Volume 46 — South Dakota Reports

<p>Appeal from Circuit Court, Potter County; Hon. J. H. Bot-Tum, Judge.</p> <p>Action by George N. -Comeau against Thomas C. Barnes and another. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Statutes — Title Should Be So Comprehensive that Reader May Gather Correct Information as .to General Scope and Purpose of Act.</p> <p>The title of an act should be so comprehensive that from the reading thereof one may gather correct information' as to the general scope and purpose of the act, and should not purport to be an index, which, if incomplete, may mislead.</p> <p>2. Statutes — Constitutional Law — Home Building Law Held Invalid, in that Title Fails to Intimate Provisions.</p> <p>The Home Building Daw (Laws 1921, c. 254), enacted pursuant -to Const., Art. 13, Sec. 17, held invalid,. as violating 'Const., Art. 3, Sec. 21, in that its title, “An act creating a, state home building department, defining its powers and duties, providing for the loaning of money and extending of ■credit to the people of the state * * * for the purpose of assisting in the building of homes by (them), authorizing the state to borrow money on bonds and warrants secured by the good faith and credit of the state for such purposes,” etc., gives no intimation of provisions for loans by state for homes only in cities or towns which must approve every loan, and are made responsible therefor in case of foreclosure.</p>

John T. Medin, Judge. Application by Edna Alice McAlpine for writ of habeas corpus against Herman Wangsness, as Sheriff of Minnehaha County. From an order releasing applicant, the sheriff appeals. On applicant’s motion to dismiss appeal. (1) To point one of the opinion, Appellant cited: 3 C. J. 122. ■ (2) To point two, Appellant cited: In re Hammill, 9 S. D.. 391; Winton v. Knott, 7 S. D. 179; 27 D. R. A. 290.

<p>1. Arrest — Intoxicating Liquors — Peace Officers — Arrest Authorized Without a Warrant When Defendant Pound in Possession of Intoxicating Liquors.</p> <p>Under Rev. -Code 1919, Sec. 4553, authorizing a peace officer to arrest without a warrant for a public offense committed in his presence, and Section 10299, relative to- the possession of intoxicating liquors, an arrest without a warrant was authorized where officers while in defendant’s house saw him in possession of intoxicating liquors.</p> <p>2. Intoxicating Liquors — Evidence—Criminal Law — Possession for Cooking Purposes Unlawful.</p> <p>Under Rev. Code 1919, Sec. 10299, the possession of intoxicating liquor for cooking purposes is just as unlawful as possession for sale or for use as a beverage.</p>

R. R. FeEEGER, Judge. Action by Wollert Hildahl against Andrew Seim. From a judgment for plaintiff and from an order denying a new trial, defendant appeals.

<p>1. Vendor and Purchaser — Pleadings—Specific Performance — Complaint in Statutory Action for Foreclosure of Defendant’s Right Under Contract to Sell Dand- Not Action for Specific Performance.</p> <p>Complaint in an action for a foreclosure of purchaser’s right under contract held to state cause of action under Rev. /Code 1919, Secs. 2914, 2915, so that the action was not in effect one for specific performance, and therefore the com-plaint was not demurrable for failure to allege plaintiff’s performance of all conditions precedent in the contract, in view of section 2915.</p> <p>2. Vendor and Purchaser — Election of Remedies — Statute Providing for action to Foi’eelose Rights Under Realty Contract Not Rimitation upon Plaintiff.</p> <p>Rev. Code 1919, Sec. 2917, providing that the action permitted by sections 2914, 2915, for foreclosing defendant’s right under contract to purchase realty, “shall not be treated or construed as exclusive- of any other remedy authorized by law, but as cumulative merely,” is not intended as limitation of plaintiff’s right to elect to proceed under the statute.</p>

N. D. Burch, Judge. Earnest McKean was convicted of grand larceny, and he appeals from judgment and order denying new trial. (4) To point four of the opinion, Appellant cited: Spencer v. State (Tex. Cr. App.), 153 S. W. 853; State v. Coleman, 17 S. D. 594; State v. Raper, 26 S. D. 151. • Respondent cited: State v. Barnes, 26 S. D. 622.

