Volume 56 — Oregon Reports

From Lane: James W. Hamilton, Judge. Statement by Me. Chief Justice Moore. This is a suit to enforce the specific performance of an alleged contract to convey real property, and was commenced by Charles H. Chick, Constantine Morton, and Everett P. Lewis against J. T. Bridges and Belle, his wife; but by intervention the Security Savings & Trust Company, a corporation, T. W. Harris, and L. E. Bean subsequently became parties defendant.

<p>From Multnomah: Earl C. Bronaugh, Judge.</p> <p>Statement by Mr. Chief Justice Moore.</p> <p>This is an action by the Columbia Valley Trust Co., a corporation, v. Milton W. Smith, to recover the amount of a matured promissory note executed by the defendant to D. C. Pelton, and alleged in the complaint to have been assigned and transferred by the latter to the plaintiff, which it is averred is a private corporation, duly organized and existing under the laws of Oregon.</p> <p>The answer denies, upon information and belief, that the plaintiff is a corporation, etc., or that Pelton assigned the note to it. The cause was tried without the intervention of a jury, and, judgment having been rendered upon the findings of fact made according to the allegations of the complaint, the defendant appeals.</p>

Statement by Mr. Justice McBride. This is a suit by Mrs. E. A; Kelsay against Alma Taylor and O. D. Taylor to foreclose a mortgage upon, certain real property situated in Dalles City, Wasco County. On September 12, 1904, defendant, O. D. Taylor, borrowed $500 of plaintiff, giving a promissory note, signed by himself, and a mortgage signed and executed by him as attorney in fact for the defendant Alma Taylor, to secure the payment of the note.

From Multnomah: Robert G. Morrow, Judge. The defendant, W. E. Douglas, was tried and convicted of a crime, and from the judgment and sentence following such conviction, he appeals. The State files in this court a motion to dismiss the appeal. Motion allowed.

From Marion: George H. Burnett, Judge. A. B. Smith, indicted as A. C. Smith, was convicted of assault and robbery, being armed with a dangerous weapon, and he appeals. Reversed, and accused dis- charged from custody.

From Multnomah: Earl C. Bronaugh, Judge. Statement by Mr. Justice Slater.

From Lane: Lawrence T. Harris, Judge. Statement by Mr. Justice Eakin. . This is a suit by W. G. Davis against Glen A. Brigham and Kate Brigham, his wife, and the Monroe Timber Company, a corporation (intervenor), to enforce the specific performance of a contract for the sale of real estate.

<p>Taxation — Sale—Proof of Proceedings.</p> <p>1. Where a tax sale is postponed from a date when an old law is in force to a date when a new law becomes operative, if the certificates of sale are insfteetive under the old law, but are effective under the new, the burden of proof, in a suit to recover possession of property held under such tax sale, does not shift to plaintiff on defendant’s introducing in evidence a tax certificate, but he must prove, to overcome plaintiff’s title, which was good except for the tax sale, that all steps necessary to obtain jurisdiction in the tax sale were taken, and this burden is not sustained by introducing a deed from the county, which purchased the property at. the tax sale, although General Laws 1901, p. 73, § 5, provides that a tax deed shall be conclusive evidence of the regularity of proceedings, except' as to certain jurisdictional matters enumerated, as the deed from the county was not a tax deed.</p> <p>Taxation — Sale of Land — Action to Recover Land Sold — Limitations.</p> <p>2. Sections 3128, 3146, B. & C. Comp., limit the time within which an action to recover lands sold for taxes .can be begun to three years from the record of the tax deed. Acts 1901, p. 73, § 5, and Section 3135, B. & C. Comp., limit the time for such an action where property has been sold to counties or other public corporations to two years from the record of the deed. Beld, that, where the purchaser under a tax sale has been in possession but two years, and there is no evidence that his deed lias been placed on record, limitation has not run, although three years have elapsed between the date of the sale and the beginning of the action.</p> <p>Mr. Justice King, dissenting.</p>

From Multnomah: CALVIN U. Gantenbein, Judge. Statement by Mr. Justice McBride. On August 13, 1908, John F. Watts recovered a judgment against the State Spiritualists’ Association of Oregon (a corporation), in the justice court for Portland district, Multnomah County, _ for the sum of $112.95.

From Multnomah: John B. Cleland, Judge. Statement by Mr. Justice Slater.

From Clatsop: Thomas A. McBride, Judge. This is a suit by Stoffer Pater Raski against Marcus Wise for an accounting and to have a deed; conveying certain lands in Clatsop County, declared a mortgage. From a decree granting insufficient relief, plaintiff ' appeals.

<p>Municipal Corporations — Nuisance — Intoxicating Liquors — Authority of City — Review by Courts.</p> <p>1. The city of Eugene, being authorized by Sp. Laws 1905, p. 251, § 48, subd. 8, to prevent, regulate, prohibit, and remove nuisances, and declare by ordinance what shall constitute a nuisance, had power to declare that the maintenance in the city of a house for the unlawful sale of liquors or the carrying on of such business was a nuisance under the rule that the city’s declaration that a particular thing shall be a nuisance under such general authority will not be overruled by the courts unless arbitrary, unjust, and manifestly wrong.</p> <p>Intoxicating Liquors — Local Option Law — Adoption—Effect.</p> <p>2. Where local option has been adopted in any city or incorporated town, all laws or ordinances conflicting therewith are suspended.</p> <p>Municipal Corporations — City Ordinances — State Law — Priority.</p> <p>3. Where an act is prohibited by State law, a city ordinance previously in force cannot be invoked to permit.the same act.</p> <p>Intoxicating Liquors — Local Option Law — Nuisance.</p> <p>4. There is no conflict between the local option law and a city ordinance declaring a place in the city maintained for the illegal sale of liquor to be a nuisance.</p> <p>Criminal Law — Evidence—Judicial Notice.</p> <p>5. The Supreme Court will take judicial notice that the State University is located at Eugene in determining the validity of an ordinance of that city declaring the maintenance of a business for the unlawful sale of liquor therein to be a nuisance.</p> <p>Criminal Law — Former. Jeopardy — Nature of Offense.</p> <p>6. Where defendant was convicted of violating the local option law prohibiting the sale, exchange, or giving away of intoxicating liquors within a city in which the law was in force, such conviction was no bar to a subsequent prosecution for violating a municipal ordinance punishing the carrying on of the business of selling intoxicating liquor within the city or devoting any building or premises thereto, and declaring the carrying on of such business to be a nuisance; the offenses, though established by the same act of sale, not being the same.</p> <p>Municipal Corporations — City Ordinances — Violation—Complaint.</p> <p>7. Under Section 90, B. & C. Comp., providing that in pleading a city ordinance it shall be sufficient to refer to it by title and the date of its approval, a complaint for violating an ordinance providing that the maintenance of a business for the unlawful sale of liquor shall constitute a nuisance, giving the title of the ordinance, its number of the particular section which defendant was claimed to have violated, and charging in detail the acts constituting such violation, was sufficient after verdict.</p> <p>Municipal Corporations — Police Power — Sentence — Time — Statutes.</p> <p>8. Under Section 2273, B, & C. Comp., providing that, when the defendant pleads guilty or its convicted, the justice of the peace must give judgment as prescribed by law, and under Eugene City charter (Sp. Laws 1905, p. 246, § 18), providing that proceedings in the recorder’s court shall be governed by the laws controlling criminal actions before justices of the peace, and Section 1431, B. & C. Comp., providing that two days shall elapse between the receiving of a verdict and the prouncing of sentence, does not apply to a conviction in the recorder’s court of such city.</p>

