Volume 43 — South Dakota Reports

Hon. John F. Hughes, Judge. ' Action by Western Surety Company, a corporation, against John Hayes and others, to recover upon an indemnity 'bond given by The Citizens’ State Bank of Fort Pierre to plaintiff. From a judgment for defendants, and from an order denying a new trial, plaintiff appeals. (i) To point one of the opinion, Appellant cited: U. S. of America v. Bayly, 41 L. R. A. (N. S.) 422; Dejernette v. Fidelity & C. Company, 33 S. W. 828.

Hon. Frank Anderson, Judge. Action by the County of Grant, South Dakota, against Robert D. Jones, to recover back moneys .paid by plaintiff to defendant for legal services performed. From' an order overruling a demurred to the answer, plaintiff appeals. Appellant cited: Revised Code of 1919, Secs. 5998, 6014; Attorney General Report for 1907-8, p. 219; for 191J-12, p. 585; for T918, p. 408; State v. Marshall County, 14 S. D. 149. Respondent cited: 15 €.

I-Ion. William N. Skinner, Judge. Action by J. P. Glemaker, against the City of Watertown, a municipal corporation, to recover damages resulting from flowage of water from! street gutter into plaintiff’s cellar and basement. Erom an order overruling a demurrer to the complaint, defendant appeals. Appellant cited: Andrus v. City of Ashland, 172 N. W. 721; James Keen v. City of Mitchell, 157 N. W. 1049, (L. R. A. 1946 E.) 704; Pol.

Hon. William M. Skinner, Judge. Action by J. H. Beers, against the City of Watertown, South Dakota, a municipal corporation, A. T. Hopkins as Mayor, Brownie Mather, as City Auditor of the City of Watertown, and P. W. Reed and others as Aldermen and members of the City Council of the City of -Watertown, to enjoin and restrain the issuance of bonds of said city to furnish funds to provide the city with an electric plant to furnish electricity for municipal, industrial, and…

Hon. Louis L. FlEEGER, Judge. Action by Henry Bradshaw, against Thomas Brady, to determine adverse claim® of title to realtjr and to recover possession thereof. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (2) To point two of the opinion, Respondent cited: -Cain v. Ehrler, 22 S. D. 536, 146 N. W. 694.

Hon. John F. Hughes, Judge. - ‘ Action by Zoa Labidee, as Administratrix of the Estate of Leo E. Labidee, deceased, against the City of Pierre, a municipal corporation. From- an order overruling a demurrer to the complaint, defendant appeals. Motion to dismiss appeal. (i) To point one of the opinion, re jurisdiction, Respondent cited: Perkins v. Cooper, 87 California 241, 3 C. J., pages 1074, 1075.

Hon. Robert B. Tripp, Judge. Action by Western Surety Company, a corporation, against Jacob- Walter and- others, to recover upon a promissory note. Erom a judgment for defendants, and from an order denying a new trial, plaintiff appeals. Appellant cited: Galena Natl. Bank v. Ripley, 104 Pac. (Wash.) 807; Papple v. Day, 123 Mass. 520. Respondent cited: 9 Cyc. 308, 311.

<p>1. Costs — Disbursements—Expenses of Proceedings, Whether From Supreme Court Fund or Count}' — Previous Decision Explained.</p> <p>In Re Egan, 38 S. D. 244, this Court was considering whether the prosecution on one hand or the disbarred attorney on the other should pay expenses of reference, iter diem and mileage of stenographer and for stenographer’s transcripts, and not whether the expenses incurred should be paid from Supreme Court fund or by the county in which the matter was referred; and whatever was stated in that opinion as to what fund those items should be payable from was obiter, and was not given due consideration.</p> <p>2. Same — Costs of “Reference,” “All Other Disbursements” — Serving Subpoenas, Deposition Expenses as “Costs” — Judgment for State, County as Beneficiary, Disbarred Attorney, Costs Not Payable By, Egan Case Adhered To.</p> <p>Under Laws 1911, Ch. 85, Sec. 5 OSec. 5278 Rev. Code 1919), providing that all costs of a reference in disbarment proceedings, including stenographer’s fees and expenses of taking evidence and making transcript, shall be paid by the county to which the proceedings are referred for trial, and tlmt all other disbursements on behalf of prosecution shall be paid by the state, etc., held, that.fees of prosecution’s witnesses appearing before referee, fees for serving subpoenas, and expenses of taking such depositions on behalf of' prosecution, are properly and in the nature of things a “part of the costs of reference;” and when a matter is referred to a referee all costs of trial, are payable by county to which the matter was referred. Nor does the provision in Sec. 6 (Sec. 5279 Rev. Code 1919) that whenever judgment is rendered against accused, judgment in favor of state for all necessary disbursements of prosecution may, in court’s discretion be included therein, militate against such conclusion. Held further, that the • holding in Re Egan, 37 S. D.- 642, to the effect that said Sec. 6, taken in corne'-tion wth Pe". 5. shou’d be interpreted to men that a judgment may be entered against accused for all necessary disbursements for the prosecution, and which costs have been advanced by the county in which trial is had, which judgment rendered' “in favor of the state” will be for benefit of that county, is adhered to; nor was the principle there laid down intended to be overruled on rehearing in that cause (38 S. D. 224); the intent there being to simply decide that the expense of providing court and its officers, including stenographer and transcript, is one that should he taxed against disbarred attorney.</p> <p>3. Disbarment — Judgment for Disbursements on Disbarment, “State,” as Including “County” — Statute—Reimbursement to County — Section Interpreted, Re Kgan Case Overruled in Part.</p> <p>The word “state” in- Sec. 6, Ch. 85, Laws 1911 (Sec. 5278, Rev. Code 1919), providing that upon rendition of judgement against accused in disbarment proceedings court in its discretion may include therein judgement “in favor of the state” for necessary disbursements for prosecution,, embraces the “county”; and if judgment be recovered by state against accused attorney for disbursements for prosecution, which were paid in first instance hy county of trial, county should be repaid such amount out of judgment when collected. The statements to the contrary in the opinion on rehearing in Re Egan supra, would render the clause in Sec. 6; “all necessary disbursements made on behalf of the prosecution” to be equivalent of clause in -Sec. 5: “all other disbursements made on behalf of the prosecutions;” but those clauses are not synonymous; and to that extent the decision in, Re Egan on rehearing, is overruled.</p>

Hon. Wiujam N. Skinner, Judge. Proceeding by the 'State of South Dakota for condemnation and appropriation of a strip of land for use by the State Game and Fish Commission. From an order overruling a demurrer to the complaint, defendants appeal. (3) To point three of the opinion, Appellant cited: 15 Cyc. 567; secs. 10439, 10440, Rev. Code 1919; Searle v. City of Lead, 10 S. D. 312, 73 N. W. 101, 39 L. R. A. 343.

Hon. Robbrt B. Tripp, Judge. Action by O. K. Stablein, against Hutterische Gemeinde, a corporation, to recover a broker’s commission on sale of realty. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. (1) To point one of the opinion, Appellant cited: Tyler v. Anglo-American 'Savings and Loan Association, 52 N. Y. Supplement 77. (2) To point-two,-'Respondent cited: Thompson on Corp. Secs. 4697, 3905-6; Chicago v. Stein, 1912 D. Ann. 294.

HonI Robert B. Tripp, Judge. Action ¡by R. B. Driver, against E. A. Gillette, to recover upon a promissory note, defendant counterclaiming. From an order overruling a demurrer to the counterclaim, plaintiff appeals. (2) To point, two of the opinion, Appellant cited: Watts v. Grant, Neb., 61 N. W. 104. Respondent cited: Advance Thresher Co. v. Klien, 28 S. D. 177. 133 N. W. 51. ■

Hon. Louis L. FeeEger, Judge'. Action by Frank Day and Pearl Day, against the Sioux Falls Fruit Company, a corporation, and the United States Fidelity & Guaranty Company, to recover compensation under Workmen’s Compensation Law for death of plaintiff’s son, employee of the first named defendant. From a judgment in circuit court affirming the award of the Industrial 'Commissioner, which latter affirmed award of arbitrators, defendants appeal.

