add to or complete the findings so as to make the same conform to the issues, the Supreme Court will, where the findings are uncertain and insufficient, remand the cause to the trial court, with directions to vacate the findings and the judgment, and make findings of fact on all the issues, and to separately make conclusions of law on the facts found, and to enter judgment accordingly. (Page 28.)</p> <p>7. Appeal and Error — Judgments Appealable. A judgment entered by the trial court after the remand of the case by the Supreme Court with directions to the trial court to vacate the findings and set aside the judgment and make findings of fact on the issues, and to separately state conclusions of law on the facts found, and enter judgment accordingly, is appealable. (Page 28.)</p>

T. D. Lewis, Judge. Action to recover damages for personal' injuries resulting in the death of plaintiff’s intestate. From a judgment for plaintiff defendant appealed. APPELLANT’S AUTHORITIES.

District; Hon. George-G. Armstrong, Judge. Defendant was convicted of forgery and appealed. respondent's authorities. It was sufficient for the state to prove a de facto corporation. This is undoubtedly the law. (People v. Hughes, 29‘ Cal. 257; People v. Ah Sam, 31 Cal. 645; People v. Barrie,. 49 Cal. 342; State v. Thompson, 23 Kan:. 338, 33 Am.

<p>1. Justices of the Peace — Termination of Action — Failure to Serve Summons. Under Comp. Laws 1888, sec. 3644 et seq., providing that an action in a justice court is commenced by filing a complaint; that at any time within a year of the date of filing, which the justice must indorse on the complaint, plaintiff may have summons issued; that if summons is returned without being served, alias summons may be issued on demand of plaintiff, but providing no time within which summons must be served — the action does not terminate from mere failure to have the summons “issued” within a year, “served” within that time, though failure to serve in a reasonable time might be ground for motion to dismiss. (Page 64.)</p> <p>2. Limitation of Actions — Failure of Action — Commencement oe New Action. As an action, commenced in justice court by filing of complaint, does not, under Comp. Laws 1888, sec. 3544 et seq., terminate for mere delay in serving the summons, it does not, till actually dismissed, “fail” within Revised Statutes 1898, section 2893, providing that if an action be seasonably commenced, and plaintiff fail therein otherwise than on the merits, and the time limited for the action shall have expired, plaintiff may commence a new action within a year after the failure. (Page 67.)</p> <p>3. Limitation of Actions — Failure of Action “Otherwise Than on the Merits.” An action, voluntarily dismissed by plaintiff, fails “otherwise than on the merits,” within Revised Statutes 1898, section 2893, providing that where an action, seasonably commenced, so fails, plaintiff may commence a new action within a year after the failure. (Page 68.)</p>

Original application for mandamus by tbe state, on the-relation of P. W. G-allagher, against tbe Third Judicial' District Court for Salt Lake County and tbe judge thereof and another. Weit DeNI-ed.

<p>1. Justices of the Peace — Chance of Place of Trial — Dismissal of Action — Statutory Remedies. A defendant in justice’s court who specially appears in the action and moves for a dismissal as provided by Rev. St. 1898, section 3724, as amended by Sess. Laws 1905, p. 9, c. 11, providing that, when on the special appearance of defendant it is found from the affidavits that the action is brought in the wrong county or precinct, the action may be dismissed, etc., cannot also move to change the place of trial as provided by section 3669 as amended by Sess. Laws 1905, p. 108, c. 92, authorizing a change of place of trial; the remedies being alternative. (Page 98.)</p> <p>2. Justices of the Peace — Dismissal of Action — Affidavits. Rev. St. 1898, section 3724, as amended by Sess. Laws 1905, p. 9, c. 11, authorizing the dismissal of an action in justice’s court when on special appearance of defendant it is found from the affidavits that the action is brought in the wrong county or precjnct, etc., contemplates that the parties may file affidavits, in support of and in opposition to the motion of dismissal, and that the court shall have jurisdiction to determine the facts, and the action of the court in denying the motion, though the affidavit of defendant is not controverted, even if error, is not in excess of jurisdiction. (Page 99.)</p> <p>3. Prohibition — Nature oj? Remedy. At common law the writ of prohibition prevents excess or usurpation of jurisdiction, and prohibition may not be resorted to when the ordinary remedies by appeal, writ of review, certiorari, or injunction, or other modes of review, are available. (Page 100.)</p> <p>4. Constitutional Law — Judicial Powee. The power conferred on courts by Const., art. 8, sections 4, 7, giving the Supreme Court original jurisdiction to issue writs of mandamus, cer-tiorari, prohibition, etc., and authorizing the district courts or any judge thereof to issue writs of hateas corpus, mandamus, prohibition, and other writs necessary to carry into effect their judgments, and to give them general control over inferior courts, cannot be enlarged or abridged by the legislature. (Page 100.)</p> <p>5. Constitutional Law- — Judicial Power. The office of the writ of prohibition in Const., art. 8, sections 4, 7, authorizing the Supreme Court and the district courts or any judge thereof to issue the writ of prohibition, whether limited to the writ as known at common law or extended to the writ as defined by the territorial laws (Comp. Laws 1888, section 3743), providing that prohibition arrests the proceeding of any tribunal when such proceedings are without or in excess of the jurisdiction of the tribunal, cannot be enlarged or abriddged by the legislature, and the legislature cannot enlarge the functions of the writ and convert it into a mere writ of review.1 (Page 102.)</p> <p>6. Constitutional Law- — Legislative Power. The legislature, in exercising the power to provide a remedy to review the ruling of a justice’s court other than on appeal, cannot encroach on the prerogatives of courts and cannot provide that the ruling shall be reviewed by the exercise of a prerogative writ, within Const., art. 8, sections 4, 7, authorizing the Supreme Court and the district courts to issue prerogative writs. (Page 105.)</p> <p>7. Constitutional Law — Validity oe Statutes. The court in determining the validity of Rev. St. 1898, section 3724, as amended by Sess. Laws 1905, p. 9, c. 11, providing that the ruling of a justice’s court on motion to dismiss the action may be reviewed on appeal or by means of a writ of prohibition, cannot construe the act as though the legislature gave the mode of review a wrong name when it designated it “prohibition,” where the proceeding under the act was in accordance with the practice applicable to prohibition. (Page 105.)</p> <p>8. Constitutional Law — Encroachment on Judicial Power. Rev. St. 1898, section 3724, as amended by Sess. Law's 1905, p.</p> <p>9, c. 11, providing that the ruling of a justice’s court on motion to dismiss may he by appeal or by writ of prohibition, makes the ruling reviewable by prohibition and does not create a new writ and is void because it enlarges the office of the writ of prohibition in Const., art. 8, sections 4, 7, authorizing the Supreme Court and the district courts to issue the writ of prohibition. (Page 106.)</p> <p>9. Prohibition — Review oe Judicial Proceedings. The district court in reviewing on prohibition a ruling of a justice’s court cannot try the matter de novo; but the inquiry must be confined to a review of the proceedings before the justice. (Page 107.)</p>