From Tillamook: William Galloway, Judge. Statement by Mr. Justice McBride. The plaintiff in this case was incorporated by the legislature by a special act passed at the session of 1893; the act of incorporation being found at pages 545 to 564 of the Session Laws of Oregon for 1893.

From Multnomah: Calvin U. Gantenbein, Judge. Statement by Mr. Justice Eakin. This is a suit by Ella Talbot against W. K. Smith and others to quiet title to a piece of ground situated in the Talbot donation land claim in Multnomah County, Oregon.

<p>From Multnomah: Thomas O’Day, Judge.</p>

From Marion: William Galloway, Judge. Statement by Mr. Justice Eakin. This is a proceeding by F. P. Talkington, as administrator de bonis non, against Ed. C. Herren and Mrs. M. E. Becker, formerly Mrs. M. E. Fraser, as sureties on the bond of the former administratrix, for an accounting. William Murray died in Marion County, Oregon, August 21, 1903, leaving his widow, Emma Murray, as his only heir.

<p>Courts — Decisions—Stare Decisis.</p> <p>1. Where the Supreme Court held that an amendment to a city charter was valid, and costly improvements were made and bonds issued on the faith of the decision, the question would not be re-examined, especially where the party seeking to raise it had slept upon any rights he might have had, and to depart from the holding would disturb property rights.</p> <p>Municipal Corporations — Public Improvements — Assessments.</p> <p>2. An amendment to a city charter provided that all water mains should bo laid and assessed and paid for as provided in article 6 of the charter relative to sewers and drains, and that the provisions of Section 2727, B. & C. Comp., shall be applicable. Section 2727 provides that an assessment for a street improvement may be paid by installments. The method of constructing sewers, under article 6, is by assessment on adjacent property; but the particular method of making the assessment is contained in article 7. Articles 6 and 7 deal in their general scope with the same subject.. íhey are sectionized consecutively, beginning with section 389 of the charter, and running to section 421. Held that, though article 7 was not mentioned in the amendment, its provisions were adapted for water main improvements.</p>

From Marion: George H. Burnett, Judge. Statement by Mr. Justice McBride. This is an action by S. E. Peck against Julius G. Voget, to recover damages for the nonperformance of a contract to build a dwelling house for plaintiff, according to certain plans and specifications.

<p>From Columbia: James U. Campbell, Judge.</p> <p>This is an action by James Muckle and Charles. Muckle, against Columbia County, and Martin White, sheriff. From a judgment in favor of plaintiffs, the defendants appeal.</p>

