Volume 45 — South Dakota Reports

Hon. Robert B. Tripp, Judge. Action by Fullerton Lumber Company, a corporation, against P. A. Hosford, to recover the price of coal alleged to have been sold' by plaintiff to defendant. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Joseph H. Bottum, Judge. Action by George W. Dynn, Administrator of the Estate of John P. Nicholson, against Martin J. Schirber, to recover value of property belonging to said decedent alleged to have been un-lawfuly converted1 by Defendant. Prom a judgment for Plaintiff, and from an order denying a new trial, Defendant appeals. (i) To point one of the opinion, re value of bonds, Respondent cited: Abbott’s Proof of Pacts, p. 877, Sec. 9; Conrad v. Bunker, 2 S. D. 294.

<p>1. Rehearing — Petition For, Matters TJrgeahle to Trial Court But Improper Re Petition for Rehearing, Court’s Objections Re.</p> <p>There being much in that part of the petition for rehearing herein prepared by attorney B which has no proper pla.ce in such petition, while some matters urged therein 'might have been addressed to trial court on application for change of Venue or postponement of cause, yet all such matters are foreign to the record herein.</p> <p>2. Deed of. Property Under Agreement for Grantor's Support, Question Whether. Defendant Signed Accompanying Agreement, As In Issue Below, Court’s Expression Re Adhered To On Rehearing.</p> <p>This Court’s language, in the former opinion (45 S. D. 3, 184 N. W. 978), concerning the issue of the execution by grantor of the deed in question (alleged to have been executed in consideration of his support for the balance of his life), wherein it was stated: “When N .put his cross to this agreement, if he ever did,” was justified, since the question was in dispute;' trial court having instructed .on that theory; hut since the case was being affirmed • on another ground, that expression was used; this, in view of the fact that the contract in question materially differed from the court’s instructions.</p> <p>3. Conversion — Decedent’s Property Taken Under Agreement For Life Support, Recovery of Value, Defense of Decedent’s Incompetency — Rescission Not Sought, Burden of Proof — Statute — Inference of Signature by Cross From Physical Inability to Sign Name as Unreasonable Inference — Reversal Ordered.</p> <p>This action being one for recovery of value of property alleged .to have been unlawfully converted by defendant (who had agreed, in consideration of its transfer to him, to support the grantor during his lifetime), and not one for rescission of the contract, it was incumbent upon plaintiff, under Sec. 86 Code 1919, providing that a person entirely without understanding has no power to make a contract, but is liable for reasonable' value of things furnished him necessary for his support, etc., — to prove by competent evidence that deceased was at time of execution of the contract, “entirely without understanding;” and, trial court having so instructed, this Court, on application for rehearing, having rei-examined the evidence in the light of the law of the case, hold that there was no evidence “which ought reasonably to satisfy a jury” that deceased was “entirely without understanding.” Therefore, while this Court has inherent power to either modify or withdraw its former opinion, yet, being fully conversant with the record, former decision should be withdrawn and decision below for plaintiff reversed; and, while there is no direct evidence that N did not sign the papers, there is direct evidence of three witnesses that he did; and, the question of N’s physical ability to sign being based upon defendant’s own evidence, and that therefore his mark was used, held, in light of the evidence, such inference is unreasonable.</p>

Hon Louis L. Eeeegee, Judge. In re the ’Estate of Joseph H. Whitman, deceased; Charles J. Whitman having' contested the will after its probate in County Court, he 'being' successful; Alice M. Whitman being proponent thereof. Upon appeal to circuit court' the will was sustained; from the judgment sustaining the will, and from an order denying a new trial, contestant- Charles J. Whitman appeals.

Hon. Levi McGee, Judge. Action 'by Frank P. 'Hesnard, against George E. and Ida Larive, in claim and delivery of mortgaged personalty, as preliminary to foreclosure under chattel and realty mortgages. From a judgment for Defendants, and from an order denying a new trial, Plaintiffs appeal. (1) To point one of the opinion, Appellant cited: Fargo v. Jennings, 8 S. D. 99.

Hon. William N. Skinner, Judge. Action by A. J. Struckman, against Sarah DeGraff Brown, to recover for moneys alleged to have been paid out by plaintiff for defendant’s benefit. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (2) To point two of the opinion, Appellant cited: Miles v. Ins.

<p>On rehearing.</p> <p>(i) To point one of the opinion, Respondents cited: Red-water Land & 'Canal Co. v. Jones, 27 -S. D. 194; Driskell v. Rebbe, 22 S. D. 224; Lone Tree Ditch Company Case, 15 S. D. 519; •Scott v. Toomey,- 8 S. D. 639; St. Paul M. & M. Ry. Co. v. Donahue, 210 U. S. 1.</p> <p>(2) To point two, Appellants cited: Sohodde v. Twin Falls Land & Water Co., 224 U. S. 107, 56 L. Ed. 692.</p>

<p>Appeal from Circuit Court,. Lyman' County. Hon. N. D. BuRCH, Judge.</p> <p>Proceeding in mandamus by the State of South Dakota, on the relation of M’. Schiferl, against F. C. Wederath and others, as Members of the Board of Education of P'resho Independent Consolidated School District No. 31, of Lyman County, South Dakota, and Frank L. Brooks and another, to compel defendants to certify the result of an election held in said district to vote upon the question of abandonment of the district. From a judgment granting the writ, defendants appeal.</p>

