Volume 48 — Utah Reports

<p>Original proceeding by the State, on relation of John Y. Ferry, for a writ of Prohibition against the Corinne Drainage District of Box Elder County, and others.</p>

<p>Original proceedings by the State on relation of Milton Moody, for a writ of prohibition against Millard County Drainage District No. 1 of Millard County, and others.</p>

Geo. G. Armstrong, Judge. Action by the Sierra Nevada Mill Company against the Keith-0’Brien Company, with counterclaim by defendant. Judgment for plaintiff, deducting the amount of the counterclaim. Plaintiff appeals.

<p>1. Pleading — Reply—Statute. Under the statute the plaintiffs’ reply, which constituted merely a general, denial, was unnecessary. (Page 27.)</p> <p>2. Pleading — Complaint—Separate Causes op Action. Although, where facts are commingled in a complaint which, if separated, different defenses would apply, or where defendants had a defense to a certain group of facts, the plaintiffs will he required to separate them, a complaint which alleged that the defendants had caused large quantities of mud and debris to flow into the plaintiffs’ fishponds over a considerable period of time, the wrongful acts being so numerous, continuous, and blended together as to constitute but a single wrong, was sufficient. (Page 27.)</p> <p>3. Limitation of Actions — Pabticulab Actions — Injuries to ’‘Personal Property.” An action for damages caused by the pollution of fishponds, the plaintiffs not owning any interest in the real estate on which the ponds were located, was an action for damages to personal property, as a right or interest which a person has in things personal, and was barred after three years under Comp. Laws 1907, Section 2877, Subd. 3, providing that all actions for taking, detaining, or injuring personal property must be-commenced within three years and not an unclassified action under Comp. Laws 1907, Section 2883, providing that an action for relief not otherwise provided for must be commenced within four years. (Page 29.)</p> <p>4. Judgment — Docket Entry as Evidence — Judicial Records. An entry in a previous action between the same parties which never proceeded to final judgment, taken from the docket of the clerk of the court, was inadmissible, since the judgment is the only competent evidence to prove a prior adjudication. (Page . 34.)</p> <p>5. Conspiracy — Nature and Elements. The fact that certain persons have a joint interest in property and unite in an action affecting it is not evidence from which a conspiracy could reasonably be inferred. (Page 34.)</p> <p>6. Evidence — Documentary Evidence — Judicial Records. The complaint in a former action between the same parties is the only competent evidence respecting the plaintiffs’ claims in that action. (Page 34.)</p> <p>7. Judgment — Evidence to Sustain — Joint Ownership of Co-defendants. Where the defendants or some of them, with knowledge of the others from day to day, caused the pollution of water flowing from their property into the plaintiffs’ fishpond, the joint interest of the defendants in the property on which the acts were committed was sufficient to authorize a judgment against all of the defendants. (Page 34.)</p> <p>8. Appeal and Error — Review—'Veedict. The appellate court is hound by the findings of the jury if supported by some substantial evidence. (Page 34.)</p> <p>9. Appeal and Ebeoe — Review—Prejudicial Error — Admission of Evidence. In an action for damages caused by the pollution of water flowing into plaintiffs’ fishpond, the admission of an entry made in the course of proceedings in a prior action between the same parties which did not proceed to judgment was prejudicial error. (Page 34.)</p> <p>10. Trial — Instructions. In an action for damages caused by the pollution of water flowing into the plaintiffs’ fishpond, an instruction that the defendants were not-legally required to, permit water coming from their spring to flow into the plaintiffs’ fishponds below, and that, if the plaintiffs were damaged by reason of the defendants not permitting their spring water to flow into the fishpond, no recovery could be had for such damages, if qualified by the statement that, if defendants did permit any water to flow from their spring into the plaintiffs’ fishpond, they then had no right to befoul the water or cause refuse to be carried by it to the fishpond, was improperly refused. (Page 36.)</p>

<p>1. CORPORATIONS —• STOCKHOLDERS SUBSCRIPTIONS — PAYMENT IN Property. In a suit by a creditor upon stock subscriptions, stockholders may be credited the value of property turned in upon their subscriptions, notwithstanding failure to comply with Comp. Laws 1907, Section 316, requiring a statement of such property and its value in the articles of incorporation.1 (Page 42.)</p> <p>2. Corporations — Stockholders — Subscriptions — Payment in Property. In a suit by a creditor upon stock subscriptions, allowing stockholders credit upon their subscriptions for the value of property turned in, does not conflict with Const., Art. 12, Sec. 5, forbidding issuance of corporation stock except to bona fide subscribers. (Page 48.)</p> <p>3. Corporations — Stockholders — Subscriptions — Payment in Property. Evidence in a suit by a creditor on stockholders’ subscriptions, held to show that subscriptions were entirely paid up in cash and property. (Page 51.)</p> <p>On Application for Rehearing.</p> <p>4. CORPORATIONS-STOCKHOLDERS-SUBSCRIPTIONS - PAYMENT IN Property. Property turned in on stock subscriptions is to he credited at its market value at the time'. (Page 56.)</p> <p>FRICK, J., dissenting in part.</p>

Cross-appeals from District Court, Third District; Hon. F. C. Loofbourow, Judge. Action by Margaret A. Cook against Salt Lake City and the Denver & Rio Grande Railroad Company. From a judgment for plaintiff the railroad company appeals, and from judgment for tbe city plaintiff appeals. POINTS OF APPELLANT RAILROAD COMPANY. The viaduct belongs to the city as the ordinance provides it shall be a public highway.

F. C. Loofbourow, Judge. Action by Lillian Bednarek against the Brotherhood of American Yeomen, a corporation. Judgment for plaintiff. Defendant appeals. APPELLANT’S POINTS.

<p>1. Municipal Corporations — Policeman—“Officer.” A policeman is an “officer” within Comp. Laws 1907, Section 221, declaring that no person shall be eligible to any office who is not a qualified elector of the city. (Page 77.)</p> <p>2. Quo Warranto — Function of Writ — Title to Office — “Officer.” A policeman is an “officer,” and his title to office may be tried by quo warranto. (Page 77.)</p> <p>3. Municipal Corporations — Policeman—Statute—Repeal—“Eligible” — “Qualification.” Comp. Laws 1907, Section 221, which has been in existence for over twenty years, declares that no person shall be eligible to any office who is not a qualified elector of the city. Laws 1899, c. 28, relating to police and fire departments, abolished the board of control of the police departments in cities of over 12,000 inhabitants, and again gave the city council full power to appoint heads of departments and all other members, section 10 declaring that the city council shall, have power by ordinance to prescribe and define the qualifications and duties of the officers and employees of the police and fire departments. Such law contained a general repealing clause of all acts in conflict therewith, and was obviously directed at Laws 1896, c. 73, which had created special boards of police and fire commissioners. Held that, as implied repeals are not favored, and as the word “eligible” means capable of being elected or chosen, while the word “qualification” refers to the fitness of a person for a particular pursuit, Comp. Laws, Section 221, was not impliedly repealed by Laws 1899, c. 28, Section 10, and so the city council cannot appoint as a policeman one who was not a qualified elector of the city. (Page 78.)</p>

F. C. Loofbourow, Judge. Action by Addison Cain against George H. Parfitt and A. Parfitt, co-partners, doing business under the firm name and style of Parfitt Plumbing Company, and others. Judgment for plaintiff. Defendants appeal.' appellant’s points.

