Volume 4 — South Dakota Reports

Action by Oliver Nelson against Joseph Ladd and another for breach of a farm lease. A demurrer to the complaint was overruled, and the defendants appeal. A complaint which does not state a cause of action by its averments, without reference to exhibits, is bad upon demurrer. Aultman v. Siglinger, 2 S. D. 442.

<p>1. Act March 9, 1891, entitled, “An act prescribing- the mode of making-assessments and the 1 evy and collection of taxes and for other purposes in relation thereto,” Section 18 provides: “Credits, How Listed and Assessed. Any person who is required to list credits, either for himself or for any other person, firm, or corporation, may deduct from the gross amount thereof the amount of all bona fide indebtedness of himself or of any such person, firm or corporation; but no acknowledgment of indebtedness, not founded on actual consideration to the full amount of such acknowledgment at the time when the same was given, and no acknowledgment made for the purpose of being so deducted, shall be considered a debt in the meaning of this section, and every person so claiming any deduction shall furnish the assessor with a list containing: First, the amount of all book accounts; second, the amount of all notes due him, and also a list of the amount of all book accounts owing by him, and he shall be required, to verify the same by oath administered by the assessor. Nothing in this section shall be so construced as to apply to any bank, banker, or corporation exercising banking powers or privileges. Provided, however, that any person, company or corporation, in making up the amount of personal property required to be listed for himself, company or corporations, shall be allowed to deduct from the gross amount thereof any indebtedness of himself, company or corporation, if the same be owned or held within this state; provided further, that grain held by the producer of the same actually sold or contracted to be sold, but not delivered, shall be classed as credits.” Held, that such section-provides (1) that a person having credits is allowed to deduct therefrom all his indebtedness, whether owned or held within or without the state; (2) that a person having personal property presumably other than credits is allowed to deduct therefrom such indebtedness as is held or owned within the state; and (3) that grain held by the producer to be sold, but not delivered, shall be classed as credits.</p> <p>2. Const. Art. 11, l 2, provides that, “all taxes to be raised in this state shall be uniform on all real and personal property, according to its value in money, to be ascertained by such rules of appraisement and assessment as as may be prescribed by the legislature by general law, so • that every person and corporation shall pay a tax in proportion to the valuation of his, her or its property. And the legislature shall provide - by general law for the assessing and levying of taxes on all corporation property, as near as may be, by the same methods as are provided for assessing and levying of taxes on individual property.” Section 4 provides that “the legislature shall provide for taxing all moneys, credits, investments in bonds, stocks, joint stock companies, or otherwise: and also for taxing the notes and bills discounted or purchased, moneys loaned, and all other property, effects or dues of every description, of all banks and of all bankers, so that all property employed in banking shall always be subject to a taxation equal to that imposed on the property of individuals.” Section 5 provides specifically that public property shall be exempt without legislative action. Section 6 provides that the legislature, by general law, shall exempt property used for agricultural and horticultural societies, schools, religious, cemetery purposes, and personal property to any amount not exceeding in value $200 for each individual liable to taxation; and Section 7 declares that “all laws” exempting property from taxation other than that enumerated in Sections 5 and 6 of this article, “shall be void.” Held, that Act March 9,1891, ? 18, in providing for the deduction of indebtedness from the amount of credits and personal property, and Section 19, prescribing what indebtedness should not be deducted and the manner of verification of deductions, while no provision is made for deducting the same from the value of the real estate of taxpayers, provide for unequal taxation, are in conflict with the constitution, and void.</p> <p>3. Such sections of the revenue act also produce inequality and want of uniformity in taxation, and are unconstitutional, in that they permit the deduction from personal property of indebtedness held within the state but permit no deduction of indebtedness held without the state.</p> <p>4. Assuming that the term “personal property,” occurring in the first proviso of such Section 18, means only “credits,” of which the section is primarily treating, the same want of uniformity and equality exists, in that the statute permits the deduction of indebtedness from one kind of personal property, “credits, ” and from no other.</p> <p>5. Such deduction of indebtedness from credits and personal property is, also, in effect, an exemption from taxation of property in addition to the exemptions authorized by the constitution, and renders such statute void, though the statute speaks only of deductions, and not of exemption.</p> <p>6. _ As such unconstitutional provisions can be separated from the remainder of the revenue act, the other provisions remain in force.</p> <p>(Syllabus by the Court.</p>

Appeal irom circuit couijt, Hughes county. Hon. H. G. Fuller, Judge. Action by Annie E. Williams and another against George W. Harris, sheriff, and the John Pritzlaff Hardware Company, to restrain a sale of property on execution. Plaintiffs had judgment, and defendants appeal. All papers executed in pursuance of an original design, are in law, deemed to constitute one transaction and are construed together, whether made on same or different days. Bump Fraud. Conv. 363.

