Volume 39 — South Dakota Reports

Hon. Thomas L. Boucic, Judge. Action by Maud Strong, against 01 e T. Thompson and The Northern Casualty Company, for damages for loss of support of plaintiff and her children occasioned by defendant Strong’s sale of intoxicating liquor to plaintiff’s husband. From an order overruling a demurrer to the complaint, defendants appeal.

Original proceedings in the Supreme Court, for the disbarment of Otto' R. Kaas, an attorney at law. (2.) To point two of the opinion, the State cited: 2 R. C. R. 1089 ; In re Egan', 154 N. W. 521.

<p>Appeal from Circuit Court, Minnehaha County. Hon. Joseph W. Jones, Judge.</p> <p>Action by Jacob Hatland, an incompetent, by Thomas Wangsness, guardian, against George W. Egan. Erom an order refusing to set aside a default judgment in favor of plaintiff, and permitting defendant to' answer, defendant appeals.</p> <p>(1.) To point one of the opinion, Respondent cited: Rules of Practice, Circuit Courts, Rule 2; 1 Black Judt, S. 348.</p>

<p>Banks and Banking — Insolvent Banks — Judgment as Preferred Claim —Pro-rated With Other Preferred Claims — Unsatisfied Balance, Pro-rated With General Claims.</p> <p>In a suit tiy mortgagees a-gainst defendant insolvent hank and the Public Examiner, in which judgment for plaintiff was rendered/ to establish a preferred claim, held, that the judgment below, wherein it unqualifiedly requires said officer to (pay the judgment in full, irrespective of other preferred claims or sufficient funds to pay any preferred claims in full, should be modified so as to provide for payment of said claim from bank assets before distributing the latter to general creditors; but if assets are insufficient to pay all preferred claims in full, then the latter shall .pro-rate; and if said judgment be not thereby satisfied, tbe balance thereof to 'be paid pro-rata with other general claims. Former opinion adhered to.</p>

Hon. Joseph W. Jones, Judge. Action by William De Noma, against the Sioux Rails Traction System, to recover damages for injury to plaintiff’s automobile by defendant’s street car at a street crossing. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals.

Appeal' from Circuit Court, Butte County. ITon. James Mc-Nenney, Judge. The defendant, William Uren, was convicted of grand larceny; and from a judgment on the verdict, and from an order denying a new trial, he appeals.. (2.) To point two of the opinion, Appellant cited: Wooten v. State, (Ga.) 47 S. E. 193; Cooper v. State, (Ga.) 32 S. E. 23; State v. Hot-tle, (Mo.) 78 S. W. 311. Respondent cited: Brown v. State, 59 S. W. 1118; Areola v. State, 48 S. W. 195.

Hon. Joseph W. Jones, Judge. Action by the Sioux Falls Traction System, against the Great Northern Railway Company, to recover damages for destruction of plaintiff’s street car by defendant’s railway train. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (i.) To point one of the opinion, Appellant cited: Jones on Evidence, §§ 403, 410; Chicago & A. Ry. Co. v. Logue, 47 111. App. 292.

Hon. Joseph. ■W. Jones, Judge. Action by H. M. Duncan, against H. W. Hahn, for a. partnership accounting. From- a decree on report of referee, defendant appeals. (3.) To point three of the opinion, Appellant cited: Bates on Partnership', Vol. 1, Sec. 251; Vol. 2, Sec. 815.

<p>Execution — Levy and Sale of Partnership Personalty — Actual Possession, Necessity of.</p> <p>A levy and sale of partnership personalty to satisfy a personal judgment against a member of the partnership is void, where sheriff did not take actual possession or dominion over the iproperty, and did not deliver the property or any .part thereof to purchaser at execution sale.</p>

.Appeal from Circuit Court, Bennett County. Hon. William Williamson, Judge. Action by Theodore H. Carlow, against John C. Jordan, to quiet title to India lands patented to plaintiff as 'heir of the Indian allottee. From' an order overruling a demurrer to the complaint, defendant appeals.

Hon. Raymond L. Dirrman, Judge. Action 'by A. A. Axtell, against John Rooks, to determine an / election contest. From a judgment of dismissal of the action, plaintiff appeal's. (i.) To point one of the opinion, Appellant cited: Morrissey v. Gray, (Cal.) 117 Pac. 438. (2.) To' point two. of .the opinion, Appellant cited: Buck-miller v. Railway, 164 la. 502, 146 N. W. 447-; XVII Bncy.

Hon. Chas. A. Davis, Judge. Action 'by Sioux Specialty Company, against Frank Coyle. From an order granting a motion to open and vacate'a default judgment, plaintiff appeals. (x.) To point one of the opinion, Appellant cited: Circuit Court Rules 8, ii; Code Civ. Proc., Sec. 151; Black on Judgments., Sec. 347; Res Moines: Mutual Hail Ins. Co., v. Clute, (S'. D.) 151 N. W. 281.

Hon’. Joseph W. Jones, Judge. Action by C. W. Lemont, against H. E. Thayer, to recover damages for deceit regarding title to land! sold to' plaintiff by defendant as agent of owner. Judgment for defendant. From an order granting -a new trial, defendant appeals. (i) To point one of the opinion, Appellant cited: Pierce v. Carey, 37 Wis. .235; Minnehaha National Bank v. Hurley, (S. D.) 82 N. W. 87; Cfaigo v. Craigo, 118 N. W. 713 (S. D.) ; Jenkins v. C. & O. Ry.

Hon. Frank B. Smith, Judge. Action by. S. G. Figland', against J. P. Jones, to. recover contract price for drilling and constructing a well. From a judgment for plaintiff, .and from an order denying a new trial, defendant appeals. (1) To point one of the opinion, Appellant cited: Coffman v. Pulb. Co,, A. Cas. 1913B, 639. Respondent cited: 1 Rice on Év. 110-112; Bliss on Code Pleading, Sec. 34.0; Jones on Ev. (2d e'dl.) 209, Sec. 180: Denver P. B. Co. v. Platt, 19 Pac. 536.

Hon. Joseph W. Jones, Judge. Election contest proceedings -by Jacob Kundert, against J. A. Jofan-son, apposing- candidate, and others, involving the validity of an election for city commissioner. From an order and judgment dismissing' the proceeding, plaintiff appeals. (1) To point one of the ¡opinion, Appellant cited: Laws 1913, Chap. 20, Secs, r, 12; Pen.

Hon. John F. Hughes, Judge. In the matter of the 'dissolution of the Packer -City Tire & Rubber Company, a corporation. Upon motion to. vacate a judgment of dissolution' for fraud! and deceit upon the court. From ■an order vacating an order and judgment of dissolution, certain stockholders and ’directors appeal. (1) To point one of tire opinion., Appellants cited: Code Civ. Proc., Sec. 151; Civ.

Hon. Thomas R. Bouck, Judge. Action by tbe First State Bank of Summit, against Mary Braden, in which defendant, as administratrix, interposed an answer as intervener. From a judgment for intervener, and from an order denying a new trial, .plaintiff appeals.

H011. JamBS McNBnny, Judge. Action by Nellie H. Chapman, against S. Jos'ie Hill and) another. 'From an ¡order overruling motion to ¡dismiss) the action, defendant FEU appeals. (2) To point twO' of the opinion, Appellant cited: Code Civ. 'Proc., Sec. 465; 25 Cyc. 990, note 39; Uhe v. Railway Company, 3 S. D. 563; Root v. Sweeney, (S. D.) 95 N. W. 916; Bes-sie v. Railway Company, (S. D.) T21 N. W. 618.

Ho-n. Wiiaiam Wiiaiamso-n, Judge. Action by Su-ssie Sven-dsen, against E. C. Ketichmark and others, upon a redelivery under-taking, -in -claim an-d1 -delivery. From a judgment for plaintiff, and from an order denying a new-trial, -defendants -appeal Appellants cited': Code Civ.

