Volume 44 — Utah Reports

<p>1. Action — Misjoinder. A complaint could join a cause of action for damages for willfully driving defendant’s sheep on plaintiff’s grazing land, and feeding the pasturage therefrom against plaintiff’s protest with another cause of action, alleging special damages by plaintiff’s sheep becoming infected with a contagious disease with which defendant’s sheep were affected, and alleging the dates of the trespasses somewhat differently; - Comp. Laws 1907, sec. 2961, permitting the union of special causes of action arising out of injuries with or without force to the person or property of another. (Page 5.)</p> <p>2. Pleading — -Ambiguity—Uncertainty. The complaint alleged that plaintiff owned certain uninclosed arid lands, and that defendant owned a large number of sheep, and that there was much grass, etc., on the land valuable for pasturing, and that defendant knew the boundaries of plaintiff’s land which were well marked, and willfully and wrongfully trespassed on the land by driving a large number of sheep thereon, and maintaining camps thereon, and.by such trespasses the grass and underbrush, etc., was destroyed to plaintiff’s damage, and that defendant willfully permitted his' sheep to remain on the land, and refused to remove them therefrom, as a result of which the vegetation was destroyed, etc. Held, that the complaint was not demurrable on the ground that it was ambiguous, unintelligible, and uncertain. (Page 5.)</p> <p>3. Animals — Injuries by Trespassing Animals — Uninclosed Land. One who willfully and against the owner’s protest brings sheep on uninclosed arid land for grazing is liable for resulting damages.1 (Page 6.)</p> <p>4. Pleading — Demurrer—Admissions. Material allegations in the complaint are admitted for tlie purposes of a general demurrer. (Page 7.)</p> <p>5. Animals — Trespass—Fence Laws — Unintentional Trespass. Under Comp. Laws 1907, sec. 20, providing that if sheep trespass on premises, except those not inclosed by a lawful fence where required, the party aggrieved may recover damages, a sheep owner is not liable for damages resulting from an unintentional trespass on uninclosed land in a county in which the fence law is in force. (Page 8.)</p> <p>6. Appeal and Error — Bill oe Exceptions. Exceptions to instructions and to the refusal to charge cannot be reviewed upon the court stenographer’s certificate that certain exceptions were taken, if such exceptions are not contained in a bill of exceptions properly allowed; such certificate not being a part of the judgment roll.2 (Page 9.)</p> <p>7. Appeal and Error — Bill oe Exceptions. Appellant need only include in his bill of exceptions that part of the proceedings at trial and exceptions thereto which he desires to have reviewed. (Page 10.)</p>

<p>Appeal from District Court, Second District; Eon. J. A. Eoioell, Judge.</p> <p>Action by Jacob Jensen against tbe Davis and Weber Counties Canal Company.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

<p>1. Sodomy — Common Law. Under Comp. Laws 1907, sec. 2488, providing- that the common law of England, except in so far as it is repugnant to the federal Constitution and the state Constitution and statutes, shall he the rule of decision, the definition of the infamous crime against nature with man or beast denounced by section 4228 must be sought in the common law, not being defined by statute. (Page 19.)</p> <p>2. Sodomy — Offense—What Constitutes — “Chime Against Na-ttjRe.” At common law the term “sodomy” was equivalent to the term infamous crime against nature; hence, as sodomy could be accomplished only by copulation in anum, the infamous crime against nature denounced by Comp. Laws 1907, sec. 4228, but not defined, does not include copulation by one male person in the mouth of another, the definition being dependent on the common law. (Page 19.)</p> <p>3. Constitutional Law — Province of Judiciary. In view of Const, art. 5, sec. 1, separating the powers of government and prohibiting each department from exercising the functions of the others, the Supreme Court cannot declare any conduct a crime, no matter how morally reprehensible it may be, where it is not so declared by the legislature. (Page 25.)</p>

<p>Appeal from District Court, Fourth District; Hon. A. B. Morgan, Judge.</p> <p>Action by the National Union Fire Insurance Company against the Denver & Bio Grande Bailroad Company.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

F. O. Loofbourow, .Judge. [Robert E. Bess was convicted of having willfully neglected and refused to provide for the support of his minor children. He appeals.

<p>1. Sales — Action jtob Pkice — Acceptance of Contract — -Sufficiency of . Evidence. Evidence, in an action for the price of machinery and supplies for an ice plant, wherein the defense was that there was no contract since plaintiff’s acceptance of the proposal in its final form had never been communicated to defendant, held to sustain a finding that defendant had knowledge of plaintiffs acceptance. (Page 51.)</p> <p>2. ’ Sales — Action for Price — Instructions—Acceptance of Contract. Where, in an action for the price of machinery and supplies for an ice plant, there was evidence sufficient to justify a finding that defendant had knowledge of plaintiffs acceptance - of the contract sued on, it was not error to instruct that notice of acceptance need not have been formally given, but that it would be sufficient if defendant had actual notice or knowledge thereof prior to the cancellation or withdrawal of the proposal made by him to plaintiff. (Page 56.)</p> <p>3. Appeal and Error — Harmless Error — Objection to Depositions. Error, if any, in a ruling that plaintiff could put in evidence a portion of a deposition without introduction of the remainder was harmless where the whole deposition was read in evidence. (Page 59.)</p>

<p>ApplicatioN by Anna M. Benson for a writ of mandamus against Hon. M. L. Ritchie, -Judge of the District Court of the Third Judicial District, in and for the County of Salt Labe.</p>

Geo. G. Armstrong, Judge. Action by the Houston Heal Estate Investment Company, a corporation and another, against L. L. Hechler, in which Carrie A. Yerrick filed complaint in intervention, claiming the attached property. Complaint in intervention dismissed. Intervener appeals. APPELLANTS’ POINTS.