<p>From Multnomah: Robert G. Morrow, Judge.</p> <p>Statement by Mr. Justice Eakin.</p> <p>This is a suit by the Portland Fish Company, a corporation, H. W. Trembath, G. W. Pursifull, Isaac Pursifull, Harry Aune, Alvin Richardson, Chas. F. Ely, Anton Naterlin, Elic Douthit, James Baxter, Wilbur Strauzer, Henry Schuler, George A. Brown, Ed. Howell, John Hosey, Wm. Dutcher, Ed. E. Magoon, F. Fredericks, Otto Larson, G. Rozentrader, John Naterlin, G. B. Wilson, Nelson Olson, Joseph Medley, Nicholas Storey, James Hosey, William Hosey, M. Dhooge, John Erickson, R. C. Worthington, Isaac Austin, John Abrahams, W. O. Smith, Peter Stanich, John Stanich, and John A. Nelson, to enjoin F. W. Benson, as Governor of the State of Oregon; F. W. Benson, as Secretary of the State of Oregon; F. W. Benson,- as member of the Oregon State Board of Fish Commissioners; Geo. A. Steel, as State Treasurer; Geo. A. Steel, as a member of the Oregon State Board of Fish Commissioners, and H. C. McAllister, Master Fish Warden, of the State of Oregon, from enforcing an order made by the Board of Fish Commissioners closing to fishing the lower Willamette and the Clackamas Rivers from March 1 to May 1 of 1910.</p> <p>The complaint alleges that in the month of January, 1910, the board issued the following order and notice:</p> <p>“Know all men by these presents: That,.whereas, the Board of Fish Commissioners of the State of Oregon and the United States Bureau of Fisheries have propagated and stocked and are propagating and stocking the waters of the Willamette and Clackamas Rivers and their tributaries, in the State of Oregon, with salmon fish; and whereas, said streams are frequented by salmon fish, and, for the purpose of protecting the same, the said Board of Fish Commissioners has decided to close the said Willamette River .and its tributaries below and north of the falls thereof at Oregon City, and all of the Clackamas River and its tributaries, to prevent fishing therein, in any manner whatever, for salmon fish, during the period of time herein specified. Now, therefore, notice is hereby given by said Board of Fish Commissioners that said Willamette River and its tributaries, below and north of the falls thereof at Oregon City, and all of said Clackamas River and its tributaries, are, and each of them is, hereby closed to fishing, in any manner whatsoever, for salmon fishing, between twelve o’clock noon on the first day of March, 1910, and twelve o’clock noon on the first day of May, 1910; and it is and will be unlawful to fish for or take or catch any salmon fish in any of said waters during said period of the time above specified. Any and all persons whomsoever so fishing in violation of this notice will be prosecuted as by law provided.”</p> <p>That plaintiffs are engaged in the business of catching fish in such streams for market; that the streams are closed by statute from March 15th to April 15th of each year, but during the remainder of the time included in the order they have had and exercised the right to fish in the streams, and that by immemorial custom such right is a vested right. The order was made under the authority of Section 4106, B. & C. Comp., and, so far as important here, reads:</p> <p>“The. Board of Fish Commissioners is authorized by this act to propagate and stock the various waters and streams of this State with salmon (.and other fishes) * * and for the purpose of protecting the same they are hereby authorized to close any stream * * frequented by salmon, or any stream which they have stocked * * (for that purpose) they shall cause notice thereof to be filed in the office of the county clerk in each county in which such stream * * lies, and shall publish such notice in some public newspaper * * for four successive weeks. * * and shall cause like notices to be published for such time in three conspicuous places on the banks of such stream; * * and it shall be unlawful at any time after.the expiration of the date specified in said notice for any person to fish * * until notice shall be filed and likewise published * * of the opening of such stream * * for fishing.”</p> <p>The proceedings of the board in issuing the notice and in the service thereof are alleged to be irregular, without authority, and void, for the reason, among others, that the order was not authorized by the board at a regular or an adjourned meeting,'or at a meeting specially called for that purpose; that the closing of the streams is unneccessary for the protection and guard of the propagation of salmon; that the notice was not served as required by law; that it infringes upon a vested right of plaintiffs and a custom of long standing.</p> <p>Defendants demurred to the complaint for the reason that it does not state facts sufficient to constitute a cause of suit, and that the court has no jurisdiction of the subject-matter of the suit. The demurrer w,as sustained, and decree rendered thereon dismissing the complaint.</p> <p>Plaintiffs appeal.</p>

From Marion: William Galloway, Judge. Statement by Me. Chief Justice Mooee. This is a suit by the Taylor Sands Fishing Company, a corporation, to enjoin F. W. Benson and George A. Steel, constituting the State Land Board of Oregon, from leasing certain real property.

From Marion: George H. Burnett, Judge. The defendant, Hattie McGinnis, was tried and convicted of the crime of keeping a house of ill fame, and from the judgment following, she appeals.

From Marion: George H. Burnett, Judge. The defendants, Bollie Richie, Rose Leland and Julia Downing, were each tried and convicted of the crime of keeping a house of ill fame, and from the judgment and sentence that followed, each appeals.

<p>' From Marion: George H. Burnett, Judge.</p> <p>The defendant, Emma Thomas, was tried and con-victor of keeping a house of ill fame, and from the judgment and sentence following, she appeals.</p>

From Jackson: Hiero K. Hanna, Judge. Statement by Mr. Justice Slater. In the early part of June, 1909, the city of Medford, Jackson County, Oregon, began an action in the circuit court of Jackson County to condemn and appropriate a right of way for constructing a pipe line in connection with its gravity water system across the farm and meadow lands of M. F. Hanley, the plaintiff herein.

From Tillamook: George H. Burnett, Judge. Statement by Mr. Justice McBride. On December 20, 1907, there was filed in the office of the county school superintendent of Tillamook County two petitions, identical in language and purport, signed by the legal voters for school purposes in school districts Nos. 32 and 50, respectively, praying for a change in the boundaries of those districts, so as to include a portion of district No. 50 within the boundaries of district No. 32.

<p>From Klamath: Henry L. Benson, Judge.</p> <p>This is a special proceeding instituted by A. Castel and Kent Ballard for writ of review against Klamath County, J. B. Griffith, as county judge, Fred Melhase and Albert. Walker, as. county commissioners. From a judgment in</p> <p>favor of defendants, plaintiffs appeal.</p>

From Coos: James W. Hamilton, Judge. Statement by Mr. Justice Slater. This appeal is taken from a decree of the circuit court of Coos County, foreclosing a number of laborers’ liens upon the defendant’s coal mine in that county, for work alleged to have been performed thereon by plaintiff and his assignors for defendant’s lessees during the year 1906; the lease not having been recorded.

From Multnomah: John B. Cleland, Judge. The defendant, Hans Goodager, was convicted of manslaughter, and from the judgment and sentence which followed, he appeals.

From Washington: Thomas A. McBride, Judge. Statement by Mr. Justice Slater. S. M. Holland, the plaintiff herein contracted with defendant, C. Rhoades, to erect for him three one-story, five-room cottages of like design, at the agreed price of $1,177.25 each. He entered upon the execution thereof by beginning the erection of one cottage. Thereafter, on April 18, 1907, the terms of the contract were reduced to writing, and signed by the parties.

From Klamath: Henry L. Benson, Judge. Statement by Mr. Justice Slater.