Hon. Robert B. Tripp, Judge. Action by William Tobin, Sr., against W. L. Bruce, as administrator eif the estate of John T. Tobin, deceased and Catherinee Tobin, to recover and to establish •plaintiff’s right to one-half of damages paid by a railroad company as damages resulting from, •the 'death of John T. Tobin, deceased. From a judgment for defendants, and from: an order denying a new trial plaintiff appeals. (2) To point two of the opinion, Appellant cited1: Mich.

Hon. Joseph H. Bottum, Judge. Action by John Sdioabel, Jr., against Karl Kafer, to recover ■damages resulting from collision with an automobile. Prom' a judgment for plaintiff, and from an order 'denying a new trial, defendant appeals. (x) To point one of the opinion, Appellant cited: Daniels v. Clegg, 28 Mich. 32. Respondent cited: Needy v. Littlejohn, 115 N. W. 483; Andfersion v. Sparks, 125 N. W. 923.

Hon. John F. Hughes, Judge. Action by the Schiller Piano Company against 'Charles L. Hyde, upon .promissory notes given in renewal of original notes of which plaintiff was .endorsee and given flor corporate stock.

Hon. Joseph W. Jones, Judge. Action by E. P. Eide, against W. N. Gilbert, to recover damages for personal injuries. From' a judgment of the Circuit Court entered upon an order dismissing an appeal to that court from a judgment for plaintiff in the Municipal Court of Sioux Falls, defendant appeals. (i) To point one of the opinion, Appellant cited: Raney v. Ingalls, 5 S. D. 184. Respondent cited: 24 Cyc. 464; 1912A Ann.

Hon. James MoN-Enny, Judge. The 'defendant, William Jennings Bryan Guffey, was convicted- of larceny of horses, and he appeals. (1) To point one of the opinion, Appellant -cited: 12 Cyc. 422. Respondent -cited: Peo. v. Byrne, 160 Cal. 217, 1x6 Pac. 521; Hardy v. State, 150 Wis. 176, 136 N. W. 638; Davis v. State (Ala.) 31 So. 571.

Hon. Carr G. Sherwood, Judge. Action 'by the County of Codington, State of South Dakota, against Albert Lindner, as administrator of the estate of John Lindner, deceased, to recover judgment upon a cla-im against saidi estate which had been rejected by the County Court of Coding-ton County. From a judgment in favor of defendant, plaintiff appeals. (i) To point one of the opinion, Appellant cited: Laws 1913, Chap. 313; Beatty v. Warded (Iowa) 105 N. W. 357.

Hon. Alpha F. Orr, Judge. Action by The Inner Shoe Tire Company, against Knapp Brown & Company, to recover for value of goods shipped 'by plaintiff to defendant under a written order. From a judgment for defendant, ¡and' from an order denying a new trial, plaintiff appeals. (i) To point one of the opinion, Appellant ¡cited: Civ. Code, Sec. 1239; .De Rue v. McIntosh, 26 S. D. 42, 127 N. W. 532; Gail Mfg. Co. v. Finkelstein, (Tex.) 59 S. W. 571; Cameron Coal & Merc.

Hon.. Alva E. Taylor, Judg-e. Action- by Mette K. Jensen, as Special Administrator of the Estate of Christian B. Jensen, Deceased-, against E. M. Andrews, to determine adverse claims to -realty. Erom- a judgment in favor of plaintiff, and fro-m -an order -denying a new trial, defendant appeals. (i) To point one of the opinion, Appellant cited: Code Civ.

Hon. Carl G. Sherwood, Judge. Action by John H. Nelson, against W-. F. Badker, upon certain accounts; defendant A. D. Jones being garnishee; defendant H. E. Jones, intervening. From a judgment for plaintiff, defendant appeals. (1) To point one of the opinion, Appellant cited: Hoyt v. Clemens et al., (Iowa) 149 N. W. 442, R. R. A. Vbli. 1915C, 166. (2) To point two of the opinion, Appellant cited: Williams v. Harris, 4 S. D. 22, 54 N. W. 926; 3 Pom. Eq.

ITon. Carr G. Sherwood, Judge. Action toy the Thermoid Rubber Company, a corporation, against O. A. Brictson, trading as the Brictson Manufacturing Company, to recover for certain automobile tires and tubes sold to defendant, who counterclaims for damages resulting to sales of his malee of automobile treads by reason of breach of warranty of the tires and tubes, combined with and sold by defendant as a single finished product.

Hon. Joseph W. Jones, Judge. The defendant, John' Larson, changed by order of court to Albert Anderson, changed by order of court to George Hanson, was convicted of the crime of forgery in the second degree, and he appeals. (i) To point one of the opinion, Respondent cited: State v. Wheeler, 20 Ore. 192, 25 Pac. 394, 23 A. S. R. 119, 10 L. R. A. 779; 8 A. E. Ency. of Law, 457, 1st ed.; 13 A. & E. Ency. of Law, 1088, 2d ed.; x Bishop Crim-. Law, Sec. 572; 2 Bish Crim.

Hon. James Mcr Nenny, Judge. The defendant, Charley Crago, was convicted of larceny of two horses, and he appeals. (1) To point one of the opinon, Respondent cited; Roberts v. Schafer, (‘S. D.) 156 N. W. 67; Reeves & Co. v. McGee, (S. D.) 145 N. W. 544; State v. Stone, 30 S. D. 23, 137 N. W. 606.

Hon. Joseph W. Jones, Judge. Action by Martin Lee, against the Great Northern Railway Company, for damages to plaintiff resulting from an engine blowout. From a judgment for plaintiff based upon -a directed verdict, and from- an -order denying a new trial, plaintiff appeals. (i) To point one o-f -the opinion, Appellant -cited: Iverson v. Look, 32 S. D. 32-3; Texas & P. Ry. Co. v. Barrett. 67 Fed. 218; Atchison T. & S'.

Hon. JosERH W. Jones, Judge. Action 'by Sever M. Swenson and others, against Split Rock Civil Township, a public corporation, ITenry F. Bucholtz and others as township supervisors, and others as township officers, to determine the true location of section line highways in said township, and to1 restrain the defendants from incurring 'binding obligations against the township for, or the expenditure of township funds for improvement of highways, etc. From an order denying…

Hon. Frank B. Smith, Judge. Action by Lena Stoll, as administratrix of the estate of Richard Stoll, deceased, against- The Meade County Bank of Sturgis, a corporation, J. L. Wingfield, Public Examiner of the State of South Dakota, in charge of said -bank, Samuel G. Linch, and Elizabeth S. Lacld, administratrix of the estate of W. E. Ladd, deceased, to recover the amount of an alleg-ed special de-. posit in escrow in defendant bank through Lad'd, its cashier, for plaintiff’s…

Hon. Joseph H. Bottum, Judge. Action by the Emerson-Brantingham Implement Company, a corporation, against J. W. Edgar and others, upon purchase money-notes of which plaintiff was assignee, and upon a chattel mortgage securing such notes. From a judgment for defendants, and from an order denying a new trial, plaintiff appeals. (2) To point two of the opinion, Appellant cited. Civ.

Hon. Joseph W. Jones, Judge. Action by Avery Company, a corporation, against J. N. Peterson, upon a promissory note and -a chattel mortgage securing same. From an order granting to plaintiff a new trial after entry and docketing of judgment-in his favor, defendant appeals.

Hon. Alva E. Taylor, Judge. Application by the Chicago & Northwestern Railway Company, and the Belle Fourche Valley Railway Company, for a writ of prohibition enjoining the defendants, P. W. Dougherty and others, constituting the Board of Railway Commissioners of the ■State of South Dakota, from taking jurisdiction of certain matters and proceedings pending before it and involving the extension of the line of railroad used by applicants, upon a complaint and petition filed…

Charles Mix County. Hon. Robert B. Tripp, Judge. Action by P. A. Hosford, against the City of Platte, to recovery for salary as' city attorney. From a judgment for defendant entered upon an order overruling a demurrer to defendant’s counterclaim, plaintiff appeals. (1) To .point one of the opinion, Respondent cited: 34 Cyc. 723; Wood v. N. Y., 73 N. Y. 556; Price v. Lancester Coi, .24 Pa.

