Volume 47 — Utah Reports

F. C. Loorbouroiv, Judge. A. C. Larsen was convicted in the city court for violating a municipal ordinance, and appealed to the District Court, where he was again convicted. He appeals.

<p>Appeal from District Court, Third District; Hon. M. L. Ritchie, Judge.</p> <p>Action by H. C. Fisher against Elizabeth M. Adamson and D. W. Adamson.</p> <p>Judgment for plaintiff. Defendants appeal.</p>

<p>Appeal from District Court, Fourth District; Hon. A. B. ' Morgan, Judge.</p> <p>Bert Baum was convicted of burglary in the second degree.</p> <p>He appeals.</p>

<p>Dowek — Award of Title in Fee — Decree—Sufficiency. Where a widow entitled under Comp. Laws 1876, Sec. 703, to a life interest in one-fourth of her husband’s estate, agreed to receive certain property in lieu of that interest, and the agreement was approved by the commissioner appointed to malte partition, and his report was confirmed by the decree of distribution, the widow took the property in fee, and her grantee could hold it free from the claims of other heirs.</p>

N. J. Harris, Judge. Suit by Joe Dinkelspeel against Josephine O’Day-to foreclose a mortgage. Judgment for plaintiff. Defendant appeals.

<p>Appeal and Error — Review—Finding. A finding based on conflicting evidence will be affirmed on appeal.</p>

<p>1. Appeal and Error — Rules oe Decision- — “Law oe the Case.” A decision on appeal constitutes the “law of the case” on a new trial wherein the facts are the same, -and is binding upon the trial court, the parties, and the Supreme Court on a subsequent appeal.1 (Page 27.)</p> <p>2. Master and Servant — Injuries to Servant — -Fellow Servants —Assumption oe Risk. A railway 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 27.)</p> <p>3. Death — Damages—Allowance oe Interest. It is improper to-allow interest as part of a recovery in an action for wrongful death for the period between the injury and the rendition of the verdict. (Page 28.)</p> <p>4. Appeal and Error — Review—Presumptions—Instructions. In an action for wrongful death an instruction, given at plaintiff’s request, which is equivocal as to whether it directed or permitted the allowance of interest from the date of the injury to the rendition of the verdict, will be presumed to have been prejudicial to the defendant, in the absence of a contrary showing and requires reversal. (Page 29.)</p> <p>Frick, J., dissenting in part..</p> <p>On Application for Rehearing.</p> <p>5. Trial — Verdict—Explanation oe Verdict. A verdict cannot be explained or controlled by affidavits -of jurors that they did not add interest to the amount of recovery; such interest not being properly allowable. (Page 31.)</p>

<p>Appeal from District Court, Fourth District; Hon. A. B.</p> <p>Morgan, Judge.</p> <p>Action by Bell Brown against D. R. Wightman, administrator of Valentine C. Wightman, deceased.</p> <p>Judgment sustaining a general demurrer to the complaint. Plaintiff appeals.</p>

<p>1. Nuisance — Public Nuisances- — Remedies of Private Persons. A private person cannot sue to abate a public nuisance, unless he suffers some special or peculiar injury not common to the rest of the community. (Page 42.)</p> <p>2. - Nuisance — Public Nuisances — Remedies of Private Persons— ‘‘Substantial Injury.” A private person, suffering a special injury from a public nuisance, can sue for damages and for the ' abatement of the nuisance, and to permit him to sue the extent of the injury is not material, so long as he suffers some special substantial injury, which is injury of a substantial character. (Page 42.)</p> <p>3. Municipal Corporations — Streets—“Public Nuisance” — Abatement at Suit of Private Person. Though an encroachment on a public street is a “public nuisance,” it will not always be abated at the suit of a private person sustaining special damages; but the court must determine whether it is equitable to compel an abatement, or permit the encroachment to remain and award damages only. (Page 43.)</p> <p>4. Municipal Corporations — Streets—Public Nuisances — Abatement at Suit of Private Person. Plaintiff, owning a business building abutting on a street, knew that defendant proposed to erect an adjacent building, which, when completed, would encroach on the street; but he made no complaint until after the building was erected. To remove the encroachment would cost at least $15,000, and the building would not then answer the purposes for which it was designed. The depreciation to plaintiff’s building in consequence of the encroachment could be ascertained and compensated. Held, that the court would not, at the suit of plaintiff, compel the removal of the encroachment as a public nuisance causing special injury to him, but would limit-him. to a recovery of damages. (Page 45.)</p> <p>5. Municipal' Corporations — Streets—Public Nuisance — Injury to Private Individual — Measure of Damages. Where an encroachment on a public street is a public nuisance, causing impairment of an established business, the impairment is an element of damage, which may be proved as a distinct injury ' caused by the nuisance, and recoverable by the owner of the business. (Page 49.)</p> <p>6. Municipal Corporations — Streets—Public Nuisance — Injury to Private Individual — Measure of Damages. Where the court at the suit of a private individual for the abatement of an encroachment on a street, constituting a public nuisance, and for damages, refused to abate the nuisance, plaintiff could recover all the damages sustained, past and prospective: and where the encroachment lessened the rental value of the business property Of plaintiff, he could recover in the action the full depreciation of the value, and recover such a sum as, if invested at the le¿al rate of interest, would produce the amount of the lessened rental value. (Page 50.)</p> <p>7. Municipal Corporations — Public Nuisance — Damages—Abatement. Defendant, who by encroaching on a public street creates a public nuisance to the special injury of plaintiff, may elect to remove the encroachment, instead of paying the damages caused by the nuisance, and the election may be made at any time before trial of an action to remove the encroachment and for damages; and where the encroachment is removed, the damage recoverable is the amount of the depreciation of the value of the use of the property up to the time of actual removal. (Page 50.)</p> <p>8. Municipal Cobporations — Streets — Public Nuisance — Damages. An owner of a business building, who maintained an awning about 8 feet from the ground and projecting into the street, could not recover damages because the adjacent owner so constructed his building that the cornice thereof projected out into the street to an extent less than the projection of the awning, where the cornice' was elevated above the street some thirty-five or forty feet. (Page 52.)</p> <p>9. Adjoining Landowners — Encroachments—Remedies. An owner who without right extended a part of his building over the building of the adjacent owner, must at the suit of the latter remove the encroachment, and he cannot limit the adjacent owner to a recovery of damages only. (Page 52.)</p> <p>10. Municipal Corporations — Encroachment on Streets — Reasonable Encroachments. An owner of property abutting on a street may not project his building into the street for ornamental or any other purpose without being legally liable to any other owner for any damage caused by the projection, though the Legislature, or a municipality, when duly .authorized by the Legislature, may authorize encroachment on public streets to a reasonable extent, subject to the right of any aggrieved person to recover damages sustained. (Page 53.)</p> <p>11. Injunction — Relief—Damages. Though, under the Constitution, a right of action exists for an injury to private property, the court, where both legal and equitable remedies are given, may in proper cases limit the complaining party to his legal remedy, especially where the injury may be fully compensated by damages, and where to do otherwise would inflict great and unnecessary expense on the wrong-doer. (Page 53.)</p>