Frank B. Smith, Judge. Action by May Wallace Herrick against Ellen M. Gregory and another. From' judgment for plaintiff and from order denying a motion for a new trial, the defendants'■ appeal. Appellant cited: Kripp v. Curtis, 71 Cal. 62, 11 Pac. 879;' •Carey v. Rae, 17 E. R. A. (N. S.) 1018, and notes; Hicks v. Mill Co., 57 E. R. A. 720. Respondent cited: Spawn v. South Dakota Central Railway Co., (.S'.

<p>Appeal from Circuit Court, Turner County; Hon. L. L: FlEEGER, Judge.</p> <p>On petition for rehearing.</p>

<p>Appeal from, Circuit 'Court, Tripp County; Hon. N. D. Burci-i, Judge.</p> <p>Manadamus by Lillian Meyers against Thomas Coleman, Sheriff of Tripp (County. Judgment for -defendant, and relator appeals.</p> <p>Appellant cited: Chesney v. Francisco, 12 Neb. 626, 12 N. W. 94; Robinson v. Hughes (Ind. Sup.), 20 N. E. 220; Rice v. Nolan, 33 Kan. 28, 5 Pac. 437; 'Daniels v. 'Hamilton, 52 Ala. 108; Thompson on Homestead! & Exemptions, 809; U. S. Fidelity & Guaranty Co. v. Hollenshead ('Wash.), 98 Pac. 749; Boylston v. Rankin (Ala.), 21 So. 995; Stout v. Price, 56 N. E. 857; 'Commonwealth v. Burnette, 44 So'. 960; Hartman v. Wood, 67 N. Y. S. 1046; State v. Allen, 35 S. E. 990; Noyes v. Belding, 5 S. D. 603; State v. Emmerson, 74 Mo. 607.</p> <p>Respondent cited: Noyes et al vl Belding et al, 5 S. D. 603; Meyer v. Beaver, 9 S. D. 168; First National Bank v. Lee, 141 N. W. 716; Angelí v. Johnson, 2 N. W. 387; Moffitt v. Adams, 14 N. W. 88; Zielke v. Morgan, 7 N. W. 283.</p>

n. R. B. Tripp, Judge. Appeals by Yankton County on demand of seven taxpayers, and by Gilbert Larson, from action of the Board of County Commissioners, undertaking to- lease w-ith option to purchase property held by Sanford G. Donaldson, Receiver of the Yankton County Breeders’ Association & Sales Comfpany, and an appeal by John H. Munkvold fromi a tax levy of said- Board of County Commissioners.

<p>Appeal from Circuit Court, McPherson County; Hon. J. H. Bottom, Judge.</p> <p>Action- by the 'Farmers’ Elevator & Implement Company against John A. Hoberg and another. Judgment for defendants, and plaintiff appeals.</p>

Frank Anderson, Judge. Action by John W. Steinmetz against one Clements F. Porter. From a judgment for plaintiff and an order denying a new trial, defendant appeals.

<p>.Mortgages — Foreclosure—Sale on Foreclosure by Advertisement of All of Single Farm, Though Consirting of Several Governmental Subdivisions, Sustained.</p> <p>Under Rev. Code 1919, ¡Sec. 2883, as to foreclosure by advertisement, sale en masse held warranted, the premises, though consisting of several contiguous governmental subdivisions constituting but one farm, and it being irrigated from wells on one of the subdivisions and there having been no bid when the premises were offered in smaller lots.</p>

John T. Mudin, Judge. Action by J. C. CVConnor and others against John McCabe, wherein defendant cross-complained against plaintiffs. Judgment for defendant, and plaintiffs’ motion for a newi trial denied, and! plaintiffs appeal. Appellant cited: 3rd Wash. R. Prop., Sec. 2156, 6th Ed.; 1 Devlin R. Est., 3rd Ed., Sec. 260a; Tiedman R. Prop., Sec. S14; 'Hopkins R. Prop., Sec. 266; Prutsman v. Baker, 30 Wis. (644; Magoffin v. Watros (N1.

