Volume 42 — South Dakota Reports

Action by James A. Quigg, against Stanley County, South Dakota, to recover a claimed balance of salary as county auditor. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. •

Hon. William Williamson, Judge. The defendant, J. P. Waitmaii, was convicted of the crime of grand larceny, and he appeals. (1) To point one of the opinion, Appellant cited: 16 C. J. 891; State v. Barton, (Ore.), 142 Pac. 348; Flint v. Commonwealth 23 IS. W. -346. Respondent cited, re failure to except: ■ State v. Guffey, 39 ¡S. D. 84, 163 N. W. 679. (2) To point two, Appellant cited: Owens v. State, 67 So. 39, Ann. Cas. 1917B 252.

Hon. Louis L. EuikGKR, Judge. Action by Western Town Lot Company, a corporation, against the city of 'Salem, South Dakota, and others, to enjoin the construction of a sidewalk. From' a judgment for plaintiff, and from an order denying a new trial, defendants appeal. (i) To point one of the. opinion, Respondent cited, re necessity for grade: City of 'Chicago v. Edens (111.), 105 N. E. 730.

Hon. Joseph W.- Jones, Judge. Action by G. W. Wright, against Arnold Dubbeide and others, to- recover damages for failure to. deliver corn per contract. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. (3)' To point three, Appellants cited: Jones v. McBwen (Ky.) 16 S. W. 81; Duckwall v; Brooke, (Ky.) 65 'S. W. 357.

<p>Appeal from Circuit Court, McCook County. Hon. Joseph W. Jones, Judge:</p> <p>Action by Bertha Ellen Krantz, against Arthur H. Krantz, for divorce; cross-bill toy defendant. From an order allowing service and filing of an amended answer embracing the cross-bill plaintiff appeals.</p>

Hon. Wtt,t,tam Wiiriamson, Judge. Action by M. V. Barney, against Joseph Morrissey, to recover damages for breach of warrant)' in the sale of a mare. From a judgment for plaintiff, and -from an order denying a new trial, defendant appeals.

Hon. Frank B. Smith, Judge. Action -by C. F. Root, against William Martin, for cancellation of a deed to realty and the record thereof. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Hon. Joseph W, Jones,- Judge. Action by Fred L. Stevens, ag'ainst the Whole Wheat filling Company, a corporation, to recover upon promissory note. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Appellant cited: Civ. Code, -Sec. 1687; Pomeroy’s Eq. Jurisprudence, (3rd Ed.) Sec. 675; Armstrong v. Ashley, 204 U. S. 272, 51 L. Ed. 482; Boursot v. iSavage, E. R._ 2 Eq. 134; Mediem- on Agency (2nd Ed.) Sec. 1823.

Hon. Joseph W. Jones, Judge. •Action by Churchill & Alden Company, a corporation, against W. H. Ramsey and Ella B. Ramsey, to set aside and cancel a deed to realty. -From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. (1) To point one of the opinion, Appellants cited: Clark v. Evans, 6 S. D. 244; 60 N. W. 862; Kreuger v. Dodge, 15 S*.

Hon. Louis L. FluEGEr, Judge. Proceeding in mandamus by the State of South Dakota on the relation of Lyons Independent Consolidated District No. 3, a school corporation, against Josephine Anderson. From an order overruling demurrer to plaintiff’s alternative writ of mandamus, defendánt appeals.

Hon. W. N. Skinner, Judge. Action -by Hazel Porcht, against the North American Pife and Casulty Company, a corporation, to recover upon a policy of accident insurance. Prom a judgment for plaintiff, and from an • order denying a new trial, defendant appeals. (2) To point two of the opinion, Appellant cited: 1 C. J. 444; 8 Words and Phrases Judicially Defined, 7149; Romm ell v. National Travelers Benefit Association, |Iowa),' 166 N. W. Rep. 455; Hodgson v. Dexter, 12 Fed.

Hon. Louis L. FlEEGEr, Judge. Action by John E. Larum, against C. A. Butler, to recove! damages for personal injury resulting to plaintiff by being negligently struck by defendant’s automobile. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (2) To point two of the opinion, Appellant cited: Johnson v. -St. Paul City Ry. Co., (Minn.). 55 N. W. 900; Patten v. Ry. Co., 32 Wis. 524.

Appeals from Circuit Court, Brule County. Hon. Frank B. Smith, Judge. Action by Charles S'.

Hon. James Mc-Nenny, Judge. Action by J. A. True, against the Chicago & Northwestern Railway Company, a corporation, to recover damages for negligently killing and injuring plaintiff’s livestock. From a'judgment for plaintiff, and from: an order denying a new trial, defendant appeals. (3) To point three, Appellant cited: Baron v. Iron Co. (Fa.) 51 Atl. 979. (7) To point seven, Appellant cited: Elliott on Railroads, 'Sec. I20'9.- Keeney v. Ry. Co. (¡Ore.), 24 Pac. 233.

Hon. James McNenny, Judge. Action by Gustav Fienup, against A. B. Kleinman and Clyde M. Cessna as Sheriff of P’ennington County, to set aside a mortgage foreclosure sale of realty. From a judgment for defendants, and from an order denying a new trial,' plaintiff appeals. Appellant cited: Power v. Laraber (N. D.), 57 N. W. 79; Brown v. Frisbie, et al 51 Cal. 553; Hibernia Sav. & L. Society v. Benke, 121 Cal. 341, 53 Pac. 8x2; Connick v. Hill, 127 Cal. 164, 59.

Hon. Alva E. Taylor, Judge. In the matter of the dependency and guardianship of Hedrick 'Skowron, Leyzy Skowron, Helen Skowron, Mary Skowron, Anna Skowron, and Stanley Skowron, minor children of Stanley Skowron.

Original proceeding- in mandamus by Farmers Loan & Trust Company, a corporation, against John Hirning, as Public Examiner, and ex officio Superintendent of Banks and Trust Companies, to^compel him to issue to plaintiff'a certificate authorizing it to commence business as a banking and trust company.

Hon. Frank B. 'Smith, Judge. Action by Mary H. Sullivan and Clare Sullivan, against Sarah J. Groves and others, and the Unknown Heirs, Devisees, Legatees, and the Executor or Administrator of he estate of William Groves, deceased, for possession of and to quiet title to realty. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal.

<p>Appeals — Error-—No Bx-ief — Stipulation re Time — Abandonment of Appeal.</p> <p>Where some three months had expired after notice of appeal, ■ and although stipulation for time for serving appellant’s brief was filed, yet, no brief having been filed, nor any stipulation extending time for service thereof, appeal is deemed abandoned, and judgment is affirmed.</p>

<p>Original proceeding. In the Matter of the Disbarment of A. W. Wilmarth, an Attorney.</p> <p>State’s demand of judgment of disbarment, or suspension, refused.</p>

Hon. Frank B. Smith, Judge. Action by S. G. Figland, against J. P. Jones, to recover contract price for construction of an artesian well and furnishing pipe, etc., therefor. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (3)' To point three of the opinion, Appellant cited: Wigmore on Ev., Vol. 1, Sec. 790, and cases cited in note.

Hon. Joseph-W. Jones, Judge. Action by The Whitney Loan ■& Trust Company, a corporation, against Clive F. Brown and others, r.o foreclose a realty mortgage. From a judgment dismissing the action upon findings that the mortgage was void for fraudulent material' alteration thereof after execution, and from an order denying a new trial upon ground of newly-discovered evidence, plaintiff appeals.

Hon. William Williamson, Judge. Action by W. E. Lerurn, against the Chicago, Milwaukee & St. Paul Railway Company, to recove damages for loss of.hogs from defendant’s negligence while in shipment on defendant's train. From a judgment for plaintiff and from an order denying a new trial, defendant appeals.