Hon. Levi McGee, Judge. Action by Dan Zimmerman, against Corson County and another, to cancel a tax assessment, and for an injunction, etc. From a judgment for plaintiff, defendants appeal. (2) To point two- of the opinion, Appellants cited. Douglas v. City of Fargo, (N. D.) 101 N. W. 919. Respondent cited: Board of State Tax Commissioners v. Quinn, (Mich.) 84 N. W. 1; People v. Forest, 96 N. Y. 544; Sec. 210, Pol. Code. (3) To point three of the opinion, Respondent cited:.

Hon. Joseph W. -Jones, Judge. Action !by Gilbert Lee, against Tom Braggtnan and another, to recover the alleged agreed value of farm and house rentals-, and of certain personalty sold by plaintaiff to- defendant; defendant having counterclaimed for value of labor performed by him. for plaintiff, and, upon the trial, 'having by .amended answer substituted an alleged accord and satisfaction in lieu of the counterclaim.

<p>Appeal from 'Circuit Court, Gregory County. Hon Wiiaiam Wiiaiamson, Judg'e.</p> <p>On rehearing.</p>

<p>1. Constitutional Raw — Bulk Sales Raw — Fraudulent Conveyances— Police Power — Class Legislation.</p> <p>The Bulk Sales Law (Laws 1913, Chap. 116), requiring vendor or exchanger oí a stock of merchandise in bulk to furnish vendee list of vendor’s creditors, with addresses, and amount due each, prior to receipt by vendor of any part of the consideration for such sale or exchange, etc., and making vendee liable to vendor’s creditor’s, whether there has or not been compliance with the provisions as to giving notices, and that the consideration for such sale, etc., shall be held in trust to satisfy claims of such creditors, etc., is not unconstitutional as constituting class legislation, but is valid as a proper exercise of the police .power.</p> <p>2. Fraudulent Conveyances — Bulk Sales Law, Non-compliance With by Parties — Creditor’s Suit Against Vendor — Secured Creditor, Whether a Trustee? — Whether Bona Fide Purchaser.</p> <p>In a suit by a creditor against the partnership to recover for goods sold, in which recovery was sought also against aefendant bank on the ground that it was liable to account as trustee for certain lands received by it from the .partnership; .it appearing that the debtor’s entire stock had been disposed of without compliance with Laws 1913, Chap. 116, known as the “Bulk Sales Law,” but that the parties to the transfer wholly failed to comply with said law wherein it provides that vendor shall furnish vendee written list of vendor’s creditors, etc., and makes vendee liable to the extent of the consideration paid for the stock, to vendor’s creditors, whether compliance with said law has or has not been made, held, that notwithstanding trial court found that defendant bank took the land in good faith, believing that other creditors of the partnership had been protected through assumption of debts by vendee, yet the bank is liable as such trustee for benefit of plaintiff and other creditors; nor was the bank an innocent purchaser, in good faith, for value, since it received the land merely as security for an existing debt.</p> <p>3. Fraudulent Conveyances — Bona Fide Purchaser — Creditor as Grantee of Band Received on Bulk Sale by Debtor, Constructive Notice to, as Trustee.</p> <p>Under said Bulk Sales Law, which provides that any consideration received on sale or exchange of merchandise in bulk shall be held in trust to satisfy claims of vendor’s creditors, held, that a creditor who received land which to said creditor’s knowledge had been given in exchange for a bulk sale stock of merchandise, as security for a then existing debt, is therefore and thereby charged with notice that, under said law, the land was a trust fund in which all creditors of vendor had an interest; and, 'being so charged with such notice, such creditor took such trust fund subject to rights of any unpaid creditors, regardless of whether it did or not know of their existence.</p>

Hon. Joseph W. Jones, Judge. Condemnation proceedings by the Chicago, Milwaukee & St. Paul Railway Company, a corporation, against 'Grace R. McClelland and another, for right of way -purposes. From an order vacating a judgment for plaintiff, it appeals. (4) To point four of the opinion-, Appellant cited: Security Loan & Trust Co. v. Boston & S. R. Fruit Co. (Cal.) 58 Pac. 940; Frazier v. Douglas, (Kan.) 48 Pac. 36; Piske v. Thorpe, (Neb.) 84 N. W. 79.

Hon. John F. Hughes, Judge. Action by H. C. Moore, against Charles L. Hyde, for recovery of money under a contract with defendant to ¡perform services in procuring for. him a pardon for securing employment of attorneys in procuring such pardon, and in securing a reduction in- amount of the attorney’s proposed fees. From an order overruling a demurrer to the complaint, defendant appeals.

Hón. • Robert B. Tripp, Judge. Action by Harry Gartner, against John J. Mohan, to recover damages, alleged to have been suffered by plaintiff from defendant’s assault. From a judgment for plaintiff, and from an order denying a new trial, plaintiff appeals. (1) To point one of the opinion, Appellant cited: Civ. Code, Sec. 2312; McDonald v. Walter, 40 N. Y. 551;'Whitney v. City of Milwaukee (Wis.) 27 N. W.' 39.

Hon. Frank B. Smith, Judge. Action by A. N. Louder, against E. E. Hunter to recover from defendant the amount of an unpaid. -balance upon plaintiffs judgment, after' an execution sale of the realty in question pursuant to a decree setting aside the conveyance of an interest therein as fraudulent. From an order sustaining a demurrer to defendant’s answer plaintiff appeals. (i) To point one of the- opinion, Appellant cited: 22 Cyc. 1174, Sec. 5. .

Hon. Robert B'. Tripp, Judge. Action by Robert BuckneLl, against Marietta E. Johnson and' others, to establish a resulting- trust in realty and to. quiet title. Erom a judgment in favor of defendant, plaintiff appeals. (i) To point one of the opinion, Appellant cited: Hickson v. Culbert, 19 S. D. 207; Dorman v. Dorman, 187 111. T54; Skahen v. Irving, 206 111. 597; Gray v. Jordan (Me.) 32 Atl. 793; Bailey v. Dobbins (Neb.) 93 N. W. 687; Perry on Trusts, Sec. 155 (6th Ed.).

<p>Appeal from Circuit Court, Lyman County. Hon. Wirriam Wirriamson, Judge.</p> <p>On rehearing. Former opinion explained.</p>

Hon. Geo. W. Crane, Judge. Action .by the Edward C. Plume Company, against the Voedish Jewelry Company, to recover on contract for advertising services. From, an order overruling plaintiff’s demurrer to defendant’s equitable counterclaim, and dismissing the action, plaintiff appeals. (3) To point three of the opinion, Appellant cited: Civ. Code, Sec. 2361; 22 Cyc. 766. Respondent cited: Hamilton v. 'Cummings, 1 John.

Court, 'Charles Mix County. Hon. Robert B. Tripp, Judge. Action -by A. J. Fillaus, against J. C. Greenfield, to recover possession of' personalty. A verdict having 'been directed1 for defendant upon all issues, plaintiff appeals from an order denying his motion for new trial, assigning error upon direction of verdict, and also upon ruling on matters of evidence.

Hon. Carr G. Sherwood, Judge. Proceedings by the State, on the relation of A. J. I-Iaugan, State’s Attorney, against Se-veri Belatti and others. From certain intermediate orders, relator appeals.

Horn. Thomas L. Bouck, Judge. Action by the Security State Bank and!

Hon. Raymond L. Diiaman, Judge. Action by Maude Strong, against Sebastian Schaffer and others, for damages • from sale of intoxicating liquors to. plaintiff’s husband. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. (2) To point two. of the opinion, Appellants cited: Campbell v. Joímson, 25 S. D. 458; 'Sec. 2849, Pol. 'Code. (5) To point five of the opinion, Appellants cited: Bellison v. Apland (Iowa) 89 N. W. 22.