<p>1. Appeals — Error—New Trial, Insufficiency of Evidence, Error of law, as Ground's, Motion on Court Minutes — No Specifications of Error, Presumption That Trial Court Disregarded Grounds— Statute.</p> <p>Where motion for new trial on grounds of insufficiency of evidence and errors of law, was -based upon, minutes of court, and limited to grounds contained in specifications found in notice of intention, there being no specifications of particular error of law relied on, this -Court will assume that trial court disregarded those grounds (Sec. 2-55-7 -Code 1919.)</p> <p>2. Appeals — Error—Specification of Error, Its Office as Designating Error and as Basis of Determining Whether Transcript Contained in Settled1 Record — When .and Where Specification ' Should Be Pound.</p> <p>The office of a specification of error, in connection with motion for new trial, is to point out alleged error of which moving party complains and: on which he seeks new trial; it also establishes basis for determination as to what parts of transcript should he contained in settled, record, in case record should be settled. It therefore must precede and never follow hearing of motion for new trial, and will be found either in notice of intention, where motion is based on court’s minutes, or in settled record where motion is based on the latter.</p> <p>3. Appeals — Brief, “Assignment of Error” as “Specification of Error,” “Served and Piled With Transcript of Testimony”— Specifications of Grounds in Notice of Intention, As Guide in Determining -Contents of Settled Record. — Rule.</p> <p>Where appellant’s brief contained the so-called “assignments of error,” accompanied by statement that they were his “specifications of error,” and as such “served and filed with a transcript of the testimony herein,” heid, that the specifications of errors were such as were contained in notice of intention, and it was such of those specifications as bore on the ground on which trial court based its order granting new trial, and not on any specification to be prepared by appellant, that should have been the guide for parties and court in determining contents of settled record; and the specifications presenting grounds on which trial court granted the motion should appear in printed record, hut they are not appellant’s specifications.</p> <p>4. Trial — Stay of Proceedings, Whether Asbeon.ce of Deprives Court of Jurisdiction.</p> <p>The fact that there was no stay of proceedings, or that stay granted had expired, does not deprive trial court of jurisdiction to hear and determine motion for new trial; such stay differs from an order fixing or extending such period of time.</p> <p>5. Same — Amending Notice of Intention Dong After Its Servi|ce, on Ground of Want of Transcript, Motion on Court’s Minutes as Necessity, Effect.</p> <p>Where, some ten months after service of notice of intention to move for new trial, which motion was to he made on settled record and affidavits, moving party applied for leave to amend notice of intention so that it should recite that motion would he made on minutes of court; the ground for such application being want of transcript of evidence which had been delayed, held), that objection to consideration of motion for new trial because stay of proceedings had expired and no extension had been effected and beicause no showing had been made to court why permission should he given to file amended notice, was untenable; the showing therefor having been made by affidavit on return day of motion, which- presented a sufficient ground for excusing the delay — if any — and for order allowing such amendment.</p> <p>6. New Trial — Order Granting, Failure to Specify Grounds, Noncompliance With Court Rule, Presumption That Omission Was Inadvertent — Appellate Jurisdiction Retained, Order on Trial Court to Issue New and Specific Order.</p> <p>WheTe, in granting new trial, the order wholly failed to specify the ground or grounds on which it was granted, thus ignoring Rule 30 governing Trial Courts of Record; and while such failure leaves both litigants and this Court entirely at sea as to views of trial cdurt, and an earnest endeavor by trial courts to comply with said Rule will save litigants much needless expense and promote and expedite justice, yet, held, that, since great" injustice might be done respondents if such order were reversed, it will assume that trial court’s- omission resulted from inadvertence; and this Court will retain jurisdiction, and will issue an order directing trial court to issue, nunc pro tunc as of date of its former order, a new one specifying its grounds; which substituted order will replace in this Court the defective one.</p> <p>7. New Trial — Insufficiency of Evidence as Ground, Non-assignment of Error That Amended Notice of Intention Did Not Specify Particulars, Effect — No Testimony in Record, New Briefs Allowed — Costs.</p> <p>Where the so-called “assignments of error” state that notice of intention did not sufficiently specify particulars, hut failed to allege non-specification in amended notice of intention, held, that upon such record there would he presented the Question of sufficiency of evidence, yet, the printed record containing no evidence, therefore, if order granting new trial was based on insufficiency of evidence, appellant must necessarily have, and he is allowed time, after filing here the new order, in which to serve and file new briefs. Held, further, that respondent shall pay $50 as terms for right to be heard in this Court, failing in which payment his brief will be stricken from files; but if paid and if appellant serves new brief, respondent is given 30 days thereafter to serve and file new brief.</p> <p>MoCoy, J., taking no .part herein.</p>

Hon. Frank B. Smith, Judge. Action by Oscar Pugh, against Carl P. Dexheimer, to recover price of plaintiff’s mare sold to defendant at an auction sale. From1 a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Hon. William Williamson, Jr., Judge. Action by Presho State ]3ank, a corporation, against the Northwestern Milling Company, a corporation. From a judgment for Plaintiff, and from an order denying a new trial, Defendant appeals.

Hon. John T. Mbdjn, Judge. Action by the Independent Harvester Company, Limited, a corporation, against J. M. Anderson, upon a promissory note embodying a corporate stock sale contract. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. (4) To point four of the opinion, Appellant cited: Seitz v. Brewers, Etc. Machine Co., 141 U. S. 510, 35 L. ed. 837, 12 Sup. Ct.

Hon. Alva E. TayloR, Judge. Action by Otto Altfillisch, against George A. 'Smith and another, upon a promissory note. From a judgment for Plaintiff upon directed verdict, and from an order granting a new trial, Defendant Smith appeals.

Hon. Joseph H. Bottum, judge. Action by George W. Wright, and J. W. Keiser, against J. F. Eisele, and C. O. Bowers and others, to recover certain ernest money paid by plaintiffs on an alleged purchase of land from defendants, and a commission on an alleged sale 'by them to a third party for a higher price than that listed to them as agents. From a judgment for defendants, and from an order denying a new trial, plaintiffs appeal.

Hon. James McNENNY, Judge. Action by Ernest J. Pettigrew, against Ruben W. Fink, to recover damages for trespass by defendant’s cattle upon plaintiff’s crops. From a judgment for defendant upon directed verdict, and from an order denying a new trial, plaintiff appeals.

Hon. Raymond L. D'iixmaN, Judge. Action by the First State Bank of Remmon, a corporation, against S. J. (McMahon, to recover upon a promissory note. From a judgment for plaintiff upon a directed verdict, and from an order denying a new trial, defendant appeals. (i) To point one of the opinion, Appellant -cited: 8 C. J. 259, Sec. 409; First Nat. Bank v. Engebretson, 28 S. D. 185;' Sec. 1732, Code 1919; 8 C. J. 214, Sec. 349, and note 23.

Hon. JOHN T. Mbdin, Judge. Action by the Uline Loan Company, a corporation, against the-Standard Oil Company, a corporation, to quiet title to realty, defendant counterclaiming for specific performance of a contract of purchase by it from plaintiff of the realty. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (1) To point one of the opinion, Appellant cited: Am. Nat. Bank v. Wheeler Auto Co., 31 S'.

'Appeal from Circuit Court, Meade County. Hon. Jambs McNBNNY, Judge. In the Matter of the ¡Estate of Thercile Welch, D'eceased. John M. Stephens, proponent and executor.

.Appeal from Circuit Court, ’Roberts County. Hon. FraNK ANDijrsoN, Judge. Action by the Inter-State Surety Company, a corporation, against P. G. Thompson, to recover premiums alleged to be due under a surety bond. From an order sustaining a demurrer to the complaint, plaintiff appeals.