Frank Anuerson, Judge. George D. Mitchell was convicted of grand larceny, and he appeals. (3) To point three of the opinion, Appellant cited: Schribner v. State (Ofcla.), 35 L. R. A. (N. S.) ; 1 Bishop Criminal Procedure, par. 909; 16 R. C. L, p. 262; Haugen v. Chicago, Milwaukee & St. Paul R. R. Co., 53 N. W. 796; Reynolds v. The U. S., 98 IT.

Frank B. Smith, Judge. Action of forcible entry and detainer by Emiel Van Overschelde against Alfred) Zoss and another. Judgment for plaintiff, and defendants appeal.

Raymond L. Dirroman, Judge. Action by F. E. Wells against E. A. Booth and another. Judgment for plaintiff, and defendant Ernest Blasingame appeals. (1) To point one of the opinion, Respondent cited; Owen v. Burlington, C; R. & N. Ry. Co., 11 S. D. 153, 76 N. W. 302'; Wright v. Sherman, 3 S. D. 290, 52 N W. 1093, 17 L. R. A.-792.

Walter G. Miser, Judge. Action by C. H. Swallow & Co., an express trust, against William Kolterman. Judgment for defendant on demurrer and plaintiff appeals.

J. H. Bot-Tum, Judge. Action by S. S. Meier, receiver of the Faulk County Power Company, against A. J. Eaton and others. From a judgment against defendants Eaton and another, defendant Eaton appeals. Appellant cited: Thompkins v. Sperry et al, 54 Atl. 254, 7 . R. C. E., Sec. 53. Respondent cited: Telegraph v. Eoetscher, 127 la. 383, 4 Ann. Cases 667 and note; Bennett v. Havelock Electric Eight- & Power Co., 21 Ont. L. R. 120, 18 Ann.

Alva E. Taylor, Judge. Action by T. E. D'oyon and another against G. Fogleson. From a judgment for defendant, and fromi an order denying a new tidal, plaintiffs appeal.

<p>1. Mortgages — Foreclosure — Redemption— Subsequent Mortgagee Redeeming Cannot, by Faking Assignment of Sale Certificate, Refeat Redemption Rights of Junior Mortgagee; “Redemptioner;” “Assignee of Purchaser.”</p> <p>Where a junior mortgagee. obtained an assignment of the certificate of mortgage sale from the holder, and on expiration of the redemption year 'obtained a sheriff’s deed under such certificate, he was a “redemptioner” and not an ‘‘assignee of purchaser” within the meaning of Rev. Code 1919, Secs. 2686, 2890 and under sections 2682 and 2887 another junior mortgagee was entitled to redeem within 60 days after assignee's redemption.</p> <p>2. Mortgages — Foreclosure—Redemption—Redemption Statutes Liberally Construed.</p> <p>Redemption statutes are remedial in their nature, and should be liberally construed.</p> <p>3. Mortgages — Foreclosure—Redemption—Grantee For Renefit of Creditors Entitled to Redemption; “Redemptioner.”</p> <p>Where th,e grant to plaintiff as a trustee for the grantor’s creditors is in fact a mortgage, the grantee is clearly within ithe definition of a “redemptioner” under Rev. Code 1919, Sec. 2887, and therefore entitled to redeem from the purchaser at the mortgage sale, or redemptioner thereunder, and is not as such trustee the successor of the mortgagor.</p>

Action by the Whetstone Valley Realty Company against Julius Fenner and others. Judgment for the defendants for less •amount than demanded, and they appeal. (i) To point one of the opinion, Appellants cited, 30 Cyc. 47; Citizens Bank v. Corking, 9 S. D. 6x6; Dewey v. Komar, 21 S'. D. 117, 120; Coffin v. Smith, 26 S. D. 538.