' Hon. Raymond L. Diddman, Acting Judge. Action by Maude Strong against William J. Wagner and another, for damages for sale of intoxicating liquors to plaintiff’s husband. From a judgment for plaintiff, and from an order denying a new trial defendants appeal.

Hen. Jamus McNbnny, Judge. The defendant, Robert C. James, was convicted of larceny of horses, and he appeals'. (1) To point one of the opinion, Appellant cited: State v. Beard, 34 S. D. 76. Respondent cited: Mason v. State, 171 Ind. 78, 85 N. E. 776, 16 Ann. Cas. 1212. (2) To point two of the opinion, Appellant cited: State v. Moeller (N. D.) 126 N. W. 585; 12 Cyc. 442; Hart v. Hopson, 52 Mo. App. 177; Loggins v. State, 8 Tex. App. 434; Langford v. State (Ala.) 30 S. 503.

.Appeal from Circuit ‘Court, Walworth County. Hon. Joseph H. Bottum, Judge. Action by the City- of Mobridge and- another, against A. H. Brown, to enjoin defendant from -constructing a -building within fire limits. From an- order overruling a demurrer to defendant’s answer, plaintiff appeals. (2) To point two- of the opinion, Appellant cited: City of Sf.

Hon. John F. Hughes, Judge. Action by Mapolean B. Gearhart, against Charles L. Hyde, to recover for medical services performed. From a judgment for plaintiff, and- from -an order denying a new trial, defendant appeals. (1) To point one of the opinion, Appellant cited; Rogers v. Yarnell, 51 Ark. 198; Heald v. Hendy, 89 Cal. 632; Harvey v. Hamilton, 155 111. 377.' (2) To point two of the opinion, Appellant cited: Civ.

Appeal ' from Circuit Court, Meade County. Hon. Liivi McGkk, Judge. In the matter of the final accounting of Frank M. Rood, as guardian of Edgar Mumford andi'another, minors. From a judgment adverse to them, the minors .appeal.

Hon. Joseph W. Jones, Judge. Action by John Seubert, against D. A. Scott and W. D. Scott, to recover upon corporate stock subscriptions. From a judgment for defendants, and from an order denying a new trial, plaintiff appeals.. (1) To point one of the opinion, Appellant cited: Const. Art. 17, Sec. 8; Civ. Code, Secs. 420, 423, 441, 451-2; Pietsch v. Krause. 93 N. W. 9; 7 Words and Phrases, 6662. Respondents cited-: Kellerman y. Maier (Cal.) 48 Pac. 377; Cal. Civ.

Hon. Frank B. Smith, Judge. 'Action by John A. Nowotny, against W. F. Kehm and others, for cancellation of a note and mortgage and- foreclosure proceedings thereunder; .plaintiff having sought to amend the complaint. From- an order denying leave to file an amended complaint, plaintiff appeals. Respondents cited. 3 R. R. A. (N. S.) 267-8, 259; 33 R. R. A. (N.'S.) 196; 47 R. R. A. (N. S.) 932; Whalen v. Gordon, 95 Fed. 305, 37 C. C. A. 70; Driskill v. Rebbe, 22 S. D. 242.

Hen. Robert B. Tripp, Judge. The defendant, J. D. Hofer, was convicted of unlawfully engaging in the business of selling intoxicating liquors, and from the judgment, and from an order denying a new trial, he-appeals. (1) To point one of the opinion, Respondent cited: Gagnier v. Fargo (N. D.) 96 N. W. 841, 843. (2) To point two of the opinion, Respondent cited: Rule 21, Circuit Courts ;• Code Civ.

■Appeal from Municipal Court of Sioux Falls. Hon. Alpha F. Orr, Judge. Action by Carl Holmberg, against Jeremiah C. Kunkelberger, to recover damages for trespass by animals. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

<p>Larceny — Joint Stealing ol Horses — Knowledge of Brand — Accompanying Co-defendant With Already Stolen Horses — Evidence, Sufficiency.</p> <p>Where the only evidence tending to show defendant’s guilt of theft of horses jointly with another., is that, defendant resided in the county from which tha horses werei stolen and not far from the owner, that he was familiar with their brand, had been at a place in another county where his co-defendant took the stolen horses two or three days before .he arrived, and a few days thereafter accompanied co-defeindant who went away with them and afterwards disposed of them, held, that the evidence fails to sustain a conviction; nor does the fact that defendant afterward claimed to have raised the horses himself tend to prove that he assisted co-defendant in stealing them. There was entire failure of proof.</p>

Hon. Levi McGee, Judge. Action by John J. Farrar and! Victor T. Jepsen, copartners, against the Chicago- & Northwestern Railway Company and others, for an injunction against removal of -certain spur tracks. From-an order dissolving a restraining order and denying a temporary injunction, plaintiffs appeal.

Hon. Irvin H. Myers, Judge. The defendants, Maurice Christnacht and Patsy McAleer, were convicted of violating an ordinance of the City of Water-town, and they appeal. Appellants cited: Pol. Code, Secs. 59, 34; 30 Cyc. 1624; Words & Phrases, 6, 5379; Weideman v. Smith, 30 N. E. 920, 921, 4 Ind. App. 397.

Hon. James McNenny, Judge. Action by George H. Kilker, against the Ford Motor Company, for damages for failure to ship1 automobiles under requisition. From a judgment for plaintiff, and from an order denying a new.trial, defendant appeals. Appellant cited: Parry Mfg. Co. v. Lyon et al., 64 S. W. 436. Respondent cited: Velie Co. v. Kapmeier Co., 194 Fed. 324 (C. C. A. 7th.)

<p>1. Claim and. Delivery — Verdict Ignoring Certain Property — Judgment Therefor by Consent to Avoid New Trial — Prejudice.</p> <p>Where, in claim and delivery,' the verdict was silent concerning certain other property than that covered thereby, trial court ruled that new trial should he granted, unless defendant would consent to entry of judgment therefor, whereupon ■ 'by such consent amended judgment was- entered accordingly, held, on appeal from order denying new trial, that no prejudice resulted to defendant from such irregularities as may have occurred.</p> <p>2. Appeals — Claim and Delivery — Damages for Delay on Appeal— Rule.</p> <p>Where defendant, against whom judgment in claim and delivery was entered by amendment of original judgment by including therein certain property not embraced in the verdict, which amendment was made with defendant’s consent as an alternative to granting a new trial, and he appealed from order denying new trial, the Supreme Court will, on affirming the judgment and order, award respondent damages for delay in 10 per cent of the amount of amended judgment; Court being of opinion its discretion in that regard should he ex-ereised.</p>

Hon. Joseph W. Jones, Judge. Action 'by 'C. O. Beck, against the Chicago, Milwaukee. & St. Paul Railway 'Company to recover damages for value of a ship-merit of potatoes. From a judgment for plaintiff and from an order denying a new trial, defendant appeals. (i) To point one of the opinion, Appellant cited: Hutchinson on 'Carriers, Sec. 1635, and cases cited; St. Louis & S. W. Ry. Co. v. Burras Mill & Elevator Co. (Tex.) 168 S. W. 1028.

Hon. Joseph W. Jones, Judge. Action by the East Sioux Falls Quarry Company, against the Wisconsin Granite Company, a corporation, for damages for breach of covenants in a lease. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (i) To point one of the opinion, Appellant cited: Secur v. Sturgis, 16 N. Y. 548; Whitaker v. Hawley, 1 Pac. 508; Katz v. Bedford, 1 L. R. A. 826; 6 R. C. L. Sec. 245.

Hon. William Williamson, Judge. The defendant Mike Lamb, was convicted of larceny of shipped1 cows, and from the judgment and from an order denying motion for a new trial, he appeals. (1) To point one of the opinion, Appellant cited: Nelson v. People, 44 Pac. 594; Mitchell et al. v. Territory, 54 Pac. 782; Mach v. 'State of Wisconsin, 4 N. W. 449; State v. Beard, 147 N. W. 69. Respondent cited: Roach v. Ry. Co. (Minn.) 158 N. W. 233; Wharton Crim.