<p>Deeds — Delivery—Husband and Wife.</p> <p>1. Possession of a deed from husband to wife, by the wife, did not constitute a delivery where none was intended by the husband.</p> <p>Deeds — Delivery—Evidence.</p> <p>2. Evidence held to sustain a finding that a deed from husband to wife and a bill of sale were not delivered to the wife by the husband with intent to pass title.</p>

<p>From Douglas: James W. Hamilton, Judge.</p> <p>Statement by Mr. Justice Slater.</p> <p>This action was brought by J. C. Twitchell against A. J. Risley to recover $1,050 alleged to have been paid by plaintiff to the Hartford Life Insurance Company for the use and benefit of the defendant at the latter’s special instance and request.</p> <p>The answer denies generally the averments of the complaint, except as thereinafter set forth. The further answer is to the effect that the money sought to be recovered was paid upon a special contract, whereby, in consideration of plaintiff paying one-half of the quarterly premiums, as they became due, upon a certain policy of insurance, and continuing to pay them during the life of the insured, he was to receive upon the death of the insured one-half of the amount collected under the policy.</p> <p>A demurrer was sustained to the new matter of the answer, whereupon the parties entered into the following stipulation:</p> <p>“That the plaintiff paid substantially as alleged in defendant A. J. Risley’s further and separate answer the sum of $1,020, to which answer a demurrer was interposed and sustained by the court, and it is hereby agreed by and between the parties, hereto that judgment may be entered against A. J. Risley in that sum. It is further understood and agreed that the defendant, A. J. Risley, is not to be prejudiced hereto to take an appeal to the Supreme Court of the State of Oregon from the ruling of the court sustaining the demurrer to his further and separate answer, it being the intention thereby to arrive at the amount, if any, due plaintiff in this action, if a trial was had on the issues as they now stand.”</p> <p>Based upon this agreement, a judgment was entered against defendant, who has attempted to appeal therefrom, assigning as errors the sustaining of plaintiff’s demurrer and the rendition of the judgment.</p>

<p>Pleading — Joining Several Causes in One Statement — Motion to Strike.</p> <p>1. Under Section 106, B. & C. Comp., providing that when any pleading contains more than one cause of action, if the same be not pleaded separately, such pleading may, on motion, be stricken out, a complaint in which several causes of action are not separately stated is not demurrable.</p> <p>Pleading — Indefiniteness or Uncertainty — Waiver.</p> <p>2. Where the allegations of a complaint are not so repugnant as to destroy one another, but there is some indeliniteness or uncertainty, objection to the complaint is waived by defendant pleading to the merits.</p> <p>Cancellation of Instruments — Parties.</p> <p>3. Plaintiffs friend having transferred the property to a third person, it was unnecessary to make the friend a party to the action to cancel the deed to defendant, as a former trustee, who has been divested of all title and interest in the trust estate, is not a necessary party in a suit to recover the legal title.</p> <p>Cancellation of Instruments — Pleading—Knowledge of Trust.</p> <p>4. Plaintiff left his farm in charge of a friend, who was to pay the taxes on the same and enjoy the use thereof while plaintiff was absent from the State, and surrender possession upon his return. The friend subsequently secured a tax deed to the property without the knowledge of plaintiff, and transferred the property to a third person in trust for plaintiff. Defendant thereafter secured a deed of the property from the third person, and by misrepresenting the condition of affairs to plaintiff secured a deed to the property for nominal consideration. Held, in an action to set aside this deed for fraud, that it was not necessary to specifically allege that defendant knew of the trust relation between plaintiff and his friend, but such knowledge would be necessarily implied from the averment that defendant falsely represented to plaintiff that the friend had failed, neglected, and refused to pay taxes upon the land; such allegation assuming the existence of knowledge by defendant of the duty of the friend to pay the taxes for plaintiff.</p> <p>Deeds — Grounds for Cancellation — Misrepresentations.</p> <p>5. If one, about to purchase a tract of land, willfully misstates any material fact to the owner, or by any act intentionally misleads him as to the value of the land, and thereby induces the owner to part with his property for less than its value, the contract will be set aside as a fraudulent transaction.</p> <p>Deeds — Fraudulent Representations — Matters of “Fact or Opinion.</p> <p>6. A matter of opinion may amount to an affirmation of fact, when the parties are not dealing upon equal terms, and one of them has means of information not equally open to the other.</p> <p>Deeds — Evidence—Fraud.</p> <p>7. Evidence, in an action to set aside a deed as having been secured by fraudulent representations, held sufficient to show that the deed was so secured.</p>

From Douglas: James W. Hamilton, Judge.. Statement by Mr. Justice Eakin. This is a suit by Mary E. Houck, M. C. Gregory and Leona E. Abraham, against the City of Roseburg, a municipal corporation, A. N. Orcutt, its recorder, and J. D. Jarvis, its marshal, to enjoin the defendant city from collecting a sewer assessment.

<p>From Sherman: Robert R. Butler, Judge.</p> <p>This is an action by E. B. Moon and Blake Shaw, against H. Richelderfer, wherein a judgment was rendered in favor of plaintiffs, and defendant appeals. On motion to dismiss appeal.</p>

From Marion: George H. Burnett, Judge. Statement by Mr. Justice Eakin. This is an action of forcible entry and detainer brought in the justice court for Salem district, Marion County, Oregon, by .the German Evangelical Reformed Bethany Church of Salem, Oregon, a corporation, against Lena Schindler and Frieda Muellhaupt.

From Multnomah: Thomas O’Day, Judge. Statement by Mr. Justice King. This is an action by the Northern Pacific Railway Co., against E. W. Spencer, doing business under the firm name and style of The Dalles Transportation Co., for the recovery of $660, alleged to be due plaintiff for the use by defendant of its wharf at the foot of Columbia street in Vancouver, Washington.

From Multnomah: Earl C. Bronaugh, Judge. Statement by Mr. Justice McBride. This is a suit by A. E. Andrews against Oliver J. Brown to establish a disputed boundary line. The complaint is in the usual form, alleging plaintiff’s ownership of certain premises, and that there is a dispute or controversy between the parties to this suit concerning the location of the boundary or dividing line between their lands.

From Multnomah: Calvin U. Gantenbein, Judge. This is an action by J. E. Stowell against E. D. Hall to recover damages for a personal injury. From a judgment in favor of plaintiff for $788, defendant appeals.

<p>Appeal and Error — Filing of Transcript — Extension of Time.</p> <p>The appeal being, by provision of Section 549, subd. 4, B. & C. Comp., perfected from the time the surety on the appeal bond, being excepted to, appears and justifies, -within 30 days from which time appellant is required to file a transcript in the Supreme Court, unless, as provided by Section 553, subd. 2, an order for extension of the time therefor be made 'within said 30 days, no jurisdiction is conferred on the Supreme Court by the filing of the transcript under an order of the trial court made after expiration of such 30 days, so that appeal will be dismissed.</p>

From Marion: William Galloway, Judge. Statement by Mr. Chief Justice Moore.