<p>Appeal from Circuit Court, Stanley County. Hon. Alva E. Taylor, Judge.</p> <p>Action by Walker 'D. Hines, Director General of Railroads of the United States, James K. Breeden and another, and Pierre & Ft. Pierre Bridge Railway Company, a corporation, against Gaylord E. Sumner and others, and 'Ft. Pierre Independent Consolidated School District of Stanley County, ¡South Dakota, to avoid the formation of a. certain consolidated school district, and to recover back taxes assessed by the consolidated district and paid 'by the respective plaintiffs. From a judgment for plaintiffs, and from an order denying a nfew trial, defendants appeal.</p> <p>(i) To-point one of the opinion, re quo warranto as remedy, Appellants cited: Tallmadge v. Walker (N. D.), 159 N. W. 71; Pomeroy’s eq. J.ur. (2nd ed.) Vol. 4, Sec. 1766; 19 R. -C. L. page 703; iSecs. 2781-2797, Code 1919-, as amended by Chap. 289, Laws 1919; McDonald v. Rehrer, 22 Fla. .198; State ex rel. v. 'School Disk, (Mo.) 199 S. W. 944.</p> <p>Respondents cited: Gooder v. Rudd (S;. D-.) 160 N. W. 808; Pierre, & Ft. Fierre Bridge Ry. Co., v. Stewart, 40 S. D. 473;, Isaacson v. Parker, (S. D.) 176 N..W. 653;.Forsyth v. Hammond, (Indi) 40 N. E. 367.</p>

’Appeal from Circuit Court, Tripp County. Hon. Wiwjam WlUJAMSON, Judge. Action by Abraham A'bdenor, against William Gould, to recover damages for a personal assault. From a judgment for plaintiffs, and from an order denying a new trial, defendant appeals.

<p>1. Wills — Execution Of, Non-reading of Entire Will By Subscribing Witness — Former Opinion, Dissenting View of Facts Adopted on Rehearing.</p> <p>Upon rehearing, Court finds that the sentence from the majority opinion on former decision (44 S. D. 375) quoted in dissenting opinion, did not correctly state the' facts, and the statement of facts found in dissenting opinion, to the effect that subscribing witness M never read the whole will to executrix (who was unable to read English), and only read part thereof and advised-., decedent as to what would he the effect of certain disposing-provisions read by him, and did not read the attestation clause, is adopted.</p> <p>3. Same — Signed Certificate of Attestation in Due Form, Presumption Therefrom of Compliance With Statutory Requisites— Affirmative Memory of Subscribing Witness, Immateriality Of — Presumption., How Overcome.</p> <p>Where a duly signed attestation clause to a will was in form required by law, and testatrix signed the instrument, there arises a strong .presumption that each and all of statutory requisites were complied with; such presumption does not need support of affirmative memory of either subscribing witness; and in order to defeat the will, such presumption must be overcome by clear and satisfactory evidence.</p> <p>3. Same — Will Prepared by Qualified! Attorney, Effect Re Presumption Favoring Will Where Witnesses’. Memory Defective.</p> <p>As held in Ross v. Taylor, 39 S. D. 608, the fact that the execution and witnessing of a will was done under direction and charge of a well qualified attorney, is a material element in considering the effect of the lack of memory of subscribing witnesses concerning the form and contents of the attestation. So held, where all that could be said of the evidence given by M, a subscribing witness, is that he did not recall all facts concerning publication and attestation of the will.</p> <p>4. Same — Witness, Whether Attestation Clause Read By, Evidence Considered Sufficient.</p> <p>Where probate of a will was sought to be set aside on the ground that testimony of the attesting witnesses failed to show that either one of them read the contents of the attestation clause, held, that testimony of witness M, substantially showing that while he “just glanced it over and found what it contained,” and explained its' contents to executrix, that he began to read it where it began to divide the property, etc., that after explaining to executrix in substance what he had read, she said in response to his question as to whether “it was the way she wanted it,” “I-t was;” that as he recollected he thought that was all he read at the tima, but “could not say as to that,” that “X may have but I could not say” — was sufficient to establish that the will was in due form and that testatrix knew its contents.</p> <p>Whiting, J., dissenting.</p> <p>Anderson, J., not sitting.</p>

<p>Action by H. H. Bradwisc-h, Carl Miller and John Hoh'bach, against Elva Howey, Comity Superintendent of Schools of Aurora County, South Dakota, Planlcinton Township School District of Aurora County, South Dakota, John Muller and others, chairman and members of the School Board of Planlcinton Township School District of Aurora County, Planlcinton Consolidated Independent School District Number Four of Aurora County, South Dakota, J. A. Miiller and others, president and members of the School Board of said Planlcinton Independent Consolidated School District Number Four, A. H. Dunn, treasurer thereof, Plankinton Independent School District of Aurora County, L. J. Eggleston and others, members of the -Board of Education of said District, and C. E. Goodlad, clerk, and 'A'. H. Dunn, treasurer thereof, to enjoin the operation of a consolidated school district. From an order refusing a temporary injunction, plaintiffs appeal.</p>

<p>On rehearing.</p> <p>. Appellant cited: Laverty v. iSnethen,' 68 N. Y. 522; Esmay v. Fanning, 9 Barb. 176; Cornwell-v. Jager, 21 Ind. App. no, 51 N. E. 733.</p> <p>Respondent cited: Catlett v. 'Stokes (B. D.) 145 N. W. 554; Willard v. Monarch .Elevator Co. (N. D.) 87 N. W. 996.</p>

Hon. JOHN T. Medin, Judge. Action by Western Surety Company, a corporation, against Claudia Schroeder and another, to foreclose a realty mortgage. ■From an order overruling a demurrer to the complaint, defendants appeal.

Hon. Wiu-Riam Ñ. SkinNEr, Judge.- Action by John C. Pfeiffer and another, against Ed Short and H. O. Rime, for cancellation of a contract for sale of realty and of a receipt for part payment therefor. Erom a judgment for plaintiffs, and from an order denying a new trial, defendant Rime appeals.

<p>Original proceeding in the matter of the petition of Patrick C. Morrison to be reinstated as an attorney at law.</p>

Appeal frdm Circuit Court, 'Aurora County. Hon Frank JB. Smith, Judge. , * Action (by Louis H. Hauert, against Henry Kaufman and M. J. -Rardin, to quiet title to realty, defendant Kaufman, as assignee of the sale contract, counterclaiming for recovery of payment made thereunder. From a judgment for plaintiff, and from an order denying a new trial, defendant R appeals. (i) To point one of the opinion,. Appellant cited: Ink v. Rohrig, 23 S. D. 548; 39 Cyc. p. 1376.

<p>Rehearing — Quieting Ti[tle, Finding oí Non-ownership of Dot by Plaintiff, • Non-claimer of Interest on Trial Below and Appeal, Question Non-presentable on Rehearing.</p> <p>Where, in a suit to- quiet title, trial court found that plaintiff was th& owner of a certain lot, and that. a mortgage thereon .was foreclosed and, no redemption having been made, the sheriff delivered his deed therefor to mortgagee, whereby the latter becamé owner, which finding was the basis of the decision below and by this Court on appeal, and appellant (now on rehearing claiming ownership) not having questioned s.uf-ficiency of evidence to support the'finding, or claimed that she was still owner of the South 35 feet of the lot, and nothing appearing in her brief that she was claiming such title, held, that the question concerning title to the South 35 feeit of the lot, presented on petition for rehearing, was not presented by ■the appeal record; and rehearing is denied.</p> <p>Whiting, J., adhering to his former views re the merits, but joining in denying rehearing.</p>

Hon. William N. Skinner, Judge. Action by E. A. Mitchell, against John B. Morgan and Herman Gulk, for specific performance of a contract of -sale of realty. ■From an order refusing to set aside a previous order or judgment •upon contempt proceedings against the defendants, and adjudging said previous order to be in full force and effect, defendants appeal. (i) To point one of-the opinion,, Respondent cited: Gould v. Duluth Elevator Co..