Hon. Robert B. Tripp, Judge. Action 'by Henry G. Taylor, against Charles C. Edgerton, to quiet title to realty. Erom a judgment for plaintiff, and from an order denying- a new trial, defendant appeals- (3) To point three of the opinion, Respondent cited: Oglesby v. Hollister (Cal.)', 18 Pac. 146; Workman v. Guthrie (Penn.), 72 Am. Dec. 654; Talbott v. Woodford (W. Va.), 37 S. E. 580.

Hon. Joseph W. Jones, Judge. Action by Charles S. McDonald, against George W. Egan. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

A-ppeal from -Circuit Court, Codington County. Hon. AViluiam -N. Skinner, Judge. Action -by Evans & Howard -Eire Brick Company, a corporation, against the National Surety Company, a corporation, to recover upon a contractor’s surety bond. From an order overruling a demurrer to the complaint, defendant appeals.

Hon. William N. Skinner, Judge. Action hy Bernice Nelson, against R. E. Sutton, for damages for breach of promise of marriage. From an order overruling a demurrer to the complaint, defendant appeals. (1) To point one of the opinion, Appellant cited: 3 Ency. Plea. & Prac., page 686; Felger v. Etzell, 75 Ind. 417. Respondent cited: . . 9 C. J. Sec. 44, p. 344. (2) To point two, Respondent cited: 9 C. J. 'Sec. 48, p. 345.

Hon. Frank Anderson, Judge. Action by Grant Robinson, against N. E. Nelson, as Clerk of the Circuit Court of Brown 'County, South Dakota. -From a judgment for defendant, and from an order denying- a new trial, plaintiff appeals.

Hon. Frank B. Smith, Judge. In the matter, of the Estate of Ole Kittleson, deceased. From an order and judgment denying probate of an alleged will, Holver Kittleson and others, proponents, and from an order denying a new trial, proponents appeal. (1) To point one of the opinion, Appellants cited: •Spier v. Spier, 157 N. W. 1014; Rose v. Taylor, (S. D.) 165 N. W. 1079. (2) To point two, -Respondents cited: Ross v. Taylor, (S. -D.) 165 N. W., 1080.

Hon. W. N. Skinner, Judge. Acton by Eva P'ease, against' Robert Cochran, to recover damages for injury resulting from defendant’s frightening plaintiff’s horse. From a judgment for plaintiff and from an order denying a new trial, defendant appeals. (4) To point four of the opinion, Appellant cited: Pollock on Torts, 36; Turner v. Bennett, 142 N. W. 999.

Hon. Thomas L. Boucic, Judge. Action by the Rolbbins Company, a corporation, against W. C. Cook and others, to recover the price of merchandise sold by plaintiff to defendants. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. (i); To point one of the opinion, Appellants cited: Miller v. Ford (.S C.) 5.5 Am. Dec. 687-691; McCurdy v. Rogers (Wis.) 91 Am. Dec. 468-470; Thilmany v. Iowa Paper Co. (Ia.) 79 N,. W. 261; McCabe v..

Hon. Robert B. Tripp, Judge. Action by John R. Lang, against Thomas W. Lang, to recover upon two foreign judgments. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. ' (2)' To point two of the opinion, Appellant cited: Wickersham v. Johnston 104 iCal. 407, 43 Am. St. Rep. 118, 38 Pac. 89; Kenyon v. Baker, 16 Mich. 373. 97 Am. 104 Dec. 158. Respondent cited:.

Hon. Alva E. Taylor, Judge.- Action.by Richard W. 'Clark and Frank Jaehn, pn behalf of themselves and all county taxpayers similarly situated, against the County of Beadle and T. C. Young and others as county commissioners of the County of Beadle, and The Iowa Bridge Company, a corporation, to enjoin defendant commissioners from paying for, and defendant bridge company from constructing certain county bridges, etc. From a judgment for defendants, and from an order denying a…

Bon. Thomas L. Boucic, Judge. Action by L. G. Oschenreiter, against Joseph Block, to recover upon a promissory note. From a judgment for plaintiff, and from' an order denying a new trial, defendant appeals.

'Appeal from Circuit Court, Day County. Hon. Ti-iomas L. Bouck, Judge. Action by D. G. Oschenreiter, against Ben Block, to recover upon a promissory note. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals.

Hon. Robert B. Tripp, Judge. Action by Emma W. Harker, and ¡M. W. Harker as executor of the last will of Josepji Harker, deceased, against A.-E. Cowie and others, to vacate and cancel a judgment, and to quiet title to realty. From a judgment for plaintiffs, and from- an order denying a new tral, defendant - John W. Potter appeals. (1) To point one of the opinion, Respondents cited, re estoppel: Orthwein v. Thomas, xi Am. St. 160.

■. Hon. William Williamson, Judge. Action by P. J. Nepper, against Herman Wordehoff. From an order not made or entered until after notice of appeal, plaintiff appeals. Respondent cited: iState ex rel, Morgan v. Lamm, 9 'S. D. 418; Greenly v. Hopkins, 7 S. D. 561; Chamberlain v. Pledger, et al, 10 S. D. 290; Martin, et al, v. Smith, et al, 11 S. D. 437.

Hon. James McNenny, Judge. Action 'by Barney M. Mullen and •Clarence F. Rourke, co-partners as Mullen & Rourke, against T. W. Dwight and others, as members and constituting and comprising the regents of education of the 'State of South Dakota, a public corporation, to recover for work, labor and materials entering'into construction and alteration of certain state normal school buildings. From a judgment for plaintiffs, and from an order denying a new trial, defendants appeal.

Hon. Robert B. Tripp, Judge. Action by Ravinia State Bank, a corporation, against John B. Kirkpatrick, to foreclose defendant’s right under a land sale contract. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (i) To point one of the opinion, Appellant cited: Minneapolis Machine Co. v. Calhoun, 159 N. W. 127, 37 S. D. 542; 16'Cyc. 760. (Note); Bigelow on Estoppel § 648; Branthover v. 'Monarch Elevator Co., (N. D.) 156 N. W. 927.

<p>Í. Sale — Stolen Cattle, Conspiracy to Defraud Vendee — Deceit, Allegation of Conspiracy, Immateriality Of.</p> <p>In a suit for damages for conspiracy in sale' of stolen cattle to plaintiff, tfi© evidence showing that defendant B, knowing the cattle were stolen, purchased them from K, who re-purchas-. ed part of them and sold them to plaintiff, that when one of plaintiffs inquired of B as to K’s title to the cattle and his right to sell them, he was informed by B that he had purchased the cattle from one H and had a bill of sale from him, that the cattle were “absolutely all fight,” and recommended that plaintiffs buy them; K having testified that B fir,st suggested selling them to plaintiffs, held, that the allegation of conspiracy was immaterial and should be treated as surplusage; that the gravamen of the case was the fraud and deceit so practiced; that if B knowingly aided and assisted K in perpertiating the fraud, he is equally liable with K.</p> <p>2. Same. — Inducing Sale by False Representations, Non-receipt of Proceeds, Whether Necessary to Recovery.</p> <p>Where through false representations a sale of personalty is effected, it is immaterial to recovery that he who deceived received none of the proceeds of the illegal ■ transaction nor was benefited thereby; it being sufficient to show intention to induce the person defrauded and who relied upon it to do or refrain from doing something he would not otherwise have done, to his pecuniary injury, after acting with reasonable prudence.</p> <p>3. Evidence — Impeachment of Party — Reputation Good “So Far as She Knew,” Refused Instruction Assuming Reputation Proven, Propriety.</p> <p>Where, for purposes of impeaching, a party defendant a witness had testified that, "so far as she knew” his reputation whs good, held, that trial court properly refused an. instruction to the effect that plaintiffs thereby made witness their own and that defendant’s good reputation had been proven; such instruction implying that jury must accept said testimony as true.</p> <p>4. Trials — Non-resident Juroi", — Knowledge of Non-residence, Acceptance of Juror With, Waiver By. . .</p> <p>That a juror, otherwise qualified, was a non-resident of the county of the trial, and served upon the jury, is not ground for new trial; such disqualification having 'been waived by appellant after previous knowledge of his non-residence.</p>

Hon. Louis L. Flerger, Judge. w In the matter of the Estate of Patrick Fleming, deceased. Sarah E. 'Welsh and others, having contested the probate of decedent’s will, before a jury, findings and judgment were in favor of its validity. From the judgment admitting will to probate, ¡Sarah E. Welsh and others appeal. (i) To point one of the opinion, Appellants cited: Sec. 359, Prob. Code, Laws 1917, 'Ch. 182; Clough v. Clough, 10 Colo.

