Volume 5 — South Dakota Reports

Hon. J. O. Andrews, Judge. Action for a divorce. Plaintiff had judgment decreeing a dissolution of the maniage. Subsequently defendant made application for alimony and counsel fees. Allowed, and plaintiff appeals.

Hon. A. W. Campbell, Judge. Action by the city of Huron against John B. Carter for violation of a city ordinance. From a judgment for defendant, the city appeals. The facts so far as material are stated in the opinion. A prosecution on a part of a city for a violation of its ordinances, which does not amount to a crime or misdemeanor under the laws of the state, is only quasi criminal, and the principles of law applicable to the trial of civil causes should be applied to it.

Hon. J. 0. Andrews, Judge. Action on a promissory note. There was a verdict for defendant, and, from an order denying a new trial, plaintiff appeals. The facts are stated in the opinion.

Hon. H. D. Baldwin, Judge. Action on a contract. There was judgment for plaintiff, and defendant appeals. The facts are fully stated in the opinion.

<p>1. Where, before the appeal of a divorce case to this court, the trial court has made orders for reasonable temporary alimony for the wife, a motion in this court for further alimony will be denied, where the affidavits for and against the motion leave this court in serious doubt as to the’ability of the husband to pay more than the trial court has already ordered.</p> <p>2. In such case the question is not only what the wife ought to have, but what the husband can and oug'ht to pay.</p> <p>(Syllabus by the Court.</p>

Hon. J. O. Andrews, Judge. Action for personal injuries by Adelbert Alt against the Chicago & Northwestern Railway company. There was a verdiet for defendant, and from an order granting a new trial it appeals. To raise the objection to a verdict that the evidence is insufficient to justify it, the party raising the objection must specify the particulars in which the evidence is insufficient.

Hon. Frank R. Aikens, Judge. Action to recover against the defendant for alleged neglect of duty as sheriff. Plaintiff had judgment, and defendant appeals. The facts so far as material are stated in the opinion. In actions such as this the plaintiff must prove a valid judgment. It is not sufficient that he show an execution to be issued. McDonald v. Bunn, 3 Dak. 45.

, Hon. Frank R. Aikens, Judge. Action by the state of South Dakota against the Sioux Falls Brewing Company, Moriz Levinger and Moses Kaufman to abate an alleged liquor nuisance. There was judgment for plaintiff, and defendants appeal. The facts are stated in the opinion.

Hon. William Gardner, Judge. Appeal to the circuit court by the states attorney of Fall River county, from the action of the board of county commissioners of said county in accepting a court house constructed under a contract with said board, and drawing a county warrantin partial payment therefor. The action of the board was sustained, and from the judgment so ordering this appeal is taken. The facts are stated in the opinion.

Hon. William Gardner, Judge. Action to recover for breach of contract. There was judgment for plaintiff, and defendants appeal. The facts are stated in the opinion. •

Hon. J. 0. Andrews, Judge. Action by N. G. Foster against the Charles Betcher Lumber Company. There was judgment for plaintiff by default, and, from an order denying motion to set aside the same, defendant appeals. The facts so far as material are stated in the opinion.

Hon. E. G. Smith, Judge. Action on a policy of insurance. There was judgment for plaintiffs and defendant appeals. The facts are fully stated in the opinion.

Hon. A. W. Campbell, Judge. Action by Hannah Billinghurst against the county of Spink and W. C. Kiser, county treasurer, for an injunction. There was a decree for plaintiff, and defendants appeal. The facts are fully stated in the opinion. The plaintiff kept her money within the state in the hands of agents for, and as a regularly continued investment.

Hon. A. W. Campbell, Judge. Action on a promissory note. There was judgment for plaintiff, and defendant appeals. The facts are stated in the opinion. The appellant was not guilty of laches or negligence in the discovery of the fraud; no presumption of negligence can be indulged by reason of the mere lapse of time between the purchase of the bank stock by the appellant and the time of the actual discovery of the fraud.

Hon. Frank R. Aikens, Judge. Action to recover against the defendant as sheriff for damages alleged to have been sustained by reason of the refusal of the defendant to levy an execution. There was judgment for plaintiffs, and defendant appeals. The facts are stated in the opinion.

Hon. E. G. Smith, Judge. Action for the purpose of declaring a deed and bill of sale an assignment for the benefit of creditors. From a judgment sustaining the demurrer to- the complaint, plaintiffs appeal. The facts are stated in the opinion. The transfer of substantially all the property of an insolvent debtor while insolvent, with intent to abandon business to some of his creditors to the exclusion of others, creates a trust for the benefit of all his creditors.

