Volume 38 — South Dakota Reports

Hon. Joseph W. Jones, Judge. Proceedings in the matter of the estate of Mary C. Hanson, deceased. From a decree in the Circuit Court in favor of Lydia Ann Nichols, contestant of the will, reversing decree of county court, Frank, Fox, executor, proponent, and The First Congregational Church of Sioux Falls, beneficiary, appeal.

Hon. Lkvj McGiiii, Judge. Action by Adams Company, doing' business as Wasmer Fruit Company, against Claire A. Nesbit and Western Surety Company, to recover, against Nesbit, the amount of certain misappropriations of plaintiff’s funds handled by him as employee, and to recover against said Surety Company upon its indemnity bond in favor of plaintiff.

PIon. Liivi McGiiii, Judge. Action by Adams Company, doing business as Wasmer Fruit Company, against Claire A. Nesbit and Western Surety Company, to recover .against Nesbit the amount of certain misappropriations of plaintiff’s funds by him as employee, and.-to recover against said Surety Company upon its indemnity bond in favor of plaintiff. From a judgment against defendant, Nesbit (principal in the surety bond), he appeals.

Hon. Carl G. Sherwood, Judge. Action by Thermoid Rubber Company, against O. A. Brict-son, trading under the name of The Brictson Manufacturing Company. From an order overruling demurrer to •defendant's counter-claim, plaintiff appeals.

Hon. William WilliamsoN, Judge. Action by Fanny Hol'bert, against Hart Parrish. From an order refusing- to vacate a judgment for plaintiff, defendant appeals. (i) To point one of the opinion, Appellant cited: Thompson on Trials, Vol. 2, Sec. 2635; Locke v. Hubbard, (S. D.) 69 N. W. 588. • Respondent cited: D-alkbermeyer v. Scholtes, et al, 3 S. D. 183; Book 67, L. R. A. 194; Hall v. State 3 Ga. 18; State v. Valiere, 39 La. Ann. 1060, 3 So-. 186.

Hon. John7 F, Hughes, Judge. Action by -the City of Fort Pierre, against the Western Surety Company, to recover upon an official bond. From an order overruling demurrer to one count of the complaint, defendant appeals. Appellant cited: Pol. Code, Sec. 1238; Adams Co. v. Western Surety Co., 35 S. D. 194; Connersville v. C'onnersville Flydraulic Co. 86 Ind. 235; Phillips v. Sonora Copper Co. Tj App. Div. 140, 86 N. Y. Supp. 200; Millican v. McNeil (Tex.' Civ. App.) 50 5.

Wiiliam WiuaamsoN, Judge. Action by the 'Superior Lumber & Coal 'Company against L. T. Stone and Tripp County, S. D'. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal.

Hon. Carl G. SiiRrwood, Judge. Action by Jens P. Foldager, against Atwood Stone Company, a corporation, for the cancellation of a contract, and for other relief by way of money judgment. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (2) To point two of the opinion, Appellant cited: Great West Life A's-sur. Go. v. Shumway, 141 N. W. (N. D.) 479; Chapman v. Greene, (S. D.) 130 N. W. 30.

<p>1. Judgments — Garnishment—Jurisdiction Against Garnishee — Nonresident, Maiii Defendant — Judgment in Personam.</p> <p>Where no personal service of summons within this state was made upon the main defendants, nor any appearance entered by them, but they -are served in a foreign state of their residence, and garnishee 'summons was served upon resident garnishee-within this state,, and no judgment was rendered against garnishee until -after a judgment had been entered against the main defendant, on the trial u,pon issues joined on garnishee’s, disclosure had prior to rendition of judgment in the main action, held, that there was not and could not have been a judgment in personam against the main defendant.</p> <p>2. Same — Garnishee Process Involving Foreign Property — Judgment Against Main Defendant, Jurisdiction to Enter.</p> <p>In a suit against a non-resident main defendant, served with summons outside of the state, where garnishee summons was served upon a resident garnishee within this state, and where trial court was advised, when judgment was entered in the main action, of what property of the main defendants was in possession of garnishee, or what indebtedness due them from •garnishee, had been brought within control of the court, held, that if garnishee process had reached any such indebtedness, the trial court had jurisdiction to enter judgment against main defendants, which judgment could be satisfied through such judgment as might be rendered against garnishee. So held, where property claimed to be subject to garnishment, and in which it is claimed the named defendants had an interest, was situated in a foreign state.</p> <p>S. I'rsiHdMlcwt OonvoyjamceH — Gawifelunojii-—■Resident Garnishee— SJon-residient Befendsnt and GaiTaishee — —Foreign Merchandise 'SVu.ianÍM'j'etl Eadcr Void Bair- — Liability of Garnishee— Ti'E’.steeslwií.</p> <p>Where garnishee was a resident of this state, and plaintiff and the .principal defendants were residents of Nebraska, and such defendants were there served with summons; held, that as to a stock of merchandise located there, claimed to he owned by the principal defendants, the tale of which to them was under the Nebraska Bulk Sales Law void, although said merchandise uas fully paid for when so sold, and, as between the parties to said sale, no right of action existed in vendor’s favor, and vendees had already resold most of it, yet, under said Bulk Sales Lav/, and statutes like our Garnishee Law thaws 1909, Chap. 156, Sec. 17), making property, etc., held by conveyance, void as to creditors of the vendor, the purchaser is holden for such goods as garnishee; that he held the goods ns trustee for plaintiff.</p> <p>4. OoMi'tr: — -GswmMimeii.t~~Statntes—ExtrateiTitoiial Force of — 'Fores»’5i Property Interests — OomSty between States.</p> <p>Where, in a garnishment proceeding, the respective interests of the main defendants and the vendor’s in property located In a foreign state are involved under a Bulk Sales Law of the foreign jurisdiction,, held, construing Laws 1909, Chap. 156, Sec. 17, providing that any property, etc., held by- conveyance or title void as to creditors, shall be embraced in garnishee’s liability, in connection with said foreign Bulk Sales Law, that the court of the forum, in enforcing the garnishment proceeding, will apply the rule of comity between states, and will hold such sale of merchandise void, even though to do so is to impose upon a citizen of this state a personal liability resulting from such foreign statute; that if such comity is so restricted that a law of the state of the contract will be disregarded whenever the state of the forum has not the same law; or so that where, to enforce the foreign law in question would not violate any law of this state nor infringe upon any right of her citizen, the doctrine of comity becomes a farce, as also would be the-case if a citizen of this state,' contracting in a foreign state, would not be held to such contract by courts of' this state simply because so to hold him would 'be “to the prejudice of all her citizens.”</p> <p>5. Courts — Garnishment—Enforcement of Foreign Laws — Questions of Remedy — Comity as Applied to Law of Forum.</p> <p>In determining whether the interest of a foreign resident in foreign-owned property is subject to garnishment in an action pending in this state, held, that the rule of comity has no application to matters of remedy; that the remedy is always controlled by the law of the forum; therefore, if oitr statute (Laws 1909, Chap. 156) did not provide for reaching by garnishee progress one who holds “property, money and effects * * * by conveyance * * * void as to the creditors of the defendant,” the courts in this state would not enforce such a remedy simply because suchi remedy was provided by the foreign statute.</p>

Hon. Raymond Diixman, Judge. Action by Dan Hanclelan, as sub-contractor, against Smce School District No. 4 of Wakpala, South Dakota, and others, to ■recover for a balance due for labor performed and material furnished in the construction of defendant’s school buildings. From a judgment against plaintiff and in favor of defendant school district, and from an order denying a new trial, plaintiff appeals.