<p>1. Appeal and Error — Harmless Error — Party not Entitled to Succeed. If the trial court did not have jurisdiction of either the person of the garnishee or of the property, any errors in the proceedings leading up to the discharge of the garnishee were not prejudicial to plaintiff. (Page 110.)</p> <p>2. Garnishment — Return — Essentials. The return in garnishment proceedings should he indorsed upon the writ or annexed thereto, and should show that all has been done which the statute requires in the service of the writ, so that the proceedings are vitiated unless it shows due service upon the garnishee. (Page 111.)</p> <p>3. Garnishment — Proceedings—Effect. Under the statutes credits may he reached in two ways: First, under Comp. Laws 1907, section 3073, suhd. 6, hy leaving with the debtor a copy of the attachment writ, with notice of attachment as provided therein, which method only prevents the debtor from disposing of the property, as is indicated by the provisions of sections 3074 and 3075, or under section 3090, by having the writ of garnishment issued and served upon the debtor, which method requires the garnishee to answer, and places the debt in the custody of the law. (Page 112.)</p> <p>4. Garnishment — Proceedings — Service — Sufficiency. Under Comp. Laws 1907, section 3093, requiring a writ of garnishment to be served in the same manner as a summons in the action, section 2948, requiring the summons to be served by delivering a copy thereof to defendant, and section 3094, providing that the return of the garnishment writ showing due service on the garnishee shall give the court jurisdiction to proceed against him, a writ of garnishment must be served by delivering a copy thereof to the garnishee. (Page 112.)</p> <p>5. Garnishment — Proceedings—Presumptions. There is no presumption that the officer serving a writ of garnishment has done his duty, so that the return must affirmatively show that the writ was served as required by statute. (Page 113.)</p> <p>6. Garnishment — Jurisdiction — Waiver of Jurisdictional Defects — -Waiver by Voluntary Appearance. The 'garnishee cannot by voluntary appearance waive jurisdictional defects so as to confer jurisdiction over the res, hut can only waive such, defects as affect him personally, and hence could object to the failure to make proper service upon him at any time, before the money was paid by him and applied to the judgment† (Page 113.)</p> <p>7. Judgment — Judgment in Kem — Jurisdiction or Res. In attachment proceedings against a nonresident defendant who is not personally served, the court must obtain jurisdiction of the property in order to render a valid judgment. (Page 114.)</p> <p>8. Garnishment — Proceedings—Jurisdiction. To confer jurisdiction in garnishment proceedings, there must be jurisdiction of the garnishee’s person and jurisdiction of the debt of the garnishee to defendant, which constitutes the res. (Page 115.)</p> <p>9. Attachment — Nature of Remedy. A proceeding to attach property, either tangible or intangible, is essentially one in rem-, brought against a thing within the jurisdiction of the court. (Page 115.)</p> <p>10. Courts — Dicta—Matters not Necessary to Decision. Where, in garnishment proceedings, the court had no jurisdiction of the res, so that any errors in the proceedings leading up to the discharge of the garnishee were immaterial, any discussion of such errors as well as the insufficiency of the service upon the garnishee would be dieta. (Page 119.)</p> <p>11. Garnishment — Proceedings—Waiver of Defects — -General Appearance. Since a garnishee could by his general appearance waive any defect in the service so far as it affected him personally, it was immaterial, after appearance, whether the garnishee’s officer who was served was an agent on whom service could be legally made. (Page 119.)</p> <p>12. Garnishment — Pleading — Amendment — Discretion of Court. Failure of the return in 'garnishment proceedings to show that the writ was served upon the garnishee by delivering a copy to him is a defect which may be cured by amendment upon application to the trial court; and, while the granting of such application rests somewhat in its sound discretion, the amendment should ordinarily be allowed if no intervening rights would be affected. (Page 120.)</p> <p>13. Appeal and Error — Disposition — Remand With Directions. Where the return in garnishment proceedings was not attacked below on the ground that it did not show proper service on the garnishee, upon which the decision on appeal is based, so' that plaintiff had no opportunity to cure the defect by amendment, judgment discharging the garnishee will not he affirmed unconditionally, but the proceedings will be remanded, with instructions to vacate the order of discharge, and permit an amendment. (Page 120.)</p>

