Volume 5 — Wyoming Reports

Richard H. Scott, Judge. Action by John Massengale and James Ross, co-partners as Massengale & Ross, against Thomas B. Adams, Edward C. Choate, Minerva M. Peters and George D. .Rainsford, as co-partners under the firm name of Adams, Choate & Co., upon a promissory note given for the balance of the purchase price for certain horses.

Hon. Jesse Knight, Judge. : Action by Janies M- Rumséy,- Jr., -against Marcus M. Towne, John H; Symons and Frank A. Hadsell, sheriff, to enjoin the sale upon éxeciition of certain real- estate levied upon as the property of William L. -Ash. ■ Judgment for plaintiff. Defendants- :prosecute error..

Jesse Knight, Judge. This was a proceeding brought to obtain a review of the trial and proceedings resulting in the conviction of Emil Edel-hoff of the crime of embezzlement. The facts are sufficiently stated in the opinion. The indictment is not certain. (L. 1890, p. 134, Sec. 53.) Articles of incorporation filed with the county clerk are not legal evidence of corporate existence. (R. S., p. 194.) An unnecessary description in a pleading must be proved as alleged.

ORIGINAL application for writ of prohibition, in which certain judgment and .execution creditors, the sheriff, and the judge of the district court were made respondents. The prayer of the petition was to the effect that all proceedings in a cer-. tain action in said district court be declared void, and that prohibition issue to prevent all the respondents from proceeding further in said action and upon the judgment. The facts are stated in the opinion.

John W. Blake, Judge. Orrin C. Kilkenny brought this action to recover damages for the construction of an irrigating ditch, without his prior consent, across lands claimed to be owned by him, and for injury to -his said lands on account of the Seepage of water from the ditch. The prayer of the petition was: 1. For $1,450 damages. 2. Injunction against maintenance of the ditch as enlarged, or in lieu thereof, further damages. 3.

Jesse Knight, Judge. Action by 'Ella L. Rasiniissen' against Conrad Anderson and Serena Anderson, for the recovery of certain real ’property. The material facts are fully stated in the opinion. • - ‘The signature of the parties'tb the contract should have'been identified. (1 Greenleaf Ev., Sec. 557-; Reynolds Stephen Ev., pV -104; Weaver v.-Whilden, ITS.

Richard H. Scott, Judge. The First National Bank of Sundance brought three cases against the Moorcroft Ranch Company, ánd the same company and James Millar, and the same company and George B. Thomas, respectively, to recover money due upon promissory notes, and secured an attachment upon certain real property. The attachments were afterwards, upon motion and hearing, dissolved by the judge of the district court in vacation.

Rich-Aed H. Scott, Judge. ■ Joseph II. McNeally was convicted of the crime of killing one head of neat cattle. He prosecuted error. The material facts are stated in the opinion. ' Continuance should have been granted, notwithstanding admission of .prosecution. (Embry v. Com¡, 13 S. .W,, 383; Brown v. State, 12 S. W., 1101; Ainsworth v: State, 16 S. W., 652.) Re-direct examination óf a witness'must -be-confined to matters brought out on cross-examination-.

EeeoR to District Court for Carbon County. Host; Jesse KNIGHT, Judge. This was an action by Thomas H. Hood against Robert A. Smiley to recover, an alleged balance due for labor and materials in the construction of a house, outbuildings and fences. There was an original verbal contract fixing a. certain price for the house according to certain general plans, consisting of a reference to another house already built, and a rough drawing of elevations.

Hon.- John W. Blaee, Judge. Action by Chaplin & McRae, publishers of the “Laramie Weekly Republican,” a newspaper in Albany County,- to recover from the county pay for publishing a notice for the sale of lands for delinquent taxes. Judgment for plaintiffs. The county brought error. The material,facts are stated in the opinion. Power to make contracts is conferred upon counties. (R. S., sec. 1791.) The powers are exercised by a board of commissioners.

Hon. John W. Blake, Judge. This was an action in mandamus to compel the county treasurer to publish tax sale notice in the “Boomerang,” the official newspaper of the county. Erom a judgment denying the writ, error' was prosecuted. It was submitted upon the briefs in the ease of Board, Etc., v. Chaplin et al., supra.

