Volume 41 — South Dakota Reports

<p>1. Judgments — Circuit Court Mandamus Judgment Under Wife’s Claim, for Exempt Property for Husband — Subsequent Satisfied Judgment for Property to Husband, Whether Res Judicata re Mandamus Judgment. . .</p> <p>The circuit court having hy judgment in mandamus, required sheriff to set aside and deliver to a wife certain personalty owned hy husband and claimed by her as exempt from execution for his debts,' sheriff having appealed from said judgment to Supreme Court, resulting in affirmtive with costs to respondent wife; circuit court, after remittitur filed, having entered an order vacating said judgment, and dismissing the action; on sheriff’s motion, on ground that, after tahihg of said appeal, the husband had, in a suit for conversion against sheriff for recovery of value of said exempt property, recovered judgment which had been satisfied; held, that satisfaction of the judgment in the conversion suit was not res judicata as to the judgment so appealed from and affirmed, since, while both judgments involved the same property, the one appealed -from, Wherein it included costs to respondent, was not satisfied hy payment of the* other judgment. Held, further, that circuit, court was without jurisdiction,to cancel said affirmed judgment or to dismiss said action.</p> <p>2. Judgments — Judgment for Exempt Husband’s Property on Wife’s Claim — Subsequent Recovery from Sheriff 'by Husband, Whether Barring Costs Re Original Judgment.</p> <p>Where, under 'claim by wife of exempt .property on behalf- of her defendant husband, judgment in mandamus was rendered requiring sheriff to deliver the property to the wife; said judgment having 'been affirmed with costs on appeal by sheriff to Supreme Court; held, that the contention by husband that a judgment subsequently recovered by him in a suit against sheriff for conversion of said property, related back to time of original seizure of property by sheriff, and that satisfaction of the judgment in conversion in effect cut off rights of both husband and wife to the property from and after time of conversion, was untenable; since the wife was at all times acting within legal rights without fault, and at no time after she commenced said first proceeding had her right to costs been cut off by any act of courts, husband or sheriff; satisfaction of the conversion judgment being only partial satisfaction of the other.</p>

Hon. James McNenny, Judge. The defendant, E'inar Jaukkuri, iwas convinced! of manslaughter in the second! degree, and he appeals. (2) To poin-t two of -the opinion, Appellant cited: State vs. Bell, (S. D.) 160 N. W. 728; Wharton 00 Homicide; 3d Edition, secs. 225, 226; Boykin vs. People, 22-'Col. 496, 45 Pac. 419; 'State vs. Lepine, (S. D.) 113 N. W. 1076; State vs. Swift, 14 La. Ann. 839; State vs. Warren, Del. 41 Atl. Rep. 190; State vs. Shippey, 10 Minn. 223.

Hon. Joseph H. Bottom, Judge. Action 'by G. M. Watters, against J. W. Ryan, to enforce specific .performance of a contract of sale of realty. From, a judgment for defendant, and from, an order denying a new trial, plaintiff appeals. Appellant cited: Waller vs. G. N. Ry. 1Q0., 22 S. D. 256, 18 L. R. A. NS. 297; Dolvin vs. Am. Harrow Co.,’28 L. R. A. NS. 787; Meeks v. SP. 56 Cal. 513. Respondent cited: 23 Cyc. 1306.

<p>■ Appeal from''Circuit Court, Beáidile County. Hon. Alva E. Taylor, Judge '</p> <p>■ Action by E. E. Kneedy, and M. C. Lasell, against- J. W. ' Keiser, to recover attorney’s fees-. From a judgment for plaintiffs, and from an order denying a new trial, defendant appeals.</p> <p>(1) To point one of- the opinion, Appellant cited: .</p> <p>■ 2 R. C. L., 978; 4 Cyc. 986, 950; Mechero on Agy, 816.</p> <p>Respondents citedi:</p> <p>Sedwiclc vs. Bliss (-Neb.) 37 N. W. 483; Vilas v. Bundy (Wis-.). 81 N. W. 812; Forbes vs. C. R. I. & P. Ry. Co. (la.) 129 N. .W. 810; People vs. Pack (Mich.) 74 N1. W. 185.</p> <p>(2) To, point two, Appellant cited:.</p> <p>Slierrer vs. Hutchinson Cfounty, 10 S. 'D. 9; Jerome vs. Rust, 21 S. D. 191, 193; Davis vs. Navotney,. (S. D.) 87 N. W.- 582.</p> <p>.Respondents-cited:</p> <p>Fa-uble. & Smith v-s. Davis, 48th la. 462; Royer vs. Rass- . mussen, 34 N. D. 428, 158 N-. W. 988.</p>

Hon. Frank B. Smith, Judge. Action ¡by Frank Stanton and another, against The Merchants’ Loan & Trust 'Company, and George H. Randall, to secure surrender of a promissory note and cancellation of a mortgage securing payment of same, and for recovery of money. From a judgment for defendants, and from an order denying a new trial, plaintiffs appeal. Null & Royhl, for Appellants.

Hon. Louis L. FeEEGER, Judge. Action by O. A. Rudolph- andi E. Wendt, ¡against Millard1 Bennett and' others, as Trustees of the Lincoln ¡County Agricultural Society, a corporation. dissolved, to enjoin, defendants from certain uses of agricultural society lands. From a judgment for defendants, and from an order denying a new trial, plaintiffs appeal.

Hon. Arva E. Taylor, Judge. Action by J. N. Jensen, against Richard Griffin and others, to enforce a mechanic’s lien. From a judgment for plaintiff, and from' an order 'denying a new trial, defendants appeal. (2) To point two of the opinion, Appellants cited: Kingman vs. O’Callaghan, 4 S. EX 628.

. Hon. Alva E. Taylor, Judge. Action iby Else Anderson, as- administratrix of the estate of Ludwig C. W. Anderson, againstS. C. Anderson, to recover damages for death caused (by'.defendant’s vicious bull. From a judgment for plaintiff, 'and from an order denying a new trial, defendant appeals. (1) To point one of the opinion, Appellant cited: Vol. 3 Corpus Juris, Pages 89, 108; Bricoe vs. Alfrey, 30 L. R. A. 607; 1 Ruling Case Law, 10899 Williams vs. Moray, (Ind.) 39 Am.

Appeal frora Circuit Court, Davison county. Hon. Frank B. Smith, Judge. The defendant, Joseph Paul, was convicted! of obtaining property under false pretenses, and1 he appeals. Affirmed. (i) To point one of the .opinion, Appellant cited-: 'People vs. Tomlinson,'35 Cal. 503; State vs. Butcher, 1 S. D. 401, 47 N'. W. 406; State vs. Burchard1, 4 S- D. 57 N. W. 491. Respondent cited: Laws 1913, €h. 242; 19 Cye. 393; Peo. vs. Hines (Cal.) 89 Pac. 858.

Circuit Court, Brown County. Hon. Thomas L. Boucic. Judge. Action by Arthur W. Barker, -against F. S. Coats, to recover a commission upon an exchange of lands. From' a judgment for plaintiff, and from, an order -denying a new trial, defendant appeals.

<p>Appeal from Circuit ¡Court, Lincoln County. Hon. Joseph W. Jones, Judge.</p> <p>Action by The P'rintz-Biederman ■ 'Company, a corporation, against Trina Torgeson, Administratrix of the;. Estate of T. L. Torgeson, -deceased, (to recover upon a el-aim against the estate. From a judgment o-f -dismissal -of the action, plaintiff -appeals.</p> <p>Appellant cited:</p> <p>Detroit Automatic Scales Co. v. Torgeson, (S. D.) 156 N. W. 86; 'Gullerton v. Mea-die, 22 Cal. 96.</p>

<p>1. Criminal Law — Rape—Time as Element — Proof of Later Act, Whether Permissible — Rule Stated — Limitations, How Affected? — Duty of Court, of Jury, Distinguished.</p> <p>While, in a trial for the crime of rape, the precise time is immaterial, yet thei transaction charged is material; defendant cannot be tried for two crimes under a charge of one; nor can the state switch from one act which is evidently the one alleged in the information, and rest its case upon proof of another and later act; nor is the state barred from' proving such later act because thei proof establishes another date, unless the date proven shows the prosecution barred by limitations. So held, where the information, the opening statement, and evidence was that there was no error of date in the information, and that the act against which defendant was called to defend was that claimed to have been committed at a certain place. The real question always is, what particular alleged criminal act or transaction did prosecutor contemplate when drawing the information? If that is revealed of record on preliminary hearing, by the information, by an' opening statement, or by evidence, trial court must see to it that defendant is convicted of that particular act or tranaction, or else acquitted; otherwise court should require the state, not the jury, to elect as to which act or transaction verdict shall be based.</p> <p>3. Same — Evidence of Later1, Earlier Acts, as Corroborative Proof, Competency — Rule of Evidence Stated.</p> <p>The reason for the rulei admitting proof of subsequent as well as previous acts, in a prosecution for rape, and the limitation upon the application of such rule, are substantial and meritorious. Experience teaches that unlawful voluntary sexual intercourse, is not the result of spontaneous outburst of illicit passion, but comes rather almost invariably as result of repeated and more or less continued importuning, love making and artful exciting of -passion, until natural chastity and fear of consequences are overcome-. So held, in a case where, information, opening statement, and evidence pointing to a particular transaction, evidence was admitted of commission of rape at a subsequent time and different place.</p> <p>3. Same — Subsequent Act, Unsupported Testimony of Prosecuting Witness, Sufficiency — Subsequent, Distinguished from Previous Act — Rule Stated.</p> <p>Where, in a prosecution for rape, state introduced the unsupported testimony of prosecuting witness to an act subsequent to that charged, held, that while the unsupported testimony of a-prosecuting witness as to previous acts and relations are receivable as explanatory of and thus corroborative of, evidence of the substantive act charged; yet such unsupported testimony as to a subsequent act — which act did not explain the former act, does not rise to the dignity of corroborative proof.</p>