<p>Appeal from Circuit Court, Ziebach County. Hon. Raymond L. 'Diiaman, Judge. \</p> <p>Action by 'George Lebon, as -County Treasurer of Ziebach County, 'South Dakota, against William M. Griffith, to enforce collection of delinquent personal property taxes. From a judgment for plaintiff, and from an order -denying a new trial, defendant appeals.</p> <p>(3) To point three of the opinion, Appellant cited: Langford v. Monteith, 102 U. ’S. i45;.Peano v. Brennan, 20 S. D. 342, 106 N. W. 409; United States v. Ewing, 27 Fed. 809; Laws 1915, Ch. 168" Pierre and Fort Pierre Bridge Ry. Co., v. Stuart, et al (S. D.) 168 N. W. 33.</p> <p>Respondent cited:</p> <p>'Sec. 2, Art. XI, Const.; Savings Bank v. County, 29 S. D. 146; Pol. Code 1903, Sec. 2059; Vol. 6 of Ene. U. S. Supreme Court Repts., and cases cited".</p>

Hon. Alva E. Taylor, Judge. Action by A. W. Palmer, as Trustee, against the City National Bank of Huron, S'.’ D., to recover upon a promissory note. From a judgment for plaintiff, and from an order granting a new trial, plaintiff appeals.

Action by Emma Smith, against Manning Smith and others, to recover damages for alienation of plaintiff's husband’s affections. From a judgment, for plaintiff,.and from an order denying a new trial, defendants appeal. (1) To point one of the opinion, Respondent cited: 3 Elliott on Evidence, Sec. 1648; Hardwick v. Hardwick, 130 la. 230, 106 N. W. 639; White v. White. 140 Wis. 538, 122 N. W. 1051.

Hon. Joseph W. Jones, Judge. Action by James O’Leary, against O. Croghan, to recover upon a promissory note. From an order therein overruling defendant’s motion to set aside defendant’s personalty as exempted, etc., he appeals. Appellant cited: Bofferding v. 'Mengelkoch, et al., (Minn.) 152 N. W. 135; Coleman v. Ballandi, 22 Minn. 147; Tuttle v. Strout (Minn.) 82, Am.

Hon. William N. Skinner, Judge. Action by the City of Watertown, a municipal Corporation, against the Watertown Light & Power Company, a corporation, to restrain defendant from putting into effect a new schedule of rates for electrical current to be furnished by it to its patrons in plaintiff city. Prom an order denying an injunction, plaintiff appeals.

Hon. Joseph W. Jones, Judge. Action by Ole O. Ulrickson, against Trena Ulrickson to quiet title to realty. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (2) To point two of the opinion, Appellant cited: Caldwell v. Pierson, (S. D.) 159 N. W. 124. 'Respondent cited: Re ex rel, affidavit; McKinnon v. Fuller (S. D.) et al., 146 N. W. 910.

Hon. William Williamson, Judge. Action by Ella McHenry, against A. W. Lintecum and others. From a judgment for defendants, and from an order denying a new trial, plaintiff appeals.

■Appeal from ¡Circuit Court, Marshall County. Hon. Thomas L. Bouck, Judge. Action by Kidder Equity Exchange, a corporation, against Gus N. Norman, to enjoin defendant-from engaging in the business of grain dealer at Kidder, South Dakota. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. . (i) To point one of the opinion, Respondent cited, re restraint of trade: ■ 12 Ruling Case Law 984; Caswell v. Hazard, 121 -'N. Y. 484, 18 Am.

Hon. Louis L. FeEEGER, Judge. Action by B. F. Burnett, against Henry Myers, to recover damages caused by trespass of defendant’s hogs. From an order presenting a demurrer to the complaint, plaintiff appeals. (1) To point one of the opinion, Appellant cited, re remedy : Vol. 23, Am. & Eng. Enc. of Law, at page 393; Corpus Juris, Vol. 3, page 139, paragraph 417. (2) To point two, Appellant cited, re common law: Hiouska v. Hrabe, 35 S. D. 269, 151 N. W. 1021.

Hon. Raymond 3b. Dirrman, Judge. Action by Emma Gilmore, against Silas A. and Stella Gilmore, to recover damages for alienation of affections of plaintiff’s 'husband. From a judgment for plaintiff, and from an order denying a new trial, -defendant’s appeal. (1) To point one of opinion, Appellants cited: 3 Elliott on Evidence, Section 1648; White v. Ross, 47 Mich. 172, 10 N. W. 188; Leucht v. Leucht,. 129 Ky. 700, 112 S. W. 845, 130 Am. St. Rep. 486.

<p>1. Intoxicating Biquors — Intoxication, in Public Place, In Private Place to Another’s Annoyance — Instruction Construing Ordinance re Disorderly Conduct, Error.</p> <p>Under a city ordinance prohibiting drunkeness in any 'public place within the city, or within any private place “to the annoyance of any person,” court’s instruction authorizing jury to convict defendant of disorderly conduct whether he was intoxicated or not', held, error wherein it construed the ordinance as defining two offenses, one for intoxication, the other for disorderly conduct, and authorized verdict of guilty if jury was satisfied defendant was conducting himself in a disorderly manner even though not intoxicated.</p> <p>2.' Intoxicating Liquors — Ordinance Prohibiting Intoxication in Public Place,' In Private Place “To Annoyance oí Another,” Conviction, Whether Justified Under Statute for Offense “Included” In Another.</p> <p>Nor could a conviction ibe sustained for disorderly conduct without intoxication, since that offense is not included in the ordinance, and Code Cr. 'Proe., Sec. 409 (Sec. 4926 Rev. Code 1919) authorizing jury to find defendant guilty of any offense necessarily included in that with which he is charged, is inapplicable, since disorderly conduct without intoxication is not included in the offense prescribed in the ordinance and charged in complaint.</p> <p>3. Intoxicating Liquors — Complaint Charging Intoxication “To Annoyance of Another,” Whether Charging Disorderly Conduct— Constitutional Provision, Sufficiency of Evidence, Immateriality.</p> <p>A complaint under an ordinance prohibiting drunkeness in any public place within the city, and in any private- place “to the annoyance of any -person,” which alleged that defendant became intoxicated, “and was disorderly to the annoyance- of persons in the community,” “contrary to the ordinance,” does not apprise defendant that he is therein charged with disorderly conduct, within meaning of Const., Art. 6, Sac. 7, providing that accused is entitled to knaw nature and cause of accusation against him; and a conviction thereunder for disorderly conduct is> prejudicial error, even though the evidence be sufficient to sustain such conviction.</p>

Original application in Supreme Court, by Arthur Davison, and others, against the Circuit Court of Kingsbury County, in the-Ninth Judicial Circuit of the State- of South Dakota, and Honorable Alva E. Taylor, presiding judge, and H. J. Hamilton, ■ clerk, for a writ of certiorari directed to the circuit court, commanding it to make return to the Supreme Court of its proceedings, upon a motion thereto made by the appellants to dismiss the action. Upon return of the writ.

