Volume 40 — South Dakota Reports

Hon. Robert B. Tripp, Judge. Action- by Kathleen 'Daugherty, against Samuel E. McFarland1 and another, to foreclose a mortgage given to secure performance of a contract for exchange of lands. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal.

Hbn. Tiiomas E. Boucic, Judge. Action by Ovidje Johnson', against W. F. Glasier and C. M. Peterson, to recover damages for personal injuries. From a judgment for plaintiff, and from an order denying a new trial, dedefendants appeal. (1) To point one of the opinion, Appellants cited; Dobbens v. M. K. & T. Ry. Co. 38 ERA 573. Respondent cited: Railroad1 Company v. State, 33 Md. 542, Graves v. Thomas 95 (I-nd.) 361.

- Hon. Alpha' :F»,. Orr, Judge. Action 'by G. A. Bingren, against -the W. B. Huffman Automobile Company, to recover for a- claimed balance of money due him. From a judgment for plaintiff, and from an order -denying a new trial, defendant appeals.

Hon. Levi McGee, Judge. Action by Gilbert E. Sweet, against E. Purintcn, to quiet title to realty, a half interest in which was sold by plaintiff to defendant. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals.

<p>1. Courts — Court Records — Filings, Clerk’s Duty re File Marks— Indorsement as Evidence, Whether Part of File.</p> <p>While it is the duty of every official who files a record to indorse thereon the usual filing marks, yet, unless made more by statute, such indorsement is hut evidence of facts therein stated, and is no part of the filing.</p> <p>2. Evidence — Papers Attached Together, Whether a Judgment Roll? —Presumption,</p> <p>When papers properly constituting a judgment roll are-found in the proper office so attached as to properly constitute a judgment roll, it will he presumed they were so attached for purpose of making up a judgment roll.</p> <p>3. Same — Judgment Roll — Papers Attached Together, Presumption re‘Making Roll “Immediately.”</p> <p>■ When such papers are so found attached together, it will he presumed that clerk complied with_ Code Civ. Proc., Sec. 319, and made up judgment roll “immediately after filing the judgment.”</p> <p>4. Same — Judgment Roll, Date if Indorsement, Presumption re Date of Making Up.</p> <p>There being an indorsement on -a judgment forming part of a judgment roll, showing time of filing of judgment, it will be presumed, until the contrary is shown, that judgment toll was made up on such date.</p> <p>5. Same — Judgment Roll, Date of Making Up — Separate Filing Marks as Evidence.</p> <p>Where it is undisputed that all papers, including the judgment, properly constituting judgment roll, were filed on or befora a certain date, being date of filing of judgment, it will be presumed, in absence of contrary proof, that judgment roll was made up on date of filing judgment.</p> <p>6. Judgments — Judgment Roll, Making Up of, Whether a Filing?</p> <p>Where all papers properly constituting judgment roll, were presumably made such roll on a certain date, it would without further action become a file of the clerk’s office.</p> <p>7. Same — Judgment Roll — Roll. Made by Attorney, Received by Clerk, Whether' a Filing.</p> <p>Where It clearly appears that papers constituting a judgment roll were made up as such by an attorney in the case, and, as made up, received by clerk and given a place among his office files, such receipt and placing thereof constituted a “filing” of such roll.</p> <p>8. Evidence — Judgment Roll, Date of File Marks by Successor Clerk, Evidence of, How Ear Conclusive.</p> <p>The mere: indorsement on judgment roll by successor in office of one who was clerk when judgment, was filed, of a statement that roll was filed on a date some two years later, cannot prevail against conclusive proof that roll had been on file months prior to that date.</p>

Hon. Alya E. Taylor, Judge. Action by William Soboniger and Augusta Schoniger, against Alma E. Eogan- and A. IT. -Maas, for cancellation of 'a contract for sale and conveyance of realty; defendant H. C. Anderson, intervening. From an order setting aside an order and judgment of dismissal of the action, and permitting defendant Anderson to intervene, plaintiffs appeal.

Hon. Alva E. Taylor, Judge. In the matter of the estate of William E. Stroup, deceased. From an - order of ■ the circuit court affirming an order of the county court, granting a motion to open a judgment disallowing a ■claim,- thé administratrix appeals. (2) To point two of the-opinion,--Appellant. cited-: Rev. Edition, v'ct. 3, American &” Eiig'.' Ency. of Law, page 329-30; Benedict v. Johnson, 4th S. D., 287; Levy v. Superior Court, 73 Pac. 417.

Hon. John F. Hughes, Judge. Action by ibhe Red Wing Sewer Pipe Company, a corporation!, agalihlsit .tlie City of Pierre, a municipal corporation, and others, and the National Bank of Commerce of Pierre. From a judgment for plaintiff, defendant bank appeals. (1) Under point one of the opinion, Respondent submitted that: Chap. 153, Laws 1905, repeals 'but in no manner amends, Sections 1346 to 1351 inclusive, Pol.

Hon. Robert B. Tripp, Judge. Action by Carolyn Andrews, against Elva Cornelius Andrews, for divorce. From a judgment in fav'or of plaintiff, and from an order denying a new trial, defendant appeals. (2) To point two of the opinion, Appellant cited: Duxstad v. Duxstad, 17 Wyo‘. 411 ; 100 P'ac. 112; Plumphrey v. Humphrey, .115 Mo.

Hon. J. H. Exou, Judge. Action by Minnie S. Boynton, against Frank Weller, for cancellation of a deed to realty, and for other relief. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Appellant cited: Tolerton & Stetson Co. v. Casperson 63 (S. D.) Ñ. W. 908, and cases cited; Eyon v. Bank 15 S. D. 400. Respondents cited: Sec. 303, Civ. Code; 39 Cyc. 112; Sutton v. Whetstone, 21 S. D. 347; 1x2 N. W. 850.

Hon. William Williamson, Judge. Action by Joseph D. Keller and another, against Joseph Garneaux, Sr., and another to enforce specific performance of a contract for ©ale of realty. From a decree for plaintiffs and' from an order denying a new trial, defendants appeal.

Hon. Joseph W. Jones, Judge. Upon application of Cahill & Redman, to the Board of Railroad Commissioners, said Board ordered that the Great Northern Railway Company, a corporation, installed and put into operation at a station a stockyards scale at Albee Station, and from the judgment of the Circuit Court, reversing the order of the Board, the State appeals.

Hon. Revi McGee, Judge. Action by Austa Kennedy, against A. F. Hasselstrom, to recover purchase pni-ce paid -by plaintiff fo-r certain personalty purchased- of defendant. From a judgment for plaintiff, and from an order denying a- new trial, defendant appeals. (i) To point one of the opinion, (subid, i), Appelant cited: Connor v. Henderson, 15 Mass., 319; Strong v. Strong 102 N. Y., 69.

Hon. John F. Hughes, Judge. Action by J. E. Gossard, against Carl C. Stevens, executor of W. A. Gossard, deceased. From a judgment for plaistifr, and from an order denying a new trial, defendant appeals. To point one of the opinion, Appellant cited: Hogsitt v. Edilis, 17 M'iich. 35; McDermott v. Carroll 11 S. D., 323, 77 NW. 579-

Bon John F. Hughes, Judge. Action by Fleta ÜVI. Sherwood, against Edward J. Hill. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals.