<p>Banlcs and Banking — Bank’s Suit Against Vice-president for Realty Sale Commission — Defense Ultra Vires', Public Policy — Plaintiff's Agency, re Salary, As Affecting Plaintiff’s Rights.</p> <p>In a suit by a state bank against one who was its salaried officer as vice-president and director, to recover a share of commissions received by defendant as the result of expenditure of part of his time as a realty agent, under contract with plaintiff to make such division, held, that the defense of ultra vires and that the contract was void as against public policy, was untenable; none of the bank’s money having been used in the realty transactions, nor was it obligated in any way in connection therewith, and no fraud shown by reason of which stockholders or patrons of the bank could be prejudiced; that defendant, while under salary from the bank during, the time in question, had the use of its stationery, bank offices and rooms, etc., in connection with his land agency, in consideration of which the bank agreed to accept, and defendant to pay it, a portion of his ■ earnings, as realty agent.</p>

Hon. William Williamson, Judge. Action by J. L. Wingfield!, Public Examiner, in charge of the Citizens’ State Bank of Oacoma, against W. -W. Little, to recover upon a promissory note. From a judgment for -defendant, and from an order -denying a new trial, plaintiff -appeals.

Hon. Frank B. Smith, Judge. Action by Barnardi-Giles-Moses Company, a corporation, against W. F. 'Christy, to’ recover purchase money 'under -a sale of farm machinery. From a judgment on directed verdict, dismissing the action and from an order denying a new trial, plaintiff appeals. (2) To point two of the opinion, Appellant cited: D'innie et al v. Johnson, 77 N. W. 612 N. D. ’

ITon, Robert B. Tripp, Judge. , v Action by P. A. Howf-ord, against D. G. Eno-, to- recover,for legal services rendered. From a judgment for plaintiff, and from an order ¡denying a'new trial, defendant appeals. (1) To’ point one of the opinion, Appellant -cited: International Building & Loan.,Association, (111.) 55 N. W. 675, 47 L. R. A. 7927 State v. Rocker (la.) 106 N. W. 645; Coach v. Peebles, (N. C.) 11 -S-.

Hon. William Williamson, Judge. Action -by - Clara Me Wald, against E. L. Darnell1 arid others, to recover for malicious prosecution. Eiiom -a judgment for defendants', .and from- an order denying a new trial, plaintiff appeals.

Hon. Joseph W. Jones, Judge. ’ Action (by D-onia Allard and Vale-d-a Allard, against Mary Curian an-d others, to quiet title to-, realty. From a judgment for defendants, and f-rorni am (ard'er -denying >a new trial', plaintiffs appeal. Appellants cited: ' ’ ’ Sec. 288, Ciy. Co-d-e; Bates vs. Illinois .Cent. R. R. Co., (U. S.) 1 Black, 204, 28 Myers- ped-era-l Decisions, 707; Railroad Co. v. Schurmeir, (U. S.) 7 Wallace, 272-, 28 Myer’s- Fed'.

Hon. John. F. Hughes, Judge. Action by Charles L. Hyde, against Napoleon B. Gearhart, Loring E. Gaffy, 'Louis E. Stephens and others to- compel set-of pro tanto of mutual judgments. From an order granting motion of defendants Gaffy & Stephens to dismiss a restraining -order as to them, plaintiff appeals. Respondents cited: Wood' v. Bangs., 46 North Western, 586; State ex rel. Crammer, v. Thorsom, 68 North1 Western, 202.

Appeal1 from Circuit Court, Beadle County. Him. Alva E. Taylor, Judge. Action -by' Pauline A. .Stratton, against the Chicago, Milwaukee & St. Paul Railway Company, to recover damages for loss of and injury to a, caridad) shipment of household goods. From a judgment for plaintiff, and! from.' an order denying a new trial, defendant appeals. (1) To point one of the-opinion, Appellant cited: Western Transit Co. 'v. Leslie & Oo., 242 JJ. S'. 448; C. C. C. & St. L. Ry.

<p>1. Banks and Banking — Payee’s Endorsement “Paid” on Check, Whether “Qualified” Endorsement — Statute—Former. Opinion Modified.</p> <p>Where payee bank, without paying it, endorsed its name on a check, followed hy the word “Paid,” and passed the cheek on to drawee bank, held, payee bank did not thereby warrant genuineness of the check, under Laws 1913, ¡Ch. 279, Sec. 65; since such payee was not a “qualified” indorser within meaning of said section; the check, moreover, not being payable to bearer. Former opinion (38 S. D. 396), modified.</p> <p>3.Banks and. Banking — Genuineness of Check, Warranty, Endorsement, Delivery, as, Transfer of Title as Basis — Drawee, Whether “Holder,” or Transferee — Statute—Check as Voucher.</p> <p>The warranty of genuineness of an instrument, by delivery or by qualified endorsement, under Laws 1913, Ch. 279, Sec. 65, is based upon transfer of title, and therefore extends only to “holders;” and a drawee of a bank check is not a transferee of title; nor does last holder’s endorsement transfer the check, but merely converts what was a check into a voucher.</p> <p>3. Courts — Opinion, Words in, How Construed, re Pacts.</p> <p>The words of a court, in deciding a point, must be construed in the light of the facts before it.</p> <p>4. Negotiable Instruments — Check, Genuineness, Payment by Holder Without Acceptance or Certification, Endorsers, Drawer, as Basis of Credit — Holder’s Negligence, Due Care, Effect, re Estoppel — Rule.</p> <p>The true rule recognizes that, in case of payment of a negotiable instrument without prior acceptance or certification, holder takes it on credit of prior endorsers, or of drawer, and not on credit of drawee; that when holder uses due care in taking a bill or check, and drawee thereafter .pays same, he may not recover from holder, when latter was without fault, or when there has been some change of position calling for equitable relief; while on the other hand, no absolute estoppel arises against drawee in holder’s favor, regardless of latter’s negligence.</p> <p>5. Negotiable Instruments — Genuineness—Drawee, Payment by, Reliable on Payee’s Diligence as Warranty — Rule—Statute.</p> <p>The drawee of a hill or check, in making payment, may rely upon assumption that payee used due diligence concerning genuineness of drawer’s or maker’s signature, especially where payee negotiated to a holder, thus representing that 'he had so ■ fully satisfied himself as to identity and signature of maker ■ that he was willing to warrant in those respects, to all subsequent holders (construing Laws 1913, Ch. 279, Secs. 65, 66, known as Uniform Act.)</p> <p>6. Banks and Banking — Check, Genuineness — Payee’s Endorsement as “Paid”, Without Payment — Identification, of Drawer Stranger by Stranger, Whether Reasonable Business Prudence — Rights of Drawee Payor.</p> <p>Where payee hank took the check, from a stranger, without other identification than that given by another stranger; its cashier witnessing such stranger’s mark, thus .vouching for signature of maker, then endorsed the check, followed by word “Paid,” held, such payee did not use reasonable business prudence; that drawee hank, in paying the check, might rely upon those facts as thus presented by .payee.</p> <p>7. Banks and Banking — Forged Check, Vouched by Payee’s Identification — Payee’s Defense of Nort-payment Till After Drawee’s Payment, Tenability — “Equity and Good Conscience.”</p> <p>Where payee hank took a forged check from a stranger whose sole identification came from another stranger, held, that its defense against suit by drawee bank who had paid it, that defendant did not .pay the money to maker until after drawee had paid the check, was untenable as a ground why, in “equity and good conscience,” plaintiff should not recover.</p>

Hon. William Williamson, Judge. Action by Marietta O. Yolton, against H. G. William®, and others as District School Board of 'School District No. 22 Lyman County, South Dakota, also known as Capa School District, to recover for wages as teacher of school. From' a judgment for plaintiff, and from an order denying a new trial, defendants appeal.

Hon. Arva E. Tayror, Judge. Action toy John C. Hansen, against John H. Boots, to recover damages for personal assault. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (i) To point one of the opinion, Appellant cited: Sec. 255, Code Civ. Proc.; Lindsay v. Pettigrew, 3 ,S. D. 199; D.audel v. Wolf, 30 -S. D. 409 (418); Shields v. Rowland (Ky.) 151 S. W. 408; 'Cleveland- Ry. Co. v. Pritschau (O.) 69 N. E. 663, 100 Am.