Hon. John F. Hughes, Judge. Action by J. E. Mallery, substituted for Charles H. Anderson and E. F. Swartz, to quiet title to realty. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. (4) To point four of the opinion, Appellant cited: Kipp v. Dawson (Minn.) 17 N. W. 961; State v. Minn. Power Co. (Minn.) 141 N. W. 840.

Hon. Robert B. Tripp, Judge. Action by Carlon Elevator Company, a corporation, against C. J. Klahn, to recover the rentals paid in advance. From an order Sustaining a demurrer to the complaint, plaintiff appeals. (1) To point one of the opinion, Appellant cited: 18 Am. & Eng. Encyc. of Law 308, par. (d) ; Wattles v. South Oma'ha Ice & -Coal 'Co. 69 N. W. 785; Part 2, Kerr’s 'Civ. Code (Calif.) p. 1579, n 15.

Hon. John F. Hughes, Judge. Action by H. P. Packard, as trustee, against the Pierre Banking- & Trust Company, a corporation. From an order vacating and setting aside findings and decree, defendant appeals. (i) To point one of the opinion, Appellant cited: 3 C. J. Page 1054 d; Oxford Tel.’Mfg. Co. v. Arkansas National Bank (Ark), 204 S. W. 1140. Respondent cited: Harker v. Cowie, 32 S. D., 516; Bucknell v. Archer, 29 S. D. 22.

‘ Hon. Joseph W. Jones, Judge. Action by the Sioux Falls Stock Yards Company, a corporation against Ben C. Ash, ■ to recover damages for keeping and feeding defendant’s stock at plaintiff’s stock yards. (2) To point two of the opinion, Respondent cited: Groeltz v. Armstrong Real Estate Co., 89 N. W. 21.

Hon. Robert B. Tripp, Judge. The defendant, James H. Berry, was informed against for maliciously killing a dog, the property of another. From a judgment sustaining a demurrer to the information, the state appeals. (2) To point two of the opinion, Appellant cited: Sec. 3628, Rev. Code 1919; Territory v. Crozier, 6 Dak. 8; R. C. S. Sec. 109. Respondent cited: State v. T’arlton, 22 S. D. 495; 118 N. W. 706.,,

<p>Appeal from Circuit 'Court, Brown County. Hon. Frank Anderson, Judge.</p> <p>Action by George Lowary, against Frank Lowary, to recover damages for conversion of grain. 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: Davis v. Tubbs, 7 S. D., 488; Bower v. Graves, 8 S. D. 385; McClure v, Thorp (Mich.), 35 N. W. 829; Whitney v. Huntington (Minn.), 33 N. W. 363; Bolles Woodenware Company v. United States, 106 U. S. 432, 27 L- Ed. 230.</p> <p>Respondent cited: Foley v. Southwestern Land Co , 68 N. W. 994; Trustees of Dartmouth College v. International Paper Co., 132 Federal, 92; Fobes v. Shattuck, 22 Barber 568.</p>

Hon. Robert B. Tripp, Judge. 'Action by Jacob Olson, against The Advance Rumely Thresher Company, a corporation. On second appeal from order refusing to vacate, default judgment. (4) To point four of the opinion, Appellant cited: Fisk v. Hicks, (S. D.) 137 N. W. 424; Western Surety Company v. Boettcher, ('S. D.) i'5Ó, N. W. 69; 'Sec. 2378, Rev: Code 1919.

<p>1. Disbarment — Booklet Publication on “Law of Marriage, Divorce” Etc. Misleading • Statements In R® S. Dak. As Divorce State And Attorney As Divorce Lawyer.</p> <p>■Where accused attorney in disbarment proceedings is shown to have published, sold and circulated a 'booklet entitled “The Law of Marriage, Annulment, Domicile, Divorce,” for several years previous to filing complaint, purporting to contain synopsis of laws of various states pertaining to-said subjects, which booklet contained many misleading statements relative to divorce laws of this and other states, and a number of purported newspaper articles accredited to such papers as The New York Journal, Atlanta Constitution, Minneapolis Journal, Philadelphia North American, St. Paul Dispatch and Cincinnatti Enquirer, which purported articles referred to defendant as a specialist and expert on the law of marriage and divorce, held, that the purpose of said publication is plainly of advertising: first, the State of South Dakota as place where divorces could be most easily obtained among the states; and second, defendant as the man best qualified of any one in the state to procure such divorce; this being clear from certain matters contained therein, wherein it states as statutory causes and grounds for “absolute divorce” in South Dakota, consanguinity; fraudulent contracts; force in bringing about marriage; duress in compelling marriage; unsound mind of either party; another undivorced husband or wife living; non-age; impoteney; adultery; extreme cruelty, physical or mental,- wilful desertion for one year; driving the other from home by cruelty; threats, stratagem or fraud; refusal of matrimonial intercourse for one year; failure of husband to support wife for one year; habitual intemperance for one year; conviction for felony; — being sixteen designated purported grounds therefor.</p> <p>3. Same — Misrepresentation of Statute — Six Statutory Grounds for Divorce, Not Sixteen.</p> <p>Sec. 137, Code 1919, enumerates the only grounds — six in number — on which a divorce may be granted in this state viz.: (1) adultery; (2) extreme cruelty; (3) .wilful disertion; (4) wilful neglect; (5) habitual intemperance; (6) conviction for felony; therefore- defendant’s statement, supra, that there are sixteen causes for divorce, is incorrect and misleading; nor is defendant’s explanation of his booklet, namely, that the effect of annulment of a marriage is the same as a divorce-, and that he “just grouped all the causes for both remedies together under one head,” justifiable, since even- then there be but twelve instead of sixteen enumerated causes. Furthermore, defendant failed to -make similar grouping of causes for divorce and annulment in North Dakota, although their statute on those subjects is identical with our own (Secs. 4368, 4380 Comp. L. N. D. 1913.) Many other statements in the booklet are equally misleading.</p> <p>3. Same — Misrepresentations re Length of Residence for Divorce— Unwarranted Preference of South Dakota re Divorce.</p> <p>The table in said booklet purporting to state length of time of residence in this state necessary before commencing suit for divorce is fixed at seven months, and states that such action may be begun after plaintiff’s domicile within the state for six months, that cause may be tried thirty days after service . on defendant, that annulment suits are governed by provisions respecting citizenship,. which, like domicile, is acquired in six months, that if cause accrued during plantiff’s domicile without the state one year’s domicile is required. Held, that while no part of this statement of the law is positively false, it is so badly garbled as to be misleading and deceiving; and since Secs. 156, and 158, -Code 1919, require a residence of one year, providing that, if the cause of action arises in this state a six month’s residence is sufficient. Furthermore, comparison of said table with statutes of the various states shows that in nearly all states save South Dakota, length of residence is given at from two to ten months longer than that prescribed by the statutes; the effect of which is, and it could not have been intended otherwise than to convince a non-resident that he could get a divorce quicker by coming to South Dakota than in any place else.</p> <p>4. Same — Unfounded Representations of Newspaper Clippings of Defendant’s Notorious Divorce Case Successes — Unprofessional, Dishonorable, Newspaper Advertising of Divorce Lawyer.</p> <p>Said booklet (containing only 112 small pages) consists mostly of 62 articles, each purporting to have been taken from a different newspaper, each giving an account of a more or less notorious divorce case in some state or foreign country; their origin being left 'wholly.in doubt; and while defendant does not pretend he ever saw any of them in papers to which accredited, with perhaps one or two exceptions, he claims that he as a subscriber received them from certain “clipping bureaus,” which he claims to have believed were genuine publications. Such explanation is not convincing; the alleged cases not seeming, to have been of sufficient importance to have 'been published as news matter in metropolitan dailies; while their outstanding feature is a representation that defendant was the attorney for successful party, though those papers could have had no interest in so advertising him. In one article accredited to the “Mexico Daily Herald” defendant is referred to as “3. M. Donovan, the international expert on marriage and divorce;” and another as “J. M. Donovan, the wall-known United States expert on marriage;” many others being of similar import. This constitutes advertising as a divorce lawyer through the public .press, Judicially declared to be unprofessional and dishonorable conduct.</p> <p>5. Same — Thirty Years a Lawyer, Re Divorce Cases, Good Citizen, Non-proof of Fraud or Over-reaching Clients — Practice Bringing State Reproach, Bar and Bench Into Disrepute — Professional Ethics Wanting — Ethics Forbidding Such Advertising.</p> <p>The evidence showed defendant engaged in law practice since 1889, confined so far as record shows, to divorce cases, his sole means of livelihood, that he has a family; has always been a good citizen enjoying confidence and respect of the community; no claim being made that he has practiced fraud upon courts or overcharged or otherwise taken advantage of clients; yet this course of procedure has brought reproach upon the state abroad, and disrepute to the bar and courts of this state: he appearing to be without sense of propriety or ethics of the profession; which ethics forbid an attorney advertising his ability or skill, and while he may -properly accept retainer for prosecution or defence of a divorce action, when convinced his client has a good cause, yet for any one to invite or encourage such litigation is most reprehensible, condemnation for which cannot be too strong.</p> <p>6. Same — Defendant’s Unwarranted Practice, Whether Deserving Disbarment, Or Suspension — Suspension Adjudicated.</p> <p>In view of the facts found by referee and summarized supra; referee having recommended defendant’s censure and that he be ordered to refrain from such, conduct in future, the Attorney General excepting to referee’s recommendation, by not recommending disbarment; and that his disbarment will deprive him of means of livelihood after reaching a time in life when it would be difficult for him to take up other business; it being unlikely that if permitted to continue law practice defendant will ever again be guilty of any of the offenses charged; while on the other hand his'offense against professional ethics is too flagrant for dismissal with mere reprimand; it is adjudicated that defendant stand suspended from right to practice in any court of record of this state for a period of six months.</p>