Hon. Lisvx Mc-Guu, Judge. Proceedings in'Habeas Corpus, by the State on the relation of Bertha Doll, against S. J. Godsey, Sheriff of Custer County, for release under a judgment of conviction of a misdemeanor by. the Circuit Court, entered upon appeal by defendant from Justice Court. Release denied, and relator appeals. Appellant cited: Code Civ. Proc., Secs. 244, 282, 284; Tn re People v. McCrory, 41 Cal. 458 on 461.

Hon. Joseph W. Jones, Judge. Action by F: M. Slagle and Company, and others, against the Elk Pe-in-t Independent Consolidated School District No. 3 of Union County, to recover for value of materials furnished -by plaintiffs to- contractors of defendant -school district. From judgments for plaintiffs, and from orders denying new trials, defendant appeals.

Hon. Robert P>. Tripp, Judge. , Action 'byr W. W. Bordwell, against Mission Hill Township, Yankton County, S. D., to recover damages folr personal injuries sustained by reason of a defective highway. From a judgment for plaintiff and from an order denying a new trial, defendant appeals. (2) To point two of the opinion, Appellant cited; • Cunningham v. Fair Haven, 43 Atl .1047. (3) To point three of the opinion, Appellant cited: Cunningham v. Fair Haven, 43 Atl. 1047.

Hon. Alva F. Taylor, Judge. Two proceedings. by John Dwyer and C. Dwyer, against the Chicago & .Northwestern Railway Company commenced before the Board of Railroad Commissioners,! for construction and maintenance by the defendant Railway Company, of' cattle guards and wing fences over its .right of way on Appellants’ farms.

<p>1. Appeal — Error—New Trial — Order Extending Time After Ten Bays, Authority For — Belay in Serving Transcript — Waiver of Error.</p> <p>Where, more than 10 days .after delivery of transcript, tribuí court made an order extending time in which to prepare- and serve transcript, etc., preparatory to moving for new trial, the point that such order was made after 10 days not having-been drawn to trial court’s attention at, or before hearing of' the motion, held, that the point that court was without authority to make such order was thereby waived, and will not be-reviewed by Supreme Court.</p> <p>2. Appeals — Error—New Trial — Conflicting Evidence, Effect — Rule-re. Biscretion.</p> <p>Where there is sharp conflict in evidence on material issue involved on trial, trial court did not abuse its discretion in granting new trial, under the rule that order will not be reversed unless abuse of discretion clearly appears.</p>

Hon, Frank B. Smith, Judge. Action by Albert Wolfgram, 'against E. E. Dill and others, to recover damages for fraud and deceit in connection with, an exchange of lands. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. (4) To point four of the opinion, Respondents .cited: Medh. on Agy. Sec. 797.

Carl G Sherwood, Judge. Pention for writ of prohibition, by the State of South Dakota on the relation of Isaac S. Isaacson, against Elliott A. Parker, Superintendent of Schools in and for Hamlin County,, S. D. From an order quashing -an alternative writ, The State-appeals. Appellant cited: Co-de Civ. Pro-c. Sec. 777; State ex rel' Cain v. T-oomcy (S. D.), 129 N. W., 563; Williams v. Lewis (Idaho), 54 Pac., 619. .

Hon, Levi McGee, Judge. The defendant, John Hayes was convicted of forgery in the second degree, and' from an order granting a motion- in arrest of judgment and discharging defendant, the state appealed (37 S. D. 530, 159 N. W. 108); which order was vacated with directions, whereupon defendant moved for a new trial; from the order granting which the state appeals. (3) To point three of the opinion Appellant cited: r Bish. Crim. Proc. (4th Ed.) Section 1268; Gillette Crim.

Hon. Levi McGee, Judge. Action by Archibald E. Wyatt and others, against the Meade County Bank -and others, to recover .possession of .a -deed to realty, and for damages; Clarence B. Harris being substituted as-sole defendant. From a judgment for plaintiff, and from an. order denying a new trial, defendant Harris appeals. (3) To ¡p'cíint three of the Opinion, Appellants, cited: Civ. Code, Sec. 2044, 11; XI. Am. & Eng.

Hon. Cart. G. Sherwood, Judge. Petition toy Bergetta Hansen, widow of Nils Hansen, deceased, against Walter. H. Hansen' aind others, for an order setting apart certain land to petitioner as a homestead. From that portion of the decree limiting ■ her right of possession and occupancy, petitioner appeals. Appellant -cited: Calmer v. Calmer, (N. D.) 106 N. W. 684.

Hon. Carr G. Sherwood, Judge. Action by Annie Canter, against G. G. Karterud, to recover u.p on a promissory mote. From an order sustaining a demurrer to the answer, defendant appeals. (i) To point one of the opinion, Appellant cited: 8 Cyc. 36; r6 Cyc. 615, 618, 619. Respondent cited: 8 Cyc. 66.

Appeal 'from Circuit Court, Lawrence Count)'. Lion. Alva E. Taylor, Judge Presiding. Action by the Black Hills Trust & Savings Bank, a cor poration, -against Mary E. Plunkett and Pames- J. Plunkett, as execute)r:¡ cf the last will and testament of Matt Plunkett, deceased', and others to recover upon a written contract, and from an order denying a new trial, separate appeals were taken by defendants Plunketts and by the other defendants.

Hon. JosjSpi-i H. Bottum, Judge. Action by Clement F. Porter, Jr., Receiver of the Independent Elevator Company, a corporation, against the Hallet & Carey Company, a ooaiporialtioo, to receiver oertain moneys claimeidi by plaintiff to have been wrongfully paid -by its manager to defendant corporation for use in board of trade speculations. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Appeal frican Circuit Court, Charles Mix Count}-. Hon. Robert B. Tripp, Judge. Addon -by Lewis E. Jordan, against Edward Schaefer, to quiet -title to plaintiff’s realty as a homestead. From an order' -overruling a demurrer to the ccm-plaint, defendant appeals. (i) To point one of the opinion, Appellant cited: Pol. Co-de Sec. 3215.

Original proceeding in Supreme Count. Application by plaintiff, Superior Dodge Degree of Honor, a corporation, to compel defendant, W. N. Van Camp-, as Commissioner of Insurance of the State of South Dakota, to renew plaintiff's certificate of authority to do business as a fraternal insurance organization. (2) To point two of the opinion, Defendant cited: Civ. Code Secs. 396, 407, 411.

Appeal- from Circuit Court, Minnehaha County, Hon. Joseph W. Jones, Judge. Action by Edward Peterson, against J. N. King and The King Land & Loan Company, to recover compensation for services as a “middle-man” in bringing about an exchange of properties between defendíante 'and ;a third party. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal.

Hon. John E. Hughes, Judge. Action by John Van Abel, against G. F. Wemimeriinig, for damages foiq -breach of -a realty sale contract, amcl for reformation of said contract. From a judgment for plaintiff, and from an order denying a new trial, 'defendant appeals. (1) To point one of the opinion, Appellant -cited: Huntly v. Holt, 59 Gem. 102, 21 Am. St. Rpit. 71.