Hon. Luvi Mc-G£E, Judge. Action by 'August 'A.. Haaser, against August D1. Englebrecht, for condemnation of a right of way over defendant’s lands for construction of an irrigation ditch to convey alleged riparian waters. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

On rehearing. (1) Under point one of the opinion, Appellant submitted that; Failure to comply with court rules should operate as a mis-trial, giving each party on re-trial a right to contest for legal rights, but should not operate to deprive appellant of right to request instructions, except to refusal to give them, and to take exceptions to charge in manner provided by rule for settlement of charge.

Hon. Alva E. Taylor, Judge. Action by H. H. Hodges and others, on behalf of themselves and all other electors and taxpayers similarly situated, against G. T. Snyder and others as members of the Board of Education of the ¡Consolidated School District of Erwin- Independent Consolidated School District No. i of Kingsbury County, South Dakota, and others as Clerk and Treasurer thereof, and M. E. McCarty, County Superintendent of Schools of said Kingsbury County, to enjoin…

<p>Appeal from Circuit Court of Hamlin County. Hon. Joseph H. Bottom; Judge.</p> <p>Action 'by John Alatalo, against Esther M. Shaver, as Superintendent of Schools in. and for Hamlin County, South Dakota, C. P. Leonard and others, claiming to be and- acting as the Board of Education and Directors of Hayti Independent Consolidated School District No. 2 of Hamlin ¡County, South Dakota, said Hayti ’ Independent Consolidated School District No. 2 and H. L. ■Stearns, as County Treasurer of Hamlin County, South Dakota, and E. J. 'S-herin, as County Treasurer of Hamlin County, South Dakota, to set aside certain consolidated school district tax levies, to restrain further tax levies and collections thereunder, and for other relief. From two orders sustaining separate demurrers of the defendants to plaintiff’s second supplementary complaint, plaintiff prosecutes two separate appeals.</p> <p>Action ‘by Isaac 'S. Isaacson, against the same defendants, seeking similar relief. From two orders sustaining separate demurrers of the defendants to plaintiff’s second supplementary complaint, plaintiff prosecutes two* separate appeals; defendants ■C. P. Leonard, and others being respondents.</p> <p>(4) To point four of the opinion, Appellants cited: Duncan v. Corson County ('S. D.) 162 N. W. 395; McSurely v. M'c-C'rew (Iowa), 118 N. W. 415; McManus v. Plornaday (Iowa) 2 Am. & Eng. Cas. 237; Skinner v. Plolt, 9 S. D. 434; School Dist. No. 56 v. St. Joseph Eire & Marine Ins. Co. (U. S.) 26 L. Ed. 601; Re Senate Bill No. 9 (Colo.), 56 Pac. 173.</p> <p>Respondents Leonard and others cited: Viland v. Veblen (S. D.)' 158 N. W. 906.</p> <p>(5) To point five, Appellants cited: State Finance Company v. Meyers (N. D.) 112 N. W. 76.</p> <p>Respondents Esther M. Shaver, H. L. Stearns, and E. J. Sherin, cited: Chicago, Etc. R. R. Co. v. Austin, 1917D. L. R. A. 666; People ex rel. Fitzgerald v. Stitt, (Ill.) 117 N.' E. 785; People ex rel. Vautier v. Madison, (Ill.) 117 N. E. 493.</p> <p>Respondents Leonard and others, cited: Ensign v. Barse, 107 N. Y. 338; Cooley Con. Lim. 201.</p>

Hon. Louis L-FmuígER, Judge. Action by Arthur A. Wilson, dependent father of Herbert L. Wilson, deceased, against' the Dakota Light & Power Company, a corporation, to recover damages resulting from the death of decedent under Workmen's 'Compensation Law. From a judgment for defendant, and from an order denying a new trial, ■ plaintiff appeals.

<p>1. Wills — Devise and Bequeath, “To My Brothers and Their Families,” Whether Distribution Per Capita or Per Stirpes— ■ Whether “And Their Families” Void for Uncertainty.</p> <p>Where the disposing clause in decedent’s will was as follows: “All .of real and personal property I bequeath to my brothers and their families,” and testator left surviving her three brothers, one being a bachelor with no family, another having a wife and four children, the third a wife and two children, held, 'that the words “and their families” should not be held void for uncertainty, since to do so would be to leave wholly 1 out of consideration any reference to family, under which construction, in the event that either of the brothers should die prior to testator’s death, the part that would have come to such deceased brother would be distributed under the statute; while it is manifest that by said words testator intended each member of bis brothers’ families should take a share of the estate as a direct gift from him rather than by right of succession from his brothers at their death.</p> <p>a. Same — Language Non-indicative of Intent to Treat Beneficiaries Per Stirpes.</p> <p>There being no language in said distributive clause to indicate testator’s intent that beneficiaries should take per stirpes rather than per capita, nor to indicate an intent that they should be treated other than as a single group, all sharing alike, held, that the rule that if a gift be to A and B and their children, or to a class and; their children or to the children and grandchildren of A, every individual coming within terms of the description, as well children as parents, will take an equal portion of the fund, i. e., distribution will be made per capita, is applicable, and it is immaterial whether the “brothers” be. treated as one class. and their “families” as another, or they be treated all as a single group; and testator is held to have intended to distribute his estate equally among the individuals composing the families of his three brothers. As to what share each individual would, have taken provided one or more of the childrdn of decedent’s 'brothers had died prior to decedent’s death and left surviving children, not determined.</p>

Hon. FRANK Anderson, Judge. Action b.y C. A. Russell, N. J. Lindgren, J. A. Burris, and Sam Catros, against J. A. Elliott, George Woods and W. H. Nelson, to compel specific performance of a contract to convey realty. From; a judgment for plaintiffs, and from an order denying a new trial, defendants appeal.

Hon. Robert B. Tripp, Judge. Action by Ella Eads, against Gustave Tiede, to recover damages for personal injury .caused ‘by collision of automobiles. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. (2) To point two of the opinion, Appellant cited: 20 R. C. L. 158, Sec. 1132; Ry. 'Co. v. King, 11 E. R. A. (N. S.) 829; Chambers y. Ry. Co. (N. D.) 163 N. W. 824. Respondent cited: 29 Cyc. 551; Rebillard v. Minneapolis, etc. Ry.