Hon. John F. Hughes, Judge. Action by J. A. Brekke, against Charles E. Crew and William W. Waite, to set aside an alleged assignment for benefit of creditors. From a judgment for defendants, plaintiff appeals. (4) To point four of the opinion, Appellant cited: 5 C. J. 1038; Burrill Assignments (6th Ed.) Section 6; MoClaren v. Kramer (N. D.) 144 N. W. 85; re Courtney Mercantile Co., 186 Federal 352.

<p>On rehearing.</p> <p>(i) To point one of the opinion, Appellant cited: Wickre et al. v. In. Twp. et al, -31 S. D. 23.</p> <p>’Réspondent cited: St. Paul Gas Company v. Sandstone, 73 Minn. 225, 75 N. W. 1050; 'School District 50 v. State, 29 Kan. '57; 'Coler v. Rhoda School Twp., 6 S. D. 640, 63 N. W. 158.</p> <p>The Attorney General, Amicus Curaie, cited: Continental Trust Company v. Toledo, etc., 82 Red. 842.</p> <p>(2) To point three, Respondents cited: Laws 1915, ch. 289, sec. 1.</p> <p>(3) To point three, Appellant cited: People et al, v. Stewart (111.) 118 N. E. 55; State ex rel Baleh v. Fry, et al, (Mo.) 85 S. W. 328.</p>

<p>1. Judgments — Relief From Default, Reasonable Excuse for Neglect, Presenting Facts Raising Inference of More Favorable Judgment, Necessity of Showing — Other Business Preventing Presence, Remedy in Seeking' Postponement.</p> <p>To relieve a party from default judgment, he must show reasonable excuse for neglect to be ‘present when case was called, and present facts by answer or affidavit, raising fair inference that upon trial he would be entitled to judgment more favorable to himself than the one entered. And where defendant knew that case was on calendar for trial, and that it was “on call” and would be moved for trial as soon as reached, and that on the following morning it would be called “first thing,” his only excuse for not being present being that he was for some time past and upon day of trial “extremely busy with other important business,” such excuse was unavailing; if his business affairs were of such character that he could not be present except at great sacrifice to himself, he should have applied for postponement of trial.</p> <p>2. Appeals — Error—Relief from Default Judgment, “Taxes Not Claimed in Complaint,” Non-presumption of Court’s Action in Absence of Pleadings — Remedy, Correcting Judgment on Motion.</p> <p>Where appellant did not bring up pleadings in the case, in seeking relief from a default judgment on ground of a good defense to that part of the claim against him for “taxes not claimed in the complaint,” held, it will not be presumed that trial court awarded judgment for items not claimed in complaint; and if it did, judgment could have been corrected on motion, without setting aside judgment.</p>

'Hon. Louis L. Fliíegur, Judge. Action -by M. J. Hennegan, against Ida M. Wiley, to recover a broker’s commission on land sale, From a judgment-for plaintiff, and from an order denying a new trial, defendant appeals. (4) To point four of the opinion, Appellant cited: Gunn v. Rank of California (ICal.), 33 Pacific, 1105,; Fd-wards v. Laird, (Cal.), 134 Pacific, 3.65. Respondent cited: Getzelson v. Donnelly, 50 Mich. 164'; 98 NiY'S. 213; Morrison v. Tuska, 113 NYS. 611.

Appealed from Circuit Court, Minnehaha County. Hon. Louis L. Fuírger, Judge. Action by Charles E. Walters 'Company, a corporation, against H. W. Hahn, 'to recover a broker’s commission upon sale of realty and bank stock. 'From a judgment for defendant, and from an order denying a new trial, plaintiff appeals.

Hon. Carl G. Sherwood and Hon. Joseph H. Bottom, Judges. Action by C. A. Gallup, against The Chelsea .State Bank, a corporation, to recover the value of certain bank stock held by plaintiff in the German American State Bank, assignor of defendant bank. From a judgment .in favor of defendant, and from an order denying a new trial, plaintiff appeals. Appellant cited, to effect that he is not estopped: Abel v. Allemania Bank, 82 N. W. 680; Hackett v. Callender, 33 Vt. 97.

Wieeiam E. Skinner, Judge. Action by Sarah Parkinson, against the Chicago, Milwaukee & St. Paul Railway Company, a corporation, and Charles Miller, alleged to have been driving and operating the railway train in question, to recover damages for negligent killing of plaintiff’s husband; and an action by same against same for damages for negligent destruction of the automobile in which plaintiff’s husband was traveling; which actions on appeal were consolidated.

Hon. Alva E. Taylor, Judge. Action by J. H. Hodges, Nick Hoffman, Walter Anderson, E. E. Ackley, and H. M'.

Hon, Frank B. Smith; Acting Judge in place of Hon. William Williamson, Judge. 1 ; Action by Lyman County, a public corporation, against Jones County, a public corporation and J. E. Truran, as Executive Accountant of the state of 'S'outh Dakota to set aside an apportionment by the Executive Accountant of assets and liabilities upon division of Lyman County. From a judgment for defendants, and from an order denying a new trial, plaintiff appeal.

•Appeal from 'Circuit Court, Charles Mix County. Hon, Robert B. Tripp, Judge. Action by Ernest Beck and George Mokrejs, against W. S. Howard, to recover a 'broker’s commission upon sale of realty. From a judgment for defendant, and from an order denying a new trial, plaintiffs appeal. (i) To point one of the opinion, Respondent cited: i Amer. & Eng. Enc. of Law, Page 1216.

<p>Original proceeding. In Matter of the Disbarment of P. C. Morrison, an attorney.</p>

■Appeal from Circuit Court, Baulk County. Hon. Joseph Action by G. Bahrni, against Joseph Artz, to recover damag'es arising from alleged dimunition of value ’of plaintiff’s heifers, from being served by defendant’s bull. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. Appellant cited: Raws 1907, Ch. 244; sec. 2002, -Code 1919.

