Volume 6 — Wyoming Reports

Richard H Scott, Judge. This was an action brought by George W. Metcalf against George Bolin upon two promissory notes. The defenses interposed were, in addition to a denial of the allegations of the petition, want of consideration, duress, false representations connected with the alleged duress, and that the notes did not constitute the entire contract.

Jesse Knight, Judge. Action to recover the possession of specific personal property, by Thomas M. McMahon against Austin M. Bunce. Upon the trial the plaintiff claimed that on November 2, 1891, Mrs..

Richard H. Scott, Judge. Action by Hannah Frank against Edgar P. Snow, Elizabeth Snow, and Mary E. Stark for the recovery of a balance due upon a debt secured by mortgage, and a foreclosure of the mortgage. The mortgage and the promissory note which it secured were executed by Edgar P. Snow and Elizabeth Snow to Alexander H. Swan and Thomas Swan, composing the firm of Swan Brothers. The note was indorsed and delivered to Hannah Frank, and the mortgage assigned to her.

EeROR to the District Court for the county of Laramie,. Hon. Richard H. Scott, Judge. This was an action brought by Mary Jackson against Braxton P. Mull upon two causes of action, the first of' which was a claim for work, labor, and services of the plaintiff in the care, custody, and nurture of Stella Mull, a minor child of the defendant.

Richard H. Soott, Judge. Collingwood Boulter was convicted of manslaughter, and was sentenced to imprisonment in the penitentiary for the term of six years. He prosecuted error. There was no bill of exceptions. The material facts are stated in the opinion. It was error to permit the indorsement of the names of witnesses upon the information after the commencement of the trial.

Eeeoe to the District Court for the county of Laramie, Hon. RiohaRd H. Scott, Judge. Frederick J. Stanton brought this action against Charles Hecht and Edward Farrell to recover the sum of SI,284.20 with interest from September 1, 1890.

<p>Bill of Exceptions — Exception — Election Contest — Pleading — Amendments — Elections — Official Ballot — Waiver of Irregularity.</p> <p>1. Although the pleadings and journal entries are part of the record without a bill of exceptions, the fact that they are incorporated in the bill will not invalidate it, nor prevent that which is properly within it from becoming part of the record.</p> <p>2. The reservation of an exception to a ruling sustaining a motion is sufficiently shown by a statement in the certificate of the judge appended to the bill of exceptions, and forming a part thereof, that the motion — identifying it — was sustained and that the ruling was excepted to.</p> <p>3. An election contest is to be tried like other civil actions, and the statute of amendments applies to such an action the same as any other.</p> <p>4. A point of contest entirely foreign to the charge contained in the petition as originally filed, should not be permitted to be set up for the first time by way of amendment, if the. time has elapsed within which the contest may be inaugurated.</p> <p>5. If, however, the petition is defective, it may be amended by making its allegations more particular, definite, or certain.</p> <p>6. When there is a charge of fraud, but no averment showing how the fraud would affect the result, the defect may be remedied by amendment.</p> <p>7. The statute requiring the official ballot to contain the names of candidates for each office arranged under the designation of the office in alphabetical order according to surnames, except that candidates for presidential electors are to be arranged in separate groups, and the ballot being required to contain the name of the party or 'principle which the candidates, represent, and the ballot is prepared by the voter by marking a cross before or after the name of the person or persons for whom he intends to vote ; the name of one person as a candidate of more than one party for the same office is not entitled to be printed upon the ballot more than once. The law does not contemplate that the name of one nominated by two or more parties for the same office shall appear more than once upon the official ballot.</p> <p>8. The printing of the name of one nominated by two parties for the office of county superintendent of schools in two places upon the ballot under the designation of the office was erroneous.</p> <p>9. Whether or not a different rule would prevail as to candidates. for presidential electors is not decided.</p> <p>10 The irregularity, however, was waived by a failure to make objection to the county clerk respecting the manner in which the ballots were prepared, and to apply to the court or judge to have the error corrected. (State ex. rel. v. Barber, 4 Wyo., 56 distinguished.)</p> <p>11. If any elector shall have marked a cross after the name of the candidate so printed in two places on the ballot, in both places, and such vote on one and the same ballot shall have been counted twice for such candidate, one of the votes SO' counted would be illegally counted.</p> <p>12. Under the circumstances as alleged in the petition in this case it is h^ld that a cross in both places after the name of the person whose name was printed twice upon the ballot as a candidate for the same office did not constitute distinguishing-marks such as should invalidate the ballot.</p>

Jesse Knight, Judge. The plaintiff in error was informed against under Section 924 of the Rev. Stat., 1887.