<p>1. Waters and Water Courses — Irrigation Districts — Establishment — Validity—Right to Action. Laws 1909, c. 74, Sec. 14, declaring that an irrigation district which has not been ques- ' tioned by quo warranto within a year shall be deemed a legal district, and its lawful organization shall not thereafter be questioned, sets at rest matters pertaining to the organization of a district when not questioned by quo warranto within the specified time, but does not affect substantive rights arising under the proviso in section 1, declaring that, where ditches have been constructed before the act, the ditches and lands watered thereby shall be exempt from the operation of the act, except that a district may be formed to purchase or lease the ditches; and an owner may sue to enjoin the collection of a special tax on his property, assessed by the irrigation district, on the theory that the same is exempt within the proviso, though the validity of the district has not been questioned by quo warranto within the statutory time. (Page 58.)</p> <p>2. Waters and Water Courses — Irrigation Districts — Establishment — Validity—Right to Action. An action to enjoin the collection of a special irrigation district tax, on the ground that the property is exempt under Laws 1909, c. 74, Sec. 1, is not an action assailing the regularity of the organization or legal existence of the district, within Sec. 14, declaring that the legality of a district shall not be questioned, except by proceedings in quo warranto brought within a specified time.1 (Page 58.)</p> <p>3. Waters and Water Courses — Irrigation Districts — Assessments — Finding of Facts — Conclusions of Law. Whether land within an irrigation district is exempt from a special tax assessed by the district within the proviso of laws 1909, c. 74, Sec. 1, is a question of mixed law and fact, and the court must find the facts and make conclusions of law thereon, and determination of the matter on motion for nonsuit is reversible error. (Page 60.)</p> <p>4. Waters and Water Courses — Irrigation Districts — Validity— Right to Assail — Statutes. Laws 1909, c. 74, Sec. 14, providing that an irrigation district, not questioned by quo warranto brought within a specified time, shall be deemed, legally organized, construed to limit the right to assail the regularity of formation of a district in quo warranto, is constitutional, and does not deprive a person whose rights are affected by a special tax assessed by a district from seeking redress in the courts, (page 60.)</p> <p>5. Waters and Water Courses — Irrigation Districts — Suit to Enjoin Collection ojt Special Tax — Pleadings—Evidence. Under a complaint seeking to enjoin the collection of a special irrigation district tax, without-pointing out any particular act or .irregularity sufficient of itself to invalidate the tax, evidence that the tax was illegal, because irregularly assessed, was properly excluded. (Page 61.) . ■</p>

A. B. Morgan, Judge. Application by Lacy H. Farnsworth and Emma J. Turner for the removal of Ruth Hatch as executrix of the last will and testament of Abram Hatch, deceased. Judgment for defendant. Plaintiffs appeal. ■

<p>Appeal from District Court, Third District; Hon. F. C. Loofbourow, Judge.</p> <p>Action for injunction by George C. "Whitmore against W. D. Candland and others, composing the State Board of Land Commissioners; A. Delbert Van Wagoner intervening.</p> <p>Adverse Judgment. Defendants and intervener appeal.</p>

<p>Appeal from District Court, Third District; Hon. M. L. Ritchie, Judge.</p> <p>Action by T. F. Thomas, doing business as the Publishers of the Orpheum Theater Program, against the Clayton Piano Company.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

J. D. Gall, Judge. In the matter of the estate of Newell Bullen, deceased. Judgment fixing an inheritance tax on the property of the estate. State Treasurer appeals.

<p>1. Sai/es — Actions—Evidence. In an action for the purchase price of lumber sold, JielA there was substantial evidence that it was agreed defendant should receive a discount. (Page 106.)</p> <p>2.' Appeal and Ebeob — Review—Persons Entitled to Allege Error. In an action for the purchase price of lumber, where defendant set up a counterclaim which exceeded the amount demanded by plaintiff, plaintiff cannot, judgment having been rendered in defendant’s favor, but no recovery allowed, complain that the jury could not have believed defendant’s testimony, or they would have granted additional relief; the error being prejudicial only to defendant. (Page 107.)</p>

<p>1. Contracts — Mutuality, A contract declaring that in consideration of the exclusive purchase from plaintiff of all the macaroni that defendant should use plaintiff agreed to sell macaroni at wholesale prices and to refrain from selling to other retail dealers and private consumers is not had for want of mutuality; the two obligations being correlative. (Page 110.)</p> <p>2. Damages — “Penalty”—Construction. Where a contract requiring defendant to make all purchases of macaroni from plaintiff forbade plaintiff from selling to other retailers, and also declared that plaintiff should at all times furnish defendant with such quantities of macaroni as might be desired and in case of default to pay $500 as damages, such provision is a penalty, and not liquidated damages; for, where an agreement imposes several distinct duties or obligations of different degrees of importance, and the same sum is named as damages for breach of either indifferently, the sum is to be regarded as a penalty. (Page 111.)</p> <p>3. Damages — Stipulations por Penalty. A stipulation for penalty in case of breach will not be enforced, and the party not in default will only be allowed to recover his actual damages. (Page 111.)</p>

Appeal -from District Court, Third District; Hon. C. W. Morse,, Judge. Action by Alexander Stott and others against Salt Lake City to set aside a special tax levy and to enjoin its collection. Judgment for plaintiffs. Defendant appeals. APPELLANT’S POINTS. A defect in proceedings to defeat the lien of a tax must be a jurisdictional defect in the absolute sense, that is one that cannot be dispensed with by the Legislature.