<p>Appeal from circuit court, Moody county. Hon. P. R. Aikens, Judge.</p>

<p>1. An appeal will not be dismissed because tbe record brought to this court by appellant is not sufficiently full for the examination of the main questions of error assigned.</p> <p>2. In such case appellant will be confined to such assignments of error as may properly be considered upon the record presented.</p> <p>3. The omission of the year in the proof of service of the notice of appeal upon the clerk is not material where, from other dates upon the notice it is plainly evident when it was served in fact, and that such omission was an oversight.</p> <p>(Syllabus by the court.</p>

<p>This court possesses the power, on remitting a case appealed to this court to the trial court, to direct that an amendment to a pleading may be made in the trial court, and such power should be liberally exercised in furtherance of justice. Kellam, J. dissenting.</p> <p>(Syllabus by the Court.</p>

<p>Action by George W. Aldrich and Jacob E. Huffman, partners as Aldrich & Huffman, against Alma E. Wilmarth. From a taxation of costs defendant appeals.</p>

Hon. H. G. Fuller, Judge. Action by Edward H. Andrews against Charles H. Wynn to foreclose a mortgage. A demurrer to the complaint was overruled, and defendant appeals. Kell am, J., concurring specially. The facts are stated in the opinion. A motion to make the complaint more definite and certain is the proper remedy where there is a difference between the parties named in the caption and in the body of the complaint. §§ 4925, 4609, Comp.

Hon. F. R. Aikejms, Judge. Action by Maggie O’Rourke against the city of Sioux Falls to recover for personal injuries sustained by the firing of a cannon, negligently permitted by the officers of the city. A demurrer to the complaint was sustained, and plaintiff appeals. The demurrer should have been disregarded, because not sufficiently specific. § 114 C. C. Proc. Cities and towns are liable for certain classes of negligence which result in injury to individuals. Dillon Mun.

Hon. E. Parliman, Judge. Action of claim and delivery by John I. Purdin, as special administrator of the estate of Lester S. Peck, deceased, against John Archer, fco recover the possession of certain personal property. There was judgment for plaintiff, and defendant appeals; The facts are fully stated in the opinion. An administrator stands in no better position as to the property of the deceased mortgagor than the latter would were he living. Griffin v. Wertz, 2111.

. Error to circuit court, Deuel county. Hon. J. O. Andrews, Judge. Defendant was convicted of unlawfully taking personal property from the custody of an officer, and brings error. An execution is not good unless it run in the name of the State of South Dakota. Art. 5, § 38, Const. S. D.; Gelbreath v. Kingkendale, 1 Ark. 50; German v. Steed, 1 W. Va. 1; Beach v. Riley, 14 W. Va. 55; Yager v. Graves, 78 Ky. 278.

Hon. J. 0. Andrews, Judge. Action on a judgment by L. J. McCormick and another, as surviving partners of the firm of C. H. & L. J. McCormick, against Andrew Nelson Volsack. Defendant had judgment, and plaintiffs appeal. On appeal only an objection raised in the lower court to the admission of evidence will be considered. Deverroux v. Sunn, 4 N. Y. 655.

Hon. E. G. Smith, Judge. Action against the defendant railroad company for damages by fire to personal property, alleged to have been caused by defendant’s negligence. Judgment for plaintiff. Defendant appeals. Where a party is found to have no cause of complaint under his pleadings, or facts are found that disaffirm his right of recovery, the other party is entitled to judgment. 3 Bl.

Hon. William Gardner, Judge. Application by Fred T. Evans for a mandamus to James Bradley, treasurer of Fall River county, to compel the payment of a judgment. Plaintiff had mandamus granting the writ. Defendant appeals. Mandamus is the proper remedy for enforcing a judgment against a municipality to be paid out of a special fund. High Ex. Leg. Rem. §§ 229, 365 and 367; 2 Dillon Mun. Corp. § 861.