<p>Homicide — Weight of Evidence — Identity of Accused. Evidence, in a prosecution for murder occurring during an attack in a saloon in which, one of the robbers was killed and one escaped, held insufficient to identify accused as the escaped man, and to justify conviction.</p>

T. D. Lewis, Judge. Action by Carmine Hirabelli against Max Daniels. ' Judgment for plaintiff and order denying defendant’s motions to vacate that judgment and reinstate the verdict rendered on previous trial and for a new trial. Defendant appeals. appellant’s points. It is the duty of the jury to consider the testimony, and not automatically return a verdict in accord with the expert opinion.

Appeai, from District Court, Third District; Hon. C. W. Morse, Judge. Action by John Jensen against the Denver & Rio Grande Railroad Company. • Judgment for plaintiff. Defendant appeals. RESPONDENT'S POINTS. Appellant’s track through block eighty-one, where the boy was killed, was notoriously, and constantly used by the people of the neighborhood as a public thoroughfare, of which fact appellant’s trainmen were well aware. The boy was a licensee, and not a trespasser.

- Appeal from District Court, Third District; Hon. T. D. Lewis, Judge. Action by C. West against E. M. Pinkston and Mary L. Albaugh to foreclose a mechanic’s lien. Judgment for plaintiff for partial relief. Plaintiff appeals.

M. L. Ritchie, Judge. Action to quiet title by William Sheppick against William G. Sheppick, in which Thomas Sheppick and another, executors under his will, were substituted for defendant. Judgment awarding a half interest to each party. Defendants appeal and plaintiff takes a cross appeal.

G. IF. Morse, Judge. In tbe matter of tbe assignment of V. and G-. Bombino for tbe benefit of creditors. From tbe allowance of certain amounts to tbe assignee, certain creditors appeal.

<p>1. Municipal Corporations — Public Improvements — Necessity op Contracts. Comp. Laws 1907, sec. 286, empowers the board of public works of first-class cities to make contracts for the city for all such works and improvements “as may be ordered by the council,” providing that all such contracts shall be subject to the approval of the council, to superintend the performance except as to the construction of public buildings, and further requires the board to approve the estimates of the city engineer of the value of the work, to accept any work done or improvements made, subject, however, to the approval of the council; and section 313x1, provides that no contract of any city for any public improvement shall be awarded except to the lowest responsible bidder after publication of notice. Held, that a first-class city, such as Salt Lake City, could not construct a dam for a water supply without entering into contracts therefor, with notice, etc., as provided.1 (Page 154.)</p> <p>■2. Municipal Corporations — Public Improvements — Proceedings. < Municipal authorities may meet an existing emergency by having- work done without complying with the charter provisions relating to municipal contracts, requiring advertisements for bids, etc.; but, to sustain their, action, it must appear that the emergency was such as to prevent compliance with such provision. (Page 158,)</p> <p>3. Municipal Corporations — Public Improvements — Regulation by Statutes — Construction oe Waterworks. The fact that a city will operate its waterworks in its private, and not in its governmental, capacity will not authorize it to make improvements on its waterworks without making contracts for that purpose pursuant to Comp. Laws 1907, secs. 286, 313x1, requiring the city authorities to make contracts for the erection of all improvements ordered by the council; and prohibiting the award o£ any contract except to the lowest bidder, etc. (Page 159.)</p>

<p>1. Evidence — Judicial Notice — Laws op Other States. Tbe 'courts, of tbe forum cannot take judicial notice of tbe laws of a sister state. (Page 166.)</p> <p>2. Evidence — Presumption—Foreign Laws. In tbe absence of proof it will be presumed that tbe law of a foreign state is tbe same as that of tbe forum, this presumption being applicable, not only to tbe common law, but to tbe statutory law.1 (Page 166.)</p> <p>3. Evidence — Presumptions—Foreign Laws. In an action for tbe wrongful death of a servant of a railroad company who was killed in a foreign state, it will, in tbe absence of evidence of the laws of that state, be presumed that laws similar to Qomp. Laws 1907, secs. 1343, 2912, giving a right of action for wrongful death, and defining fellow servants, were in force at tbe place of tbe accident, and that under such law those employees in charge of a railroad train were not fellow servants of track laborers.2 (Page 168.)</p> <p>4. Master and Servant — Track Laborers — Injuries by Train— Duty of Care. Employees of a railroad company in charge of a train, who have knowledge of tbe presence of track laborers, must use care to prevent injuring them, and such laborers cannot betreated as trespassers for whom no lookout need be kept. (Page 168.)</p> <p>5. Master and Servant — Laborers on Track — Doty oe Care. Laborers on the tracks of a railroad company are bound to exercise care for their own safety, and to do all that a prudent person under similar circumstances would do to avoid injury from trains. (Page 168.).</p> <p>6. Master and Servant — Injuries to Servant — Actions. In an action for the wrongful death of a servant of a railroad company run down by a train, evidence of the negligence of the servants in charge of the train and of the deceased’s freedom from contributory negligence held sufficient to go to the jury. (Page 168.)</p> <p>7. Master and Servant — Injuries to Servant — Fellow Servants— Assumption oe Risk. A railroad employee who works upon the tracks and is carried to and from work on a hand car or tricycle does not assume the risk of injury from the negligence of servants in charge of a train, for such servants are not his fellow servants. (Page 169.) •</p> <p>8. Commerce — Interstate Commerce — Who are “Engaged in Interstate Commerce.” A, servant of a railroad company, engaged in both interstate and intrastate commerce, employed in installing a new block system along the tracks which was designed to protect all trains, is “Engaged in interstate commerce” within the federal Employers’ Liability Act; the block system being for the benefit of interstate trains. (Page 170.)</p> <p>9. Master and Servant — Continuance oe Relation. Where a servant of a railroad company engaged in installing an automatic block system was being carried from his work on a tricycle which ran on the tracks, the relation of master and servant existed at that time as to the master’s liability for the negligence of other servants in charge of a train, who ran down the servant on the tricycle. (Page 181.)</p> <p>ON REHEARING.</p> <p>10.Master and Servant — Interstate Commerce — Federal Employers’ Liability Act. The purpose of the federal Employers’ Liability Act (Act April 22, 1908, ch. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]) is not to abridge, but to enlarge, the liability of interstate carriers, and a servant engaged in interstate commerce who is injured may recover under the common law, where the facts and circumstances would entitle him to maintain an action thereunder regardless of the statute. (Page. 185.)</p> <p>11. Evidence — Presumptions—Rebuttal of Presumptions. In. an action for tlie wrongful death, of a servant killed in a foreign state, the master, if desiring to rehut the presumption that the laws of the foreign state were the same as those of the forum, must introduce evidence of the law of the situs. (Page 186.)</p> <p>12. Appeal and Error — Change of Theory on Appeal. In an action for the wrongful death of a servant killed in a foreign state, the original complaint alleged facts and circumstances which entitled plaintiff to recover under the federal Employers’ Liability Act (Act April 22, 1908, ch. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]) if the deceased was engaged in interstate commerce, and further alleged the existence of statutes of the state of the situs of the accident permitting a recovery for wrongful death on motion of plaintiff. The allegations concerning the law of the situs were stricken, and the defendant filed a new answer to the amended complaint, which did not plead the foreign statute. Upon trial a directed verdict was rendered for defendant based, not only upon the ground that deceased was not engaged in interstate commerce, but also on the ground that he was guilty of contributory negligence and had assumed the risk. Held, that as both parties generally introduced evidence of negligence and contributory negligence, it could not be claimed that plaintiff based her entire right to recover upon the federal Employers’ Liability Act, and so could not on appeal contend that she was at least entitled to recover under the common law. (Page 186.)</p> <p>Frick, J. dissenting in part.</p>