<p>Appeal from Circuit Count, Tripp County. Hop. William Williamson, Judge.</p> <p>Action by J. I. Jansen, 'and1 Edward Hiaisch, co-partners, as Jansen & Hiaisch, again'st J. M. McNamara; ini which defend'anlt counterclaims. Prom a judgment far plaintiffs upon directed verdict, defendant appeals.</p> <p>(1) To .pdint one of the opinion, Respondent cited: State v. Bulrns 25, S. D. 368; 2, Am. & Eng. Enel, of Practice, 814; North Star Boot i& Shoe Go. v. Stebbins, 3, S'. E>., 540.</p> <p>(2) T,o point two of the opinion, Appellant cited: Equitable L'oan & Security Company v. H. L. Lewman, 3 L. R. A. N. S. 879; Boyd v. Heifer, 77 Pac., 953.</p>

Hon. Alva E. Taylor, Judge. Action by Ellen Gelienbeck, against tine city of Mobridge, to recover for pen Eternal injury alleged to have been- received by plaintiff from falling into a hole in a sidewalk. From a judgment for plain-tiff, and, from an order denying a new trial, defendant appeals. (3) To poi-nlt three of the opinion, Appellant cited: 28 Cy-c. 1353, 1388, 1390, and note 20.

<p>Appeal from Circuit Court, Custer County. Hon. Devi McGee, Judge.</p> <p>Petition by the State of South Dakota on the relation of P>ert Woodcock, against John Ohitty, A. Montgomery and! D. Carrigan, as ¡the Board of County Commissioners' of Custer County, South Dakota, Norma Connor .as County Superintendent of Schools of said county, and W. E. Eink as County Auditor of said county, for a writ of certiorari directed to' said board, said county supermtendtenit, and said oou'nty auditor, ■commanding them to certify certain proceedings, for creation of separate school districts, to the Circuit Count of Custer County, etc.; from a judgment of winch court, following an order finding that said commissioners and superintendent had exceeded their authority, andi that s’aiid1 proceedings were without legal effect, defendants appeal.</p> <p>• (2) To point two of the opinion, Appellants cited: Civil Ood'e, Secs. 754, 760; State Eix. Rel. Express Co. v. State Board 3 S. D. 33S.</p> <p>(3) To point three of the opinion, Appellants cited: Jacobs v. Board’, 100 Gal. 121-123; 34 Bac. 630-633:</p>

ITon. Thomas L. Bouci-c, Judge. Action -by Rose B. Saver, .against Bred N. Lee, to recover a -money judgment. Brom an order extending time within, which plaintiff might -serve andi file notice of intention to more for a new trial and to cause the record to be settled, defendant appeals.

Plan. John E. Hughes, Judge. The defendían!, Joshua Guffey,, waisi do-nyidbed of the crime of lairceny, amid he appeals. (1) To point one -of the opinion, Appellant aited-: Gacfe: Giv. Pi-oc. Secs. 292, 257. (2) To p'ainit two of the opinion, Appellant cited: Biranltley v. State, (Ga.) 41 S. E. 695; People v. Murray, (Mich.) 40 N. W. 29; 12 Currant Law, p. 80; Blashfield on Instructions, Sec. 109.

- Hon. Frank B. Smith, Judge. Action by tire Uniion Savings Association, a corporation, against R. H. Somers, a9 'administrator of the estate of John Beirglund, deceased, to recover upon .a claim against said estate. From a judgment for 'defendant, plaintiff appeals. (1) To point one of the opinion., Appellant cited: Wise v. Williams (Oal.) 25 Pac. 1064. (2) To: point two of the opinion, Appellant cited: Prob.

Appeal fnoro Gircuit Gciuir-t, Brown County. Han. Thomas X- Boucic, Judigie. Action by Jota W. M-cAlphiin., agiainsit H. M. B'-aird, to recover damages against -defiend'anlt for debau'dhing -p-lainitiif’is wife. From an .ardeir overruling- a demurrer to the complaint, defend_ant appeals.

Hon. Alva E-Taylor, Judge. Action by George Milshler, against Peter C. Peterson, to restrain defendant from constructing certain tiled ditclies. From a judgment foil* plaintiff, and from -an order denying a new trial, d'efenidtanlt appeals. Appellant cited: Alslalcer v. Peterson, (S. D.) 141 N. W. 391; XVI Am. & Eng.

Hon. Carl G. Sherwood, Judge. Action by Stanley Bolluck, against the Minneapolis & St. Louis Raii-lroald Golmphny, to recover for 'damages for personal injury. From a judgment for plaintiff, -and from an order denying a ruew trial, defendant lappeial©.