<p>1. Criminal Law — Evidence—Effect on Party Producing. In a prosecution for embezzlement of money of a law firm, under Comp. Laws 1907, Section 4380, relating to embezzlement by a clerk, servant or agent, tbe state, having produced checks made to the order of clients, received and deposited to his own account by the defendant, as evidence, is bound thereby. (Page 93.)</p> <p>2. Embezzlement — Information—Variance—Ownership of Funds. Under Comp. Laws 1907, Section 4380, providing that a clerk, servant, or agent who appropriates the property of his employer is guilty of embezzlement, where the defendant, an attorney, entered into an arrangement with a firm of attorneys to supervise their collection business and without apparent authority indorsed checks made out to the order of clients of the firm and deposited them to his own account, he neither obtained any right to the money himself nor conferred any upon the firm by his wrongful act, and hence was not guilty under an information charging him with appropriating the firm’s money. (Page 93.)</p> <p>3. INDICTMENT AND 'INFORMATION-SEPARATE COUNTS-ELECTION. In a prosecution for embezzlement, where the state to prevent a variance charges the transaction in different counts, it cannot be required to elect upon which count it will ask a conviction until the evidence is before the court and jury from which the nature or character of the transaction may be determined. (Page 94.)</p> <p>4. Embezzlement — Information—Variance. In a prosecution for embezzlement under Comp. Laws 1907, Section 4380, a conviction of the embezzlement of money cannot be sustained by evidence of the embezzlement of checks. (Page 97.)</p>

<p>1. Burglary — Evidence—Sufficiency. In a prosecution for attempted robbery of a bank, evidence held insufficient to connect the accused with the commission of the offense to justify a conviction. (Page 98.)</p> <p>2. Criminal Law — Corroboration of Accomplice — Evidence —Sufficiency. Under Comp. Laws 1907, Section 4862,. requiring other evidence which in itself and without the aid of the accomplice tends to connect a defendant with the commission of the offense, in a prosecution for attempted robbery of a bank, evidence held insufficient to corroborate the testimony of the ac- ■ complice and connect the accused with the offense. (Page 98.)</p>

<p>1. Jury — Competency of Jurors — Implied Bias. A juror is not disqualified to try a prosecution for adultery because his daughter is married to a brother of the female with whom it is charged the adulterous act was committed, since such relationship does not imply bias under Comp. Laws 1907, Section 4834, providing that juror’s relationship by consanguinity or affinity within the fourth degree to the person alleged to be injured by the offense charged, or on whose complaint the prosecution shall have been instituted, or to the defendant, is cause for challenge for implied bias. (Page 104.)</p> <p>2. Criminal Law — Appeal and Error — Impaneling Jury — Error in Overruling Challenge for Cause — Harmless Error. Where it is not shown that accused exhausted his peremptory challenges before the impaneling of the jury was completed, error in overruling a challenge for cause is not prejudicial. (Page 104.)</p> <p>3. Juey — Venire—Deficiency—Manner of Supplying. Under Comp. Laws 1907, Section 1312, where the venire of jurors for the term has been exhausted and additional names are drawn from the hox, the names of jurors not readily accessible because residing at a distance may properly he laid aside and other names drawn. (Page 105.)</p> <p>4. Witnesses — Corroboration—Birth op Child. In a prosecution for adultery, the testimony of the female with whom the adulterous acts are alleged to have been committed, identifying her child in court, is competent to corroborate her testimony that she gave birth to a child. (Page 105.)</p> <p>5. Criminal Law — Evidence—Written Admissions op Accused. Written admissions of defendant in a prosecution for adultery held sufficiently identified, where the female implicated testified to an extended correspondence, that she was familiar with handwriting of accused, and that the letters were written by him to- her in the course of such correspondence and received in due course of the mail. (Page 105.)</p> <p>6. Witnesses — Defendant’s Reputation for Chastity — Cross-Examination. In a prosecution for adultery, evidence on cross-examination of defendant’s brother-in-law, who had testified that reputation of accused for chastity was good, that defendant’s first child was born seven months after his marriage is inadmissible to show defendant’s want of chastity. (Page 105.)</p> <p>7. Criminal Law — Trial—Improper Argument op Counsel. In a prosecution for adultery, argument of counsel that “wife of defendant gave birth to a child in seven months after lawful wed-loch,” based on improper cross-examination, held improper. (Page 105.)</p> <p>8. Criminal Law — Harmless Error — Error Not Resulting in “Miscarriage of Justice.” Under Laws 1915, c. 113, providing that a judgment shall not be reversed for error which has not resulted in a miscarriage of justice, held the words “miscarriage of justice” mean no more than that the substantial rights of a party have been prejudiced, which, under Comp. Laws 1907, Section 4975, was the former tlst of prejudicial error. (Page 100.)</p> <p>9. Criminal Law — Trial—Improper Argument of Counsel. Laws 1915, c. 113, providing that a judgment shall not be reversed for error not resulting in a miscarriage of justice, and that error shall not be presumed to have so resulted, but the court must be satisfied that it has that effect before reversing, held not to abolish the presumption that error depriving the accused of substantial rights is prejudicial. (Page 109.)</p> <p>10. Criminal Law — Trial—Improper Argument op Counsel— Harmless Error — Error Not Resulting in “Miscarriage op Justice.” Improper cross-examination and argument in a prosecution for adultery, whereby defendant’s reputation for chastity was impeached by showing that his first child was born seven months after his marriage, held not prejudicial error, requiring reversal in view of the evidence of defendant’s guilt. (Page 110.)</p>

F. C. Loofb.owrow, Judge. Two actions to foreclose mechanic’s liens were commenced by the Langton Lime & Cement Company, one against Joseph S. Peery and his 'wife, and the other against Elias Wesley Smith, in both of which the Walker Stone Company became a party defendant and asserted mechanic’s lien claims against the property. From judgment sustaining the Walker Stone Company’s lien, the owners appeal. appellant’s points.

F. 0. Loofbourow, Judge. Proceedings for final accounting by Alfred Solomon, surviving executor of the estate of Alonze H. Raleigh, deceased. From an order sustaining objections to the account and setting aside former orders on intermediate accounts, the executor appeals.

W. Morse, Judge. Suit for injunction by the Reese Howell Company, a corporation, against Sarah J. Brown and others, in which defendants other than named defendants were discharged on disclaiming all interest in the subject-matter. Judgment for named defendant, and plaintiff appeals.