<p>1. Homicide — Appeal—Harmless Error — Instructions—Degree of Offense. The court fully explained to the jury the different degrees of homicide, and, after fully charging on first degree murder, instructed that the offense of second degree murder, voluntary manslaughter, and involuntary manslaughter were necessarily included in the offense of first degree murder charged, and that accused might he convicted of any oflEense so-included, and that second degree murder was lower in degree than first degree murder, and voluntary manslaughter lower than second degree murder, and involuntary manslaughter lower in degree than voluntary manslaughter, and, if there was a reasonable doubt as to which of two or more degrees of offense accused was guilty of, the jury could only convict him of the lowest of such degrees. The court further instructed that every person guilty of first degree murder should suffer death, or, upon the recommendation of the jury, may be imprisoned at hard labor for life, in the court’s discretion. The verdict was for murder in the first degree without any recommendation. Held, in view of the fact that the jury made no recommendation for life imprisonment, accused could not have been prejudiced by the court’s failure to instruct as to the punishment appropriate to each degree of homicide. (Page 191.)</p> <p>2. Criminal Law — Credibility—Testimony False in Part. The court instructed that if the jury believed that any witness had willfully testified falsely to any material facts, it could disregard the whole of the testimony of such witness, except as he may have been corroborated by credible witnesses or evidence, and further instructed that the jury were the exclusive judges of the facts and of the weight of the evidence and, in weighing the evidence, could consider the bias of any witness and determine from the facts what weight should be given to the testimony of any witness, and that it was not bound to believe all the witnesses may have testified to, but could believe one witness as against many, or vice versa, and should acquit if, after considering all of the evidence, it could reasonably explain the facts given in evidence on any reasonable ground other than guilt. Held, that the first instruction could not have been prejudicial to accused.1 (Page 193.)</p>

<p>Appeal from District Court, Fourth District; Mon. A. B. Morgan, Judge.</p> <p>Action by Utah Banking Company against F. W. Newman.</p> <p>Judgment for defendant. Plaintiff appeals.</p>

Original application for mandamus by Fon Chip-man against the District Court of the Fourth Judicial District of the State of Utah, Hon. A. B. Morgan Judge, to compel the reinstatement of a dismissed appeal from a conviction before a justice of the peace.

<p>Appeal from District Court, Third District; Hon. T. D. Lewis, Judge.</p> <p>Action by Mary W. Gray and another against Salt Lake City.</p> <p>Judgment for plaintiffs. Defendant appeals.</p>

<p>Mandamus by the State against A. B. Morgan, District Judge.</p>

<p>Appeal from District Court, Third District; Hon. F. G. Loofbourow, Judge. - •</p> <p>Harley Mewhinuey, convicted of murder, moved in arrest of judgment, which was denied. He appeals.</p>

Geo. G. Armstrong, Judge. Proceeding for distribution of the estate of one Ferguson, deceased. From the decree of final distribution and partition, Alice E. Moyle, one of the heirs, appeals.

<p>Appeal from District Court, Third District; Hon. George G. Armstrong, Judge.</p> <p>Action, by Mary Holm v. Jacob Holm for divorce.</p> <p>Decree for plaintiff. Defendant appeals.</p>

<p>1. Appeal and Error — Presentation and Reservation in Lower Court op Grounds op Review — Necessity op Rulins and Exceptions. In a prosecution for larceny, where the defendant merely demanded that the state produce a witness who was without the jurisdiction of the court, without asking for a continuance to produce him, or take his deposition, and without invoking a ruling of the court in any way, there was nothing to review on appeal. (Page 249.)</p> <p>.2. Larceny — Evidence—Relevancy. In a prosecution for the larceny of a cow, the court properly permitted the state to show by a butcher that shortly after the date of the larceny he purchased from defendant a slaughtered cow, since evidence, to be relevant, need not be sufficient in itself to establish a disputed point; but it is admissible if it by itself, or in connection with other evidence, renders probable or improbable a disputed point or fact in issue. (Page 251.)</p> <p>3. Appeal and Error — Presentation and Reservation in Lower Court op Grounds op Review — Necessity of Ruling and Exception. In a prosecution for larceny of a cow, all the witnesses except the one testifying were excluded. The owner of the cow when first testifying stated that there was but one brand on the cow. Another witness for the state testified there were two brands. Counsel for the state called the owner’s attention to this, and he was recalled and corrected his former statement. Counsel for defendant argued that it was improper for counsel for the state to tell the owner what the other witness had testified because in violation of the rule excluding witnesses. The court made no ruling, but merely ordered the trial to proceed, nor did defendant invoke a ruling of any kind. Held, that there was nothing for review by the appellate court. (Page 251.)</p>