<p>1. Evidence — Statements oe Employee — Condition oe Appliances. In an action for the' death of plaintiff’s husband, an electrical machinist in charge of one of defendant railway’s plants, who was killed by contact with a high-power wire, the court improperly excluded evidence of what the night watchman at the plant had told decedent as to the condition of the electrical appliances when he came to work in the morning, since the plain-tie had the legal right to prove such information as bearing upon decedent’s negligence in attempting to clean portions of the apparatus; the testimony not being, incompetent on the ground that the defendant was not bound by the statements of its servant, the night watchman, when the latter was not on duty, since, where the question is whether a party has acted prudently, wisely, or in good faith, the information on which he acted, true or false, is original and material evidence, and not hearsay. (Page .)</p> <p>2. Master and Servant — Injuries to Servant — Actions—Questions op Pact. In an action for death of an electrical mechanic in charge of one of defendant’s power plants, by contact with a high-tension wire, whether deceased, on coming on duty the morning of the accident, was informed that the wire was dead, or whether he had a right to assume that the wire was dead, and whether his conduct in attempting to clean it was excusable, were questions of fact for the jury. (Page .)</p> <p>3. Trial — Motion eor Nonsuit — Admission. "Where defendant moves for a nonsuit, he admits all facts directly proved, and every inference deducible from any facts proved. (Page.)</p> <p>4. Appeal and Error — Haemless Error — Exclusion op Evidence Latee Admitted. Where questions erroneously excluded were-later allowed to be answered in some form or other, the prior rulings were harmless. (Page .)</p> <p>5. Master and Servant — Injuries to Servant — Evidence—Defective Character of Appliances. In an action for the death of an electrical engineer by contact with a high-tension wire, plaintiff, within the limits of her complaint, could show in what particulars, if any, the appliances of the plant were defective, deceptive, or dangerous, and was also entitled to have her experts fully explain to the jury why and wherein the plant was dangerous. (Page .)</p> <p>6. Appeal and Error — Appeal in Forma Pauperis — Statute. Where an appeal was taken in forma pauperis under Comp. Laws 1907, section 3305, providing that an appeal is taken by filing with the clerk in the trial court a notice of appeal and bond, but, where the appellant files an affidavit that, owing to his poverty, he is unable to bear the expenses of the appeal, no bond shall be required, respondent could not object that the pauper appellant filed a typewritten instead of a printed abstract, since it would be contrary both to the Constitution and statutes to prevent an impecunious party from having an appeal heard by insisting upon a printed abstract.1 (Page .)</p>

<p>1. Courts- — Transitory Actions — Trespass to Personalty. Where defendant’s cattle entered upon plaintiff’s land and ate plaintiff’s wheat, which was in stacks, an action for damages, wherein no damages for injuries to the realty were claimed, is transitory and need not he brought in the state where the land was located. (Page 146.)</p> <p>2. Fences — Duty to Fence — Statute. Rev. Codes Idaho 1908, section 1266, declares that when two or more persons own adjoining land which is inclosed by one fence, and it becomes necessary that a partition fence be made for the protection of the rights of one party, the others, when notified, must cause to be erected one-half of such partition fence, or it may be erected by the party giving the notice, and one-half of the cost recovered. Section 1267 declares that each adjoining landowner, unless both otherwise agree, shall repair one-half the fence; while section 1268 declares that when one of such adjoining proprietors has allowed his land to lie uninelosed, and afterwards incloses it, he owes and is indebted to the other owner for one-half of the value of any division fence owned by the other and used in forming such inclosure. Under the Idaho statutes cattle are allowed to run at large. Held, that the statute, while modifying the common-law rules as to lands not inclosed from the highways, did not modify the common-law rule as to a proprietor whose land was inclosed from the highway, and in such case each owner is hound at his peril to keep his cattle on his own premises. (Page 146.)</p>

<p>Judgment — Relief in Equity — Perjured Testimony. Plaintiff sued his bank for an accounting, was debited with an item of $323.22 on the alleged perjured testimony of the president of the bank, and later sued to set aside the judgment and to recover the amount, with interest. Held that, although the prior judgment was founded upon perjured testimony, nevertheless, since plaintiff had had his day in court upon the issue of whether his account had been correctly charged with the item, equity was without power to grant relief where he knew in advance that testimony of that character would be introduced.</p>

<p>Appeal from District Court, Third District; Hon. Geo. G. Armstrong, Judge.</p> <p>Action by Frank Laub against the San Pedro,- Los Angeles -& Salt Lake Railroad Company, a corporation.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from District Court, Third District; Hon. F. C. Loofbourow, Judge.</p> <p>Action by Additon Cain against S. R. Stewart and wife.</p> <p>Judgment for plaintiff. Defendants appeal.</p>

<p>Appeal from District Court, Third District; Hon. T. D. Lewis, Judge.</p> <p>Action by the Utah Copper Company against Victor Eck-man.</p> <p>Judgment dismissing the complaint. Plaintiff appeals.</p>

District; Hon. Geo. G. Armstrong, Judge. Action by Rufus K. Cobb, as sole surviving partner of the firm of R. K. Cobb & Co., against Emanuel A. Hartenstein. Judgment for plaintiff. Defendant appeals. APPELLANT’S POINTS.

<p>Appeal from District Court, Third District; Hon. F. G. Loofbourow, Judge.</p> <p>Action by Schwab Safe & Lock Company against O. C. Snow.</p> <p>Judgment for defendant on his counterclaim. Plaintiff appeals.</p>

<p>Trial — By Juey-1 — Waiver of Trial by Court — Equity Case. The case having, up to rendition of verdict, disposing of the whole issue, been treated by the parties and court as one triable by jury, one of the parties having merely suggested to the judge in chambers, during an intermission, that he thought the case equitable, and the verdict advisory merely, the court was required to render judgment on the verdict, and could not make findings at variance with the verdict, and thereon render judgment.1</p>

<p>Appeal from District Court, First District; Hon. J. D. Gall, Judge.</p> <p>Action by Thomas H. Blackburn, as administrator of John B. McMaster, deceased, against Henry C. Baker.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

G. W. Morse, Judge. Action by Polly A. Boyd against Dora B. Topham. Judgment for plaintiff. Defendant appeals. APPELLANT’S POINTS. Lease cannot be enforced if made for the purpose of violating law. And it is so whether the illegality appear upon the face of the lease, or is proved by evidence aliunde. (Dough-erty v. Seymour (Colo.), 26 Pac. 823; State v. Wilson (Kan.), 84 Pae. 737, 117 Amer.

<p>1. Bills and Notes — Action—Patches. While at common law a holder of a bill could not maintain and join an action against the maker and the acceptor, such rule has been modified, so that the holder of a check can maintain an action against the maker and the drawee, although only one is liable. (Page 237.)</p> <p>2. Bills and Notes — Liability of Indoesees — Notice of Dishonor. Under Comp. Laws 1907, section 16'65x, providing that notice of dishonor to the drawer of a negotiable instrument is not required where he has countermanded payment, an allegation in a suit against the maker of a check sufficiently set out that the payment had been countermanded, where the check was set forth, with the indorsement across the face, “Pyt. stopped.” (Page 238.)</p>

Geo. G. Armstrong, Judge. Proceeding by the West Temple Terrace Company to determine its claim to improvements on realty as occupying claimant of real estate belonging to J. L. Doyle. Judgment denying compensation. The company appeals.