Hon.. Frank B. Sarin, Judge. ... . Action by W. L. Montgomery and others, against Guy Kelley, as administrator of the estate of .Peter .B. Dirks, deceased; Susanne C. Dirks, intervener. From a judgment for' defendant Susanne C. Dirks, intervener, and from an order denying a new trial, .plaintiffs appeal.

<p>1. Appeals — Using Brief on Former Appeal, Motion — Belated Appeal, Effect.</p> <p>Appellant’s motion for an order allowing him to use upon present appeal the printed brief filed on former appeal, is denied; the appeal itself having been taken too late.</p> <p>3. Appeals — Order, Time for Appeal from — Notice of Order by Mail, Whether Time Extended Sixty Days.</p> <p>The fact that notice of filing of an order was served by mail, does not effectuate an extension of time for an additional sixty days after service of written notice of order, (Sec. 3146, Rev. Code 1919), within the meaning of Sec. 2585, providing that service by mail “shall be double the time required in cases of personal service;” that this section applies where party giving notice thereby seeks to fix date for doing of something at a certain time in future, and is inapplicable, to notice of a past event, even though giving of such notice might have started running of a statute of limitations against party receiving same. Smith, P. J., dissenting.</p>

■ Appeal from Circuit Court, Hutchinson County. Hon. Rob•iSrt B. Tripp, Judge. ' • Action by the State of South Dakota on the relation of J. C. Graber, State’s Attorney, against Karl Schmidt, to oust defendant from the office of sheriff of. Hutchinson County. From an order overruling a demurrer to the complaint, defendant appeals. (2) . To point two of the opinion, Appellant cited: Wade v. State, (Tex.) 2 'S. W. 594. Respondent cited, re' enrolled bill: Court in State ex rel.

Hon. Joseph H. Bottom, Judge. Action by P. W. Loomis, against Julius C. 'Stoddard and another, to quiet title to realty. From a judgment for plaintiff, defendant Julius C. Stoddard appeals.

Hon. Levi McGee, Judge. Action by the- Northern Bag Company, a corporation, against the Dakota Plaster Company, a corporation, to recover for the value of jute bags sold. From an order granting a new trial after verdict and judgment for plaintiff, plaintiff appeals. (i) To point one of the opinion. Appellant cited: Parrott v. City of Pitot Springs, 9 iS. D. 205; Laws 1913, Ch. 178, Secs. 3, 6; Harden v. Graham, 36 S. D. 525, .155 N. W. 782; Pierre v. Ft. P. B. Ry.

Hon. Joseph W. Jones, Judge. Action by Marvin Kriens, a minor, by H. Kriens, his guardian ad litem, against C. N. McMillan, to recover. damages for injury to plaintiff’s ward -by defendant’s automobile.

On rehearing. A direction of Supreme Court to trial court to enter judgment for relator on affirmance of the order appealed from, stricken out; rehearing denied.

John T. Mudin, Judge. - . . In re application of James F. Davis, for writ of Habeas ■ Corpus. From an order of the Circuit Court adjudging appellant’s imprisonment in the state penitentiary illegal, and ordering his discharge, Guy C. Redfield, as warden of the state penitentary appeals.

Action by Christina Ellwein, against the Town of Roscoe, -a municipal corporation, to recover damages resulting from personal injury. From a judgment for plaintiff, and from an order ■denying a new trial, defendant appeals. (i) To point one of the opinion, Appellant cited, re the issue: 28 >Cyc. 1519, 1388. (3) To point three, Appellant cited: 7 Ency of Evidence, 430; Gurnb v. Ry.

Action by EeRoy Sargent & Company, Incorporated, acting as beneficiaries of a certain trust and holders of voting-trust certificates of common stock of Commonwealth. Financial Corporation, in behalf of themselves and of all other persons similarly situated, against Ormsby McHarg and others, including Commonwealth .

Hon. Joseph W. ¡Jones, Judge. Action by R. John Haglund against Carrie (Karrie) Egge, and others. From a judgment in favor of respondent, directed to be entered on a' former appeal to -Supreme Court, defendants appeal. (x) To point one of the opinion, Appellant cited: Sec. 3144 and 3145, 1919 Code; Patten Paper Company v. Greenbay Canal Company, 93 Wis., 283, 67 N. W. 432.

Hon. William. Williamson, Judge. Action by Ed. E. Gillette against Henry J. Abraham, to quiet title to land setting aside a mortgage foreclosure by advertisement.

Hon.' Frank B iSmith, Judge. Action by George Teesdal'e against 'William Riebsch wager arid ¿tilers, to recover damages for maliciously and' without probable cause suing plaintiff. From a judgment for defendant and from an order denying a new trial,' plaintiff appeals. (i) To point one of-the opinion, Respondent cited: Cooley on Torts, 'Second Ed., pp. 219, 220.

<p>1. Trust;; — Realty, Resulting Trust In — Former Opinion Explained. In the original opinion herein, the Court, in specifying the respective interests of the parties in certain realty, intended to refer to the evidence as establishing that the premises in suit were held in trust for the creditors mentioned in the proportions evidenced by the amount of their respective claims against the estate of Dirks, deceased.</p> <p>2. Homesteads — Decedent’s Estate, Purchaser of Realty, Consideration of by Credit on Creditors’ Claims, Whether Lienor, As Against Claimants.</p> <p>As to whether a purchaser of realty of a decedent estate, who as consideration therefor credited a presentage of claims held against the estate, and who among the claimants has a one-seventh interest in certain realty, and who has expended moneys for the benefit of the ¡property which, it is contended, inured to the benefit of his estate, after his decease, has a lien superior to the right of other claimants, held', that possibly, as between an intervener in behalf of such purchaser’s estate, and the creditors of said estate, such homestead right might exist, yet, as between the intervener and claimants against the estate so purchased, who are owners of proportionate equitable interests, such homestead right does not exist.</p>

Hon. James McNenny, Judge. Action by Thoma,s C. Gay against Eel Sundquist, to recover purchase price under an agreement for sale of livestock -by defendant to plaintiff. ' From a judgment for plaintiff upon directed verdict,' and from an order denying a new trial, defendant-appeals. (i) To point one of the opinion, Appellant cited: Secs. 1149, 1-238, Civ. Code; S'joli-v. Hogenson, 19 N. D. 82; Groomer v. McMillan, 128 S. W. 285, 143 .Mo. App. 612; Charleston & W. C. Ry.

Hon. Robert B. Tripp, Judge. Action by Jacob Olson ag'ainst the Advance Runiely Thresher Compan)'-, a corporation. From an order refusing ,to vacate a judgment taken against defendant by default, it apnea's (i) To point one of the opinion, Appellant cited: West-brook v. Rice (N. D.), 148 N. W. 827; G. Somers & Co. v. Wilson (N. D.), 155 N. W. 30. (4) To point four, Respondent cited: 23 Cyc., page 937, Par. 2; Volmer Co. v. Grünewald, 124 Pac. 279.

Hon. RobrrT B. Tripp, Judge. Action by George C. Christian against Christopher Boepple and Rosa Boepple, his wife, to foreclose a mortgage on the homestead; deficiency judgment by default having been rendered for balance due after foreclosure sale. 'From an order denying motion to open default as to wife, and to set aside deficiency judgment as against her and her separate estate, she appeals.