<p>1. Mandamus — Quashing Petition and Writ — Affidavit, As Basis— Petition, As Affidavit.</p> <p>A motion to quash a petition for writ of mandamus and the alternative writ or ground that writ was not issued upon affidavit, is untenable; since the verified petition should be treated as an affidavit for -purposes of such action; that a written declaration, properly sworn to, may constitute an affidavit, even though in form of an ordinary pleading.</p> <p>2. Drainage — District Assessment, Mandamus to Enforce — Petition,, Sufficiency.</p> <p>A filed petition in an action for mandamus to compel proper county officials to certify a money assessment of benefits in relation to a specified drainage district, alleging the establishment of the drainage; district, that a contract was let to construct the; drain( and was assigned to drainage company, that the county commissioners issued to said company, prior to completion of the drain, for services performed by it in constructing the drain, duly executed warrants under seal in about $8000, which were payable out of any unappropriated funds belonging to ditch fund of said district, that said warrants were assigned by said drainage company to petitioner,, that no money assessment for benefits has been certified 'by county commissioners to county treasurer for collection wherewith to create a fund for payment of the warrants, and that the commissioners although requested have refused to issue the warrants, states facts sufficient to authorize an alternative writ.</p> <p>3. Actions — Drainage Assessment, Enforcement of — Ordinary Action, or Mandamus, As Remedy — Statute—County, County Commissioners, Liability of.</p> <p>In an action against the county auditor, county treasurer and Board of -County Commissioners, to compel them to certify a money assessment of benefits concerning an established drainage district, held, that the defense that the rights of the parties should have been determined by a judgment in an ordinary action, and not in first instance by mandamus, is untenable; since under Laws 19 07 Ch. 134, as amended by Laws 1909, Ch. 102, relating to drainage and drainage assessments, the only method provided for creation of a fund for payment of warrants issued, thereunder in payment for services in constructing drains, is a money assessment for benefits, certified by board of county commissioners for collection to county treasurer; that mandamus to compel such action, is an appropriate remedy; that no- judgment could be obtained against the county, it not being a party to the drainage procedure; nor against the board of county commissioners or the individual members thereof as they act merely in an official capacity; nor could suit be maintained against county tre-asurer to pay such warrants without a special fund first created for that purpose.</p> <p>4. Drainage — Assessment for Benefits, Mandamus to Enforce>— Completion of Ditch as Condition Precedent to Mandamus, .Necessity — Statute.</p> <p>Under Laws 19 07, Ch. 134, as amended by Laws 1909, Ch. 102, Secs. 7-11, the county hoard are authorized to make assessments prior to completion and during progress of construction of drain, in their discretion; and if contractors are required and agree to accept warrants for services, assessments need not be made until completion of the work; hence^ held, that completion of the drainage ditch is not a condition precedent to the right of one holding warrants issued for services in constructing a drain, to maintain mandamus to compel certification by county commissioners to county treasurer of a money assessment of benefits in relation to a drainage ditch proceeding.</p> <p>5. Same — Benefit Assessments, During Ditch Construction, Or After Completion — Board’s Discretion — Evidence, Sufficiency.</p> <p>Under Laws 1907, Ch. 134, a£ amended by Laws 1909, C'h. 102, Secs. 7-11, relating to construction of and payment for drainage ditches, it is discretionary with county hoard as to whether assessments of benefits for purpose of paying for services in constructing the ditch> should he made during progress of the work prior to its completion, or whether one. assessment for the whole cost and expense thereof should be made after its completion.</p> <p>G¡. Same — Assessment of Benefits, Enforcement of — Completion of Ditch, Evidence Concerning, Sufficiency.</p> <p>In a proceeding by mandamus to enforce certification by defendants county auditor and county commissioners, of a money assessment of benefits in relation to construction of a ditch in a drainage district, held, that the evidence of record showed construction and completion of the ditch on a certain date, and was so considered by the county hoard; it. appearing that the hoard had made an assessment to be signed, certified to and collected by county treasurer, hut that same never was certified, and that one purpose of the suit is to compel certification; which assessment contained all specifications concerning description of property, names of owners, amount of assessment, and date when delinquent etc.; that after completion of the ditch, an injunction suit was begun by certain property owners against county board, county auditor and treasurer to restrain defendants from spreading the assessment of record and from collecting same, and to have judicially declared void and illegal all proceedings concerning construction of the ditch, in which suit defendants by answer alleged that said proceedings were legal and valid, and that defendants therein were authorized to certify as a. tax against the lands the amounts expended in construction of the ditch; findings in judgment therein being in favor of defendants, and that the ditch had been substantially completed when said suit was begun.</p> <p>7. Same — Assessment of Benefits, Enforcement by Mandamus— Prior Injunction to Restrain, Judgment in for Defendants— Judgment Roll as Evidence in Mandamus Action.</p> <p>In an action of mandamus against county auditor, treasurer, and county commissioners, to compel certification of a money assessment of benefits in relation to a drainage ditch construction proceeding, held that the judgment roll in a prior injunction suit by owners of realty in a drainage district, against said defendants, to enjoin spreading of record a drainage assessment, and to have judicially declared void all proceedings concerning construction of said ditch, in which suit findings and judgment were in favor of defendants, was competent evidence to sustain said findings under the issues in the mandamus case; that while such evidence was not conclusive, nor was said judgment res judicata against the defendants therein, the same was prima facie evidence in nature of quasi judicial admissions from which all consequential incidents may be drawn that naturally flow from the acts of said officers taken in the injunction suit; and from said acts as shown by said judgment roll, it might bei inferred that the county board, in exercise of statutory discretion elected to and did make a valid money assessment for such -benefits; therefore findings in the present suit, based upon said judgment roll, that such assessment and a levy thereunder had been made, and that the drainage ditch had been substantially completed when injunction suit was begun, is supported, by competent evidence.</p> <p>8. Evidence — Drainage Ditch Construction Contract, Assignment of — 'County Auditor’s Records, Failure of to Show Transfer— Oral Evidence}, Admissibility.</p> <p>Where county auditor’s record or minutes failed to show assignment of a contract executed in course of construction of a drainage ditch under statutory proceedings, held, that oral evidence was competent to show such transfer was made with knowledge and consent of county board; this in view of the fact that the warrants issued in payment for services in construction of the ditch were issued ’by county board and made -payable to the alleged assignee of said contract; it being the general rule that oral evidence, while not permissable to contradict or vary such official records or minutes, yet where official acts have been performed and records of such acts have been omitted, such omission may be shown by oral testimonyi in absence of a prohibitory statute.</p>

<p>Appeal from Circuit Court, Brown Ooumty. Hon. Thomas L. Bouck, Judge.</p> <p>Action by Emma A. Oranmer, against D. E. Christian and others, to quiet title to a diity lot, amid for 'cancelation of a special assessment deed and lien. From a judgment for defendant, and from an odder denying a new trial, plaintiff appeals.</p> <p>(2) To point two of -the opinion, Appelant cited: Kirby v. Waitterman, 17 S. D. 314, 96 N. W. 129.</p>

<p>Appeal froto Circuit Court, Spink County. Hon. Alva E. Taylor, Juidlgie.</p> <p>On rehearing.</p>

Court, Hamlin County. Hero. Carr G. Si-iErwood, Judge. In -the matter of Maria Hendrickson, am allegad imocimpetent. From a judgment of the circuit court reversing an order of t!h.e ■county 'Court denying- a motion to quash service of a citation and dismiss' proceeding's for want or jurisdiction over the person of the alleged 'Incompetent, Minnie K. Wayryuen and1 another appeal. (1) To point ¡one of the opinion, Appellants citad: Prob. ■Code, Sec. 412.

Hon. Cart, G. Sherwood, Judge, Action by the State of South Dakota on the relation of A. J. Haugan, State’s Attorney of Coding-tom County, S. D., against E. L. Denis, to enjoin continued operation of a hotel of wtódli dlef-endlanlb was proprietor. Enom a judgment for plaintiff, and from am order denying -a new trial, defendant appeals. (i) To point one of the opinion, Appellant- -cited: Cade .Oiv.

Hon. Cari, G. Sherwood, Judge. ’Action by -the Putheran Hospital Association of South Dakota, ¿ti incorporated association), against D. Baker, as treasurer oif the County of Codington, South Dakota toi recover -certain taxes lexaad and assessed against plaintiff’s .property and! paid under .protest. From- -a judgment for defendant, an!d from 'an Odder denying a new trial, plaintiff appeal®. (i) To tpoint -one -of the opinion, Appellant cited: Const.

' Appeal farra Circuit Court, Beadle County. Han. Alva E. Taylor, Judge. ' Action by A. C. Kars-ten, against D. O. Root, to recover upon an account for merchandise sold defendant; defendant counterclaiming. Erom a judgment for defendant, and from an order denying a new trial, iplainlbiff aipipieall’s. (2) To point two of the opinion, Appellant cited: Civ. Oodle, Seos>. 2293, 2329; Cincinnati Gas Illuninafting- Company v. Western S. L. Oo., 14 Sup. Ot.

Boe. Cari, G. Sherwood, Judge. Action -by Elizabeth Abernathy, against Lewis Hunt and others, The First National Bank of Elk Point et al interveners, to compel -defendant Ethel H-un)f to convey title to certain lands, and for cameeM>stioin of mortgages placed thereon- by defendants Ethel and Lewie Hunt.

Hon. Frank B. .SmiTi-i, Judge. Action by Jamies D. Carrol, against AV. A. Fowler and others, to determine adverse ownership and claim's to realty. From a judgment for defendant Fowler, and from an order 'denying a new trial, plaintiff appeal's. (1) To point one of the opinion, Appellant efited: Gibson v. Smith 24 S. D. 514. Respondent cited: Pol.

Hora. Frank B. Smith, Judge. Action by A. C. Wlútbeck, against J. R. McCtenaha/n and' otters, ¡tía receiver upon ,ah indemnity bond. From an order sustaining1 a 'demurirer to the compl'alint, plaintiff appeals. (1) To point one of the opinion, Appellant cited1: Walton v. Hallywtoloidi, (Midi.) n N. W. 209; Clark Implement Company v. Wadden, 34 S. D. .550; Curtis v. Whitney, 80 U. S’. 68, 20 L. ed. 513.

lion. Cari, G. Si-dSRWOOD, Judge. Action by 'EX. M. Anderson, a minor, by Andy E. Eoley, 'as guardian ad liten, against Chandes Freeman, for pos'session of an automobile, and far 'damages for its 'detention'. From, a judgment for (plaintiff, and from an order denying a new trial, 'defendant 'appeals.