<p>1. Municipal Corporations — Removal of Policeman — Fraud. Fraud, inducing plaintiff to resign as a policeman, is not ground for his reinstatement, where defendants, city officers, had power to remove him without resignation. (Page 162.)</p> <p>2. Municipal Corporations — Officers — Police — Removal— Grounds. In cities of Salt Lake’s class, a policeman is removable by the city government at any time with or without cause, the method of removal is immaterial, and no removal is reviewable by the courts.1 (Page 162.)</p>

<p>1. ATTORNEY AND CLIENT-DISBARMENT PROCEEDINGS-REFERENCE-Findings — Modification. The findings of a referee appointed by the Supreme Court in a disbarment proceeding are, in a large sense, merely advisory, and the court can modify any finding or make new ones to conform to the evidence as it views it. (Page 164.)</p> <p>2. Attorney and Client — Disbarment—Charges—Evidense. To authorize the disbarment of an attorney, the charges should be clearly sustained by convincing proof and a fair preponderance of the evidence, but the techineal nicety of the criminal law is not applicable where the court is inquiring into the conduct of its own officers. (Page 167.)</p> <p>3. Attorney and Client — Disbarment—Examination of Evidence. The conduct of a member of the bar of the Supreme Court, regularly employed to defend one charged with murder in the first degree, and who, knowing that the chief of police possessed a bundle of clothes which at the time of the shooting had been worn by the deceased and was keeping them to be used as evidence on the trial, pursuant to an arrangement, with a city detective, went to the police station, entered it from the rear and in a manner to avoid detection by the police, and received such bundle and left with it by a rear alley, when he was taken into custody by a police officer on information given by the detective, while not conduct calling for the drastic remedy of disbarment, was reprehensible to the last degree, and would not he tolerated hy the court, and he would he suspended from practice for sixty days and ordered to pay the costs and expenses of the proceeding, including the referee’s fees. (Page 168.) „</p>

<p>In the matter of the charges against Orrin N. Hilton, an attorney.</p>

’ Appeal from District Court, Third District; Hon. C. W. Morse, Judge. Action for divorce by Charles A. Doe against Effa L. Doe, in which defendant files a counterclaim for separate support and maintenance. From a judgment dismissing the complaint and awarding separate support on the counterclaim, plaintiff appeals.

<p>1. Mahdamus — Pleading—Answeb. A defendant in a mandamus proceeding may file an answer and raise issues of fact, and, when he does so, the Supreme Court may refer such issues to the district court for a hearing and findings thereon; but when the question presented to the Supreme Court turns upon the facts admitted by a demurrer in the district court and the only question is whether upon such facts the judgment of the district court should not have been in favor of the application, the defendant may npt for the first time deny the truth of the facts in the Supreme Court. (Page 219.)</p> <p>2. Juey — Right to Juey Teial — Mandamus. Upon questions of fact raised in a mandamus proceeding, either party is entitled to a jury trial under the statute. (Page 219.)</p> <p>3. Eminent Domain — Enfobcement of Judgment — Poem of Pbo-ceeding — Relief—Contempt. An application to the district court, though in form an application to punish defendant for contempt of court, the sole purpose of which was the enforcement of the order or judgment of such court entered in a condemnation proceeding, giving plaintiff possession of a strip of ground for a mine tramway was not a proceeding for the sole purpose of enforcing respect for the court’s order or judgment, but to require the court to protect a right based upon the judgment. (Page 220.)</p> <p>4. Mandamus — Enfobcement of Judgment. Where a judgment can be enforced merely by issuing a writ of execution, a mandate will issue to require the execution to issue. (Page ,221.)</p> <p>5. Mandamus — Relief—Matters of Disceetion. The Supreme Court may not by means of a writ of mandate control or direct the discretion of an inferior court. (Page 221.)</p> <p>6. Mandamus — Relief—Proceeding with Cause. In a case which has not proceeded to judgment, an inferior court may merely be compelled to act or go forward in case it refuses or fails to do so. (Page 221.)</p> <p>7. Mandamus — Relief—Enforcement of Judgment. Where a coal company instituted a condemnation proceeding in a district court and obtained an order or judgment giving it possession of the surface of a strip of ground owned by defendant companies for use for the construction of a tunnel and tramway, and, after it had partly constructed the tramway, applied to the district court for an order against defendant companies and their employees to show cause why they should not be adjudged guilty of contempt in interfering with the construction of the tramway and be required to obey the condemnation judgment, and the court sustained the demurrer, the Supreme Court, on original application for mandamus, might issue its mandate requiring that the condemnation judgment be enforced, since the enforcement of the judgment was a duty of the district court, and not a matter of its discretion. (Page 221.)</p> <p>8. Mandamus — Remedy by Appeal ob Wbit of Eebob. A writ of mandamus may not be issued as a substitute for a writ of error or the right of appeal, and the court may not have recourse to the writ merely because there is no other remedy. (Page 224.)</p>

F. C. Loofbourow, Judge. Action by Alfred Mathison and another, as copartners, against F. E. Rickard, in which the Chicago, Milwaukee & St. Paul Railway Company was garnisheed. From a judgment for garnishee, plaintiffs appeal.

T. D. Lewis, Judge. Action by John C. Lyman and another against the Title Guaranty & Surety Company. Judgment for plaintiffs. Defendant appeals. APPELLANT’S POINTS.

<p>1. Limitation of Actions — Open Account — Account Stated— Computation of Time. The statute of limitations of four years begins to run against an open account on the day following the last payment, and on an account stated on the day following the agreement. (Page 241.)</p> <p>2. Limitation op Action — Account Stated — Defenses. That one partner confessed judgment.on an account before the statute had run has no effect as against the other after four years except to make the claim an account stated, so that in an action begun after such time it is immaterial whether one partner could bind the other. (Page 242.)-.</p> <p>3. Appeal and Error — Scope op Review — Issues Below — Findings of Fact. The court on appeal is restricted to the issues below, and the only question before it on appeal from findings of fact is the sufficiency of the evidence to support them. (Page 242.)</p> <p>4. Appeal and Error — Scope op Review — Issues Below — Findings of Fact. Where the findings of the court below as to facts are supported by substantial evidence, the court on appeal will not interfere, although the evidence would have supported a contrary finding. (Page 242.)</p> <p>5. Limitation op Actions — Avoidance op Statute — Nonresidence —Findings—Sufficiency. A finding that defendant had his home, family and residence in the state continuously from the time the debt was contracted until two years after the statute of limitations had run is a sufficient finding of continuous presence in the state to invoke the statute of limitations. (Page 242.)</p> <p>6. Limitation of Actions — Avoidance op Statute — Other Action. That another action had been commenced prior to the instant case to which the bar of the statute of limitations is urged does not remove the bar if such action was on a different cause, or was commenced after the statute had run. (Page 243.)</p>

<p>Appeal from District Court, Second District, Hon. N. J. Harris, Judge.</p> <p>Action by Isabelle Y. Gibson against Joseph M. Jensen.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from District court, Third District; Hon. M. L. Ritchie, Judge.</p> <p>Frank De Pretto was convicted of murder in the first degree, and he appeals.</p>

<p>1. Criminal Law — Évidence—Sufficiency—Authentication of Letter. Whether the accused wrote an incriminating letter was a jury question, where he denied doing so, hut two officers testified that he had admitted its authorship. (Page 255.)</p> <p>2. Criminal Law — Continuance—Necessity of Diligence — Securing Witness. Denial of accused’s request for a continuance in order to secure a witness is not error, where no diligence on his part is shown. (Page 256.)</p> <p>3. Criminal Law — Appeal—Harmless Error — Refusing Continuance. Denial of the continuance did not prejudice accused, where he testified that he had not communicated with the witness and did not know where she was. (Page 256.)</p>