Appeal- from Circuit Court, Beadle County. Hon. Alva E. Taylor, Judge. Action by Harry E. Barnes, as administrator, substituted as plaintiff for Ambrose Barnes, deceased', against Arthur L. Thompson, to recover damages for breach of warranty in installation of a heating' plant. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Hon. John E. Hughes, Judge. Action 'by the state on tire relation of M. Harry O’Brien of Hyde County, 'South Dakota, against Dorman Weaver to recover statutory penalty for failure to deliver an assessment list. From a judgment for plaintiff and from' an order denying a new trial, defendant appeal's. (i) To point one of the opinion, Respondent cited: Laws 1913, Ch. 280. (3) To point three of the opinion, Respondent cited: Pol.

Hon. RobRrp B. Teipp, Jud'gie. • Action.' by W. E. Ege and others, against Erank Williams, ■as Mayor of ’the City of Centerville, a municipal corporation, and others, to restrain defendants from repaying certain liquor license money. Brora a judgment denying the relief prayed for, Appellants, appeal. (1) To point one of the opinion, Appellants cited: Evans v. Hughes' County, 3 S. D. 244; Civ.

Hon. William Williamson, Judge. Action by Maggie Decory, against Olof Nelson, to quiet title. Prom a judgment for plaintiff, aniel from an order denying a new trial, defendant appeals. (1) To point one of tire opinion, Appellant cited: Pol. Code, Sec. 2214. Respondent cited: Weller v. Platt, 33 S. D. 509; MacKin-non v. Puller, 146 Nr-W. 911; Berry v. Howard, 146 N. W. 577; McKinney v. Minnehaha 'County, 17 S. D. 407. (2) To point two of the opinion, Appellant cited: Pol.

Hon. Jamrs McNrnny, Judge. Action by James D. Hardin, against Walter E. Graham and others, for a decree adjudging' plaintiffs’ right to- redeem from a receivers’ sale. Rrom a judgment for -defendants, and from an order díenying a new trial, plaintiff appeals. (i) To point one of the opinion, Appellant cited1: Code Civ. Brae., Sec. 463. Respondents 'cited: Brown v. Brown, 12 S. D. 382; Gade v. 'Coffins', 8 S. D. 322.

Appeal irom' Circuit 'Court, Turner -County. Hon. Robert B. Tripp, Judge. Action! by J. A. Davis and others, against Geo. Cramer and others, to -contest the validity of a liquor license election. From a juldigment for defendants, plaintiffs apipeal. (i) To point one of the opinion-, Appellants cited1: Wake-man v. Norton, 49 Pac. 283, 24 Colo-. 1924 Gouse v. City of Clarksville (C. C.) 1 Fed. 353; Murray v. M'cGarigle, 69 Wis-. 483, 34 N. W. 552; Vol. 15 Euc.

Hon. Ti-iomas L. Bouck, Judge. Action by Albert HeunreSdl and wife, against th-e Chicago, Milwaukee & St. Paul Railway 'Company, 'to- 'recover damages incidental to- use of -a -railroad niglht-of-way. Erom an order overruling a demurrer to the- complaint, defend-aat appeals. Appellant cited; Earlo-w v. -Chambers, 21 S. D. 128; McGee v. Verity, (Mo.) 71 S. W. 472; Bostw-iclc v. Mutual Life Ins.

Hon. At,va E. Taylor, Judge. Action toy E. E. Erederick, agiainst M. L. Nuzum and others, for foreclosure of a mortgage. Enotm a judgment against plaintiff, and from¡ an order denying a new trial, plaintiff appeals. (i) To point one of the opinion, Appellant cited: 4 Cyc. 569; 20 Cyc. 1022; Association v. Heir, (Neb.) 72 N. W. 588; Sturdlevant v. Bolin Sash & Door Cd., 78 N. W. 265; Straw v. Jenks, 43 N. W. 941 (Dak. Ter.) ; Strong v. Brown, (Minn.) 53 N. W. 67.

<p>Appeal from' Circuit Court, Butte County. Hon. James McNenny, Judge.</p> <p>The defendant, Nestor Daniels, was convicted of perjury, and1 he appeals.</p> <p>(1) To point one of the opinion, Appellant cited: Case of Royal C. Johnson, (S. D.) 131 N. W. 453; Bioyd v. United States, 29 L. E. 746; Maki v. State, 112 Pac. 334.</p> <p>Respondent cited: People v. Molineaux, 168 N'. Y. 264, 61 N. E. 268, 62 L. R. A. 193.</p> <p>(2) To point two: of the opinion, Appellant cited: People v. Tittnus, (Mich.) 60 N. W. 693; People v. Howland, (Gal.) 44 Pac. 342; Ex -parte Spears, (Cal.) 26 P'ac. 608, 22 A. S. R. 341; 30 Cyc. 141.1; Anderson >v. State, (Tex. App.) 7 S. W. 40; U. S. v. Robinson, 4 Dak. 72.</p> <p>Respondent cited: Pen. Code, Sec. 157; State v. Davie, 62 Wis. 305, 22 N. W. 411, State v. Donaldson, 12 S. D. 269; State v. Smith, 84 Kan. 648, 114 Pac. 1074; Maynard v. People, 25 N. E. 140 (Ill.); Morford v. Territory, 54 L. R. A. 515; 30 Cyc. 1412 (17).</p> <p>(3) To point three of the opinion, Appellant cited: Daws 1907, Chap. 200: State v. Thariat, 24 So. 179; People v. Smith, 25 Mich. 498; People v. Gleason, 63 Mich. 628, 30 N. W. 211 ; Code Civ. Proc., Sec. 502; Pen. Code, Sec. 157, 188.</p>

Appeal firom. Municipal Court, Sioux Falls. Hon. Alpha M. Ore, Judge. Action by the Drake Marble & Tile Company, against Albert Bjoraas, wherein the Chapter of Calvary Cathedral of Sioux Falls was garnishee. From an order sustaining motion to release property as exempt, plaintiff appeals. (1) To point one of the opinion, Appellant cited: Mahon v. Fansett et al., (N. D.) 115 N. W. 79. Respondent cited: Laws 1913, Chap. 228; Code Civ. Proc., Sec. 355. .

Original action by the State oí iSoudi Dakota, on the relation of George W. Egan, against ¡the Norlbeck & Nicholson Company, to recover back moneys paid, 'defendant by the state for construction of an artesian well upon the state house grounds. Upon demurrer to complaint.

<p>Appeal from Circuit 'Court, M'eade County. Hón. Wieeiam G. Rice, Judge.</p> <p>The defendant, Harrold M. Cooper, was convicted of crime, and he appeals.</p>

Hon. Cart, :G. Sherwood, Judge. Action 'by t'he first National Bank of Watertown, 'against W. J. Somers; to recover upon a promissory note. From a judgment far plaintiff, and from an order 'denying a new -trial, defendant appeals. Appellant cited. McCormick Harvesting Machine Company v. Taylor, (N. D.) 63 N. W. 890.

Hon. Joseph W. JONES, Judge. Action by Mary So-gn, against John, Koetzle and another, 'co-partners as Koetzle & Sdiopf, and the Western Surety Company, to -recover damages, upon a surety 'bond, for unlawful selling of intoxicating liquors-. From an order overruling a demurrer to the complaint, defendants appeal (i) To ipoint -one rof ¡tibe opinion, Appellants cited: State Chicago, Milwaukee & St. HaJul R. R. Co-., 4 S. D. 261; Texas M'ut.