<p>1. State Securities -Commission. — Certiorari—Assumption, of Authority to lácense Investment -Company, Effect, re Statute Governing Building Association.</p> <p>In a certiorari proceeding to review action of State Securities Commission in making an order requiring, as conditional precedent to plaintiff’s continuance in business as an investment company, held, that by assuming authority to grant such permit if securities are deposited, the Commission conceded that plaintiff’s business does not bring it within provisions óf Laws 1915, Cfi. 108, regulatory of ‘building and loan associations and savings associations.</p> <p>2. State Securities Commission — Jurisdiction to Require Deposits as Condition to Granting Business Permit to Investment Company — Statute.</p> <p>Tbe State Securities Commission, is without jurisdiction to require deposit of securities as a condition precedent to granting to a concern whose business is substantially that of an investment company, a permit to do business within this state; construing Laws 1915, Ch. 27 5, conferring upon State Securities Commission authority to examine statements and documents filed in its office hy any investment company, etc., and to disapprove of the sale of its proposed stocks, etc.</p> <p>McCoy, J., and Smith, J., concurring specially.</p>

Walworth County. Han. Joseph PI. Bottom, Judge. n Action 'by Citizens State Bank of Mobridge, a corporation, aga-inist P. B. Rosenberger, and the Interstate Surety Company, a corporation, to recover upon ¡a doinlbract of indemnity. From ■an order overruling a idemurreir to the complaint, defendants appeal.

Appeal fotón Circuit Court, Sanborn County. Hon. Frank B. Smith, Judge. Action by Abstain Jacquish, against William M. Deming and others, to .determine relative nights to the tmadministéred estate of a decedent, for an .accounting, and fiar -other relief. From an order sustaining a ‘demurrer to the complaint, plaintiff appeals. (4) To point four of -the opinion, Appellant cited: Prob.

Hon. Thomas L. Bouck, Judge. Action by Julius RosíholK!, against J. R. Wotrlpb, to recover ■•upon dbftendlant’s written promise to pay mooey. From a judgment for plaintiff, and from am olrdler denying a mew trial, defendant laipipeiail-s. To ¡pcáolt one of tille opinion, Appellant cited: Vol. 3, R. C. L., Sec. 139; South Dakota Centra! Railway Co. v. Smith, 116 N. W., 1120 (S’. D.).

'H'om. Tt-iomas 1/. Bouck, Judge. Action' by Jamies H. 'Welch, against E. F. McCoy and Anna E. McCoy, fo quiet title to realty. From an order dismissing the action, plaintiff appeal®. (1) To point on© of the opinlbn;, Appellant cited1: Jacot v. Martks, 57 N. Y. S. 904; Serverin v. Hopper, 76 N. Y. S. 976; Warren v. Stew, 43 Me. 429; Lee v. Brush, 3 Code Rep. 165; Lawyers Co. Op. P’uib. Oo. v. Gordon, 73 S. W. 155. Respondent cited: 14 Cyc. 447; James v. Shea, 28 Hun.

Hon. Levi McGee, Judge. Action by Robert McA'dam and W. F. McAdiam, copartners as Me A'dam Company, against John Vallenthime and Ernest Bellernare, copartners as Bellemare & Vallentoiirae, and Ernest Belle-mare, to recover for value loif goods sold by plaintiffs to defendants. From a judgment for plaintiffs, and from an order denying a new trial, defendant Ernest Bellemare appeals.

Hbm. Alva E. Taylor, Judge. ‘ Action by James S. Carpenter, against James Murphy, for specific performance of a contract to convey realty. From a judgment for defendlaot, and' from an order denying a new trial, plaintiff appeals.

’Hon. Alpha F. Orr, Judge. Action by I. H. Doltken, against the W. L. Huffman Automobile Company, to recover plaintiff’s salary and commissions for his services as employee of defenldianit. From a judgment for plaintiff, and- from an order denying a new trial, defendant appeals. (2) To point two of itihie opinion, Appellant cited1: Civ. Code, Secs. 1477, 1478, 1479; Crone Miller v. Duluth Superior Milling Company, (Wis.), 114 N. W. 432, 433; Dodson Braun Mfg.

Aipipaail from Circuit Court, Clay ‘County. Hon. Robert B. Tripp, Judge. Action by M. D. Thompson, against Edwand M. Hart, as administrator of the estate of Erick Nylien, deceased, P. J. Bowman administrator of the estate of Christina Nylen, deceased, and others, to foreclose a mortgage on realty. From a judgment for plaintiff, amid' flrom an order denying a new trial, defendants appeal.

Hon. Robert B. Tripp, Judge. Action by James Roane, against Hutchinson County, to recover .for medical services performed in relief of certain indigent sick. From an order overruling a demurrer to -the complaint, defendant appeals. (1) To (point one of the opinion, Appellant cited: M'oon v. Board, 97 Ind. 176; H'aml'in County v. Clark County, 1 S. D. 131, 43 N. W. 329; Miller v. Somerset, 14 Mass. 396; Kiifctredge v. Newbury, 14 Mass. 448.

County. Horn. John E. Hughes, Jud'ge. A'ctfon .by J. L. Lockhart, trustee ini bankruptcy of Thlomas Edge, bankrupt, against Mary L. Edge amid John S. Edge, to set aside a 'sale of personalty. Erom a judgment for defendants, and from an order denying .a now trial, plaintiff appeals. (l) To plolint one o!f the opinion, Respondent 'cited: West-era Mining Supply Co', v. Quinn et al (Mont.) 20 Anno.. Cas. 173; 'and notes; McIntosh, v. Smiley, 17 S. W. 979.

<p>Appeal from Circuit ‘Court, Beiaclle County. Hon. Alva E. Taylor, Judge.</p> <p>Action by the Virgil State Bank, against S. M. Miller, to receiver for moneys advanced upon certain checks alleged ito- have been1 drawn by defendant by an alleged .agent. From a judgment foir defendant, and from an1 order denying a' new trial, plaintiff appeals.</p>

Hon. Thomas I,. Bouck, Judge. Action .by Katherine Stianson and others, against Stian Stianson, to establish- in -defendant a trust in realty. From u judgment for plaintiff, and from an order -denying a new trial, defendant appeals. (3) To point three of the opinion, Appellant cited!: Stevenson v. Boyd, (Cal.), 19 R. R. A., N. S., 525; 11 A. & E. En-c. Raw,. 2d Ed., 1148. (4) To point four of the opinion, Respondents cited: De-Ooudhle -v. 'Savetier, 8 Am.

Hon. Thomas D. Action- by Albert Leggett, against Frank Dlitoeen, to recover damages for assault and battery. From' a judgment for plaintiff, anld from an order denying a new trial, defendant -appeals. (4) To point four ;oif the opinion, Appellant cited: 13 Cyc. 112.