<p>Appeal from Circuit Court, MdCook County. Honorable, Judge.</p> <p>Action by B. F. Myers and others, ag'ainst Sam: Jorgenson. From an order in favor of plaintiffs, defendant appeals.</p>

Hon. Joseph W. Jones,, Judge. The defendants, Joe M'ansors andl'Albert M'ansors, were convicted in the Municipal Court of the City of 'Sioux Falls, for violation' of a municipal ordinance, and appealed to the Circuit Court, where there was judgment upon a verdict of acquittal and dismissing the action and' awarding defendants costs. From an ord'er refusing to modify the judgment wherein it awarded costs, plaintiff appeals.

Appeal' from 'Circuit Court, Butte County. Hon. James Mc-Nenny, Judge. ' Action ¡by the Austin-Western Road 'Machinery Company, against Henry F. Owen, accompanied by writs of attachment and garnishment. Objections to jurisdiction of trial court in entertaining motion flor judgment by default, and entry of judgment thereon for plaintiff; from which judgment defendant appeals. (i)' To point one of the opinion, Appellant cited: 32 Cyc. 495; Smith vs. Jones (Me.) 49 Am.

Hon. John F. Hughes, Judge. Action by N. B. Jackley, against Bessie B. Robinson and another, to set aside a tax deed. From a judgment, and from an order denying a new trial, the defendant Robinson appeals.

Hon. Thomas L. Boucic, Judge. Action 'by Frank H. Johnson as receiver of the First National Bank of Bristol, a corporation, and the First National Bank of Bristol, a corporation, against P. Peterson, to recover upon a promissory note. From a judgment for defendant, and' from an order denying a new trial, plaintiff appeals.

<p>Appeal from Circuit Court, Lawrence County. Hon. Jambs McNbnny, Judge. .</p> <p>Action by James D. Hardin, against Walter E. Graham and others. From a judgment and order, defendant Graham appeals.</p>

FIon. Joseph W. Jones, Judge. The defendant C. C. Watson, was convicted of unlawfully keeping in possession intoxicating liquor in- a public place, and he appeals. 'State v. Brown, 40 S. D. 372, 167 N. W. 400, followed.

Hon. Alva E. Taylor, Judge. Action by Henry Kohlmorgan, against Roswell Township, Miner County, and Philip Brod and others, Supervisors of said Township, in which William Lieth intervened. From' a judgment granting relief as prayed for by plaintiff, against 'both defendant and intervener, the intervener appeals. (3) To point three of the opinion, Appellant cited: Hanson v. Township of Red Rock, 4 S. D., 3.58; Coulter v. Gud'ehus; 30 S. D., 616.

■Appeal from 'Circuit Court, Meade County. Hon. James McNenny, Judge. Action by Richard E. Purinton, against Sadie B. Purinton, for partition, etc., of realty. From an order setting aside a judgment in favor of plaintiff, he appeals. (2) To point two- of the opinion, Respondent cited: Noreiga v. Knight, 20 Cal., 173; Wells v. Penfield, (Minn.) 72 N. W. 817. (3) To point three, Respondent cited: Civ.

Hon. Joseph Bottum, Judge. Action by Clement F. Porter, as receiver of the Independent Elevator Company, a corporation, against the Browns Valley State Bank, a corporation, to recover for moneys alleged to belong to plaintiff and applied by defendant bank in payment of plaintiff manager’s debt. From a judgment for defendant on directed verdict, and from an order denying a new trial, plaintiff appeals.

Hon. William Williamson, Judge. Action by Chester Slaughter, against M. K. Nolan and E. A. 'Dwyer, to recover damages for wrongful levy of an attachment. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. (i) To point one of the opinion, Appellants cited: Vesper v. Crane Co. et al., 130 Pac. 876. Respondent -cited: Johnson v. Burnside, 3 S. D., 230; Sherwood v. City of Sioux Falls, 10 S. D. 405; 26 Cyc. 74.

Hon. Robert ' B. Tripp, Judge. Action 'by 'Mary J. Moore, against Fred' Schnauber, to recover damages for personal injuries. From a judgment for plaintiff, and from' an order denying a new trial, defendant appeals. (i) To point one of the opinion, Respondent cited; Mosteler v. Holborn, 20 S. D. 545; Anderson v. Hurley-Mason Co., 67 Wash. 342; 121 Pac. 815; Ann. Cas. 1913 D., 148; Feeney v. Long Island R. Co., N. Y. 5 L. R. A. 544.

Hon. Robert B. Tripp, Judge. In the matter of the estate of Taetske Wynea, deceased. From a judgment of the circuit court, affirming an order and' decree of the county court for distribution in favor of Theodore Wynea, Henry Wynea and others appeal.

Hon. Joseph W. Jones, Judge. Action by E. L. Smith, doing business as the Sioux Falls Warehouse 'Company, against H. P. Allmendinger and others, to foreclose a mechanics lien. From a judgment in favor of plaintiffs, and! front an order denying a new trial, defendant Isabel Nelson, appeals.

- Appeal from Circuit Court, Robert County. Hon. Thomas R. Boucic, Judge. Action by N. H. N’elson, against John R. Minder and others. From -an order of trial court denying a motion of defendant Fred Radlline to open a default judgment entered upon trial of the action, said defendant appeals.

Hon. Joseph Bottum, Judge. Action by Theo. Hamim Brewing Company, a corporation, against Jo'bn >C. Huber amdl others, to recover upon a promissory note. From a judgment for plaintiff, and from an order denying a new trial, 'defendant, Jeli, appeals.

<p>Negotiable Instruments — Joint Note, Renewal of Prior Co-Makers’ Note — Extension of Time of Payment as Consideration— Directing Verdict.</p> <p>Where appellant, one of two joint makers of promissory notes in suit, given in renewal of a prior note executed by one of the-co-makers of the notes in suit, defended upon grounds of want of consideration, and fraud in procuring her execution of the notes, hut upon appeal abandoned the issue of fraud, trial court, after both parties had moved for directed verdict, having directed verdict in plaintiff’s favor and failed to make findings as is proper where both parties so moved, held, that, it being undisputed that the notes were given in renewal of said prior note, and in settlement of an account due from co-makers to plaintiff, the giving of the notes in suit extended the time of said former indebtedness, which latter was a good consideration for appellant’s signature to the notes; and, this appearing from undisputed evidence, and the issue of fraud being eliminated, appellant’s claim that she knew nothing of said former indebtedness and' was advised that the notes she signed were merely accomodation notes, is unavailing.</p>

Appeal front Circuit Court, Gregory County. Hon. Wiiaiam Wiiaiamson, Judge. Contest proceeding 'by Frank H.. Viktora, against K. H. Cress-man, County Superintendent of 'Schools of Gregory County, South Dakota, and others, to determine the validity of a school district consolidation election. From a judgment holding the election valid, and from an order denying a new trial, Viktora appeals.

Ho.n. William Williamson, Judge. Action ¡by Walter H. Kupfer, as guardian of the person and estate of Jacob Ernest, an incompetent, and1 another, against John P. Biehn, as executor of the Estate of Christina Ernst, deceased and others, to establish a trust in realty in favor of plaintiff’s incompetent. From a judlgment for plaintiff, and1 from an order denying a new trial, defediants appeal.

Hon. Joseph W. Jones, Judge. Action by Anna Larson and others, against the Township of Edison, in Minnehaha ¡County, and Iver Henjum and others, as supervisors of said township, and another, to enjoin defendants from entering upon plaintiff's’ land! and taking same for road1 purposes. From! a judgment in favor of defendants, and from an order denying a new trial, plaintiffs appeal.

<p>Appeal from 'Circuit Court, Brown County. Hon. Thomas L. Bouck, Judge.</p> <p>Bastardy proceedings by the State, on the relation of Myrtle Robinson, against Charles Gabert. From, a judgment for plaintiff, defendant appeals.</p>

Hon. Joseph W. Jones, Judge. Action tby F. W. Barnes, against E. D-. Clark, for a partnership accounting-. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (i) To point one of the opinion, Respondent cited: Davenport v. Buchanan, 6 S. D. 376; Bank v. Taylor, 5 S. D. 99, 58, N. -W. 2917; Elbmi'ann v. Stitzel, 121 Ky. 751, 123 A. S. R., page 231; See. 1732, Civ. Code.

Hon. Joseph W. Jones, Judge. Action 'by Emily M. Schumacher, against the American Rife Insurance Company, of Omaha, to recover upon a life insurance policy. Erom a judgment for plaintiff, and' from an order denying a new trial, defendant appeals. (i) To point one of the opinion., Appellant cited: Baker v. The Mutual Rife Ins. Co., 43 N. Y, 283; Bergson v. Insurance Co., 38 Cal. 541; Sheldon v. Atlantic, F. & M. Ins. Co., 26 N. Y. 460; 84 Am. Dec. 213; Sec. 1849, Civ.

Action by C. C. Jefferson, against J. H. Beam, upon a promissory note. From a judgment for. plaintiff, and from an order denying a new trial, defendant appeals. Appellant cited: Leathers v. Canfield, 45 L. R. A., 33. Bee note 44-48; Lemon v. Little, 21 S. D., 628; Harris v. Leise, 29 S. D., 140; Bell v. McConnell, 37 Ohio State, 396, 41 Am. Rep. 528. Respondent cited: 19 Cyc. 116, paragraph 4; Synott v. iShanghnessy, (Idaho), 7 Pac. 82; Langford v. Issenhuth, ’28 S. D. 451.