Hon. A. W. Campbell, Judge. Action for damages for wrongfully holding over real property after the expiration of the term of tenancy. Plaintiff had judgment. Defendant appeals. The facts are stated in the opinion. The plaintiff could not combine two actions against the defendant, one as a trespasser and the other as a tenant. Am. Enc. Law, 759; Wood’s Law & Ten. § 557.

J. 0. Andrews, Judge. Nathaniel E. Thompson having been convicted of murder, brings error. All prosecutions should be carried on in the name of the state. Ait. 5, § 38, Const.; State v. Hasledahl, 52 N. W. 317; Jefferson v. State, 7 S. W. 244; Sainé v. State, 14 Tex. App. 144; Cal verb v. State, 8 Tex. App. 538; Donnelly v. People, 11 111. 552; Gould v. People, 89 111. 216; Parris v. People, 76 111. 77.

Hon. A. W.' Campbell, Judge. This case was first decided by this court March 15, 1893. In an'opinion dated that day and found in 3 S. D. —, this court affirmed the decision of the lower court. The defendant petitioned for a rehearing, and this opinion is upon that petition.

Hon. E. Parliman, Judge. Acüon by Joe Kirby against the Western Union Telegraph Company to recover damages for refusal to send a message. Judgment for plaintiff. Defendant appeals. A common carrier may make reasonable rules and regulations for the convenient transaction of business between himself and those dealing with him, and thus, to some extent, limit his common law liability.

Hon. William Gardner, Judge. Action by Fred T. Evans against the county of Fall River to recover on a county warrant. There being no answer, judgment was entered by default. From an order denying a motion to set aside the judgment, and for leave to answer, defendant appeals. Judgment by default where defendant has not been properly served or notified, should be set aside on motion and defendant allowed to answer. Comp.

Hon. William Gardner, Judge. Action by the Minnekahta State Bank against the county of Fall River to recover on a county warrant. There being no answer, judgment was rendered by default. From an order denying a motion to set aside the judgment, and for leave to answer, defendant appeals.

<p>Appeal from circuit court, Sully county. Hon. H. G. Fuller, Judge.</p> <p>Motion to dismiss an attachment. Motion allowed. Plaintiff appeals.</p> <p>The facts are stated in the opinion.</p>

- Hon. E. G. Smith, Judge. Action for a breach of contract. From an order sustaining a demurrer to the complaint, plaintiffs appeal. The facts are stated in the opinion. The claim of a defect of parties plaintiff was not available to the defendants on the record made, for the reason that they did not specify distinctly the grounds of objection in the demurrer. Section 4910, Comp. Laws; Baker v. Hawkins, 29 Wis. 578; 2 Estes’ Plead, p. 384; Boon Plead.

Hon. E. G. Smith, Judge. Action by Lottie Bem, Frank J. Bem, and Arthur A. Bem against Emilie Bem, impleaded with-Bem, and Fred Heiser, administrator of the estate of Frank Bem, deceased. Plaintiffs had judgment, and defendants appeal. The facts are stated in the opinion.

<p>1. In Section 4379, Comp. Laws, providing that “a mortgage of personal property is void as against creditors of the mortgagor, and subsequent purchasers and incumbrancers of the property in good faith for value, unless the original, or an authenticated copy thereof, be filed,” etc., it seems the words “in good faith for value” apply only to subsequent purchasers and incumbrancers, and not to creditors.</p> <p>2. The “authenticated copy” of a chattel mortgage, authorized by said section to be filed, is the authenticated copy provided for in Section 4382, and made necessary by the fact that the original is filed in some other county, where a part of the property covered by the mortgage is situated.</p> <p>3. When a creditor within the meaning of said section, obtains a judgment and levies an execution upon the property covered by an unified chattel mortgage, he acquires a lien thereon superior to that of the holder of the mortgage.</p> <p>(Syllabus by the court.</p>

Hon. A. W. Campbell, Judge. Action on a promissory note by the Colonial & United States Mortgage Company, Limited, against George Bradley and Eva D. Bradley. Plaintiff had judgment against defendant George Bradley alone, and from the judgment dismissing the complaint as to defendant Eva D. Bradley it appeals. The facts are stated in the opinion.