Hon. L®vi McGee, Judge. Action by the State, on the relation of A. E. Stirrett, State’s Attorney of Lawrence County, against Burt Rogers, and others individually, and as constituting the board' of directors of the Deadwood Business Club, Lawrence ‘County, S. D., H. W. Troth individually and as Secretary of said Deadwood1 Business Club, and Alfred R. Bell, individually and as Stewart of said club, to enjoin defendants from selling and distributing, intoxicating liquors.

Appeal- from, Circuit Court, Tripp County. Hon. Frank B. Smith, Judge. Replevin by I. M. Lyons, against Adam Adel, for a crop of wheat. From, a judgment for defendant, and from an order denying a new trial, plaintiff appeals. (1) To point one of the opinion, Appellant cited: Kettering et al. v. Barber et al. (S. D.) 159 N. W. 133; “Judicial Sales” in 24 -Cyc.; 27 Cyc. 1491, 1729, 1730; Code -Civ.

Hon.. Frank B. Smith, Judge. Action -by W. J. B. McKee, a minor, etc., against the Mitchell Fruit & Grocery Company, to recover for injury to- plaintiff. From a judgment for plaintiff, and from- an -order denying a new trial, defendant appeals.

H.on. Thomas L. Bouck, Judge. Action by W. E. Coleman and another, against Henry R. Valentin, upon a promissory note. From a judgment for plaintiffs, and from an order denying a new trial, defendants appeal. (3) To point three of the opinion, Respondent cited: Iowa National Bank v. Sherman, 23 S. D. 8, 119 N. W. no. (6) To point six of the opinion, Respondent cited: First National Bank of Morrison v. Sayer (>S. D.) 153 N. W. 652.

Hon. Raymond Diiaman, Judge. Action by Frank P'arson, against William Hanson and Pearl G. Hanson, for foreclosure of a mortgage. From a judgment for plaintiff, and1 from-' an order denying a new trial,- defendants appeal.

Original- proceeding in the Supreme Court.. Application for writ of mandamus by the State; on the relation of Peter Norbeck and others, as members and composing the South Dakota Rural-Credit Board, ag’ainst J. E. Handlin, as State Auditor, and G. H. Helgerson, as State ■ Treasurer. (2) To point two of the opinion, Defendant, J. E. Handlin, State Auditor, cited; Sawyer v. Mayhew, 10 S. D. 18.

Hon. Joseph W. Jones, Judge. Proceeding by the Town of Elmery by J. F. Schlitz and others, its board of trustees, against the Chicago, Milwaukee & St. Paul Railway Company, for relocation of a depot. From a judgment of the circuit court affirming an order of the state 'board of railway commissioners, defendant appeals. (i) To point one of the opinion, Appellant cited: Hauff & ■Stormo v. South Dakota 'Central R. R. Co., 34 S.. D. 183, and cases there cited.

Hon. Axva E. Tayror, Judge. Action by John L. Niblo, against Ernest D. Ede. From an order denying, defendant’s motion to quash and dismiss an order for his examination before trial, he appeals. Appellant cited: Mulhern v. Grove, hi Mich. 528, 70 N. W. 15; Saltmarch v. Bower &’Co., 22 Ala. 221, following Wilson v. Maria, 21 Ala. 3,59; Chapman v. Lee, .45 Ohio St. 336, 13 N. E. 436; Or’o Water, Light & P. Co. v. City of Oroville, 162 Eed. 975; Phoenix v. Dupuy, 2 Abb.

Hon. Frank B. S’MiTi-i, Judge. Action .by Gale B. Wolf, against J. H. Wolf', Dora Wolf and A. G. Wolf, for damages for alienation of plaintiff’s husband’s affections. From a judgment dismissing the action as to Dora Wolf and A. G. Wolf, and for plaintiff against defendant J. H. Wolf, and from an order overruling a motion for a new trial, defendant J. H. Wolf appeals.

Hon. Levi Mc~ GUE, Judge. Action by Henry Fruth, as administrator of the estate of William H. Hall, deceased, against Ausna H. Bolt, now known and going under name of Anna Cox, and Hulett Land & Cattle Company, to foreclose a mortgage, and for other relief. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. (i) To point one of the opinion, Appellant cited: Chase Nat. Bank of N.'Y. v. Hastings et al„ 20 Wash. 433, 55 Pac. 574.

Hon. William Williamson, Judge. Action by George Unglaub, against the Farmers’ Mutual Telephone Company, a corporation, to recover damages for injury to plaintiff by a telephone guy wire. From a judgment for defendant, and from an order sustaining defendant’s motion for a directed verdict, plaintiff appeals. (2) To point two of the opinion, Appellant cited; Spear-backer v. Town of Larraibee, 25 N. W. 555; Bowman.v. Ogden City, 93 Pac. 561.

Hon. Joseph W. Jones, Judge. Action by Nellie J, Higgs, against James T. Bigelow, as administrator with the will annexed of the estate of Walter H. James, deceased, to recover for services rendered and moneys expended. From a- judgment for plaintiff, and from1 an order denying a new trial', defendant appeals. (1) To point one of the opinion, Appellant cited: Finigan v. Sioux City, 112 Iowa, 232, 83 N. W. 97. Respondent cited. Vol. 40, Cyc. 2384.

<p>Appeal from Circuit Court, Coding-ton County. Hon. Cari, G. Sherwood Judge..</p> <p>On rehearing.</p>

Hon. Frank B. Smith, Judge. In the matter of the estate of James W. Sanford-, deceased. From a judgment and decree setting apart certain realty as a homestead for Ethel E. Sanford, surviving widow, the Chamberlain State Bank and others appeal.

Hon. Levi McGee, Judge. Action 'by Henry Fruth, administrator of estate of William H. Hall, deceased, against Ausna H. Bolt, no-w known and going under name of Anna Cox, and another, for foreclosure of a realty mortgage. From an adverse decree, defendants appeal. (5) To point five of the opinion, Appellants cited: Code Civ.

Hon. Erantc B. Smith, Judge. Election contest by J. H. Dobson, against B. H. Eindekugel. From a judgment dismissing the contest, plaintiff appeals. (2) To point two of the opinion, Appellant cited: 38 Cyc. 331, and cases there cited; Johnson v. New Omaha Electric Light Co. (Neb.) 125 N. W. 153; 20 Annotated Cases, 1314.

Original application in Supreme Court, by 'Leslie L. Schaaf, against the South Dakota Rural Credit Board, and Peter Nor-beck, C. M. Henry, A. W. Ewert, J. E. Ziebach, and Alfred Zoske, members of and composing said board, for a writ of prohibition prohibiting' defendants from borrowing $200,000 upon the good faith and credit of the state of South Dakota, to he' used in administrating the rural credit laws.

Hon. William Williamson, Judg-e. Action by T. B. Strong, against Wells Fargo & 'Company Express, a corporation, to recover for value of goods lost in shipment. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (1) To point one of the opinion, Appellant cited: Kansas City S. & R. Co. v. Carl, 227 U. S. 683.

Hon. Robert B. Tripp, Judge. Action by F. A. Bid-well and Williamson, Jr., against L. E. Collins', Florence Collins and Carl Gammon; Jones County Abstract Company, a corporation, intervener; suit being for an injunction against defendants’ use of a business name. From a judgment enjoining- defendants from using said name, and from an order denying- a new trial, defendants and intervener appeal. (1) To point one c-f the opinion, Appellant cited: ’ Civ.

Hlon. Joseph W. Jones, Judge. Action by L. W. Meeker and another, copartners, .as Meeker & Dobson, against the 'City of Madison, to recover upon a contract for constructing sewers. Erom a judgment.for plaintiffs,- and from an order denying a new trial, defendant appeals.

D. Hon. Irvin H. Muyjírs, Judge. Action by Marcus -Salmonson, against R. J. Horswill to recover the purchase price of a span of mules sold by plaintiff to defendant. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. (4) To point four of the opinion, Appellant cited: Jones v. Stewart (Neb.) 87 N. W. 12. Respondent cited: Civ.