<p>Proceedings in Ebrob — Record—Bill of Exceptions — Exception to Overruling Demubbeb.</p> <p>1. The pleadings in the trial court are part of the record without being incorporated in a bill of exceptions.</p> <p>2, A motion for new trial is not necessary to preserve an exception taken to a ruling upon a demurrer to a pleading.</p> <p>S. The record showing an exception to an order of the trial court overruling the demurrer to the answer, and the petition in error assigning such ruling as error, the proceedings in error will not be dismissed because of imperfections in the bill of exceptions.</p>

Hon. Richard H; Scott, Judge. The facts in this case were stated by Mr. Justice Clark, as follows: The plaintiff in error was plaintiff below. The action was brought in. the court below to recover upon a promissory note made by the defendants to plaintiff’s intestate, and which is as follows: . “$100.00.

Ebeoe to District Court for Albany County. -Hon. W. Blake, Judge. The plaintiff, Alfred S. Peabody, brought this action against George L. Hutton personally and as administrator with the will annexed of Rowena H. Hutton, deceased, and Elizabeth Ann Hutton, to subject certain real property to the satisfaction of a.judgment against George L. Hutton.

Mandamus to District Judge, and Eeeoe to District Court' of Natrona'County. HoN. John W. Blake, Judge. John C. Conway was indicted for the'Crime of murder in 'the first degree.' The record showed that during the trial, • and after the prosecution had rested its testimony in chief, the plea of not' guilty was withdrawn, a plea of guilty of murder in the second degree entered, and the jury discharged.

On reserved questions from the District Court for Laramie County. Hon. Eichaed H. Scott, Judge. This was an action brought by Mary E. McFarland upon a policy of insurance upon the life of her husband. The facts are stated in the opinion. The language of the policy should be construed most strongly against the insurer. (Kratzenstein v. Ins. Co., 116 FT. Y., 59; Allen v. Ins. Co., 85 FT. Y., 473; Herman v. Ins. Co., 81 id., 184; Dilleber v. Ins.

Eeeoe to District Court for Converse County. Hon. Richard H. Scott, Judge. This action was originally commenced in the District Court, for Albany County, and was taken on change of venue to Converse County. It involved a claim for $3,000'damages for the alleged breach of a contract on the part of the Laramie Coal and Ice Co., a corporation, which was entered into between said company and the plaintiffs below, Arthur Eastman and N. R. Eastman, copartners as Eastman & Son.

Eebob to District Court for Laramie County. HoN. Richard H. Scott, Judge. This action was originally brought in the District Court for Albany County and transferred on change of venue to Laramie county. Edward S. Murray sued to recover balance due from Griff W. Edwards upon a written contract for the sale and delivery of certain sheep.

<p>EVIDENCE — DECLARATIONS OE AGENT — TRIAL ON ERRONEOUS Theory.</p> <p>1. The declarations or admissions of a bank cashier in a matter Wherein he is acting individually and not for the bank are inadmissible against the bank.</p> <p>2. To show that the cashier is acting in his individual capacity evidence that during the time in question he was absent from the bank and received no' compensation from it for services as cashier, is- competent, and its exclusion error.</p> <p>3. rt is the right of parties to assume, in' the absence of countervailing rulings- or indications, that a court will adhere to a theory 'clearly indicated hy a ruling. Where the theory thus indicated is wrong, and is such as will probably lead to an erroneous decision, it will be presumed on appeal, nothing to the contrary appearing, that the case was tried on the theory indicated by the ruling.</p>

Reserved questions from the District Court .for Fremont County. IIon. Jesse Knight, Judge. ■ This action was brought in the District Court of Fremont County to enjoin the defendants from proceeding to organize Big Horn County.

Action by James McPherson against- the Kearney Stone” Works, a corporation, for the recovery of money. ■ The facts ” are sufficiently stated in the opinion. Several causes of action were improperly-joined. (Wait’s Pr., Yol. 2, 364; Flynn v. Barley; 60 Barb., 73; Thorp v.‘ Dickey,- 51 la., 676; Bliss-Code PL, 90; R. S.,-sec. 2449; Titus v. Kyle, 10- 0;' St., 444; Walker’s Am.

Hon. Jesse Knight, Judge. In this action the Western Tube Company, formerly the Haxton Steam Heater Company, sought, to recover from School District No. 3 in the county of Carbon upon a school warrant issued to the A. L. Strang Co. for $2,650, October 30, 1886, in payment for steam heating apparatus placed in the school building at Rawlins, which warrant had been endorsed by the A. L. Strang Co. and was held by the plaintiff. $1,206.46 had been paid upon the warrant in three…

Reserved questions from District Court for Laramie County. HoN. Riohaed H. Scott, Judge.