Hon. J. O. Andrews, Judge. Action by the township of De Smet against Fred N. Dow. Plaintiff had judgment for a part only of its claim, and, from an order taxing costs to plaintiff, defendant appeals. The facts are stated in the opinion. The defendant is entitled to recover costs in an action commenced in the circuit court where the amount recovered is less than 850.00, if the action is within the jurisdiction of a justice court.

Hon. A. W. Campbell, Judge. Action to recover damages for wrongfully holding real property after the expiration of a term of tenancy. This case was decided by the court June 26, 1893. In an opinion found in 4 S. D.--, 55 N. W. 723, the judgment of the lower court was affirmed. Defendant applied for a rehearing. This opinion is upon the application.

Hon. William Gardner, Judge. Action by Prank J. Washabaugh against Herbert S. Hall, to recover the sum of $500 paid by plaintiff to defendant. Plaintiff had judgment, and defendant appeals. The facts are stated in the opinion. It was error for the court to refuse to allow the defendant to show by parol evidence that Hall acted in all matters as the agent of the plaintiff and under his instruction and held the interest in the land as trustee.

Hon. H. G. Puller, Judge. Action in the nature of a creditor’s bill. A demurrer to the complaint was sustained and plaintiffs appeal. The facts are fully stated in the opinion. A demurrer to a complaint on the ground that plaintiffs have not legal capacity to sue is insufficient if it fails to point out the reasons wherein the legal incapacity to sue arises. Sec. 4910, Comp. Laws; Sanborn v. Hale, 11 N. W. Rep. 302; Bank v. Donnell, 40 N. Y, 410.

Appeal irom circuit court, Kingsbury county. Hon. J. O. Andrews, Judge. Action to cancel certain mortgages of personal property. Plaintiffs had judgment, and defendants appeal. The facts are stated in the opinion. The plaintiffs’ bill of sale, though absolute in form but given as security for a debt, is a mortgage and no more conveys the title than does a formal mortgage. Secs. 4348, 4350, 4358, Comp.

Hon. Frank R. Aikens, Judge. Action by M. E. Rudolph against M. H. Herman. From an order denying leave to defendant to file an amended undertaking on appeal from justice’s court, defendant appeals. The lower court erred in refusing to allow appellants to file a new undertaking upon appeal.

Hon. J. 0. Andrews. Judge. Action on a contract. Judgment for defendants. Plaintiff appeals. The facts are stated in the opinion.

Action original in this court by the Jewell Nursery Company against the state of South Dakota on a contract. Defendant demurs to the complaint. The decision of the college officers as to what was necessary for the successful operation of the college was conclusive against the territory.

Hon. A. W. Campbell, Judge. Action in assumpsit. Plaintiff had judgment, and defendant appeals. The abstract of appellant set out what purported to be' the evidence upon the trial. No bill of exceptions or statement was ever settled and respondent moved in this court to strike from the record this purported evidence.

Hon. William Gardner, Judge. Action to enforce a mechanic’s lien on realty. Plaintiffs had judgment and defendants appeal. The facts are stated in the opinion. The complaint failing to allege the taking of the necessary steps to perfect a lien does not state facts sufficient to constitute a cause of action. C. Aultman & Co. v. Siglinger, 50 N. W. 911; 2nd Jones. Liens, § 1588; Petty v. Killingsworth, 26 Pac. 305; Schillinger F. P. Co. v. Arnott, 14 N. Y. 326.

Hon. E. G Smith, Judge. Action to recover the amount paid by plaintiff to defendant as purchase money for a number of warrants purporting to be the warrants of Douglas county, on the ground of a 'breach of warranty. Defendants had judgment and plaintiff appeals. The facts are stated in the opinion. It was error for the court to render a judgment of dismissal upon the merits on the pleadings and findings in this case.

Hon. H. G. Fuller, Judge. Action by Robert B. Fisk against J. Henry Westover. From a judgment setting aside the service of summons, plaintiff appeals. The common law exempted both parties and witnesses from arrest on civil process, while going to, attending or returning from attendance upon courts. 112 Mass. 428; 6 Mass. 245; 5 Gray, 538; 1 H. & N. 99; 2 Strange, 1094.

Hon. Frank R. Aikens, Judge. This case was first decided by this court March 16, 1892( In ■ an opinion found in 2 S. D. 596, the court reversed the judgment of the lower court in favor of the plaintiff. A rehearing was subsequently granted upon, the petition of both respondent and appellant. This opinion is upon the rehearing. Former decision adhered to.