<p>Appeal from Circuit Court, Walworth County. Hon. Joseph H. Bottum, Judge.</p> <p>On rehearing.</p>

Hon. Carl G. Sherwood, Judge. Action by Peter Hallen, against W. B.' Martin; Jr., to. recover damages for fraud and deceit ini exchange of realty. From a judgment for plaintiff, and from 'am order denying a new trial, def-end!ant appeals; plaintiff mloiving toi dismiss the appeal. (i) To point once -of the opinion, Respondent cited: 20 Cyc. 136, 132-4; Merberry v. Watson, (Miasis.) 39 Am1.

Hon. Alpha F. Orr, Judge. The defendant, Harry Brotwn, -was' convicted! of having in. his possession- intoxicating liquors in'a public place, arad he appeals. (2) To point two of the -opinion, Appellant cited; State v. Becker, 3 S. D. 29; Messenger v. -State (Neb.) 41, N. W. 638; State v. Young, 47 Ind. 150. (3) To point three of the ¡opinion, Respondent -cited: Ex parte Crame, 27 Ida. 671, 151 Pac. 1006.

Action hy .the Union Investment Company, against Martin Schonelbaium and 'Others. From the judgment rendered, defendants appeal. Upon matron to dismiss' appeal. Respondent «submitted' that: Where a statute regulating or changing or taking away the right of appeal contains no- reservations or exceptions as to existing cases it is «retroactive; citing: McClain v. Williams, 10 S- D. 332; 73 N. W., 72; 43 L. R. A., 287; Rafferty v. Shinn, 38- Ohio, State 46.

<p>Appeal from Circuit Court, Davison County. Hon. Eranic B. Smiti-i, Judge.</p> <p>Action by William. Li-ebs'chwager, against George Teesdale and another. From an order in- plaintifFs favor, defendants- appeal. ,</p>

Hon. Alva E. Taylor, Judge. The defendant, Glare S. Layamon, w;ais convicted' of' the ■crime of selling intoxicating liquor to be used as a beverage, and1 ilie appeals. (1) To point one of the opinion, Appellant cited: .Bishop i New Criminal Procedure, Sec. 587; State v. PischeR (Neb.) 20 N. W. 848; State v. Mudie, 22 S. D. 41, 115 N; W. '107. Respondent -cited: State v. Bradley, 15 S. D. 148, 87 N. W. 950; 23 Cyc. 218; note 99.

. Hon. Prank B. Smith, Judge. The defendant, Joe Eddy, was convicted of the crime of ' seduction of a, widow under promise off marriage, and he appeals. (2) To' point two of the opinion, Appellant cited: State v. Patterson 57 Am.

Hon. Robert B. Tripr, Judge. Action by Qhlarles Kirk, against E. F. Thompson, to recover upon a contract for -digging a well; defendant counterclaiming. (From an order' denying a new- trial, defendant appeals. (i) To point one of the opinion, Appellant cited': El diridge v. Eininegar, 105, Pac. 334; Hook, et'alv. Orowe, 100 Mame, 399; Gardner v. Alien, 41 A. M. Dec. 45, and notes cited; Mechem on Agy., Sec. 773.

Hon. Robert B. Tripp, Judge. Action -by Cámbenme Slteirmhagien, against Eouiiis Kozel and A1 Sdott, to recover d rages for' injury resulting from a tort. Firfokn a judgment for plaintiff, and from am order granting a new trial, plaiinitiff appeals. (2) To point two of the opinion, Appellant cited: Watson v. Dil'ts, (la.) 89 N. W. 1068; Hfcliey v. Walsh, 91 Mr. App. 4; Baltimore & O. Ry.

Hon. -Robert B. Tripp, Judge. Action by Tena Norman, against Certie Miller to recover money upon eoobralct. From- an order granting defendant a new trial after judgment for -plaintiff, plaintiff -appeals,. (4) To point four of the opinion, Appellant cited: 27 R. R. A. (N. S.), page 707; Dan Dyke v. Daivi's, 2 ME'dh. 145; Clmffee v. Chaffee, Midh., 163 N. W. 879. Respondent cited: Civ.

Hon. L. L. Fwjegur, Judge. Action by J. E. 'Stanley, against Erad Pilfcer, for specific performance of a -conitir-aat off sale eof reality, arid- for alternative relief in recovery back off part punchase mloiney. From a money judgment for plaintiff, and frolmi an oaldlelr dienyiing a new ibniial, (defienidamt appeal®. (i) To polint one off (lie opinion, Appellant cited1: C'i'ty off Garden v. Merchants & Farmers! Nat. Blank, 6o Pac. 823, 824, 8 Kan. App. 785.

Appeal frota Circuit Court, HamMni 'County: Hon. Cari, G-Sherwood, Judge. Proceeding in mandamius ¡by Hannah Aiderson, aagikist Ben Binuflaifc, as Sheriff olf Hamlin Cohn'ty, to recovar -possession of alleged' exempt property of .plaintiff’s husband from defendant, who heldl same under attachment. From, a judgment granting a peremptory writ commanding Idlefanidlanit to deliver the property to plaintiff, defendant appeals.

Appeal ■ from Circuit Court, McCook Counity. Hon. Joseph W. Jones, Judge. Aotion by (the Tri-County Mutual Telephone Company, a corporation, against the Bridgewater Electric Power 'Company, a Corporation, for am injunction against operation by defendant Of its .electric power transmissiiotu plant in interference with plaintiffs telephone line.

Hon. RobErt B. Tripp, Judge. In thie Matter of the Estate of Teatske Wyniea, deceased. The 'County 'Court havfing by decree of disfeributiton, affirmed by the Circtdt Count upon appeal ¡therefrom1, adjudged that under testatrix’©'will her property was devised to one of her sons upon condition thialb he pay bequests, etc., the other heirs appeal from said judgment 'and decree.

Hon. Raymond E. Dirrman, Judge. The defendant, William ■ Wilson, .was oonvilctedl of the crime ■of rape, and he appeals. (i)To pioirut one of the opinion, Appellant cited: Code Gnim. Free. Sacs. 225, 229, 230, 569; Stale v. Syisinger, 25 S. D'. no, 125 N. W. 879; State v. Pennington, 41 W. Va. 601, 23 S. E. 9x8; Conrad v. State, 65 Ark. 559, 47 S. W. 628; Arrington v. Co., 87 Va. 96, 12 S. E. 224, 10 L. R. A. 242.

Appeal fom Circuit Court, Lyman Oounity. Hon. William Williamson, Judge. Action by H. A. Hul'sether, against John W. Peter© and others, to /foreclose a realty mortgage. Prom ia judgment for plaintiff ,and from an order denying a new trial, defendants appeal. (3) To point three of the opinion, Appellants oited: Orfsby v. Johnson, 24 S. D. 494, 124 S. W. 436; Guthrie v. Field, L. R. A. (U. S.) 326 (Ran.) -and oases in note; McClearey v. Wakefield, 2 L. R. A. 529.

Appeal f'rtelm Circuit Court, 'Spink County. Hon. Alva E. Taylor, Judge. Action by J. D. Fargo -and' another, against Anna Norton Schraudfenbach. From an order denying a motion for change of venue, defendant appeal's.

Hon. Frank W. Smith, Judge. • Action by HI. T. Frolst, againisit E. E. King, upon a building contrató. Erom a judgment for plaintiff, and' .from an order denying a new trial!, defendían! .appeal®.