Mandamus by Michael Stavig, on behalf of himself and other citizens similarly situated, against W. N. Van Camp, as Commissioner of Insurance, and Commissioner of Hail Insurance of thei State of South Dakota. (i) To point one of the opinion, Defendant cited;: Merrill on Mandamus, Sec. 75; 19 Am. & Eng.

John T. Mddin, Judge. Action by M. P. Juel and another against Charles L. Kundert an-di others. From- an order overruling dem-urrer to- the complaint, defendants appeal. (x) To point one of the opinion, Appellant cited: King v. Whitely, 10 Paige Ch. N. Y. 465; Frye v. Ausmen et al-, 29 S. D. .30; Vrooman v. Turner, 69 N. Y. 280; Hicks v. Hamilton (Mo.), 46 S. W.- 432; Norwood v. De Llart, 30 N. J. Eq. 412; Morris v. Mix (Kan.), 46 Pac. 58.

Appea-l from- 'Circuit Court, Brown 'County; Hon. Frank Anderson, Judge. Action -by W. I. Er-win and another, co-partners, against Allen C. Eakin. There was judgment for plaintiffs, and defendant appeals therefromi and from an order denying a new trial.

<p>Set-off .and Counterclaim — Bills and Notes — Pleading—Counterclaim Only Available as Joint Defense at Time of Transfer of NonNegotiable Note Not Available Thereafter As Individual Defense.</p> <p>Where defendant and another had purchased a garage com•pany, defendant giving his note as part consideration to one of the sellers, who transferred it by indorsement to plaintiff when past due, and therefore under Rev. Code 1919, Sections 742 and 1762, subject to all existing equities and plaintiff sued to recover the balance,'and defendant, who, after the beginning of suit, bad become the sole owner of the garage business, interposed a counterclaim because of a breach in the agreement iof sale, held, that the mutual rights of ithe parties where fixed by the individual defenses which defendant had against the note at the time it was purchased, and since at that time the defense set up in the counterclaim was not available because it was a joint- defense under section 725, and not an individual one, a denial of relief on the counterclaim was proper.</p>

W. F. Eddy, Judge. Action by W. J. Clark against 'Carl J. Gustafson. From judgment for plaintiff, and from order 'denying a new trial, defendant appeals.

<p>Appeal from 'Circuit Court, Faulk County; Hon. J. H. Bot-tum, Judge.</p> <p>Action by Williami L,erew and others against Cresbardi Independent Consolidated School District No. 2 of Faulk County and. others, to restrain a tax levy. Judgment for defendants, a new trial denied, and plaintiffs appeal.</p> <p>(1) To point one of the opinion, Appellant cited: Viland' v. Board of Education, 37 S. D'. 412, 158 N. W. 906.</p> <p>(2) To point two, Respondent cited: Clark v. Beadle County, 42 S. D. 146; Holter v. W'agner, 32 S. D. 137; C. M. & St. P. Ry. Co. v. Sioux Falls, 28 S. D-. 471; Barber Asphalt Co. v.. Plamilton (Wash.), 141 Pac. 199; Standard Fire Ins. Co. v. Fish-back (Wash.), 149 Pac. 945; Francis Schuman (Ore.), 145 Pac. 688; State ex rel v. Board of Commissioners (N. M.), 163 Pac. 1082; Wiebke v. Ft. Wayne (Ind.), 115 N. E. 355; Crise v. Slagle (Md.) 99 Atl. 669; State ex rel v. Adset (Mo.), 193 S. W. 850.</p> <p>(4) To point four, Respondent cited: Riggs Land Co. v. Motley, 24 S. D. 499; Lyman County v. Board, 14 S. D. 342;. Osterhoudt v. Board, 98 N. Y. 239; Hoppock v. Chambers (Mich.), 56 N. W. 86; Minnesota Securities Co., 184 U. S. 199; Garzot v. De Rubis," 209. U. S. 283.</p>