Original proceeding in mandamus, by G. F. Mackey against Jay Reeves, State Auditor, to compel defendant to issue to plaintiff a warrant, upon State Treasurer, for payment of the sum of $7,000 pursuant to a legislatve act. (5~) To point five of the opinion, Plaintiff cited: Sec. 6942, Rev. Code 1919; State ex rel. Longstaff v. Anderson (S. D.)„ T46 N. W. 703; 'Carter v. Thorson, 5 S. D. 474; Laws 1901, Chap. 176, Const., Art. it, Sec. 9.

Hon. Wiijjam Wiiaiamson, Judge. Action by Union Investment Company, a corporation, against Martin Schonebaum and others, to recover upon a promissory note. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. (2) To point two of the opinion, Appellant cited: Bank v. Scott County, 14 Minn. 77; Newell v. Gregg (N. Y.), 51 Barb. 263; Union Nat. Bank v. Mailloux (S. D.), 132 N. W. 168; Bank v. Kinby, 108 Mass. 497. Respondent cited: 8 Cor.

lion. Robert B. Tripp, Judge. Action .by Martin. Weeks ag'ainst A. E. Eee, to recover damages under a contract of. sale of a Durham bull, with pedigree of same, -by defendant to plaintiff. After judgment for plaintiff, trial court, upon his motion, granted a new trial; from which both parties appeal. (i) To point one of the opinion, Appellant cited: Sec. 2293, Civ. Code 1903; Hammer v. Schoenfelder (Wis.), 2 N. W: 565.

Dakota. Hon. I. H. MyPrs, Judge. The defendants, Stanley Pollock and. another, were charged with having in their possession and under their control certain perch and pickerel, between the first day of 'March and the first day of May following, contrary to statute. From an order overruling a demurrer to the complaint, defendants appeal.

Circuit Court, Lyman County. Hon. William Williamson, Judge. Action by Nicholas Theisen against Sophie L. Qualley, and others, to quiet title to realty. From a judgment for plaintiff, and from an order denying, a new trial, defendants appeal. (3) To point three of the opinion, Appellant cited: Secs. 2291-2, U. S. Rev. State.; Sec. 636, Subd. 1, Rev. 'Code 1919; 6 U. S. Stat. Annotated, 292, note; Bernier v. Bernier, 147 U. S. 242.

<p>Appeal from Circuit Court, Brown County. Hon. Frank Andiírson, Judge.</p> <p>Action by Mellie Moberg against FI. F. Scott, to recover actual and exemplary damages resulting from plaintiff’s loss of conjugal consortiumi during her husband!s illness and preceding his death, and for damages resulting' from his death, which sickness and death were alleged to have been caused by defendant unlawfully, etc., furnishing deceased with commodities of which opium was an ingredient. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.</p> <p>See 38 <S. D. 422.</p> <p>Thomas L. Arnold,, and Seth Teesdale, lor Appellant.</p> <p>Campbell & Walton, lor Respondent.</p> <p>(2) To point two of the opinion, Appellant cited: State v. Hyde, 234 Mo., 200 Ann. Cas. 1912 D., p. 191, par. 4.</p> <p>(3) To point three, Respondent cited:’Rogers on Expert Testimony, Sec. 50; State v. Moeller (N. D.), 138 N. W. 981; note, pp. 1056-1076, L. R. A: 1915 A.; State v. Kemmel, 23 S. D. 465, 122 N. W. 420.</p> <p>(4) To point four, Appellant cited: Keefe v. Armour & Co. (111.), Ann. 'Cases 1914 B, p. 188; Mageau v. Great Northeni Ry. Co. (Minn.), 119 N. W. 200.</p> <p>(7) To point seven, re damages, Appellant cited: Raws 19T9, Ch. 301.</p> <p>(8) To point eight, Appellant oited: State v. Tarlton, 22 S. D. 495-</p> <p>(9) To point nine, Appellant cited: Rosum v. Hodges, 1 S. D. 308.</p> <p>Respondent cited: 1st Thompson on Trials, p. 404; Wilbur v. Flood, 16 Mich. 40.</p>

Hon. Cari, G. Sherwood, Judge- Action by D. F. Keyes against M. R. Baskerville, to enforce against defendant personally a judgment theretofore obtained against the Blue Bell Medicine Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals; appeal from the judgment having been dismissed.

Hon. Alva E. Taylor, Judge. Action by Charles 'McLean against E. B. Merriman, to recover damages for alleged libel. From a judgment for defendant upon directed verdict, and from an order denying a new trial, defendant appeals. (5) To point five of the opinion, Appellant cited: Children v. Shinn (la.) 150 N. W. 864. (7)' To point seven, Appellant cited: Sec. 2, Chap. 154, Laws 1903; Newell Slander & Libel, Sec. 39, page 107; 23. Cyc. 315, 263, and notes.

Hon. William Skinner, Judge. Action by N. J. Conway against -S. Belatti and Ed. T. Elkins, Sheriff of Codington County, to recover damages for conversion of personalty. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. (3) To point three of the opinion, Appellant cited: 13 Cyclo. of Ev. 538; Wigmore on Ev., Sec. 464, p. 1006; Holdridge v. Lee, 3 S. D. 134, 52 N. W. 265; Rosenstein v. Eairhaven & W. R. R. Co., 78 Conn. 29, 60 Atl. 1061.

County, Hon. Thomas E. Boucic, Judge. Action by the First National Bank of Aberdeen, a corporation, against Emma A. and S\ H. Cranmer, for foreclosure of a realty mortgage; a receiver having been appointed Pendente lite, to collect and disburse rents and profits.

Hon. Frank Anderson, Judge. In the matter of contest of will of Prudence P. Ives. The will having been established by order and judgment of circuit court, Arthur Butler and Cloyd Butler, contestants, appeal; Flora Moulton», proponent and respondent. Appellant cited-: Re Manchester, 1917 D., 629 P. R. A. (N. S.) ; in re Taylor’s Estate (S. D.), 165 N. W. 1070; Irwin v. Jacques, 69 L. R. A. 433; in re Seaman, 80.

■Appeal from Circuit Court, ’ Brookings County. Hon. William N. 'Skinner, Judge. Taction by Louie Lutz and others against Fred Brueniug and another, to enjoin certain school officers from removing a school house. From' a judgment for defendants dismissing the action, and for costp, plaintiffs appeal. (4) To point four, Appellants cited: State v. Blaisdell (N. D.), 119 N. W. 360; Briggs v. Ghrist (S. D.), 134 N. W. 321.

Hon. Martin Burgi-i, Judge. Action by Emil Larson against Thomas W. Sexton, to quiet title to realty. From an order sustaining a demurrer to the complaint, plaintiff appeals. (i) Under point one of the opinion, Appellant submitted that: Sec. 2199 Pol. Code, amended by Sec. 1, Chap. 25, Laws 1909, to provide for a lien for taxes, does not abridge the duty imposed by Sec. 2208.

Hon. James McNenny, Judge. Action by Richard E. Purinton against Sadie B. Purinton, to quiet title to realty. Ero-m a judgment for defendant, and from an order denying a new trial, plaintiff appeals. (2) To point two of the opinion, Appellant cited: 36 Cyc. 1224. (3) To point three, re oral evidence, Appellant cited: 36 Cyc. 1298; arid re setting aside judgment for fraud in procuring stipulation cited: 36 Cyc. 1295, and cases cited.