J. A. Howell, Judge. Action by tbe Wall Nice Milling Company against the Continental Supply Company. Judgment for defendant, plaintiff appeals. RESPONDENT'S POINTS. The question of accept and receive, delivery, inspection or its waivers and the intention of the parties, in an action brought to recover for goods sold under an oral agreement, are all questions of fact for the jury.

G. W. Morse, Judge. Action by Paule Sowadzki against Salt Lake County. Judgment for defendant. Plaintiff appeals. APPELLANT^ POINTS. Under the law in force in the Territory of Utah, at the time of the alleged dedication, to-wit, October 30, 1891, there was no statutory authority for filing the alleged plat, because the land described in said plat and comprised within the limits of the so-called Wabash Avenue was situated outside of the limits of any city, town or village.

O. W. Morse, Judge. Action by Park City Meat Company and Kobert W. Gil-lispie against Comstock Silver Mining Company, California Mining and Milling Company, and H. A. MeCorniek. Judgment for defendants. Plaintiffs appeal. APPELLANT'S POINTS.

G. W. Morse, Judge. Action by Selina Nixon Boucofski and others against Esther Cohen Jacobsen and others. Judgment denying foreclosure and a personal judgment against the defendant named. Plaintiffs appeal. APPELLANTS'’ POINTS. The right of appeal is given only from final judgment.

<p>1. Witnesses — Peivieeged Communications — Waives. The privilege given hy Comp. Laws 1907, section 3414, subd. 2, providing that an attorney cannot, without the consent of his client, he examined as to any communication made by the client, is the privilege of the client, who may claim or waive it, and where he waives it the attorney cannot claim it. (Page 197.)</p> <p>2. Witnesses — Privileged Communications — Waives. A client who testifies to conversations with his attorney as to matters privileged under Comp. Laws 1907, section 3414, subd. 2, waives the privilege, and cannot thereafter claim it when the attorney is called to impeach him. (Page 198.)</p> <p>3. Witnesses — Privileged Communications — Public Officer. Comp. Laws 1907, section 3414, subd. 5, providing that a public officer cannot be examined as to communications made to him in official confidence, where the public interests would suffer by the disclosure, relates especially to matters pertaining to the affairs of the state or nation or concerning state secrets, and to communications by informers to public officials, and the evidence is excluded because the public safety is best subserved th'ereby. (Page1 198.)</p> <p>4. Witnesses — Privileged Communications — Waiver. Where the state in a criminal case invites a disclosure of matters privileged within Comp. Laws 1907, section 3414, subd. 5, and acquiesces in such disclosure so long as the matter disclosed is against accused, the state cannot exclude other disclosures sought to be shown by accused. (Page 200.)</p> <p>5. Rape — Evidence—Corroboration. Corroboration of the testimony of the prosecutrix on a trial for rape on a female under the age of eighteen years is not necessary to warrant a conviction. (Page 200.)</p> <p>■6. Criminal Law — Trial—Instructions. The jury must follow the instructions of the court, whether right or wrong. (Page 201.)</p> <p>7. .Criminal Law — Preliminary Examination — Waives. A preliminary examination, guaranteed by the Constitution to one charged with crime, before the filing of the information against him, may be waived only by the consent of accused and the state. (Page- 201.)</p> <p>8. Rape — Time—Information—Variance. Time is not a material ingredient of rape on a female under- the age of consent, and it is not essential that it should be precisely stated in the information, and evidence of the commission of an offense on a date other than and prior to that alleged is competent. (Page 202.)</p> <p>9. Indictment and Information — Variance—Time oe Commission op Offense. Where time is not an essential ingredient of the offense charged, the state is not required to prove the offense alleged or the transaction out of which it arose at the particular time stated in the information, and may prove the transaction at another and prior time within the statutory period of limitations. (Page 202.)</p> <p>1G. Criminal Law — Preliminary Examination — Information. The preliminary examination on á complaint charging accused with rape on April 1st on a female under the age of consent was confined to evidence of rape on that date. The information charged the offense on that date. The state on the trial showed that accused had sexual intercourse with prosecutrix on April 1st, as charged, and that she became pregnant. The proof showed that the prosecutrix was then over eighteen years of age, and the state introduced evidence 'that accused had had intercourse with her prior thereto and before she became 18. Held, that a conviction could not be sustained because accused had not had a preliminary examination relating to the offense committed before prosecutrix became eighteen. (Page 203.)</p> <p>11. Cihminal Law — Evidence—Election. The information charged accused with rape on April 1st on a female under the age of consent. The state opened its case with proof of an offense committed on that date, and directed nearly all its evidence to that offense and to the transaction connected therewith. On the evidence showing that prosecutrix was over eighteen years of age on that date, the state offered evidence of intercourse with prosecutrix before she reached that age. Held that, as the state elected to rely on the offense committed on April 1st, a conviction could not be sustained on the evidence showing rape on prosecutrix before she reached the age of consentí (Page 203.)</p>