<p>1. Appeal and Error — Review—Weight of Evidence — Constitutional Provision. Under the Constitution the Supreme Court cannot pass upon the weight of the evidence in law cases, regardless of whether it is presented to the trial court orally or in documentary form. (Page 249.)</p> <p>2. Payment — Burden of Proof. Payment is an affirmative defense, and the burden of proving it rests on the party pleading it. (Page 250.)</p> <p>3. Appeal and Error — Harmless Error — Findings and Conclusions — Signing in Another District. A case was tried in a district court in a county within the Third judicial district by a judge of the First judicial district called under the statute, who,- after hearing the evidence, indicated what his findings and judgment would be, and, before they could be prepared, returned to his home district and there signed the findings and conclusions which had been mailed to him, and returned them to the Third district, and upon the questioning 0f his authority to sign findings out of the district where the case was tried, came to that district and signed and filed new findings and conclusions and entered a judgment in conformity with the prior judgment, and filed such findings before appeal and while the case was pending in the district court. Held, that error, if any, in signing findings, etc., out of the district in which the case was tried was immaterial, in view of the subsequent action of the judge. (Page 250.)</p>

<p>1. PLEADING — Amendment—Discketion of CouRT. In a shipper’s action to recover damages for the destruction of a carload of emigrant movables, including several horses, alleging that sparks from a helping locomotive, not having a sufficient spark arrester, fell upon and through the defective car and destroyed the contents by fire, the allowance of a trial amendment, alleging that after the discovery of the fire the defendant and its servants did not use ordinary care in protecting the car, and negligently opened a door and permitted a wind to fan the smoldering fire into an uncontrollable flame, when it might, by ordinary skill, have been put out and have saved the property from destruction, was within the trial court’s sound discretion. (Page 256.)</p> <p>2. Carriers — Loss of Goods — Negligence—Burden of Proof. Such action was an action for negligence, in which the burden of proof was on the plaintiff. (Page 256.)</p> <p>3. Appeal and Error — Review-—-Findings of Jury — Weight of Evidence. Where the evidence in a shipper’s action for the loss of goods by fire negligently started by sparks from the engine contained some substantial evidence in support of every element of negligence alleged in the complaint, such negligence was for the jury, and the Supreme Court was concluded by their finding and precluded from weighing the evidence or passing upon the effect that should be given to any particular statement or kind of evidence produced at the trial. (Page 256.)</p> <p>4. Carriers — Carriage of Goods — Receipt—Limitation of Liability. Stipulations in a bill of lading given under Interstate Commerce Act Feb. 4, 1887, c. 104, section 20, 24 Stat. 386, as amended by Act June 29, 1906, c. 3591, section 7, 34 Stat. 593 (U. S. Comp. St. 1913, section 8592), requiring an interstate carrier, receiving property for transportation, to issue a receipt or bill of lading, and making it liable to the holder for any loss or injury to the property, limiting the value of horses shipped to $100 each, and the value of goods to ten dollars a hundredweight, were binding on the shipper.1 (Page 257.)</p> <p>5. Carriers — Receipt for Goods — Limitation of Liability — Shipper’s Inspection of Car — Negligence. Under such provision, a stipulation in a bill of lading of emigrant movables, including horses, that the shipper should inspect the cars in which the stock was to he transported and satisfy himself that th'ey were safe and in proper condition, and report to the carrier’s agent or employee any visible defect therein and demand necessary repairs before using it, and that the fact of his allowing his stock in the car should he an acceptance of its suitability, and that he thereby assumed all the risk, loss, or damage from any other cause than the willful negligence of the carrier, referred only to such defects as might in some way affect the safety or suitability of the car for transportation purposes, and not to defects which could only become dangerous or operative by reason of some subsequent negligence of the carrier; so that the shipper’s unreported notice of a defect in the door of the car and his agent’s unreported notice of a defect in the roof, through which sparks from a helper engine, placed too near the car, fell, causing a fire which destroyed its contents, did not charge the shipper with contributory negligence in the selection and use of the car. (Page 258.)</p> <p>6. CARRIERS-INJURY BY SPARKS FROM ENGINE-QUESTION FOR JURY —Negligence. In a shipper’s action for damages for the destruction of a carload of emigrant movables, including horses, by fire set by sparks from a helper engine placed nearer the car than the carrier’s rule permitted, and where there was evidence for defendant that the engine was equipped with a proper spark arrester, the question of its negligence was nevertheless for the jury.2 (Page -)</p> <p>7. Carriers — Carriage of Goods — Explosives—-Shipper’s Violation of Law. A shipper of a carload of emigrant movables, including horses, whose agent riding in the car to look after the horses, etc., carried a revolver and a shotgun, and placed some cartridges in the oven of one of the stoves, together with some loaded shells for the shotgun, did not thereby violate the law prohibiting the shipment of explosives and other dangerous articles, so as to defeat the shipper’s recovery for a destruction of the goods by fire started by sparks from defendant’s locomotive. (Page 264.)</p>

N. J. Harris, Judge. Action by Orenne Hogge, Administratrix, against the Salt Lake & Ogden Railway Company and others. Judgment for plaintiff for $5,000. Defendant named appeals. RESPONDENT’S POINTS.

<p>1. Municipal Coepoeations — Improvements—Notice. If the statute requires notice of intention to make the particular improvement to he published, such notice cannot he dispensed with.1 (Page 298.)</p> <p>2. Municipal Coepoeations — Public Improvements — Notice-—Sufficiency — “Estimate.” Comp. Laws 1907, section 273, requires the original notice of intention to state the estimated cost of the improvement. A notice giving the estimated cost of a sewer was published in 1906. After publication, but before the contract was let and before the special assessment was made and tax levied, the Legislature by Laws 1907, c. 127, added to the existing law an amendment providing that any levy of a 'special tax for special improvements shall not. be made until the cost of sueh improvement shall first have been ascertained by contract duly let to the lowest bidder after publication of notice, and the cost of the improvement shall not exceed to the property owner the amount of the contract. Comp. Laws 1907, section 274, declares that all special taxes to cover the cost of any public' improvement shall .be levied and assessed on all abutting realty to the extent of the benefits. After the amendment, but without publishing a new notice of intention, the city advertised for bids, and the lowest responsible bid was for an amount greatly in excess of the estimated cost. Before making the assessment, the city, as required by section 265, duly published notice to the taxpayers in which it named a time and place when and where any taxpayer who felt aggrieved could question the justness or validity of the assessment and levy of the tax. An abutting owner made no protest, and, the contract being let, the work was completed. Held, that, as an “estimate” is merely a proximate judgment or opinion, the city did not under the amendment to the statute ‘lose jurisdiction to levy an assessment in excess of the estimated cost of the improvement; there being no provision that the cost should not exceed the estimate and property holders being given an opportunity to object to the assessment.2 (Page 298.)</p> <p>3. Municipal Corporations — Assessments—Irregularities. Where a city had jurisdiction to levy an assessment and the proceedings were merely irregular, an abutting owner, who was benefited by the work, cannot, having allowed completion without objection, thereafter object to an assessment for the amount of the contract price. (Page 308.)</p> <p>4. Limitation oe Actions — Statute Applicable — Enjoining As<-sessment — “Suit to Quiet Title.” An action to enjoin an assessment levied on account of a municipal improvement is not, though the assessment was a lien, a “suit to quiet title,” as the abutting owner’s title was not questioned, and hence the action is governed by the four-year limitation prescribed by Comp. Laws 1907, §2883. (Page 308.)</p>

F. G. Loofbourow, Judge. Action by Emily J. Jackson against Lydia A. Haslam Dalin and others -and the Tracy Loan & Trust Company, a corporation, in which 0. ■ W. Moyle intervened. From the judgment, the first named defendants, appeal.