Hon-. Thomas L. Bouck, Judge. Action by É. G. Anderson, against the Interstate Men’s Accident Association of Des Moines, Iowa, to recover upon a policy of accident insurance. From .a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Circuit Court, Moody County. ■ H'o.n. Joseph W. Jones, Judge. Petition ¡by James T. Bigelow, Administrator with the will annexed of the estate of Walter H. James, deceased, against Henry A. Root, executor of the last will and testament of Clara Jones, deceased, for certain statutory allowances. From a judgment of circuit court for plaintiff, and1 front an order denying a new trial, on appeal from a judgment of county court denying the application, defendant appeals.

Appeal- -from Circuit Court, Cl'ay County. Hon. Robert B. Tripp, Judge. Action by Charles E. Johnson and!' others, ’copartners, against Martin Eben'sen, to recover damages for breach of warranty of bog’s sold1 to plaintiffs by defendants. Erom a judgment for defendant, and from an order denying a new trial, plaintiffs appeal. (2) To point two of the opinion, Appellants cited-: Wigmore on Evidence, Sub. 3, Sec. mi; Prentiss v. Roberts, 49 Me. 127.

Hon. John F. Hughes, Judge. Proceeding to enforce tax levy by Adolph W. Rwer-t, as Treasurer of the State of South Dakota, against- Geoage C. Taylor, -individually, and! as president of the American Ex-press Company, and the American Expres's Company, an unincorporated stock -company.

Appeals from Circuit Court, Hughes 'County. Hon. John E. Hughes, Judge. Proceedings to enforce a tax levy by Adolph W. Ewert, as treasurer of the State of South Dakota, against Wells Fargo & Company. From the judgment, both parties appeal.

Hon. Raymond L. DiulmaN, Judge. The defendant, Fred M. Bell, was convicted' of manslaughter in (the first degree, and; appeals. (i) To .point 'one of the opinion, Appellant cited: State v. Lepine, 113 N. W. 1076; Wbarton on Homicide, Sec. 237; Revised Pen. 'Cede 1903, 'Sec. 268; 21 Cyc. 800, 802; State v. Zeigler, 40 W. Va. 593, 10 Am. Grim. Rep. 463.

Hon. Robert B. Tripp, Judge. Drainage proceedings in wihiiohi C. M. Snow is claimant, upon a 'hearing before 'drainage commissioners for establishment of tlie Yankton-Clay County Drainage Ditch, «for damages for right of way of s'aid ditch, etc. From a judgment disallowing claimant’s claim, and from an odder denying- a new trial,. claimant appeals. (1) To- point one of the opinion, Appellant cited: Laws 1909, Chap. 102, Secs. 2, 3; In re Sorenson Drainage Ditch, 27 5.

<p>Ora rehearing.</p>

<p>Appeals — No Brief — Abandonment of Appeal — Affirmance.</p> <p>Where, after notice of appeal served, and certified copy thereof filed in the office of the clerk of the Supreme Court, no brief was filed by appellant, or other steps upon appeal taken, about six months having since elapsed, the appeal will be deemed abandoned, and the order appealed from affirmed.</p>

Hon. Robert B. TRIPP, Judge. Mandamus iby Alfred Halverson', against Frank Williams, as Mayor, T. I. Gunderson and' others, as Aldermen, and Soren Christensen, as Auditor, of the city of Centerville, to compel defendant city to pay certain judgments in favor of plaintiff. From a judgment for defendants, conditionally, and from an order 'denying a new trial, plaintiff appeals. (1) To point one of the opinion, Respondents cited: Pol. Code, 'Sec. 1191.

Hfo-n. Thomas L- Bouck, Judge. Action -by Yadeskey Schwitz, against Sebastian Thomas, and -the Western Surety -Company, to recover upon the bond o-f a licensed retail dealer in intoxicating liquors. From a judgment for plaintiff, defendants appeal. (x) To point one of the -opinion, Respondent -cited: Pierson et al. v. Minnehaha County, 26 S. D. 462; 6 PI. & Pr. 365; Sutherland PI. & Pr., Sec. 665. (2) To point -tiwo of ibhe opinion, Respondent -edited: Code Civ.

Hon-. Willtam Williamson, Judge. Action by Neis Danielson, against Herman Albers, Ray MdCuHou'gtu, and another, 'to enforce reconveyance of land to ¡plaintiff. From an order sustaining demurrer of the named defendants to. the complaint, plaintiff appeals. Appellant -cited: Corpus Juris-., Vol. 2, Secs. 354, 358. Respondents cited: Sutherland, Code Rl., Book 4, p. 6890.

Hon. Joseph W. JoNKs, Judge. The defendant, H. Van Ruschen, was convicted of the crime of fraudulently procuring the signature to a written instrument, and he appeals.

Faulk 'County. Hon. Joseph H. Bottum, Judge. ■Suit by Albert Goodlier, a taxpayer, etc., against Walter Rudd and1 others, as the Board of Super visions of Faulk. County, and others, to enjoin certain defendants from accepting the statutory saloon license from the defendants seeking- to become licensees, and1 for other relief. From a judgment 'Cancelling license or permit issued by defendant Township’ Board, defendants appeal.

Hion. JosMRii AV. Joniís, Jucl-ge. Action by Edgar 'Clinks'cales, against the Wisconsin Granite Company, a corporation, to recover damages resulting from- personal injury. Fmro a judgment for plaintiff, from an order overruling defendant’s motion for a directed verdict, and from air order denying a new trial, defendant ¡appeals. (x) T-o point -one of the opinion, Appellant ¡cited: Jones v. Milwaukee Ry.

<p>1. Schools — School Townships — School Districts — Change of Boundaries — Division of Township, of Districts, Effect on School Township Bonds — Liability of School Township, of Independent School District — Statutes.</p> <p>Where parts of a school township were detached therefrom at various times, and certain sections of land were sub-subsequently attached - thereto, and thereafter school township’ bonds were issued by said townsihip by name, and the owner of some of the 'bonds sued said township as “Cavour School Township, a corporation,” and also as “Cavour Independent School District, a corporation,” to recover upon said bonds, each of the defendants appearing by separate counsel, and judgment was rendered jointly against both school districts as named, held, that although after the bonds were issued, certain other sections of land were detached from- Cavour School District and still later other sections were detached from an adjoining district and added to' the remaining sections in said original school district, and the existence of Cavour Independent School District at a date subsequent to the 'bond issue and prior to the commencement of suit, wras shown, it appearing that Cavour School District comprised the whole of a township, except such .portions as are included in Cavour Independent School District, and that the latter was organized in part from territory originally embraced in Cavour School District and was part thereof at date of bond issue and when judgment was entered; yet the identity of the area of said independent district has remained, although variously designated under territorial and state statutes, and finally designated, and sued in the .present action to enforce said judgment, as “Cavour School District of Beadle County;” and said joint judgment should stand; and said Cavour School District was properly required to levy a tax to .pay a part of said judgment. So. held, under Laws 1 883, Chap. 44; Comp. Laws 1887, Sec. 1728, (being Laws 1887, Chap. 47, Sec. 42), providing that where civil township government has been established, any school township thereafter organized shall assume the same ■boundaries and name as the civil township and when organized as school townships shall be known in law, etc., under the proper name and style of each, as a school township; and Laws 19 01, Chap. 113, Sub-Chap. 3, Sec. 1, providing that in all counties organized for school purposes under district system each school district shall be and remain a school district corporation until changed as therein .provided, and that each township consisting of territory not organized into a civil township shall be and remain a school district corporation until so changed, and Sec. 5 (Pol. Code, 1903, Sec. 2326) providing that every school district consisting of a civil township shall be named.School District, etc., with the name of the civil township inserted in the blank, etc., and that every school district consisting of territory not organized into a civil ■township, -but having a distinctive name, shall have such name inserted in the blank, etc.</p> <p>2>. Taxation — School District — Levy to Pay- Judgment — Statute, Non-application of — Approval of Daw on Date of Judgment.</p> <p>In a .proceeding under 'Laws 1907, 'Ohap. 13B, Sec. 75, to compel 'Cavour School District to levy a tax to pay half of a certain judgment rendered against Cavour Township and against Cavour Independent School District, jointly, held, that Sec. 73 of said Chap., requiring county commissioners, and county superintendent to apportion property and indebtedness whenever district boundaries were changed, was not in force when the .boundaries of said school township were changed, nor at date of rendition of the judgment on certain school bonds, although ■tibe act was approved on the day the judgment was entered.</p> <p>3. Schools — School Corporations — Change in Name of Boundaries, Effect on Identity, on Liability Under Bond Issue.</p> <p>A change in name or boundaries of a school corporation does not change its liability as .plaintiff or defendant; nor does a school corporation cease to exist, although its name and boundaries have been changed at various times.</p> <p>4. Schools — Bond Indebtedness, Settlement of Between School Township and Independent School District, Effect — Suit on Bonds— Necessity of Pleading Defense of Release by Settlement — Res Judicata — Evidence, Exclusion of.</p> <p>The fact that a complete adjustment of property and bonded indebtedness had been mad© between a school district and a school township by which the school district claimed to lhave ■been released from its liability on the bonds, was matter of defense in a suit against both school corporations to recover upon certain bonds, and should have been pleaded in the action; and where proper service was made upon the corporation claiming to have been released, and both corporations appeared by counsel in the suit, this and all otiber defenses affecting the liability of the school district became res judicata, and cannot be urged on appeal to defeat liability on a judgment entered in the suit. Held, further, that the trial court did not err in excluding evidence of such settlement as a defense. Coler v, Uoppin, N. D., 85 N. W. 898, distinguished.</p> <p>McCoy, J., concurring in the result.</p>