<p>1. Contracts — Admissibility of Evidence — Other Contracts. Where defendants, railroad subcontractors, claimed that the terms of certain written contracts were incorporated into an oral agreement under which plaintiff did certain work for them, and there was evidence supporting the claim, held that the written contracts were admissible, although the plaintiff was not a party to them. (Page 261.)</p> <p>2. Contracts — Admissibility of Evidence — Other Contracts. Where plaintiff sued on a contract for constructing a portion of a roadbed which coneededly lay between portions covered by other contracts, the defendants could locate' the portion involved by showing the boundaries named in the other con- • tracts. (Page 263.)</p> <p>3. Contracts — Breach—Admissibility of Evidence. Where plaintiff sued defendants, railroad subcontractors, for excavating work done under a contract between them it is immaterial that the railroad company allowed pay 'for a less amount of excavation than plaintiff claimed to have done. (Page 265.)</p> <p>4. Contracts — Consideration—Performance of Contractual Obligation. Where conditions arise not contemplated under an excavation contract, a promise of extra pay is supported by promise to continue the work. . (Page 267.)</p> <p>5. Contracts — Consideration-—Performance of Contractual Obligation — What Constitutes. Where a railroad excavation contract provided that the sides of a cut be left vertical, but caving of the banks required the removal of additional dirt, held that the additional work was not contemplated in the original contract, and therefore furnished consideration for a promise of extra pay. (Page 267.)</p> <p>6. Contracts — Pleading—Allegation of New Promise. The extra ■ pay agreement constituted a separate cause of action which should have been pleaded in the complaint. (Page 268.)</p> <p>7. Pleading — Reply—Additional Cause of Action. Plaintiffs could not enlarge the complaint by alleging the extra pay agreement in their reply. (Page 268.)</p> <p>8. Pleading — Leave of Court — Conformity to Proof. If evidence is received without objection upon a claim which should have been pleaded, the complaint may thereafter, by leave of the court, be amended to conform to the proof. (Page 268.)</p>

M. L. Ritchie, Judge. Action by Louis Berow and another against F. A. Shields and wife. Judgment for defendants. Plaintiffs appeal. APPELLANT’S POINTS. Tbe term “expenses of the family” is not synonymous with “necessaries” under the common law. (Arnold v. Kiel, 81 Ill. App. 242.) The term family expenses includes everything essential, necessary or convenient, or so deemed by the husband or wife, to be used in or by the family.

<p>1. Criminal Law — Trial—Instruction—Contradictory Statements — Refusal to Instruct. Refusal to instruct that a conflict between complaining witness’ voluntary admissions and her testimony might he considered in determining her credibility is prejudicial error, where the complaining witness had denied accused’s guilt previous to the trial and her story is uncorroborated. (Page 303.)</p> <p>2. Criminal Law — Trial—Instruction—Contradictory Statements — Refusal to Instruct. Refusal to instruct that if any witness had made statements material to issues conflicting with ' his testimony, such testimony might be disregarded except as corroborated by other credible evidence, is prejudicial error where the complaining witness had denied accused’s guilt previous to the trial and her story was not corroborated. (Page 303.)</p> <p>3. Criminal Law — Instructions—Cure by Other Instruction— Credibility of Witnesses. Refusal to give the above instructions is not cured by instructing that if any witness wilfully testified falsely his whole testimony might be disregarded, for, the inconsistencies may be considered irrespective of whether the witness willfully testified falsely. (Page 305.)</p> <p>4. Criminal Law — Sufficiency of Instruction — Presumption of Innocence. An instruction that the evidence must remove all reasonable doubt of defendant’s guilt is improper because implying that defendant is attended only by a reasonable doubt of his guilt, whereas he is presumed innocent. (Page 307.)</p> <p>5. Criminal Law — Sufficiency of • Instruction — Cure ry Other Instruction — Reasonable Doubt. The above instruction does not constitute reversible error where other portions of the charge correctly state the law. (Page 307.)</p> <p>FRICK, J., dissenting in part.</p>

<p>1. MORTGAGES — FORECLOSURE BY ACTION-PLEADING-REPLY-NECESSITY. In a mortgage foreclosure suit, no reply is necessary to an answer claiming a homestead right, where plaintiff contends the acts pleaded do not state a defense, for Comp. Laws 1907, Section 2980, requires a reply only to a counterclaim, or where plaintiff confesses and avoids. (Page 315.)</p> <p>2.^ Reformation of Instruments — Sufficiency of Evidence— Mortgage. Reformation of a mortgage will be granted upon clear proof of a mutual mistake.1 (Page 316.)</p> <p>3. Vendor and Purchaser — Remedies of Vendor — -Lien—Retaining Title. A vendor who retains title has a purchase-money lien upon the land. (Page 317.)</p> <p>4. Mortgages — Construction—Property Mortgaged. A mortgage given by one partner to secure a note purchasing the other partner’s undivided half interest in their property, and which covered an undivided half interest in the partnership property, held to cover the mortgagor’s rather than the mortgagee’s interest, where the mortgagee retained title to his share until the note should be paid. (Page 317.)</p> <p>5. Mortgages — Review—Determination of Cause — Affirmance. A mortgage foreclosure decree cannot 'be affirmed where the findings and conclusions must be corrected to show that plaintiff had a mortgage on half the property, and a vendor’s lien on the remainder. (Page 317.)</p> <p>6. Homestead — Incumbrances—Joinder of Husband and Wife. A husband, with his wife’s consent, may incumber their homestead under the local statute. (Page 319.)</p> <p>7. Dower — Nature—Priorities—PurchaseJVIoney Claim. Under Comp. Laws 1907, Section 2826, the wife’s dower .right in her husband’s property is subject to a purchase-money claim.2 (Page 319.)</p> <p>8. Appeal and Error — Reversal Directing Judgment Below. Upon reversing an equity case, the Supreme Court may direct the findings, conclusions, and decree to be entered below. (Page 320.)</p>

<p>1. Municipal Coepoeations — Defects in- Streets and Sidewalk;— Negligence — Question foe Juey. Ordinarily whether maintenance of a particular defect in a street or sidewalk constitutes negligence of the city is a question for the jury.1 (Page 323.)</p> <p>2. Municipal Coepoeations — Defective Sidewalk — Question fob Jury. It cannot be said as a matter of law that a city was not negligent in maintaining in the residence portion of a city a sidewalk with one of the cement blocks raised from two to two and three-eighths inches, on the edge of which a pedestrian was tripped. (Page 323.)</p> <p>3. Municipal Corporations — Injury to Travel — Liability. If improvements of streets or sidewalk are in the condition made in following plans adopted by the city, it is ordinarily not liable for injury therefrom to a traveler.1 (Page 328.)</p> <p>4. Municipal Corporations — Defective Sidewalks — Evidence. Evidence that other persons had previously stumbled, though they had not fallen, over the projection in a sidewalk, on which plaintiff had tripped, causing -her to fall, is competent both as notice to the city, and as characterizing the defect. (Page 329.)</p>