<p>Appeal from Circuit Court, Meade 'County. Hon. James McNenny, Judge.</p> <p>Information by the State against 'William Daohtler. ' On motion to dismiss appeal to Supreme Court.</p>

<p>Appeal from Circuit Court, Meade County. Hon. JamPS McN'BE.ny, Judge.</p> <p>William Dachtler, the defendant, was convicted of an offense, and he appeals. On State’s motion to dismiss appeal.</p>

Ho-n. Frank Anderson, Judge. Action by E. M. Hawkins, against Silas T. Lasell, and others.. From an order overruling a demurrer to the amended complaint, defendants appeal. Upon motion to dismiss appeal.

Hon. Frank Anderson, Judge. Action by J. A. Hawkins, against Silas T. Lasell, S. T. Lasell, doing business as the Waubay Motor ’Sales Company, and Waubay Motor Sales Company, a corporation. From an order refusing to direct plaintiff to file a bill of particulars, defendants appeal. Appellants cited: Washington-Virginia Railway Co. v. Bauknight, 1913-E Am. Cas. 546; Irwin v. Taubman, 30 S. D. 502, 139 N. W. 115; Gordon v. Gordon’s Administrator,- 1917-D, Ann.

Hon. Robert B. Tripp, Judge. Action by Citizen’s State Bank, a corporation, against M. E. Carmody, to recover a balance on a promissory note. From a • judgment for defendant and from an order denying a new trial, plaintiff appeals. (i) To point one of the opinion, Appellant cited: Eggland v. South, 22 S. D. 467; Einry v. Sauer, 83 Atl. 205, Ann. Cases 1913 C. 1241.

Hon. Robrrt B. Tripp, Judge. In re the probate of the alleged will of Henry P. Tjarks, deceased, as a lost will. After the county court had admitted the will to probate, the State of South Dakota, claiming the estate as an escheat, contested said- will, said court adjudging in favor of contestant; from wjhich judgment proponents appealed to circuit court, where the judgment of t'he county court was affirmed; from which latter judgment proponents appeal.

Original action in quo warranto, by C. O. Nelson and others, aginst A. C. Lembcke and others, as officers of Garretson Independent Consolidated School District, to have declared void the purported creation of said district. (i) To point one of the opinion, Plaintiffs cited: Laws 1919, Ch. 170.

' Decision following opinion in Nelson et al. v. Lembcke et al, 43 S. D. 207, 178 N. W. 981. Original action in quo warranto, by G. T. Gunderson and others, against Alfred Elg'aaen and others, as officers of Baltic Independent Consolidated School District of 'Minnehaha 'County. On demurrer to complaint. McCoy, P. J, and Whiting, J, concurring specially.

Action by F. M. Hatch against the City of Mount Vernon, a municipal corporation, to recover damages arising on contract, resulting from discharge of sewerage from defendant city through a stream over plaintiff’s land. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals.

Election contest, by John ‘M. Carr, against Wakonda Independent Consolidated .School District No. 1 of Clay County, South Dakota, and W. O. Knight and others comprising the Board of Education of said School District, involving the legality of the organization of said district, and other issues. From a judgment dismissing the contest, and from an order denying a new trial, plaintiff appeals.

Hon. Robert B. Tripp, Judge. Action by Aldric J. Larsen against Hansene Johnson, to recover damages from' malicious prosecution. From an order granting a new trial after verdict for plaintiff, plaintiff appeals. (1) To point one of the opinion, Respondent cited: Johnson v. Miller, 29 N. W., 743, Iowa; Christy v. Rice, Mich., 116, N. W. 200. (2) To point two, Appellant cited: Wuest v. American To'b. Co., 10 S. D. 394; Davis v. McMillan (Mich.), 1015 N. W. 862.

Alppeal from 'Circuit Court. Hon. Arva E. Tayror, Judge. Action by William Schoniger and another against Alma E. Logan and A. H. Maas; defendant H. C. Anderson intervening; to foreclose upon a contract for a deed to realty. From a judgment in favor of the intervenor, plaintiffs appeal. Appellants cited, intervention: Schoniger v. Logan, (S. D.) 166 N. W. 226; re Statute of Frauds: Sec. 1249, Rev. Code 1919; Ballou v. Carter, 30 S. D. 11.

<p>Appeal from Circuit Court, .Minnehaha County. Hon. John T. Medin, Presiding Judge.</p> <p>Action by 'Sehoenman Brothers Company, a corporation, against Delia Loffer‘and others (impleaded with ¿Smith Hardware and Harness Company, T. G. (Cook, H. W. Claus, E. L. Smith, Holland -Furnace Company, Eilbert O'dson, -Home Building Company, and J. R. Woolridge,) to foreclose a mechanic’s lien. From a judgment for Plaintiff, and from, an order denying a new trial, defendants Della Lioffer, H. I. Loffer, and Union Savings Association appeal.</p> <p>(3) To point three, Appellant cited: Waples on Homestead and Exemption, Page 331; Thompson on Homestead & Exemptions §372.</p> <p>Respondents Della and -H. I. Loffer cited: Waples on Homestead & Exemptions, 362; Smith v. Lackor, 23 Minn., 4^4.</p>

Hon. Wiuuiam N. Skinner, Judge. Action by Jacob Ritz against Clay Carpenter, to recover •back an alleged exorbitant sum of money paid as an attorney’s fee. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. (1) To point one of the opinion;.Appellant cited: Boyle v. Waters, (Mich.) 173 'N. W. 519. (2) To point two Respondent cited: Brodie v. Watkins, 33 Ark. 5-415, 34 Am.

¡Appeal froml 'Circuit Court, Minnehaha County. Hon. Louis L. FcEEGER, Judge. In the Matter of the Estate of Margretha Boll, deceased. The county court, in a contest by plaintiffs John, Wiliam and Henry Boll, sons and heirs of decedent, admitted the will to probate.

Hon. Wiliam N. Skinner, Judge. Action by Elisabeth E. Gamble against E. R. Keyes, to re- ' cover damages resulting from breaking into plaintiff’s house and home. Prom a judgment for plaintiff, and from an order denying a new trial defendant appeals. (2) To point twD, Appellant cited: Lyles v. Perrin, 119 Cal. 265; 13 Cyc. 108-no; Ainderson v. International Harvester Company, 16 L. R. A. (N. S.) 440; 8 R. C. L., 134-136. Respondent cited: 'Sec. 1965, Rev. Code 1919.

Frank Andprson, Judge. Action by Albert Herreid and others, against the Chicago, Milwaukee & St. Raul Railway Company, a corporation. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Upon motion to strike the appeal record from the files.

Hon. John T. MitDiNj Judge. Action by Herman Wangsness, against Minnehaha County, S. D., to recover compensation as mileage outside of the state. From an order overruling a demurrer to the complaint, defendant appeals.

<p>Indemnity — Bank Deposit By Land Purchaser, Indemnity Bond Re Transfer of Fund to Vendor, Liability of Surety — Collusion Between Surety and Vendor, Verdict As Decisive — Former Decision Followed — Former Judgments as Res Judicata Against-Surety.</p> <p>R sold realty to C, the latter placing in bank .part of purchase money pending the making good of the title by vendor through an agent of Department of the Interior; thereafter C. at R’s request transferred the money to R’s checking account at bank, the latter requiring an indemnity bond from R. Title not having been perfected, C recovered judgment against the bank for the amount of. deposit. In a suit by' bank against R and his surety, to recover the amount involved, held, that the verdict for plaintiff in present suit, under instructions given, is decisive of the question whether there was collusion between the bank and R involving a breach, of trust as against C, in the bond transaction, which defence was set up surety; following the decision in Citizens Bank of Mobridge v. Rosenberger et al., 40 S. D. 25 6', 167 N. W. 154. Held, further, that in other respects the judgments against the surety in the several suits wherein several depositors were plaintiffs, set forth, in present action, are decisive of surety’s liability; it having been notified of depositors’ demands and of suits following, and requested to pay demands or defend suits, and having refused to do either; said judgments being res judicata- against surety, save as to said matter of good faith re trust.</p> <p>Whiting, J., taking no part in the decision.</p>

Original application -by the State of South -Dakota on the relation of Walter J. Flanagan, as Court Reporter, for a writ of mandamus, against Alva Ft. Taylor, as Judge of the Ninth Judicial circuit, State of ¡S'outh Dakota, for certain allowances for. salary, fees and expenses as such reporter.