Hon. James McNenny, Judge. On petition for rehearing. Appellant submitted1 that: • The court, in deciding this case on appeal, apparently overlooked the fact that the contention on both sides, as to the character of the sale, was intended exclusively to relate to the right of redemption from the sale, and not to any question whether or net the decree was executed; the contention being made on the one hand that the right of redemption existed because this was a foreclosure…

<p>1. Attorneys' — Disbarment Proceedings — Costs—Fees of Referee, Stenographer and Transcript, Whether Taxable Against Unsuccessful Accused — Statute.</p> <p>Under Laws 1911, Chap. 85, Sec. 5, providing that in disbarment proceedings, tbe fees and expenses of stenographer for talcing evidence, and making transcript thereof, shall he paid •by county, etc., and that all other disbursements by prosecution stall be paid by the state, and Sec. 6, providing that in such proceedings the court may, in discretion, tax and render judgment for necessary disbursements incurred on behalf of prosecution, against accused, whenever the court shall determine that the charges filed were unfounded, and that whenever judgment is rendered against accused, it may include, in discretion of the court, a judgment in favor of the state for necessary disbursements on behalf of prosecution, held, that said fees of referees and of stenographer and for making transcript are not costs taxable against accused upon decision adverse to him.</p> <p>2. Attorneys — Disbarment Proceeding — Costs, Against Unsuccessful Accused — Disbursements Paid by County, Effect on Right to Tax Against Accused.</p> <p>That certain disbursements were taxable against an unsuccessful accused in disbarment proceedings have been paid in part by the county, does not affect tb© state’s right to a judgment therefor, and to tax them against accused; the county being clearly entitled to reimbursement.</p>

Original proceeding’s by the -State of South Dakota, on the relation of ‘Clarence C. Caldwell, Attorney General, and the State Board1 of Railway Commissioners, to> restrain the American-Express Company and others from putting into effect a certain-schedule of intrastate express rates.

<p>Appeals — Delay in Prosecuting — No Brief Piled — Abandonment— Affirmance.</p> <p>Where certified copy of notice of appeal was filed in March., the record having 'been settled prior to talcing appeal, and ao> ■pellant filing no brief before the following January, appeal will be deemed abandoned and judgment affirmed.</p>

Hon. Robert B. ’Tripp, Judge. Action toy Albert Slinger, against S. M. Totten, 'doing business as The Totten’s Vermillion Seed House, to recover damages for alleged, breach of' warranty in a sale of seed corn. From an order overruling a demurrer to the complaint, defendant appeals. Under point one of the opinion, Respondent submitted that: The catalogue does not require the respondent to test the seed corn.

Proceedings for the 'disbarment oif Hi. Van Ruschen, at-torne)'- at law. (1) To' point one of the opinion, the State cited: Sec. 704, Political 'Code; In re Kirby, 10 S. D. 322; 2 R. C. D. 1089; In re Egan, 154 N. W. 521; 'Secs. 686, 688, 692 and 697, Political Code; In re Egan, 157 N. W. 210; In re Egan, 22 S. D. 335; 2 R. G. E. 1095.

• Certiorari by tibe State on the relation, of Thomas E. Hale and another, against Levi M:cGee, Judge of the Circuit Court, and others, to review injunction proceedings in foreclosure by advertisement. (i) Under point one of the opinion, Plaintiff submitted that: The order in question of June 21st 1916, is not an appealable order, and' cited': Commercial National Bank v. Smith et al., 1 S. D'. 29; Bostwick et al. v. Knight et al., 5 Dak. 305; Black Hills E. & Min.

<p>Action by Gustav Denclcer, against E. A. Seymour. Erom a judgment.Tor plaintiff, defendant appeals-</p>

Hon. Gael G. Sherwood, Judge. Petition of Elizabeth McDonald, and others, against W. A. Krause, Judge of County Court of Moody County, in the Circuit Court of Brookings County, for a writ of prohibition enjoining said judge from exercising further jurisdiction over the estate of’ Patrick Flemming, deceased. From a judgment and order so enjoining said county judge, the defendant appeals.

Hon. Care G. Sherwood, Judge. ■ Petition by Bergetta Hansen, as the widow of Nils Hansen, deceased, in the county court, to 'have allotted to 'her certain land as 'her homestead exemption. From.' a judgment and decree of the circuit court .upon appeal from a judgment and decree of the county court allotting certain land, as petitioner’s, homestead exemption, to the extent of $5,000 in- value, petitioner appeals. On motion to dismiss appeal.

Appeal -from Circuit Court, Mellette County. Hon. William Williamson, .Judge. Action by C. P. Jordan, against Mellette County, South Dakota, to recover moneys claimed to be 'due plaintiff from defendant, as a balance on bis salary for acting as ¡County Treasurer. Prom 'an order of the Circuit Court sustaining the Count}'- Commissioners’ rejection of plaintiff’s bill, for such balance, he appeals.

Action by Henry Bradshaw, against Thomas Brady, to quiet title to realty. From a ¡judgment in Savor of plaintiff, and from an order denying a new trial, defendant appeals. (2) To point two of the opinion, Respondent cited: Rev. Code 1877, Sec. 74; Gibson v. Pekarek, (S. D.) 126 N. W. 597; Gibson v. Kitterman, 124 N. W. 740; Geekie v. Kirby-Carpenter Co., 160 U. S. 379.

-County. Hon. Frank B. Smith, Judge. Action toy James- W. Ellis, against J. A. Archer, to recover 'damages -arising for assault and battery Rrom a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (1) To -point one of the opinion-, Appellant cited: 3 Cyc. 1073, note 78'; Thornton v. Taylor, Ky. L. R. 1082, 54 S. W. 16; Higgins v. Minaghan, 78 Wis. 602, 47 N. W. 941, 23 A. S. R. 428, 11 L. R. A. 138.

