Volume 4 — Wyoming Reports

ON APPLICATION POE REINSTATEMENT OF .PROCEEDINGS in Error. Tbe petition and proceedings in error bad been dismissed at the October, 1891, term on the ground that there was no judgment or final order of the district court which could be reviewed, the transcript of the record in that respect showing only certain findings of fact and of law.

EJjiROE to tlie District Court of Sweetwater County, Hon. Samuel T. Coen, Judge. Replevin for a stock of merchandise held by the sheriff under several writs of attachment sued out by creditors of E. J. Wagner. The plaintiff, Charles Wagner, claimed ownership of the goods under a bill of sale executed September 15, 1888, and possession taken thereunder, and alleged the value of the goods to be $17,000.

Hojst. Riohard EL Soott, Judge. Petition for probate of the olographic will of John Y. Cowhick deceased. The petitioners were John W. Collins, who was named as executor of the will, and Anna Elizabeth Neer, one of the devisees.

Original proceedings iii mandamus on the relation of S. B. Bennett and Harry A. Chapman, respectively — two cases— against Amos W. Barber, Secretary of State, Charles W. Burdick, State Auditor, and Otto Gramm, State Treasurer, constituting the State board of canvassers, to require the respondents to canvass certain returns of the votes cast for relators for members of the house of representatives from Carbon County, at the election held on Tuesday, November 8, 1892.

PETITION of James Moore for writ of babeas corpus, who claimed to be entitled to a discharge from the penitentiary by reason of a pardon granted him by the Secretary of State as acting Governor.

Ereor to District Court of Converse County. Hon. Rioh-ARD H. SCOTT, Judge. The material facts are stated in the opinion.* A co-defendant is a competent witness for the defense upon the separate trial of one jointly accused with him, especially since the statutory modification of tbe common law rule affecting the competency of witnesses.

ORIGINAL PROCEEDING in mandamus brought on the relation of Eobert Foote to require the State Board of Live Stock Commissioners to pay to relator the proceeds from the sale of certain cattle shipped as estrays. Case heard upon demurrer to answer. The statement of the ease as shown by the pleadings is fully set forth by Mr. Justice Clark, who delivered the opinion.

ORIGINAL application by the county and prosecuting attorney for Johnson County by direction of the board of the county commissioners of said county praying that the court direct the Attorney General to cause the institution of proceedings in the nature of quo warranto for the purpose of inquiring into and determining by what right or authority William S. Metz assumes to exercise the powers and functions of a judge of the district court within the.

John McDonald was confined in the county jail of Sweet-water County, under conviction and sentence by the district court for criminal libel. He applied to the supreme court for release upon habeas corpus. The initial writ was granted, ordering the sheriff to appear and show by what authority the petitioner was held in custody, and to show cause, if any, why the prayer of petitioner should not be granted.

Richard H. Scott, Judge. Prior to statehood, proceedings for the adjudication of water appropriations from Little Horse Creek had been commenced and were pending in the district court for Laramie County. At the November, 1890, term the court ordered the cause to be transferred to the State board of control pursuant to the provisions of Section 47 of the act of December 33, 1890, regulating tire supervision of water.

Eeeoe to District Court for Laramie County, HoN. Bioh-aed H. Scott, Judge. The controversy in this case arose upon a petition for the distribution upon final settlement of the estate of Michael Powell, deceased, who had died intestate February 36, 1888, leaving neither a wife surviving him, nor a child of his blood.

Eeeoe to District Court of Albany County, HoN. M. C. Saueley, Judge. This ease was determined upon the pleadings, the facts-being fully stated by Clark, J., who delivered the opinion of the court. The plaintiff’s mortgage was and continued to be a lien upon the property up to the time of sale, prior and paramount to the lien of the defendant. Upon the sale of the property these liens attached in the same order to the proceeds.

This was an action in mandamus brought on the relation of Harry B. Henderson against Charles W. Burdick as State auditor, to require the issuance of a warrant in payment of the salary of relator as State examiner for the month of April, 1893. It was an amicable proceeding to determine whether or not there had been an appropriation by law of the amount of said salary sufficient to authorize the auditor to issue a warrant therefor when earned.

ORIGINAL ACTION in mandamus on tbe relation of A. A. Holcombe;, State veterinarian, to compel tbe auditor, Charles ~W. Burdick, to issue a warrant upon the State treasury for the salary of relator for the month of April, 1893, the auditor having declined to issue such warrant, on the ground that, admitting the claim for salary to be a just one, the second legislature had failed to make any appropriation therefor. The case was heard upon demurrer to petition.

IIoN. M. C. Saueley, Judge. The North Platte Milling & Elevator Co., a corporation, and the Wyoming National Bank'instituted certain actions in the district court of Albany County attacking as fraudulent and void a conveyance of real estate from Barnard J. Price to his wife, May E. Price, through the intervention of a third party, Jesse Converse, each, of whom was made a party defendant. The plaintiffs were judgment creditors of Barnard J. Price.

Eeroe to District Court of Carbon County, IioN. Jesse KNIGHT, Judge. This was an action brought by Elizabeth A. Barhwell against Eenimore Chatterton for the recovery of damages for alleged conversion of certain cattle. A motion for change of venue was presented by plaintiff and the same was granted, the amount of the undertaking being fixed by the court. No undertaking was filed. Defendant moved to dismiss the action for that reason.