Hon. 'Walter G. Miser, Judge. Proceeding by writ of prohiibtion, by the State of South Dakota upon the relation of Bruce Erwin' Lewis, against Charles A. Nystrom, Judge of the County Court within and for the County of Pennington in the State of 'South 'Dakota, J. S. Gantz, Clerk of Courts within and for said Pennington County, and Clerk of said ¡Court, and the -County Court of said Pennington County, South Dakota, to restrain the ¡County Judge and Clerk of Courts from…

Hon. John T. Mudin, Judge. Action by A. W. Palmer, against W. D. Baker and B. H. Re Qua, to recover upon an, appeal bond for costs. From an order overruling a demurrer to the complaint, defendants appeal. (r)> To point one of the opinion, Appellants cited; Secs. 725, 889, Code 1919; Switz v. Thomas, 38 S. D. 180; 4 Cent. Diet. & Cyclo. re “joint;” Schuster v. Thompson, 6 Dak. 10; x Pars. Contr., (6th ed1.) 11. Respondent cited: Sec. 2316, Code 1919.

'Appeal from Circuit Court, Hamlin County. Hon. Joseph H. Bottum. Judge. Action by Odin Johnson, against Ben Bruflat, Sheriff of Hamlin County, South Dakota, for damages for conversion of property under attachment and execution. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. (x) To point one of the opinion, Respondent cited, re collateral attack: 23 Cyc. p. 1068, 1237; 15 R. C. D. 841; Morse v. Pickier (S. D.) 134 N. W. 809.

Hon. John T. Mudin, Judge. Action by P. M. Nesby, against H. O. Rime, to enforce specific performance of a written contract for sale of realty. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

<p>1. Master and Servant — Personal Injuries While Employee of Independent Contractor, Whether Railroad Liable — Previous Decision Followed.</p> <p>As previously held upon .this appeal (43 s. D. 456, 180 N. W. 61), the Court now affirms the facts pleaded were sufficient, afteir eliminating allegation as to plaintiff’s being an employee of defendant, to constitute a cause of action under the common law theory, and that if when so injured he. was engaged in performance of his duties as such employee of an independent contractor, the defendant railroad -company owed him the same duties as to care for his safety as if he was its employee.</p> <p>2. Sam© — Whether Plaintiff While in Turn-table Ash Pit in Evening, Was Trespasser’ — Plaintiff's Negligence, Defendant’s Employees’ Contributory Negligence, Combined Effect — Previous Decision Reversed.</p> <p>While in our former opinion on this appeal (43 S. D. 456) we regarded the facts as establishing that plaintiff, while in the turn-table ash pit in question in the evening, at the time of his injury by steam from the engine, was not a trespasser, upon further reflection, held, that such statement may be misleading; that if as het claims he was there for the purpose of wetting down the cinders, he was not a trespasser; but if as claimed by the defense he was there to cook sausages, then he had no more right there than had any employee whose duty never took him to such ash pit; though if rightfully there, it is not beyond dispute that he was not guilty of contributory negligence; and, giving all testimony a construction most favorable to plaintiff, yet, the record showing it was not customary for any one to work in said pit after dark, that plaintiff makes no claim that hes intended shoveling cinders that night, that his sole ¡purpose, beyond heating the sausages, was to wet down cinders, that so far as evidence shows no employee of said independent contractor had ever visited this pit after dark to wet down cinders; that the engine-men had no reason to suspect there might be some one there, which fact plaintiff must have known, that if anyone did work there after dark it was customary for him to have a light to warn others of his presence, that plaintiff should have had a torch lighted to warn of his presence; that the proper way to wet down cinders was to stand on edge of the pit and hold the hose scattering water on cinders, while plaintiff claims he went there to put hose under rails to allow water to run without his holding the hose, and that in the dark'he stood where the steam from the pit enveloped him, hence his negligence is beyond dispute; therefore held,, that though it might be claimed it was for jury to determine whether his negligence contributed to the accident, nevertheless if defendant’s employee’s alleged negligence caused it, it was because such negligence! prevented plaintiff from seeing or hearing approaching engine; but in the same manner, the -lack of a warning light .lead these employees to remain ignorant of his preseta.ee, and, defense of contributory negligence being fully established, decision below is reversed.</p> <p>3. Same — New Trial Plaintiff’s Contradictory Testimony, Effect— Improbability of His Testimony.</p> <p>In granting a new trial herein, it seems plaintiff’s story strains credulity of any reasonable man, this as to his testimony concerning his helper needing another torch, and that he went to get one “to wet down the cinders,” while the helper testifies to contrary; and, plaintiff’s evidence as to what occurred in the pit being uncorroborated and self-contraditory, while his testimony that, although his right arm was cut off at or near elbow, his left hand being badly crushed, he immediately after he got out of the pit went to hydrant, took a drink, and then turned the water off — testimony seemingly beyond belief.</p> <p>4. Same — Contributory Negligence, Instructions Not In Abstract and General Terms — True Rule Stated.</p> <p>As bearing upon the issues herein, Court will suggest (following Sullivan v. Lyon, 31 S. D. 189) that instructions should be framed with reference to circumstances of case on trial, and not be expressed in abstract and general terms, when such terms may mislead jury; that nothing is more dangerous than to lay down general .propositions which, instead of aiding, seldom fail to mislead jury, that court should apply principles of law to facts in evidence in each particular case, stating those facts hypothetically; that trial court in instant case, while correctly stating abstract propositions re defendant’s negligence and plaintiff’s contributory negligence, confined them to defendant’s negligence but failed to apply them to defendant’s claim of plaintiff’s contributory negligence.</p> <p>Smith, J., dissenting.</p>

Action 'by B. A. Adams, against G. A. Morehead, to recover an amount claimed for professional services performed; the defense being accord and satisfaction. From a judgment for plaintiff upon directed verdict, and from an order denying a new trial, defendant appeals.

Hon Prank Anderson, Judge. Action by Emma A. Cranmer, against Charles A. Howard and another as Howard & Hedger, D'. E. 'Christian, and George Bowles as Treasurer of the City of Aberdeen, South Dakota, to foreclose a mortgage on realty; the original plaintiff’s interest in the litigation and the entire interest of the) defendant, 'D. E. Christian, having been transferred, prior to the last trial of the case in lower court, to the First National Bank of Aberdeen.

Hon. Auva E. Taylor, Judge. Action by G. J. Hofteizer, as administrator of the estate of Jane W. Radstaak, deceased, and others, against G. J. Prange, as executor of the estate of Arend John Radstaak, deceased, and others, defendants; Jan Bouwhuis, E. H. Winklehorst, Garit Wilem Wisselink and others, impleaded with others as defendants; for judgment and decree adjudging plaintiffs to be owners of all the property claimed by defendants as the estate of Airend Rad-staak,…

Hon. Frank And-ERSOn, Judge. The defendant, Ed 'Blair, was convicted of the 'offense of unlawfully selling intoxicating liquors, and he appeals. (2) To point two of the opinion, Appellant cited: State v. Burchard, 4 S. D. 548. Respondent cited: State v. Ferrell (W. Va.) 5 S. E. 155; State v. Koerner (Wash.), 175 Pac. 176; Springer v. State (Ark.), 19s ,S. W. 376.