Action by John YValkin, against E. O. Nokken, for specific performance of a -contract for conveyance of realty. Erom an order overruling the demurrer to tire complaint, defendant appeals. (1) T01 point one of the opinion, Appellant cited: Maupin on Marketable Titles, 193; George v. Conhim, 38 Minn. 338, 37 N. W. 791. .

Josiípt-i W. Jones, Judge. Action by John C. Heenan, against the South Dakota Provision Company, to recover damages for personal injury. From a judgment for plaintiff, and from an order denying a new trial, plaintiff appeals.

Hon. Ai,\'a E. Iaylor, Judge. Action by the City of Howard, against Charles M. Lefler and another, to recover an alleged- over-payment under a sewer contract and1 for breach -of said) contract; -defendants interposing a counterclaim for nonpayment of contract -price. From a judgment for plaintiff, and from- an order denying a new trial, defendants appeal.

Hon. Wirriam Wirriamson, Judge. On re-hearing: On amicus ouriee -statement by Attorney General. Former opinion 38 S. D. 275, 160 N. W. 815, modified as to decision that Laws 1909, Gbap. 171, did not make county treasurer’s office a salaried office.

Hon. John E. Hughes, Judge. ■ Action 'by the Atlas Lumber 'Company, * a corporation, against Elmer Rosenberger to recover upon a promissory note. From a judgment for plaintiff, and1 from an order denying a new trial, defendant appeals. (1) To) point one of the opinion, Appellant cited: 31 Cyc. 1605, 1585, 1405, 1378; Bank v. Kellogg, 4 S. D. 312-318. Respondent cited: 1 Am. & Eng. Ency.

Hon. Joseph H. Bottum, Judge. Action by Daniel Schanzenbach, against Jacob Stoiler and others, to recover upon a contract of indemnity against encumbrances of land purchased- by palintiff. From a judgment for plain-tiff, and from an order denying a new trial, the .named de-fandant and another appeal. (1) To point one of -t'he opinion-, Appellants cited: 27 Cyc. 1359, mote 76. Respondent cited: Callender v. Bdim-iso-n, 8 S. D. 81, 65 N. W. 425; Stout v. Fo-lg-er, (Iowa) 11 Am.

Hon. Cam, G. SiiRrwood, Judge. Action by Abraham Slimmer and; Lane J. Th-o-mas, -co-partnens a's Slimmer & Thomas, against .the Meade County Bank of Sturgis, a corporation, and J. A. AVingfield, Public Examiner of the State of South- Dakota in charge of the bank, to recover the value of mortgaged1 cattle alleged to have been wrongfully converted by defendant bank. From an order denying a new trial, -defendants appeal. (2) To point two of the opinion, Respondents cited: 'Civ.

Hon. FRANK B. Smith, Judge. Action ¡by the City of Sturgis, a municipal corporation, against the Meade ¡County Bank, a banking 'corporation, and J. L. Wingfield, -as Public Examiner of the State of South Dakota, establish a preferential claim against defendant bank in favor of plaintiff. From a judgment for defendants, and from- an order denying a new trial, plaintiff appeals.

Appeal ftfoim 'Circuit 'Court, Lyman County. Hon. William WilliamsoN, Judge. Action by Robert B. Tripp, .against Nicolaus Siele'r and other®, to set aside a land sale contract and to recover back purchase money payments. Tram a judgment 'for plaintiff, and. from an order denying a new trial, the named defendant appeals. (3) To point three of the opinion, Respondent cited: Civ. Code, Secs. 971, 962.

Hon. Joseph H. Bottum, Judge. Action by ■ 'Charles- A. M'aupin, administrator of the estate of William Ducheneaux, - deceased1, against the Mob-ridge State Bank, a- corporation, to- recover upon a bank certificate of deposit. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

'Circuit Court, Pennington County. Hon, Liivi McGee, Judge. Action, by Robert Burton and. wife, _against Lawrence R. Ryther and wife, to recover purchase money paid under a contract of sale of realty. From a judgment for defendants, and from an order denying a new trial, plaintiffs appeal. (1) To point one of t-he opinion, Appellant cited: Hogan v. Bechtel, 27 S. D. 98; Barnes v. Clement, 12 S. D. 270; Wood-ford v. Kelley, 18 S. D. 615; Bedow v. Tonkin, 5 S. D. 432.

Hon. Joseph W. Jones, Judge. Mandamus iby the State, on the -relation oí N. Millerke, against W. 'C. Nisbet and others, 'constituting- the Board of Commissioners of -the City of Dell Rapids, to require defendants to submit to electors question whether defendant city shoul-d change its form of -government. From a judgment for relator, defendants appeal (3) T-o -point three-of the opinion, Appellants cited: Metropolitan Casualty Ins.

<p>Original proceedings in the Supreme Court. In the matter of disbarment proceedings, against Dan E., Hanson, an attorney.</p>

lion. Thomas L. Bouck, Judge. The ’defendant, August Otto, was' convicted of engaging in the business of selling intoxicants without having first procured license, and from the judgment, and f-rom an order denying a motion for new trial, lie appeals. C. C. Caldwell, Attorney General, Byron S. Payne, Assistant Attorney General, and C. R. Jorgenson, State’s Attorney, fo-r the State.

Hon. Thomas R. Bouck, Judge. Action toy F. I. Gbrestenson, as administrator of the estate of Irvin C. Ohrestens'on, against George Harms and others, to recover •damages for death of plaintiff’s child. From' a judgment for defendants, and from an order denying a new trial, plaintiff appeals.

.Appeal from Circuit Court, Ziebach County. Hon. Raymond L. Diduman, Judge. Action by Andrew Strommer, against Chicago, Milwaukee & St. Paul Railway Company, for damages1 for negligently destroying, 'and1 for losing, certain goods shipped ‘by plaintiff. Erom a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (i) To point one of the opinion appellant cited: M. K. & T. Ry. Oo. v. Harriman 227 TJ. S. 657.

Appeal' from' 'Circuit Court, Brown County. Hon. Thomas L. Boucic, Judge. Action by J. A. Elliott, against the Chicago, Milwaukee & St. Paul Railway Company, to recover damages for delay in shipment of plaintiff’s livestock. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (3.) To point three of the opinion, appellant cited:’ Jones on Evidence, Section 434; Strunk v. Smith, 8 S. D. 407, 66 N. W. 926; Barnard & L. Mfg.

Hon. Joseph W. Jones, Judge. ■Action toy -the Atwood-Stone Company, ag-ainst the Lake •County Bank, to recover from defendant the amount of -certain money advances toy plaintiff to third persons for a specific purpose, and alleged to- -have been wrongfully diverted -by defendant. Prom a judgment for defendant, and from an order denying a new trial, -plaintiff appeals. (2.) To point two of the opinion, Appellant cited: -Civ.

Hon. Robert B. Tripp, Judge. See, also, Cowie v. Harker, 32 S. D. 516, 143 N. W. 895. Action ¡by Emma W. Harker, and M. W. Harker, as executors of the -last will of Joseph Harker, deceased, against A. E. Cowie '-and John' W. Potter, to quiet title to realty. From a judgment in favor of defendants, and from an order denying a new -trial, plaintiffs 'appeal. (1) To point one of the opinion, Respondents cited. 'Cye., Vol. 1, page 21, and cases cited.