Hon. A. W. Campbell, Judge. Action by Andrew J. Hodges, doing business under the name and style of A. J. Hodges & Co., against John P. Bierlein. There was a verdict for defendant, and from an order granting a new trial he appeals;

Hon. Prank R. Aikens, Judge. Action by the state of South Dakota against the Chicago, Milwaukee and St. Paul Railroad Company to restrain a nuisance. There was judgment sustaining a demurrer to the complaint, and plaintiff appeals. The facts are stated in the opinion. It was error for the lower court to hold upon demurrer that the complaint was fatally defective in not alleging that the defendant was a corporation. Fulton Fire Ins.

Hon. Frank R. Aikens, Judge. In an opinion found in 3 S. D. 170, 52 N. W. Rep. 869, the court reversed the judgment of the lower court. Subsequently a rehearing was granted in the case. This opinion is upon the rehearing. The former decision adhered to.

Hon. H. G-. Fuller, Judge. Action by the Building and Loan Association of Dakota against Albert E. Chamberlain, Kate V. Chamberlain and J. R. Hughes. .From a judgment overruling his demurrer to the complaint, defendant Albert E. Chamberlain appeals. The facts are stated in the opinion; The legislature of the territory of Dakota had no power to pass the act of March 13, 1885, and the act amendatory thereto of March. 11, 1887, relating to building and loan associations.

Hon. F. R. Aikens, Judge. Action by the successor in interest of a mortgagor to recover from a purchaser at a foreclosure sale rent for the real property covered by the mortgage during the year of redemption. To an answer setting up the making of the mortgage, a sale thereunder, and the purchase by the defendant plaintiff demurred. The demurrer was overruled and plaintiff appealed.

Hon. D. Haney, Judge. Action on promissory notes by D. M. Osborne & Company, a corporation, against William Martin. There was judgment for defendant, from which, and an order denying a new trial, plaintiff appeals. The facts are stated in the opinion.

- Appeal from circuit court, Brule county. Hon..D. Haney, Judge. • Action for divorce by Della Bardin against Lyman D. Bar-din. ' From an order granting alimony pendente lite,.defendant appeals. Tbe right to alimony and counsel ‘ fees results from the marital relations, and the existence of such relation between the parties must be admitted or proved before there can be a decree for it even pendente lite. Bish. Mar. & Div.

Hon. William Gardner, Judge. Action upon a promissory note. Prom a judgment for defendant Washabaugh, and an order denying a new trial, plaintiff appeals. The facts are fully stated in the opinion.

Hon. J. O. Andrews, Judge. Action by the Winona & St. Peter Railway Company against the city of Watertown for an injunction to restrain proceedings to condemn a strip of land across plaintiff’s station yards and grounds at Watertown, for the purpose of laying out and opening a street thereon. There was judgment for plaintiff, and defendant appeals. The facts are stated in the opinion. The exercise of the right of eminent domain is a political right.

Hon. J. O. Andrews, Judge. • . Action to quiet title, and for other relief. From an order sustaining a demurrer to the answer, defendants appeal.

Hon, F. R. Aikens, Judge. Action by Polina Randall and others against the township of Burk, in Minnehaha county, and others, for an injunction. There was judgment for defendants, from which, and an order denying a new trial, plaintiffs appeal. The facts are stated in the opinion. In this state, in cases of an equitable nature tried before a court or a referee, the facts, as well as the law, may be reviewed by this appellate court.

Hon. F. R. Aikens, Judge. Action by Gilbert Hanson against the township of Red Rock, in Minnehaha county, and Thomas Whaley, R. Kyle and G. W. Fay, board of supervisors of said township, for an injunction. Defendants had judgment, from which, and an order denying a new trial, plaintiff appeals. The facts are stated in the opinion.

Action original in this court for a writ of mandamus to compel the judge of the second judicial circuit to settle and sign a bill of exceptions. The facts are stated in the opinion.

Hon. E. G. Smith, Judge. Action in claim and delivery by the Norwegian Plow Company against David Bellon and F. M. Hennis. Defendants had judgment, and plaintiff appeals. The facts are stated in the opinion.

Action by J. S. Benedict against Gilbert Johnson. Defendant had judgment dismissing the action, and plaintiff appeals. The facts are stated in the opinion.