<p>'Appeal from Circuit Court, Davison County. Hon. Frank B. Smith, Judge.</p> <p>Action .by D. A. Alison against the Manhattan Oil & Linseed Company, a corporation, to recover damages for alleged negligence of defendant in causing a fire which consumed plaintiff’s garage and contents. ' From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.</p>

Hon. John F. Hughes, Judge. Action by Fred Weidenbach and others, ás resident taxpayers of township 112, range 72, in Hyde county, South Dakota, also known a;s Highmore township, outside of the corporate limits of the city of Highmore therein, against the board of education in and for the independent school district of Hyde county, South Dakota, O. M. Hyde as president of said board, and Henry Bottcher as treasurer of Hyde county, South Dakota, to enjoin said board of…

Hon. Alva E. Taylor, Judge. Action by Elizabeth L. Gilbert against Frank E. Matejka, to recover damages for negligently driving defendant’s trespassing steer against plaintiff’s person while emerging from plaintiff’s garden. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Hon. Thomas D. Boucic, Judge. Action- by O. A. Sterling against the Bank of Bily, a corporation, for conversion of plaintiff's deposit in defendant bank. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Appeal from judgment disregarded.

<p>1. Appeal — Order Denying “Temporary Resti’aining Order,” Whetli- ’ er an Order Denying a ‘ ‘Temporary Injunction,” Whether appealable.</p> <p>' ‘There is a clear distinction between an order constituting a temporary injunction, and one constituting a temporary restraining order; a “restraining order” being operative only until a bearing can be bad upon an application for an injunction, while a “temporary injunction/’ is an order operative usually until final bearing of the case in which it is issued; the restraint the order purports to impose, and not the name given it, determines its true name and character.</p> <p>3. Injunctions — Order Granting Injunction Distinguished from Order to Show Cause and Temporarily Restraining — Hearing— , Statute Misapprehension in Drafting Orden.</p> <p>While under 'Sec. 2425, Rev. Code 1919, an injunction may be granted at commencement of the action or at any time thereafter, yet an order granting the injunction would not provide, • as does the one at bar, for a hearing at which respondent '“should show cause * * why the court should not issue a temporary restraining order, restraining and enjoining defendants, * * pending the trial * * or until the further order of this court,” and further providing that until such hearing defendants “are hereby restrained and enjoined,” etc.; the use of the term, “temporary restraining order,” as used in said order, clearly disclosing that the party drawing same failed to distinguish a “temporary restraining order” from a “temporary injunction,” — what he clearly intended to seek upon return date of order to show cause.</p> <p>3. Injunctions — Granting Injunction, Statute Requiring TJhdertaking, Order to Show Cause With Meantime Restraining Order, Distinguished — Statutes—Recitals in Order, Designations by Counsel, Failing to Discriminate.</p> <p>' Under Sec. 2427, Rev. Code 1919, providing that, upon granting an injunction, “the court or judge shall require a written undertaking,” etc., held, that an order to show cause why an injunction should not be granted pending the litigation, and restraining defendant in the meantime, can be granted only under Sec. 2428, providing that if the court or judge deems it .proper that defendant * * should be heard before granting the injunction, an order may be made requiring cause to be shown * * why the injunction should not be granted, and the defendant 'may, in the meantime, be restrained. So held, where the order appealed from was one to show cause “why the court should not issue a temporary restraining order, “restraining and enjoining defendants * * pending the trial of this action or until the further order of this court,” and providing until such hearing defendants “are hereby restrained and enjoined,” etc.; it also appearing that trial court in said order refers to the order it is vacating as “the temporary restraining order,” and counsel refers to same as an order “temporarily restraining” and, a “show cause order,” that wherein counsel further refers to it as a “temporary restraining order and temporary injunction,” he afiled to distinguish between the two kinds of orders; it further appearing that the notice of appeal is from an order “ordering that the temporary restraining order * * :be * * set aside,” and. as an order “dissolving said temporary restraining order and injunction,” — again failing to distinguish between the two kinds of orders.</p> <p>4. Injunctions — Order to Show Cause Why “Temporary Restraining Order” Should Not Issue, Witli Meanwhile Injunction, Whether An Order “Vacating Injunction” — Recital of Order In Ai>peal Notice, In Order Fixing Undertaking.</p> <p>Trial court’s order to show cause why “the court should not issue a temporary restraining or.der, restraining and enjoining defendants * * pending the trial of this action or until the further order of this court,” and further providing that until said hearing defendants” are hereby restrained and enjoined” etc., is not an order “vacating an injunction;” and that appellant has not treated the order appealed from as one “denying an injunction” is shown by the notice of appeal, which recites that the order is one “ordering that the temporary restraining order * * “is hereby vacated and set aside, and further recites that the appeal is also from “said order dissolving said temporary restraining order” and a “temporary injunction” as being one and the same;; and by further proceedings on appeal (under Sec. 3160, Rev. Code 1919) in procuring an order fixing appeal undertaking, in which latter order the order appealed from is stayed instead of directing that “the injunction asked * * be allowed,” as would be the order upon appeal from an order denying an injunction.</p> <p>5. Appeals — Appealable Order — Tempoi'ary Restraining Order, Whether Appealable — Statute—Office of Tempoi’ary Restraining Order, Rower of Court.</p> <p>Under Subd. 3, Sec. 3168, Rev. Code 1919, designating among other orders, one dissolving an injunction as an appeal-able order, held', that an order to show cause why trial court should not issue “a temporary restraining order, restraining and enjoining defendants * * pending the trial of this action or until the further order of this court,” and further' providing that until said hearing, “defendants, * * are hereby restrained and enjoined,” etc. — is not an appealable order; that whether an order vacating a temporary restraining order is appealable, is answered by the query: “Could the appellant have appealed if the tidal court had made an order refusing to issue a “show cause order;” that the purpose of a temporary restraining order is merely to suspend proceedings until opportunity is given to inquire whether any injunction should be granted; its office is merely to preserve the status quo until a ■Rearing upon the question whether an injunction should be granted; and trial court, under Sec. 2428 Rev. Code 1919, would have had no power upon the determination of order to show cause, to make any order except one either granting . or refusing the “temporary” or pendente lite injunction appellant was seeking; if it had granted an order restraining deifendants during pendency of action, even though termed “a temporary order,” it wonuld in fact have 'been a “temporary injunction,” to support which would liavei required giving an undertaking; while the temporary restraining order would, ■ withput express order to that effect, terminate upon granting, or refusal of a temporary injunction; and appeal is dismissed.</p>

Hon. Alva E. Taylor, Judge. Action by Dakota Central Telephone Company, a corporation, against the Spink 'County Power Company, a corporation, to enjoin defend&nt from interfering through electro-magnetic induction from its power plant with plaintiffs telephone lines, and for other relief. From a judgment for defendant, plaintiff appeals. (io) To point ten, Appellant cited: Tri-County Mutual Tel. Co. v. Bridgewater Power Co. (6.

Hion Joseph W. Jones, Judge. Action by Grant Lines against Dan B. Potter, as executor and trustee of the last will and testament of George H. Brace, deceased, to enforce specific performances of a 'written contract for sale of realty. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. (i To point one of the opinion, Respondent cited: 15 Ruling Case Law’, ’Sec. 18; 22 Cyc., p. 1530; Hornstein v. Cifuno, 86 Neb. 103.