<p>INDEMNITY — CONSTRUCTION AND OPERATION OE CONTRACTS — EXTENT OE Liability'. The grantor of premises caused to he executed to her grantee a surety bond conditioned to hold grantee harmless from any damage, actions, or judgments affecting the title by reason of the judgment that might be obtained in a pending action against the grantor. To protect a surety on the bond the grantor executed to it a bond conditioned to indemnify it against every liability by reason of such suretyship. The grantee contracted to sell the premises to a purchaser who paid a part of the price, but refused to 'go on with the contract, and recovered a judgment against grantee for the part of the price paid on the ground that the title was unmarketable by reason of the action against the owner, and the surety on the bond in turn paid to grantee the amount of the judgment. Held, in an action on the indemnity bond by the surety that the grantee had no cause of action on the surety bond, and hence there was no liability on the indemnity bond. (Page 212.)</p>

<p>1. Trover and Conversion — Acts Constituting Conversion. Merely to interfere with, another’s property or his rights therein will not sustain an action of trover, unless such acts are done with the intention of depriving the owner permanently or temporarily of his property. (Page 218.)</p> <p>2. Torts — Burden of Proof — Inferences from Evidence. Where a person is charged in a civil action as a wrongdoer, and the evidence tends to connect him with the wrongful acts charged, in the absence of any evidence explaining or denying the wrongful acts, every legitimate inference warranted by the evidence may he taken against him. (Page 222.)</p> <p>'3. Trover and Conversion — Actions—Sufficiency of Evidence— Question for Jury. Evidence, in an action of trover against an agent, who leased a building to plaintiff, for the conversion of goods and chattels therein belonging to plaintiff, held sufficient .to make the question whether defendant’s acts constituted conversion one for the jury. (Page 223.)</p>

Mandamus by the state, on the relation of Hyrum Neilson, to compel Morris L. Ritchie, as Judge of the Third Judicial District Court for Salt Lake County, to set aside an order dismissing an action by relator against E. E. Watrous and others.

M. L. Ritchie, Judge. Action by Margaret'Miller and others against Elizabeth Livingston, as administratrix of Margaret Miller, deceased, and individually, and others. Judgment for plaintiff. Defendants appeal. appellant's points.

M. L. Ritchie, Judge. Action by the Twenty-Second Corporation of tbe Church of Jesus Christ of Latter-Day Saints against the Oregon Short Line Railroad Company. Judgment for plaintiff, defendant appeals. APPELLANTS'’ POINTS.

O. W. Morse, Judge. Action by James A. Brown, administrator of the estate of Elias Morris, deceased, against the Oregon Short Line Bailroad Company. Judgment for plaintiff. Defendant appeals. APPELLANT'S POINTS. The grant or reservation of a “way” or “road” without other words of description, carries an easement only, and not the fee in the soil.

W. Snell, against tbe Third Judicial District Court and another, to prohibit it from proceeding in an action appealed from justice’s court

<p>1. Criminal Law — Evidence—Other Offenses. In a prosecution for rape on a child of ten, evidence of prosecutrix that after the assault had been completed defendant stated that there were other female children that had come to his house with whom he had committed the same offense was inadmissible. (Page 277.)</p> <p>2. Witnesses — Cross-Examination of Accused. Where, in a prosecution for rape, defendant testified, in his own behalf, and denied that he had taken any undue liberties with prosecu-trix, questions asked on cross-examination over defendant’s objection concerning other little girls who, both before and after the offense charged, had visited defendant, so as to convey the idea that he permitted such children to call on him that he might debauch them, were inadmissible to affect his credibility or to test his memory. (Page 281.)</p> <p>3. WITNESSES — CROSS-EXAMINATION-INCOMPETENT QUESTIONS. In a prosecution for rape, it was reversible error for the state on cross-examination of the accused to compel him over objection to answer questions conveying the idea that he had permitted other children to call at his home in order that he might ravish them. (Page 282.)</p> <p>4. Rape — -Evidence ojtProsecuteix — Delay oe Complaint — Instructions. Where, in a prosecution of a man seventy years of age, of previous good character, for rape committed on a female child ten years old, it appeared that prosecutrix first complained of the -offense nearly three years after it was alleged to have occurred, the court erred in refusing to charge that the jury • might consider prosecutrix’s delay in making complaint in determining the weight to be given to her testimony. (Page 284.)</p>