<p>Appeal from District Court, Third District; Hon. T. J). Lewis, Judge.</p> <p>Action, by John A. Burt against Arthur Stringfellow, and others.</p> <p>Judgment for defendants. Plaintiff appeals.</p>

<p>1. Pleading — Motion—Judgment on Pleadings — Constbuction of Answeb. ' Where plaintiff moves for judgment upon the pleadings, the answer must he construed most favorably t.o the defendant. (Page 340.)</p> <p>2. Telegbaphs and Telephones — Opebation—Conteact fob Seev-ice — Validity of Rule. Where defendant installed private and pay phones in plaintiff’s place of business under an agreement to share with him the pay phone receipts, a rule, restricting the private phone’s use to plaintiff, is reasonable, at least against its promiscuous use by others. (Page 340.)</p>

Original application by tbe Ketcbnm Coal Company for a peremptory writ of mandate to require Hon. A. H. Christensen, Judge of the District Court of Carbon County, Utah, to vacate an order or judgment dismissing the defendant Pleasant Yalley Coal Company from a condemnation action brought by plaintiff against it and other defendants, and to reinstate it as a defendant in such action, and to proceed to try it against all of the defendants.

G. W. Morse, Judge. Action by Matha Boeddeher against Arthur Frank. Judgment for plaintiff. Defendant appeals. STATEMENT OF FACTS. Plaintiff brought this action to recover for personal injuries alleged to havé been sustained by her because of the negligence of defendant in permitting an automobile he was driving to collide with an express wagon in which she, in company with a small boy, was riding along one of the streets in Salt Lake City.

<p>Justices of the Peace — Pleading—Jurisdictional Facts — -Sufficiency. Comp. Laws 1907, Section 3668, provides that actions in justice’s courts must he tried in the precinct wherein the injury was done or defendant resides. Section 3685 provides that the complaint must he written and verified, but that other pleadings may he oral, and must show the jurisdiction. Section 3685x makes every judgment on complaint containing no allegation of jurisdictional fact void. Held that, conceding, without deciding, that section 3685x must he strictly construed, a complaint before a justice of the peace in M. precinct alleging killing of cows one mile north of M. station grounds at a crossing known as M. Lane, sufficiently alleges the injury to he within M. precinct to permit amendment on appeal to the district court hy insertion of words “within M. precinct,” and the judgment was not void. •</p>

Original application by the Board of Education of Ogden City, for a writ of mandate, against William C. Hunter and others, commissioners of Weber County, Utah, Harry Hales, County Clerk, James L. Eobson, County Assessor, and J. E. Storey, County Treasurer, commanding them to levy and collect a tax against the property of the school district in the amount required by plaintiff, etc. ■ Peremptory writ of mandate ordered to be issued.

A. B. Morgan, Judge. Action of claim and delivery by Hattie Coltharp against William H. Coltharp. Judgment for defendant, and plaintiff appeals. ' APPELLANT’S POINTS. Although courts in construing a deed seek for the intention of the grantor by an examination of the entire instrument and effectuate his intention when found, nevertheless, it is their duty when rules of construction have been settled to enforce them; otherwise, titles are rendered uncertain and insecure.

T. D. Lewis, Judge. Action by Annie Virend, Sr., and Annie Virend and others, minors, by their guardian ad litem Annie Virend, Sr., against tbe Utah Ore-Sampling Company. From a directed verdict, the plaintiffs appeal.

<p>Prohibition by George P. Parker, County Attorney of Utah County, against A. B. Morgan, Judge of the Fourth Judicial District.</p>

M. L. Ritchie, Judge. Action by James Walter Musgrave against the Stndebaker Bros. Company of Utah. Judgment for defendant. Plaintiff appeals. APPELLANT’S POINTS. All vehicles, whatever they, be, must be provided with proper appliances and means of control and for stopping. A person is guilty of negligence if he drives his team and wagon in the street with insufficient reins with which to control such team.

<p>Appeal from District Court, Second District; Hon. N. J. Harris, Judge.</p> <p>Action by Theodore Kytka against Weber County.</p> <p>Judgment for defendant on a directed verdict.</p> <p>Plaintiff appeals.</p>

<p>Appeal from District Court, Seventh District; Hon. A. H. Christensen, Judge.</p> <p>Action by the Helper State Bank against Clyde Jackson and Shekrey Sheya.</p> <p>Judgment for plaintiff. Defendant Sheya appeals.</p>

N. J. Harris, Judge. Action by Ralph Hirsh and Solomon Dryfoos, co-partners doing business under the firm name and style of Hirsh & Dry-foos, against the Ogden Furniture & Carpet Company. Judgment for plaintiffs. Defendant appeals.

F. C. Loofbourow, Judge. Petition for mandamus by R. M. Stinson and Tbomas Stockhausen, copartners doing business as R.. M. Stinson & Company, against Frank Godbe, as City Treasurer of Salt Lake City. From judgment dismissing the complaint, plaintiffs appeal.

<p>1. Appeal and Error — Review—Record. In ease of appeal there must be record evidence showing that a final judgment was rendered and entered, or the appeal cannot prevail. (Page 454.)</p> <p>2. Judgment — Entry—Jurisdiction of Court. Where an appeal was taken after granting of a non-suit in September, 1913, and no final judgment was attempted to be entered until August, 1915, the trial court did not lose jurisdiction to enter final judgment, merely because the judgment was not entered immediately after the motion was sustained, or because of a premature appeal which could not effectuate anything, but the case . continued pending in the trial court for final disposition. (Page 455.)</p> <p>3. Appeal and Error — Time por Taking Appeal — Nunc Pro Tunc Entry. Under Comp. Laws 1907, section 3301, providing that an appeal may be taken within six months from the entry of judgment, where a final judgment was not entered and ah appeal for that reason failed, a judgment could be entered, the time within which an appeal must be taken runs from the actual entry^ of the judgment, and such entry for purposes of appeal may not be considered a nunc pro tunc entry. (Page 456.)</p> <p>4. Statutes — Previous Decisions as Controlling Decisions of Other Jurisdictions — Same Statute. Where Comp. Laws 1907, section 3301, touching time for taking appeals, was taken from the California Code, a California case construing the section is decisive of the question involved. (Page 456.)</p> <p>5. Appeal and Eeeoe. — Review—Assignments of Eeeoe — Recobd. Where a record on appeal disclosed that the parties stipulated that the abstract used in a former appeal, .dismissed as premature, might he used in instant appeal, the rule of the court was substantially complied with, and its purpose subserved when appellant obtained leave to refile the original abstract which contained the assignments of error, as respondent was apprised of errors relied on. (Page 457.)</p> <p>6. Appeal and Eeeoe — Review—Abstract—Judgment. Where a judgment was in the judgment roll, but was not printed in the abstract, because a new abstract was not printed after judgment was entered, but abstract used in a premature appeal was refiled by consent, a rule requiring the Judgment to be printed in the abstract, but not in terras, making failure to print it in the abstract a cause for dismissing an appeal, is . directory, and in view of the stipulation, the rules of the court were substantially and sufficiently complied with to withstand a motion to dismiss the appeal. (Page 457.)</p> <p>7. Master and Servant — Action fob Injuries — Assumption op Risk. In an action for death of plaintiff’s son, where it appeared that deceased was killed in the performance of a portion of his usual duties, in prying down a mass of rock and earth on a 45-degree incline, pursuant to the orders of defendant’s foreman, although it be conceded that the foreman did no,t exercise ordinary care under the circumstances, the conditions and danger which were an ordinary incident of the work being such that a person of ordinary intelligence must be presumed to have appreciated them, the deceased willingly assumed the risk.1 (Page 458.)</p> <p>8. Master and Servant — Action pob Injuries — Assumption op Risk. In an action for death of plaintiff’s son, the fact that deceased, who was fully developed both physically and mentally and had been engaged in the work for a month before the accident, was only nineteen years of age, standing alone, does not prevent a finding that as a matter of law he assumed the risk.2 (Page 462.)</p>

Geo. G. Armstrong, Judge. Action by James Martindale against the Oregon Short Line Railroad Company. Judgment for plaintiff. Defendant appeals. APPELLANT’S POINTS. The rule of decision in the State of Idaho was pleaded and put in evidence.