Hopt. RichaRD H. Scott, Judge. Action by the State against the hoard of county commissioners of the county of Laramie for a balance alleged to be due upon the tax levy of the year 1888.

RichaRD H. Soott, Judge. Action by Samuel Atkinson, clerk of the district court of Laramie County, against the board of the county commissioners of the County of Laramie for the salary of such office for the quarter ending September 30,1891. There was a difference between the clerk and the board respecting the application of the law requiring the clerk to account for the fees of his office, to the fees collected in probate matters.

ORIGINAL PROCEEDING in mandamus, whereby H. B. Ijams, secretary of the board of bve stock commissioners, sought to require Charles W. Burdick, the state auditor, to issue a warrant for his salary as such secretary for the month of April, 1893, against the inspection fund provided for in the act approved January 8, 1891, creating the hoard of live stock commissioners. The case was heard upon demurrer to the petition.

Case from District Court of Sheridan County, HoN J. W. BlaKE, Judge, on reserved questions, which together with the facts' fully appear in the opinion of the court. In an action on a bail bond, the legality of the proceedings preliminary to arrest, is not relevant or material, when the arrest was under color of process. The legality of the arrest cannot be questioned. (People v. Brown, 59 Hun., 618; TJ.

Richard EL Soott, Judge. Action on a fire insurance policy. The facts are fully stated by Mr. Justice Clark, who delivered the opinion of the court. The petition is insufficient for failure to aver a subsisting contract of insurance at the time of the fire. The copy of the policy attached to the petition is no part of it, and cannot be referred to to supply essential omitted allegations. (Johnson v. Nome Ins. Co., 3 Wyo., 140; Larimore v. Wells, 29 0. St., 13; Memphis Med.

Hon. Richard H. Scott, Judge. This was an action brought by Edwin W. Hopkins against Charles F. Fisher and John M. Chadwick and Charles F. Fisher, administrators of the estate of Jehu J. Chadwick, deceased, upon a contract for repurchase of one hundred and fifty shares of stock of the North Crow Land & Cattle Company.

EiohaRD H^Scott, _ Judge. This was an action brought by George JI. Gilland against the Union Pacific Railway Company. Verdict and judgment for plaintiff. Defendant brings error. The nature of the case and the facts so far as material, are stated in the opinion. The presumption is that the company had plowed the fire guard in 1890 as required by law. The time for burning fire guard in 1891 had not elapsed at the time of the fire.

This was an original action in mandamus brought on the relation oí Louis Miller against Amos W. Barber, Secretary of State, to require the latter to countersign and affix the great seal of State to a commission issued by the Governor purporting to appoint said Miller to the office of fish commissioner. The case was heard upon demurrer to the answer. All the material facts are stated in the opinion. The duties of the Secretary of State are ministerial in their nature.

Hon. Richard H. Scott, Judge. Action on a fire insurance policy by G-us Kahn against tbe Traders Insurance Company. Verdict was for plaintiff.

Jesse Knight, Judge. This was an action brought hy Thomas E. Davis, as a resident taxpayer of Sweetwater county against the hoard of the county commissioners of Sweetwater county, to restrain the payment of a salary to Robert Smith, a justice of the peace of a precinct in Rock Springs. Judgment was for defendant and the plaintiff prosecuted error. The material facts appear fully stated in the opinion.

IIoN. Richard H. Scott, Judge. Action by Herman C. Rineker against Joel Ware Foster, as receiver of the Cheyenne National Bank, to recover tbe proceeds of a note left with the said bank for collection, and col-leeted by it before its insolvency. Tbe prayer of tbe petition was that the amount be declared a trust fund, and that tbe receiver be ordered to pay tbe same to tbe plaintiff.

J. W. Blake, Judge. C. E. Clements was convicted of peddling without a license in the town of Casper in violation of a town ordinance, and prosecuted error. The material facts are stated in the opinion. One who sells goods exclusively by sample is not a peddler, huckster, or an itinerant merchant., The town cannot by. ordinance extend themieaning of the terin peddler as used' in the statutes beyond its ordinary legal meaning.

Richard H. Scott, Judge. This was a suit brought by Truman B. Hicks, as trustee for the benefit of the bondholders of the Cheyenne Land and Live Stock Company, for the foreclosure of a certain deed of trust, executed by the said company to said Hicks and William W. Corlett, since deceased, to secure the payment of certain bonds of said corporation. The deed was executed on the 22nd day of October A. D. 1886, and recorded October 25th, 1886.

This was an original proceeding in the nature of quo war-ranto, on the relation of Warren Richardson to oust the respondent, Harry B; Henderson, from the office of state examiner, and to have relator declared entitled to said office. The facts are fully stated in the opinion. Section 6 of Chapter 84, Laws 1890-1891, authorized the appointment of relator. Henderson was appointed under a restrictive provision as to his time.

Jesse Knight, Judge. This was an action brought by William G. Eorney, individually and as administrator. of the estate of Mollie Eorney, deceased, and Jane P. Dillard, against Donald McPhail, to enjoin a diversion of water from a certain irrigating ditch known as the “Eorney Ditch Co. Ditch.” The State Board of Control on March 24, 1892, upon determining the priorities of water rights upon Jack Creek, caused to be issued to the Eorney Ditching Company a certificate of…