Action to recover upon a written instrument. There was judgment for defendants, and plaintiff appeals. The facts are fully stated in the opinion.

Hon. A. W. Campbell, Judge. Action to recover the possession of certain land alleged to have been unlawfully withheld by defendant, and for damages for its detention. Plaintiffs had judgment, and defendant appeals.

Hon. E. Gr. Smith, Judge. Action in justice court to recover-damages. Defendant had judgment and plaintiff appealed to the circuit court. Upon the trial in the circuit court defendant objected to the introduction of any evidence, on the ground that the complaint did not state sufficient facts. This objection was sustained, and defendant had judgment. From that judgment plaintiff appeals. The facts are stated in the opinion.

Hon. Chas. M. Thomas, Judge. Action in ejectment. Plaintiff had judgment, and defendant appeals. The facts are fully stated in the opinion. The deed in question is one of plain remise, release and quit-claim, and defendent was in possession and so notified plaintiff. Plaintiff can therefore claim no standing as an innocent purchaser. May v. LeClaire, 11 Wallace, 217; Dodge v. Briggs, 27 Fed. 161; Hastings v. Nissen, 31 Fed. 597; Waller-ton v. Snow, 15 Fed. 403.

Hon. Frank R. Aikens, Judge. Action on a promissory note. From a judgment for plaintiff for a part, only, of his claim, he appeals. The facts are stated in the opinion. An unliquidated partial failure of consideration in the absence of statute is no defense to an action on a promissory note, but the defendant is left to his remedy in damages on breach of contract. Dan. Neg. Instr. Sec. 202; Randolph Com. Pa.

Hon. Frank R. Aikens, Judge. Action in replevin. Plaintiff had judgment, and defendant appeals. The facts are stated in the opinion. This action was brought by the plaintiff, an insane person, through his purported general guardian. The appointment of the guardian was denied in the answer. The proceedings for the appointment of a guardian are purely statutory and a strict compliance therewith is necessary to jurisdiction.

Hon. Frank R. Aikens, Judge. Action on a contract. There was judgment for plaintiff, and defendants appeal. The facts are stated in the opinion.

Hon. E. G. Smith, Judge. Action by John Ryan against J. N. Davenport. A motion to set aside the service of summons was denied, and defendant appeals. The respondent moved to dismiss the appeal on the ground that an order denying a motion to set aside the service of a summons is not an appealable order.

Hon. Frank E. Aikens, Judge. ■ .Action to enforce a mechanic’s lien on realty. Plaintiff had judgment, and defendants appeal. The facts are stated in the opinion. No evidence was introduced showing that any work was performed or any material furnished on any building situate on the premises describe'! in either the contract, the lien or the complaint. No proof was ever introduced that the defendant, Galloway, at any time owned these premises.

Hon. A. W. Campbell, Judge. Action by Mary S. Allison against Robert Allison to recover $3,645 as alimony based on a decree of divorce. Plaintiff had judgment for $194 only, and appeals. The facts are stated in the opinion.

Hon. E. G. Smith, Judge. Action to declare a trust and to require the receiver of an insolvent bank to pay over certain moneys or so much thereof as the money in his hands would pay. Plaintiff had judgment, and defendant appeals. The facts are fully stated in the opinion.

Hon. J. O. Andrews, Judge. Action for an injunction. Defendants had judgment, and plaintiff appeals. The facts are stated in the opinion. Where in an action to set aside a conveyance as fraudulent, there is a special finding of fact, the fraudulent intent must be found, or the conveyance will not be set aside. Citizens Bank v. Bolen, 23 N. E. 146; Sickman v. Wilhelm, 29 N. E. 908.

Hon. A. W. Campbell, Judge. Action on a promissory note by John G. Miller & Co. against Herbert S. Purchase and Rhoda Purchase, his wife. The action was dismissed as to Rhoda Purchase, and plaintiffs appeal. The facts are stated in the opinion.

Hon. E. Parliman, Judge. Action to recover for injuries to plaintiff’s goods while in defendants’ hotel. Plaintiffs had judgment and defendants appeal. The facts are stated in the opinion. The provisions of Section 3686, Comp. Laws, relating to the liability of inn-keepers is simply declarative of the common law and must be construed to apply to the personal property which a guest brings to the inn in his character as a traveler or guest, and not as a merchant or salesman.