<p>Appeal from Circuit Court, Lyman County. Hon. AViruaji AVii.riamson, -Judge.</p> <p>Separate actions 'brought by William J. Birlcin, Jr., against Ray AAC Hickey, Dirks Trust & Title Company, William R. Tapper, and Guy Kelley as administrator of the estate of Peter-B. Dirks, deceased (No. 4517)against Roy F.‘ Hickey et al. (No. 4518) ; against Phillip Kil-ber et al. (No. 4519) ; against Johann Nehlich et al. (No. 4520); against Valley Bend Land & Cattle Company et al. (No. 4521) ; against Floyd M. Wallace et al. (No. 4522); and against Adam Weisen-burger et al. (No. 4523). From separate judgments in favor of plaintiff, and from corresponding orders denying new trials, Dirks Trust & Title Company, and AABlliam R. Tappen, appeal in all cases,Valley Bend Land & Cattle Company appeal in case No. 452]. Judgments and orders reversed, with directions.</p> <p>To point one of the opinion, Appellants cited: Craigo v. Craigo, 22 S'. D. 417, 118 N. W. 712; Anderson v. Chilson, 8 S. D. 64, 65 N. AV. 435; Leisch v. Baer, 24 S. D. 184, 123 N. W. 719; Northern State Bank v. Bellamy (N. D.), 125 N. W. 888. Respondent cited: Western Twine Co. v. Scott, 11 iS. D. 27. To point four, Respondent cited: Green Ba} Lumber Co. v. Miller (la.), 62 N. W. 472; Jaeckel v. Peas (Idaho), 53 Pac. 399; Becker v. Superior Court (Calif.), 90 Pac. 689.</p> <p>(7) To point seven, Appellants cited: 6 C. J. 84, § 114, and cases cited in notes; Gowan v. Hanson, 55 AVis. 34i, 13 N. AV. 238; Streissguth v. Reig'elman (AVis.), 43 N. W. 1116; 6 C. J. 84, note 41 (a); Keeler v. Parks (Wash.), 130 Pac. 111; Scott v. Neeley, 140 U. S. 106, 11 S. Ct. 712. - -</p>

<p>Appeal from Circuit Court, Grant County. Hon. FraNK AndErsoN, Judge.</p> <p>Action by County of Grant agaust Robert D. Jones. From an order of the Circuit Court, plaintiff appeals. Upon motion to dismiss appeal.</p>

Hon. Alva E. Taylor, Judge. Action by Wilhelm F. E. Braun against William. Thuet and Frank Thuet, co-partners as Thuet Brothers, to recover upon a promissory note secured 'by mortgage on livestock. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (i) To point one of the opinion, Respondent cited: Chap. 201, Eawls 1917; Union Inv. Co. v. Schonebaum et al., 167 N. W. 39S. (8) To point eight, Appellant cited: 8 Ruling Case Law, íp. 4Ó3.

Hon. Martin BERGH, Judge. Action by the Artificial Ice Company, a corporation, against H. K. Pratt and others, to foreclose a chattel mortgage; defendant Pratt counter claiming as defense. From a judgment for plaintiff, and) from an order denying a new trial, defendant Pratt appeals'.

Hon. Louis L. ' FijíEGUR, Judge. Action by J. C. CFConnor and others against John McCabe, to quiet title to realty; defendant having under a cross'-complaint sought reformation of the description in the deed in question. From a judgment for plaintiffs, and from an order denying a new! trial, defendant and cross-complainant appeals. (i) To point one of the opinion, Appellant cited: Mason v. Moulden, 58 Ind. x; Appeal of Ferguson, 11 Atl.

Hon. Louis LFreEGER, Judge. The defendant, Claude Humphrey, was convicted of the offense of unlawful keeping and storing intoxicating liquors, and he appeals. (i) To point one of the opinion, Appellant cited: Laws 1917, Chi. 281, Sec.s. 71, 44, 66. 73, 74, 83; Vol. 22 Cyc. 339, 295; State v. Doren, 99 Me. 329^ 59 Atl. 440, 105 Am. St. Rep. 278; Code Civ. Proc., Sec.- 222. Respondent cited: Laws 1917, Ch. 281, .Sec. 71.

Hon. FraNK B. Smith, Judge. The defendant, Fred H. Morgan, was convicted of the crime of incest, and he appeals. To point one of the opinion, Appellant cited: Sec. 206, Code Civ. Proc. 1903; State v. King, 9 S. D. 628; State v. Frazer, 23 S. ID. 304. Despondent cited; State v. Albertson, 20 N. D. 512, 128 N. W. 1122; State v. Kilmer (N. D.), 153 N. W. 1090. (2) To point two, -Respondent cited: Burns v. Burns, 60 Ind. 259; State v. Spurling (Da.), 40 South. 167; Pen.

Hon. Martin Burgh, Judge. Action by Minnehaha National Bank, of Sioux Falls, South Dakota, a corporation, against W. R. Pence, doing business as the Pence Pharmacy, to recover the amount paid by plaintiff upon a forged check. From an order sustaining a demurrer to the complaint, plaintiff appeals.

Hon, John T. Medin, Judge. Action by William Boll, against Jake Gruesner and' S. M. Graceman, to recover damages resulting from collision of de-' fendants’ automobile with plaintiff’s automobile. From a judgment for plaintiff, and from an- order denying a new trial, defendants appeal. (1) To point one of the opinion, Appellant cited: Schnabel v. Kafer, 39 'S. D. 70, 162 N. W. 935; Huddy on Automobiles, Secs. 409, ,410. Respondent cited: Ray v Brannau (Ala. 1916), 72 S. 16.

Hon. James McNenny, Judge. . In ■ a prosecution -by- the State against the 'defendant, Joshua Guffey, Circuit 'Court denied defendant’s motion to dismiss the criminal prosecution, and he appeals.

Hon.' Alva-E. Taylor, Judge. Action by John Sherlock against John Maurice Dinneen and others, to recover damages for personal injury. From a verdict for plaintiff, and from an order denying a new trial, defendants appeal. (5) To point five, Appellant cited: Godfrey v. Dalquist, 27 S. D; 373; People v. Reges et al., 5 Calif. 347; State v. Chapman, 1 S. D. 414. (6) To point six, Respondent cited: Gray v. Commutation, 89 N. W. R., p. 322.

ITon. William S'KinnLR, Judge. Action by John Silvan-tier against Alex Ploc, to recover upon a disputed account. From a judgment for plaintiff, and from- an order denying a new trial, defendant appeals. (i) To point one, Appellant cited: I, C. J., pp. 539, 551, 552, note 8; Shahan v. Bayer Vehicle Co. (Iowa), 162 N. W. 221. Respondent cited: Bggland v. South, 22 iS.

<p>Appeal from Circuit Court, Brown County. Hon. Frank Anderson, Judge.</p> <p>Action by Henry Pierce, against John J. Lyons, to recover damages for malicious prosecution. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.</p> <p>(i) To point one of the opinion, Appellant cited: Lamb v. Galland, 44 Cal. 611; Perkins v. Spaulding (Mass.), 65 N. E. 72.</p> <p>Respondent cited: Comfort v. Morwood (N. D.)-, 158'N. W. 258; Maguer v. Renk (Wis.), 27 N. W. 26; 26 Cyc. 100.</p> <p>(3) To point three, .Respondent cited: 26 Cyc. 63.</p> <p>(5) To point five, Appellant cited: Krause v. Bishop, 18 S. D. 301.</p> <p>(6) To point six, Appellant cited; Krause v. Bishop, 18 S. D. 302; Neys v. Taylor, 125 S. D. 493; Booraem v. Potter Hotel Company (Cal.), 97 Pac. 65.</p> <p>Respondent cited: Wren v. Rehfield, 37 S. D. 201, 157 N. W. 323; Comfort v. Morwood (N\ D.), 158 N. W. 258.</p>

Hon. James McNenny, Judge. Action by The Adams Company, a corporation, against Berl Ü. Buchanan and Charles Bowles, co-partners- as Buchanan & Bowles, to enjoin the construction and operation of defendants’ proposed oil sale and storage building-. From an order temporarily enjoining defendants, they appeal. (i) To point one of the opinion, Appellants cited: High on Injunction, Vol. x, Sec. 742; Texas Co. v. Fisk, 129 S. W. Rep. 188; Gose v. Coryell, 126 S. W. Rep. 1164.