<p>. Appeal from- Circuit Court, Sprink County. Hon. Alva E. Taylor, Judge.</p> <p>The defendant, August H. ’Schultz, was convicted of an assault with attempt to commit rape, and he appeals.</p> <p>(1) To point one of the opinion, Appellant cited:</p> <p>Young v. Territory, 58 Pac. 724.</p> <p>Respondent cited:</p> <p>Peo. v. Estrada, 53 Cal. 600; Peo. v. Miles, 9 Cal. App. 312, xoi Pac. 525.</p> <p>(2) To point two, Appellant cited:</p> <p>10 Enc. of Evi. 587, and cases cited in footnote; State v. Griffin, 86 Pac. %■!.</p> <p>Respondent cited:</p> <p>State v. Peterson, xio Iowa, 647, 82 N. W. 329; Peo. v. Harrington, (Mich.) 152 N. W. 1068; State v. Symens, 138 Iowa 113, 115 N. W. 878; Brooks v. State, (Ala) 62 So. 569; Turner</p> <p>v. State, (Ela.) 63 So. 708; Williams v. iState, 66 Ark. 264, 50 S.</p> <p>w. 517- ';</p> <p>(5) To point five, Respondent cited:</p> <p>■State v. Sheets, (la.) 102 N. W. 415; Castle v. State -(Tex.), 90 S.. W. 32; People v. Toutant, 95 N. W. 541.</p>

Hon. Robert B. Tripp, Judge. Action by Maria B. Sweeney Yellow-hair, against C. W. Pratt and! Dan Lynch, as Sheriff of Charles Mix County, South Dakota, to enjoin an execution sale of realty. From a judgment in favor of defendants, and from an order denying a new trial, plaintiff appeals. (3) To point three of the opinion, Appellant cited: Secs. 3215, 3235, P'ol.

Hon. Joseph W. Jones, Judge. Action by John E. Wood, individually, and as administrator of the Estate of John J. Wood, 'deceased, and another, against Will A. Bapp, individually, and as administrator of the Estate of Ezra S. Bapp, deceased, and others, to determine adverse claims to realty, andl for possession of same. From a judgment for plaintiffs, and from an order denying a new trial, defendants appeal.

D. Hon. Henry A. Miller, Judge, Pro Tern. Action by 'Maxwell Hardware 'Company, against Jacob P. Hoffman, for damages for conversion of personalty. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Hon. Carl G. Sherwood, Judge. Action by D. L. Keyes, against M. R. Baskerville. From, a judgment for plaintiff and from an order denying a new trial, defendant appeals. (2)' To point two of the opinion, Appellant cited: McVay v. Bridgeman, 17 S. D. 424; King v. Hansen (N. D.) 99 N. W. 1085; Skaar v. Eppeland (N. D.) 159 N. W. 707; 2 R. C. L. 107-108; Conraidlt v. Lepper (Wyo.) 78 Pac. 1, S. C. 3 A. & E. A. C. 628 and note; Lb S. v. Ellicott, 223 U. S. 524.

_ Appeal from Circuit Court, Pennington County. Hon. Levi McGee, Judge. Action by Albert Rotzien, against the Merchants’ Loan & Trust Company, a corporation, to recover damages for conversion of personalty. From a judgment for defendant, and from' an order denying a new trial, plaintiff appeals. (i) To point one of the opinion, Appellant cited: Grigsby v. Day, g SI D. 585.

Hon. Thomas L Bouck, Judge. Action 'by William J. Kelly, against the Narregang Investment Company, Incorporated, to recover damages for defendant’s failure to discharge of record a realty mortgage. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (1) To point one of the opinion, Appellant cited: Mader v. Plano Mfg. Co., 17 S. D. 5,53; Bee. 410, Code Civ.

Hon. Carr G. 'Si-iErwood, Judge. Action by Edgar E. Evans, and another, against the City of Brookings, a municipal corporation, to restrain defendant from removing an obstruction- to an alleged public alley. From a judgment for defendant, and from an order denying a new trial, plaintiffs appeal. (i) To point one of the opinion, Appellants cited: Roche Investment and Realty Co. v. Highlands Co., 29 -S. D. 169, 135 N. W. 684; Sec. 1632 Pol.

Hon. Robert B. Tripp, Judge. The defendant, F. W. Bonine, -was convicted of wilfully and maliciously committing' trespass' by 'cutting diown and destroying timber and he appeals.

Hon. Raymond L. Dtuuman, Judge. Action'by Prank H. Johnson, as Receiver of the First National Bank, a corporation, andi the ’First National Bank of Bristol, a corporation, against Kate Butler and L. L. Butler, to recover upon a promissory note. From a judgment for defendants, and from an order denying a new trial, plaintiffs appeal.

Hon. Joseph W. Jones, Judge. Action by 'George W. Egan, against L. E. Waggoner and B. O. Stordahl, co-partners as Waggoner & Stordahl, to recover upon a contract for division of a contingent fee in consideration of performance of legal services. From a judgment for plaintiff, upon directed verdict, and from- an order denying a new trial, defendant appeals.

Hon. Louis L. ErUEGiír, Judge. Action iby J. W. Erickson, against the Chicago, Milwaukee & St. Paul Railway Company, to recover damages for delay in shipment of live stock. 'From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Hon. Thomas L. Bouck, Judge. Action by S. W. Williams, against the Union Switch & Signal Company, a corporation, to recover damages for defendant’s negligence. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Hon. Wirriam Wirriamson, Acting J-udge. Action iby Chamberlain Ferry and Cable Pontoon Bridge ■Company, a corporation, against M. J. King and M. K. King, to enjoin defendants from operating a ferry. From an, order enjoining defendants from operating a ferry during pendency of suit, they appeal.

Hon. Levi McGee, Judge. Action by Jessie A. Martin, against the ¡Commercial Union Assurance 'Company, a corporation, to recover upon a policy of fire insurance. 'Frani a judgment for plaintiff, an’d' from an order denying a new trial, defendant appeals. Appellant cited: L'ibemstein. v. Baltic Fire Ins. Co., 45 111. 301; Libenstein v. Aetna Ins. 'Co., 45 111. 303; Peoria Sugar Refining Co., v. People’s Fire Ins. Co., 24 Fed. 773. Respondent cited: 19 Cyc. '666.

Hon. Thomas L. Boucic, Judge. Action by Rose E. Sayer, against Fred1 N. Lee, to recover damages for alleged fraudulent representations in an exchange of lands for personalty. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (3) To point three of the opinion, Appellant cited: Reiuber v. Negles, 126 N. W. 966.

Hon. James McNenny, Judge. Action by William Bertolero and Leo Bertolero, against Horace S. Clark, to recover moneys loaned- to defendant. From a judgment in favor of plaintiffs, and from an order denying a new trial, defendant appeals. Appellant cited: Bradbury v. Higginson, (Cal.) 123 Pac. 797; Gear Landlord & Tenant, par. 12.

<p>Brokers — Personalty for Realty, Suit for Commission — Exchange for Other Realty — Conflicting Evidence, Sufficiency.</p> <p>Where, in a suit to recover commission for broker’s services in an exchange of jewelry stock for realty, the evidence was conflicting as to whether the contract was one for exchange of jewelry for a certain ranch, the exchange having been made for other realty, held, the evidence being sharply conflicting, some of which strongly tended to establish defendant’s theory that plaintiff sought an exchange for the ranch, the verdict in defendant’s favor will be sustained.</p>

Hon. Robert B. Tripp, Judge. Action by C. -C. Smith, against G. M. Caster, upon a promissory note; defendant -counterclaiming, plaintiff counterclaiming against the latter. Prom an order allowing plaintiff to serve an amended complaint and -denying defendant’s motion to strike plaintiff’s counterclaims from the reply, and for judgment upon the pleadings, defendant appeals. (i) To point one of the opinion, Appellant cited: Driskill vs. Rebbe, 22 ¡S. D. 249.

Hon. J osEph W. Jones, Judge. Action by Francis A. Wolfe, against Mabel B. Montgomery, impleaded with the Security Trust and Savings Bank, a corporation, to recover possession, of a promissory note, and for other relief. From a judgment for plaintiff, and from an order denying a new trial, 'defendant Montgomery appeals. (1) To point one of the opinion, .Appellant cited: Sec. 99, Code Cv.

Hon. Robert B. Tripp, Judge. Action, by Mabel M. Albers, against the Security Mutual Life Insurance (Company, to recover upon a policy of life insurance. From' a judgment for defendant, and from an order denying a new trial, plaintiff appeals. Reversed, and remanded with directions. (1) To point one of the opinion, re “binding receipt,” Appellant cited: Grier v. Mutual Life Ins. Co., 132 N. C. 542, 44 S. E. 28; Starr v. Mutual Life Ins. Co. of New York, (Wash.) 83 Pac. 116.