Hon. John T. Msdin, Judge. Proceeding by Odean 'Hareid, against A. G. Risty and others as the Board of County Commissioners of Minnehaha County, South Dakota, and E. H. Shenkle as County Auditor of said county, for a writ of mandamus requiring defendants to issue to plaintiff a warrant for certain fees alleged to be due him as Superintendent of Vital Statistics.

'Hon. Alva E. Taylor, Judge. Action by E. D. Lingenfelter and others, against D. G. Gehringer and others, to enjoin defendants from paying out school funds for construction of a schoolhouse. (3) To point three of the opinion, Appellants cited: Anderson v. Englehart, (Wyo.) 165 Fac., 572; Helms v. Gilroy, (Ore.) 26 Pac. 852; Perry Public Library v. Robsitz, (Okla.) 45 L. R. A. (N. S.), 369.

Original proceeding in mandamus, by the State of 'South Diakota on the relation of H. L. Eveland, H. 'C. Preston, and Hugh Smith, as the State Tax Commission, to compel the defendant, H. H. Johns, as County Auditor of Lawrence County, South Dakota, to deduct $500 from the assessed valuations of dwelling-houses, etc.

Hon. Robiírt I>. Tripp, Judge. Action by Robert M. Lewis, against Adelia C. Jones, to recover damages for alleged failure of defendant to convey realty. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals.

HoN. Feank Anderson, Judge. The defendant, 'Fred Lahman, was convicted of the crime of larceny of an automobile, and he appeals. (i) To point one of the opinion, Appellant cited; Oldham v. Commonwealth (Ky.) 13 Am. Crim. reports 615; 58 S. W. 418; Kelley v. State (Mich.) 71 N. W. 299; 'State v. King, 9 S. D. 628. Respondent cited: People v. Koerner, (N. Y.) 48 N. E. 730.

HoN. Wiuuiam WbxuiAiMson, Judge. Action by J. H. Danner, against Harry A. Murnan, to recover money paid upon execution sale. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (i) To point one of the opinion, Appelant cited: Dirks Title Co., v. Koch, et al, 32 S. D. 351; Dresser v. Kromberg, 36 D. R. A. (N. 'S.), note; Murphy v. Higginbottom, 27 Am. Decisions, 395.

<p>Action by E. A. Mitchell, against John P. Morgan, and Herman Guik, for specific performance of a contract of sale of realty. From a judgment for plaintiff, and from an order denying a new trial, defendant Gulk appeals.</p> <p>Respondent cited: Smith v. Bingham, (Cal.) 28 L. R. A. (■N. S.) 522.</p>

'Hon. Wieeiam N. Skinner, Judge. Action by Bank of Willow Lakes, a corporation, and J. LWingfield, Public Examiner, against Walter Geo. Syverson, John Fredrick Flindt, and National Surety Company, a corporation, to recover upon a bank employees surety bond. From a judgment for plaintiff, and. from an order denying a new trial, defendants appeal.

Hon. James Mc'Nbnny, Judge. Action by D: F. Kenny, ag'ainst the Black Hills Trust & Savings Bank, a corporation, and Burt Rogers, to recover an alleged balance due plaintiff in a transaction of settlement of bank notes and sale by Rogers of plaintiff’s interest in a mine. From a. joint judgment against defendants, and from an order denying a new trial, defendant -Rogers appeals.

Hon. Frank Anderson, Judge. Action by Noble Johnson, against J. H. Brannon, to recover damages for burning at defendant’s behest certain millet. From a judgment for plaintiff, and from an order granting a new trial, defendant appeals.

Hon. Martin Bsrgh, Judge. The defendant Ben ’Collins, was convicted of operating a motor truck on the streets of Sioux Falls without having procured license therefor, and he appeals.

Hon. Walter G. Misc., Judge. The defendant, Calvin W. Pope, was convicted of the crime of obtaining property under false pretenses, and he appeals from the judgment, and from' an order denying his motion in arrest of judgment. Appellant cited: Wharton’s C'rim. Pro. Vol. I., S'ec. 305; State v. Judd, 120 S. W. 780. Respondent cited: Secs. 4723-5, Rev. Code 1919; Wharton’s Criminal Caw, Vol. II, page 1162; Subds. 2, 3, Sec. 4179, Sec. 4180, Subd. 2, Rev.' Code 1919.

Hon. • Robert B. Tripp, Judge. Action ¡by Mary Highrock, against John P. Gavin and others, to quiet title to realty. From a judgment for defendants, and from an order denying a new trial, plaintiff appeals. (2) Under point two of the opinion, Appellant submitted that: It was the intention of Congress by the General Allotment Acl to give to the allottee a vested substantial and individual property interest in allotted land.

' Appeal from Circuit Court, Kingsbury 'County, Hon. Alva E. Taylor, Judge. Action by Bank of Alpena, a corporation, against H. A. Parsons, Defendant, and the Chicago & 'Milwaukee & St. Paul Railway Company, a corporation, upon contract. From an order setting aside a judgment against the principal defendant and against the garnishee, and dismissing the action, plaintiff appeals.

Hon. John T. Medin, Judge. Action by George R. 'Henderson, against George W. Egan for recovery of money only. Efom a judgment entered by default, defendant appeals. (r) To point one of the opinion, Appellant cited: 31 Cyc. 362; and submitted that: There are two classes of amendments permitted under our' statutes. One class ('Sec. 2376, Code) is amendments which, if taken at the right time, are a matter of right to the party amending.

<p>1. Schools — Consolidation of Districts — All Common School Districts Former Opinion Reversed.</p> <p>Wherein this Court in its decision reported in 178 N. W. 881 held illegal the attempted organization of Wakonda Independent Consolidated School District, said former opinion, so far as it held the consolidation proceedings invalid, was erroneous, since it clearly appears that all other districts included in the proposed Consolidated District, were common school districts; and all statutory .provisions concerning consolidation were complied with.</p> <p>2. School — School Bonds, Legality of Proceedings Re — Further Argument Requested.</p> <p>'A further question yet undetermined on this appeal, owing to the grounds for the former decision herein viz., whether certain proceedings looking to issue of school bonds, were regular; should be presented by further briefs and arguments; petitions for rehearing being hereby granted for sole purpose of considering said undecided question.</p> <p>Gates and Smith, JJ., not sitting.</p>

Hon. William Williamson, Judge. Actoion ¡by Bernard J. Huigens, against George J. Crilly and others, to effectuate the winding up of a co-partnership. From an order appointing a receiver to take possession and distribute the co-partnership’s property, defendants appeal. (i) To point one of the opinion, Appellant cited: 34 Cyc. 117, High on Receivers, 3rd Rid., Secs, m, 112; Dewalaár v. Schreek et al., 8.6 N. W. 185, 187.

Hon. Thomas L. Boucic, Judge. Action by Stacey A. Cochrane, special administrator of James H. Welch, deceased, and John W. ¡Crammer, substituted for James H. Welch, deceased, against Anna E. McCoy, to qjuiet title to realty. ¡Erom a judgment for defendant, and from- an order denying a new trial, plantiifs appeal. (2) To point two of the opinion, Appellant cited: Baldwin v. Burt, 43 Neb. 245, 61 N. W. 601; Peavey v. Wells, (Minn.) i;6i N. W. 508.