From Linn: William Galloway, Judge. Statement by Mr. Justice Eakin. This is a suit by H. H. Hewitt as executor of the last will and testament of Edward Loat, deceased, against John Smith and Martha A. Smith, his wife, to foreclose a mortgage.

From Multnomah: Thomas O’Day, Judge. This is an action by William B. Gosslin and Harry L. Hamblet partners doing business under the firm name and style of Gosslin & Hamblet against H. J. Martin. From a judgment for defendant, plaintiffs appeal.

From Lake: Henry L. Benson, Judge. This is a suit by the State of Oregon against the Warner Valley Stock Company, a corporation, and others, for the purpose of canceling certain deeds issued by the State Land Board to R. F. McConnaughy, one of the defendants herein, and the Warner Valley Stock Company, conveying to them large bodies of swamp land. From a decree in favor of the defendants, plaintiff appeals.

From Lake: Henry L. Benson, Judge. Statement by Mr. Justice Slater. On October 7, 1905, the defendant, a corporation, brought an action of ejectment against the plaintiffs herein to recover the possession of Section 33, Township 39 S., Range 24 E., W. M., situate in Lake County. It claims title to said lands by direct and mesne conveyances from the State as swamp land, granted to it by Act of Congress March 12, 1860, c. 5, 12 Stat. 3 (Rev. St. U. S. 2490 [U. S. Comp.

From Lake: Henry L. Benson, Judge. Statement by Mr. Justice Slater. Plaintiff John H. Green filed his cross-bill in equity to an action of ejectment, brought by the defendant, the Warner Valley Stock Company, to recover the possession of the S. % of the N. E. %, the S. E. % of the N. W. yé, and lot 2 of section 19, township 39 S., range 25 E., W. M., situate in Lake County, Oregon.

<p>From Lake: Henry L. Benson, Judge.</p> <p>Statement by Mr. Justice Slater.</p> <p>Plaintiff, Jerry Harrington, filed his cross-bill in equity to an action of ejectment, brought by the defendant, the Warner Valley Stock Company, a corporation, to recover the possession of the N. % of the S. W. Vh, and lots 3 and 4 of section 35, township 39, S., range 24 E., W. M., in Lake County. The pleadings and the facts upon which this case is based, excepting as hereinafter stated, are substantially the same as the pleadings and facts stated in the case of Morrow v. Warner Valley Stock Co., 56 Or. 312 (101 Pac. 171), with which this case was consolidated by stipulation of the parties for the purpose of trial in the lower court and in this court. The decree awarded the land to the defendant, and dismissed the bill, from which decree the plaintiff has appealed.</p>

<p>From Lake: HENRY L. BENSON, Judge.</p> <p>Statement by Mr. Justice Slater.</p> <p>Plaintiff, S. Dixon, filed a cross-bill in equity to an action in ejectment, brought by the defendant, the Warner Valley Stock Company, a corporation, against plaintiff to recover the possession of the N. 14 of the S. E. and lots 5 and 8 of section 7, township 40 S., range 24 E., W. M., containing 163.02 acres of land in Lake County, of this State. The pleading and the facts upon which the case is based, except as hereinafter noted, are substantially the same as those stated in the case of Morrow v. Warner Valley Stock Company, 56 Or. 312 (101 Pac. 171), with which this case was consolidated, by stipulation of the parties, for the purpose of trial in the lower , court and in this court. The decree awarded the land to "the defendant, and dismissed the bill for want of equity, from which plaintiff has appealed.</p>

From Lake: Henry L. Benson, Judge. Statement by Mr. Justice Slater. Plaintiff, D. T. Foskett, filed his cross-bill in equity to an action of ejectment, brought by the defendant, the Warner Valley Stock Company, a corporation, against him to recover the possession of the S. E. % of the S. E. 14 of section 22, the S. of the S. W. ti and the S. W. 14 of the S. E. % of section 23, township 39 S., range 24 E., W. M., in Lake County, Oregon.

From Multnomah: John B. Cleland, Judge. Statement by Mr. Chief Justice Moore.