<p>1. Costs — Violation, of City Ordinances, Prosecution For — Recovery By City, Whether Warranting Costs in Circuit Court — Ordinance Construed.</p> <p>Notwithstanding that under Laws 1907, Ch. 191, Sec. 25, as amended by Laws 1909, Ch. 176, Sec. 12, as further amended by Laws 1915, Oh. 161, Sec. 1, providing that in actions prosecuted by city attorney for violation of city ordinances, etc., if unsuccessful, “the city shall pay all costs,” costs are recoverable by the city when successful in the Municipal Court, and while the language “the city shall pay all costs” is broad enough, standing alonei, to include costs in all courts, yet if so construed, it would change the established laws relative to taxation of costs in Circuit Court; and in view of the fact that in the title to neither one of said acts is there an reference to the subject of costs in other than Municipal Courts, held, that trial court erred in taxing costs in both the Municipal and Circuit ■Courts, upon appeal to the latter court.</p> <p>2. Statutes — Constitutional Law — Titles—Costs in Municipal Courts Re Prosecutions — Titles Construed.</p> <p>Where title to an act providing for “Municipal Courts,” Defining the Jurisdiction Thereof, for the Practice Therein, Etc., which act in its body provides simply for taxation of costs; and the tile to an amendatory act is one “relating to Municipal Courts,” which in its body makes no change concerning right to tax costs; while a third amendatory act, in its title, is one “relating to costs and disbursements in Municipal Courts”, held, that said act as -so amended does not authorize taxation of costs in Circuit Court, upon appeal from the Municipal Court.</p>

Hon. Frank B. Smith, Judge. Action by Robert A. Mahoney, against Edward Smith, to -recover possession of animals taken -damage feasant. From a judgment for defendant, and1 from an order denying a new trial, plaintiff appeals.

Action by Standard Paper Company, a corporation, against Mark D. Scott, to recover for value of printing- paper sold by plaintiff to defendant. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Hon. Joseph W. Jones, Judge. Action by C. C. McCormick, against H. F. Beeman, to recover upon promissory notes. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (2) To point two, Appellant cited: 9 Corpus Juris, 631; Roach v. McDonald, (Ala.) 65 So. 823; Seymour v: St. Dukes Hospital, 50 N. Y. S. 989, affirmed, 53 N. E. 1132.

<p>Negotiable Instruments — Mortgage of Accommodation Signer’s Property — -'Consideration—Negotiable Instruments Act.</p> <p>In a suit to foreclose a mortgage executed by a wife and her husband upon her realty, as additional security in connection with her accommodation signing of the note after it had been uttered, held, construing Negotiable Instruments Act, being Laws 1913, Ch. 279, Sec. 29, providing that an accommodation party is one -who has signed the instrument as maker, etc., without receiving value therefor and for purpose of lending his name to some other person, which person is liable on the instrument to a holder for value, notwithstanding the holder at time of taking the instrument knew such signer to be only an accommodation party; and Sec. 26, providing that where value has at any time been given for the instrument, holder is deemed one holding for value in respect to all parties who became such prior to that time; that such holder is a holder for value, and such signer, although having signed without receiving value therefor, signed for purpose of lending her name to the principal maker; and her mortgaged realty is holden under her said obligation.</p>

Ho-n. John F. Hughes, Judge. Action by the State of 'South Dakota on the relation of A. A. Chamberlain, State’s Attorney for Beadle… Held: without reference to any express provision of law or specific requirement of the charter, that it is the duty of the corporation to keep its principal place of business, its books and records, and its principal offices, within the state which incorporated it, to an extent necessary to the fullest jurisdiction and visitorial powers of…

Hon. Levi McGee, Judge. Action -by Anna Cox, against Eugene Holcomb, to recover damages resulting from loss of service of a stallion. From a judgment for plaintiff, and! from an order denying a new trial, defendant appeals. (i) To point one of the opinion, Appellant cited: Davis v. Iverson1, et al 5 S. D. 295, 58 N. W. 796; Richardson v. Carlis 26 S. D. 207, 128 N. W. 170.

-Appeal from Circuit -Court,, Charles Mix County. . Hon. Robert B. Tripp, Judge. 'Action by W. W. Clute, against the DesMoines Mutual Hail & Cyclone Insurance Association, impleaded) with John D. Lynch, Trustee in Bankruptcy of the plaintiff,' to recover -upon a- policy of bail insurance. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Hon. JosEpi-i W. Jones, Judge. Proceeding (by -Commercial (Club of the City of Mitchell and others, as complainants, before the Board of Railroad -Commissioners, of the State of South Dakota, for construction of a connecting track between the 'Chicago, Milwaukee & S-t. Paul Rail■way Company -lines and the Chicago, St. Paul, Minneapolis and Omaha Railway Company, being -defendant lines, ■ at Mitchell, S. D. From an order of the Railroad Commissioners ordering defendants to…

Hon. Thomas L. Bo.uck, Judge. Action by 'Clara Sanderson, against P. A. Uysager, and the Interstate Security Company, a corporation, to recover damages to plaintiff and -children, upon a liquor bond. Prom a judgment for plaintiff, and from an order denying a new trial, defendants appeal. (i) To point one of the opinion, Appellants cited: 23 Cyc. 324; Welsh v. Jugenheimer, 8 Nl. W. 673; Rauhala v. Ma-ki, 137 N. W. 703; Johnson v. Grondin, 136 N. W. 423.

Hon. Frank B. Smith, Judge. Action 'by Harley Thomas, against Peter D. Mettel, for recovery of possession of realty and to quiet title thereto. From a judgment for plaintiff, and from an order denying a.new trial,defendant appeals. (3) To point three of the opinion, Appellant cited: Stock-Growers’ Bank v. Newton, 22 Pac. 444; Harland v. Bankers’ & M. Teleg. Co. 32 Fed. 305, Whitehead v. Entwhistel, 27 Fed. 778. Respondent cited: B)'rne v. McKeachie, 29 6.

Hon. Joseph W. Jones, Judge. Action by the State of South Dakota, on the relation of Anton Loe, against Clarence M. Davis, as 'City Auditor of the City of Salem, South Dakota, praying for a writ of mandamus permitting the holding of a referendum election upon a city ordinance. From a judgment requiring the holding of such referendum, defendant appeals. (1) To point one of the opinion, Respondent cited: State Ex Rel v. Meath, (Wash.), 147. Pac., 11.

<p>Respondents cited):</p> <p>Horrabin v. Iowa City (la.), 130 N. W. 150; S. C., 142 N. W. 212.</p>

Hon. Thomas L. Bouck, Judge. In the matter of- the estate of R. R.. Roberts. From an appeal from'an order of the county court allowing appellant’s claim, to the Circuit Court, judgment was rendered in the latter 'court for .the administrator, and from such judgment, and fr.om an order denying a new, trial, the O. W.. Kerr Company, a corporation, claimant, appeals. ■ (1) To point one of the opinion; Respondent cited: Cullerton v. Mead, 22 Cal. 95.

Original action by the State of .South Dakota on the relation -of Clarence C. Caldwell, as Attorney General, arid1 the State Board of Railway Commissioners, against the American Railway Express ■Company and others, to permanently restrain defendants from putting into effect their proposed schedule of intrastate express rates. Tanporary injunction pendente lite, granted.

Hon. Cari, G. Sherwood, Judge. Action (by D. W. Reeves, against the National Fire Insurance Company, of Hartford1, Connecticut, to .recover for injury to corps by hail; the Farmers’ State Bank of Bruce, South Dakota, a corporation, intervening. From a judgment for plaintiff, and from an order denying a new trial, defendants appeals. (i) To point one of the opinion, Appellant cited: Unterberg v. Elder (N. Y.), 105 N. E. 834; Hawley, et al v. Keeler, et al., 54 N. Y. 115.

Hon. Louis L. Flbbgur, Judge. Action by Susan Frances Thompson, and others, against the Lake Madison Chautauqua Association of South Dakota, and others, to quiet title to realty. Front a judgment for defendants, and from an order denying a new trial, plaintiffs appeal.

Hon. John F. Hughes, Judge. Action iby the National Surety Company, a corporation, against J. H. Starkey, as County Treasurer of Hughes County, to determine the validity of a tax upon certain public securities held by plaintiff, and for recovery back of a tax paid by it thereon. From a judgment dismissing the action, plaintiff appeals. (2) To point two of the opinion, Appellant cited: Const. Art. 2, -Secs. 4, 5, 6, 7; State v. Assessors, 35 La.

Hon. John F. Hughes, Judge. Action iby Frederick B. Kroner and another, against the Public Drug Company, a corporation incorporated under the laws of the State of South Dakota on March 7, 1912, and the Public Drug Company incorporated' under Daws of the State of South Dakota on March 12, 19x5, to subject the last named defendant’s corporate assets to plaintiffs’ claims as preferred stockholders in said first named corporation, and for other equitable relief.

Action by Frederick B. Kremer, et al, v. Public Drug Company, a corporation. From a judgment for plaintiffs, and from an order denying a new trial, defendant appeals.

Hon. Robert B. Tripp, Judge. Action (by Tillie Amundson, against Knudt Severson, to enforce specific performance of a contract for sale of realty. Erom a judgment for plaintiff, and from an order denying a new trial, ■defendant appeals. (1) To point one of the opinion, Appellant cited: Subd. i, S'ec. 60, 'Code Civ. Prac. Respondent cited: Tobin v. McKinney, 14 ‘S. D. 16, 84 N. W. 228. (2) To point two, Appellant cited: 39 Cyc. (Sec. 1642 b. note 31,-and cases cited; 29 Enc.