Hon. Reanií B. Smith, Judge. Action by the First National Bank of Pukwana, against the Brule Nationali Bank of Chamberlain, to recover upon defendant’s endorsement of a forged bank check. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (i) To point one of the opinion, Appellant cited: Green-wald v. Ford, 21 S. D. 28; Ell'is v. Ohio L. Ins., etc., Go., 4 Ohio St. 628, 64 Am. Dec. 610.

Hon. Cam, (-. Sherwood, Judge. Action by the State of South Dakota on the relation of A. J. Haugan, State’s Attorney of Codington County, South Dakota, against Severi Belatti and E. L. Denis, to abate a public nuisance alleged to have been maintained in defendant Denis’ hotel. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal.

Hon. James McXenny, Judge. Action by Hobert S. Vincent, John R. Jones, and Norman T Mason, against Charles S. Hardin, Elizabeth Hardin, and 'William I ouis Hardin, for partition of realty. From a judgment for plaintiffs, and from an order denying a new trial, defendants appeal.

Hon. Robert B. Tripp, Judge. Action by A. O. Welch and R. D. Welch, against E. C. Run-dell and M. R. Run-dell, to enforce specifice performance of a contract for purchase of realty. From a judgment for plaintiffs, and from an order denying a new trial,’ defendants appeal. (2.) To- point two of the opinion, Appellants -cited; Chapman v. Hill, 137 Faci 1041, 77 Wash., 274; New York Brokerage Co. v. Wiharton, la. 119 N. W. 969; 'Civ. Code, Sec. 2345.' Respondents cited: Civ.

Hon. Thomas L. Bouck, Judge. Action 'by Nellie Moiberg, .against H. F. Scott, to recover ■damages resulting from alleged sale by defendant to plaintiffs husband of opium. From an order, overruling a demurrer to- the complaint, defendant appeals.

Hon. Levi McGee, Judge. Action by Alice Kamp, against James R. Madison, to recover commissions for services in a land 'deal. Prom a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (2.) To -point two of the opinion, Appellant -cited: Distad v. -Shanklin, 11 S. D. 2; Ereel v. Pietzsoh (N. D.) 132 N. W. 779; 'Soderburg v. C. St. P. M. & O. R. Co. (Ia.) 149 N. W. 82. Respondent cited: Updike v. State, 9 Oída. Crim. 133.

<p>1. Negotiable Instruments — Indorsement by Payee, Effect as Guaranty.</p> <p>The -payee of a note who endorses same to a bank, thereby becomes guarantor of payment thereof.</p> <p>2. Payment — Negotiable Instruments — Payment to Payee Guaran» tor — Makers’ Knowledge of Guaranty, Effect of on Payee’< Agency.</p> <p>In a suit by endorsee upon one of a series of promissory notes, of which payee was guarantor, held, in view of the fact that payee was such guarantor and of the further fact that defendants, 'by the terms of the notes themselves — three of which had been -paid by and returned to them — were fully advised of the contractual relation existing between plaintiff and payee, that there was nothing in the correspondence between plaintiff and payee, by way of inquiry as to whether defendants had made payments to him, which would warrant them in assuming that payee was the agent of .plaintiff; there being no proof of actual agency. That therefore, the trial court erred in refusing to direct a verdict for plaintiff. 37 S. D. 06, 156 X. W. 583, reversed.</p> <p>McCoy and Polley, JJ., dissenting.</p>

<p>Appeal from Circuit Court, Marshall County. Hon. Thomas L. Borcic, Judge.</p> <p>On rehearing.</p> <p>(i.') To point one of the opinion, Appellants cited: People v. Pacific Grove District, n Cal. App. 'Repts., 212.</p> <p>Respondents ■ cited: State v. Squires,- 26 Iowa, 340, and cases'-cited; Independent District of Union, Linn County, (Iowa,) 17_N. W. 895, and cases cited; 'Chicago, R. I. & P. Ry. Co. v. Independent Dist. of Avoca, (ia.) 68 N. W. 881.'</p>

Hon. William WILLIAMSON, Judge. Procéeding by the State of South Dakota, on the relation of Charles A. Johnson, again.st A. E. Pike and others. From a judgment for defendants, plaintiff appeals.

Appeal for Circuit Court, Minnehaha County. H’on. Joseph W. Jones, Judge. Action by L. C. Utley, against L. T. Dunning, to recover damages under a contract of sale of a stock of merchandise and the good will of a business. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. (i.) To point one of the opinion. Appellant cited; Smith v. Detroit & The Goldmin.

Hon. William Williamson, Judge. Action by Harold Oid'ham, against Olaf Nelson, to rescind a contract of sale of land and to cover back 'purchase money payment. From an order sustaining a demurrer to' the complaint, plaintiff appeals.

' Appeal from Circuit Court, Douglas County. Hon. Robert B. Tripp, Judge. The defendant, Bion AY.. La Shier, was convicted of violating the law regulating the sale of intoxicating liquors at retail; and from a judgment of conviction, and from an order denying a new trial, he appeals. (1) To point one of the opinion, Appellant cited: Pol. Code, Secs. 2838, 2860, 279; State v. Dunning, (S. D.) 85 N. W. 589.

<p>Original proceedings in the Supreme Court. Upon application of George W. Egan, a disbarred attorney, for reinstatement as an attorney at law.</p>

<p>Appeals — Abandonment of Appeal — No Briefs, Etc. — Affirmance.</p> <p>Where, within, about two- months after record for review was settled, notice of appeal and undertaking on appeal were served on defendant’s counsel, and certified copy of notice of appeal and undertaking filed in Supreme Court, and nearly a year has expired since those steps were taken, no briefs, stipulation, or other papers in the case having since been filed in Supreme Court, the appeal will be deemed abandoned, and judgment 'below affirmed.</p>

Hon. Levi McGee, Judge. Action by. Emerscn-Brantingh-am Implement Company, a corporation, as mortgagee, against'Isaac Ainslie, as sheriff of Custer Count}*-, South Dakota, to recover possession of mortgaged chattels taken under attachment. From an order sustaining a demurrer to- the complaint, plaintiff appeals.

Hon. Joseph W. Jones, Judge. Action toy William H. Miller, Jr., against Emily Southard and C. B. Kennedy, to permanently enjoin defendants from interfering with or obstructing a right of way easement. From a judgment for plaintiff and from an order denying a new trial, defendants appeal. (i) To point one of the opinion, Appellants cited: Cartwright v. Maplesden, (N. Y.) 53 N. Y. 622; Civ. Code, Sec. 277.

<p>Appeal from Circuit Court, Minnehaha County. Hon. Joseph W. Jones, Judge.</p> <p>Action hy J. E. Wingfield, as Public Examiner, and Ex-Officio Superintendent of Banks and Trust Companies, against the Security National Bank of Sioux Falls, S.-D., to recover for the amount of check® alleged to have ¡been improperly presented by defendant bank for payment. From an order sustaining demurrer to the complaint, plaintiff appeals.</p> <p>(i.) To point one of the opinion, Appellant cited: Pikney v. Kenawaha Valley Bank, (W. Va.) 23 Ann. Cases 115; Minneapolis Sash & Door Co. v. Metropolitan Bank, (Minn.) 44 L. R. A. 504, 78 N. W. 980; Farley National Bank v. Pollock (Ala.) 8 Ann. Cases, 370-; Pickett v. Baird Investment Co. (N. D.) 133 N. W. 1026; Panset v. Garden City Bank, 24 S'. D. 248; Jefferson County Bank v. Hendricks,. (Ala.) 1 L. R. A. (N. S.) 246; Givan v. Bank, (Tenn.) 52 ¡S. W. 923, 47 L. R. A. 270; Anderson v. Rogers, _ (Kan.) 27 D. R. A. 248, 36 Pac. 1067.</p> <p>(2.) To point two of the opinion, Appellant cited: Lamro State Bank v. Farmers State Bank of Winner and J. D. Wing-field, Public Examiner, 34 S. D. 417.</p>

Hon. Thomas L. Boucic, Judge. Action toy the Martin Brothers Company, against Emil G. Peterson, and Bjorn B. Gislason, as an individual and as executor of the will of J. Peterson, deceased, to recover for a balance due for goods purchased for an estate pending- administration thereof. Prom a judgment for plaintiff, and from an order denying a new trial, defendant, Gislason, individually, appeals. (i.) To point one of the opinion, Respondent cited: Willis v. Sharp, 113 Ñ.