Hon. Howard G. Fuller, Judge. Action to recover money paid by plaintiff upon a contract for the purchase of real estate. Judgment for defendants, and plaintiff appeals. The facts are stated in the opinion.

Hon Chas. M. Thomas, Judge. Action in attachment by the Black Hills Mercantile Company against Charles H. Gardiner and Merritt J. Bailey, partners. From an order discharging the writ issued, plaintiff appeals. The facts are stated in the opinion.

Hon. Chas. M. Thomas, Judge. Action in attachment by Otho S. A. Sprague and others affainst Charles H. Gardiner and another. From an order discharging the writ issued, plaintiffs appeal.

Hon. Chas. M. Thomas, Judge. Action in attachment by the Black Hills Mercantile Company against Charles J. Gardiner and another. The writ issued was dissolved, and plaintiff appeals.

Hon. A. W. Campbell, Judge. Action for malicious prosecution. Judgment for plaintiff, and defendant appeals. The facts are stated in the opinion. From the evidence the court should have decided as a matter of law that there was probable cause for the arrest. But if there were any facts to be decided upon conflicting evidence, the court should have submitted special findings and declared the law applicable thereto.

Hon. John E. Carland, Judge. This case was first decided by this court in an opinion filed December 8, 1892, reported in 3 S. D. 382, in which opinion the court affirmed the judgment of the lower court for the defendant. A rehearing was subsequently granted and the case re-argued at the April term, 1893. This opinion is upon the rehearing. The former decision, affirming the judgment in favor of the defendant, adhered to.

<p>Application of W. H. Helwig to be admitted to practice in the supreme court.</p>

Hon. Frank R. Aikens, Judge. Action to recover damages for breach of contract. The defendant was a non-resident, and on that ground plaintiff sued out an attachment. Defendant moved to dissolve the attachment on the ground that the cause of action as disclosed by the affidavit for an attachment was not one upon contract for the recovery of money only. The motion was denied and defendant appeals. The facts are stated in the opinion. Cited the following authorities: Comp.

<p>1. On a sale of a horse the sellers gave the purchasers the following warranty: “Know all men by these presents, that we have this day sold to the Colman Horse Company, one gray Norman stallion ‘Count Rotrow, 487,’ and he is free from all incumbrance, and their title to said horse is good, and the above-named horse warranted by his importer, George E. Case, of St. Peter, Mihn., to be, with proper care and handling, to be an average foal-getter; and should the above named horse prove to be barren, a horse of equal size and value to be put in his place.” Held, that by it the sellers did not for themselves warrant the horse to be “an average f.oal getter,” but did undertake that if the horse proved to be “barren” they would put another horse of equal size and value in its place.</p> <p>2. Proof that such horse was not an average foal getter did not show a breach of the sellers’ warranty.</p> <p>3. If the horse was not “barren” within the meaning of the warranty, refusal by the sellers to take him back and put another horse in his place did not constitute a breach of their warranty.</p> <p>(Syllabus by the court.</p>

Hon. Chas. M. Thomas, Judge. Action to recover for services alleged to have been performed by plaintiff for the defendant company. Plaintiff had judgment, defendant appeals. The facts are stated in the opinion.

Hon. William Gardner, Judge. Action to have a deed adjudged and declared to be a mortgage, and for an accounting of rents and profits. There was judgment for plaintiff and defendant appeals. The facts are .fully stated in the opinion. A deed with a contemporaneous agreement to recovery will not be reconsidered a mortgage unless such was already the intention of the parties. Wallace v. Johnstone, 129 U. S. 58 (B. 32 Co-op.

Original action in this court to recover from the state of South Dakota a salary as deputy superintendent of public instruction. Demurrer to complaint. The facts are stated in the opinion. The plaintiff, as deputy superintendent of public instruction of the state of South Dakota, was a public officer whose term of office expired when his principal’s term expired. Board of Supr., etc., v. Hackett, 21 Wis. 613; State v. Kalb, 50 Wis. 178.

<p>Appeal from Minnehaha county court. Hon. E. Parliman, Judge.</p> <p>Action to recover upon two certain promissory notes. Defendants had judgment, and plaintiff appeals.</p>

Hon. Frank R. Aikens, Judge. Action to set aside certain conveyances to realty and to decree plaintifl’s right to an interest therein. A demurrer to the complaint was overruled, and defendant appeals. The facts are stated in the opinion.