Hon. FraNK Anderson, Judge. Action ’by C. V. Strand, against John Steppa and John Heim, to foreclose a contract to convey realty. From an order, applied for by defendant, enjoining plaintiff from occupying or in any way asserting right to possession of any part of the land in controversy, plaintiff appeals.

Hon. Alva E. Taylor, Judge. Action by John Sherlock, against John Maurice Dinneen and others, to recover damages for alleged personal injuries inflicted by falling of 'a .trap door upon his finger while acting as defendant’s janitor. ' From a judgment for plaintiff, and from an order ■denying a new trial, defendants appeal. Appellant cited, re action of counsel; Burch v. Abercrombie, 50 L. R. A. (N. S.) 59-. _ Respondent cited; Kimm v. Walters, 133 N. W. 280.

Hon. Louis L. Finger, Judge. Action by A. Huckert, against O. R. Maynard, for a mandatory injunction to prevent defendant from maintaining a river flood embankment along the dividing line between plaintiff’s and defendant’s farm lands. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals.

Hon. Louis L. Fueegsr, Judge. Action 'by the 'Rubber Corporation of America, a corporation, against the Brooks Tire & Battery Company, a corporation; William Hoese, Temporary 'Receiver, intervening; in claim and delivery for recovery of auto tires sold by plaintiff to defendant corporation. From a judgment for plaintiff, and from an order denying a new trial, Hoese appeals.

Hon. Raymond L. DiiamaN, Judge. Action by Hoven State Bank, a corporation, against W. S. Acker, in claim and delivery, for recovery of possession of chattels mortgaged by defendant to plaintiff. From' a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

<p>Appeal from Circuit Court, Clay County. Hon. Robert B. Tripp, Judge.</p> <p>Action by John M. Carr, a taxpayer, etc., against Wakonda Independent Consolidated School District Number I, of Clay County, South Dakota, W. O. Knight and others as the Board of Education, E. M. Thrane and Mary Jacobson, as Treasurer and Clerk, respectively, of said School District, and Nora Silken-son as County 'Superintendent of Clay County, South Dakota, to enjoin defendant School District from issuing bonds. From an order denying an injunction pendente lite, plaintiff appeals.</p> <p>(2) To point two of the opinion, Appellant cited: State ex rel, Clarke v. Stakke, 22 S. D. 228; Treat v. De Jean, 22 S. D. 505.</p> <p>Respondent cited: Sec. 3, Ch. 202, Laws 1921.</p>

<p>Appeal from Circuit Court, Tripp County. Hon. Newton D. Burch, Judge.</p> <p>The defendant, J. M. Campbell, was convicted of the crime of rape in the first degree, and he appeals.</p>

<p>Officers — Elections—Recall of Party Elelcted Judge Through Primary Law, Ratter Not Applicable — Removal o'f Judge By Governor, Writ of Prohibition Against Action For Statutory Removal, Properly Denied — Statutes, Constitution — Recall As Cumulative Remedy.</p> <p>Secs. 7176-7183,. Code 1919, provide for recall of officers elected through party election. Sec. 7097, concerning primary elections, provides that in case of conflict between provisions of that chapter and other Code provisions, effect shall be given to former. A suit having been begun by Attorney-General, and State’s Attorney of Deuel County, by 'Governor’s direction, under Secs. 7009-7016, seeking removal of plaintiff, County Judge elected through party election, plaintiff seeks by writ of prohibition to restrain the Circuit Court, the Judge thereof, and said .prosecuting officers from proceedings in said action. Held, that said recall provisions of the primary election law deal only with removal by party machinery, and are open only to electors of political party through which the election or appointment came, and not to electors of other political parties; that recall procedure does not cover entire field of matter of removal from office, so is only cumulative to, and not inconsistent with general statutes re removal; and writ is denied.</p>

Hon. FRANK B. Smith, Judge. Action 'by Joseph E. Stanley, against the Kansas City Life Insurance Company, a corporation, to recover certain dividends under a life insurance policy issued by defendant to plaintiff. From a judgment for plaintiff, and from, an order denying a new trial, defendant appeals. (1) To point one of the opinion, Appellant cited: Laws 1909, Ch. 315, Sec, 20. (2) To point two, Appellant cited: Smathers v. Bankers Life Ins.

Original proceeding, in the Matter of the Last Will and Testament of Caroline Satrang, Deceased; Jennie Moe, Belle Hunter, and Timothy Satrang, Contestants and Appellants, Ellen Good-road, Defendant and Respondent. After appeal to 'Supreme Court, that Court by order dismissed the appeal as having been abandoned, remittitur having been transmitted to Circuit Court. Thereafter appellants sought,' upon order to show cause, vacation of the order dismissing appeal.

<p>On rehearing.</p> <p>(1) To point one of the opinion, French, Orvis & French, as amici curiae, on behalf of Appellant cited: Sec. 1892, Code 1919; Sec. 1763; Builder’s Lime & Cement Co. v. Weimer, 170 Ia. 444, 151 N. W. 100; Brannon on Negotiable Instruments Law, Sec. 52.</p> <p>Appellant cited:</p> <p>Respondent cited: Sec. 1756, Code 1919; McCormick Harvester Co. v. Taylor (N. D.), 63 N. W. 890; Bradshaw v. Miners Bank of Joplin, 81 Fed. 902; Creighton Plow Co. v. Davidson (Neb.), 20 N. W. 256; Bank of Gresham v. Walch (Oreg.), 147 Pac. 530; Vanderploeg v. Van Zook, 135 Ia. 350, 112 N. W. 807, 13 L. R. A. (N. S.) 490; Secs. 1718, 1719, Code 1919; 15 Am. Law. Rep. 437.</p> <p>(2) To point two, French, Orvis & French, as amici curiae, on behalf of Appellant cited: .Sec. 1734, Code 1919; Redfield v. Wells, (Ida.) 173 Pac. 640; 8 C. J. 469, Sec. 686; Simpson v. First-Nat. Bank (Oreg.) 185 Pac. 913.</p> <p>Appellant cited: 8 C. J. 469, Sec. 686; cases and authorities cited amici curiae, supra.</p> <p>Respondent cited: Vol. 7 Cyc., pages 783, 791, 810, 812, 818, on subject Transfer of Commercial Paper; Secs. 1753, 1754, 1892, Code 1919; 8 C. J. Secs. 508, 509.</p>