C. W. Morse, Judge. Action by Ross Ockey against the Bingham-New Haven Copper & Gold Mining Company, a corporation. Judgment for defendant. Plaintiff appeals. STATEMENT OF FACTS.

F. G. Loofbourow, Judge. Action by the H. T. & C. Company against J. W. White-house and wife. Judgment for plaintiff. Defendants appeal. APPELLANTS’ POINTS. If a contract is to be rescinded by either party it must be done in its entirety, and cannot be done in part.

F. C. Loofbourow, Judge. Action by Charles Tyng against the Constant-Loraine Investment Company. Judgment for plaintiff. Defendant appeals. APPELLANT’S POINTS. Notice of facts and circumstances sufficient to put a purchaser of land upon inquiry, is notice of all the facts that an honest and diligent inquiry would disclose.

A. H. Christenson, Judge. Action by the Mountain Lake Mining Company against the ■Midway Irrigation Company and others. Judgment for plaintiff. Defendants appeal. STATEMENT OF FACTS. Plaintiff brought this action against the Midway Irrigation Company, a corporation, and thirty-six other parties, to quiet title to certain water flowing from a tunnel constructed by it and its predecessor in interest, known as the Mountain Lake tunnel.

Action by the Mountain Lake Mining Company against the Midway Irrigation Company, William Bonner, and others. Judgment for plaintiff. Defendants appeal. Judgment was reversed with directions to enter judgment for defendants. On plaintiff’s motion to amend the judgment entered in favor of defendants.

<p>1. Taxation — Appobtionment by State Board op Equalization— Cobbection. Comp. Laws 1907, Section 2561, as amended by Laws 1909, c. 63, provides, relative to the apportionment- of the property and franchises of railroad and other companies operating in more than one county for purposes of taxation, that the state board of equalization shall before the fourth Monday in June transmit to the county auditor of each county a statement showing the property assessed and its assessed, value, as fixed and apportioned to such county. Section 2562 provides that on the second Monday in August the board of county commissioners of each county must enter an order stating and declaring the property assessed by the state board, and that such board shall apportion the assessed valuation of the property and franchises ■ of railroad companies so apportioned to the county to the several city, town, or other lesser taxing districts in the county. Section 2588, as amended by Laws 1909, ,c. 63, requires the state, board, before the last Monday in July, to determine the rate of state tax, and Section 2593, as amended by Laws 1915, c. Ill, requires the board of county commissioners of each county to fix the rate of county taxes between the last Monday in July and the second Monday in August. Held that,' where the state board by mistake apportioned to a county railroad property which it afterwards became satisfied was located in and should have been apportioned to a different county, it had jurisdiction, at any time before the second Monday in August, to correct the error and make the apportionment to the proper county.1 (Page 382.)</p> <p>2. Taxation — Appobtionment by State Board op Equalization— Review by Cebti'obabi. Where, owing to the topography of the country and the somewhat uncertain legislative description of the boundary line between R. and S. counties, the precise location of such line was doubtful, its location was a question of fact, and, where the state board of equalization acted in good faith and in accordance with its best judgment in determining where the boundary line was located and in apportioning railroad property .in S. county for taxation which it was claimed was situated in R. county, it did not exceed its jurisdiction so as to make its acts subject to a writ of certiorari, even though it was afterwards determined by a higher authority that the property was in R. county. (Page 385.)</p> <p>3. TAXATION-APPORTIONMENT BY STATE BOARD OR EQUALIZATION-Conclusiveness. The state board of equalization, in apportioning railroad property, as to the location of the boundary between adjoining counties, is not conclusive with regard to any succeeding fiscal or taxing year. (Page 386.)</p> <p>4. Taxation — Apportionment by State Board or Equalization— Conolusiveness. The state board of equalization’s determination, in apportioning railroad property for taxation, as to the location of the boundary line between adjoining counties must at some time become conclusive for the current year, and that time arrives when all of the apportionments, including those to lesser taxing units, have been made and the taxes have been levied for the year.2 (Page 386.)</p> <p>5. Taxation — Apportionment by State Board or Equalization — • Review by Certiorari. Where an application for a writ of certiorari to review the action of the state board of equalization in apportioning to S. county for taxation railroad property claimed to be located in R. county was not applied for until after the second Monday in August, the date on which appor-tionments were required to be made by the county commissioners of the several counties of the state to the lesser taxing units, and the board did not clearly exceed its powers or jurisdiction, a peremptory writ would not be granted, in view of the disturbance of apportionments and tax levies in S. county and the mischievous consequences which would result.3 (Page 386.)</p>

<p>1. Vendor and Purchaser, —■ Contract —■ Execution — Evidence —- Sufficiency. Where defendants contracted to sell their lots at a stated price, reserving the right to remove a trap therefrom, and the purchaser struck out from the contract the -reservation clause, the contract as modified could not he enforced, in the absence of ratification by the defendants, there being no meeting of the minds of plaintiff and defendant. (Page 392.)</p> <p>2. Vendor and Purchaser — Modification of Contract — Burden of Proof. In an action for breach of an executory contract for the sale of land wherein the seller by a clause in the writing reserved certain rights, which clause the prospective purchaser struck out, plaintiff has the burden of showing by clear and convincing evidence that the modification was ratified by the seller. (Page 392.)</p> <p>3. Courts — Municipal Court — Satisfaction of Judgment Pending Appeal — Effect. Where a judgment of the city court, not having been superseded, was satisfied by execution pending appeal to the district court, the party successful below could not have further judgment on his claim. (Page 393.)</p>

F. 0. Loofbourow, Judge. Action by Pearl Thomas, an infant, by William Thomas,, guardian ad litem, against the Oregon Short Line Railroad. Company. Judgment for defendant. Plaintiff appeals. APPELLANT’S POINTS. Plaintiff was not a trespasser.