<p>1. Malicious Prosecution — Instructions—Misleading Instruction. Where the only evidence, in an action for malicious prosecution, as to any claim for moneys, ■ was one for money due from plaintiff to a corporation, of which defendant was manager, the instruction that, if the jury “find from the evidence that defendant caused plaintiff to he arrested for the purpose of assisting defendant in collecting a claim for moneys which defendant thought he had against plaintiff, . . . then it was begun maliciously,” could not have been understood by the jury to refer to some personal claim of defendant, not mentioned in the evidence. (Page 291.)</p> <p>2. Malicious Prosecution — Exemplary Damages — Evidence. Evidence, in an action for malicious prosecution, held to authorize a finding of exemplary damages. (Page 292.)</p> <p>3. Damages — -“Exemplary Damages.” Exemplary, punitive, or vindictive damages are such damages as are in excess of the actual loss, and are allowed where a tort is aggravated by evil motive, actual malice, deliberate violence, oppression, or fraud. (Page 292.)</p>

<p>1. APPEAL AND ERROR — DISCRETION OE TRIAL COURT- — VACATING— Default Judgment. The general rule is that a motion to vacate a default judgment on the 'ground of excusable neglect and permit the party against whom it is entered to plead to the merits is addressed to the discretion of the court, and, unless it appears that the discretion has been abused, the court’s ruling in vacating or refusing to vacate the judgment will not be disturbed on appeal.1 (Page 300.)</p> <p>2. Judgment — Default Judgment- — -Vacation — Excusable Ñeg- . lbct — Discretion oe Court. To bring a case within Comp. Laws 1907, section 3005, providing that the court may in its discretion upon just terms allow an answer to be filed after the statutory time, defendant must show due diligence to prepare and present his defense, that he was either prevented from doing so by some accident, misfortune, or circumstance over which he had no control, or that he was misled, or lulled into inaction, by the opposite party or his counsel, and, where on the day when plaintiff’s attorney filed notice of his withdrawal from the case, defendant’s attorney was informed by plaintiff that he proposed to push the case, and was informed by plaintiff’s new attorney on the same day that the attorney would not obligate himself to-continue in force a stipulation that defendants had entered into-with plaintiff’s former attorney extending the time for filing an answer, and that a default judgment was entered three weeks thereafter, defendant was not entitled to relief under the section2 (Page 302.)</p> <p>3. Stipulations — Necessity for Filing ob Entering on Minutes. Under Comp. Laws 1907, section 115, subd. 2, providing that an attorney shall have authority to bind his client by his agreement filed with the clerk or entered upon the minutes of the court and not otherwise, an oral stipulation to extend time for filing an answer which was neither filed with the clerk, nor otherwise made a matter of record, is of no legal effect. (Page 302.)</p> <p>4. Attorney and Client — Poweb of Attorney to Become Surety. Under Comp. Laws 1907, section 133, providing that no practicing attorney shall become surety in a suit in which he is engaged as attorney, attorneys at law cannot act in the dual capacity of surety and attorney in the same action. (Page . 304.)</p> <p>5. Attorney and Client — Oefice of Attorney — Nature. Attorneys at law are officers of the court, and it is their sworn duty to aid the court in seeing that actions in which they are engaged as counsel are conducted in a dignified and orderly manner, free from passion and personal animosities, and that all causes brought to an issue are decided on their merits only, and they must devote their ability, skill, and diligence along ethical and professional lines to the interests of their clients, and refrain from entering into any alliance or incurring any obligation connected with the litigation in which they are engaged as counsel that would place them im a position where their personal interests wiould be adverse to those of their .clients. (Page 304.)</p> <p>6. Judgment — Default Judgment — Vacating — Interposition of Unconscionable Defense. A default judgment will not be set aside to enable a party to interpose an unconscionable defense, and hence a default judgment for a sum lost by plaintiff at gambling will not be vacated to allow defendant to defend on the ground that he won the money according to the rules of the game played, which was in violation of the penal statutes; equity in such case leaving the complaining party yhere it finds him. (Page 306.)</p> <p>STRAUP, C. X, Dissenting</p>

T. D. Lewis, Judge. Action by Lena Meyers against tbe San Pedro, Los An-geles & Salt Lake Railroad Company. Judgment -for plaintiff. Defendant appeals. APPELLANT^ POINTS. “If‘error is shown it will be presumed to have been prejudicial unless the record affirmatively shows that no injury did or could result.” (Holt v. Spokane Railroad, 35-P'ae. 39.) Tbe so-called “service letter” was incompetent and hearsay.

Joshua Greenwood, Judge. Action by the Bullion Beck & Champion Mining Company against the Eureka Iiill Mining Company. Judgment for plaintiff. Defendant appealed. appellant's points. Where the circumstances of the case show that the courses and distances are more reliable tests of the location of the land than the monuments found upon the ground, then courses and distances will prevail.