Hon. Louis L. FrEEGER, Judge. Action by Carrie Bgge and others, against L. John Haglund, for an injunction against defendant restraining him from taking by force his child from the custody of plaintiffs. 'From a judgment for plaintiffs defendant appeals. (2) To point two, Appellant cited: High on Injunction, 4th Ed. Secs. 1x2-14; 115 R. iC. L. Sec. 179.

(Appeal from Circuit Court, Beadle County. Hon. Arva E. Tayror, Judge, Action by Gladys Cobb, against S. B. Cobb, for divorce. From an order vacating a decree in plaintiff’s favor and granting her time within which to serve an amended complaint and to take further proceedings, defendant appeals. (i) To point one of the opinion, Respondent cited: Purinton v. Purinton ('S. D.) 169 N. W. 236; York v. York, 3 N. D. 343.

Hon. John T. Mbdin, Judge. Action by The Gray 'Construction Company, a corporation, against the City of 'Sioux Falls, a municipal corporation, to recover the amount of a certified check alleged to have been -converted by defendant. From- an order sustaining a demurrer to the complaint, plaintiff appeals. (1) To point one of the opinion, Appellant cited: Safety Insulated Wire and Cable Co. v. Mayor, Etc., Baltimore, 66 Fed. 140; Dillon Municipal Corp. Sec. 26.

Action by J. G. -Culver, aginst George W. Burnside and others, to recover damages for unlawful detention and imprisonment, and for malicious publication of report of his incarceration. From ah order overruling a demurrer to the complaint, defendants Burnside, Pike, Hayes, and Johnston appeal. (1) To point one of the opinion, Appellants cited: Bebout v. Pense, 31 S. D. 619, 141 N. W. 515.

County. Ho.n. Joseph H. Bottum, Judge. Action by Samuel Dalton, against W. J. Snyder, for annulment of a written contract for sale of realty, or for reformation and specific performance if admissible; defendant praying specific performance. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. (4) To point four, Appellant cited; Des Moines County Agricultural 'Society v. Tubessing, 54 N. W. 68, 87 la.' 1-38.

Hon. J-a-mes McNenny, Judge. The defendant, William 'Dachtler, was convicted of the crime ■of rape, and he appeals. To point two, Appellant cited: State v. Schultz, (S. D.) 169 N. W. 548; 1 Hale P. C. 633; 33 Cyc. 1385; State v. Connelly, (Minn.) 59 'N. W. 479; Tway v. State, (Wyó.) 50 Pac. 188; Buenn v. People, (Colo.) 28 Pac. 250. Respondent cited: State v. Bailly, (S. D.) 137 N. W. 352.

A-ppeal from 'Circuit Court, Meade County. Hon. James McNenny, Judge. Proceedings by the State of South -Dakota, against William Dachtler, for bastardy. From a judgment adjudging defendant to ■be the father of the bastard child in question, and from an order denying a new trial, defendant appeals.

Hon. Louis. L. Fleeger, Judge. ■Action ¡by Ida Steensland, against John J. Steensland, for possession of minor children and for separate maintenance for plaintiff and children. From a judgment for plaintiff and from an order denying a new trial, defendant appeals.

Original proceeding, by the State of Siouth Dakota on the relation of •Commonwealth Finance 'Corporation, a corporation, against the Circuit 'Court of Beadle 'County, South Dakota, and Hon. Arva E. Tayror, as judge of said Circuit Court, seeking a writ of prohibition.

Hon. Jambs McMbnny, Judge. The defendant, George H. Thompson, was convicted of the crime of burglary with explosives, of a bank, and he appeals. (r) To point one of the opinion, Appellant cited: State v. Palmer (S. D.), 57 N. W. 490; State v. Finder (S. D.), 81 N. W. 959, 72 N. W. 97.

Ho.n. Frank Anderson, Judge. Action -by James A. Cameron, by Anna A. Cameron, guardian ad litem, against Frank Miller, to recover damages for personal injuries resulting from collision of plaintiff’s bicycle with 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; Thompson v. Buffalo Railway Company, 145; N. Y. 196, 12 Am. N'eg.

<p>Venue — Change Of — State v. Thompson l.i O N. W. 73, Followed.</p>

Hon. Robert B. Tripp., Judge. Action by E. B. Robinson, against Anna Roinstad, in claim and delivery, for possession of cropped wheat grown on land claimed to have been leased by administrators of an estate. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals.

Hon. Louis L. FlSEGER, Judge. Action by Kate House, against the Bankers’ Reserve Life Company of Omaha, a corporation, to recover upon a policy of life insurance. Prom a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (i) To point one of the opinion, Appellant cited: Stevens v. AVliole AVheat Milling Company, 172 N. AV. 244; Bowen v. Mutual Life Insurance Company of New York, 20 S. D. 103; 104 N. AV. 1040; Collins v. Metropolitan Life Ins.

<p>1. Taxation — Assessment, Equalization Re Realty — Equalization Where Assessment Equitable, Increase to be Proportionate— Rule.</p> <p>In the assessment and equalization for taxation, it is indisputable that, if assessors’ valuations were equitable so that no grounds of complaint exist as between property owners, any increase made by equalization board should retain the same proportionate values.</p> <p>2. Same — Equalization by Extra Assessment, Higher Increase on Business, Than on Residence Property, Original Under-Assessment of Business Property As Reason — Conflicting Evidence— Equalization Sustained.</p> <p>Where, as grounds for mandamus against the State Tax Commission, to require it to order a new assessment of city realty, it was alleged that the city equalization board, in equalizing assessment of realty, arbitrarily added large sums to valuation of realty in the business section, or “fire limits,” while very little to that of the remaining realty, resulting, in assessment of plaintiff’s and other business property above its value, while assessing residence property below its value, in violation of the rule of equal taxation under the rules and law; the evidence showing that many property owners asked that the proposed increase of valuation through equalization should be proportionate throughout the city, all parties interested understanding that any increase should be placed on unimproved realty; plaintiffs charging and seeking to prove that the board arbitrarily placed some 80% of increase burden on business property on pretext that residence property owners were less able to pay the additional taxes; it appearing that the equalization board professed to have determined the property in the “fire limits” had been assessed lower in proportion to value than that outside, and that their sole aim, and the result reached by them was the assessing of all realty as nearly as possible on same basis; plaintiffs’ evidence tending to show that equalized valuation was in a few cases excessive as compared with that of other realty, and that, as shown by county transfer records, many city residence properties had been sold at values greater in proportion to said assessed valuations than the proportions of true values of real values in fire limits to equalize assessed values thereof; held, that while such evidence' might afford some proof of disproportionate assessment and might have been considered by equalization boards, yet, in absence of proof that transfer records were brought to attention of board, such evidence failed to establish wilfull intent of board to arbitrarily disregard the law re equalization. So held, where evidence as to whether equalized values of the two classes of realty were •disproportionate when compared with true values, was conflicting; Court not being satisfied that on the whole one class was equalized at a much, if any, greater percentage of its true value than the other; this notwithstanding a few tracts in fire limits were equalized at amounts disproportonate to assessed values on either residence or other property within fire limits. 3. Taxation — Mandamus of State Tax Commission to Correct City Equalization Board’s Action — Whether Mandamus Lies.</p> <p>Mere errors in judgment of members of a city equalization board cannot be corrected by a proceeding brought by city property owners against State Tax Commission, to order a reassessment of city realty. While under Sec. 6-587, Code 1919, broad authority is conferred upon the -Tax Commission, and it has supreme authority in all matters wherein its members may and do exercise this discretion, yet while under Subd. 15 of said section, which grants authority to order re-assessment of realty and personal property of any class in any assessment -district when in its judgment such re-assessment is advisable or necessary to the end that any and all classes of property of such district shall be assessed in compliance with law, and for that pur-pose may require assessor to make such rei-assessment— defendant Commission might have ordered re-assessment of the city property if they believed the assessment invalid, incomplete, or so inequitable and injurious as to make a re-assessment “advisable or necessary,” it is beyond the power, of Supreme Court to command defendants to order re-assessmept in any case where statute gives them discretion; that furthermore, the ordering of a re-assessment is within said Commission’s discretion except where under facts proven it appears the purported assessment then standing is void so that any tax based thereon would be invalid; and, plaintiffs having failed to prove invalidity of equalization by city board, the Court need not determine whether it could have commanded defendants to order re-assessment in case Court found the facts with plaintiff.</p> <p>4'. Taxation — Equalization by (Sty Board, Appeal from to County BoardJ — County Board’s Inaction and Request that Tax Commission Equalize, Non-appeal from County Board, Effect Re Right to Complain.</p> <p>Where certain owners of city property appealed from action of city board of equalization to county equalization board for-relief against claimed unequal assessment, as authorized by Sec. 6727, Code 1919, the county board desisting from action but requesting that State Tax Commission act, the parties appealing to county board not having appealed from action of latter, as they might have done under Secs. 6727, 6734, of said Code, they therefore lost all right to complain of mere inequalities in taxation.</p> <p>5. Samé — Equalization by State Tax Commission — Failure to Reassess for Want of Time, Though Equalization Inequitable— Tax Commission Record Showing Further Reasons After Mandamus Instituted, Effect Re Remedy.</p> <p>Where State Tax Commission’s record shows that, notwithstanding they considered the equaliaztion of. city property by city board inequitable in the case of some property but refused to order re-assessment because they were of opinion it would be impossible to assess the property “in the short space of time the work of re-assessment would have to be completed,” held, that, were it true that said Commission have not exercised the discretion vested in them by Subd. 15 of Sec. 6.587, Code 1919, while such fact might authorize Supreme Court to compel them 'by mandamus to exercise such discretion; yet, it appearing that since mandamus proceedings were instituted said' Commission have made further and more complete records showing reasons why in their judgment it would be inadvisable to order re-assessment, therefore writ of mandamus denied.</p> <p>Judge McNenny of the Eight Circuit sitting in place of McCoy, P. J., disqualified.</p>