Hon. C. M. Thomas, Judge. Action to recover for injury to property alleged to have been negligently caused by the defendant. There was judgment for plaintiff, and a new trial denied. Defendant appeals.

Hon. J. 0. Andrews, Judge. Action for conversion. Plaintiff bad judgment, and defendant appeals. The facts are stated in the opinion.

Hon. J. O. Andrews, Judge. Action against the sheriff of Grant county for non-payment of moneys alleged to have been collected by him on execution. From an order for judgment for plaintiffs, defendant appeals. The facts are stated in the opinion.

Hon. F. R. Aikens, Judge. Action by C. H. Meyer against School District No. 31, Minnehaha county, on a district order. Plaintiff had judgment and defendant appeals. The facts are stated in the opinion.

Hon. Frank R. Aikens. Judge. This opinion is rendered upon a petition for a rehearing in this case made by appellant to review the order of this court made September 4, 1893, affirming the decision of the lower court. The history of the case and the nature of the proceedings are fully set out in the opinion. The petition for rehearing is denied.

Hon. A. W. Campbell, Judge. This case was first decided by this court in an opinion found in 2 S. D. 422, (50 N. W. 907.) In that opinion the judgment of the lower court in favor of the plaintiff was affirmed. This opinion is upon a rehearing granted upon petition of the appellant and affirms the former decision.

Hon. E.' Parliman, Judge. This case was first decided by this court, in an opinion found in 4 S. D. 105, (55 N. W. 759.) In that opinion the judgment of the lower court in favor of plaintiff was affirmed.: Appellant applied for a rehearing and in this opinion a rehearing is granted.

Hon. Frank R Aikens, Judge. Action in claim and delivery against the defendants, who are sheriff and deputy sheriff respectively of Minnehaha county to recover the possession of property taken from the plaintiff by virtue of a writ of attachment. Plaintiff had judgment, and defendant appeals. The facts are stated in the opinion. It was error for the court to eliminate from the case the question of fraud in the trasaction between the plaintiff and the attachment debtor.

<p>Appeal from circuit court, Lincoln county. Hon Prank R. Aikens, Judge.</p> <p>Action to foreclose a mortgage alleged to have been executed by William S. Wait and Lucy A. Wait. From a judgment in favor of the defendant Lucy A. Wait plaintiff appeals.</p> <p>The facts are stated in the opinion.</p> <p>Parol authority is adequate to authorize the filling in of blanks in sealed instruments. Speake v. U. S., 9 Cranch 28; Drury v. Foster, 2 Wahl. 24; Allen v. Withrow, 110 U. S. .119; Inhabitants of South Berwick v. Huntress, 53 Me. 89; BridgportBank v. Railroad Co., 30 Conn. 274; Burnside v. Waymon, 49 Mo. 357; Field v. Stagg, 52 Mo. 5346; Duncan v. Hodges, 4 McCord; Vanetta v. Evenson, 28 Wis. 33; Schintz v. McManamy, 33 Wis. 301; State v. Young, 23 Minn. 551; Schwartz v. Bellow, 47 la. 188; Cribben v. Deal, 27 Pac. 1046; Owens v. Beal, 25 la. 412. If the party filling in the blanks exceeds his authority, the deed, providing the grantee of the deed had no knowledge or notice of the limitations placed upon the authority of the agent, is not void. Goodman v. Simons, 20 How. 361; Bank v. Neal, 22 How. 108; Violet v. Patton, 5 Cranch 142; Daniel on Negotiable Instruments, § 142; Story on Bills, § 222; Bankv. Neal, 22 Howe, U. S. 107; Davison v. Lanier, 4 Wall 457; Redlich v. Doll, 54 N. Y. 238; Chitty on Bills, § 29; Story on Bills, 222; Huntinging Bank, 3 Ala. 186; Snyder v. Vandoren, 46 Wis. 602. The fact that the land covered by the instrument in question was the homestead, does not change the rule. Quinn v. Brown, 34 N. W. 14.</p> <p>An instrument signed In blank which is afterwards filled in by the grantee, or with his consent and without any sufficient authority from the grantor, and directly contrary to the grantor’s instructions, is void. § 1722, Civ. Code; § 1730, Civ. Code; Jones on Mortgages, 4th Ed. §§ 90, 91; Am. & Eng. Enc. of Law, vol. 15, p. 772; Cross v. State Bank, 5 Ark. 525; Upton v. Archer, 41 Cal. 85; Ingram v. Little, 14 Ga. 173; Whitaker v. Miller, 83 111. 381; Richmond Mfg. Co. v. Davis, 7 Blackf. Ind. 412; Ayers v. Probasco, 14 Kan. 175; Cummins v. Cassily, 5 B. Mon., Ky. 74; South Berwick v. Huntress, 53 Me. 89; Kyers v. McClaahan, 6 Gill. & J., Md. 250; Burns v. Lynde, 6 Allan, Mass. 305; Stebbins v. Watson, 71 Mich. 467; Williams v. Crutcher, 5 Plow. Miss. 71; Graham v. Holt, 3 Ired L. N. C. 300; Ayers v. Hardess, 1 Ohio, 368; Shirley v. Bursh, 18 Pac. Rep. 351; S. C. 16 Or. 83; Chapman v. Lacker, 38 Wis. 43; Gilbert v. Anthony, 1 Yerg. Tenn. 69; Preston v. Hull, 23 Gratt. Va. 600; Hibblewhite v. McMorine, 6 M. & W. 200; Davidson v. Cooper, 11 M. & W, 778, 793; Ayers v. Probasco, 14 Kan. 175.</p> <p>A mortgage executed completely in all its parts and deposited with another to be delivered on the happening of certain event, is rendered void 'if delivered contrary to such instructions. Chipman v. Tucher, 38 Wis. 43; Powell v. Conant, 33 Mich. 396; Burson v. Huntington, 21 Mich. 415; Andrews v. Thayer, 30 Wis. 228.</p>