<p>Appeal from District Court, Fourth District, Hon. A. B. Morgan,- Judge.</p> <p>Action by the Utah Banking Company, against James Oler.</p> <p>Judgment of nonsuit for defendant. Plaintiff appeals.</p>

<p>1. Trial — Injuries to Servants — Instructions—Pleading—Damages. A servant suing for personal injuries alleged in his complaint injuries to his hack and spine. On his cross-examination he denied claim for injuries to his ribs. Defendant’s witness testified to rib fractures as well as to spinal injuries. The court instructed the jury in awarding damages to consider all the Injuries received, and refused to exclude consideration of the rib fractures, in spite of defendant’s exception. Held, that the injuries to the ribs, being probably concurrent with those to the spine, were covered by the pleadings, so that the submission thereof was not error. (Page 414.) '</p> <p>2. Appeal and Error — Reservation op Grounds op Review — Evidence — Depenses. The defendant’s evidence having disclosed rib fractures and defendant having failed to object to plaintiff’s evidence to such injury, defendant could not urge that the pleadings were insufficient to warrant submission to the jury of the issue of damages for the rib fractures. (Page 4Í4.)</p> <p>3. Appeal and Error — Scope op Review- — Preservation op Grounds op Review. Where' defendant merely excepted to the charge given and failed to request withdrawal of the issue of rib fractures from the jury, he could not urge the error, if any, for the first time on appeal. (Page 415.)</p> <p>4. Appeal and Error — Scope op Review — Harmless Error. Where a servant in his complaint alleged only spinal injuries, but the evidence of both plaintiff and defendant disclosed rib fractures, and defendant failed to request a charge excluding its consideration in awarding damages, but merely excepted to the charge given, which included that issue, and failed to assail the verdict finding its negligence to be the cause of the injuries, the error, if any, in submitting the issue of rib fractures, was harmless, (Page 416.)</p>

<p>Appeal from District Court, Fifth. District, Hon. Joshua Greenwood, Judge.</p> <p>Action by James Morgan against Child, Cole & Company.</p> <p>Judgment for defendant. Plaintiff appeals.</p>

J. A. Howell, Judge. Suit by Board of Medical Examiners of tbe State against F. J. Freenon. Judgment for plaintiff, defendant appeals. EESPONDENT’S POINTS, The legislature can enact new rules of equity, which would give the Court power tó grant injunctions, which it otherwise would not have had. {Allopathic State Board of Medical Examiners v. Fowler, 24 So. 809 [Ala.]; Littleton v. Fritz, 65 la. 488; 22 N. ~W. 642; State Tax Law.

<p>1. Indictment and Information — Sufficiency—Practicing Without Authority — Statute. An information for practicing medicine without a license, charging the offense in the language of Laws 1911, c. 93, was not insufficient, under Comp. Laws 1907, secs. 4730, 4732, providing that every information must contain a sufficient statement of the acts constituting the offense and the particular circumstances necessary to constitute a complete offense. (Page 453.)</p> <p>2. Statutes — Title—Constitutionality. Laws 1907, c. 88, entitled “An act for the regulation of the practice of medicine and surgery and for the appointment of a hoard of medical examiners in the matter of such regulation, and providing for the repeal of” certain statutes for the regulation of the practice of medicine and surgery, comprehending provisions defining the practice of medicine, prescribing the qualifications to practice, requiring a license to practice, and making it unlawful to practice without one, creating a board of medical examiners, and prescribing its duties and powers, was not violative of Const, art. 6, sec. 23, requiring that the subject of an act be clearly expressed in its title. (Page 454.)</p> <p>3. Physicians and Surgeons — Practicing Without Authority— Sufficiency of Evidence. In a prosecution of a chiropractor for practicing medicine without a license, evidence held sufficient to justify a finding that defendant for a fee diagnosed, treated, and operated upon a physical or abnormal ailment and condition of another, thus practicing medicine as defined by Laws 1907, c. 88. (Page 464.)</p>

Geo. G, Armstrong, Judge. ■Action by Belle Cody against J. J. Cody. From orders dismissing a motion for new trial and denying-an increase of alimony, plaintiff appeals.

<p>1. Criminal Law — Questions for Juey- — Credibility of Witnesses. The question of the credibility of witnesses, arising from inconsistencies in their testimony, is for the jury. (Page 475.)</p> <p>2. Rape — Statutory Rape — Sufficiency of Evidence. On a trial for having carnal knowledge of a female under eighteen, where she is not an accomplice, her testimony alone, if believed by the jury, is sufficient to sustain a finding that the sexual act occurred.1 (Page 475.)</p> <p>3. Rape — Questions for Jury — Credibility of Witnesses. On a trial for having carnal knowledge of a female under eighteen, where no question of limitations was involved, the fact that she testified positively that the sexual act occurred on Wednesday, January 10, 1914, when in fact January 10, 1914, fell on Saturday, went merely to her credibility, which was a question for the jury. (Page 475.)</p> <p>4. Rape — Statutory Rape — Instructions. On a trial for having carnal knowledge of a female under eighteen, she testified that the act occurred on Wednesday, January 10, 1914; that date in ■ fact falling on Saturday. The court charged that if the prose-cutrix was not defendant’s wife, and was under the age of , eighteen, and if defendant committed- an act of sexual intercourse with her at the place and “on or about the time charged in the information,” then such act constituted an offense under the statute.- Held, that this was not erroneous, as giving the jury too much latitude regarding the date upon which they could find tide act was committed, as the act need not he proved on the precise day alleged, nor was the instruction objectionable in any other respect. (Page 477.)</p>

M. L. JRitchie, Judge. • Victor Barretta, Joe Melea, and another were indicted for larceny, and, the last two defendants being convicted, they appeal.

<p>1. Evidence — Parol Evidence — Cbeditob’s Attack — Deed—Consideration. Where plaintiff sought to set aside a deed between defendants on the ground that plaintiff had obtained a judgment against defendant creditor who had no property subject to execution, and that such defendant fraudulently conveyed the real estate to defendant grantee, his sister, parol evidence by defendant grantee was admissible to show the actual consideration she paid for the property in contradiction of the consideration expressed in the deed. ' (Page 507.)</p> <p>2. Appeal and Error — Fraudulent Conveyance — Finding — Review. The court’s findings that there was no fraud in the transaction between defendants and that the consideration paid was adequate, will not be reviewed where there was evidence to.sustain such findings, and the relationship between all the parties was such as to make it difficult to determine from the record evidence alone where the real truth lay, though an inspection of the record might justify a conclusion different from that arrived at by the trial court. (Page 508.)</p>