<p>1. -Waters and Water Courses — Dams—Construction. Neither at ■ common,- law nor under Comp. Laws 1907, section 1288x30, providing that when two or more persons, etc., are associated hy agreement or otherwise in the use of any dam, canal, ditch, etc., each of them shall he liable to the other for the reasonable expense of maintaining the same in proportion to his share or ownership of the water to which he is entitled, may a party be compelled to contribute to the expense of replacing a dam, or tbe construction of a ditch, unless such new dam or ditch accomplishes the same results as the one affected or destroyed. (Page 343.)</p> <p>2. Judgment — Coneobmity to Pleading. Under the rule that the findings and judgment must he based on the pleadings and evidence, where the complaint in an action for contribution to the expense of repairing a dam declared on an implied agreement, a judgment based on an express agreement cannot stand. (Page 345.)</p>

<p>Judgment — Tkiau—Submission on Ageeed Statement or Facts— Findings. Where the findings in a case submitted on an agreed statement of facts are not within the stipulation, and the findings and the stipulation are not responsive to the pleadings, the judgment on the findings is without support, and must he reversed. (Page 348.)</p>

J. A. Rowell, Judge. Action by the Volker-Scowcroft Lumber Company against Mary Flinder Vance and another to foreclose a meterial-man’s lien in which Halverson Bros., appeared', claiming á lien for material and labor. Judgment of dismissal. Plaintiff and Halverson Bros, appealed. appellants'’ points.

Petition by the state, on the relation of Marie M. Dor-sett, administratrix, etc., for writ of mandamus against Hon. Charles W. Morse, one of the Judges of the Third District Court.

Joshua Greenwood, Judge. Action by the Grand Central Mining Company against tbe Mammoth Mining Company. Judgment for plaintiff and dismissing defendant’s counterclaim. Defendant appeals. APPELLANT’S POINTS. Appellant insists that the so-called decree was an order merely. If it was a final judgment, we have now two final judgments in this case without the intervention of a new trial — an* impossibility — a conclusion similar to the reduc-tio■ ad dbsurdum of mathematics.

<p>Replevin — Actions — Complaint — Possession. In claim and delivery plaintiff must allege that be was tbe owner, or entitled to possession, at tbe commencement of tbe action; it being insufficient to merely aver that be was tbe owner at some time prior tbereto.1 (Page 381.)</p>

W. W. Maugham,, Judge. Action by Edward Ryan against the Curlew Irrigation and Reservoir Company. Judgment for defendant. Plaintiff appealed. RESPONDENT’’S POINTS. The owner of the real property who has employed another to erect a structure on his land does not, by taking possession and applying the structure to the uses for which it was ■built preclude himself from insisting that the builder has not properly fulfilled his contract.

Original application for a writ of prohibition by the State of Utah, on the relation of J. M. Whitmore, against Carbon County and others to restrain the officers of the county from issuing and negotiating bonds.

Mandamus by the state, on the relation of A. N. Barnes, Attorney-General, against the Second District Court and the judge thereof, to compel the court to correct its record, to vacate an order striking an information from the files, and to reinstate it, and to fix a day for the arraignment of defendants.

<p>Application for mandamus by tbe state on tbe relation of tbe Utah University against W. G. Candland and others, constituting tbe State Board of Land .Commissioners.</p>

G. W. Morse, Judge. Action by Leonora E. Waddell, as executrix of Isaac If. Waddell, deceased, against William M. Waddell and others. Erom a judgment granting insufficient relief, plaintiff appealed. STATEMENT OE FACTS. Tbe facts in. tbis case, briefly stated1, are about as follows: Isaac M. Waddell died testate in Salt Labe City, Utah, about December 13, 1902.

<p>1. Carriers — Carriage of Passengers — Pares—“Obtainable.” The word “obtainable,” in a contract providing that scrip exchangeable for tickets will not be honored for passage on trains except from stations where tickets are not obtainable, cannot be given its full natural meaning, but must be restricted to mean that scrip cannot be used for fare on trains, except from stations where tickets are not kept on sale or for exchange for scrip. (Page 458.)</p> <p>2. Carriers — Carriage of Passengers — Fares. A contract provided that scrip issued by a railroad company, exchangeable for tickets, would not be honored on trains except from stations where tickets were not obtainable. Plaintiff, a passenger, got off a train at a station, and attempted to exchange his scrip for a ticket to another station while the train was waiting, hut was unable to do so before the train left. Held, that he could not assert that the ticket was not obtainable by him at the station, so as to authorize him to tender the scrip to the conductor for his passage. (Page 459.)</p>

T. D. Lewis, Judge. Action by John Lancino against Bert L. Smith and another. Plaintiff had judgment against defendant Smith, from which, and an order denying a motion for new trial, said defendant appealed.

T. D. Lewisj Judge. Action by Nick Jachetta, by Raphael Jachetta, his guardian ad liíem, against the San Pedro, Los Angeles & Salt Lake Railroad Company. Judgment for plaintiff. Defendant appealed. APPELLANT'S POINTS. “Prima facie, all servants of a common master employed in running, operating and rendering service with a train of cars are fellow-servants.

!Aj?peal from District Court, Third District; Hon. T. D. 'Lewis Judge. Action by George Harold Speight against the Rocky Mountain Bell Telephone Company, and another. Judgment for plaintiff. The Telephone company appealed. APPELLANT'S POINTS. The rule of law as to the assumption of risks by servants who are minors is stated in the following cases, where minors suffered injuries in the course of their employment: (Hickly v. Taafe, 105 .