Jesse Knight, Judge. The facts are sufficiently stated in the case as heretofore reported (5 Wyo., 159), and in the opinions which follow. After the previous decision (Dec. 28, 1891), a rehearing was granted. The case was again argued and submitted.

J. H. Hayeord, Judge. This was an action brought by Chester B. Bradley against the Syndicate Improvement Company for the recovery of money- alleged to be due for services .performed and money expended at the request of the defendant. Judgment was rendered for the plaintiff, and -defendant prosecuted error. The amended petition was filed May 15, 1894, and an answer was filed May 17, 1894. The cause was tried May 18, 1895.

Richard H. Scott, judge. Action by George H. Gilland to recover damages from the Union Pacific Railway Company, for the negligent destruction of grass by fire. The material facts are stated in the opinion. There was no joint ownership with the plaintiff in the grass destroyed or any portion thereof. That much is established by the evidence.

Hon. Richard H. Scott, Judge of First Judicial District, presiding. William E. John was convicted of the crime of kidnapping, and prosecuted error. The material facts are-stated in the opinion. It is the province of the judge to determine the admissibility of confessions (Whar. Cr. Ev., 689; 1 Greenl.. Ev., 219; 3 Am. & Eng. Ency. L., 464; Com. v. Preece, 140 Mass., 276; Proffatton Jur. Tr.). Unless voluntary they should be excluded.

EeeoR to the District Court for the County of Sweet-water, HoN. Jesse Bright, Judge. Replevin by Clarkson Toms against Tom Whitmore, ^sheriff of Sweetwater County, for certain personal prop•erty claimed to have been delivered to the plaintiff by F. D. Toms in pledge, the sheriff having attached the property as the property of F. D. Toms, while the same was in transit on board cars consigned in Idaho by F. D. ‘Toms to Clarkson Toms in Kansas.

ReseRyed questions from the District Court of the County of Johnson. Hon. W. S. Metz, Judge. This was an action brought by Walter R. Stoll as assignee of the claims of several witnesses to recover from Johnson County their fees for attendance upon a certain criminal prosecution at the trial thereof in Laramie County; said prosecution having been originally instituted in Johnson County, and removed on change of venue to the county in which trial was had.

EeRoe to the District Court for Laramie County, Hon. Richard H. S'cott, Judge. Melvin Reavis was prosecuted upon information for the crime of perjury. He was tried and convicted. He prosecuted error. The material facts are stated in the ■opinion. Hearsay' does not derive its value solely from the ■credit to he given to the witness himself, hut rests also ■on the veracity and competency of some other person. (9 Ám. & Eng. Ency. L., 325; Shaw v. People, 5 N. Y., 'Sup.

Eekok to tbe District Court for Sweetwater County, HoN. Jesse Knight, Judge. This was an action brought by the Board of the County Commissioners of Carbon County against the Board of the County Commissioners of Sweetwater County, to recover certain expenses incurred in the care of one Ben Zimmer who, it was claimed, was a pauper and chargeable to Sweetwater County. The facts are sufficiently set out. in the opinion. The District court rendered judgment, for the plaintiff.

AotioN to, quiet title to land brought by George E. Abbott and Maud E. Ellis against D. J. Dor ell. The defendant demurred to the petition. The demurrer was overruled and defendant excepted. The case was by consent continued until the next term; but later judgment was rendered for plaintiffs upon default.

Richard H. Scott, Judge. Charles F. Rugg brought 'the action against Mary R. Marshall to recover the sum of $1,275. The petition contained two causes of action: 1. A claim by way of damages in the sum of $1,175 for the violation of a covenant of the lease providing for a return of the premises at the expiration of the lease in as good condition as when entered upon. 2.