D. Hon. Irvin H. MyerS;, Judge. The 'defendants, 'Marguerite Barker and Laura Robertson, were convicted of the offence of “associating with men of bad character,” and they appeal. (2) To point two of the opinion, Appellant cited: 32 Cyc. 731: Section 2, Chap. 154, Laws 1903. (3) To- paint three of the opinion, Appellant cited: Matter of ¡Sarah! Way, 1 N. W. 1021; City of St. Paul v. Briggs, (Minn.) 88 N. W. 984; 89 Am. St. Rep.-5'54.

Hon. Alva E. Taylor, Judge. Action 'by Niorbeck & Nickolson Company, a. corporation, against J-. P. Nielsen, to recover contract price for sinking an artesian well by plaintiff for defendant. From' a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

.Hon. Frank B. Smith, Judge. Action- by C. D. Brandt, against S. J. Bu-rke, to recover upon defendant’s obligation as surety for costs. From- an order sustaining demurrer to the complaint plaintiff appealed. ■Appellant cited: Hic-ock v. Tuck, 106 N. Y. Supp. 700; 3 Standard Proc. 974.

Hon. Cari, G. Sherwood, Judge. Action; by P. H. Peterson, against G. J. Hoftiezer, upon a promissorj'- note. Prom a judgment for defendant, and from, an • order denying a new trial, plaintiff appeals. (4) T01 point four of the opinion, Respondent cited: 18 Cyc. ]37&- (5) To point five of the opinion, Appellant cited: Kirby v. United iStates, 174 U. 'S. 47, 43 Co-op. 890. Respondent cited: Donovan v. Purtell (111.) 1 E. R. A. (N. S.) 176, and note; First Nat.

Hon. 'Carr G. Sherwood, Judge. Action by D. A. Burns, against the board of county commissioners ' of Deuel county, South Dakota, to recover certain claimed official fees. From1 a judgment for plaintiff, and from an order denjdng a new trial, defendant appeals. (i) To point one of the opinion, Appellant cit.ed: Const., Art. 5, Secs. 19, 5; Pol. Code, Secs. 2806-7-8, .2827, 2813, 2814, 2816; Laws 1911, Ch. 170; 29 Cyc. 1488; Dunbar v. Lbr.

<p>1. Master and Servant — Employee, "Whether Acting as Such — Admissions — Evidence Reviewed — Sufficiency.</p> <p>In a suit for damages for negligence of defendant auto driver, evidence reviewed upon rehearing, and former opinion confirmed.</p> <p>2. Same — Damages for Negligence — Instructions Concerning Witness’ Version of Admission — Former Opinion Qualified.</p> <p>On rehearing, former statement in the opinion, concerning instructions of trial court as to evidence in nature of admissions, modified; wherein reference was made to the meaning intended to be conveyed by witnesses concerning defendant’s admissions in testifying concerning whether defendant’s agent was or not acting for him at the time of the accident complained' of; it being a question of veracity, rather than one of accuracy of witness’ recollection.</p> <p>3. Same — Negligence—Prudential Running of Auto — Speed Ordinance Immateriality, of — Instructions.</p> <p>Whether defendant in a suit for damages resulting from an accident, acted prudently or with due regard for safety of others, or was driving at a dangerous rate of speed, depended not upon the statute nor the city ordinances, hut upon surrounding circumstances. Former opinion adhered to.</p>

Hon. Carl G. Sherwood, Judge. Action by Minneapolis Threshing 'Machine Company, against Chas. M. -Colton, to recover on promissory notes. Appeal from order of trial court overruling demurrer to answer. Respondent cited: 31 Cyc. 225; Nollman et al.-v. Evanson, 5 N. D. 344, 65 N. W. 686; Brower v. Nellis, 33 N. E. 672.

<p>1. Vendor and Purchaser — Vendee’s Title, Acts Necessary to Vest.</p> <p>When purchaser -performs all .acts necessary to entitle him to a deed, then, not until then, he has an equitable title.</p> <p>2. Same — Possession by Third Party, Notice of — Sufficiency of Evidence.</p> <p>In a suit to quiet title to realty, evidence held sufficient to impart actual notice of continuous .possession by a third party, as against purchaser and his grantor.</p> <p>3. Trials! — Findings—Findings of Evidence, Grossly Objectionable.</p> <p>Where findings of fact containing findings of ultimate facts, contained also findings of evidence covering forty printed pages, they were grossly objectionable:</p> <p>4. Vendor and Purchaser — Purchase Money Notes Unaccounted. For, If Existing — Subsequent Purchaser, Relations of to Holder of Notes — Former Opinion Modified.</p> <p>Where, in a suit to quiet title, plaintiff claiming under a subsequent deed from an original vendor who had executed a contract for deed to third party, held, that, it being uncertain whether notes referred to in said contract as .purchase money notes were ever executed, and if so, as to who was owner ■thereof, the former opinion (32 S. D. 438, 143 ¡N. W. 363) in this case should have been silent as to relationship between the holder of said notes., if existing, and the holder of the title to the realty; that if no. notes were executed, a claimant of the land under a subsequent deed from said vendor contractor stands in said' claimant’s shoes relative to vendor’s rights under the contract for deed. Held, further, that the question whether, if the notes were in the hands of third persons, said defendant would stand in same position, should not have been decided in former opinion.</p> <p>5. Quieting Title — Purchaser Under Contract for Deed — Non-payment of Purchase Price or Taxes, Whether Vesting Ownership —Former Opinion Modified — Relief Granted.</p> <p>Where, in a suit to. quiet title, there is no evidence that -the purchaser, or plaintiff claiming under him as subsequent grantee, ever paid the sum due on the original contract for a deed, or taxes on the land, held, that trial court erred in finding that plaintiff was owner of the land, as against those claiming under a subsequent deed from said original vendor; that plaintiff has shown no ground for legal relief, and unless payment bei made by her as hereinafter permitted, she has shown no ground for equitable Telief. Held, further, that plaintiff should be permitted to pay into court the amount due on said sale contract, together with taxes; allowing defendant (claimant under said subsequent deed) to retain value of use of the premises since he has been in .possession; he being entitled to repayment of taxes paid by him and his grantors during years while he and they held possession; trial court being directed to enter interlocutory order accordingly; that plaintiff be also allowed to pay into court the sum due under said contract' for deed, with in■terest, etc., such sum to await determination of ownership thereof either by bringing in new parties, or by result of an independent suit; upon payment of which sums judgment to be entered decreeing plaintiff to be owner in fee clear of all rights, etc., of defendants so claiming; otherwise trial court will enter judgment dismissing suit upon its merits.</p>

Hon. Alva E. Taylor, Judge. Action, by Z. P. Mustar, against Edwin McComb and H. H. Hanson,, as sheriff of Spink county, South Dakota, to determine1 ownership of certain land. Erom a judgment for defendant; and from an order 'denying a new trial, plaintiff appeals. (2) To point two of the opinion, Respondents cited: Burt v. Timmons (W. Va.) 2 S. E. 780; Bump, Eraudulent Conveyances, 96. (3) To point three of the opinion, Respondents cited: 20 Cyc. 449, and cases there cited.

Appeal 'from Circuit Court, Davison County. Hon. Frank B. Smith, Judge. Action by J. A. Neumeyer, against Ben. W. Palmer and others, for damages for defendants’ alleged deceit in a transaction of exchange by plaintiff to. defendant of a stock of goods for a tract of land; the action having .-been dismissed as to defendant Baura May Palmer.

Hon. John E. Hughes, Judge. Action by the Pierre Banking & Trust Company, against Adolph Winkler and' another, to foreclose a chattel mortgage on defendant Winkler’s stock of merchandise. Prom a judgment for plaintiff, andl from an order denying a new trial, defendant P. C. Warren, as trustee in bankruptcy of Adoph Winkler, appeals. (1) To point 'one of the opinion, Respondent cited: Mueller v. Brass, 112 Wis. 406, 88 N. W. 229; Deland v. Miller, 119 Iowa, 368, 93 N. W. 304.