<p>1. Municipal Corporations — Gas Franchises, Cessation of Gas Plant I Operation Before Expiration of Franchise, Whether Permissible When Concern Insolvent and! Running At Loss And Rates Unascertainahle — Right Recognized On Rehearing.</p> <p>Upon rehearing for sole purpose of further considering whether appellant gas company could cease operation of plant before expiration of period of respective franchises granted hy. respondent cities, held, that, appellant being insolvent, its. plant mortgaged for full value, stockholders having for long been running it at loss, and appellant conceding that cessation of operation will terminate its franchise rights, — it had the-right to cease such operation; this in view also of the former holding (44 S. D. 510, 184 N. W. 244) that the parties were-powerless to contract as to rates-. Court neither confirms nor denies respondents’ contention that under ordinances requiring-Gas Company -to continuously supply gas to- city inhabitants, diligently keep ready to serve all applicants, and permitting-either party after twenty years from date of franchise, and on expiration of each ten years period thereafter, to require the-other, on notice, to require question whether past or present rates are under existing conditions mutually fair and just, parties to l)e bound by arbitrators’ determination of question on pain (by gas company) of forfeiture of franchise, — the franchises created a contract requiring furnishing of gas for full term of grant, that constitutional limitation on municipal power to make binding contract re rates does not affect validity of franchise contracts in other respects, that under -constitutional provisions and S. D. statutes, city is deemed authorized -to fix and determine rates which will prevail till police- power of state invoked for their correction, that adequacy of rates are not here involved, and that under the franchises cities were not limited to remedy of forfeiture; nor appellant’s contention that by holding of Court in former opinion that there was no contract re rates, i-t necessarily held that franchise did not constitute a contract; nor its contention that ordinance provisions for forfeiture of 'Gas Company’s rights in case of nonuser constitute sole penalty for its failure to operate plant.</p> <p>2. Same — Gas Company’s Notice of Discontinuance of Operation of Plant, Whether Thirteen Days Sufficient.</p> <p>While 13 days’ notice of Gas Company’s intention to discontinue operation might ordinarily have been insufficient, yet when accompanied by offer to turn over plant to cities without charge to them, respondent cities may not complain of short time notice.</p> <p>Whiting, J., concurring specially.</p>

<p>1. Divorce — Alimony, Suit Money, Attorneys’ Pees — Question On Appeal — Trial 'Court’s Better Position to Determine on Rendition of Judgment, Whether Allowance Excessive.</p> <p>Pending determination of merits on appeal from an order allowing $100. per month temporary alimony for plaintiff’s maintenance, $100. for suit money, and $400. for attorneys’' fees, Reid, that Court can not conclude from evidence that said (allowances are so excessive as to he now cut down; these being, matters trial court can adjust on rendition of judgment, through examination of witnesses.</p> <p>3. Same — Alimony—Evidence Re Wife’s Property, Income — Alimony Allowance Sustained.</p> <p>Evidence showing plaintiff wife owning one-third interest in-an estate whose income does not exceed $700.; $2000. as savings by former husband; a town lot costing $300., and two houses whose rental is $30. per month; while defendant’s worth is from $30,000. to $75,000; held, trial court properly allowed $100. per month alimony.</p>

<p>Negotiable Instruments — Decision In Case No. 4820 Followed.</p> <p>As in Britton Milling Co. v. H. J. Williams, 187 N. W. 159, ,No. 4820, former decision affirmed in part and reversed in part. On rehearing.</p>

Hon. Frank B. Smith, Judge. Special proceeding in which the State of ’South Dakota is plaintiff and Joe Kieffer is designated “defendant;” Wood Smith, J. F. 'Donegan, and D. K. Barrett being designated on appeal as “Appellants.” From an order requiring appellants to return property seized in the proceeding under search warrant, to1 defendant, and to the effect that it should not be used as evidence against him in a criminal prosecution for unlawfully selling intoxicating…

Action by J. E. Lite, against Ordway Common School District No. 14, of Brown County, South Dakota, a municipal corporation, and William Schultz and others, members of the 'School Board, and C. J. Johansen, to have a certain alleged attempted contract by defendants for construction of a school house declared illegal and void, and for judgment enjoining defendants from constructing such school house, and for other relief. Erom a judgment for defendants, plaintiff appeals.

<p>Appeal from -Circuit Court, Dyman County. Hon. Wiuuiam Wiuliamso'N, Judge.</p> <p>Proceeding in quo warranto, by Martin M'oe, James Jensen, and Bert Corkel, against F. C. Wederath and others as members of the Board of Education, and C. H. West, as Treasurer of the purported Presho Independent Consolidated School District No. 31, Dyman County, South Dakota, questioning the validity of the attempted incorporation of an independent consolidated school district. From a judgment for defendants, plaintiffs appeal.</p>

Hon. Thos. L. Boucic, Judge. In tbe Matter of the Petition of Geo. H. Shank and others, For a Drainage Extending into the- Counties of Brown, and Marshall, South Dakota.

<p>Original application by James Mee and James S. Thompson, in the Matter of the Petition of said parties applicant for a Writ of Prohibition to John Hirning, as Superintendent of Banks of the 'State of South Dakota, and John Plirning, M. Plin Beebe, C. H. Lien and William Hoese, as members of and constituting the Depositors Guaranty Fund Commission of the State of South Dakota, requiring respondents to desist and refrain from granting to The Farmers’ Security State Bank a certificate of authority to do a banking business and from granting it admission under the depositors’ guaranty fund. From a judgment of the 'Circuit Court in and for Minnehaha County (Hon. Liouis L. Fleeger, Judge,) quashing said 'writ and dismissing the proceeding, Mee and Thompson appeal; pending which appeal appellants moved, first, for an order fixing amount of undertaking upon their appeal and granting a stay of proceedings pending appeal, and, second, that if this Court should determine it has no authority to or should not grant the other relief prayed for, it grant an order upon respondents prohibiting them during pendency of the appeal, from granting to said banking corporation the rights and privileges sought for.</p> <p>(2) To point two of the opinion, Respondent cited: 3 C. J. 1277, note 83; id, note 87; Flypaa v. Brown County, 6 S. D. 634.</p> <p>(3) To point three, Appellant cited: Wells v. Wells, 25 S. D. 60; Schafer v. District Court, 131 N. W. 240. And submitted : That the order sought by this motion is equivalent to an alternative writ of prohibition, which this Court has original jurisdiction to issue, and, having such jurisdiction, it may, in exercise of appellate jurisdiction, issue such writ or order as is necessary to exercise of appellate jurisdiction.</p> <p>Respondent cited: Silverthorne v. Barnwell Dumber Co., 96 S. C. 32, 79 S. E. 519; Johnson v. Young (Colo.), 22 Pac. 769. And submitted that: A stay under Sec. 3159, Code 1919, is entirely discretionary with trial court, which will not be disturbed by Supreme Court; and cited: Devereux v. Katz, 22 N. D1. 351, 133 N. W. 553.</p>

Hon. Frank AndErso-n, Judge. Action by John Gollnick, against William Duedtke, Emil Euedtke and another as the Board of Education of School District Number 183, Day County, South Dakota, to enjoin defendants as such school officers from undertaking, -by purchasing a new' site, to locate a school house upon a new site. From an order dissolving a temporary injunction, plaintiff appeals.

Hon. John T. MbdiN, Judge. Action by Minor J. Sorum, Haran J. Sorum and others, against Einer Sorenson, to establish and enforce a vendor’s lien upon realty sold by plaintiffs to defendant. From an order sustaining a demurrer to the answer, defendant appeals.