Hon. John T. Medin, Judge. Action by Anna Larson and others, against the Township of Edison, in Minnehaha County, S. D., 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 road purposes.

Hon. William N. Skinnlr, Judge. Action by Stanley Polluck, against the. Minneapolis & 'St. Louis Railroad Company, a corporation. From a judgment for plaintiff, defendant appeals after statutory period had expired, and from an order denying a new trial, it appeals. (i) To point one of the opinion, Respondent cited: Section 3147 Revised 'Code 1919; Aldrich v. Public Opinion Pub. Co., 27 S. D. 589, 132 Nl.

Action by Charles V. 'Short, against J. M. McMullen, to recover upon a promissory note; defendant counterclaiming for damages. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. (1) To point one of the opinion, Appellant cited: People v. Lee Yung Chong 94 Cal. 379; Levells v. State, 32 Ark. 5,85. Respondent cited: Thompson on Trials, Secs. 2549, 2261.

Action by C. G. Wess and R. Daggett, against the South Dakota Packing & 'Shipping Company, a corporation, to recover the purchase price of a hog sold by plaintiff to defendant. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (3) To point three of the opinion, Appellant cited: 16 C. J. 76 and 77, and Note 2 on page 77; 'State v. Burnam, (Wash.) 128 Pac. 218; Kelley v. John R. Daily Co., (Mont.) 181 Pac. 326.

Hon. Raymond L. -Duxman, Judge. Action by Marion H. Printup, as administratrix of the estate of D. L. Printup, deceased, and another, against C. W. Kenner, Sheriff of Marshall 'County, South Dakota and the Commissioner or Officer of the Court, and others; Diana Bingham and Charlotte Bingham, intervening, to enjoin defendant Sheriff from, making an execution sale of certain land. From a judgment in favor of the interveners, plaintiffs appeal.

Hon. John T. Mudin, Judge. Action by Oscar Pugh, against Henry Wilson, to recover purchase price of a mare sold at auction. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. (1) To point one of the opinion, Appellant cited: Mechara on Sales, S,ec. 816; Storey on Sales, 4th Ed. 421. (2) To point two, Appellant cited: 6 C. J. 835; Burt v. Kennedy, 3 Pennayp.

Hon. William Williamson, Judge. Action by Joseph D. Keller and another, against Edward Garneaux, as executor of the estate of Joseph Garneaux, Sr., deceased, and another, to enforce specific performance of a contract for sale of land. From a judgment for plaintiffs, and from an order denying a new trial, defendants appeal. (2) To point two of the opinion, Respondent cited: Kreutzler v. Lynch, et al 100 N. W. 887; S'izer v. Clark, 116 Wis. 534, 542, 93 N. .W. 5.39.

'Appeal from Circuit 'Court, Clay County. Hon. Robert B. Tripp, Judge. Action by McCaull-Webster Elevator Company, a corporation, against Lee A. Steele and J. W. 'Steele, co-partners as’iSteele Brothers, to recover damages for failure to deliver corn sold by defendants to plaintiff. From a judgment for defendants, and from an order denying a new trial, plaintiff appeals.

Hon. Wil-Eiam N. Skinner, Judge. Action by-Minerva E. 'Stewart, against the City of Water-town, a municipal corporation, to recover damages for personal injuries. From an order overruling a demurrer to the complaint, defendant appeals. (Appellant cited: 21 L. R. A. (N. S.) 614, notes; Smith v. City of Yankton, 23 S. D. 352; 121 N. W. 848. Re city’s duty to remove snowi, etc., cited: Dupont v. Port Chester 204, N. Y. 351, 97 N. E. 735, 39 L. R. A. (NS) 1167, and note.

Hon. Thomas D. Boucic, Judge. Action by Johanna Dee, and John 'Herbert Dee and others, minors, by Johanna Dee, their guardian ad litum, against Claus J. Gulbraa, to restrain defendants from constructing and maintaining a certain ditch between two sloughs, one on plaintiffs’, the other on defendants’ land. From a judgment for plaintiffs, and from an order denying a new tidal, defendant appeals. Appellant cited: Thompson v. Andrews, (IS.

Hon. Frank Anderson, Judge. Action by Roswell Bottum, as Administrator of the estate of Harry R. Everett, deceased, for the benefit of N'ettie Hitt, mother of said decedent, against Frank Kamen, Sr., to recover damages for negligent killing of decedent, a minor. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (3,) To point three of the opinion, Appellant cited: Pierve v. Conners, 20 Colo. 178; 37 Pac. 721; 46 A. S. R. 279.

Hon. Louis L. EuSSKGr, Judge. In the matter of the estate of James A. Gillette, deceased. The County Court of Moody County, upon petition of Maggie Gillette, widow of decedent, made an order which among other things denied her petition for an allowance out of said estate, from- which order she appealed to the Circuit Court.

<p>Malicious Prosecution — Husband, Accusing Wife of Infidelity — His Alarming Conduct — Seemed Dangerous to Physician- — Charging Him With Insanity, Discharge From Custody, Whether Conspiracy to Persecute, or Malice, HI Will.</p> <p>In a suit by a husband against bis mother-in-law and other relatives, including S, a family friend, who swore out the warrant for his prosecution, to recover damages for malicious prosecution, it appearing that plaintiff, a farmer, circulated report that his wife was criminally intimate with his hired men, and among other things told his mother-in-law that his wife had committed adultery with three different hired men, he being very abusive to his wife, his general conduct in his family being .alarming; that the relatives consulted S, who induced plaintiff to consult a physician, who though not pronouncing him insane declared he looked a dangerous man and that something ought to be done; that the state’s attorney, after consulting with S, drew a complaint charging plaintiff with insanity and as a subject for the insane hospital, which was sworn to by S; that after a hearing by the insanity hoard he was discharged; held, the evidence fails to sustain jury’s finding that defendants acted maliciously or without probable cause; that plaintiff’s conduct might well lead a reasonable person to believe he was a fit subject for insane hospital treatment; and there was no evidence of malice or ill will.</p>

Hon. Willtam N. Skinner, Judge. Action by Herman Eaabs against Fred iSeholl, to recover alleged future profits as damages for defendant’s failure to furnish a written renewal lease of land. (2) To point two of the opinion, Appellant cited: Bowers v. Graves, 8 -S. D. 385, 66 N. W. 931; 24 Cyc. 1468. Respondent cited: Saunders et al. v. Pottlitzer Bros. Fruit Co. (N. Y.) 39 N. E., 75; 29 E. R. A., 431; Bowers v. Graves & Vinton, (Si. D.) 66 N. W, 931.