J. H. Hayford, Judge. This was an action brought by William H. Fishback to contest the election of Charles W. Bramel to the office of county and prosecuting attorney of Albany County. The material facts are stated in the opinion. Cited State v. Allen (Neb.), 62 N. W., 35; 95 S. C., 16; Budd v. Holden, 28 Cal.; Ellis v. Glaser (Mich.), 61 N. W., 543; Sawin v. Pease (Wyo.); Bradstreet v. Thomas. 4 Pet., 26; R. S. Secs. 2645, 2647, 2648.

William S. Metz, Judge. The case is stated in the opinion. Plaintiff in error, Moyer, is entitled to the water, claimed by him, as a riparian owner.

J. W. Blake, Judge. ' Hearing on motion to strike from the record tbe bill of exceptions. John B. Okie, for the motion to strike. The successor of the trial judge had no authority to sign the bill of exceptions. (Stirling v. Wagner, 4 Wyo., 5; Wood v. Brown, 8 Ala., 564; Water S. & S. Co., v. Tenney, 40 Pac., 442 (Colo.); Redman v. R. R. Co., 3 Wyo., 678; Alley v. McCabe, 147 Ill., 410;' Jubb v. Thorp, 2 Wyo., 389; Woods v. Hilliard FI.

Richard H. Scott, Judge of the. First Judicial District, presiding. This was an action brought by Isaac P. Caldwell and Robert J. Gardinier against Lewis J. Bush to restrain repeated and continual trespasses upon a tract of land in Albany County, claimed by the plaintiffs under a purchase from a desert-land entryman after delivery of final certificate of purchase.

<p>Reserved Questions — Limitations upon County Indebtedness— Limitations Upon County Taxation — What Judgment Against County Conclusive of — Confession of Judgment by County Board.</p> <p>1. In the decision of reserved questions arising upon a demurrer, it is not the duty of the court to pass upon the demurrer or to direct the ruling to be made upon the pleadings, but its jurisdiction is limited to a decision upon the certified questions.</p> <p>2. A county already indebted to an amount equal to or exceeding two per centum upon the assessed- value of the taxable property therein, is powerless t,o create any debt in excess of the taxes for the current year. If the existing indebtedness is less than two per cent., then i-t can not create a debt in excess of the taxes for the current year without first submitting the same to a vote of the people and thereby securing their approval. (Const., Art. 16, Secs. 3 and 4.)</p> <p>3. Salaries of officers are within the constitutional limitations upon the creation of county indebtedness.</p> <p>4. Bounties for the destruction of predatory wild animals provided for by the act of 1893 are within the constitutional limitations upon county indebtedness as against collateral attack by the county or a taxpayer thereof.</p> <p>5. A judgment against a county is conclusive upon -the question of the validity of the debt on which it is founded.</p> <p>6. To raise a fund to pay salaries and valid liabilities for bounties for the destruction of wild animals, a county tax in excess of twelve mills (the maximum constitutional limit upon the ■ annual tax for county revenue), in any year is not authorized unless the debt therefor has been created in the manner provided in the constitution and statutes by a county with power to incur such indebtedness.</p> <p>7. The public debt, to pay which a county is authorized to levy taxes in addition to the twelve mills allowed for county revenue, is not within the meaning of the constitutional provision, confined to bonded indebtedness, but may include ordinary warrants and other lawfully issued evidences of indebtedness, and also judgments, but does not necessarily embrace all outstanding warrants, evidences of indebtedness, or judgments.</p> <p>8. County indebtedness which has been created in excess of the taxes of the current year with the consent and approval of the people, and which, together with other existing indebtedness does not exceed the amount within which the county may lawfully become indebted, although evidenced alone by warrants, will constitute a part of the public debt, and its payment may be provided for by a tax in addition to the limited county revenue tax of twelve mills.</p> <p>9. Indebtedness for ordinary current expenses incurred in excess of the taxes for the current year without the consent or approval of the people, or with such consent if the maximum debt limit has already been reached, although such indebtedness may be evidenced by judgments, is not a part of the public debt within the meaning of the constitutional provision, excepting the payment of the public debt from the ' limit upon ordinary county taxation (Art. 15, Sec. 5); and to pay the same a tax in excess of a tax of twelve mills for county revenue is unauthorized.</p> <p>10. The constitution limiting annual taxation for county revenue for all purposes, exclusive of State revenue, to twelve mills, “except for the payment of its public debt and the interest thereon,” to determine whether a judgment comes within the exception, and whether a county may levy a tax in excess of the twelve-mill limitation to pay such judgment, recourse must he had to the character of the original claim.</p> <p>11. For the purpose of determining the power of a county, under constitutional or statutory limitations, to levy taxes to pay a judgment, the latter partakes of the same character as the original claim upon which it is founded.</p> <p>12. The statutory provision requiring a judgment against a county to be paid by tax (R. S., Sec. 1798) does not contemplate a tax in excess of constitutional or statutory limitation.</p> <p>13. A county is not authorized to levy a tax for the maintenance of the district court in addition to a levy of twelve mills for county'revenue.</p> <p>14. A judgment in favor of a land owner for damages recovered in a proceeding to determine the compensation to be paid him by reason of the exercise of the right of eminent domain in locating, constructing, and opening a public road through his land, is payable out of the ordinary county revenue ; and to pay such judgment a tax in excess of twelve mills for county revenue is not authorized.</p> <p>15. The board of county commissioners can not confess a judgment against the county, nor authorize an attorney to do so.</p>