Hon. E. Parliman, J uclge. Action by Joe Kirby against the Western Union Telegraph Company to recover a penalty for breach of duty. Plaintiff had judgment, and defendant appeals. The facts are stated in the opinion. Section 3910, Comp, Laws, is a penal statute and must be construed strictly. Endlich on Interpretation of Statutes, Chap. 12; Sutherland on Statutory Construction, § 208.

Hon. A. W. Campbell, Judge. Action upon an undertaking given to discharge an attachment. Defendants had judgment and plaintiff appeals. The facts are stated in the opinion. The respondents, by the execution of the undertaking for the discharge of the attachment, entered into, an absolute and unconditional agreement to pay the amount of any judgment which the plaintiffs in the original action might recover against the defendants.

Hon E. Parliman, Judge. Action by William Wendt against the Chicago, St. Paul, Minneapolis & Omaha Railroad Company, to recover damages for injuries by fire to personal property alleged to have been caused by the negligence of defendant. There was judgment for plaintiff, from which, and an order denying a new trial, defendant appeals. The facts are stated in the opinion.

Hon. D. Haney, Judge. Action by the St. Croix Lumber Company against Lester C. Mitchell, Charles F. Hatch, and William Tennant to enforce a mechanic’s lien. Plaintiff had judgment, and defendants appeal. The facts are stated in the opinion. A record on a former appeal in the same action may be examined by the appellate court to ascertain whether.the same question was then presented upon the same facts.

Hon. A. W. Campbell, Judge. Action by Prank Rapp against C. M. Giddings to recover on an account. Plaintiff had judgment, from which, and an order denying a new trial, defendant appeals. The facts are stated in the opinion. In order to overcome the effect of a check containing a receipt in full the evidence must be of a clear and satisfactory nature and it must appear that by some mistake or fraud the check was not intended by the parties as a receipt in full.

Hon F. R. Aiicens, Judge. Action to foreclose a chattel mortgage. There was judgment for defendants and plaintiff appeals. The facts are stated in the opinion. A mortgage upon personal property not executed in the presence of two persons and signed by them as witnesses, but the execution of which is otherwise proved, is valid and enforceable as between the parties and subsequent purchasers and encumbrancers having actual notice of such mortgage.

Action by William Ellis against Lucy A. Wait, to foreclose a mortgage. A judgment for defendant was affirmed. 4 S. D. 454, 57 N. W. Rep. 229, and she now appeals from the clerk’s taxation of costs in the supreme court.

Action for damages for the destruction of plaintiff’s property by fire alleged to have been caused by the negligence of defendant. This case was first decided by this court in an opinion found in 3 S. D. 563, (54 N. W. 601,) in which the court reversed the judgment of the lower court in favor of the plaintiff. The plaintiff moved for a rehearing. This opinion is upon the rehearing. The former decision adhered to. No new briefs filed on rehearing.