Hon. Prank R. Aikens, Judge. Action to recover damages to personal property alleged to have been caused by the negligence of the defendant. A verdict was rendered for defendant, and judgment entered thereon. Prom an order vacating the verdict and the judgment, defendant appeals.

• Hon. A. W. Campbell, Judge. Action to foreclose a real estate mortgage. Judgment for plaintiff, and defendant Parmalee appeals. The facts are stated in the opinion. Where a mortgage is gives upon real estate upon which a building is situated at the time the mortgage is given, the lien of the mortgage upon the buildingis extinguished by the removal of the said building from the land.

Hon. H. G. Fuller, Judge. The respondent moves to strike out certain portions of appellant’s abstract. The facts are fully stated in the opinion.

Hon. E. G. Smith, Judge. Action to recover upon a contract. Judgment for defendant. Plaintiffs appeal. The facts are stated in the opinion. The covenant in the instrument sued upon, to furnish a patent deed, was an independent covenant not to be performed until after payment was made by the defendants for the building.

Hon. Frank R. Aikens, Judge. This case was first decided by this court in an opinion filed March 3, 1894, reported in 5. S. D„ 39, 58 N. W. 1, in which opinion the judgment of the lower court was reversed.

Hon. Frank R. Aikens, Judge. This case wTas first decided by this court in an opinion filed February 21, 1894, reported in 5 S. D. 31, 58 N. W. 4. In that opinion the judgment of the lower court was reversed.

<p>(Syllabus by the Court.</p>

Hon H. G. Fuller, Judge. Action to recover damages for breach of contract. Plaintiffs had judgment and defendants appeal. The facts are fully stated in the opinion. It is not the province of a reply to introduce a new cause of action. The plaintiff can recover, if at all, only on the causes of action stated in his complaint.

Hon. Chas. M. Thomas, Judge. Action to recover damages for injuries caused by a defective bridge. Judgment for defendant, and plaintiff appeals. The facts are fully stated in the opinion.

Hon. Frank R. Aikens, Judge. Action to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals. The facts are fully stated in the opinion. Upon the proposition on which the court decided the case, counsel for appellant cited: Songstad v. Ry. Co., 5 Dak. 517; Simmons v. C., etc., Ry. Co., 110 111. 340; S. C. 18 A. & Eng. R. Cas. 50; Jacksonville, Tampa & Key West Ry. Co. v. Peninsular Land & Mfg.

Hon. A. W. Campbell, Judge. Action by the American Investment Company, of Emmetsburgh, Iowa, against the county of Beadle, in the State of South. Dakota, a corporation. From a judgment for defendant, plaintiff appeals. The facts are stated in the opinion. Taxes levied and assessed against land are void when the government afterwards cancels the entry. Reynolds v. Plymouth Co. 55 la. 90; Bronson v. Kukok, 3 Dillon (U. S. Cir.) 490; Pitts v. Clay, 27 Fed 635.

Hon. E. G. Smith, Judge. Action by the Adams & Westlake Company against the Hicks-Trask Hardware Company, C. E. Deyette and W. W. Lewis to set aside certain judgments confessed by said company in favor of said Deyette and Lewis. From a judgment for plaintiff, defendant^ appeal. The facts are stated in the opinion.

Application of the state, on the relation of Henry D. Van Nice, for writ of habeas corpus against Rufus H. Whealey. The facts are fully stated in the opinion. No briefs filed.

Hon. A. W. Campbell, Judge. Action to recover balance alleged to be due for wages. Plaintiff had judgment. The facts are stated in the opinion. A verdict against the evidence in a case ought to be set aside by the trial court and if not will be on appeal. Kaemmerer v. Hauser, 29 111. App. 576; Butts v. Colton, 6 Dak. 307; Mo. Pac. R. Co. v. Cassity, 24 Pac. 88; Aultman Miller & Co. v. Sheele, 52 N. W. 817.

Chas. M. Thomas, Judge. This case was first decided by this court in an opinion filed February 15, 1898, reported in 3 S. H. 497, 54 N. W. 535, where the judgment of-the lower court in favor of defendant was affirmed. A rehearing was subsequently ordered and this opinion is upon the rehearing. The facts are fully stated in the opinion.

Hon. Arank R. Aikens, Judge. This case was first decided by this court in an opinion filed Oct. 4, 1892, reported in 3S. D. 305, 53 N. W. 82, in which opinion the judgment of the lower court in favor of the defendant was affirmed, A rehearing was subsequently ordered and this opinion is upon that rehearing.