Hon. Lsvi McGRR, Judge. Action 'by Frank N. Kennedy, against the First State Bank of Wall, S. D., to recover on four causes of action involving an exchange of land for city realty, etc. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Hon. Thomas L,. Bouck, Judge. The defendant, G. M. Morton, was convicted of the offense of unlawfully furnishing' a prescription' for intoxicating liquors, to he used as a ‘beverage, etc., and he appeals. (3.) To point three of the opinion, Respondent cited: Peo. v. Loómis, (Mich.) 126 N. W. 985, 987.

Hon. FRANK B. South, Judge. Action ¡by M. E. Smith and Company, against Minerva J. Kimble and another, executors of the' estate of James Kimble, deceased, upon a written guaranty. From a judgment for defendants, and- from an order denying a new trial, plaintiff appeals. (1.) To point one of the opinion, Respondents cited: Div-ersey v. Johnson, 93 Ill. 547, 34 L. R. A. 321; Bryan v. Weems, 25 Ala. 195.

Hon. Joseph H. Bouj'um, Judge. Action by B. A. Eckhart, against Johannes Heier and others, for foreclosure of a realty mortgage, and' to recover upon an alleged guaranty of repayment of the secured note against defendant J. B. Gundert and Farmers State Bank of Tolstoy, defendant and respondent. Erom an order sustaining a demurer to the complaint, plaintiff appeals.

Hon. Card G. Sherwood, Judge. Action by Gilbert W. Haggart, against Arthur Alton and another, to foreclose the lien claimed under an assessment certificate for sewer benefits. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. (1.) To point one of the opinion, Appellants cited: Hag-gart v. Alton, 29 S. D. 509, 137 N. W. 372; Laws 1903, Chap. 213, Secs. 1, 2, 3, 6, 9, it; Bailey v. Sioux Falls, 132 N. W. 703, 28 S. D. 118.

Hon. Carl G. Sherwood, Judge. The defendant, Franz Korth, was convicted of the crime of willfully burning an insured barn with intent to defraud the insurer, and be appeals. (1) To point one of the opinion, Appellant cited: State v. Whittemore, 147 Mo. 78, S. C. 47 S. W. 1068: Commonwealth v. Mahar, 33 Mass.

Hon. Jam£s McNenN^y, Judge. ■ The defendant, L. J. Hays, was convicted of engaging in the business of selling intoxicating liquors at retail without license, and appeals from judgment and order denying new trial. (1) To point one of the opinion, Respondent cited: 17 Cyc. 292-3, 290; 23 Cyc. 265, note 51; Thompson v. State, 72 Tex. Crim. 6, 160 S. W. 685. (2) To point two of the opinion, Appellant cited: Mehan v State, 7 Wis. 670; Hepler v. State, r6 N. W. 42.

Mandamus by the State of South Dakota, on the relation of AViilliam A. Morris, as Adjutant General, against J. E. Han'dlin, as State Auditor, to test the validity of a legislative enactment appropriating moneys for state militia. (2) To point two of the opinion, Plaintiff cited: Act Cong. June 3, 1916, Seos. 57, in; Const. Art. 13, Sec. 1; Art. it, Secs; 8, 9,; Art. 12, Sec. 3; Art. 13, Sec. 1; U. S'. Const.

Hon. Eraxk B. Smith, Judge. Action by the State, on the relation of S. W. Clark, Attorney General, against John Deisch, to enjoin defendant from draining Platte Lake. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Hon. -Carl G. Shiírwood, Judge. Action bjr Robert Moreley against George D. Cole and another, to recover purchase price of stoves sold to defendants’ predecessor in business under a sale -conditional as to title. From a judgment sustaining demurrers to part of defendants’ answer and to their counterclaim, defendants appeal. (2.) To point two of the opinion, Respondent cited: 3 Amer. & Eng. Ency. of Law, 2nd Ed. 739-40; Middleton v. Stone (P’a.) 4 Atl. 523; 5 Amer. & Eng.

Plon. RobBRT B. TRipp, Judge, Bastardy proceedings by the .State, .on the relation of Bertha Gruenig, against Daniel Haley. From an order setting aside a verdict for defendant and granting a new trial, on motion of the State, defendant appeals.

Hon. Robert B. Tripp, Judge. Action for damages for false imprisonment, 'by J. H. Dunn, against Frank Griffin. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. Appellant cited: Moline Plow Co. v. Gilbert, 3 Dak. 239; Forzen v. Hurd, 20 N. D. 42, 126 N. W. 224; Barton v. Gray, 57 Mich. 622, 24 N. W. 638; Sec. 141, Code Crim. Proc.; Elliott on Evidence, Vol. 3, Sec. .2116. Respondent cited: Secs. 120. 126. Crim. Proc.; Sec. 187, Pen.

Hon. Lkvi McGi®, Judge. Action by Clara Belle Thoms’on, against the Meridian Rife Insurance Company, Indianapolis, Ind., upon a policy of life insurance. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Hon. Carl G. Sherwood, Judge. Action by the State, against the State Bank of Florence, the Security National Bank of Watertown intervening and being made substitute defendant. From a judgment for defendant, plaintiff appeals. (x.) To point one of the opinion, Appellant cited: Cooperative S. & L. Ass’n. v. Fawick et al. n S. D. 594; 36 Cyc. 1097, notes 45 and- 46. Respondent cited: Raws 1909, Chap. 251, Sec. 7.

<p>Appeal from Municipal Court of Minnehaha County. Hon. Alpha E. Orr, Judge.</p> <p>Action by G. W. Schultz, against Annie S. Stewart. Erotn an order refusing to modify a judgment, defendant appeals.</p>

Hon. ERANK B. Smith, Judge. Proceedings in probate, in re administration of the estate of John S. McClellan, deceased', in which James S. McClellan and others appeared, claiming to be heirs at law of intestate; the state intervening and claiming that intestate died without heirs. Prom a judgment of the circuit court for intervener, upon trial de novo on appeal from a judgment of the county court for inter-vener State, claimants appeal.

Hon. James Mc-Nenney, Judge. Action by Louis Butler, against D. V. Kilpatrick and others, co-partners as Traver & Company, to recover for personal injuries. From a judgment for plaintiff, and from an order denying- a new trial, defendants appeal.

Hon. Levi McGee, Judge. Action by Albertina Crofstrom Sncve Peterson, against Jesse L. Crawley and ■others, to foreclose a mortgage and to recover a deposit in defendant bank for application toward payment of the mortgage debt. From a judgment for plaintiff, and from- an order ■denying a new trial, defendant bank and Randall, its cashier, appeal.