Hon. John T. Msdin, Judge. Action by Mary Riley, against Charles M. Wheat (Impleaded with Julius and Lewis Miller), to enforce specific performance of a contract for sale of land; defendant counterclaiming for repayment of a partial payment made, and for rescission of the 'contract. Prom a judgment for plaintiff, and from an order denying a new trial, defendant Wheat appeals.

Hon. William N. Skinner, Judge. At a meeting of the board of education of School District No. 49, Brookings County, South Dakota, a “Teachers’ Committee Report” accepting the resignations of Mabel Anderson and Eva Downs, was adopted; from which action of said board, said Eva Downs and Mabel Anderson appealed to the Circuit Court. From an order of said court dismissing said appeal, said appellants and plaintiffs appeal.

Hon. FRANK Anderson, Judge. Action by The First National Bank of Webster, against The First National Bank of Mobridge, to recover upon secured notes sold by defendant to • plaintiff, and for damages for alleged false representations by defendant's president concerning the value of said securities, etc. From a judgment for plaintiff, and from an order denying a new trial,' defendant appeals.

Hon. John T. Medin, Judge. In the Matter of the ©state of Frank Kueter, Deceased.

Hon. William' WILLIAMSON, Judge. Action by B. P. Weibel, against N. E. Gardner and another-From a judgment for plaintiff, defendants appeal. On motion to-strike from the files appellant’s reply brief.

Hon. FRANK B. Smith, Judge. The defendant, B. I. Shomaker, was convicted of the crime of selling mortgaged property without the written consent of the mortgagee, and he appeals. (i) To point one of the opinion, Appellant cited: Coughran v. Western Elevator Co., 22 S. D. 214, 116 N. W. 1122; Minneapolis Threshing' Machine Co. v. 'Calhoun, 37 S. D1. 542, 159 N. W. 127; Walker v. Camp, 27 N. W. 800.

Hon. Frank B. Smith, Judge. 'Action by Clark Richardson, against the Farmers Co-Operative Union, a corporation, to recover damages resulting from alleged personal injuries to plaintiff while an employe of defendant in its grain elevator. From a judgment dismissing the action, plaintiff appeals.

Hon. RraNIC B. Smith, Judge. Action by Joseph E. Yarosh, against C. E. Sanders, for recovery of part purchase money under a contract of sale of realty. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

<p>Vendor ancE Purchaser — Yarosh v. Sanders, -S. D.- Followed.</p>

Hon. JoHN T. TVLemN, Judge. The defendant, J. W. McGaughey, was convicted of the crime of unlawfully, etc., using and employing an instrument upon the 'body of Lottie Henning, then pregnant with a quick child, •with intent to destroy such child, thereby causing the death of the mother, and he appeals. (2) Under point two of the opinion, Appellant cited: State v. Kieffer, 17 S. D. 67; Ex parte Nesson, 25 S. D. 330; .State v. Barnes, 26 S. D. 268.

Hon. Wimjam N. Skinner, Judge. Action by William Grettenberg, against Gerhart Smith. From an order refusing to vacate a default judgment, entered in a suit upon a foreign judgment, defendant appeals.

Hon. Louis •Iv. ÍLEEGBR, Judge. Action by John A. Warwick against P. D'. Bliss. Upon motion to strike the files and refuse to consider appellant’s statement and brief or so much thereof as may he improper, and for dismissal of appeal.

Hon. JOHN G. MiSER, Judge. Action by Tony Fritz, against Amelia B. Fritz, for divorce. Plaintiff, against whom the decree was rendered, having been cited to show cauáe why he should not be adjudged in contempt of court for failure to pay certain alimony, and having been adjudged in contempt and committed to jail, appealed from the judgment. (2) To point two of the opinion, Appellant cited: Schooley v. Schooley (la.), 169 N. W. 56; Francis v. Francis (Mo.'), 179 S'.

Hon. James M'cNenNY, Judge. Application ;by the State of South Dakota on the relation of Ajndrew Vig, against F. J. Lehman, Frank Hoval and Martin Schmidt, as members of the School Board of School District No. 89 of Meade County, for a writ of mandamus directing defendants, as members' of said Board, to return a school building to the place from which they had removed it. From a judgment denying the -writ, plaintiffs appeal.

Original application by John Morrell & 'Co., against the American Railway Express 'Co., Impleaded with the American Express Co., Great Northern Express Co., and Wells Eargo Express Co., for a writ of certiorari to the Board of Railway Commissioners of the State of South Dakota, seeking review of the action of the Railroad Commission in its order requiring and directing defendant American Railway Express ‘Co. to establish and maintain a “pick up and delivery” service to and…

Hon. Wiu-UAM N. SlCINNItR, Judge. Action by J. L. Owens Company, a corporation, against James C. Davis, Agent, under federal transportation act, to recover. value of a grain cleaner and a crate of sieves shipped by plaintiff 'and alleged to have been unlawfully sold by defendant. Prom a judgment in favor of plaintiff upon motion for judgment on the pleadings, and from an order denying a new trial, defendant appeals. Appellant cited: Adams Exp. Co. Croninger, 226 U. S. 491.

Hon. L'ouis L. Finger, Judge. Action 'by J. B. Clendennen, against A. H. Bainbridge, to recover damages for alleged alienation of affections of plaintiff’s wife. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Hon. A. L. McNaught^N, Judge. Action 'by the Tri-State Fair Association, a corporation, against M. C. Lasell, to recover upon an alleged subscription for corporate stock. From* an order overruling a demurrer to the complaint, and from a judgment for plaintiff, defendant appeals. (x) To point one of the opinion, Respondent cited: Sec. .250, ¡Code 1919.

D. Hon. MartiN Burgh, Judge. The defendant, Matt Walser, was convicted of the offense of violating an ordinance of the City of Sioux Falls making it unlawful to manufacture, for sale, barter, trade, gift, or beverage purposes, wine in said city, and he appeals. (4) To point-four of the opinion, Appellant cited:' Gouled v. U. S. (U. S. Sup. Ct.) decided February 28, 1921; Adv. Sheet No. 10 (1920-1) page 311; Amos v. U. S. (U. S. Sup. Ct.) decided February 28, 1921, Adv.

Hon. James McNENNY, Judge. Action by Cecelia A. Bracken, against William J. Bracken,, for a decree of divorce, for permanent alimony for plaintiff’s support, and for a decree that title to certain real and personal property alleged to have been purchased with her money be quieted in her name, for an accounting of proceeds of the land, and for other relief. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

<p>Appeal from Circuit Court, Sanborn County. Hon. Frank B. Smith, Judge.</p> <p>Action by M. P. Dougherty, against Emiel Van Overshelde, Allen DeGroff, as County Treasurer of Sanborn County, South Dakota, N. E. Knight, as Commissioner of School and Public Lands of the State of South Dakota, and another. From a judgment for defendants, and from an order denying a new trial, plaintiff appeals. On application 'by plaintiff to fix amount of a stay bond pending the appeal.</p>