Hon. H. G. Fuller, Judge. Action to recover upon a school township warrant. Defendants had judgment. Plaintiff appeals. The facts are stated in the opinion. An answer denying specifically and generally the making of an instrument and separately alleging payment of the same, is bad and should be stricken out on motion.

A. W. Campbell, Judge. S. N. Boughner was convicted of selling liquors illegally and brings error. The facts are stated in the opinion. A defendant should have reasonable notice of the witnesses by whom it is expected the indictment is to be sustained. Comp. Laws, §7236; State v. Stearns, 1 S. D. 480; Const. Art. 6, § 2. In criminal cases the jury are the judges of the law, as well as the facts. State v. Croteau, 54 Am. Dec. 90; Patterson v. State, 44 Am. Dec. 530.

<p>Appeal from circuit court, Custer county. Hon. John W. Nowlin, Judge.</p> <p>Action to recover upon a promissory note. Plaintiff had judgment. Defendants appeal.</p> <p>The facts are stated in the opinion.</p> <p>The note is the contract of the corporation. Farmers & Mch.Bk. v. Colby, 64 Cal. 352; Boker v. Chandler, 4 Greene, la. 429; Sanborn v. Neal, 4Mun. 137; Pearson v. Post., 2 Dak. 220; Hitchcock v. Buchanon, 105, N. S. 416; Blanchard v. Kaull, 44 Cal. 448; Fowell v. Codd, 3 Buch. 581; Comp. Laws, §3996; Cook Corp. Laws § 724; Whitney v. Wymaú, 101 U. S. 392. Parol evidence is admissible to explain the circumstances under which the note was made, and the matter to which it related, and the intention of the parties. .Comp. Laws, § 3562, 3563, 3564, 3551; Pearson v. Post, 2 Dak. 248; CaseMfg. Co. v. Laxman, 138 U. S. 431; McClintock v. Hughes, 15 S. W. 200; Martin v. Smith, 3 S. 33; Babcock v. Beman, 11 N. Y. 200; Matt v. Hicks, 13 Am. Dec. 550; Hall v. Pierce, 32 Md. 327; McCiellou v. Reynolds, 49 Mo. 812; Western Pub. v. Buchanon, 51 N. W. 214; Cook Con. Law § 724. When a corporation has received, the benefit of a contract without objection .it may be presumed to have authorized or ratified the same. Pittsburg Railroad V. Keokuk, 181 U. S. 371; Dobrey v. Stevens, 40 How. Pr. 341. Persons signing a note for a corporation as officers thereof do not bind themselves individually unless they use apt words to so charge themselves. Cole v. O’Brien, 51 N. W. 316; Hall v. Crandall, 29 Cal. 568; Duncan v. Niles, 32 111. 532; Bartlett v. Tucker, 104 Mass. 339; Blau v. Pioneer, 66 Cal. 455.</p> <p>Errors of law occurring on the trial and not presented in a motion for a new trial in the trial court are held to be waived. Fitzgerald v. Brandt, 54, N. W. 994; Cheney v. Wagner, 46 N. W. 427; Manning v. Cunningham, 31 N. W. 933; Joyner v. Van Alystyne, 30 N. W. 944; Stanton v. Canefield, 10 Neb. 389; Roper v. Feris, 29 Pac. 1146; Stautherv. Fuller, 26 Pac. 471; Dryden v. Chicago, 28 Pan. 153; Walcott v. Bachman, 23 Pac. 72; Decker v. House, 17 Kan. 316; Midland v. McCarbrey, 1 Neb. 398; Detheredge v. Montgomery, 4 Bush. 46; Pogue v. State, 13 Mo. 444; State v. Richardson, 77 Mo. 539; Kent v. Lawson, 12 Ind. 675; Hallock v. Iglehart, 30 Ind. 327; Edwards v. Powell, 74 Ind. 294; Steck v. Mahar, 26 Ark. 536.</p> <p>The note upon its face clearly appears to be the note of the individuals signing it. McCandless v. Canning, 78 la. 161; Huffuerv. Brownell, 70 la. 591; Wing v. dick, 59 la. 473; Par.kerv. Mech. Inc. Co. 3 Wendall 92; Brockway v. Allen, 17 Wandell 40; Tilden v. Bernard, 43 Mich. 376; Cornier v. Clark, 12 Cal. 168; Hyper v. Griffin, 89 111. 134; Burlingham v. Brewster, 79 111. 515; Davis v. England, 141 Mass. 587; Robinson v. Kanawho, 8 N. E. 588; Dutton v. Marsh, L. R. 6 S. B. 361. The note was a contract of the individuals, not ambiguous, and parol evidence is not admissible to vary 'or explain it. Comp. Laws, § 3545; Slawson v. Loring, 5 Allen 342; Reudell v. Harrimen, 75 Mo. 497; 'Deslands v. Gregory, 2 El. & El. 609.</p>