RESERVED questions from the District Court for Carbon County. Hon. Jesse Knight, Judge. The facts are fully set out. in the opinion. maintained that the vote taken at the adjourned meeting to issue $23,000 of refunding bonds was valid, and the authority continued to issue any less amount that might- be necessary, and cited. (18 Am. & Eng. Ency. L., 297; Black v. Trower, 79 Va., 126; Walnut v. Wade, 13 Otto, 683; Hanibal v. Fauntleroy, 15.

Original application or suggestion for the writ of prohibition to:prevent action by,the District Court of Weston County, and William S.-Metz, the judge thereof, in a proceeding-brought in that court to, vacate, a-judgment after the term. The facts áré stated in the opinion. cited in support of the application, Louchiene v. Strouss, 49 Wis., 623; Braden v. Ruten-berger, 18 W. Va.; Stump, v. Long, 84 hi.

' Errok to the District Court for Laramie County, H-QN. Riohard H;-Scott, Judge; . - . ' ■ On November 23, 1894, the prosecuting attorney ..of Laramie County filed a criminal complaint before a justice of tbe peace for said; county, charging the defendant in error, with murder in the first degree, alleged to have been committed upon the person of one Thomas' O’Neil, on the 22nd day of November, 1894.

. Eeeob to the District Court for Laramie County. HoN. Eichabd H. Scott, Judge. Suit on the relation and for the use of School District No. 3 in the county of Laramie, against William Dolan, former treasurer of the district, for the recovery of double the amount of the money alleged to have been in his hands and not paid over to his successor.

Eeeoh to the District Court for Laramie County. HoN. Bichaed H. Scott, Judge. The instrument sued on was as follows: $28.16 Cheyenne, Wyo., May 5, 1893.

PETITION for writ of habeas corpus. Collingwood Boulter was convicted in the district court for Laramie county of the crime of manslaughter, and was sentenced to imprisonment in the penitentiary for a term of six years. The execution of the sentence was suspended upon notice of the prisoner’s intention to apply for a writ of error.

Biohard H. Scott, Judge. Lewis T. Griggs acted as deputy county clerk .for Wfeston Comity from February 2, 1891, until January 1, 1892. His appointment was made in writing, dated January 24, 1891, signed by the county clerk and purported to appoint him as deputy clerk for the term of two years, unless sooner revoked. He took the oath of office.

Suit for damages for unlawfully moving cattle from a certain locality largely enclosed, and containing unappropriated public land. As the decision of the court was based upon the determination that the plaintiff in error would only be entitled to nominal damages upon the evidence in the case, the facts are sufficiently stated in the opinion.

John W. Blake, Judge. George W. Hester and V. A. Hester, co-partners as Hester & Son, brought suit against Lew Smith, Edgar B. Shaffner, and John B. Okie, co-partners as L. Smith & Co., bankers, to recover the balance of the purchase price of oats sold by the plaintiffs, and claimed to have been purchased by the defendants. The defendant Okie alone appeared in the district court. Judgment was, however, rendered in favor of all the defendants.

RESERVED questions from thé District Court for Albany County. James E. Murphy, having been held to answer for the crime of bigamy, and being held in custody by the sheriff of Albany county under a commitment issued by the'examining magistrate, applied to the district court for writ of habeas corpus.

Eeeoe to District Court for Laramie County, HoN. Rich-aed H. Soott, Judge. Suit was brought in the name of the State for the use of Catherine Donnelly against Priscilla M. Snyder, 'Joseph A. Breckons, Ephraim S. Johnston and Abram Underwood. The petition alleged that on September 11, 1890, one Samuel Atkinson was elected clerk of the district court of the County of Laramie, for-the term ending January 2, 1893.

HoN. W. S. Metz, Judge. . ActioN for tbe recovery of specific personal property. Tbe material facts axe stated, in the opinion. : Tbe second defense in tbe answer omits many allegations necessary-to complete tbe defense of justification. It does not show that any command or authority was given to defendant in' the writ of attachment.

Habeas Corpus. On April 20, 1895, Collingwood Boulter, otherwise called Charles Boulter, applied to the justices of the Supreme Court for a writ of habeas corpus, alleging that he was unlawfully confined in the county jail of Laramie County by the sheriff of said county upon a judgment of conviction for the crime of manslaughter. The grounds upon which such imprisonment was claimed to be illegal are set forth in the opinion.