Frank Anderson, Judge. J. W. Mosher was convicted of receiving stolen property, and he appeals from the judgment and order denying new trial. (4) and (5) To points four and five of the opinion, Appellant cited: State v. Phillips, r8 S. D. 1, 98 N. W. 171; (Cohn v. People, 64 N. E. 306, 197 111. 482; 17 R. C. L., Sec. 89, p. 84; Bishop New Criminal Law,, Par. 1140; 21 Wharton Crim.

John T. Mboin, Judge. Action by the 'State on the relation of Anna O. Kleppe, against Earnest Steensland. Judgment for plaintiff, and defendant appeals. (1) To point, one of the opinion, Appellant cited': Lewis v. Pa. Railroad C’o., 2201 Pa. 317, 18 L. R. A. (N. S.) 279; Phillip v. Heraty, 11 N. W. 93, 147 Mich. 473; Quinn v. R. Y. Co., 124 N. W. 653.

<p>Jury — Challenges—Bias—Trial—Talesman—No Challenge For Implied Bias for Prior Service on Jury by Persons Not Galled as Talesman.</p> <p>It is not a ground of challenge under Rev. Code 1919, Seo. 4857, subd. 8, that the persons' challenged have served as jurors within ifcwo years; it is only where t'hey have served as jurors, called as talesmen, within two, years, that the cause for challenge for implied bias exists.</p>

John T. Medin, Judge. Suit by Frank E. Ohaddock and another, executors of the last ‘ will and testament of Martha K. Hannon, deceased, against the American Home Baptist Home Missions Society impleaded with the Freedman’s Aid & Missionary Society, and others, to determine the identity of the beneficiary named in the will of deceased. From an adverse decree, the American Baptist Home Mission Society appeals.

Frank Anderson and Hon. B. A. Walton, Judges. Action by August F. Karlsson, as administrator of the estate of Lars B. Odland, deceased, against Gudmund Odland. Judgment for plaintiff, and defendant appeals. (3) To point three of the opinion, Respondent cited: Stewart v. Tomlinson (S. D.), 112 N. W. 849; Stenson et al v. Elfmann et al (S'.

Warter G. Miser, Judge. Maurice Keli'her was convicted of assault and battery with a sharp and dangerous weapon with intend to- do' bodily 'harm, and he appeals.

B. A. Walton, Judge. Action by the Deere & Webber Company against Edward Britzius and others. Judgment for plaintiff, a new trial was. denied, and defendants appeal.

Walter G. Miser, Judge. Proceeding under the Workmen’s 'Compensation Act by Eva Wakefield' for the death of Hiram E. Wakefield, opposed by the Warren-Lamb Lumber 'Company, employer, in which Ida M. Wakefield intervened. From' a judgment of the circuit court confirming an award' to the intervener, plaintiff appeals.

Alva E. Taylor, Judge. Attachment proceedings by the Merchants’ Bank, of Redfield' against A. I. Gillespie. From an order refusing to dissolve the attachment, defendant appeals. Appellant cited: State Bank v. Karlen et al, 44 S. D. 82. Respondent cited: Noyes et al v. Lane, 1 S. D„ 125, 45 N. W. 327; Hornick 'Drug Co. v. Lane, 1 S. D. 45; Lindquist v. Johnson et al, 12 S'. P. 486, 81 N. W. 900; Peck v. Toland, 27 S. D. 406, 131 N. W. 402.

Alva E. Taylor, Judge. Action by James P. Jones against Sam J. Tschetter. Judgment for plaintiff, and defendant appeals from' the judgment and from order denying motion for a new trial. Appellant cited: Prichard v. Mulhall, 103 N. W..774, 4 Ann. Cas. 789; Dickson v. Turner, 149 111. App. 394, 39 'Cyc. 1981; Ink v. Rohrig, 23 S>.