<p>Application by Arthur L. Carter against Thomas Thorson, secretary of state, for a writ of prohibition.</p> <p>The facts as stated in the opinion.</p>

Hon. D. Haney, Judge. - Prank 33. Phelps was convicted of murder and brings error. The facts are stated in the opinion. Evidence of the commission of another offense by defend • ant cannot be admitted against him upon trial for a crime. Rice Evi. 207; People v. Shoop, 107 N. Y. App. 427; Shaffner v. Comm. 72 Pa. 60; State v. Lapage, 57 N. H. 245.

J. O. Andrews, Judge. Action upon a contract of guaranty. Judgment for defendants and plaintiff appeals. The facts are stated in the opinion. A continuing guaranty is one which by its term indicates that the parties look to a future course of dealing for an indefinite time. 9 Am. E. Enc. Law, 77; Mathews v. Phelps 28 N. W. 108; Comp. Laws § 4288. A contract in writing takes effect upon the delivery to the party in whose favor it is made. Comp.

Hon. Prank R. Aikens, Judge. Action to recover upon a contract. Judgment for defendant. Plaintiff appeals. The facts are stated in the opinion. Ah agent, who, for a valuable consideration, agrees to effect insurance, or by custom of his employment is required to do so, neglecting to so insure is answerable to his principal for the loss which he may thereby suffer. Sedg. Mess. Dam. 338; 3 Suth. on Dam. 9; Park v. Hammond 4 Camp. 344; Perkins v. Ins. Co., 4 Cow. 645; Moniev.

Hon. Frank R. Aikens, Judge. Supplementary proceedings by the J. Thompson & Sons Manufacturing Company for the examination of Christopher Guenthner and Frederick Haar, partners as Guenthner & Haar, as to an alleged indebtedness to Reede Bros. From an order refusing to set aside an order requiring said Guenthner & Haar to pay over a certain amount to _ said manufacturing company, they appeal. The facts are stated in the opinion.

Hon. A. J. Plowman, Judge. Action by Louis Brown and others against J. Prank Edmonds and others. Judgment for plaintiffs. Prom an order requiring defendant Edmonds, after examination, to deliver certain property to the sheriff, he appeals. Respondents moved to dismiss the appeal, which motion is in this opinion denied. The facts are stated in the opinion.

Action original in this court to recover compensation from the State of South Dakota for subsistence furnished men and horses in the service of the state during the Sioux Indian insurrection of 1890 and 1891. A demurrer to the complaint was in- ' terposed by the state. The facts are stated in the opinion.

Hon. Frank R. Aikéns, Judge. Action by Imogene Phillips and others against the .city of Sioux Falls and others. From a judgment sustaining a demurrer to the complaint, plaintiffs appeal. The facts are stated in the opinion.' The making of the contract with the lowest bidder is a part of a special assessment. Reis v. Graff, 51 Cal. 90.

Hon. William Gardner, Judge. Action in claim and delivery. Plaintiff had judgment. Defendant appeals. The facts are stated in the opinion. The counter-claim for damages grew out of the contract for the sale of the machine and evidence of such damages should have been admitted. Comp.

<p>1. An appeal from a district or circuit court, taken more than two years after the rendition and filing of a judgment, gives this court no jurisdiction, and must be dismissed.</p> <p>2. This rule applies to an appeal under section 477, Comp. Laws, from a judgment revoking the license of an attorney and counselor at law.</p> <p>(Syllabus by the Court.</p>

Hon. A. W. Campbell, Judge. Application by Joseph D. Howard against the city of Huron and the mayor and council requiring them to levy a tax. Judgment for plaintiff, and defendants appeal. The facts are stated in the opinion. An alternative writ of mandamus is in the nature of a declaration in an ordinary suit of law and is subject to the same rules of pleading. 14 Am. E. Enc. Law, 212.