<p>1. Appeal and Error — Harmless Error — Exclusion of Evidence. In a passenger’s action against a street railroad for personal injury, where a witness for the plaintiff described her conduct both in her testimony in chief and upon cross-examination, error, if any, in excluding a question as to whether the witness noticed anything in plaintiff’s condition that indicated that she was hurt, calling for a conclusion, was not prejudicial, where the defendant developed all that the witness heard and observed concerning the plaintiff. (Page 484.)</p> <p>2. Appeal and Error — Harmless Error — Exclusion of Evidence— Evidence Afterwards Admitted. Error, if any, in excluding the statement of the conductor, who had observed plaintiff, that the morning after she seemed to be cheerful and she and others went along, not noticing that there was anything wrong with plaintiff, was harmless, where the defendant was permitted to fully develop all that the witness observed concerning plaintiff and her acts and conduct. (Page 485.)</p> <p>3. Evidence — Opinion Evidence — Expert—Consequence of Injury.’ In an action for injury to a girl of about seventeen, while a passenger on defendant’s car, where her injuries consisted of bruises visible only on the surface of the body, that after the accident she became an invalid, and that her menstruation became irregular,-physicians called as experts were properly permitted to state their opinion that the injury suffered could and probably did produce such ailments, and in such case the ultimate question whether the injury was the proximate cause of such ailment was for the jury. (Page 485.)</p> <p>4. Damages — Physical Examination — Power of Court. In a passenger’s action for injury, where it appeared that most of her symptoms were subjective, the court, after the plaintiff had rested, had no power to order a physical examination by physicians selected by defendant, in the presence of plaintiff’s physician and father.1 (Page 486.)</p>

<p>EXECUTORS AND ADMINISTRATORS-CLAIMS ASAINST-PRESENTATION. Where an executor by order and authority of court mortgaged lands of decedent long after the time for presentation of creditors' claims, the mortgagee need not to obtain on foreclosure judgment for any deficiency and attorney’s fees, show that he had presented his claim in accordance with Comp. Laws 1907, Section 3858, and that all recourse against property of the estate other than that covered by the mortgage was waived, for the statute does not apply to transactions or claims against an executor, but only to claims arising out of contracts or transactions with deceased.</p>

<p>1. Corporations — Stock—Pbesumptions It will be pres.umed that corporate stock registered in the name of deceased belonged to him and descended to his heirs, there being no evidence that defendant who claimed the stock exercised any dominion over it until after the death of deceased. (Page 493.)</p> <p>2. Tenancy in Common — Adverse Possession — What. Constitutes. The owner of stock in an irrigation company died, and it descended to his children equally, the children becoming tenants in common. After the death of the owner, defendant, one of the children, exclusively used the water represented by the stock, paid assessments, and voted the stock, having it transferred on the books of the company to his own name shortly after the death of the original owner. About one year before commencement of the action, a certificate for the stock was issued to defendant. Held that, as defendant was a tenant in common with the other children,.and that his possession must be regarded as the possession and for the benefit of all until he unequivocally repudiated — the interests of his cotenants, defendant’s voting of the stock, transfer of it to his name, together with exclusive use of the water, etc., did not operate as an ouster and repudiation, so that limitations began to run in defendant’s favor.1- (Page 493.)</p>

<p>1. Corporations — Pleading Existence' — -Necessity oe Proof. The averment in the complaint that defendant is a corporation is an issuable averment, and when put in issue must be proved. (Page 497.)</p> <p>2. Joint-Stock Companies — Suing Company as Corporation— Pleading. Comp. Laws 1907, section 2927, as amended by. Laws 1911, c. 58, providing that persons associated in business as a joint-stock company, a partnership or other association not a corporation, under a common name, may be sued by such common name, does not relieve plaintiff, suing defendant as a corporation, of the necessity of proving its corporate existence, though the answer allege it to be a joint-stock company. (Page 497.)</p> <p>3. Pleading — Cure of Complaint by Answer — Corporate Existence. Averment in the complaint, of corporate existence of defendant, is not a misnomer, which is cured by the answer alleging it to be a joint-stock company, under the rule that incomplete or defective averments in a complaint of corporate existence are cured by admissions or averments in the answer of corporate existence. (Page 497.)</p> <p>4. Trial — Instructions—Conformity to Evidence — Damages. Under the rule that an element of damages on which there is no evidence to support it should not be submitted to the jury, the children of deceased being all adults, from thirty-one to forty-eight years old, married and maintaining separate homes, apart from deceased, loss of comfort, society, and companionship of deceased by them should not be submitted; damages for such loss being awarded only in a pecuniary sense, and not as a solatium, and such pecuniary loss hy them being at most only nominal.1 (Page 499.)</p> <p>5. Municipal Corporations — Answer—New or Affirmative Matter. That because of excavations in the middle of the street, in which defendants drove into a person, they drove to the left to deliver a package to a building in the block on that side, is not new or affirmative matter, required to be alleged in the an* swer, but may be shown under the general issue.2 (Page 501.)</p> <p>6. Municipal Corporations — Personal Injury — Driving on Wrong Side of Street. One merely driving a team on the wrong side of the road in violation of an ordinance is not negligent as matter of law; but whether doing so constitutes negligence depends on the facts and circumstances, and generally is a question of fact, and not of law.3 (Page 502.)</p>

<p>1. Counties — Powers of Commissioners — Removal of Officers. Under Comp. Laws 1907', section 511, subd. 3, authorizing county commissioners to direct prosecutions for officers’ delinquencies, and section 4580 as to accusations against officers by the grand jury, or by taxpayers, the county commissioners, having power to prosecute for delinquencies, also have power to direct prosecutions by individuals. (Page 507.)</p> <p>2. Counties — Powers of Commissioners — Expenditures—Recovery. Even if county commissioners proceeded irregularly by directing an individual to prosecute the sheriff and county at- ’ torney for alleged delinquencies, the irregularity, if any, should have been raised in that proceeding, and not in suit by the county to recover moneys alleged to have been expended illegally therein. (Page 508.)</p> <p>3. Counties — Powers of Commissioners — Removal of Officers. In such case, the irregularity, if any, woúld not, standing alone, make the order of prosecution void and without legal effect. (Page 508.)</p> <p>4. Counties — Powers of Commissioners — Expenditures — Recovery. Since Comp. Laws 1907, section 511, subd. 3, authorizes county commissioners to direct prosecutions of officers for delinquencies, the mere fact that the county is not nominally or pecuniarily interested in ouster suit by an individual, directed by the commissioners, does not make the act of the commissioners void or warrant recovery from them of sums expended in such suit. (Page 508.)</p> <p>5. Counties — Powers of Commissioners. County commissioners can exercise only such powers as are conferred upon them expressly or by necessary implication of statute. (Page 509.)</p>