■ Hon. Louis L. Euüugbr, Judge. Action by Henry Bunkers, against O. E. Guernsey, to recover back surplus purchase money paid for realty. From a judgment for plaintiff, and from an order denying a new trial, plaintiff appeals. Appellant -cited: ■C. C. Secs. 2294, 2289; Wolfinger v. Thomas, 22 S. D. 57; 1-15 N. W. 10b; James River Nat. Bk. v. Weber (N. D.) N. W. 952; Goodnow v. Litclifiel-d1, (la.) .19 N. W. 226.

<p>1. Executors and Administrators — Re-opening Administration for Fraud, Jurisdiction to Entertain — Inherent Power of Prohate Court.</p> <p>Courts of record, such as probate and pounty courts-, have inherent power, independent of statute, to vacate their judgments procured by extrinsic fraud and imposition upon the court. So held, in sustaining probate court in entertaining a petition for a hearing, filed some three years after estate was closed, to re-open tlie administration for the purpose of setting aside final decree of distribution on the ground that the alleged widow, under whose petition administration and distribution was had, was not decedent's widow.</p> <p>2. Judgments — Foreign Decree of Divorce, Certified Copy as Evidence — Jurisdiction Over Person, Presumption Re.</p> <p>A certified copy of the judgment of a sister state, purporting to be one rendered by a circuit court presided over by a circuit judge, and reciting that a decree of divorce was thereby granted to the plaintiff named therein against the named defendant, etc., was competent evidence of rendition of such judgment, as against the objection that service of process upon defendant therein was not shown; that in absence of evidence to the contrary, it will be presumed that a court of general jurisdiction of a sister state, had jurisdiction of the subject matter and parties; that such court, presided over by a judge and having a clerk and other officers, will be presumed to be a court'of record and of general jurisdiction; and burden of proof is upon objecting party to show lack of service- of process if such was the case.</p> <p>3. Judgments — Res Judicata — Identity of Parties — “Paoli” for “Paul,” Evidence Re, Effect.</p> <p>A judgment of divorce of a sister state, in which the surname of the parties appears as- “Paoli'' is ad'missable in evidence for the purpose of showing that the person pretending to have been the widow of decedent in the administration of an estate and whose name in said proceeding was “Paul,” was not such widow, as against the objection of non-identity of the parties; there having been testimony by a son ’ of decedent that “Paoli” was the Austrian name for “Paul,’ and that they were the same parties who were parties to the- divorce action; the more so .in that the names of the children of the deceased strongly tend to identify the parents respectively, in the two proceedings, as one and the same person.</p> <p>4. Evidence — Certificate of Marriage — Certified Copy, and Undisputed Evidence of Co-habitation — Re-marriage, As Fraud.</p> <p>A certified copy of a certificate of marriage in a sister state, together with undisputed evidencei that after the marriage the parties lived together as husband and wife, sufficiently establishes the fact of marriage. Held, further, that the record of a subsequent marriage of the parties, was an afterthought and a fraud.</p> <p>5. Executors and Administrators — Decree of Distribution, Setting Aside for Extrinsic Fraud — Fraudulent Concealment as Fraud —Ignorance of Inquirying Heir, Effect.</p> <p>A • decree of distribution, petitioned for by one falsely and fraudulently claiming to be the widow of decedent, was properly set aside upon tbe ground of extrinsic fraud; since fraudulent concealment of facts which would have caused the decree not to have been rendered, constitutes extrinsic fraud sufficient to authorize court, upon discovery of the fraud or upon its being called to court’s attention, to vacate same; and filing-of a fraudulent petition for administration is extrinsic fraud. So held, where the son of decedent, some three years after final distribution, petitioned for setting aside of the decree on said ground; he being uneducated and with but little knowledge of court procedure in this country, and it appearing that during process of administration he inquired of the pretended widow, his mother and her attorney, and was informed that his mother already had everything fixed and had “got the property,” and that he would get what was coming to him; he being absent at time of his father’s death.</p> <p>6. Judgments — Judgment Procured Through Extrinsic Fraud on Court, Vacation Of, As Void — Estoppel Re Minors, Whether Applicable.</p> <p>Where judgment or decree was procured through and is the result of extrinsic fraud practiced on court, it may thereafter at any time be vacated and set aside as void; and where no intervening rights of innocent parties are involved, the equitable rules of estoppel have no application. So held, in favor of petitioning minor brothers, heirs of decedent, to set aside decree of distribution based upon petition of one falsely claiming to be the widow of decedent.</p>

Hon. Frank B. Smith, Judge. The defendant, Harry Goodnow, was convicted of the crime of incest, and he appeals. ' (2) To point two of the opinion, Respondent cited: Blashfield’s Instructions, section 380; ‘White v. Maxey, 64-Mo. 552. (3) To point three, Appellant cited: State v. Robinson, (la.), 152 N. W., 590. Respondent cited: Burdick v. Haggart (N. D.), 22 N. W. 589; State v. Gartrell (N. W.), 71 S. W. 1045; Crocker v. P'eople (111.), 72 N. E-74‘3-

Hon. William Williamson, Judge. Action -by Herman Wordchoff, against F. J. Nepper and another, to enjoin defendants from entering upon Indian lands in possession of plaintiff. From an order denying - an injunction pendente lite, and dissolving a temporary restraining order, defendants appeal.

<p>1. Insurance — Fire. Insurance — Insured in Possession as Ostensible-Owner, 'Whether Entitled to Recover for Ross.</p> <p>Where ofie- 'in possession of a grain elevator standing upon ground leased by a railway company to him, was claiming to-■be absolute owner of and was operating the elevator as his individual property and in control and enjoyment of the property when policy was issued and when loss occurred, he is entitled to recover for the loss-, as against the claim of insurer that there was no formal transfer or conveyance of the prop-’ erty from a former known owner to plaintiff So held, there-being no claim that any person other than plaintiff had any beneficial interest in the property or had suffered loss by destruction thereof.</p> <p>2. Same — Owner, Title, Failure of Insurer to Inquire Into, Effect as-Waiver — Beneficial Interest as Basis of Recovery.</p> <p>It is, the recognized rule ,of law that where an insurer of -property insures without inquiry into precise state of title thereto before issuing policy, it waives ■ the ownership clause therein; not that one having no -right or-'title to property may insure it as his own, and collect insurance in case of its destruction, which transaction would be void as against public policy; but a perfect legal title is not essential; and where insured has a beneficial or equitable interest in the property, he may enforce an insurance contract, notwithstanding the ownership clause therein.</p> <p>■8. Same — Ownership of Property, Transfer of By Purchase of Stock of Corporate Owner — Evidence of Stock Purchase, Incompetency of — Transfer of Corporate Stock,- Rule Res — Harmless Error.</p> <p>In a suit to recover for fire loss under an insurance policy, trial court erred in admitting evidence of alleged transfer of its property from a corporation to plaintiff through purchase by him of all its capital stock, the evidence being objected to as not the best; that stock transfers must be recorded in a transfer book and evidenced by issuance of stock certificates; and where evidence of such transfer is unaccounted for, parol is . incompetent. Held, further however, that such error was not prejudicial, there being sufficient other evidence of ownership in plaintiff.</p> <p>-4. Same — Eire Insurance — Gasoline Kept, Used, Allowed, “On Premises,” Voiding Policy For — Kerosene and Gasoline Used to Facilitate Elevator Machinery, Effect!</p> <p>Where, in a suit to recover for firei loss by owner of a grain elevator, insurer defended on ground of viodness of the policy because of plaintiff having kept and -used gasoline upon the premises contrary to a provision in the policy voiding it “if gasolina be kept, used or allowed” on the premises; it appearing that on the day of the fire the owner undertook to operate the machinery in the elevator, portions of which under the elevator floor had become badly coated with rust; that for purpose of removing the rust he applied a mixture of kerosene and gasoline to the rusted parts, then started the machinery; that shortly thereafter fire was discovered under the elevator and through openings in the floor; it not appearing whether presence of said mixture was the cause of the fire; that, assuming that the mixture had been kept on the premises for a considerable length of time before the fire, yet it not being shown nor claimed that its use for removal of the rust was unusual or unnecessary, held, such use in keeping of the same upon the premises would not work a forfeiture of the policy;'that what was intended by the policy to be prohibited is the habitual use ■for some considerable time, of such articles, not their exceptional use upon some emergency.</p> <p>-5. Same — Fire Insurance-Use of Gasoline and Kerosene on Premises, Whether Increase of Hazard “Within Control or Knowledge of Insured.”</p> <p>Nor was the 'presence and use of said mixture, as above shown, a violation of a clausei in the policy providing that “if the hazard be increased by any means within the control or knowledge of the insured” the policy shall be void; since the use so made of such mixture did not increase the hazard within the meaning of said provision.</p>

<p>Original proceedings. In re disbarment proceedings against Joe II. Kirby.</p>

Hon. Robert B. Tripp, Judge. Action iby Harry Gartner, against John J. 'Mohan, to recover ■damages for personal injury. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (1) To point one of the opinion, Appellant cited: Enox v. St. Paul Fire & Marine Ins. Co. (S. D.) 57 N. W. •gig; Fallon v. Rapid City, (S. D.) 97 N. W. 1009; Smith v. Northern Pac. R. Co., 58 N. W. 345.