Hon. A. W. Campbell, Judge. Action to foreclose a real estate mortgage. Judgment for defendant Lane, and plaintiff appeals. The facts are stated in the opinion. A purchaser by quitclaim deed is not bona fide and takes only the actual interest his grantor had at the time of the conveyance.

Hon. Frank R. Aikens, Judge. Action to recover rent. Plaintiff had judgment and defendant appeals. The facts are stated in the opinion. An agreement to execute a lease does not constitute of itself an actual lease. Davis v. Thompson, 13 Me. 209; Baxter v. Browne, 2 Bl. Rep. 973; Doe ex Dem.

Hon. J. 0. Andrews, Judge. Action to recover damages for personal injuries alleged to have been caused by the negligence of defendant. The plaintiff had judgment and defendant appeals. The facts are stated in the opinion. In absence of evidence to the contrary, tbe presumption is that the law of another state relative to a contract is the same as that in force in this state. 19 Am. E. Enc.

Action original in this court to recover from the State of South Dakota money alleged to be due for salary as deputy superintendent of public instruction. This case was first decided by this court in an opinion filed April 26, 1894, and reported in 5 S. D. 321, 58 N. W. 804. In that opinion a demurrer to the complaint was sustained. Thereafter plaintiff petitioned for a rehearing which in this opinion is denied.

Hon. A. W. Campbell, Judge. Action to foreclose a chattel mortgage. Judgment for plaintiff and defendants appeal. The facts are stated in the opinion. A conditional sale does not pass title.

Kingsbury county. Hon. J. O. Andrews, Judge. Action by an assignee for the benefit of creditors to recover of the defendant as sheriff the value of certain goods sold by the defendant under an execution. Plaintiff had judgment and defendant appeals. The facts are stated in the opinion. A deed of assignment is void when the debtor therein reserves exemptions to which he is not entitled. Comp.