Hon. Joseph H. Bottum, Judge. Action 'by William Byrne, against the Northwestern Life Insurance Company, for cancellation of a note and mortgage alleged to 'have been delivered through fraud, deceit, and misrepresentation. From a judgment for plaintiff, and from' an order denying a new trial, defendant appeals.

lion. Franic B. Smith, Judge. Election contest .by J. II. Dobson against B. H. Lindekugel, to determine an election for-county auditor. From a judgment for defendant, plaintiff appeals. (i.) To point two of the opinion, Appellant cited: Church v. Walker, (S. D.) 72 N. W. 101, on rehearing, 74 N. W. 198^ Respondent cited: McCrary on Elections, 3rd ed. Sec. 399; Gillespie v. Dion, 33 L. R. A. 703; Pol. Code, Secs. 1990, 1998. .

Hon. Robert B. Tripp, Judge. Action by J. H. Janssen, against John R. Muller, to recover upon a contract for construction, of a well. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (i.) To point one of the opinion, Appellant cited: 9 Cyc. 618-619-620, and cases cited-; Inman Mfg. Co. v. American Cereal Co., 100 N. W. 860; Grogan v. Geo. F. Lee Coal Co., 208 Penn. State 386; 11 Am. & Eng. Ann. Cases, 838 and note; Inman Mfg.

Hon. Ttiomas L. Boucic, Judge. Action by Johanna Shuler, against Flora Halvor and others, for cancellation of an alleged deed of fraudulent conveyance ' of realty without issuance of execution upon a previous judgment setting aside said conveyance, a stay of execution having been granted under said previous judgment From a judgment for p.laintiff. and from an order denying a new trial, defendants appeal.

Hon. Raymond L. Diiaman, Judge. Action by Angeline Blackbody, against Charles Maupin, as sheriff of Dewey county, to recover possession of livestock. From a judgment for .plaintiff, and from an order denying a new trial, defendant appeals. (1.) To point one of the opinion, Appellant cited: General Allotment Act, Act of February 8, 1887 (V. 25, IT. S. Statutes at Large, 1887, Chapter 119, Sec. 6, p. 390) ; Act of Oong. M.ay 8, 1906; United States v. Celestine, 215 II.

Hon. Raymond L. Diiaman, Judge. Action by H. O. Duncan, against the County of Corson and others, to enjoin defendants from collecting certain personal property taxes. From a judgment for plaintiff, defendants appeal. (i.) To point one of the opinion, Respondent cited: 36 Cyc. pp. 1205, 6 and 7, 1215; Baldwin v. Aberdeen, 23 S. D. 636; Hulin v. Butte County, 18 S. D. 330.

Hon. William Williamson, Judge. Action by Henry P. Walsh and others, against Robert E. Walsh, to recover for the benefit of the estate of Henry P. Walsh, Sr., deceased, certain real and personal property. From a judgment for plaintiff, and from an order -denying a new trial, defendant appeals. Appellants cited: Boardman v. Lorentzen, 52 L. R. A. (N. S.) 478; Ball v. Boston, 153 Wis. 27, 141 N. W. 8.

Mon. Thomas L. Boucic, Judge. • Action by William J. Kelley, against the Narregang Investment Company, Incorporated, to procure satisfaction of record of a mortgage, and for damages incurred, etc. From an order overruling a demurrer to the complaint, defendant appeals. Appellant cited: Civ. Code, Sec. 2061. Respondent cited: Sheets v. Prosser, (N. D.) 112 N. W. 72.

<p>1. Courts — Supreme Court — Judicial Power, Exercise of — Governor’s Request for Advisory Opinion — “Important Questions of Raw” as Occasion for Opinion.</p> <p>The advisability of appointing members of the board to administer the Rural Credits Law (Laws 1917, Chaps. 333, 334), and of incurring expenses incident to its organization and compensation, depending, as it does, upon the proper answer that may be made to certain questions propounded to the Supreme Court by the Governor, render such questions “important questions of law involved in the exercise of his executive powers,” and there is thereby presented an occasion authorizing the Governor to call upon the Judges of said Court for their opinions upon such questions.</p> <p>2. .Constitutional Raw — Judicial Power — Peoples’ Compact to Conform to Fundamental Raw, Court’s Duty to Enforce Recognition by People’s Representatives.</p> <p>While, unless they have surrendered some (part of their sovereignty, there is vested and remains in a sovereign people plenary power, yet, when such a ipeaple enter into compact with one another that the laws governing their relations shall conform to certain fundamental rules and principles, the Court’s duty is to see that the compact is lived up to by the peoples' representatives.</p> <p>3. Constitutional Raw — State Debts, limitation of — Amendment for Roads and Coal Supply, Whethei’ Restricted by Debt Clauses, Etc. — Whether Rural Credits Amendment So Restricted?</p> <p>The amendment to Const., Art. 1, Sec. 13, authorizing state to construct and maintain good roads and to supply coal to the people from state lands, is restricted, as is the power of the Legislature thereunder, in building of roads, etc., by the provisions of Art. 13, Sec. 2, limiting state indebtedness, and by Art. 11, Sec. 1, requiring preparation for an payment of such debt within ten years. Held, further, that the amendment to Art. 13, See. 1, so as to allow staté to establish and maintain a system bf rural credits whereby to' loan' money to the people upon realty security, etc., and Laws 1917, Chaps. 333, 334, eréating a'system of rural credits and for maintenance of such system, etc., are likewise restricted by said other constitutional .provisions relating to state indebtedness; that said sections concerning state indebtedness and its payment apply to legislation enacted under said amendments the same as they would have applied if >suoh. amendments had been part of the Constitution when first adopted.</p> <p>4. Constitutional Law — State Indebtedness — “Debt,” Whether Included in Obligation Payable From Current Revenues?</p> <p>The word “debt,” as used in Const., Art. 13, .Sec. 2, limiting state indebtedness to ¡a specified aggregate, and in Art. 11, Sec. 1, providing that “for the purpose of paying the public debt” the Legislature shall provide for levy of annual tax sufficient to pay annual interest and the principal of the debt within ten years, does not include a pecuniary obligation imposed by contract and which is to be satisfied out of current revenues for the year, or out of some fund then within immediate control of the state.</p> <p>5. Constitutional Law — Limitation of State Indebtedness — Borrowing Money on State Credit for Loaning on Realty, Taxation to Cover Deficiency, Whether Creative of “Debt.”</p> <p>The Rural Credits Law (Laws 1917, Chap. 333) authorizing state to “borrow money on the good faith and credit of the state * * * , to be used in lending money on real estate,” authorizing issuance of state bonds or warrants on which to borrow money necessary to make loans, declaring that interest rate on such loans shall be certain specified amounts more than the rate paid on the money so borrowed, declaring that the notes and mortgages taken by the rural credits board and lands, etc., acquired by it “shall be iheld in trust for the payment of moneys borrowed * * * and neveir shall be diverted to any other purpose,” and which act contains no provision for levying any tax to meet payment of either principal or interest of such bonds or warrants as might be issued thereunder; and Chap. 334, providing that if there are not sufficient funds in treasury of said board to pay said bonds or warrants or interest thereon at maturity, the tax commission shall make special assessment and levy to pay same, and that all moneys derived from such levy, etc., shall be placed in a special fund and used only for such payments, do not create a debt within the meaning of Const., Art. 13, Sec. 2, limiting state indebtedness to a spe'cifiéd aggregate, or Art. 11, Sec. 1, requiring preparation for and payment of such debt within ten years; since said Chap. 3.34 does nothing more than designate a contingency under which a debt against the state will arise, which contingency is not a “debt” under the provisions of the Constitution; and moreover, under the provisions of the two acts, the securities required for loans made by said board, the opportunity given it to arrange so that maturity oí loans will meet or antedate maturity 'of bonds and warrants, etc., such contingency is reduced to but a remote -possibility.</p> <p>McCoy, and Smith, JJ., concurring specially in tbe opinion.</p>