Hon. Frank B. Smith, Judge. Action' by Paul I. MuSchelrwiicz, against Chantes D: Tidrick, upon .promissory notes. From a judgment for plaintiff, and from an order denying a new trial, 'defendant appeals.

Hon. Alva E. Taylor, Judge;. Action by J. L. Sanfcey, against the United Mercantile Agency and Ered H. Cutting, to recover damages' for false rep-r-esentaitions concerning corporate stock purchased-. From a judgment for plaintiff, and from' am order denying a new- trial, defendant Cutting appeals-. ' (2) To point two of thie opinion, Appellant cited1: Civ.

Original application in the Supreme Court, by the National Co-Operative Earm Doan (Company, a South Diakoba corporation, to John Hirn-ing, Clarence C. Caldwell, and W. N. Van Camp, as the State Securities Commission, and D. W. Henderson., as Secretary o'f siuob Commission, for a license to sell its corporate stock within this State. The Commission having made an order denying said application, plaintiff ¡brings- -certiorari.

Atppea! from Circuit Court, Davügom Gouruty. Hicin. Erank B. Smith, Judge. Proceeding's in the Matter of Leonhard Loevinger, deceased, on petition of Moritz Loevinger for an order of county court to correct a final decree of distribution, and to .recover a bequest. From a judgment of the circuit court affirming an amended final decree of the county court, 'Correcting nuns ipro tunc said final decree, Moritz Loevinger appeals!

Appeal fiiolm Circuit Court, Brule ^County1. Hlon. Frank B. Smith, Juidge. Action by Guy Kelley, as administrator oif the estate of Peter iB. Dlirks, 'deceased, against 'Suzanne C. Dirks, to recover mmey, ‘wagered upon am election 'by (her husband, and' turned aver ta her by stakeholder. From 'an order overruling demurrer toi the complaint, 'defendant: appeals.

Hion. William Williamson, Judge. Action by Christian Beiler, against Leonard E. Taylor and another, for specific performance oif a realty sale contract. Eromi a judgment for plaintiff, and from, an order denying a new trial, defendants appeal.

Hon. Alva E. Taylor, Judge. Action- by Carl C. Nbrdgren-, against tbe Oldham Ruira-1 Telephone Company, to recover upon- (contract for -construction of a telephone line, etc. From a judgment in his favor for certain relief, and! frota an1 order denying a new trial, plaintiff appeals-. (4) To point fo-ur of the Opinion', Respondent oited: 10 ■Cyc. 590; Thompson on Corporations, Sec. 4389; First National Bank v. Keenan, 12 S'.

Hbn. Thomas L. Bouck, Judge. In -tire matter of the estate of R. R. Roberts. Erom an order reversing allowance of -a oliaiim by ■Edmund P. Alien, Re1■cei-ver of the O. W. Kerr Company, plaintiff appeals..

Hon; Pevi McGee, Judge. • ' ' ' • -' Action 'by Gustav Fdenuip, aaginst C. P. Gordon, to 'recover; upon contract. From a judgment for defendant upon his counterclaim, and' from an '-'Her denying plaintiff’s' motion for''directed ■verdict denying tire dOdiniterclaim,; (plaintiff appeals.

Hon. Thomas L. Bouck, Judge. Action by Bad L. 'Sltooe, administrator of the estate of Will G. Boyd, and others as heirs, against A. E. Leavitt amid another, for foreclosure umidler a contract :of sale of realty. From a judgment for plaintiffs, 'and from an order denying- a new trial, defendant Leaivlitt appeals. (1) To point one of the opinioim, Appellant cited': Sec. 55, Oha/p. 2, Title 14, Civ. Code; Art. 2, Chap-. 28 of Part 1, Code Civ. Phoic.; Sec. 673, Cade Civ.

H'on. Joseph W. Jones, Judge. Action by toe Independent Harvester Company, against Gilbert E. Lee, to recover on promissory notes. From a judgment for defendant, .and from an order denying plaintiff’s motion for directed vendiict, plaintiff appeals. Appellant dted, re rescission;' Grymes v. 'Sanders, 93 U. S., 55, 63; 23 L. Ed. 798, 802; Helm v. Wright, Coto., 168, Pac. 36; 6 R. C. L. 935. ' ■

Horn. Alva E. Taylor, Judge. Actilani by Pierre & Et. Hierre ’ Bridge; 'Railway Company, against Oscar E. Stuart, County Treasurer of Stanley County, and Ebrt P'ierre Independent School1 District, to recover back certain taxes paid by .plaintiff, antd. to annual certain, tax proceedings. Enoimi a judgment for .plaintiff, and! perpetually enjoying defendants', etc., andl from- an order denying 'a new trial, defendants appeal.

Bom L. E. Waggoner, Judge, Pro Tem,. Action hy W. N. Gilbert, against Frank Hardii-mon, to recover damages for injury to his automobile. From, a judgment for dte'fenid'amt, and from1 an order denying a new 'trial, plaintiff appeals. (i) To point one of the opinion, Respondent oiled: 40 Cy'c. 470-1.

Hon. Joseph W-. Jones, Judge. Action, by Western Town Lot Company, against Richard F. Pettigrew and others, to' quiet title, toi realty. From a judgment for plaintiff, andi from an order denying a new trial,' defendants appeal.

H-on. Joseph H. Bottum, Judge. Action by tibe G. H-eileman- Brewing Company, a corporation, against L. E. Pierce amid others. From an order adverse to him, defendant P'ierce appeals.

it 'Court, Day Oounty. Hon. Thomas L. Bouck, Judge. Action' by Elliott Supply Company, against A. Ross, to recover for purchase price of a consignment of merchandise. From a judgment for 'defendant, and- from an order denying a new trial, plaintiff appeals. Appellant cited: Jones on Evidence, 2d Ed., p. 446: Mc-Quaid v. Ross, (Wis.), 46 N. W. 892; Jones v. Keefe, (Wis.), 150 N. W. 954. ' Respondent cited!: W. U. Tel. Co. v. Aim. Bell Tel. Co-. 103 Fed. 684.

Hon. Carr G. Sherwood, Judge. Action by Gunder Johnson, Albert Johnson, Albert Amerson, and the Chicago & Northwestern Railway Company, against the Incorporated 1'own of Castlewood, ’S. D., to- have certain of plaintiffs’ realty excluded fromi defendants town limits. From, a judgment dismissing the petition, and from an order denying a new trial, -plaintiffs appeal.

Appeal' from Circuit Court, Faulk County. Hon. Thos. I,. Bouck, Judge. Actions by the Security -State Bank and J. L. Wingfield, au Pubilc Examiner (o-f South Dakota, against F. B. Gannon and others, to enforce the constitutional liability- of certain defendants as •bank stockholders, and for -other -relief; and by the same plaintiffs against F. B. B-annon, Andrew Bolter, and others, for certain relief.

Hon. Robert B. Tripp, Judge. Action ¡by W. O. Lusk, W. J. Fantle, and D. B. Gurney, against the City of Yankton and others, to determine adverse claims of title to realty. From a judgment in favor of defendants, and from an Order denying a new trial, plaintiffs appeal. (9) To point nine of the opinion, Respondent cited: Seattle v. Himkley (Wash.) 121 P’ac. 444.