<p>Appeal from 'Circuit Court, Hamlin County; Hon. W. N. SkinnEr, Judge.</p> <p>On motion for rehearing.</p> <p>Appellants cited: 19 Encyclopedia of Law, Second E:d., 12; Ocean National Bank v. Olcutt, 46 N. W. 12; Conrade v. Atlantic Ins. Co., I Peters1 385, 7 L. ed. 189; 15 R. C. L. 793; 2 Freeman, Judgments, 4th ed., 620; 15 R. C. L. 806; Atwater v. Manchester Savings Bank, 48 N. W. 187.</p>

Appeal' from 'Circuit Court, Lyman County; Ho:n. N. Dr Burch, Judge. Election contest 'by Albert Mueller against Carl J. Holier and1 others, as County ■Commissioners of. Lyman County. From a judgment for contestees and from) an'order denying a new trial, contestant appeals. (1) To point one of the opinion, Respondent cited: State v. Roper, 46 Neb. 724, 61 N. W. 753; State v. Stakke, 22 S. D. 228; Treat v. Dejean, 22 S. D. 505; State v. Blaisdell (N. D.), 119 Ni.

John T. Medin, Judge. Proceedings by Beret Peterson against Jacob P. Imbsen and wife, to contest the will of Exiger Margrete Engelsen. Judgment • for contestant, and proponents appeal.

Appear'from Circuit Court, Turner County; Hon. L. L. Fleecer, Judge. Proceeding by the State of South Dakota, on the relation of Neva Larson, against Leon Benson. From an order vacating a ■second verdict for plaintiff and granting a new trial, plaintiff appeals. Appellant cited!: State v. Stark, 129 N. W. 3131; Johnson v. State, r 13 N. W. 674; Esch v. Graue, 101 N. W. 978; Brantley v. State, 65 So. 678, 11 Ala. Ajpp. 144; Land v. State, 105 S. W. 90, 84 Axle.. 199, 120 Am.

W. N. Skinner, Judge. Action' 'by Cari H. Norberg against B. N. Hagna, the City of Watertown, and others. From orders sustaining demurrers, plaintiff separately appeals. (2) to (4) To points two to four of the opinion, Appellant cited1: 29 Cyc. 1441; Overm-yer v. Barnett et al, 123 N. 'E. 654! Rising v. Dickinson, 18 'N. D. 478, 121 N. W. 616, 13-8 A. S. R. 779, 20 Ann.

Walter G. Miser, Judge. Action by the Farmers’ Loan & Trust [Company against Ernest P. De M'oulin. From- judgment for plaintiff and an order 'denying a new trial, defendant appeals. (1) To point one of the opinion, Respondent cited: 6 Eftc. PI. & Pr. 359; Sogn v. Keotzle, 38 S. D. 99; Sohwitz v. Thomas, 38 S. D. 180; Piemen v. Minnehaha Co., 26 S. D. 462.

J. H. Bot-tum, Judge. E. A'. Burns was convicted of transporting .intoxicating liquor, and he appeals. '(i) To point one of the opinion, Appellant cited: Rev. Code 1919, Sec. 10303; 23 Cyc. 174; 'Strong v. State (Ark.), 22 L. R. A. (N. S.) 560; Lott v. U. S., 205 Fed. 28, 46 L. R. A. (N. S.) 409; State v. Humphrey, 176 N. W. 39, 42 S. D>. 5x2; State of Iowa v. Rhodes, 24 L. R. A*. 245.

W. N. Skinnpr, Judge. Action by Hans O'lson and others against the City of Water-town, the C. H. Atkinson Paving Company, and others. From orders overruling demurrers to the complaint, the named defendants separately appeal. (i) To point one of the opinion; Appellants' cited: Haggert v.'Alton, 126 N. W. 158; Alstad v. Sim,'109'N. W. 66.