<p>EeeoR to the District Court for the county of Laramie, Hon. Richard H. Scott, Judge.</p> <p>Thomas H. Stone brought this action against David Williams, Leanor Williams, H. W. Bennett, J. A. Myers, Jacob M. Murphy, F. E. Roots, J. R. Roots, William A. Me Dowell, Martin Melhorn, C. W. Gregg, and Haney J. Graham, to set aside and annul certain deeds, trust deeds, and an assignment of a contract for lands, and also to annul a certain contract between said Stone and David Williams, which had resulted in the said conveyances sought to be cancelled. The grounds assigned for the cancellation were want of consideration, and fraud. The answer denied the fraud, and set up facts to show consideration. The case whs tried in the district court, where the finding was generally for the plaintiff, and a decree was entered cancelling and vacating the several conveyances. The case was taken to the supreme court on error by the defendants. The facts sufficient to cover the point upon which the case was decided are stated in the opinion.</p> <p>A purchaser is bound to exercise ordinary discretion, and the means of knowledge being within his power, if he neglects to make proper inquiry he loses' his remedy against the vendor for any fraudulent representations the latter may have made. (Wheeler v. Dunn, 13 Colo., 428; People v. Tynon, 29 Pac., 809; Parker v. Moulton, 14 Mass., 99.) The court will not inquire into the adequacy of consideration except when connected with fraud. (3 Am. and Eng. Ency. L., 831; Story’s Eq. J. Sec., 245, 246.) Where clauses are repugnant and in conflict, the earlier prevails in deeds and other instruments between the parties inter vwios. (Wolff v. Helbig, 43 Pac., 133; Stuyvesant v. W. M. I. Co., id, 144.) Every contract is to be interpreted in connection with the surrounding circumstances; and the acts done by the contracting parties in fulfillment of the contract may be regarded to see what interpretation the parties have put upon it, and what conditions have been waived or performed. The deed required by the contract had been waived by the contract made by Stone with Bennett & Myers. (Addison on Cont., 877, 878; Laird v. Pirn, 7 M. & W., 485; Bish. on Cont., 795, 796.) Oral agreement made after written agreement, and before breach thereof, is admissible to show a new contract waiving, varying, or annulling the written. (Spann v. Baltzell, 46 Am. Dec., 346; Bish on Cont., 75.) The waiver and laches of Stone causing the forfeiture of the right of Williams in the Denver property, the former is inhibited from rescinding the contract without first placing the latter in statu quo, and where a contract relating to lands is performed and accepted as far as required, the contract is taken out of the statute of frauds. (Burge v. Cedar Bapids, etc., 32 la., 105; 2 Pars. Cont., 5th Ed., 679; Franklin v. Miller, 4 A. & E., 599; Hunt v. Silk, 5 East, 449; Bud v. Blandford, 2 Young & J., 278; Henninger v. Heald, 29 Atl., 193.) A contract can not be rescinded unless there has been a total failure of performance by the opposite party. (Selby v. Hutchinson, 4 Gilm., 332; Weintz v. Hafner, 78 Ill., 