<p>1. Justices of the Peace — Appeal—Proceedings foe Transfer— Appellate Jurisdiction — Conclusiveness of Record. Rev. St. 1898, section 3744, provides that a party dissatisfied with a justice’s judgment may appeal to the district court by filing a notice thereof with the justice and serving a copy on the adverse party, under which the order of filing of the notice of appeal and the service of a copy is material, and the filing of the notice must precede the service, or both must be done at the same time, or on the same day. Section 3748 provides that, when appellant files his undertaking on appeal, notice of such filing shall be given to respondent, under which both the filing of an undertaking and service of notice of such filing are made a prerequisite to an appeal. The transcript of a justice’s record showed that notice of appeal was served on February 4, 1907, and that the notice was filed on the next day, and showed a docket entry that an undertaking on appeal was filed on February 5th. Neither the original undertaking nor a copy thereof was in the record, and it did not show that any notice of the filing of the undertaking was given, or that a copy was served. Held, that the district court should confine itself to the recitals in the transcript in determining whether the statute had been complied with, and could not consider affidavits to contradict the ree’ord and show that the notice of appeal was filed on February 4th, instead of February 5th, so that the law would assume, from the contemporaneous filing and service of the notice, that the filing of the proper- paper was done first, nor could it consider affidavits to show that the undertaking and notice of the filing thereof were presented to the justice for filing, and, the record not showing a compliance with the statute, the district court acquired no jurisdiction.1 (Page 504.)</p> <p>2. Justices of the Peace — Appeal—Proceedings for Transfer— Compliance with Statute — Affidavits. The affidavits as to the undertaking, not showing that the notice of its filing was served on respondent, or that 'a copy of the undertaking was served, or that any kind of a notice as to the undertaking was served on or given to the adverse party, but merely that an undertaking and a notice of the -filing thereof were prepared for service and presented to the justice’s court for filing, did not show a ■ compliance with the statute, in fact. (Page 507.)</p> <p>S. Justices of the Peace — Appeal—Proceedings fob Transfer— Filing and Service or Notice. Evidence held to show that the filing of notice of appeal from a justice’s judgment did not in fact precede the service of the notice, as -required hy Rev. St. 1898, section '3744, providing that'a party dissatisfied with a justice’s judgment may appeal to- the district court by filing a notice of appeal with the justice and serving a copy on the adverse party. (Page 507.)</p>

J. E. Booth, Judge. Action by William H. Pool against the Utah county Light & Power Company, and another. Judgment for defendants. Plaintiff appealed. APPELLANT^ POINTS. Where a statutory power or jurisdiction is granted, which otherwise does not- exist, whether to a court or an officer, the grant is strictly construed, and the mode of procedure prescribed must be strictly pursued.

J. E. Booth, Judge. Elizabeth Moore was convicted of adultery, and' she appeals. APPELLANT'S POINTS. The evidence is insufficient as matter of law to show that the defendant is a married woman, the wife of 0. H. Moore. The only evidence upon that subject is the statements attributed to the defendant, and that is not sufficient under the authorities.

M. L. Ritchie, Judge. Action by N. P. Madsen against the Utah Light & Railway Company. Judgment for defendant. Plaintiff appealed. STRAUP, C. J., dissenting. APPELLANT'S POINTS. The third error complained of relates to the question asked of Dr. Van Cott by the defendant, to-wit: Q. “At the time you had the conversation resulting in putting this —making this statement (defendant’s exhibit 1) was Mr. Madsen conscious, rational or not?