Hon. Raymond L. Djddman, Acting Judge. Action -by C. -R. Schneider, against U. Bo-sley, to- recover for damages for personal injuries. Erom a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (1) To point one of the opinion, Appellant cited: DeBood v. Pay (S. D.) 157 N. W. 307; 26 Cy-c. 1249; Larson v. Knapp-.Stout Co'. (Wis.) 73 N. W. 992. Respondent cited.

Hon. Joseph W. Jones, Judge. Action by,S. G. Tuthill, against P. F., Sherman,, to recover damages for alleged breach of a contract of sale of insurance stock-to foe consummated in future.

Hon. Joseph W. Jones, Judge. Action, by Austin Thompson and others, against John Andrews, to enjoin defendants from continuing to maintain a drainage ditch draining waters from1 his land upon lands of plaintiffs. From a judgment for plaintiffs, and from an order denying a new trial, defendant appeals. (1) To point 'one of the opinion, Appellant cited: Quinn v, Ry.

Hon. Alva E. Taylor, Judge. Action by the state, against John Schamber, and others his ■bondsmen, as state treasurer, to recover .interest on public funds deposited by Schamber in banks. From an order sustaining a demurrer to the complaint, the state appeals. (2) To point two of the opinion, Appellant cited: Const.,Art. 4, Secs. 12, 13; Art. 21, Sec. 2; Art. 12, Sec. 3; Art. ix, Sec. 11; Pol.

Hon. William Williamson, Judge. The defendant, William' George,- was convicted of larceny of cattle and he appeals. (i) To point one of the opinion, Respondent cited: People v. Cleveland, 49 Cal. 577; State v. Branded, 26 S. D. 642; State v. Cline, 27 S. D. 5734 State v. Pliicks et al., 6 S. D. 327, 60 N. W. 66. •

Hon. Alva E. Taylor, Judge. Action by the State, against John Schamber and others. Erom an order sustaining a demurrer to the complaint, the state appeals.

Hon. Arva E. Tayror, Judge. Action by W. W. Monroe, against Al. C. Smith and'another, to recover money paid to defendants’ agent under a newspaper-subscription prize contest. From- a judgment dismissing the action,- and from an order denying a new trial, plaintiff appeals. (4) To point four of the opinion, Appellant cited: Superior Coal Co. v. Darling Lumber Co., 127 Am. -St. 275; Hendrickson v. Evans, 25 Pa. St. 441; Note, 113 Am. Rep. 724.

Hbn. Robert B. Tripp, Judge. The defendant, W. E. Carey, was convicted for unlawful shipment of wild .ducks to a point without the state, and he appeals.

Hon. William Williamson, Judge. Action by Jay Cosgrove, against Gust Evenson, for a money judgment; defendant counterclaiming. From a judgment for plaintiff, and from an order refusing a new trial, defendant appeals.

Hon. Alva E. Taylor, Judge. Action by May H. Hill, against the City of Huron., to recover for use of a party wall. From a judgment upon verdict directed for defendant, and from an order denying a new trial, plaintiff appeals. (2) To point two of the opinion, Appellant cited: McChesney, Adm., v. Davis, 86 111.

Hon. Levi McGee, Judge. Action by Anderson McKirahan, against the Gold King Mining Company, a corporation, to- quiet title to a group of unpat-: entedi mining claims. From a judgment for defendant, and from an -order -denying a new trial, -plaintiff appeals. (i) To point one of the opinion, Appellant cited: Lindley, Sec. 63-5 (3rd ed.) pp. 1578-1579, and cases cited; Costigan Mining Law, Sec. 82, pp. 282-283.

Appeal' from Circuit Court, Minnehaha County. Hon. Joseph W. Jones, Judge. Action by the Western Surety Company, against Henry M. Boettcher and another, impleaded with Joe Benz, to recover upon ah indemnity bond. From a judgment entered upon a verdict in favor oif defendant Benz, and from-an order granting a new trial, he appeals.

Hon. Frank B. Smith, Judge. Action by the Davis & Daniels Company, a corporation, against Hliabeth I. McKillip and Ida M. Warren, formerly Ida M. McKillip, to recover on a promissory note. From a judgment for plaintiff against the last named defendant, and from an order denying a new trial, she appeals. (2) To point two of the opinion, Respondent cited: 4 Corpus Juris. 710; Speer v. Phillips et al, 123 N. W. 722.

Hon. William Williamson, Judge. Action 'by John D. Gormley, against the Chicago & Northwestern Railway Company, to recover damag'es for loss of a carload of hogs1 loaded1 by plaintiff for shipment by defendant. From a judgment for plaintiff, and' from an order denying a new trial, defendant appeals.

Original proceedings in mandamus, 'by the Minnehaha National Bank of Sioux Falls, against John M. Toohey as treasurer of the City of Sioux Falls and ex officio treasurer of the independent school district of said city, to compel him to honor and pay a warrant of the school board of said district in payment for certain federal bond's. Peremptory writ issued.

Hon. Card G. Sherwood, Judge. Proceedings in mandamus by Hannah- Anderson, against Ben Bruflat, as sheriff of Hamlin county. From a judgment for plaintiff, defendant appeals.

Hion. John F. Hughes, Judge. Action by -the State of South Dakota, against A. D. Eckbart, The First State Bank, and J.' A. Gropengeiser, to foreclose contracts of purchase of state school lands. From a judgment for the state, defendants appeal.

Hon. John F. Hughes, Judge. Action by the State of South Dakota, against A. D. Darling, to foreclose contracts of purchase of state school lands. From an order overruling a demurrer to the complaint, defendant appeals. (3) To point three of the opinion, Appellant cited. Black on Rescissions, Sec. 616; Anderson v. Haskell, 45 Iowa, 45; Hickman v. Long, 34 S. D. 639'. Respondent cited: Laws- 1911, Cli. 224, Sec. 42; Laws 1913, Oh. 138, Sec. 1.

Hon. Alpha F. Ore, Judge. Action by William C. McConnell, against Sam Margulies, Max Margulies being impleaded as garnis-hee. From an order granting the motion of garnishee defendant to set aside default judgment against him, and permitting filing of an affidavit of disclosure, plaintiff appeals. (1) To point one of the opinion, Appellant cited: Taws 1909, Ch. 156, Secs: 10, 13; Taws 1913, Ghap. 278, Sec. I; Code Civ.

<p>Appeal from- Circuit Court, Fall River County. Hon. Aiwa E. Tayuor, Judge.</p> <p>The defendant, Arthur R. Brown, was convicted of a felony, and' he appeals.</p> <p>(i) To point one of the opinion, Respondent cited: State v. Phillips, 18 S'. D. i, 98 N. W. 171, 5 Ann. Cas. 760; State v. 'Sonnenschein, (S. D.) 156 N. W. 906; State v. Roberts (Kan.) 147 Pac. 828; State v. Matejousky, 22 S. D. 30, 115 N. W. 96; 'State v. P'ancoast (N. D.) 67 N. W. 1052.</p> <p>(3) To point three -of the opinion, Appellant cited: Rice Criminal Evidence, pp. 604-607; State v. Eamont, 23 S. D. Í80; State v. Pencoast (N D.) 67 N. W. 1060;. Halwood v. People, 96 111. 492.</p>

Appeal ■ from Circuit Court, • Charles Mix County. Hlon. Robert B. Tripp, Judge. Action by the Elliott Supply Company, a corporation, against E. C. Hanson, to recover purchase price of goods under an alleged contract for sale. From a judgment for -defendant, and from an order denying a new trial, plaintiff appeals. (i) To point one of the opinion, Respondent cited; 35 Cyc. 365- (3) To, point three of the opinion, Appellant cited: Smith v. Williams (N. C.) 4 Am.