Hon. A. W. Campbell, Judge. Action to recover the possession of personal property alleged to have been wrongfully taken from plaintiffs by defendants. Defendants had judgment, from which and an order denying a new trial, plaintiff appeals. The facts are stated in the opinion.

Hon. H. G. Fuller, Judge. Action by H. R. Barber against Charles W. Johnson. From a conditional order vacating an order dismissing an appeal from a justice's court, plaintiff appeals.

Hon. F. R. Aikens, Judge. Indictment charging the defendant with rape. Upon the trial the defendant was convicted, and he brings error to this court.

Hon. A. W. Campbell, Judge. Action to recover damages for killing stock alleged to' have been caused by the negligence of defendant. Plaintiff had judgment, defendant appeals. The facts are stated in the opinion.

Hon. J. O. Andrews, Judge. Indictment charging defendant with the offense of grand larceny. The defendant was convicted and brings error. The facts are stated in the opinion. When an affidavit is made sufficiently charging prejudice and bias on the part of the presiding judge against the defendant, such judge cannot disregard such affidavit and proceed to try the case. State v. Henning, 3 S. D. 492.

Hon. A. W. Campbell, Judge. Indictment charging defendant with the offense of selling' intoxicating liquors unlawfully. Defendant was convicted and brings error. The facts are stated in the opinion. Each sale of intoxicating liquors under the statute is a distinct offense, and an indictment for the sale must identify the specific sale so that the defendant may not be indicted for one offense and convicted for another. The indictment must specify to whom the liquor was sold.

Hon. A. W. Campbell, Judge. Action to remove a cloud from title. From an order overruling a demurrer to the answer, plaintiff appeals. The facts are stated in the opinion. A party cannot raise an issue by denying knowledge or information sufficient to form a belief concerning facts which from their nature must be known to him, or of which he has ready and convenient means of knowing.

Hon. Chas. M. Thomas, Judge. Action by Alice M. Guild, administratrix of the estate of John Guild, deceased, against the First National Bank of Deadwood, to recover ill egal interest paid. There was judgment for plaintiff, and defendant appeals. The facts are fully stated in the opinion.

Hon. Frank R. Aikens, Judge. Action upon an undertaking. There was judgment for defendants and plaintiff appeals. The facts are fully stated in the opinion. The arguments of counsel are the same as those in Ross v. Wait, et al., 2 S. D. 638.

Hon. A. W. Campbell, Judge. Action to recover possession of land, and damages for trespass thereon. Plaintiff had judgment and defendant appeals. The defendant’s plea or answer showed a prior action commenced and still pending between the same parties for the same cause. It was error for the trial court to overrule the plea and dismiss the action, and require the defendants to at once answer the complaint and go to trial on the merits.

Hon. Frank R. Aikens, Judge. This is the second appeal in this case, which is an action upon a promissory note. The plaintiff had judgment, and on the first appeal the case was reversed and remanded for a new trial. Upon the new trial the plaintiff again had judgment and the defendants appeal.

Hon. William Gardner, Judge. Action to foreclose a mortgate. There was judgment by default for plaintiff, who afterwards moved to vacate the same on the ground that the action was unauthorized by him. The court ordered the judgment set aside and annuTed qn condition of the payment of attorney fees and costs. Plaintiff appeals.

Hon. Flank R. Aikens, Judge. Action to determine adverse claims to real property. There was judgment for defendants and plaintiffs appeal. The facts are stated in the opinion. A real estate mortgage containing a power of sale cannot be foreclosed under that power by advertisement after the death of the mortgagor. A power of sale contained in a real estate mortgage in this state is not a power coupled with an interest.

Hon. E. G. Smith, Judge. Action to rescind a contract and for other relief. There was judgment for plaintiffs, and, from an order denying a new trial, defendants appeal. The facts are fully stated in the opinion. The writing in suit contains two separate contracts.

Hon Chas. M. Thomas, Judge. Action for the foreclosure oí a mortgage, and for other relief. From the judgment rendered, plaintiff appeals. The facts are fully stated in the opinion. Actual occupation and residence are necessary to constitute a homestead.

Hon. Frank R. Aikens, Jndge. Action on a policy of insurance. There was judgment for plaintiffs, and from an order denying a new trial, defendant appeals. The facts are fully stated in the opinion.