<p>1. Caeriers — Carriage of Passengers — Care Required — Condition oe Cars. The fact that there was an open space between cars on an electric railway made necessary by sharp curves in the line', with an implied invitation to passengers to pass from one car to another, does not constitute negligence. (Page 514.)</p> <p>2. Carriers — Carriage of Passengers — Actions for Injuries — ■ Burden of Proof. In an action for injuries to a passenger from a fall in passing from one car to another, the burden of . proving negligence is upon plaintiff. (Page 516.)</p> <p>■3. Carriers — Carriage of Passengers —• Actions for Injuries— Questions for Jury. In an action for injuries to a passenger from a fall in passing from one car to another, evidence field to present a question for the jury as to negligence in failure to provide sufficient light or to warn passengers of open space between cars. (Page 516.)</p> <p>■4. Carriers — Carriage of Passengers — Care Required — Light— Warning to Passengers. While it is not negligence merely to permit a space between car platforms without warning to passengers in the daytime, it is the carrier’s duty at night to furnish sufficient light to permit passengers to see the space, or to warn passengers. (Page 516.)</p> <p>■5. Carriers — -Carriage of Passengers — Actions for Injuries— Instructions. In an action for injuries to a passenger from, a ■ fall in passing from one car to another, an instruction, placing the burden of proof on the carrier to show that it was not practical to operate its cars without leaving a space between the ends of the platforms, was erroneous. (Page 517.)</p> <p>6. Carriers — Actions—-Burden of Proof — Contributory Negligence. When the evidence is conflicting, or different inferences may be drawn therefrom, the burden of establishing contributory negligence is on defendant, whether the evidence comes, from the plaintiff’s or defendant’s witnesses; and in either case contributory negligence must be established by a preponderance of the evidence. (Page .518.)</p>

A. B. Morgan, Judge. Action by E. N: Jordan against Utah Railway Company. Judgment for plaintiff. Defendant appeals. REPONDENT’S POINTS. To interfere with,’or destroy any right appurtenant to ■property, is a taking within the Constitution. (Lewis on Eminent Domain, Third Edition, Section 223 and Section 65.) An easement is subject to Eminent Domain power. (Lewis on Eminent Domain, Third Edition, Séction 412.) An easement is property the same as land.

<p>1. Tenancy in Common — Adverse Possession — Exclusive Acts. In plaintiff’s action to quiet title to real estate claimed by adverse possession against her cotenants, it appeared that plaintiff had been in continuous, open, and adverse possession against defendants’ claims for over twenty years, during which time she had paid all taxes and assessments, had continuously occupied the premises and made valuable improvements, and defendants had knowledge of plaintiff’s possession and claim of ownership during the whole of such time. Held, that plaintiff had acquired title to the property by adverse possession as . against such cotenants. (Page 534.)</p> <p>2. Tenancy in Common — Adverse Possession — Notice by Conduct —Sufficiency. In order for one to acquire title by adversé possession against his cotenants, it is njat-necessa®.y~-tbat he to his cotenants, it being sufficient to show by the most .open and notorious acts that he intends his possession as exclusive of his cotenants’ rights, clearly bringing the adverse character of his possession home to the cotenants.' (Page 534.)</p>

<p>Appeal from District Court, First District; Hon. J. D. Gall, Judge.</p> <p>Action by Cleopba Jeppsen against Anton Jensen.</p> <p>Judgment for defendant. Plaintiff appeals. '</p>

<p>Appeal from District Court, Fourth District; Hon. A. B. Morgan, Judge.</p> <p>Action by William B. Hughes, doing business as William B. Hughes Produce Company, against George H. Pulley.</p> <p>Judgment for plaintiff. Defendant.appeals.</p>

C. IF. Morse, Judge. Action by L. R. Martineau against Soren Hanson. Judgment for plaintiff. Defendant appeals. APPELLANT’S POINTS. It may be shown by parol that at the time a note was made it was agreed that it should be held for nothing, on the happening of a certain event or on the non-fulfillment of a certain condition. Where such event operates as a failure for consideration there seems to be no conflict in the authorities.

<p>1. Ttiax. — INSTRUCTIONS—Applicability to Issues. In an action, for possession of a filly, where plaintiff disclaimed a filly which he had returned to the grantor of defendant, and denied that it was the same one claimed of defendant in the action, while defendant claimed that it was the same one, refusal of instruction that plaintiff has not tried the case on the theory that he delivered the animal in question to defendant’s grantor by mistake, and the giving of an instruction that if the jury find that the animal delivered to defendant’s grantor was the identical animal which plaintiff now seeks to recover, and was not in fact owned by plaintiff’s grantor, plaintiff is entitled to recovery, were erroneous, within the rule that instructions should conform to the issues. (Page 563.)</p> <p>2. Appeal and Error — Review—Harmless Error — Instructions. Error in an instruction that if a filly returned by plaintiff to defendant’s grantor was the one in question, but in fact belonged to plaintiff, the plaintiff should recover, where the theory. of both parties was that the filly returned did not belong to plaintiff, was prejudicial to defendant. (Page 565.)</p> <p>3. Trial — Instructions—Rules of Evidence. 'An instruction, ( that if the allegations of plaintiff havq been proved by preponderance of the evidence the verdict should be in his favor, and if the jury find “by preponderance of the evidence” that plaintiff has failed to prove his case the verdict should be for defendant, was erroneous in requiring defendant to establish his case by a preponderance of the evidence to be entitled to a verdict. (Page 566.)</p>

M. L. Bitchie, Judge. Action by W. H. Lepper against C. H. Reilley. • Judgment for defendant. Plaintiff appeals. APPELLANT’S POINTS.