<p>Appeal from circuit court, Lawrence county. Hon. Charles M. Thomas, Judge.</p> <p>Action against the defendant as sheriff and others to recover damages alleged to have sustained by reason of an alleged unauthorized release of certain property held by him under an execution. Defendants had judgment, plaintiffs appeal.</p> <p>A claim of exemption must be made within a reasonable time or the right is waived. Stewart’s Appeal, 10 Atl. 833; Thompson Home. & Bxemp. § 820. If the debtor is present at time of levy and does not claim his exemptions, he waives his right. Angelí v. Johnson, 2 N. W. 435; Moffett v. Adams, 14 N. W. 88; Tielke v. Morgan, .7 N. W. 651. When property is specifically exempt by statute, or has been selected as such, there can be no conveyance of it in fraud of creditors. Kullage v. Schenler, 7 Mo. App. 250; Wemrickv. Koelling, 21 Mo. App. 133; Statesburg v. Kirtland, 35 Mo. app. 157; Nieman v. Kock, 40 Mo. app. 635. In the case at bar the sale was voidable only by the creditors of the vendor. It was a valid sale against the plaintiff. Alt v. Bank, 9 Mo. App. 91; óassell v. Williams, 12 111. 387; Piper v. Johnson, 12 Minn. 66; Holman v. Martin, 12 Ind. 553; Mandlore v. Burton, 1 Ind. 40; Tielke v. Morgan, 7 N. W. 651; Bump. Fraud. Conv. 472; 2 Bigelow Fraud 60; Sugg v. Tillman, 2 Swan 208; Rose v. Sharpless, 33 Gratt 153; Nichal v. Deridson, 8 Lea 393.</p> <p>A partner may assert his claim to exemptions out of partnership property individually either before or after severance of the partnership. Stewart v. Brown, 37 N. Y. 350; Blanchard v. Poschal, 68 Ga. 32; Scott v. Kenon, 94 N. 0. 296; Skumer v. Shannon, 44 Mich. 86; O’Gorman v. Tink, 57 Wis. 649; McCoy v. Boeman, 61 Mich. 362; Servanti v. Luck, 43 Cal. 238; Watson v. Simpson, 5 Ala. 233; Latchford v. Cany, 52 Miss. 791; McManne v. Campbell, 37 Tex. 267; Pussell v. Lenniow, 39 Wis. 570; Newton v. Howe, 29 Wis. 531. The wife of a debtor has a reasonable time after the levy in which to claim her exemptions. Robinson v. Hughes, 20 N. E. 220; Rice v. Nolan, 5 Pac. 437. Exempt property is not subject to fraudulent alienation. Bales v. Callender, 3 Dak. 256; Freeman Exec. § 214; Thompson Home & Exemp. § 425; Waples Home & Exemp. 917; Sannover v. King, 5 S. W. 327; State v. Carson, 43 N. W. 361; Stave v. Hanks, 14 O. St. 298; Tracy v. Cover, 28 0. St. 61; Mosely v. Anderson, 40 Miss. 49; McAbe v. Thompson, 6 N. W. 479; Duvall v. Rollins, 71 N. C. 221; Crummen v. Bennett, 68 N. C. 495; Mannberg. v. Hyatt, 14 Fed. 898; Elder v. Williams, 16 Nev. 416. The conveyance of exempt property to defraud creditors might be treated as void by the creditors — but debtor would still have his right to claim his exemption out of the property. Berry v. Hanks, 28 111. App. 31; Vaughn v. Thompson, 1 111. 78; Bell v. Devore, 96 111. 217; Bliss v. Clark, 39 111. 519; Ins. v. ■ Mills, 37 111. 75; Green v. Marks, 25 111. 223; Dortch v. Benton, 3 S. E. 638; Derby v. Wayrich, 8 Neb. 176; Rosenthal v. Scott, 41 Mich. 633; Wilcox v. Hawley, 31 N. Y. 648; Pike v. Miles, 23 Wis. 164; Callsway v. Carpenter, 10 Ala. 500; Front v. Vaughn, 52 Vt. 451; McCord v. Moore, 5 Heick, 734; Anthony v. Wade, 1 Bush. 110; Moons v. Tenant, 56 Ga. 577; Homs v. Tiffany, 25 O. St. 549. A debtor cannot contract in advance to waive his family exemptions. Kneetle v. Newcomb, 22 N. Y. 250; Recht v. Keliy, 82 111. 147; Mooty v. Raj on, 10 Bush. 156; Maloney v. Newton, 85 Ind. 565; Branch v. Fornlinson, 77 N. C. 388; Carter v. Carter, 20 Fla. 558; Maxwell v. Reed, 7 Wis. 582; Curtis v. O’Brian, 20 la. 376; Demy v. White, 2 Colo. 283; Van Wickle v. Landsy, 29 La. 330; Blolock v. Elliott, 59 Ga. 837; Moran v. Clark, 30 W. Va. 358.</p> <p>The giving of a delivery bond to the sheriff is not a waiver to afterwards assert the claim of exemption. Elbyroth v. Webster, 15 rInd. 121; Desmond v. State, 15 Neb. 438. Mere acquiescence in the sheriff’s possession does not constitute a waiver in the absence of a time limited to make a claim, provided such claim is made before sale. Jordan v. An trey, 10 Ala. 226; State v. Emmerson, 74 Mo. 607; Shepperd v. Murrill, 90 N. C. 208; Might v. Devoe, 86 111. 490; Butt v. Green, 29 O. St. 667; Meiles v. State, 73 Md. 398; Comm v. Boyd, 56 Pa. St. 402; Williamson’s App. 132 Pa. St. 455.</p>

Original action by the Jewell Nursery Company against the State of South Dakota, for trees and shrubbery planted upon the state agricultural college grounds at Brookings. The facts are stated in the opinion.

Hon. A. J. Plowman, Judge. Action by the state, on the relation of Thomas Power and others, against Thomas Power and others. Plaintiffs had judgment. Defendants appeal. .The facts are fully stated in the opinion. A general act of the legislature in no wise repeals a special act.

Petition by the State of South Dakota, on relation of M. Kunz, for a writ of certiorari to review the action of A. W. Campbell, judge of the fifth judicial circuit of South Dakota, in confirming an execution sale to Lucetta R. Miller on foreclosure of a mortgage. The fact's are stated in the opinion.

Hon. J. W. Jones, Judge. Action by Lueila B. Pettigrew and Alma J. Pettigrew against the city of Sioux Palls, S. D., and George B. Sammons, treasurer of the city of Sioux Palls, to enjoin the collection of a reassessment against certain lots on account of street improvements in which there was a judgment for plaintiffs. Prom an order denying a motion to vacate such judgment, defendants appeal. The facts are fully stated in the opinion.

Hon. E. Parliman, Judge. Action on a promissory note, in which there was a judgment for plaintiff by default. Prom an order denying a motion to open and vacate such judgment, defendant appeals. The facts are stated in the opinion.