<p>Appeal from District Court, Third District; Hon. M. L. {Ritchie, Judge.</p> <p>Action by William J. Barrette against S. A. Whitney.</p> <p>Judgment for defendant. Plaintiff appealed.</p> <p>STRAUP, C. J., dissenting.</p> <p>APPELLANT^ POINTS.</p> <p>What is a marketable title? (Swayne v. Lyon, 61 Pa. 436; Glassman v. Gonclon, 21 Utah 463; Turner v. McDonald, 16 Cal. 1Y9; Herman v. Somers, 158 Pa. St. 424, 38 Am. St. Rep. 851, and note; Moore v. Williams, .115 N. Y. 586, 12 Am. St. Rep. 844; Vought v. Williams, 8 L. R. A. 591 [N. Y.] ; Schenck v. Wicks, 23 Utah 581.)</p> <p>It is so fundamental that one ought not to have to state it, that “No person shall be deprived of his life, liberty or property without due process of law.” Constitution of Utah, article 1, sec. 1. The 14th amendment to the Constitution of the United States provides that “No State shall . . . deprive any person of life, liberty or property without due process of law.”</p> <p>Appellant claims that to distribute this property to the six persons who naively admit that they are the only heirs, without notice to other persons who may be heirs, and without giving such other persons an opportunity to be heard, is to deprive the latter persons of property without due process of law. This property vested in all the heirs' immediately upon the death of the decedent, subject only to the possession, of the administrator appointed by the court for the purpose of administration, and such administrator has no authority of law to take the property of one heir and give it to other heirs upon the mere ex parte showing of such heirs.</p> <p>Due process of law requires that a party shall be properly brought into court and that he shall have an opportunity when there to prove any fact which, according to the Constitution and the usages of the common law would be a protection to him. [3 Words and Phrases,2231 (and cases).]</p> <p>Webster’s- familiar statement of due process of law in the Dartmouth College Case, 1V IT. S. 518, is “The general law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial.” A like rule is laid down in the Slaughter House cases in 83 IT. S. 36. Due process of law means a course (5f legal proceedings according to the rules and principles which have been established in our system of jurisprudence for the protection and enforcement of private rights. (Pennoyer v. Neff-, 95 IT. S. 114.) The first and. simplest of these rules is that no man shall be deprived of his property by a decree of any court without first having an opportunity to be heard. See three columns of cases in the third volume of Words and Phrases, page 2244.</p> <p>RESPONDENT'S POINTS.'</p> <p>A decree of distribution is a proceeding in rem; it may be made without any notice unless the statute provides otherwise, in which case if none is given it is still conclusive against collateral attack. It can only be questioned on appeal or by direct proceeding. -</p> <p>The decree of distribution is conclusive on every fact of which the court has power to adjudicate in the absence of an appeal. A purchaser under a decree of distribution need not look beyond tbe decree itself. The decree- of distribution is conclusive on all the world.</p> <p>The decree of distribution was within the power of the lower court to render, and its judgment until reversed is binding on every other court.</p> <p>(2 Black on Judgments, secs. 794, 808; Grignon’s Lessee v. Asior j 2 How. [U. S.] 319; McPherson v. Ownliff et al., 11 Serg. & Bawl., star page 422; Wilson v. Hartford F. I. Go., 164 Fed. 817; Good v. Norley, 28 Iowa 208; Sheldon’s Lessee v. Newton, 3 Ohio St., star page 494; Mohr v. Manierre, 101 U. S. 417; Simmons v. Saul, 138 U. S'. 453; Garrett et al. v. Boeing et al., 68 Fed. 571; Knight v. Soilings, 63 Atl. 40' [N. H.] ; Dmis v. Gaines, 104 U. S. 386; McArthur v. Allen, 3 Fed. 313; Holmes v-Oregon, etc., 9 Fed. 229; Tilton v. Gofield, 93 U. S. 165; Tilt v. Kelsey, 207 U. S. 56; Kearney v. Kearney, 72 Cal. 591; Hanley v. Hanley, 114 Cal. 694; Ladd v. Weishopf [Minn.], 64 N. W. 99; Day v. Micou, 18 "Wall. 162; Olarlc v. Bossier [Idaho], 78 Pac. 358; Amy v. Amy, 12 Utah 278; Hoagland v. Hoagland, 19 Utah 103; Erñgreen n. Gronlund, 19 Utah 416; Chilton v. U. P. By. Go., 8 Utah 47.)</p>

<p>1. CONSPIRACY — Criminal Conspiracy — Defrauding of Heal Property. Under Comp. Laws 1907, section 4156, punishing two or more persons who conspire to defraud another of any property •by means which are criminal, or which, if executed, would amount to a cheat or to obtaining money or property by false pretenses, conspiring together to cheat another of real property by any means which, if executed, would amount to a cheat would be a criminal conspiracy; that the conspiracy related to realty being immaterial. (Page 611.)</p> <p>2. Conspiracy — Criminal Conspiracy — Nature of Acts. To constitute a criminal conspiracy, it is not necessary that the acts agreed to be done would be criminal if done, if they would amount to a civil wrong. (Page 611.)</p> <p>3. Criminal Law — Evidence—Hearsay. In a prosecution for conspiracy whereby another was induced by false representations to purchase worthless mining stock, a letter to the purchaser from an officer of the mining company stating that the stock was practically worthless, written in reply to a letter from the purchaser inquiring as to the financial condition of the company, was inadmissible as hearsay; the alleged conspirators not being connected therewith, or knowing thereof. (Page 612.)</p> <p>4. Criminal Law — Appeal — Harmless Error — Admission of Evidence — Prejudicial Effect. The admission of the letter was prejudicial, there being no other evidence showing the value of the stock or that the representations made were false. (Page 612.)</p> <p>5. Criminal Law — Criminal Conspiracy — Admission of Evidence— Letters. In a prosecution for criminal conspiracy for inducing the purchase of worthless mining stock by false representations contained in letters to the purchaser, stating that the stock was valuable, and urging him to buy it for resale, such letters were not admissible in evidence, where it was not shown that they were written with the knowledge, or by procurement, of the conspirators. (Page 612.)</p> <p>6. Criminal Law — Criminal Responsibility — Sufficiency of Evidence. 'In a prosecution for criminal conspiracy by inducing the purchase of mining stock by false representations, contained in letters written to the purchaser, evidence held not to show that the letters were written with the knowledge or procurement of the alleged conspirators. (Page 612.)</p> <p>7. Conspiracy — Criminal Conspiracy- — Prosecutions—Proof. In a prosecution for criminal conspiracy by inducing tbe purchase of worthless mining stock by false representations as to its value, proof of the falsity of the representations was essential to a. conviction. (Page 613.)</p>

T. D. Lewis, Judge. Action for breach of contract bj Joseph H. Roberts and Hattie Roberts against Walter Gr. Tuttle, Sereno B. Tuttle, and Marcellus B. Woolley, doing business as Tuttle Brothers. Judgment for plaintiffs for a- part only of their claim. They appeal. (APPELLANTS'1 POINTS.