<p>1. Appbaeance — General Demurrer — “General Appearance.” Under Utah practice the filing of a general demurrer constitutes a general appearance. (Page 577.)</p> <p>2. Justices of the Peace — Pleadings. Pleadings in justice court, except the complaint, may be oral. (Page 577.)</p> <p>3. Justices op the Peace — Recital in Judgment — Conclusiveness. In an action to vacate a justice judgment entered on the then defendant’s default, the justice judgment’s recital that “From the evidence I find the defendant is indebted,” etc., is not conclusive under the statute that the justice heard evidence and rendered judgment in accordance therewith, as required by Comp. Law^ 1907, Section 3707, but only controvertible prima facie evidence. (Page 577.)</p> <p>4. Justices oe the Peace — Collusiveness of Judgment — Sufficiency of Evidence. In an action to vacate a justice judgment, entered on the then defendant’s default, evidence held sufficient to show collusion between the justice and the then plaintiff’s attorney in obtaining the judgment. (Page 578.)</p> <p>5. Justices of the Peace — Appearance—Demurrer. Where a justice did not receive his authorized filing fee of ten cents j with a demurrer sent him hy defendant’s attorneys in an action before him, but received and retained such demurrer without notifying the attorneys, such demurrer was filed in his office for the purpose of an appearance by defendant. (Page 579.)</p> <p>6. Justices oe the Peace — Default Judgment — Propriety. Where defendant, in an action before a justice, appeared 'by filing his demurrer, his counsel had the right to assume that the justice would perform his statutory duty to notify of the time of trial, and a default judgment, entered by the justice without such notice, was improper. (Page 579.)</p> <p>7. Justices of the Peace — Presumptions Favoring Judgment; No conclusive presumptions prevail in favor of the judgment of a justice of the peace. (Page 580.)</p> <p>8. Justices of the Peace — Vacating Judgment — Evidence. In an action to vacate a justice judgment, it was proper for the plaintiff to show all the facts respecting the conduct of the justice, as well as of the attorney for the then plaintiff in the action before him, so far as such conduct related to the procuring of the judgment. (Page 580.)</p> <p>9. Justices of the Peace — Judgment—Validity. The fact that plaintiff, in an action before a justice, had no cause of action when the action was commenced did not render the judgment for him void on its face,' but it was a matter proper to be shown, in an action to set aside the judgment, as reflecting on the conduct of the justice. (Page 580.)</p> <p>10. Justices of the Peace — Vacating Judgment. Where a justice of the peace improperly entered a default judgment, and the plaintiff and his counsel, in the action before the justice, 'opposed the party against whom the judgment was entered in his attempt to avoid it, invoking all means in their power-to enforce the judgment, plaintiff and his attorney must be held, in the other party’s action to set aside the judgment, partakers of the wrong acts of the justice. (Page 581.)</p> <p>11. Justices of the Peace — Vacating Judgment. Plaintiff, in an aqtion before a justice, whose attorney participated in the wrong of the justice in improperly entering a judgment against defendant in the action by default, could not resist defendant’s action to vacate the judgment. (Page 581.)</p> <p>12. Justices of the Peace — Vacating Judgment — Equitable Relief. Where plaintiff, in an action before a justice, had no cause of action, and the justice acted corruptly in entering a default judgment for him, such judgment will be set aside at the suit of the defendant in'the action, since a court of equity will restrain proceedings upon a judgment at law where its enforcement is against conscience if the applicant comes into court with, clean hands, has exhausted his legal remedies, is free from laches, and' has a meritorious defense. (Page 581.)</p> <p>13. Justices of the Peace — Vacating Judgment — Laches. ■ Where a justice of the peace without taking evidence corruptly entered a default judgment against defendant, the judgment being kept from the knowledge of defendant for several years, when, believing that he had lost his right of appeal, he unsuccessfully endeavored to review it by certiorari, and thereafter was unsuccessful in appealing, the district court being restrained from hearing the appeal, as it was not taken in time, he was not barred by laches from claiming equitable relief against such judgment, under the broad rules of equity governing the reopening of judgments secured by fraud and collusion. (Page 583.)</p> <p>STRAUP, C. J., dissenting.</p>

N. J. Harris, Judge. Action by F. 'M. Thomas against the Ogden Rapid Transit Company. Judgment for plaintiff. Defendant appeals. APPELLANT’S POINTS. We are aware that the books are full of eases relating to the question of whether certain amounts of damages allowed are excessive or otherwise. Each case must be largely determined by its own facts.

A. H. Christensen, Judge. Action by Parian MeFarlane against W. P. Winters and G-len Winters. Judgment for plaintiff. Defendants appeal. RESPONDENT’S POINTS.

<p>1. MUNICIPAL CORPORATIONS-CITY ORDINANCE-PUBLICATION-VARIANCE — Effect. A city ordinance was passed, touching the sale of intoxicants and providing that: “Any person who shall in any way violate any of the provisions of- this ordinance shall be guilty of a misdemeanor, and * * * punished by a fine of not less than fifty dollars nor more than $299.00, or by imprisonment * * * for not less than thirty days nor more than six months, or by both such fine and imprisonment.” As such ordinance was published, pursuant to statute, it read, as to the punishment: “Shall be punished by a fine of not less than $50 nor more than $299, or by imprisonment * * * for not less than thirty days nor more than fifty dollars, nor more than $299.00 and imprisonment.” Held, that such ordinance was not wholly bad for lack of publication, and permitted judgment for fine to be entered in a prosecution for its violation. (Page 612.)</p> <p>2. Fines — Violation of Ordinance — Imprisonment for Nonpayment. In a prosecution for violation of a city ordinance which, for failure to correctly publish the part of its penalty clause relating to punishment by imprisonment, did not permit of judgment of imprisonment for more'than thirty days, a judgment directing that defendant be imprisoned until the fine was paid would not permit imprisonment longer than thirty days to enforce payment.1 (Page 612.)</p>

<p>1. Release — Conclusiveness. Where the plaintiff, injured while in the employ of the defendant, released him “from all claims, demands, or causes of action for damages of every description or for personal injuries of every kind sustained in or growing out of said accident, or for complications arising from such injuries or treatment thereof,!’ he was, in the absence of fraud or concealment, concluded and bound by the release. (Page 618.)</p> <p>2. Release — Actions—Question fob Juky. Where the facts as to the making of a release- were undisputed, its meaning and scope of release were questions of law for the court, and not ,of fact for the jury. (Page 619.)</p> <p>3. Release — Avoidance—Grounds—Sufficiency. Where the only ground alleged by plaintiff on which to base an. avoidance of a release to his employer for injuries arising from the accident was that plaintiff was ignorant of the character and extent of his injuries an'd that defendant knew the extent of his injuries and refrained from informing him, and. there was no evidence of any such knowledge or concealment by defendant, that was insufficient to avoid the effect of the release.. (Page 619.)</p> <p>4. Release — Construction.- A release, however general its language, covers nothing except the .consequential results from the accident for which it was given, but does include all the consequences thereof. (Page 619.)</p> <p>5. Release — Validity. A release by the injured employee of the employer from all liability arising from the accident is not a contract; regulation, or device, the purpose and intent of which is to enable the carrier to exempt itself from the liability created by the federal Employers’ Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. 1913, Sections 8657-8665), and it is valid if fair and not a violation of public policy or statute. (Page 620.)</p> <p>6. Release — Evidence—Sufficiency. Evidence held to warrant the directing of a verdict for the defendant on his plea of complete release from the liability on which the plaintiff sued. (Page 621.)</p>

C. W. Morse, Judge. Action by the Murray Meat & Live Stock Company, a corporation, against the Newhouse Bealty Company, a corporation, and others. Judgment for plaintiff against defendants Schravens. Defendants appeal.

<p>Appeal from District Court, Third District; Hon. Geo. G. Armstrong, Judge.</p> <p>Action by C. H. Douse against W. J. Meehan.</p> <p>Judgment for plaintiff. Defendant appeals..</p>