John T. M®din, Judge. Nick J. Kaufman and William Kaufman were convicted of the crime of attempting to steal an automobile, and they appeal. (1) To point one of the opinion, Respondent cited: State v. Stone, 30 S. D. 23; State v. Guffey, 39 S. D. 84; State v. Wright, 20 N. D. 216; State v. Sullivan (Ida.), 199 Pac. 647; People v. Daniels, 105 Cal. 262. (2) To point two, Appellant cited': 22 R. C. L. 104; Bailey v. People, 54 Colo. 337, Ann.

-, Walter G. ■Miser, Judge. Action by Harry Clarke against George Pelter. Judgment for plaintiff. From an order granting a new trial, plaintiff appeals. (x) To point one of the opinion, Appellant cited: Rev. Code 19119, Sec. 2557; Parrott v. City of Hot Springs, 9 S. D. 202; Taxinger v. Minneapolis Ry. Co., 23 S. D. 90; Bear River v. Bales, 24 Ga. 3,54; Vol. 3, Kerr’s Cyc.

<p>1. BaR. — Criminal Law — .Principal and. Surety — Acts of . Sheriff and of Sureties on Bail Bond Held Substantial Compliance with Statute, So as to Release Sureties.</p> <p>Assuming that defendants, by reason of L.’s release from custody, were liable as sureties on L.’s bail bond, notwithstanding Rev. Code 1919, Secs. 4598, 4599, were not fully complied with, they were released from liability, under section 46.01, when L. was rearrested on another charge and placed in custody of the same sheriff, who, »in being informed by the sureties of their desire to surrender L., promised to take all necessary steps.</p> <p>2. Bail — Sheriffs—Criminal Law — Failure of Sheriff to Take Prisoner to Court or Magistrate on Surrender, Held Not Chargeable Against Sureties.</p> <p>Failure of the sheriff to- take a prisoner to the court or magistrate having jurisdiction, on the surrender of the prisoner by his sureties, as provided in Rev. -Code 1919, Sec. 4601, held not chargeable against the sureties.'</p>

Walter G. Miser, Judge. J. W. Shevlin was convicted of assault, and, from the judgment of conviction and order denying a new trial, he appeals.

<p>1. Evidence — Value—Common . Knowledge that Proximity to City Enhances Value of Farm.</p> <p>It is a matter of common knowledge that close proximity to a town or city greatly enhances the desirability of a farm.</p> <p>2. Appeal and Error — Findings—Findings and Decision in Conflict with Law Not Sustained.</p> <p>The rule that the circuit court’s findings and decision must be sustained- unless there is a clear preponderance of evidence against them is inapplicable where the decision is in direct conflict with the law as laid down by the Supreme Court.</p> <p>3. Municipal Corporations — Exclusion of Territory — Owner Held Not Entitled to Exclusion of Farm from Corporate Limits.</p> <p>The owner of a farm within a few moments’ walk of the churches, schools, courthouse, stores, etc., of a city, and receiving material benefits from the public utilities, streets, business, and municipal buildings thereof, held not entitled to exclusion of the land from the corporate limits merely because of burdensome tax.</p> <p>Dillon, J., dissenting.</p>

<p>Appeal from Circuit Court, Deuel County; Hon. W. N. Skinner, Judge.</p>

-Circuit Court, Tripp County; Hon. N. D. Burch, Judge. Action by Carl M. Nelson against Charles Caspary and E. H. Simons, to set aside a mortgage foreclosure. Judgment for plaintiff, and defendants appeal. Appellant cited: Rfev.

Alva E. Taylor, Judge. Action for divorce by Nelle K. Mower against Bert E. Mower. A decree was rendered for the plaintiff, and from an order allowing the plaintiff a certain sum for counsel fees and suit money to enable her to defend against defendant’s application for an adjudication that he had complied with the portion of the decree relating to support of a daughter, the defendant appeals.