<p>Boundaries — Establishment — Recognition and Acquiescence. Where adjoining landowners have occupied their respective premises up to a fence on a certain line, which they and their predecessors in interest had recognized and acquiesced in as the boundary line for many years, neither they nor their grantees may deny that such boundary line is the true division line.1</p>

<p>Appeal from District Court, Third District; Hon. F. C. Loofbourow, Judge.</p> <p>J. C. Reese was convicted of larceny. He appeals.</p>

M. L. 'Ritchie, Judge. Action by Eliza D. Stoll against the Commercial National Bank. Judgment for part of plaintiff’s claim. Plaintiff appeals. APPELLANT’S POINTS. All checks and disbursements must be made in manner and form as prescribed by the depositor. (Zane on Banks and Banking, p. 255, note 5.) If money is deposited with a bank by an agent to the credit of his principal the bank has no right to assume that the agent is authorized to do more than to make the deposit.

M. L. Ritchie, Judge. Action by Joseph A. Obrecht against the Neilson Land & Water Company et al. Judgment sustaining a demurrer to the complaint.. Plaintiff appeals. APPELLANTS POINTS. Where one contracts to do acts which can be performed, nothing but the act of God or a public enemy, or the interdiction of law as a direct and sole cause of the failure, will excuse the nonperformance.

George G. Armstrong, Judge. Action bj Joseph Burdette against the Universal Cleanser & Manufacturing Company et al. Judgment for plaintiff against the defendant, John Peterson rendered after a dismissal of the action as against the other defendants. Defendant, John Peterson, appeals.

<p>1. Subscriptions — Construction—Effect of Instrument. An instrument provided that the subscribers agreed to build a bridge across a river and agreed to pay “from $100 to $500 each,” as might be required to complete the bridge, that they had each deposited $100 in plaintiff bant to be checked out by J., sec- - retary and treasurer, the balance to be forthcoming as called for by him to complete the bridge, which was to be completed within thirty days, or before then, if possible. Held, that the contract was in the nature of a subscription by which each subscriber bound himself to contribute not to exceed $500, for the construction of the bridge as called for, each subscriber being severally liable on the contract to the amount of his subscription, and that it was no defense to such liability that the treasurer borrowed the sum necessary to complete the bridge from plaintiff hank, instead of immediately calling on the subscribers therefor. (Page 292.)</p> <p>2. SUBSCRIPTIONS — Construction of Bbidge — Time. Where a subscription contract for the construction of a bridge provided that it should he completed within thirty days, or before then, if possible, but the subscribers made no protest nor objection to the progress of the work, nor to the delay beyond the time specified, time was not of the essence of the contract, nor a condition precedent, and hence the delay was no defense to the subscribers’ liability. (Page 293.)</p> <p>3. Subscriptions — Equitable Assignment — Subrogation. Where after defendants had subscribed to the construction of a bridge for their joint benefit, their representative, empowered to construct the bridge, borrowed money necessary for that purpose from plaintiff bank, and applied the same to the construction of the bridge, instead of immediately calling in the subscriptions, his act constituted an equitable assignment of the obligations assumed by the subscribers to the bank, and it was entitled to sue on the subscription in its own name as the real party in interest.1 (Page 294.)</p> <p>4. Subscriptions — Construction—Scope of Liability. A subscription provided that the subscribers agreed to pay from $100 to $500 each, as might be required to complete a specified bridge, that they had deposited $100 each in a certain bank to be used by J., the balance to be forthcoming as called for by him to complete the bridge, etc. After several had signed the instru- ■ ment it was presented to L., who drew a line under the previous signatures, signed his name and that of his brother, and wrote after each twenty-five dollars. His brother repudiated such act and refused to be bound. Held that L. was at most liable for fifty dollars. (Page 294.)</p>

<p>1. CORPORATIONS-STOCKHOLDERS-ASSESSMENTS-PAYMENT. Where defendant deposited in a bank to a corporation’s credit $500 of Ms own money, all of which he used in paying corporate debts, he was entitled to credit for such sum on an assessment subsequently levied on his stock. (Page 296.)</p> <p>2. Corporations — Creditors — Stockholders — Right to Stje. A creditor of a -corporation has no cause of action on which he may sue a stockholder directly for a corporate debt arising out of an assessment on the stock, unless the stockholder has consented to be so sued, but may only enforce such liability by process of garnishment. (Page 298.)</p> <p>3. CORPORATIONS - STOCKHOLDERS - ASSESSMENTS -ENFORCEMENT. Under Comp. Laws 1907, sec. 315, subd. 11, providing that the private property of a corporate stockholder if so provided in the articles is not liable for corporate debts, a stockholder may not be sued by the corporation for an unpaid assessment levied on full-paid stock, and his property taken to pay the same, hut the assessment may only he enforced hy a forfeiture of his stock or so much thereof as may he necessary to pay the assessment and a public sale thereof. (Page 298.)</p>

T. JD. Lewis, Judge. Action by Joseph W. Mellen against Vondor-Horst Brothers and others. Judgment for dismissal rendered after the sustaining of a demurrer to the complaint, interposed by defendant, The Fidelity & Deposit Company of Maryland. Plaintiff appeals.