<p>From Marion: William Galloway, Judge.</p> <p>Statement by Mr. Justice McBride.</p> <p>This is an action by B. H. White against W. C. Price and the United States National Bank to collect from the defendant Price, the sum of six hundred dollars on an alleged verbal contract for the sale of certain homestead rights in 160 acres of land in the State of Idaho.</p> <p>The complaint alleges:</p> <p>“That on or about the 6th day of April, 1908, plaintiff and defendant, W. C. Price, entered into an oral agreement and contract wherein and whereby it was agreed by and between plaintiff and said defendant Price that if the plaintiff would induce and secure one George H. Palmer to relinquish to the government of the United States a certain homestead right held by said George H. Palmer on the S. W. ^4 °f section 9, township 5 N., range 4 W., Canyon County, State of Idaho, and would otherwise assist said defendant Price in securing said tract of land as a homestead to be filed upon, under the general laws of the United States regulating the taking of homesteads, by Austin Price, a son of the defendant W. C. Price, upon said services being rendered, the said defendant W. C. Price would pay to plaintiff the sum of $600 for such services. That in pursuance of said agreement said defendant W. C. Price deposited the sum of $600 with the said defendant National Bank as security for the performance of said agreement on the part of said defendant W. C. Price, with the agreement and understanding that said sum was to be paid over and delivered to plaintiff upon the performance of the agreement aforesaid, and the said defendant National Bank received said sum of $600 with full notice and knowledge of said agreement by and between plaintiff and defendant W. C. Price, and has ever since and does now retain said sum of $600 as a special deposit under the terms of said agreement, and that plaintiff is entitled to be paid out of such sum so deposited. That in pursuance of said agreement, and in pursuance of said sum of $600 being deposited with said bank as aforesaid, the said plaintiff secured from the said George H. Palmer a relinquishment to said lands, and delivered the same to said defendant W. C. Price, to be returned to the United States Land Office in the State of Idaho, in the district where said lands are situated, and the said defendant W. C. Price duly caused said relinquishment to said lands to be filed in the said land office and thereupon the said plaintiff under said agreement accompanied said defendant W. C. Price and his said son Austin Price to the State of Idaho, and pointed out to them the said lands, and purchased and bought in a certain contest proceeding, which had been filed against said homestead in the said land office in said district and State of Idaho, and caused the same to be canceled and withdrawn, and otherwise aided and assisted in securing said lands, as a homestead, to be filed upon by said Austin Price, according to said agreement and under and by virtue of the laws of the United States regulating the taking of public lands as a homestead, and that thereupon the said Austin Price, under the direction of said defendant W. C. Price, duly made application to the said land office and duly filed upon said lands, according to said agreement, and under and pursuant to the provisions of the general laws of the United States regulating the taking of homesteads, and is now in the possession of said lands as aforesaid. That plaintiff has fully performed all of the terms and conditions of said agreement upon his part to be performed, and has paid out and expended in acquiring and securing said homestead to said Austin Price under the terms of said agreement the sum of $370.50 in cash, and, in addition to such expenditure, was absent from his place of business for seven days or thereabouts and suffered great loss and inconvenience on account thereof, and that, by reason of the foregoing, there is now due and owing the plaintiff the said sum of $600. That after said agreement had been performed by plaintiff as aforesaid, and on or about the-day of April, 1908, the said defendant W. C. Price notified the said defendant bank not to pay over to plaintiff the said sum of $600, and the said defendant bank ever since has, and does now, refuse to pay over to plaintiff the said sum of $600 or any part thereof. That said defendant W. C. Price is wholly insolvent and has no property within the State of Oregon subject to execution or out of which said plaintiff could secure his said claim. That plaintiff has no adequate or sufficient remedy at law against the said defendant W. C. Price, and that the said defendant bank threatens to turn over said money the said defendant Price, and that, unless the said defendant bank is immediately restrained and enjoined by an order of this court from delivering or paying to said defendant W. C. Price said sum of money, that plaintiff will suffer irreparable injury and damage.”</p> <p>The complaint concluded with a prayer for an injunction pendente lite, and for a decree against defendant W. C. Price for the sum of $600 and costs, and an order of the court directing the defendant bank to pay over to plaintiff the sum of $600.</p> <p>The answer admitted the first paragraph of the complaint, specifically denied the other allegations thereof, and set up fraud and misrepresentation on the part of plaintiff in obtaining the contract, which latter allegations are denied in the reply.</p>

<p>From Baker: William Smith, Judge.</p> <p>Statement by Me. Justice McBeide.</p> <p>This is a. suit by Ida A. Decker against J. F. Decker, for divorce. To the complaint, which charged cruel and inhuman treatment and personal indignities, was interposed a general denial. Upon the trial a stipulation was entered into, providing for the care, custody, and support of the' minor children. The evidence showed that defendant, without any cause, called plaintiff a whore, and other vile names, in the presence of their children, and used vile language' in regard to her mother, whereupon she struck him a light tap on .the cheek with the back of her hand, doing him no injury. Enraged at this, he struck her on the face with his fist-, cutting her cheek, and pushed her into another room and choked her until one of his sons pushed him aside. . He never afterward made any apologies or expressed any regret for his language or violence. The accusations against plaintiff’s chastity were false, and defendant never attempted to justify them, and introduced no testimony to contradict that above recited. The circuit court refused a divorce, and plaintiff appeals.</p>

From Marion: George H. Burnett, Judge. Statement by Mr. Justice Eakin. This is an action by J. W. Meyer against T. A. Livesley and John J. Roberts, partners doing business under the firm name and style of T. A. Livesley & Co., to recover upon a contract for money he expended in cultivating and harvesting a crop of hops.

<p>Appeal and Error — Record—Sufficiency of Transcript.</p> <p>1. Upon appeal from a deere for a trial de novo, appellant must incorporate in the transcript the evidence received in th,e lower court under the express provisions of Section 553, subd. 1, B. & C. Comp., and where the abstract of title to land, the title to which was in question, is not in the transcript, the sufficiency of the title cannot be inquired into.</p> <p>Frauds, Statute of — Sale of Land — Part Payment and Possession.</p> <p>2. Where a purchaser of land pays part of the price and takes possession, the sale is taken out of the statute of frauds so as not to require a written memorandum in order that the agreement may be specifically enforced.</p>

From Marion: George H. Burnett, Judge. Statement by Mr. Justice Slater. Plaintiff G. A. Webb seeks by this action to recover $300 as the agreed commission for securing a purchaser of a tract of land in which the defendant, J. M. Wolfard, was interested.

From Marion: William Galloway, Judge. Statement by Mr. Justice Eakin.

From Umatilla: Henry J. Bean, Judge. Statement by Mr. Justice McBride. This is a suit brought by plaintiff to enjoin Irvin and others from acting as directors and officers of the plaintiff corporation.

From Grant: George E. Davis, Judge. Statement by Mr. Justice Slater. ' The defendant, Ben Hinton, was indicted at the November, 1908, term of the circuit court for Grant County, being charged with the larceny of a bill of exchange, in the form of an ordinary check upon a bank.

From Josephine: Hiero K. Hanna, Judge. Statement of Mr. Justice McBride. This is an action by Nina B. Lathrop against the Modern Woodmen of America, an incorporated fraternal and beneficiary organization, having its head office and place of business, called a “Head Camp,” in the State of Illinois, and a subordinate council or camp at Grants Pass, Oregon.

<p>Eminent Domain — Rights of Cities — Water Sources Outside City Limits.</p> <p>Section 2, Article XI, Constitution of Oregon, as amended in 1906, provides that the legislative assembly shall not enact, amend, or repeal any charter or municipal act of incorporation, but that the legal voters of every city and town are granted power to enact and amend their municipal charter subject to the State’s constitution and criminal laws. Pursuant to such provision, complainant city amended its charter so as to provide that its water and light commission should have power to acquire by condemnation proceedings all necessary rights of way over the lands of any person or persons for the pipe line for its water plant, and to extinguish riparian rights that might otherwise interfere therewith, to be conducted in the same manner as condemnation proceedings for railroad rights of way are conducted. Section 5108, B. & C. Comp., declares that any incorporated city or town may appropriate to public use any private real property, water, or water course, and that such appropriation may extend beyond its corporate limits, to be made in the manner prescribed by the act. Held, that complainant city had power to appropriate by eminent domain the water flowing from certain springs across defendant’s land situated without its corporate limits.</p>

From Marion: William Galloway, Judge Statement by Mr. Chief Justice Moore. This is a suit to set aside an order made by the defendant, the Railroad Commission of Oregon, requiring the plaintiff, the Portland Railway, Light & Power Company, a corporation, to reduce in some particulars a schedule of fares, and also to deliver, to persons paying the diminished charge, transfer tickets granting further. conveyance on other cars under its management.