<p>1. Appeal and Error — Dismissal—Noncompliance with Rules. Though Supreme Court rules 6, 10 (33 Utah vii, viii, 97 Pac. viii), as to contents of abstract and time, of filing it and serving brief, be not complied with, yet no prejudice resulting, and there be no delay in the hearing, appeal will not be dismissed. (Page 611.)</p> <p>2. Appeal and Error — Review oe Findings The jury’s findings will not be disturbed so long as there is some substantial evidence in support thereof. (Page 613.)</p> <p>3. Appeal and Error — Record. The court may refuse to search for Questions, answers, and rulings, they not being in the abstract, and neither it nor the brief stating where they can be found. (Page 614.)</p>

<p>1. Witnesses — Statutory Immunity — Scope. Under Comp. Laws 1907, section 912, providing that any person offending against the election laws may be compelled to testify in any trial, etc., in the same manner as any other person, with immunity from indictment, prosecution, or punishment for the offense as to which testimony was given, such immunity is complete, and is not limited to cases where one is called as witness in prosecution of a third person for violating election laws, and the one called may have been himself concerned in the offense charged against accused, and the privilege against self-incrimination cannot be invoiced by such an offender in an election contest. (Page 518.)</p> <p>2.. Elections — Qualification of Voters — Change of Residence. Under Laws 1911, c. 106, section 53, qualifying any person to vote at a city or town election who was qualified to vote at the last city or town election in the voting district in which he offers to vote, section 60 of said chapter, providing that the state laws relating to elections in cities, towns, and general elections shall apply in all matters not specified, where applicable, and the election laws, Comp. Laws 1907, sections 812-846, making it a necessary qualification of a voter that he reside in and also be registered in or transferred to the election district in which he votes, and making it a ground for challenge- “that he does not live in the election district,” if a person was a qualified voter in a particular election district by having complied . with registration laws of the state, he may rely upon that registration in voting therein at any election held under said chapter 106, if he still resides therein, but if he has ceased to be a resident thereof, he is no longer eligible to vote there, but may have his registration transferred to the district in which he resides, as provided by Comp. Laws 1907, section 812. (Page 521.)</p> <p>3. Elections — Presumption—Residence of Married Man. The residence of a married man is presumed to be in the voting district where his wife lives. (Page 522.)</p> <p>4. Elections — Presumption—Residence of Voter. The presumption is that one voting at a previous election in a certain voting precinct, in the absence of proof of change of residence, is still a resident of that voting precinct. (Page 523.)</p> <p>5. Intoxicating Liquors— Local Option — Contests — Presumption — Voting with Party. In an election contest on the sole issue of allowing sale of intoxicating liquors, the presumption was that a voter who had previously affiliated and acted with the “drys” voted such ticket at the election. (Page 524.)</p> <p>6. Elections — Contest—Evidence—Admissibility—Declarations. A voter’s declarations and conduct about the time of and recently before casting his ballot may not be proved, in an election contest in which he is not interested as a party, as tending to establish how he voted, unless such declarations are part of the res gestae as determined from all the evidence as in other cases of res gestae. (Page 525.)</p> <p>7. Intoxicating Liquors — Contest—Parties—Defendant. In a city election contest on the issue of allowing sale of intoxicating liquors, where the city authorities refused to defend the election, an elector and resident of the city was allowed to do so on his own behalf, in view of the statute providing that an elector may file a contest, and that “any proposition submitted to the vote of the people may be contested.” (Page 526.)</p>

<p>1. WATERS AND WATER COURSES-DIVERSION OP STREAMS-FLOODING Lands. Though defendant by erecting a dam and maintaining it for over thirty years may have acquired a prescriptive right to divert the flood waters of the stream, he is not entitled to a directed verdict in an action by lower owners for damages caused by the diversion, where there is evidence that the original dam was raised and diversion increased. (Page 534.)</p> <p>2. Waters and Water Courses — -Diversion op Streams — Prospective Rights. After the dominant owner has acquired a prescriptive right to divert water of a stream by erection and maintenance of a dam, he cannot further injure the servient estate by increasing the height of the dam and the diversion of the water onto plaintiffs lands. (Page 535.)</p> <p>3. Appeal and Error — Scope—Conflicting Evidence. The finding of the jury on a direct conflict in the evidence is conclusive on the court on appeal. (Page 535.)</p> <p>4. Appeal and Error — Scope—Preservation of Exception — General Exceptions. The objection that testimony is incompetent, irrelevant, and immaterial does not save the objection that the witnesses were not properly qualified to testify. (Page 536.) •</p> <p>5. Damages — Excessive Damages — Evidence. The mere fact that the jury allowed a verdict in excess of the amount warranted</p> <p>by the evidence does not alone warrant the inference that the verdict was based on passion and prejudice unless the amount is so grossly excessive that it shocks the ordinary man’s sense of justice. (Page 539.)</p>

<p>1. Taxatiost — Apportionment by State Board oe Equalization, The determination of the state board of equalization in apportioning railroad property for taxation as to the boundary line between two counties is conclusive for the current year1 (Page 542.)</p> <p>2. Taxation — .Apportionment by State Board op Equalization —Correction. The state board of equalization, after apportioning railroad property for taxation in one county in May, 1914, had the right and power to make a reapportionment of the property to another county on the 3d day of August, 1914.1 (Page 542.)</p> <p>3. Interpleader — Bill—Demurrer. Where the state board of equalization had authority to reapportion railroad property for taxation to a certain county, a demurrer to the complaint alleging that both counties are attempting to collect tax, that plaintiff has refused to pay either county, and that the action is brought to interplead both counties to determine which is entitled to the tax, was properly sustained. (Page 542.)</p>

<p>Appeal from District Court, Second District; Hon. C. W. Morse, Judge.</p> <p>Action by tbe New Era Irrigation Company, a corporation, against the Warren Irrigation Company, a corporation, and the Pioneer Land & Irrigation Company, a corporation.</p> <p>Judgment for defendants. Plaintiff appeals.</p>

N. J. Harris, Judge.' Action by John Preeee against the Oregon Short Line Railroad Company. From a judgment, both parties appeal; the plaintiff also appealing from directed verdict for defendant.

C. W. Morse, Judge. Action by E. G-. O’Donnell, doing business as O’Donnell & Co., against W. H. Parker. From a judgment sustaining a demurrer to the complaint and dismissing the action, plaintiff appeals.