<p>1. Fines — Judgment. Comp. Laws 1907, sec. 4914, provides that a judgment that defendant he fined may also direct that he he imprisoned until the fine is satisfied, specifying the extent of the imprisonment. Section 4925 provides that, if judgment be for a fine and costs, or either alone, execution may be issued thereon, as on a judgment in a civil action. Section 4926 provides that, if judgment is for imprisonment or a fine and imprisonment until such fine is paid, defendant must be committed until compliance with the judgment. Reid that, if there is a judgment of imprisonment and also a fine, the fine cannot be enforced by imprisonment, so that, where the judgment in a misdemeanor case imposed imprisonment and also a fine, it could not direct further imprisonment to satisfy the fine, if not paid.1 (Page 320.)</p> <p>2. Cbiminai Law — Judgment—Constbuction. The judgment in a misdemeanor prosecution directed that accused be imprisoned for thirty days, and pay a fine of a certain sum, or, in lieu of said fine, be imprisoned one day for each dollar of said fine, not to exceed six months, and remanded accused for execution of sentence, but suspended the thirty days’ imprisonment “during good behavior; that is, so long as the promise made by the defendant is lived up to.” Reid, that the judgment directed an imprisonment for thirty days, and indefinitely suspended execution thereof during good behavior, and, in addition to such imprisonment, imposed a fine, and also imposed additional imprisonment until the fine was satisfied. (Page 321.)</p> <p>3. Ckiminal Law — Sentence—Stay of Execution' — During Good Behavior. While the court, for many purposes, as on a pending motion for new trial, review of the judgment, etc., has inherent power to suspend execution, it cannot indefinitely suspend execution during good behavior. (Page 322.)</p> <p>4. Criminal Law — Judgment—Invalidity in Part. The invalidity in the part of a judgment in a misdemeanor case, which, after imposing a fine and imprisoment, directed a further imprisonment until the fine was satisfied, was severable from the valid part of the judgment imposing imprisonment and a fine, so as to leave the valid part stand.2 (Page 322.)</p> <p>5. Criminal Law — Sentence—Invalid in Part. A sentence which is in part in excess of the power of the court to impose is not wholly void, if the erroneous part is severable. (Page 322.)</p>

T. D. Lewis, Judge. Action by Utah Commercial & Savings Bank against Jesse W. Fox and others. Judgment for plaintiff. Defendants appeal. Respondent's points.

N. J. Harris, Judge. Action by Henry McCullough against the Oregon Short Line Railroad Company. Judgment for plaintiff. Defendant appeals. APPELLANT'S POINTS. There has been a conflict, as to whether the declarations of ■a bystander are admissible as part of' the res gestae. Cbun-■sel for the defendant deem it a settled -proposition in this state that such declarations are admissible, whether declarant be a mere bystander or not. (Gromeenes v. S. P. L. A. & 8.

<p>Appeal from District Court, Third District; Hon. F. G. Loofbourow, Judge.</p> <p>Action by tbe Schwab Safe & Lock Company against 0. G. Snow.</p> <p>From a judgment granting a non-suit on defendant’s counterclaim, he appeals.</p>

<p>1. Buns and Notes — Drafts—Parties. A draft signed G„ though having the name E. both in its upper and lower left-hand corner, is on its face the draft of G., and not of E. (Page 351.)</p> <p>2. Buns and Notes — Drafts—Cashing by Bank — Recovery of Drawee. A bank which cashes for the payee a draft, on Its face that of G. on E., though knowing G. was a buyer for E., may recover thereon of G. as drawer; it not knowing or having notice that it was given for goods sold by the payee to E., or that it was not drawn by G. for his own benefit. (Page 351.)</p> <p>3. Witnesses — Witness Cailed and Examined by Cohbt. A party may not have testimony stricken merely because neither party called the witness, but the court of its own motion called him and had him testify. (Page 353.)</p>

<p>1. Indians — Intoxicating Liquors — Criminal Peosecutions — Applicability or Statutes. Laws 1911, chap. 106, regulating traffic in intoxicating liquors, was intended to supersede all laws upon the subject, except those clearly not repugnant thereto, and section 30, making the sale, etc., of liquor to an Indian a misdemeanor, is so repugnant to Comp. Laws 1907, sec. 4298, making such sale, etc., to an Indian “or person living . . . with an Indian woman” a felony as to repeal it, at least as to an offense not within the words quoted.1 (Page 355.)</p> <p>2. Indians — Intoxicating Liquobs — Criminal Peosecutions — Applicability op Statutes. Comp. Laws 1907, sec. 4488, providing that an act or omission punishable in different ways by different proceedings may be punishable under either provision, but not under more than one, cannot be considered as intended to authorize the enforcement of both Comp. Laws 1907, sec. 4298, making the sale of liquors to an Indian a felony, and also Laws 1911, chap. 106, sec. 30, making it a misdemeanor, as that would enable the county attorney to discriminate between offenders by charging the violation of either statute according to his whim. (Page 356.)</p> <p>3. Constitutional Law- — 'Vapidity of Statute — Reason fob Enactment. The reason for the enactment of a statute is wholly immaterial, except as it may throw light on the intention of the legislature. (Page 356.)</p> <p>4. Statutes — Repeal—Implied Repeal by Repugnant Act. While repeals by implication are not favored, where later provisions are clearly repugnant to existing provisions, the later ones control, and the earlier provisions must be deemed repealed by implication to the extent of the repugnancy.2 (Page 356.)</p> <p>5. Criminal Law — Appeal—Disposition oe Cause — Setting Aside Sentence and Remanding fob Resentence. Under Comp. Laws 1907, sec. 4977, providing that “the court may reverse, affirm or modify the judgment or order appealed from, and may set aside, affirm, or modify any or all proceedings, subsequent to or dependent upon such judgment or order, ...” where a defendant was convicted and sentenced as for a felony, whereas, the offense was only a misdemeanor, which was the only objection raised, the court could set aside the sentence; but, not having power to pronounce sentence, it was necessary to remand for resentence. (Page 359.)</p>

<p>1. AdulteRY — Evidence—Sufficiency—Marriage. On a trial for adultery, evidence held sufficient to support a jury finding that accused was married.1 (Page 364.)</p> <p>2; Criminal Law — Sufficiency of Evidence — Corroboration of Accomplices. On a trial for adultery, evidence that accused, a married man, was alone with a nineteen-year-old girl, a ward of the state industrial school, in a hotel room in the city where he resided, about two thirty at night, and quite early the next morning, in connection with proof of false and contradictory-statements as to his whereabouts that night, sufficiently corroborated her testimony that they occupied the same bed and had sexual intercourse, within Comp. Laws 1907, sec. 4862, forbidding convictions on the testimony of an accomplice unless corroborated by other evidence tending to connect accused with the commission of the crime. (Page 865.)</p>