RichaRD H. Scott, Judge. Action by Julia O’Keefe against Colin Hunter, administrator of the estate, and certain named persons as heirs, of George L. Beard, deceased. The record contains an amended and supplemental petition alleging the execution and delivery to plaintiff, on April 1, 1891, by said decedent, of a certain promissory note for $2,000, and a mortgage to secure the payment of the same covering certain real estate 'in the County of Laramie. .

Hon. Rich-aed H. Scott, Judge. Action for recovery of possession of certain lands, located as an oil placer claim, in support of an adverse claim filed in the United States Land Office at Douglas, Wyoming, in opposition to ■ the application by defendant for a patent. Judgment was entered for defendant upon the pleadings. Plaintiff prosecuted error. The material facts are stated in the opinions.

Jesse Knight, Judge. was charged upon information filed by the pros’ecuting attorney of Eremont County, with having feloniously, wilfully, deliberately, and with premeditated malice aforethought, with a certain loaded pistol, made an assault upon one Chester D. Chrisman, with intent to murder him, on the 5th day of July, 1893.

RESERVED questions from the District Court for TJinta County, Hon. Jesse Knight, Judge; Application for hail by Edwin S. Crocker, charged by indictment with the crime of murder in the first degree. The facts are fully stated in the opinion. The Supreme Court has jurisdiction of cases on reserved questions (L. 1888, p. 140; Const., Art. 5, sec. 2). The general superintending control granted the court is something additional to its appellate jurisdiction.

JOHN W. BlaKE, Judge. ActioN to enjoin foreclosure of mortgage and mechanic’s liens on property of infant heirs, and for the cancellation of said liens.

Hon. William S. Metz, Judge. Eubel Brothers, a copartnership, brought replevin against the sheriff of Sheridan County, to recover possession of certain personal property of which plaintiffs claimed ownership. The sheriff held the goods under attachment in a suit brought by the Sheridan Brewing Company against J. A. Jones.

ReseRYed question's from the District Court for Albany County, Hon. John W. Blake, Judge. Action -by John H. Sehenck against the Union Pacific Ry. Co. and S. H. H. Clark et ah, receivers of said company, for $100 damages for a cow killed by the ears of the company, operated by said receivers.

John W. Blake, Judge. This was an action brought on the probate side of the district court, in'the matter of the estate of Charles Connors, deceased, by certain children of a deceased brother of Charles Connors, deceased, claiming to be the only heirs at law to his estate. The petition alleged that said Charles Connors left neither mother, father, brother, sister, wife or children surviving him.

Hon. Richard H. Scott, Judge. George Arnold was prosecuted upon information for the crime of unlawfully killing neat cattle. He was convicted and sentenced to a term of three years in the penitentiary, and brings error. ' The'material facts are stated, in the opinion.

Reserved questioNS from the District Court of Converse County, HoN. Riohard H. Scott, Judge. This was an election contest, and was tried to the district court without a jury. The court found the facts in the case, and then reserved certain questions to the Supreme Court for its decision. Samuel Slaymaker and Arthur W. Phillips had been opposing candidates for the office of clerk of the district court at the election held in November, 1894.

HoN. J OHN W. Blare, Judge. T. C. Van Horn was informed against, under Section 1G, cb. 40, L. 1888, for unlawfully cutting down, leveling, demolishing, destroying, injuring and removing a certain building erected upon a certain oil placer mining claim, the property of W. Tennant and Boney Earnest. He was convicted, and sentenced to pay a fine of three hundred dollars. A motion for new trial, incorporated in the bill of exceptions, was filed.

JOHN W. Blare, Judge. The C. D. Smith Drug Company brought suit against the Casper Drug Company for the recovery of money, and obtained an attachment. On motion of the defendant, and upon a hearing before the judge in vacation, the attachment was dissolved. Plaintiff prosecuted error. The material facts are stated in the opinion. The affidavit stated the grounds positively, in the language of the statute, and was sufficient.

William S. Metz, Judge. John Mahoney was convicted in the district court for unlawfully removing scabby sheep. He prosecuted error. Pend-1 ing proceedings in error the statute under which the conviction was had was repealed.

Isaac Chandler having been convicted of. an assault and battery with-intent to kill and murder,, and-sentenced to imprisonment for the term of fourteen years, was in the penitentiary, and in the custody of the warden thereof. Chandler applied for the writ of habeas corpus to be directed to N. D. McDonald, the warden of the State penitentiary. The case was heard upon the petition for the writ. The facts are stated in the .opinion.