Appealed from- 'Circuit Court, Corson County. Hon. Raymond lb. Diulman, Judge. Action by H. R. Keairnes, against the Chicago, Milwaukee & 'St. Paul Railway Company, a corporation, to recover damages for personal injury while plaintiff was travelling in charge of an interstate livestock shipment under a drover’s pass. Erom a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (i) To point one of the opinion, Appellant cited: C. M. & St. P. Ry.

Ho-n. Thomas-h. Bouck, Judge. Action by Joseph H. Hayden, against the City of Sisseton, to-recover upon municipal bonds. From- a judgment for defendant, and from an order denying a new -trial, plaintiff appeals.

Hon. Robert B. Tripp, Judge. Action by B. G. Harden, against’ C. N. Richards, to recover damages for defendant’s failure to comply with his contract with plaintiff for exchange of lands. From a judgment for plaintiff for nominal damages only, and from an order denying a new trial, he appeals.

Hon. Devi McGEE, Judge. Action by Ben M. Wood (substituted' in lieu of George F. Schneider), as administrator of the estate of Ghauncey R. Wood, deceased, (Ben M. Wood, Intervener), against Fred C. Mc'Cain, as administrator- of the estate of Bessie F. Wood, deceased, to rer cover rentals under a leasehold. From a judgment for plaintiff and intervener, defendant appeals. (4) To point four, in re insurance, Appellant cited: Harrison v. Pepper, (Mass.) 33 R. R. A. 239.

Hon. Thomas L. Bouck, Judge. Action -by Rochus Hulm, against the Chicago, Milwaukee & St. Paul Railway Company, a corporation, to recover damages for personal injury. From a judgment for plaintiff,- and from an order denying a new trial, defendant appeals. (2) To point two of the opinion, Respondent cited: Johnson v. Burnside, (S. D.) 52 N. W. 1057.

Hon. Frank E. Smith, Judge. Petition by George Thiel and Fid Montgomery, against the City of Alexandria in Hanson County, State of South Dakota, for exclusion of plaintiff’s land from the corporate limits of said city. From a judgment for defendant, plaintiff Thiel appeals. Appellant cited: Johnson v. Incorporated Town of Castlewood, 168 N. W.' 124.

Hon. Frank B. Smith, Judge. . Action by Theodore Heidner, as Administrator of the Estate •of Edwinia Heidner, against Philip Germschied, to recover 'damages for killing of plaintiff’s child by defendant automobile driver. From a judgment for plaintiff, andi from an order denying a new trial, defendant appeals. (4) To point four of the opinion, Appellant cited: Zoltovski v. Gezalla, 124, N. W. 527.

Hon. Joseph W. Jones, Judge. Proceeding in habeas corpus by L. John Hjaglund, against , Carrie (Karrie) Egge and others, to recover possession of rela.tor’s minor child. From a. judgment denying the writ, relator appeals. (i) To point one of the opinion, Appellant cited: Engle v. Yorks, 7 S. D. 261. Respondents cited: Legate v. Legate, (Texas), 28 S. W. 281; Peese v. Geller-.man, no S. W. 196; State Ex Rel.

Hón W. N. Skinner, Judge. Action by Minnie G. Way, against Rodney Hill and others, to redeem from an execution sale. From an order overruling a ■demurrer to the complaint, defendants appeal. (i) To point one of the opinion, Respondent cited: Wagner v. Abrahams, >S. D. 168 N. W. 762. (3) To point three, Appellants cited: Aft. 5, Chap. 13, Code Civ.

Hon. Joseph W. Jones, Judge. Action by Avery Company, a corporation, against J. N. Peterson, tb recover upon a note given for purchase money of a tractor, defendant counterclaiming for breach of warranty. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. (3) To point three of the opinion, Appellant cited: Davison v. Robinson, 67 la. 355, 25 N„ W. 280; Robinson et al v. Burkey, hi la., 550, 82 N. W. 072: Equitable Mfg.

Hon. Arva E. Tayror, Judge. Action by Astoria State Bank, a corporation, against C. T. Markwood and others, to recover upon a promissory note. From a judgment for plaintiff, and from an order denying a new trial, ■defendants appeal. (i) To point one of.the opinion, Appellants cited: Wortendylce v. Meehan, (Neb.) 2 N. W. 339; Reid v. Kellogg, 8 S. D. 596, 67 N. W. 687.

<p>1. Mortgages — Foreclosures—Redemption Period, Sheriff's Certificate Extending, Conclusiveness Of — Statute)</p> <p>Por reasons stated in former opinion (40 S. D. 575, 168 ■N. W. 762,) holding that the statutory provision that the sheriff’s certificate evidencing payment of taxes on the mortgaged land and one year's interest in advance, “is conclusive of such ¿payment” (Code Civ. Proc., Sec. 646,) is adhered to.</p> <p>2. Same — Amount Necessary to Redeem — inconclusiveness of Sheriff’s Certificate — Inadequate Payment for Extension, Credit for on Redemption.</p> <p>In determining the amount necessary to redeem from foreclosure of a realty mortgage under said Sec. 646, sheriff’s certificate re extension of time to redeem is not conclusive that the full amount of interest covering periods specified in said section has been paid; lienee, upon redemption, redemptioner is entitled to credit on amount necessary to redeem, of an inadequate amount paid to obtain such extension. Held, further, that the amount necessary to redeem is that for which property was sold on foreclosure, with interest at 7%, and the amount of necessary assessment of taxes purchaser may have paid after purchase, with interest at the same rate (Secs. 646, 376.)</p>

Hon. Frank B. Smith, Judge. In the matter of the estate of Miles Me'Boughlin, deceased.

Hon .W. N. Skinner, Judge. Action ;by M. J. Conway, against R. W. Burk and another, to recover a commission upon a sale of land. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. (2) To point two of the opinion, Appellants cited: Jensen v. Bowne (N. D.) 164 N. W. 4; Michigan Steel Box Co., v. United States, 49 Ct. Cl. 421. Respondent cited: Tangford v. Issenhuth (S. D.), 134 N. W. 889-893-894-895.

Original action 'by the State of South Dakota, on the relation of Byron >S. Payne, as Attorney General, and John J. Murphy, and P. W. Dougherty, as and constituting- the Board of Railroad: Commissioners of the State of South Dakota, against the Dakota Central Telephone Company, a corporation, and others, to enjoin the ■defendants from putting into effect certain tariffs and schedules of rates, changes and. regulations governing transmission of long distance intrastate…

Hon. Carr ■ G. Sherwood, Judge. Action by 'Charles Hudson, against Mark W. iSheafe, to recover upon a foreign judgment. Prom a judgment for 'defendant, and from an order denying a new trial, plaintiff appeals. (4) To point four of the opinion, Appellant cited: Pico v. Cohn, 91 Cal. 129, 25 Pac. 970, 27 Pac. 537, 13 L. R. A. 336; Benton v. B-urgot, 10 Serg. & R. (Pa.) 240; 23 Cyc. 1099 1589, 1590.

Hon. Thomas L. Boucic, Judge. . Action iby Clara J. Stage, against Frank O. Doll, Patrick J. McCormick and Western Surety Company, a corporation, to recover damages resulting from sales of intoxicating liquors 'by defendants to plaintiff’s husband. From' an order granting to plaintiff a new trial, defendants appeal.

Hon. Joseph H. Bottum, Judge. Action by Abraham Privat and others, against the Grand Bay Land Company, a corporation, to recover a corporate dividend declared by -defendant. From- a judgment for defendant, and from an order -denying a new trial, plaintiffs appealed. (9) To point nine, Respondent cited: Ford v. Fasthampton Rubber Thread Co., (Mass.) 35 A. S. R. 462.

Hon. Joseph W. Jones, Judge. Action by Earl A. Reading, as administrator of the Estate of Frank E. Reading, deceased, against Arthur Hutton, to recover damages for personal injuries causing the death of plaintiff's child. From a judgment for defendant, and from' an order denying a new trial, plaintiff appeals.

'Hon. Frank B. 'Smith, Judge. Action by Paul 'Murphy, against John Eraas, in claim and ■delivery. From a judgment for defendant upon directed verdict, and from an order denying a new trial, plaintiff appeals. (1) To point one of the opinion, Appellant cited: . 6o C. R. 14. (2) To point two, Appellant cited: Code Civ. Proc., Sec. 273, 237; Search v. Miller, 1 N. W. 151.

Hon. Cari, G. .'S'HkRWOOD, Judge. Action by U. Amacher, against W. W. Sours, to recover ■damages for breach of warranty in sale of agricultural seed. From a judgment for plaintiff, and from an order denying a new trial, •defendant appeals. Appellant cited: Ross v. Northrup King & Co., (Wis.) 144 N. W. 1124.