<p>Appeal from District Court, Third District; Hon. T. D. Lewis, Judge.</p> <p>Action by lone Atwood against ITtab Light & Railway Company.</p> <p>Judgment for Plaintiff. Defendant appeals.</p>

<p>Mandamus — Defenses—Apportionment of Tax — State Board of; Equalization — Hearing—Time. Comp. Laws 1907, sec. 2566, as-amended by Laws, 1909, cbap. 63, requires every mining corporation to file a statement of tbe gross yield during tbe year witb tbe State Board of Equalization on or before tbe second Monday, of February. Section 2560, as amended by Laws 1909,. cbap. 63, requires tbe board to assess tbe actual value of such proceeds, authorizing tbe owner at any time between tbe third Monday in May and tbe third Monday in June to apply to have tbe assessment corrected, after which tbe board is required to apportion tbe assessment to tbe several counties in which tbe mining claims are located. Section 2561, as amended by Laws 1909, cbap. 63, provides that tbe board on or before tbe fourth Monday in June shall transmit to tbe county auditor of each county to which an apportionment is made a statement, of tbe property assessed and tbe assessed value of tbe same as fixed and apportioned to tbe county, which is to be apportioned by tbe county board, etc. Held that, where a mining company incorrectly reported to tbe State Board of Equalization tbe gross yield of certain mines as located in U. County when they were largely located in plaintiff county, and under such report tbe assessed valuation was apportioned to U. County, plaintiff, after such apportionment and tbe rate of taxation bad been fixed in accordance therewith, and all levies bad been completed, could not maintain mandamus to compel tbe State Board of Equalization to grant a bearing and reapportion the assessed value of such mining property to plaintiff county.</p>

<p>1. Evidence — Presumption—Official Action.' Where a complaint for the appointment of a receiver for a building and loan association did not allege that .the officers of the association or the Secretary of State had failed to perform the duties imposed upon them by Comp. Laws, 1907, secs. 392-402, regulating such associations, it must be presumed' that the officers have performed their statutory duties. (Page 402.)</p> <p>2. Corporations — Dissolution—Power of Courts. The power to wind up the affairs of a corporation and to dissolve it is not one which inheres in the courts, but exists only when conferred by statute. (Page 402.)</p> <p>3. Evidence — Judicial Notice — Matters of Common Knowledge— Building and Loan Associations. The court can take judicial notice of the general purpose and method of doing business of building and loan associations. (Page 404.)</p> <p>4. Building and Loan Associations — Regulations—Police Power. In view of the purpose of building and loan associations to enable a large number of persons who are without ready means to build homes which are paid for in small installments, and the benefit to the community derived from such associations, the state may, under its police power, exercise rights of supervision and inspection over such associations greater than over ordinary business associations. (Page 404.)</p> <p>5. Building and Loan Associations — Mortgages—Payment—Dissolution of Association. Whenever a building and loan association is declared insolvent, its right to collect the installments payable by its members ceases, and the mortgages of borrowing members at once become due and payable, and may be foreclosed. (Page 405.)</p> <p>6. Building and Loan Associations — Dissolution — Statutoby Remedies. The remedy given by Comp. Laws 1907, sec. 400, which provides that when a domestic building and loan association is, in the opinion of the Secretary of State, conducting its affairs illegally, or is unsafe, he shall notify the directors, and if the objections be not immediately remedied, shall advise the Attorney-General, who shall take the necessary steps to wind up its affairs, is exclusive, and the courts cannot appoint a receiver to wind up the affairs of the association at the request of one or more of the shareholders. (Page 406.)</p> <p>7. Constitutional Law — Open Coubts — Dissolution oe Building and Loan Association. Const, art. 1, sec. 11, requiring the courts to be open to all alike, does not prevent the state from reserving to itself the sole right to bring actions for the dissolution of building and loan associations, since that section is a limitation, not a grant of power, prohibiting any restrictions upon the common-law right of access to the court, but not enlarging that right. (Page 407.)</p> <p>8. Building and Loan Associations — Dissolution—Right of Action. The right to dissolve a corporation and wind up its affairs for any cause against its consent belongs to the sovereign state alone, and, in the absence of an express statute to that effect, the courts have no power to dissolve such corporation at the instance of an individual suitor. (Page 408.)</p> <p>9. Building and Loan Associations — Actions—Dissolution. An action by a shareholder to secure the appointment of a receiver to wind up the business of a building and loan association, while not technically an action to dissolve the association, has practically that effect, and cannot be entertained by the courts. (Page 408.)</p> <p>10.Building and Loan Associations — Dissolution — Failuee of State Oeeioeb to Act. The danger that a shareholder in a building and loan association may suffer irreparable injury through the failure of the Attorney-General to wind up the affairs of the association, as required by Comp. Laws 1907, sec. 400, does not authorize an action for that purpose by the shareholder, since it is presumed that every officer will do his duty, and if the duty is clear the Attorney-General may be required by the courts to perform it. (Page 409.)</p> <p>11. Building and Loan Associations — Actions by Shareholders. An individual shareholder in a building and loan association may maintain an action to prevent its officers from doing some forbidden act, or from continuing a course of mismanagement of its affairs, or to require the association to obey the statute, or for the purpose of obtaining a judgment against the association. (Page 410.)</p> <p>12. Building and Loan Associations — Actions foe Dissolution— Statutoey Provisions — Conditions Prbcedent. Before an action for the dissolution of a building and loan association is brought under Comp. Laws 1907, sec. 400, the association should be given an opportunity to correct any abuses in its management, unless its affairs are such that, in the opinion of the Secretary of State or Attorney-General, they cannot be corrected. (Page 410.)</p> <p>13. Building and Loan Associations — Actions for Dissolution— Statutory Provisions — Duty of Attorney General. Under Comp. Laws 1907, sec. 400, providing that if the Secretary of State is of the opinion that a building and loan association is violating the law or is unsafe, he shall advise the Attorney- - General, who must bring an action to dissolve the association, if the Secretary of State refuses to perform his duty, it nevertheless is the duty of the Attorney-General to bring the action, if it is made to appear to him by any shareholder that the association is not complying with the law. (Page 411.)</p>