Preceding in 'habeas corpus 'by Guy C. Redfield, as warden of the state penitentiary, against James R. -Davis.- Application for modification of judgment of Supreme Court, re costs to respondent. Respondent cited, to point that costs are allowable in habeas corpus proceedings: 21 Cyc. 384, and cases there cited; Sec. 2611, Rev. Code 1919.

Hon. William N. Stcínniír, Judge. Action by Bertha Hurle against John Hurle, for separate maintenance. From an order setting aside judgment entered on default, and allowing defendant to answer, plaintiff appeals. (1) To point one of the opinion, Appellant cited: Kinkead v. Moriarty et al. (S. D.), 136 N. W. 101-102; Des Moines Mut. Hail & Cyclone Ins. Assn. v. Clute, 151 N. W. 281-282; Hayne New Trial and Appeal, Vol. II (Revised Ed.), Sec. 311.

<p>Appeal from Circuit Court, Hamlin County. Hon. Joseph 11. BoTTUM, Judge.</p> <p>Actions by Isaac Isaacson, against Elliott A. Parker, as Superintendent of Schools of Plamlin County, South Dakota, C. P. Leonard and others as the Board of Education and Directors of Hayti ‘ Independent School District No. 2 of Hamlin County, South Dakota, Hayti Independent Consolidated District No. 2 of Hamlin County, South Dakota, and H. L. Stearns as County Treasurer of Hamlin County, South Dakota (case No. 4591); same against same (case No. 4596) ; and two appeals involving separate orders sustaining’ denuu-rers, one to original complaint, the other to the amended complaint; and by John Alatalo, against same (case No. 4592); and same against same (case No. 4593); being two further appeals involving similar separate orders; both actions being for recovery of taxes paid under protest; from .which orders the respective plaintiffs appeal.</p> <p>(2) To point two of th'e opinion, Respondents .cited, re quo warranto as the exclusive remedy: Evans v. Anderson (Minn.), 155 N. W. 1040.</p> <p>(3) To point three of the opinion, Appellants cited: Felix /.-Board (Kan.), 62 Pac. 667, 84 A. S. R. 424; Penn v. Wheeling Co. (jU.'S. ), 15 L. Ed. 449; Felix v. Board of County Commissioners, 84 Am. St. Rep. 427.</p> <p>Respondents submitted that: The legislature made a distinction in Chap. 135 of Laws 1907, between independent districts and school districts for a purpose, but the purpose did not take into consideration the consolidated school law, as this state had no consolidated school law until 1913.</p>

Hon. Joseph H. Bottom, Judge. Action by Elmer Irwin against Henry J. Seeman. From a judgment for plaintiff, and from an order denying' a new trial, defendant appeals. Motion to dismiss appeal. (x) To point one, Respondent cited: Secs. 2559, 2557, Rev. Code 19x9.

Hon. Joseph H. Bottum, Judge. Action by James O. Dean against Henry J. Seeman, to recover damages for alleged malpractice. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (3) To point three, Appellant cited: Miller v. Toles, 150 N. W. 118; Sawyer v. Beríhold, 134 N. W. 120.

Hon. James McNenny, Judge. Action by First' 'State Bank of Lemmon, South Dakota, a corporation, against Stockmen’s State Bank, Faith, South -Dakota, a corporation, to recover upon a dishonored check. From a judgment for defendant, and from- an order denying a new trial, plaintiff appeals. (i) To point of the opinion, Appellant cited, re special deposit: First Nat.

In re criminal contempt proceeding's against Joe Adams. Prom an order of the Circuit 'Court, in re proceedings of Council of Defense of Dewey County, South Dakota, adjudging' defendant to be in contempt of court, and imposing a fine, etc., he appeals. (2) To point two, Appellant cited: ’Secs. 487, 493, C. C. Proc.; 6 R. C. L., p. 502. (3) To point three, Appellant cited: Cooley’s Con. Lim., 7th Ed., p. 163, and note x; Sp.

Action by Oscar Larson and others against F. R. Baysore, to recover a money judgment. From an order of the circuit court dismissing an appeal from the municipal court of Sioux Falls, defendant appeals.

Original proceeding in the matter of quo warranto by the State of 'South Dakota, on the relation of Byron -S'. Payne, Attorney General, against Charles H. Anderson, to oust defendant from- the office of justice of the peace. Upon demurrer to the complaint. (1) To point one of the opinion, Plaintiff cited: State v. T-illotson (Okla.), 143 Pac. 200; State v. White (Utah), reported in 126 Pac. 330. (2) To point two, Plaintiff cited: State v. Plow ell, 72 Pac. 187.

Original proceedings by John L. Burke, against C. A. Burk-hart, as Secretary of State of the ¡State of South Dakota, to compel 'defendant to place plaintiff’s name on the Republican ballot at the forthcoming' primary election as a Republican candidate for railroad commissioner. (i) To point one of the opinion, Defendant -cited: People ex rel. Horan v. Baird- et al., 164 111.' 533, 44 N. E. 1081; Secs. 9492 to 9502, Rev. Code 19x9; Chap. 126, Laws Dak.

■Appeal from- Circuit Court, Hughes County. Hon. John F. Hughes, Judge. Action .by William J. M'undt, against the Messenger Publishing Company, a corporation, and Charles Billinghurst, to recover the amount of certain purchase monej'- paid- by plaintiff under a contract of purchasing a typesetting machine, which plaintiff has .subsequently sold to- said corporation, and which the latter had sold to defendant Billinghurst.

Hon. Wiixiam Wi i.t.tam son, Judge. Action by Alvena Warnei, against D. E. Hopkins and others, to enjoin execution sale against plaintiff’s land claimed as her homestead. From- a judgment for defendants, and from an order denying a new trial, plaintiff appeals. t i) To point one of the opinion,' Appellant cited; .Mc-Dermott v. Kcrnan (Wis.), 39 N. AY. 337; Shircland v. Union National Bank (la.), 21 N. W. 200; Zwick v. Johns (la.), 56 N. W. 665.

Hon. Arva E. Tayror, Judge. Action by Frank M. Brown, against Ernest ¡D. Ede,, M. D. Whisman, as administrator With, the will- annexed to Ernest D. Ede, deceased, and others, to quiet title to realty. From a judgment quieting title in defendant McPherson,- plaintiff appeals.

Original proceedings, for the disbarment of John K. Swi'hart and Clarence 1VI. Branson. Defendants adjudged suspended from practice of the law for the period of six months. No counsel appearing.

'Appeal from the Municipal Court of the City of Aberdeen, Hon. A. L. McNaghter, Judge. Action by Roe A. Granger, against W. H. Luther, to recover possession of premises leased by 'defendant’s vendor to 'plaintiff, and to recover rental value thereof. IVom a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

, Hon. Robert B. Tripp, Judge., Action 'by Fullerton Lumber Company, a corporation, against P. A. Hosford, to recover the value of coal sold by plaintiff to defendant. From a judgment for- plaintiff, and from an order denying a new trial, defendant appeals. (2) To point two, Appellant cited: 17 Cyc., 801-804; Coel v. Traction Co., 123 N. W. 23; Blashfield Instructions, 2nd Eel., Sec. 337; 38 Cyc., 1439; Remington, v. Genzler (N. D.), 152 N. W. 661.

• Appeal from Circuit Court, Charles Mix County. Hon. Robert B. Tripp, Judge. Action by R. iS. Parker, against J. W. Lindsay and another, to recover a broker’s .commission upon an alleged sale of realty. From a judgment for defendants, and from an order denying a new trial, plaintiff appeals. (i) To point one of the opinion, Appellant cited: Harris et al. v. Van Vraken, 155 N. W. (N. D.) 65. (3) To point three, Respondent cited: Gissel v. Bank of Woonsocket, 12 S. -D. 93.