29; Doggett v. Brown, 28 id., 493; McPherson v. Walker, 40 id., 371.) There could have been no rescission until a deed had been demanded and refused. Although the authorities are conflicting, the better doctrine is that one who takes property in payment or as security for a pre-existing debt, is to be regarded as a purchaser for value. (1 Hilliard Mort., 610; Herman Mort., 52; Babcock v. Jordan, 24 Ind., 14; Bayley v. Greenleaf, 7 Wheat., 46; Dey v. Dunham, 2 John. Ch., 182; Roberts v. Salisbury, 3 Gill & J., 425'; Gann v. Chester, 5 Yerg. 205; Workv. Brayton, 5 Ind., 396; Bicherson v. Bicherson, 2 Gratt., 497; Mitford v. Mitford, 9 Yes., 100; 2 Story’s Eq., 657, 658; 4 Kent’s Com., 154; Me Murtrie v. Rid-dell, 9 Colo., 497; Merchants v. .McClellan, id. 608; Haraszthy v. Shandel, 1 Colo. App. 139.)</p> <p>An unauthorized delivery of a deed passes no title even to innocent purchasers. (Wheelwright v. Wheelwright, 2 Mass., 446; Loan Co. v. Peck, 112 Ill., 408; By. Co. v. McCulloch, 59 id., 166; Bank v. Godfrey, 23 id., 631; Patrick v. McCormick, 10 Neb., 1; Robins v. McGee, 76 Ind., 381; Evarts v. Agnes, 4 Wis., 356;. Calhoun, v. Am. Eng. Co., 93 U. S., 124; Stnith v. Bank, 32 Yt., 341; Daggett v. Daggett, 143 Mass., 516.)</p> <p>Nothing but a deed from Williams would have satisfied the contract. (1 Warvelle on Yendors, 14; Hussey v. Boquemore, 21 Ala., 281; Crabtree v. Levings, 53 Ill.,. 526; Rudd v. Savelli, 44 Ark., 145; Royal v. Denison, 38 Pac., 39; Williamson v. Banning, 86 Hun., 203; Bacon v. Me Chrystal, 10 Utah, 290; Glenn v. Bossier, 88 Hun., 74.) It was the duty of Williams to tender or-deliver a deed before he could hold the deeds from Stone. (Robb v. Montgomery, 20 Johns., 15; Judson v. Wass, 11 id., 525.) Where a vendor is without title, he has no right to acquire it after the deed is due. (Camp v. Morse, 5 Denio, 161.) Where a vendor has not title, any precedent condition on the part of the vendee need not be fulfilled, such as tender, or security, as to require-such performance would be ‘ £a most idle act. ’ ’ (Lawrence-v. Taylor, 5 Hill, 107; Glenn v. Rossler, '88 Hun.-, 78.) The promise is not made for a promise, but for the land; the moving cause is the estate; and if that fails to pass, the promise is a mere nudv/rn pactum. (Rice v. Goddard, 14 Pick., 293.) Want of title constitutes an entire failure of consideration. (Steinhaurer v. Witman, 1 S. &R., 437; Dunning v. Leavitt, 85 N. Y., 30; Kind ley v. Gray, 6 Ired. Eq., 445; Shaw v. Yincent, 64 N. C., 690.) In this, case the parties had expressly stipulated for the right to examine title after deeds were deposited.</p> <p>Stone was in possession of his land in Wyoming when all the other plaintiffs in error secured their alleged interests. Their liens were taken to secure pre-ex-isting debts. They gave no new consideration. The case is different from that of a transfer of negotiable-paper. The parties can not be regarded as purchasers for value. (2 Pomeroy’s Eq., 748, 749; Devlin on Deeds, 815; Wood v. Robins, 22 N. Y., 566; Pancoast v. Dugal, 26 N. J. Eq., 445; Mingus v. Condict, 23, id.,. 313; Ruth v. Ford, 9 Kan., 17.)</p>