<p>Appeal from Circuit Court, Walworth County. Hon. Joseph H. Bottum Judge.</p> <p>Action by The Grand Crossing Land & Improvement Company, a corporation, aaginst the City of Mobridge, the County of Walworth, Hans Engebretson, Jerry Brown, Jacob Pleines, and Erect C. Perman, as the Board of County Commissioners of Walworth county; C. S. Stevens, intervener; to quiet title to a cei-tain tract designated in a town addition plat. From a judgment for plaintiff, and from an order denying a new trial, defendant city and the intervener appeal.</p> <p>Appellants cited; Pol. Code, Sec. 1494; Art. 14, Ch. 15, Pol. Code; Ramstad v. Carr (N. D.) 154 N. W. 195; Atlas Lumber Co. v. Quirk (S. D.) 135 N. W. 173; 13 Cyc. 440 B; Cole v. Minn. R. & T. Co. (N. D.) 117 N. W. 345.</p> <p>Respondent cited: F. Hihn v. City of Santa Clara, 150 Pac. 62; Atlas Rbr. n Co. v. Quirk, 28 S. D. 643, 135 N. W. 172; 8 R. C. R. 890; 13 Cyc. 542, Notes 51 and 52; Gaskins v. Williams, 139 S. W. 117, 35 R. R. A. (N. S.) 603; Sinclair v. Comstock, Harr. Ch. (Mich.) 404.</p>

Hon. Joseph W. Jones, Judge. Action by Rose Berke, Wm. J. Bryan Berke, and Herman O. F. Berke, against McCook County and Phil Roche as Treasurer of McCook County. From a judgment for plaintiffs, and from an order denying a new trial, 'defendants appeal.

Appeal' from Circuit Court, Eclmuncls County. Hon. Joseph H. Bottum, Judge. Action by George L. Baumgarten, against W. G. Mathieu, for malicious prosecution. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Appellant cited: Shaffer v. Cramer, 19 S. D. 656; Leyemberger v. P’aul, 40 111. App. 516; Hlalberstadt v. N. Y. Life Ins. Co., 194 N. Y. 1. Respondent cited: White v. Internation Text Book Co. (Iowa) 136 N. W. 121.

Hon. Thomas L. Boucic, Judge. Action -by Lewis J. Hays, against R. D. Alway and others, to set asidle a judgment and' execution -sale and conveyances thereunder. Prom a judgment for plaintiff, and from an.-order denying a new trial, defendants appeal. (i) To point one of the opinion, Appellant cited: Burton v. Cooley (S. D.), 118 N. W. 1028. Respondent -cited': Massilon Engine Works vs. Hubbard (S. D.) 77 N. W. 588.

Hon. Carl G. Sherwood, Judge. Action by Elizabeth F. Gamble, against E. R. Keyes and others, ‘to recover damages for forcibly entering and injuring plaintiff’s house, assaulting her, etc. From an’order granting new •trial, plaintiff appeals. Order modified, and as modified, judgment (7.) To point seven of the 'Opinion, Appellant cited: Shoemaker v. Sonju, 15 N. D. 518; 108 N. W. 42; Whaley v. Vidal, et al. (S. D.) 132 N. W. 248-250-251; Redfield v. Oakland Con. St. Ry.

Hon. Thomas L. Boucic, Judge. In the matter of the e.state of Ida S. Taylor, deceased. The alleged will of deceased having been denied probate by the County Court, upon appeal to the Circuit Court the judgment of the County Court was reversed, and the writing admitted to probate. From such judgment of the Circuit Court, contestant Royce G. Taylor, appeals.

Hton. Frank B. Smith, Judge.’ Actions (3 in number) by T. S. Jones and C. O. Elliff, against Charles Dennis and W. T. McConnell, for foreclosure of various chattel mortgages executed by defendant Dennis, and for other incidental relief. From judgments in favor of plaintiffs, and from orders denying new trials, defendants appeal. (i) To point one of the opinion, Appellants cited: Goughian v. Western Elv.

A-ppeal from Circuit Court, Deuel Count}’. Hon. Carl G. Sherwood, .Judge. Action by J. G. McFarland and C. D. Johnson, co-partners as McFarland & Johnson, against Josie G. Hiltsley, to recover fees for legal services performed. From ,a judgment for plaintiffs, and from an order denying a new trial, plaintiffs appealed. (2) To point two of the opinion, Appellants cited: Note 6 Ann. Cases, 315; 1912 A. Ann.

Appeal ’from Circuit Court, Pennington County. Hon. Levi McGee,-Judge. Action by R. E. Barnard, against the .Chicago- & Northwestern .Railway Company, arising out of a petition- on complaint filed with the Board of Railway - Commissioners-, .-for construction of a station house or depot and installation of an agent for defendant’s railway business at the town of Oral.

Hon. Wiijjam Wiooiamson, Judge. Action 'by Herbert -S. Trautman, against Mart Coffman and Ohas. Owen, co-partners as Coffman & Owen, to recover moneys paid by plaintiff to defendants' for securing a government homestead filing and a pretended reliniqiuishment of a former entry thereon. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. (2) To point two of the opinion, Respondent cited: 31 Cyc. 1498-1499; ITindle v. Holcomb, 75 Pac. 873.

<p>1. Master and Servant — Servant’s Injury From Explosion In “Misfire” Holei — Improper Fuse — Proximate Cause — Increased Risk, Result of, Burden of Proof.</p> <p>In a suit to recover for injury to plaintiff employee in de^ fendant’s mine, the injury having been caused by explosion of dynamite placed by a previous shift of miners, hut which had not exploded with other dynamite similarly placed for explosion, the explosion in question being caused by the drill used by plaintiff coming in contact with the dynamite in a mis-fire hole, held, upon question of mine owner’s negligence, that where such owner is negligent in furnishing improper fuses to a former shift in its blasting operations, and the chance of there being such mis-fire holes was greatly increased by .use of such fuses, the burden of proof is upon employer who negligently increases a known risk resulting in injury, to show that it did not occur becausei of increased risk.</p> <p>2. Same — Injury to Servant — “Reasonably Safe Place to Work,’? Proper Precautions As Affecting — Rule. ,</p> <p>Whether a place is a reasonably safe .place in which to work, depends, not upon its actual freedom from danger, but upon whether employer has used all proper precautions looking to making and keeping such place as safe as the nature of the business conducted therein will reasonably permit.</p> <p>3. Same — Injury to Employee Miner — Experience of Servant, Knowledge of Master’s Negligence, Effect, R© Assumption of Risk.</p> <p>The rule of assumption by an employee of risks from danger resulting from employer’s negligence, being that, while he assumes no such risks of which he has no notice, he yet assumes even such risks if he had, or ought to have obtained knowledge thereof, the evidence showing that ¡plaintiff employee was an experienced miner, that he believed that a fuse used in the mines wherein an explosion of dynamite placed' by a previous miner’s shift had missed fire when sought to be exploded by them, was defective, and knew thei shaft was damp, had had many mis-fires, that a prior shift had reported misfires; that he made all possible effort to find the mis-fire holes and found nothing; that nevertheless he continued to work, held, that he assumed the risk of injury from a mis-fire blast', although the employer was negligent in furnishing such fuses; and it was immaterial whether employee knew the causes, or as to whether the risks resulted from employer’s negligence.</p>

Hon. Arva E. Tayror, Judge. The defendant, Emil,A. Syverson, was convicted of receiving deposits, knowing his bank was insolvent, and he appeals. Affirmed. (3) To point three of the opinion, Appellant cited: Ellis v. State, (Wis.) 1x9 N. W. 1110; Laws 1909, Ch. 222, Sees. 45, 46, 27, 28. (4) To point four of the opinion, Respondent cited: 3 Ruling Case Law, 494-495; 1 Morse on Banking, § 178.

Hon. Robert B. Tripp, Judge. Action by Roy B. Marker, as general guardian of Henrietta Van Gerpen, an incompetent person, against John Van Gerpen, anldl others to -rescind a contract and transfer of property by plaintiffs,’ incompetent. From- -an order following a judgment for plaintiff, refusing a new trial, defendants appeal; and, from an order of the court refusing to modify its 'conclusions, plaintiff appeals.