From Wallowa: John W. Knowles, Judge. Statement by Mr. Justice McBride. This is an action by W. J. Funk & Co. against T. M. Butler, C. W. Stevens, Mabel Butler, and Lillias A. Stevens for goods sold and delivered. “The complaint alleges that T. M. Butler and Mabel Butler are husband and wife, and. C. W. Stevens and Lillias A. Stevens, the respondent here, are also husband and wife. It also alleges that T. M. Butler and C. W. Stevens are partners.

On Motion to Dismiss. From Marion: James W. Hamilton, Judge. Statement Per Curiam. The defendant, S. W. Jones, has undertaken to appeal from the judgment rendered by the circuit court for Marion County. He caused to be served upon and left with plaintiff’s attorneys the original notice of appeal, with proof of service thereon, and filed with the clerk of the lower court a copy thereof, without any such indorsement.

From Lane: Lawrence T. Harris, Judge. Statement by Mr. Justice King. This is an action by M. J. Doyle against the Southern Pacific Company, for $100,000 damages, on account of injuries received while in defendant’s employ, through being run down by one of its engines. The grounds upon which recovery is sought appear from the pleadings; the issues framed thereby being set out in the instructions given to the jury by the court.

<p>Criminal Law — Appeal—Record—Collusiveness.</p> <p>1. The record of the trial as certified by the judge is controlling on appeal in determining what were the rulings on objections to evidence.</p> <p>Criminal Law — Appeal—Invited Error — Right to Complain.</p> <p>2. Accused cannot complain of any action of the court which he invited.</p> <p>Criminal Law — Appeal—Necessity op Exception — Remarks of Trial Judge.</p> <p>3. Remarks of the trial court to which no exceptions were taken will not be considered on appeal.</p> <p>Homicide — Evidence—Admissibility.</p> <p>4. Where, on a trial for murder in the first degree, the theory of the State was that accused intended to kill a third person, and not decedent, and the State showed that at the time of the killing decedent and the third person were together, and that accused was embittered toward the third person in consequence of trespasses committed by him on accused’s land, evidence that, about two hours before the killing, accused armed with a gun, had a difficulty with the third person, and attempted to prevent him from crossing accused’s field, was admissible to establish premeditation and deliberation essential to constitute murder in the first degree.</p> <p>Criminal Action — Harmless Error — Erroneous Admission of Evidence.</p> <p>5. Where the court charged that, before the jury could consider any testimony as to experiments, they must find that the experiments were performed under substantially the same conditions, the error, if any, in admitting evidence of experiments 'made by witnesses as to the ability to see whether a person was armed with a gun, arising from the failure of the witnesses to select the proper place, was not prejudicial.</p> <p>Witnesses — Impeachment—Contradictory Statements.</p> <p>6. Where a child of decedent testified on cross-examination that he had talked with his mother about accused shooting decedent, and denied that he had told her that decedent grabbed hold of accused’s gun when the shot was fired, his testimony could he discredited by his mother acknowledging on oath that she had told a third person that the child had told her that decedent had grabbed the gun when the shot was fired.</p> <p>Witnesses — Impeachment—Contradictory Statements.</p> <p>7. A witness may be impeached by proof of contradictory statements on laying the foundation therefor in the manner prescribed by Section 853, B. & C. Comp.</p> <p>Criminal Law — Admissions—Silence.</p> <p>8. Section 718, subd. 3, B. & C. Comp., authorizing evidence of a declaration or act of another in the presence and within the observation of a party, and his conduct in relation thereto, applies to a party to the record, or one identified in interest with him, and. excludes the conduct of a mere witness in respect to any declaration made or act performed by another in his presence, and the fact that a witness made no response when a person stated in his presence that the witness had made a certain statement could not be shown to impeach him.</p> <p>Homicide — Evidence—Instructions.</p> <p>9. Where the evidence showed a * previous difficulty between accused and the employer of decedent about two hours before the homicide, which was committed while decedent was accompanying his employer to the place of the former difficulty, a charge that accused should be acquitted if he honestly believed that his life was in imminent danger’ at the hands of decedent or his employer, and he was not an aggressor, etc., was not objectionable as leading the jury to understand that they could consider the previous difficulty.</p> <p>Criminal Law — Trial—Instructions.</p> <p>10. A charge in hypothetical form embodying the theory advanced by the State and shown by its evidence is proper.</p>

<p>Divorce — Appealable Orders — Alimony—Dissolution op Marriage.</p> <p>1. Under Section 547, B. & C. Comp., providing that an order affecting a substantial right, and which in effect determines the suit, so as to prevent a decree therein, is final, and may be reviewed on appeal, an order in a suit by a husband to dissolve the marriage, awarding the wife alimony to enable her to make a defense, pursuant to Section 512, B. & C. Comp., is not final, where the suit remains undetermined, and hence was not reviewable on direct appeal, though it would be reviewable on appeal from the final decree.</p> <p>Appeal and Error — Right to Appeal — Governs» by Statute.</p> <p>2. The right to appeal cannot be extended to cases not falling within the terms of some statute.</p> <p>Constitutional Law — Due Process op Law — Order Not Appealable.</p> <p>3. The constitutional guaranty that every man shall have remedy by due course of law for injury to him in person, propertv, or reputation is fulfilled by the adjudication of the circuit court in making an order for suit money in a divorce suit, though the order is not appealable.</p>

<p>Appeal and Error — Failure to File Brief — Dismissal.</p> <p>Where appellant did not file a brief within 30 days after the filing of a transcript, as required by Supreme Court Rule 37 (50 Or. 589 : 91 Pac. xii) the appeal will be dismissed on motion, and the judgment affirmed.</p>

<p>From Harney: George E. Davis, Judge.</p> <p>This is an action by E. E. Sitz against A. S. Swain. From a judgment in favor of defendant, plaintiff appeals. Eespondent moves to dismiss appeal. Dismissed.</p>

From Baker: William Smith, Judge. Statement by Mr. Justice McBride. This is a suit by Thomas C. Burke against Parilee F. Hindman and M. J. Hindman, her husband, and the Hot Springs Company, a corporation, to foreclose a mortgage on certain real property situated in Baker County.