Richard H. Scott, Judge. Severin Peterson brought this action against Henry G. Hay as executor of the last will and testament of Charles G. Strom deceased to recover a sum of money alleged to he due and unpaid for services rendered to the decedent for a continuous period exceeding fourteen -years, except seven weeks in 1892 and five weeks in 1893, when he was sick and cared for at the county hospital. The issues raised by the pleadings are stated in the opinion.

ORIGINAL action in mandamus. The relator applied for the writ of mandamus to compel Charles W. Burdick, Secretary of State, to change the form and method adopted by him in certifying to the several county clerks the candidates nominated for presidential electors'. The facts are stated in the opinion.

<p>Appeal and Error.</p> <p>1. No notice of proceedings in error is required, except the service of summons in error; and that is not required when the issuance and service of such summons is waived.</p> <p>2. Where the issuance and service of summons in error occurs ■within the period prescribed by law for the commencement of proceedings in error, the 'proceedings will not be dismissed, although the summons was not asked for nor issued when petition in error was filed, nor until after a motion to dismiss was filed, but before hearing thereon.</p>

J. W. Blaee, Judge. George M. Conway and W. H. Nickerbocker, copart-ners doing business as Conway and Nickerbocker, and several other parties, as creditors of the Smith Mercantile Company, brought this action in the nature of a creditor’s bill to rea'ch certain alleged assets of the company consisting mainly of an alleged indebtedness to it from John B. Okie for stock in the company, goods purchased from it, and notes given to it; and the value of the stock’ of goods…

W. S. Metz, Judge. The material facts are stated in the opinion. contended that the evidence conclusively established the fact that the warrants had not been paid. contended that the holder of the, warrants, by directing that the money be left in the bank where deposited by the treasurer of the school district, made the bank its own agent, and the money sufficient to pay the warrants became its money, notwithstanding that it remained on deposit in the name of the treasurer;…

EeRoe to District Court for Laramie County, Hon. Richard H. Scott, Judge. The material facts are stated in the opinion. The evidence brings the case clearly within the prohibition of the ordinance. A municipality when authorized by charter may collect a special or license tax upon occupations. (Dillon Mun. Corp., Sec. 357, 424; Newton v. Atchinson, 31 Kan., 165; Tulloss v. Sedan, id., 285; Tiedeman on Lim. Pol. Power, pp. 281, 282; Cooley on Taxation, 570-582; Cooley Const.

Jesse Knight, Judge. . Replevin action brought by Hattie J. Knight against the Beckwith Commercial Company, to recover the possession of certain goods and chattels. The issues presented by the pleadings, and the material facts are stated in the opinion.

J. H. Hayford, Judge. Proceedings upon the distribution of the proceeds of the estate of John Quann, deceased. Upon the coming in of the final report of James Yine, administrator of the estate of John Quann, deceased, the. Albany County ISTational Bank filed objections thereto, asking that it be so amended as to protect the rights of the1 objecting bank to the proceeds of the estate under a certain chattel mortgage executed to it by the decedent in his lifetime.

EkboR to the District Court for Weston County, Hon. W. S. Metz, Judge. Proceedings for the vacation of a judgment. The bank of Chadron brought suit in the district court for Weston County against Martin C. Anderson upon a certain judgment rendered by the county court of,, Dawes County, Nebraska. Judgment was entered for the bank, and after the term .Anderson instituted proceedings under the statute for the, vacation of the judgment on the ground of fraud.

ERkok to District Court for Albany County, Hon. Richard H. Scott, Judge of the First District, presiding. Action to enjoin the collection of a tax alleged tobe void. The material facts are stated in the opinion. contended that the whole tax was void, and that the trial court erred in requiring the plaintiff to pay the sum of $9.24 as due upon taxes as a condition precedent to relief, and cited Const. Art. 15, Sec. 11; Eev. Stat., Secs. 3790-93; Laws 1898-91., Ch. 38; Statev.

W. S. Metz, Judge. Della Barrett, formerly Della Sherwood, brought this-action against H. C. Mahnken, D. C. Horning, W. L. Mahnken, and G. W. Rosenbaum, upon two promissory notes executed by the four defendants above named, to-Della Sherwood. The defense pleaded was want of consideration, and duress in the execution of the notes. The-defendants had judgment, and the plaintiff prosecuted error. The material facts are stated in the opinion.