<p>1. Justices op the Peace — Commencement op Action. Though, nothing was done in an action in justice’s court from April 25, 1907, when defendant’s default was entered, until April 22, 1913, when judgment was entered, the action was pending from the time the complaint was filed upon February 21, 1907.1 (Page 414.)</p> <p>2. Statutes — Retroactive Operation — Statutes Affecting Procedure. While statutes affecting procedure or remedies prima facie apply to all acts or steps still to he taken in a pending action when the statute is enacted, they do not apply to acts already done therein, at least, unless the statute so provides; so that Comp. Laws 1907, sec. 3685x, making every judgment void made on a complaint containing an untrue allegation ol the jurisdictional facts required by the section, would not avoid a judgment on a complaint already tiled when the statute was enacted. (Page 417.)</p> <p>3. Justices of the Peace — Waiver of Defects — Failure to Verify Complaint. The failure to verify a complaint, in a justice’s action, as required by Comp. Laws 1907, sec. 3685, was not a jurisdictional defect, in absence of statute making it such, so that such defect was waived by failure to interpose a timely objection on that ground.2 (Page 419.)</p> <p>4. Justices of the Peace — Appeal—Decision. The judge of the district court stated, on appeal from a justice’s judgment in disposing of the ease, that the only two pleas that need be discussed were the question of payment and the question of jurisdiction, and then proceeded to show that the plea of payment must fail for want of evidence to sustain it, and then continued: “There is only one question. I am disposed to give the plaintiff just as clean-cut a record as it can get on that, if it wants to test that question.” And then the judge referred to the statute making every judgment void which is given on a complaint not legally verified, or containing untrue allegations of a jurisdictional fact, and stated that the complaint in question falsely alleged that the indebtedness arose within the justice’s jurisdiction, and was not verified, and that the statute was enacted to meet just such a case, and ended: “Therefore it follows that the court must, in accordance with this statute, hold that the judgment is void. You may draw findings in accordance with the views of the court as expressed.” Held, that the district judge did not dispose of the case upon its merits, but solely on the ground of want of jurisdiction because of noncompliance with the statute. (Page 419.)</p> <p>5. Mandamus — Appeal from Justice Court — Requiring District Court to Act. While the decision of the district court upon the merits, on appeal from a justice’s judgment for $33.50, cannot be reviewed by the Supreme Court, however erroneous, if the district court, without legal reason, refuses to dispose of the appeal to it upon the merits, the Supreme Court will require that court to do so, and enter judgment.3 (Page 420.)</p>

<p>Appeal from District Court, Second District; Hon. N. J. Harris, Judge.</p> <p>Action by Josephine Flint Escamilla against James Pingree, administrator of the estate of Richard Flint, and others.</p> <p>Judgment for plaintiff. Defendant named appeals.</p>

<p>Appeal from District Court, Third District; Hon. F. G. Loofbourow, Judge.</p> <p>Action by William Pack against Ira D. Wines and wife.</p> <p>Judgment for defendants. Plaintiff appeals.</p>

<p>1. Municipal Corporations — Constitutional Law — Commission Form of Government — Validity. Laws 1911, abolishing the offices of mayor and city council in cities of the first and second class, and creating a hoard of commissioners to govern and control such cities, is not void because the commission form of municipal government infringes upon the constitutional form of government. (Page 444.)</p> <p>2. Innkeepers — Power op Municipality to Regulate and License. Authority to regulate and license rooming houses and hotels is expressly conferred upon the city council or board of commissioners by Laws 1911, chap. 120, sections 206x4, 206x38. (Page 444.)</p> <p>.3. Evidence — Presumptions—Gppicial Proceedings — Licenses—Action to Compel Issuance. An action to compel a city board of commissioners to issue a rooming house license, under an ordinance permitting them to refuse to do so for good cause, was properly dismissed, where the plaintiffs failed to show that the board refused the license for insufficient reasons; the presumption being that there was good cause therefor. (Page 446.)</p>

<p>1. Pleading — Answer—Admissions—Construction, Operation, and Effect. The admission in the answer, in an action for trespass by defendant’s sheep and cattle, that defendant was the owner “of certain animals, to wit, sheep and cattle,” was not an admission that he was the owner of the alleged trespassing animals, where, in connection with the admission, all the allegations of the complaint were denied. (Page 449.)</p> <p>2. Appeal and Ebbob — Changing Ground of Objection. Where a case was tried as though at issue upon a material point, the plaintiff could not, for the first time on appeal, assume that the allegations regarding that point were not denied by the answer. (Page 449.)</p> <p>3. Evidence — Hearsay—Statements by Persons Not Pasties ob Witnesses- — Oral Statements. In an action for trespass by sheep and cattle, statements of a person herding them that they belonged to defendant were inadmissible, being hearsay and not res gestae within that exception to the hearsay rule. (Page 450.)</p> <p>4. Evidence — Declarations—Declarations of Person in Possession as to Title. The rule that declarations of a person in possession of property are admissible to show the nature of nis possession only applies where the nature of his possession is material, and the declarations of a herder of trespassing sheep and cattle that they belonged to defendant were inadmissible to show defendant’s ownership. (Page 450.)</p> <p>5. Evidence — Declarations—Declaration's oe Person in Possession as to Title. Declarations of tlie lierder of trespassing sheep and cattle that they belonged to defendant, for whom he was working, were not admissible as showing the nature of his possession, as they did not show possession in him but in defendant. (Page 450.)</p> <p>6. Principal and Agent — Creation and Existence oe Relation— Evidence oe Agency — Declarations oe Agent. The declarations of a herder of trespassing sheep and cattle that he was working for defendant, who owned them, were inadmissible, because agency cannot be proved in that way. (Page 452.)</p> <p>7. Principal and Agent — Creation and Existence oe Relation— Evidence oe Agency — Declarations oe Agent — Actions—Evidence. Declarations of a herder of trespassing sheep and cattle that they belonged to defendant, and that he was herding them for him, were inadmissible; it not being shown to be any part of his agency to so talk and gossip about his principal’s affairs. (Page 452.)</p>