Hon. Joseph W. Jones, Judge. Action by J. E. Simmons, against the Rock Island Plow Company, a corporation, to recover damages upon warranty of sale ■of a plow tractor. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Hon. James 'McNenny, Judge. Action by The Meade County Bank of Sturgis, a corporation, against James Fredericks and another, to foreclose an equitable mortgage on realty. From- a judgment for plaintiff, and from an •order denying a new trial, defendants appeal. (2) To point two of the opinion, Respondent cited: Foster Lumber Co., v. Harlan Co. Bank, (Kas.) 80 Pac. 49.

Hon. Robert B. Tripp, Judge. Action by William To'bin, Sr., against W. L. Bruce, as Administrator of the estate of John T. Tobin, deceased, and another, to recover a portion of damages paid by a railroad company for negligent killing of plaintiff’s son. From, a judgment dividing money in hands of executor equally between plaintiff and defendant mother of deceased, and from1 an order denying a new trial, defendants appeal.

'Circuit Court; Beadle County. Hon. Alva E. Taylor, Judge. In the matter of the estate of Emma B. Ketcham, deceased. Upon final distribution of the estate, report of appraisal commissioners was confirmed by county court in favor of a private sale of the realty to Frank H. Ketcham, husband of deceased, and administrator of the estate and petitioner for final distribution, against the objection of Ella G. Anderson, an heir and other heirs.

Hon. Carl G. Sherwood, Judge. Action by -Duplex. Printing Press Company, a corporation, against the Public Opinion Publishing Company, a corporation, to recover possession of personalty. From' a judgment for plaintiff, and- from an order denying a new trial, plaintiff appeals. (1) To point one of the opinion, Appellant cited: C. W. Raymond Co. v. Kahn (Minn.) 145 N. W. 164; W. W. Kimball Co. v. Masse (Minn.), 148 N. W. 307; Peterson v. Chess (Wash.), i'59 Pac. 894.

Hon. John F. Hughes, Judge. Action by 'Myrta Lyke, against The First National' Life & Accident Insurance Company, to recover upon a policy of life insurance. From a judgment for defendant, and- from an order denying a new trial, plaintiff appeals. (1) To point one of the opinion, Appellant cited: Thomas Manufacturing Co. v. Lyons, 29 S. D. 600; Civ. Code (1903) Sec. 1212. ■Respondent cited: Robinson-v. U. S. Ben. Soc., (Mich.) 94 N. W. 2Ti.

<p>Upon, rehearing.</p>

Hon. Robert B. Tripp, Judge. Action 'by the Fidelity Savings & Loan' Association, a corporation, against Edward Reese and Anna M. Reese, for personal judgment against the former, and to set aside an alleged fraudulent conveyance from Edward Reese to the co-defendant. From a judgment for defendant, Anna M. Reese, and from an order denying a new trial, plaintiff appeals. (i) To point one of the opinion, Appellant cited: Dillon v. Horn, 5 How.

Hon. William WlLLTAMSON, Judge. ' The defendant, Harry Larson, was convicted of the crime of grand larceny, and he appeals. (3) To point three of the opinion, Appellant cited: State v. Merri, 164, N. W. 76 (■& D.) Respondent cited: State v. Kirkpatrick, 34 N. W. 301; Kurpgeweit v. State (Neb.) 151 N. W. 172.

Hon. William Williamson, Judge. Action by The Farmers’ Live 'Stock Loan Company, a corporation, against L. B. Anderson, to recover judgment upon, and to foreclose, a mortgage securing a negotiable note, plaintiff being indorsee. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Appellant cited: Reid et al v. Kellogg, 8 S. D. 596.

<p>Appeal from- 'Circuit Court, 'Mellette 'County. Hof. 'William Williamson, Judge.</p> <p>The defendant, James R. English, was convicted of the crime of grand larceny, and he appeals.</p>

Hon. A. L. McNaughton, Judge. Action by George Fowler, against the Aberdeen Railroad Company, a corporation, to recover damages for injury to plaintiff’s automobile by defendant’s street car. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (i) To point one of the decision, Appellant cited: Scheuer v. Manashaw, 137 N. Y; S. 534. Respondent cited: ■ Evans v. Koons, 38 N.. E. 350,; Fisher v. Holmes, 24 N. E. •377-

Hon. Louis L. FlEEGEr, Judge. ' Proceeding in mandamus, by the State of South Dakota, on the relation of P. 1V. Dougherty, J. J. Murphy and F E. Wells, as the Board of 'Railroad Commissioners of the State of South Dakota, against The Hurley Telephone Company, a corporation, and others, to compel- defendant telephone -company to comply with a certain ord'ér' óf' said railroad commission. -From a judgment in- favor of defendant telephone company, and from an order denying a…

Hon. Joseph W. Jones, Judge.. Action by the 'County of McCook, and the American Surety Company of New York, a corporation, against the First National Bank of S-alem, -South Dakota, to recover the amount of moneys paid out of county statutory -deposit -by -defendant bank on alleged fraudulent and illegally signed checks. From a judgment for -defendant, and from an order denying a new trial, plaintiffs appeal.

<p>1. Insurance — Fire Insurance — Notice of Loss, Evidence Re— Former Opinion, Modified.</p> <p>This Court in its former opinion (41 S. D. 311, 17.‘0 1ST. W. 154), in commenting upon the eifect of defendant’s déposition offered by plaintiff, concerning notice of loss under fire policy in question, having, inadvertently misunderstood the purpose for which said evidence was introduced; therefore that portion of the former o.pinion following the quotation of said evidence, wherein the Court assumed -that the letter of July 9 had not been received by defendant, is withdrawn.</p> <p>2. Same — Proof of Loss, Receipt of by Unregistered Letter, Mailing, Inference From — Policy Construed — Directing Verdict.</p> <p>Under a fire insurance policy providing that in case of loss the insured “shall notify the secretary in person, or by registered letter,” held, that the mere mailing of an unregistered letter does not carry the inference that proof of loss contained therein was received by addressee; that the requirement of notice by registered mail is reasonable and within competency of the contracting parties. Nor, in absence of such inference of fact, will it avail plaintiff to urge that if defendant did receive notice, its not being sent by registered mail was unimportant; since such construction would eliminate the provision for registered notice. Held, further, that trial court erred in denying defendant’s motion for directed verdict.</p>

Hon. -Louis L. FleEGER, Judge. Action by John Hall, against J. W. Reynolds, to recover a commission on a sale of realty. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Appellant cited: King v. Dahl, 84 N. W. 736.

Hon. Alva E. Taylor, Judge. Action by Emil 'Langbehn,' against the American Insurance Company, of Newark, New Jersey, a corporation, to recover on a policy of fire insurance. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Ho,n. Alva E. Taylor, Judge. Action by May Button, against E. J. Granburg, and the United States Fidelity and Guaranty Company} upon a retail dealer’s bond, to recover damages resulting from the sale of intoxicating liquors to plaintiff’s husband. From a judgment for' plaintiff, and ■from an- order denying a new trial,-defendants appeal..

Hon. William Williamson, Judge. In the matter of the estate of James Golder, deceased. The county court by order admitted will to probate, upon appeal from which order by contestants the circuit court affirmed the order.

Hon. Thomas L. Bo.uck, Judge. Actions 'by Grant County, South Dakota, against the C. E. McGowan Lumber Company, a co-partnership; the same against Plymouth Gypsum Company,, a corporation; the same against Lewis & Nelson, co-partners; and the same against Burt W. Lamphier; the J. B. Evans ¡Construction Company, a corporation, and the Maryland Casulty Company, a corporation, having been made co-defendants in each of the 4 actions; being actions to determine the various…

Hon. Joseph W. Jones, Judge. Action by Farmers’ Elevator Company, of Beresford, South Dakota, a corporation, against the United States Fidelity and Guaranty Company of Baltimore, Maryland, a corporation, and Elmer Cyrus Morrill, to recover upon a bond of indemnity. Erom a judgment for plaintiff, and from an order denying a new trial, defendant United States Fidelity and Guaranty Company, appeals.

Hon. Thomas D. Boucic, Judge. Action by Ward Grandprey, against George A. Bennett and others, to recover damages resulting from failure of a national bank to pay him in full. From an order denying a motion to strike certain allegations from the complaint, defendants appeal. (1) To point one of the opinion, Respondent cited: Allen v. Luke, 163 Fed. 1018. (2) To point two, Respondent cited: F. M. Davies & 'Co., v. Porter, 248 Fed. 400; Callwell v. Bates,.

Original proceeding in the 'Supreme (Court in mandamus, by-Roy B. Marker, as guardian of the person an-d- estate of Henrietta Van Gerpen, an Incompetent Person, against Honorable L. Iy.

Hon. Joseph W. Jones, Judge. Proceeding in certiorari, to review proceedings of Anna M. Eddy, county superintendent of schools of Minnehaha County, in the matter of consolidation of certain school districts into a- new district.

Hon. Joseph W. Jones, Judge. Action by A. W. Palmer, against against I. L. Bratager, to recover damages upon an attempted recission of contract of exchange of lands for railway stock. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (i) To point one of the opinion, Appellant cited: Lawson’s Pres. Evid. 190, 581; 'Stark. Evid. (4th Ed.) 76, 161. Respondent cited: Guy v. Mcllree, 26 Pa. St., 92; Garrett v. Winbefg, 37 S. E., Si-