Hon. Thomas L. Bouck, Judge. Action by the J. R. Watkins Medical Company, a Corporation, against C. H. Mfl-ler and others his guarantors, to recover upon a contract for sales of merchandise, including an indebtedness for previous sales. From a judgment for defendant upon directed verdict, and from an order 'denying a new trial, plaintiff appeals.

• Appeal from Circuit Court, Lawrence Oounity. Hon. James McNenny, Judge. William. Demierly, ‘the defendant, was convicted of the crime of larceny, and from the judgment and from an order denying a netv trial,'he appeals. (3) To point three of the opinion, Apellant cited: Wharton’s 'Criminal 'Taw, iothi E'd'., paragraphs 130, 131A, 21 iA; 12 Cyc. page 187 and Note; 4th Am. & Eng. Enc. of Taiw, 1st Eld., page 673; 1st Bishop New Criminal Ta.w, paragraphs 633-641-643-889; Tex.

■Appeal' from Circuit Court, Pennington.,County. Hon. Levi McGee, Judge. , Action 'by Ernest Ramp, a minor, by. W. H. Tompkins, his guardian ad litem, against the Warren-Lamb Lumber Company, to recover damages- for persiohal injury. From a judgment for plaintiff, and from an order -overruling defendant’s motion for a directed verdict, it appeals. (1) To point one of the opinion, Appellant -cited: Lee v. Great Northern. Railway Co. (■&.

Hon. John F. Hughes, Judge. Action ¡by Frederick B. Kremer and Lillias A. Kremer, against the Public Drug Company and others. Judgment for plaintiff. From an order extending time for making a motion for new trial, and prescribing a apetial mode for settling, and the timie for settling, the record, plaintiffs appeal.

Hon. John E. Hughes, Ju-dge. . , Action by Charles- H. Anderson! 'and- E. E. Swartz, trustees of the Estate of Andrew C. Brink, and others-, against Bessie E. RobinsOn, to determine adverse' claims to realty. From a judgment for plaintiffs, and from1 an order denying a new trial, defendant appeals.

Appeal ir-om CifcuEit Court, 'Brule County. Hon.- Frank B. Smith. Judge. ■ , . Action by Suzanne C. Dirks, against Union Savings ■- Association, a corporation and Guy Kelley; as> administrator -of tbe ■ estate of Peter-B; Dirk-si, deceased, to establish ownership in plaintiff of a savings- 'association certificate. From- -a judgment for defendants, and from an order denying a -new trial, plaintiff appeals.

Appeal, from Circuit Court, Samborn Ooiunity. Hon. Frank B. Smith, Judge.

Hon. Thomas L. Bouck, Judge. Action by Mary E. Bartlett, against Milton H. Bartlett, to recover damages for peristomal assault. Frota' a judgment for plaintiff, and from- an order denying 'a new trial, defendant appeals. (2) To point two of the 'Opinion, Appellant -cited: Bierkamp v. Bet'hiuin, (la.) 155 N. W. 819; Boo-ren v. McWilliams, (N. D.) 145 N. W. 41CX

Hon. Joseph W.‘ Jones, Judge. Action, by Mali P. Eangness, against the Chicago, Milwaukee & St. Paul Railway Company, a corporation, to recover damages caused by overflow of water from, defendant’s roadbed upon plaintiff’s land. From a judgment for plaintiff, 'and from an order 'denying a new trial, 'defendant appeals.

Action by Jacob C. Lehman, against William M. Smi-th and 'others to quiet title to realty. From' a ju-digment fo-r 'defendant and from an order denying ;a new trial, plaintiff appeals. (i) To point ome-of the opinion, Appellant citefd: ió R. C. L. Sec. 137; Ctonoyer vs. Wright, 6 N. J. Eq. 613; 47 Am.

■Appeal from 'Gircu.it Court, .Yankton County. Hon. Robert B. Tripp, Judge. Action) by the State of South Dakota, «gainst Raymond B. ■Conklin et al, for adjudication that property left by an intestate, esabeate'd’ to the 'sítate. From a judgment for defendants,’ and -from an order 'denying a anew trial, the state appeals.

Appeal1 from Circuit Court, Grant County. Hon. Thomas D. Bouck, Judge. Action toy Gold' Bros. Bri’ck Company, against Grant County, South Dakota, and others, to recover for building material furnished toy plaintiff to defendant county’s contractor in construction of a courthouse. From a judgment dismissing the action, and from an order ‘denying a new trial; plaintiff appeals.

Hon. Wirriam W'lRRIAMSON, Judge. Action by Thomas J. Wagner, against Henry J. Alhralhams and E. A. Dwyer, -as Sheriff -of Tripp County, S. D.,. to redeem land from mortgage foreclosure sale. From a judgment for defendants, and from an ¡order denying a -new .trial, plaintiff appeals. (2) To point two of the opinion, Appellant cited: Breckridge vs. Brooks-, 11 (Ky.) 360; Ktotfoed vs. Gordon, 122 (Cal.) 314, 54 Pac. 1115.

Hon. Joseph W. Jones, Judge. Action toy John H. Tooheyj against George W. Burnside, mayor, and; cithers as city oomimission'ers, in which 'M. O. Mooserud and others intervened, to enjoin the calling of a city election for election of city commissioners. From am 'Order temporarily restraining defendants, the interveners appeal (i) To point one of the opinion, Appellants cited: Oarr vis.

■ Appeal f'ricm Circuit 'Gouflt, Lake -County. -Hon. Louis L. FleEGER, Judge. Action by P. M. Vernier, 'against Peter’ Olson and another, to enjoin maintenance o'f defendants’ tile d'flain, and for 'damages. From .a judgment 'for'.defendants, and from' an order denying a new trial, plaintiff appeals. Appellant' cited:' • ’' 'Bo’ll vs. Ostroof, ’25 S. O. '5x3; Káufmahn'vs. Lenker, 146 N. w. ■ 823.’ ' Respondent cited): Thompson vs. Andrews, (-S. D.) 165 N. W. Rep., 9.

Hon. Thomas L. Bouck, Judge. Action by R. R. Blakenibakef, against the Chicago, Milwaukee & St. Paul Railway ¡Company, and ¡the Van Noy Interstate Company, to receiver damages, for personal assault. From a. judgment for plaintiff against both defendants-, and' from an order 'denying a new trial, 'defendant Railway Company, 'appeals-.

ITon. Chas. A. Davis, Judge. Action by S'arah, Kniittle, against Alfred Ernst, -in which Walter H. K-upfer, as guardian -of the person and estate of Jacob Ernst, an incompetent person, .intervenes-. From a judgment f-or plaintiff, and- from an order -denying -a new trial, defendant and intervener -appeal. Appellants cited; Jones Commentaries- on Ev., Blue Book, V-o-1. 4, p. 710, Sec. 779 ( 791)> -anti -cases cited. Respondent cited: Hawley vs. B-ou'd, 20 S. D. 215.

Hon. Arva F. Tayror, Judge. Action toy Richard W. Clarke, and Frank Jaebn, on behalf of ■themselves and other taxpayers,'.against the County of Beadle, and T. C. Young and others as County Oammissioners' of the County of Beadle, anld The Iowa Bridge 'Company, a 'corporation, to enjoin the construction of' certain bridges. From a judgment for defendants., and from an order denying a new trial, ¡plaintiffs, appeal. On motion to 'diilsmis'si appeal.