<p>1. Evidence — Parol Evidence — Agreement eos Lease — Construction — Provisions as to Furnishing. Under a contract for the construction and lease of a theater building, providing that defendant should completely equip it in accordance with the architect’s specifications to he approved by plaintiff, where neither the contract nor the architect specified what should constitute the equipment, evidence of qualified witnesses that an asbestos curtain, a ticket office, a brass rail for such office, a gridiron, and rigging loft, chairs-, and decorations for ceiling and walls were usual and necessary parts of the equipment was admissible. (Page 460.)</p> <p>2. Contracts — Buildings — Performance — Act of Architect— Agreement for Lease — Building Plans. Under a contract whereby defendant was to build and equip and lease a theater-building to plaintiff, providing that it should be equipped in accordance with specifications which, in fact, were prepared as the work progressed, the architect’s failure to prepare complete specifications of equipment such as fixtures and decorations, which were the last things done in completing the building, did not relieve defendant from his obligation to furnish such items of equipment as were shown to be usual and necessary. (Page 460.)</p> <p>STRAUP J., dissenting.</p>

<p>’ Bankruptcy — Liens on Exempt Property — Effect. Under Bankruptcy Act July, 1898, chap. 541, 30 Stat. 564, section 67f (U. S. Comp. St. 1901, p. 3449), declaring all liens obtained through legal proceedings against an insolvent within four months of bankruptcy proceedings void, in case he is adjudged a bankrupt, and that the property affected by the lien shall be discharged therefrom, a district court in this state was without power to condemn the wages of an insolvent in the hands of a garnishee, over his claim of exemption, within four months preceding the filing of his petition in bankruptcy.</p>

<p>1. Contempt — Civil Contempt — Knowledge of Decree. A party to a decree, who for a long time asserted rights thereunder, cannot escape punishment for contempt for violation, on the ground that it is not alleged in the application that he was served with a copy or notice of the decree. (Page 479.)</p> <p>2. Contempt — Civil Contempt — Proceedings to Punish. In a proceeding to punish for contempt for violation of a decree fixing priorities of water rights, evidence held sufficient to sustain a finding that respondent willfully, and in disregard of the rights of other parties, took water in excess of the amount to which he was entitled. (Page 480.)</p> <p>3. Contempt — Civil Contempt — Punishment. Under Comp. Laws 1907, section 3368, authorizing the imposition of a judgment for damages against a contemner and in favor of the party aggrieved, the damages sustained by the parties aggrieved must he ascertained in the usual manner, and hence an award of a lump sum to a large number of complainants cannot be sustained, as apportionment would be impossible.1 (Page 481.)</p> <p>4. Contempt — Judgment—Joint Judgment for Damages. Where a decree settled conflicting water rights of numerous parties, the rights of the parties are not joint, and hence, where a large number of them joined in a proceeding to punish one of the parties for contempt for violation of the decree, a joint judgment for damages suffered should not be rendered; the wrong suffered by the various parties being distinct and several. (Page 482.)</p> <p>5. Contempt — Appeal—Presentation op Grounds op Review in Court Below — Necessity. Objections as to misjoinder must be timely or they are deemed waived. A defendant proceeded against for contempt for violation of a decree, while he cannot object as for a misjoinder where all the parties to a decree join in the application to have the defendant punished for' a violation thereof, yet he may on appeal object to a joint judgment for damages in favor of all the parties to the application where their interests are distinct and the judgment is for a lump sum. (Page 483.)</p>

<p>Indians — Intoxicating Liquobs — Statutes. Comp. Laws 1907, section. 4298, making the sale of intoxicating liquors to an Indian a felony, was repealed hy Laws 1911, chap. 106, regulating the traffic in intoxicating liquors and making its sale, etc., to an Indian a misdemeanor, so far as to make a sale to a full-blooded Indian a misdemeanor instead of a felony.1</p>

<p>Appeal from District Court, Third District; Hon. M. L. Ritchie, Judge.</p> <p>Caleb A. Inlow was convicted of murder in the second degree. He appeals.</p>

<p>1. Appeal and Error — Review—Findings. When supported by substantial evidence, a verdict will not be disturbed on appeal. (Page 513.)</p> <p>2. Carriers — Carriage of Passengers — Actions—Evidence—Suf-eiciency. Evidence, in an action by a passenger injured in attempting to alight from a slowly moving street car in accordance with the conductor’s suggestion, held sufficient to support, a finding that the carrier was negligent. (Page 513.)</p> <p>3. Carriers — Carriage oe Passengers — Actions — Contributory Negligence. Where a passenger on a street car, which he thought would follow one route, upon discovering that it had turned off, requested a transfer from the conductor so that he could catch a car following, and the conductor said that he could get off as the car was moving slowly, the passenger’s attempt to alight in accordance with the suggestion of the conductor is not contributory negligence as a matter of law.1 (Page 517.)</p> <p>4. Carriers — Carriage op Passengers — Actions—Evidence—Sufficiency. In an action by a passenger hurt in attempting to alight from a moving car, evidence held sufficient to sustain a finding that the accident was caused by the carrier’s negligence, and not the passenger’s attempt to alight from the car while it was in motion. (Page 519.)</p> <p>MoOARTY, C. J., dissenting.</p>

Geo. G. Armstrong, Judge. Action by Tooele Improvement Company against Frank Hoffman. Judgment for plaintiff. Defendant appeals. ' appellant's points. False representation of a material fact constituting the inducement of a contract on which the purchaser has a right to rely is always a ground for rescission in a court of equity.

Geo~ G. Armstrong, Judge. Habeas corpus by J. !B. Harrison against David Harker and wife to determine tbe custody of an infant child. Judgment for plaintiff. Defendants appeal.