<p>1. Courts — Jurisdiction—Presumption. Although as to facts touching which a domestic record is silent, it will be presumed that what ought to have been done was rightly done, as Comp. Laws 1907, section 3197, mates a complaint which is not answered, with the memorandum indorsed thereon of default, and the summons with proof of service, a part of the judgment roll, the whole of which may be looked to,' where the ‘record and judgment itself showed the summons issued on an original complaint, but no service or even filing of an amended complaint, thus reciting what was done in such respect to confer jurisdiction to render judgment on the amended complaint, it may not then be conclusively presumed that something else or additional was done. (Page 592.)</p> <p>2. Evidence — Judicial Admissions by Counsel — Validity op Judgment. Whatever legal presumptions as to service and personal jurisdictions might be indulged from mere silence, when the truth of a fact which renders a judgment void, is judicially admitted, in open court and during the proceedings, for all purposes of the cause in which it is made, and as against him who made it, it ought to be treated as void. (Page 595.)</p> <p>3. Judgment — Vacation—Want oe Jurisdiction. Under Comp. Laws 1907, section 2964, requiring service of a copy of an amendment to a complaint, where the court, more than eight years after a default judgment, void because the complaint was not verified as required by Rev. St. 1898, section 3179, was rendered and entered, permitted the plaintiff, without notice or process, but on ex parte application, to amend his complaint, and without service thereof or notice of any hind, rendered and entered judgment thereon, it acted without authority, and the judgment so rendered and the transcript filed with the • recorder did not constitute a valid lien on property of the defendant in that action. (Page 597.)</p>

<p>Appeal from District Court, Fourth District; Hon. A. B. Morgan, Judge.</p> <p>Action by Sylvester Broadbent against the Denver & Rio Grande Railway Company.</p> <p>From a, judgment, both parties appeal.</p>

<p>Prohibition by Carrie A. Yerrick against the District Court in and for Salt Lake County, State of Utah. Writ denied, and proceedings dismissed.</p>

M. L. Ritchie, Judge. Lawrence Therkelson was convicted of having committed an indecent assault upon a female child of the age of 11 years, and he appeals.

<p>1. CORPORATIONS-TRANSFER OF STOCK CERTIFICATE-TITLE OF Holder. Where shares of a corporation are offered for sale by the person named in the certificate, an intending purchaser is not required to look beyond the recitals of the certificate in regard to his title or the equities of the corporation, or to suspect fraud in the issuing of the shares where all seems fair and honest. (Page 637.)</p> <p>2. Corporations — Transfer of Stock Certificate — Statute. In view of Comp. Laws 1907, section 330, providing that stock shall be deemed personal property, and the delivery of a stock certificate of a corporation, together with a written transfer of the same, signed by the owner, to a bona fide purchaser or pledgee for value, shall be deemed a sufficient transfer of the title as against any creditor of the transferor and all other persons whomsoever, a recital on a certificate of stock that it was “transferable only on the books of the company by indorsement hereon and surrender of this certificate,” did not preclude or restrict the right to otherwise sell, transfer, or pledge the certificate by indorsement and delivery. (Page 637.)</p> <p>3. Corporations — “Owner”—Transfer of Stock Certificate — Es-toppel to Deny. In Comp. Laws 1907, section 330,. the word “owner,” meaning not only the actual and legal owner, but also the apparent owner named on the face of the certificate and the holder thereof in the regular course of business, the defendant corporation is estopped to deny the ownership of a stock certificate issued in the name of other defendant as against plaintiff who took it as collateral security without notice of defect in title.1 (Page 638;)</p> <p>4. . Cqrporations — Transfer of Stock — Certificate — Statute — “Written Transfer.” Comp. Laws 1907, section 330, providing for a “written transfer” of stock, is satisfied by indorsement and delivery of the certificate of stock alone, and at least by a recital in a note of an assignment and transfer of the certificate as collateral security. (Page 639.)</p> <p>5. Corporations — Transfer of Stock — Certificate—Notice. Although that the assignor of a certificate of stock as collateral security objected to having the transfer to his assignee made on the books of the corporation as provided in the certificate may have been a suspicious circumstance, it alone was not sufficient cause of inquiry to overthrow other evidence, supporting a finding of bona fides on part of assignee. (Page 639.)</p>

<p>1. Damages — Injuey to Realty. If the thing destroyed, although a part of the realty, has a value ascertainable without reference to the value of the soil, the recovery must be for the value of the thing destroyed, and not for the difference in the value of the land before and after such destruction. (Page 643.)</p> <p>2. Damages — Evidence—Injuey to Ceops. In an action for destruction of growing crops, the measure of damages is their value at the time of their destruction, but in estimating them the probable yield and value of the crop, had it progressed to maturity, may be shown. (Page 643.)</p> <p>3. Damages — Evidence—Injuey to Ceops. Where grass or meadow has been eaten, injured,, or destroyed, its value for hay or grazing purposes may be shown, and also, if the roots have been destroyed the cost of reseeding and restoring the field or meadow and the loss of the hay or pasture sustained in the meantime. (Page 643.)</p> <p>4. Evidence — Damages—Injuey to Ceops. In action for injury to growing crops, it was error to allow witnesses, although experienced farmers, to testify directly to the amount of damage to the crop, since such testimony might have been based upon an element of damage not authorized by law. (Page 645.)</p> <p>5; Appeal and Ebeob — Revebsal—Necessity of New Tbial. In action for damage to crops, where inadmissible evidence as to plaintiff’s damages is received, judgment for plaintiff will be reversed, and the case remanded, notwithstanding there is evidence which would support the verdict, since the Supreme Court will not try the case de novo on the record. (Page 645.)</p>

<p>1. Physicians and Surgeons — “Practicing Medicine” — What Constitutes — Evidence. Evidence JtelcI to show that defendant practiced medicine without a license, as he undertook to examine, diagnose, and prescribe for all ailments, as well as to do general massaging. (Page 648.)</p> <p>2. Injunction — Practicing Medicine — Effect. A decree, enjoining defendant from diagnosing, treating, operating on, prescribing, or advising for any person afflicted with any mental or physical ailment or condition, from which he expects to or does receive a pecuniary compensation, or from practicing medicine within the state until he shall have received a certificate permitting him to practice medicine, does not prevent him from doing the business of an ordinary masseur, since it is in the words of Laws 1911, c. 93, prohibiting practicing medicine without a license. (Page 650.)</p> <p>3. Physicians and Surgeons — Practicing Medicine. Laws 1911, c. 93, prohibiting practicing medicine without a license, does not concern systems of treatments, but merely prohibits any one from treating diseases who has not the requisite qualifications. (Page 651.)</p>

A. B. Morgan, Judge. Suit by Welsh, Driscoll & Buck, a corporation, and another against William J. Buck, as executor of the last will of W. J. Wilson, deceased, and another to have certain deeds declared mortgages, in which defendants answered, praying affirmative relief quieting title. From a judgment dismissing the complaint and denying affirmative relief to defendants, plaintiffs appeal, and defendants cross-appeal. APPELLANT’S POINTS.

<p>Appeal from District Court, Third District, Hon. C. W. Morse, Judge.</p> <p>Action by the' State against P. A. Sorensen and another.</p> <p>Judgment for State. Defendants appeal.</p>