Hon. Robert B. Tripp, Judge. ■ Action by Jacob Olson, against the Advanee-Rumely Thresher Company, a corporation. Rrom an order denying a motion to set aside a default judgment, 'defendant appeals. To point one of the opinion, Appellant cited: Searles v. Christensen, 5 S. D. 656; Baxter v. Chute, (Minn.) 52 N. W. 379; Note in Vol. 96 Am. St. Rep. 109. Respondent cited: Notes to 27 D. R. A. (N. S.) 8583 Babcock v. Brown, 25 Yt. 550; 60 Am, Dec. 290, 23 Cyc., p. 937, par. 2.

Hon. William Williamson, Judge. Action by Gordon Mizar against Coy Nelson and another, to recover upon a promissory note; defendant' counterclaiming. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. (2) To point two of the opinion, Respondent cited: Hedlund v. 'Holy Terror Mining''Co., 16 S-. D. 261. (3) To point three, Respondent cited: Bowers v. Graves & Vinton Co., 8 S. D. 385; Nebraska Land & Live Stock Co. v. Burris, 10 S. D. 430.

Hon. Alva E. Taylor, Judge. Action by Joseph Triner Company, a corporation, against J. C. 'Shanks,.as State Sheriff, and others, to' enjoin the defendants from instituting criminal prosecutions against persons' who may sell plaintiff’s proprietary medicine. From an order overruling a demurrer to the complaint, defendants Byron S. Payne, as Attorney General, and Otarles P. 'Warren, as 'States Attorney, appeal. (2) To point two of the opinion.

Hon. Frank Anderson, Judge. Action by John ‘Schnuerle and another, against C. E. Gilbert and another, for damages for trespass upon realty alleged to have been committed after a specified date, upon which date defendant Gilbert assigned a land license to defendant Humphrey. From a judgment for plaintiffs, and from an order 'denying a new trial, defendants appeal.

Hon. Jambs MoNbnny, Judge. Application and petition by Matt Vodopich, under Workmen’s 'Compensation Act, as Employee of the Trojan Mining Company, a corporation, Employer, before the State Industrial Commission, to have set aside petitioner’s release of further claim for injury received by him as such employee, and for reopening his claim for further compensation.

Hon. William N. Skinner, Judge. Action by Anna Erese against the Northwestern National Life Insurance Company, a corporation, to recover upon a policy of life insurance. Erom an order overruling a demurrer to the answer, plaintiff appeals.

Original proceeding by Albert W'heelon-, for himself and in behalf of all other property owners similarly situated-, against the South Dakota Land 'Settlement -Board- and others, for a writ of prohibition against defendant Board and officers, prohibiting them from issuing state bond's by said Board pursuant to La-ws 1919, Chap. 315.

Hon. Frank AIndrrson, Judge. Action ¡by Commercial Credit Company, a corporation, against W. C. Nissen, to recover, as endorsee, upon promissory notes. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals.

Hon. Frank B. Smith, Judge. Action by Annie L. OdNleill, against Joseph Bennett and others, to set aside a deed of an alleg'ed homestead by plaintiff’s husband, and for other relief; defendants setting up adverse claims and praying for determination thereof and for injunctive relief. From a judgment for defendants, and from an order denying a new trial, plaintiff appeals.

Action by Winner 'Milling 'Company, a corporation, substituted as complainant for J. J. Brewer and L. A. Os'born co-partners a's Winner Milling Company, against the Chicago & Northwestern Railway Company, a corporation. An order of the State Board, of Railway Commissioners having been made directing defendant railroad, company to construct a sidetrack from its main line to plaintiff’s mill, defendant company attempted to appeal therefrom to the Supreme Court.

Hon. John F. Hughes, Judge. Action by E. T. Walton, against the Standard Drilling 'Com-' pany, a corporation, to compel defendant to record a transfer of some of its corporate stock to him on the corporate boobs. Judgement for defendant, and from an' order denying a ne.w trial, plaintiff appeals.

Hon. Raymond L. Diixman, Judge. Action by the Central Lumber Company, a 'corporation, against Thomas P. Dougherty, defendant; Ray 4 Madsen et al being- garnishee defendants. After judgment entered against the main defendant, garnishee summons against the garnishee defendants was issued. Prom an order denying a motion to vacate and set aside the garnishment proceedings, garnishee defendants appealed.

Hon. John F. Hughes, Judge. Action by the Schiller Piano Company, a corporation, against Charles L. Hyde, upon renewal promissory notes. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (3) To point three of the opinion, Appellant cited: Sioux Falls Remedy Co. v. Cope, 28 S. D., 398; Amalgamated Zinc & Lead Co., v. Bay State Min.

Original motion in Supreme 'Court, by plaintiff, E. A. Mitchell, who procured' judgment against defendants John P. Morgan et al in a suit for specific performance of a contract relating to sale of realty, defendant having appealed therefrom — for leave to file and serve a supplemental complaint for damages resulting from defendant’s retention of possession of the realty after suit was begun.

Hon. Wiuuiam N. ’Skinner, Judge. Action by the Bank of Brookings against the Aurora Grain Company, a-corporation, and S. L. Potter and and others, co-partners, as Potter, Garrick & Potter, for conversion of personalty and to recover from defendants the value of plaintiff's interest as mortgagee in certain grain sold and delivered by mortgagor to defendant grain company. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal.

Hon. Frank B. Smith, Judge. Action by Chamberlain Sanitarium and Benevolent Association of Seventh Day Adventists, a corporation, against the American Railway Express Company, a corporation, to recover the value of property alleged to have been consigned for shipment to defendants predecessor, and by it converted to its own use. From an order 'denying an application for leave to answer in the action, defendant appeals.

Hon. William Williamson, Judg'e. Action ¡by W. B. Carlock, as administrator with the Will Annexed of the Estate of Vie. H. Stevens, Deceased, against L. Q. Loyd, to recover upon a promissory note. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (i) To point o'ne of the opinion, Respondent cited: 2 Black on Judgments, ¡Secs. 539, 340.

(Appeal from 'Circuit ¡Court, Minnehaha County. Hon. John T. Medin, Judge. In the Matter of the Application of Neva S.umlmers, by Ray P. Summers, ¡her guardian, for Writ of Habeas ¡Corpus. The trial court having- made an order and rendered judgment refusing the writ, relator appeals.

Hon. Wilriam N. Skinner, Judge Action ¡by F. 'W. Gilbert, against J. B. Hamilton, to recover damages for defendant’s failure to fulfill an alleged contract of ex-change of merchandise and lands for other realty. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals.

Original proceeding in certiorari by the State of iSouth Dakota, on the relation of Byron S. Payne, Attorney General, against Frank Anderson, as Judge, and D. F. Stevens, as Clerk, of the Circuit Court, in and for the County of Roberts, State of South-Dakota. (3) To point three of the opinion, Plaintiff cited: Alvarez v. State of Florida, 7 Am. & Fng. Ann. cases, 88, and cases cited therein;-Snodgrass v. State, 150 S. W. 162; 41 L. R. A. (N. D.) 1x44.