<p>From Baker: William Smith, Judge.</p> <p>Statement by Mr. Justice McBride.</p> <p>: This is an action by Susan Henderson to recover the sum of $275, which was commenced in the circuit court of Baker County, against defendants, A. Backus and G. Anderson. The amended complaint is substantially as follows:</p> <p>“That, heretofore, on or about the — day of —, 1908, the plaintiff placed in the hands of defendant A. Backus, for collection, a certain promissory note and claim against the estate of one Jacob W. Schroll, deceased, with instructions to present the same to the administrator of said estate for allowance and payment. That thereafter, on or about the 22d day of August, 1908, the defendant Gustav Anderson presented the said note and claim to the administrator of the estate of Jacob Schroll, deceased, and it was then and there disallowed and thereafter, on or about the 4th day of September, 1908, the defendant Gustav Anderson acting for the plaintiff filed a petition in the county court of Baker county, asking that the said note and claim be allowed and ordered paid, and that thereafter, on or about the 6th day of October, 1908, the said county court made an order allowing the said claim and note in the sum of $491.99, and ordered the same to be paid by the said administrator of the said estate of Jacob W. Schroll, deceased. That thereafter on or about the 27th day of October, 1908, the said note and claim, having been reduced to judgment as aforesaid, was compromised, allowed, and paid by the said administrator of the estate of Jacob Schroll to the defendant Gustav Anderson in the sum of $350 and the said defendant Gustav Anderson then and there received from said administrator the sum of $350 as agent for the plaintiff and for the use of plaintiff and to be paid to plaintiff on demand. That thereafter, and before this action was commenced, the said plaintiff demanded payment thereof from said defendant and then and there the plaintiff tendered and offered to pay to the defendants the sum of $75, reasonable attorney fees for the presentation and collection of the said note and claim. That $75 is a reasonable sum to be allowed and paid to the said attorneys for all of their said services; and that the plaintiff has paid said defendants for the said services the sum of $75 and that she owes them nothing for the services, or otherwise, or at all. That defendants have not paid said sum of $350, nor any part thereof, and there is now due to plaintiff and from the defendants the sum of $350, less the sum of $75 allowed them as reasonable attorneys’ fees, the net proceeds of said claim so collected and-received as aforesaid, which net proceeds, amounting to $275, is now due, owing, and unpaid.”</p> <p>Subsequent to the filing of the original complaint, defendant Anderson filed an affidavit setting forth that the $275, claimed by plaintiff, came into his possession by virtue of certain proceedings in the county court of Baker County, which he conducted, as attorney, at the request of plaintiff and defendant Backus;.that immediately upon receipt of the money he gave notice to plaintiff and Backus, and thereupon each of them claimed the money and each notified him not to pay it to the other; that he was ready and anxious to pay it to whomever might justly and legally be entitled thereto; that he had no knowledge as to the justice of the conflicting claims and held the money without collusion with either party, and asked that he might be permitted to deposit the same in court; that Backus be substituted as defendant; and that he be discharged from liability in such action. Later Backus was served with an amended complaint. He appeared and demurred on the ground that it did not state facts sufficient to constitute a cause of suit. After this demurrer was filed, the court made an order permitting Anderson to deposit the money in court, and discharging him from any further liability, a copy of which order was served upon Backus. Thereafter the court made an order overruling the demurrer of Backus and giving him five days within which to further plead; and finally on the 3d day of July, 1908, rendered judgment against him, for want of answer, in the sum of $275, and costs taxed at $11.75, and directed the clerk to pay over the money in his hands to the plaintiff, which was done. On the same day plaintiff entered complete satisfaction of the judgment.</p>

From Multnomah: Calvin U. Gantenbein, Judge. Statement by Mr. Justice Slater. This is an action by Charles A. Benbow to enforce, under the boat lien law of this State, a lien against the ferryboat, James Johns, for material and labor used in its construction by Bilyeu & Herstel, contractors of the owner, the St. Johns Transportation Company, a corporation.

From Multnomah: Calvin U. Gantenbein, Judge. Statement by Mr. Justice Eakin. This is an appeal from the order of the court denying a motion to vacate a judgment and for a leave to reply. J. H. Gilde and J. H. Gilde, Jr., partners, doing business as J. H. Gilde & Son, at Sacramento, California, on August 30, 1906, commenced an action in Multnomah County, Oregon, against A. It. Byrkett, to recover upon a promissory note the sum of $1,340, with interest.

From Tillamook: WILLIAM GALLOWAY, Judge. This is an appeal by the Miami Lumber Company, from an order sustaining a writ of review to review the action of a justice of the peace in an action by J. O. Drummond against appellants.

From Baker: William Smith, Judge. Statement by Mr. Justice Eakin. This is a suit instituted by J. H. Washburn to foreclose miners’ liens. The defendant, Inter-Mountain Mining Company, was the owner of 14 mining claims in Baker County, Oregon, W. L. Vinson, at the time of the acts complained of in the answer of Flack, was its president and manager.

From Baker: William Smith, Judge. Defendant, D. R. Trapp, was indicted for murder in the first degree for shooting and killing one Chris Jasperson in Huntington, Baker County, Oregon, on July 27, 1908. Defendant was a bartender in the saloon of James Reedy, and the deceased was a bartender in the saloon of O. S. Fraser.

From Baker: William Smith, Judge. Statement by Mr. Justice Eakin. This is a suit by Sam Carnes and W. A. Carnes to enjoin James Dalton from interfering with the diversion of water by plaintiffs from a company ditch, leading from North Powder River in Baker County.