Volume 7 — Utah Reports

<p>Appeal from a judgment sustaining a demurrer to the indictment of the district court of the first district. The opinion states the facts.</p>

<p>Appeal from a judgment sustaining a demurrer to an indictment of the district court of the first district. The opinion states the facts.</p>

The facts were as follows: Certain mining ground known as the Walker and 'Walker Extension and Buckey Mining claims was in litigation between the Wasatch Mining Company and William Jennings, both of the parties claiming title to ■the ground. While this suit was in progress the Crescent Mining Company, being desirous of purchasing the ground, entered into negotiations with the parties to the •suit of the Wasatch Mining Company v. William Jennings.

<p>Appeal from a judgment of the district court of the third district and from an order refusing a new trial. The opinion states the facts.</p>

The Utah statute upon granting a new trial in criminal cases, Sec. 318, Criminal Code, Sec. 5094, 2 Comp. Laws, 1888, 719, is as follows; “When a verdict has been rendered against the defendant, the court may, upon his application, grant a new trial in the following cases only: “ 1. When the trial has been had in his absence, if the indictment is for a felony. “2.

<p>Appeal from a judgment of convictiqn of the district court of the first district. The opinion states the facts.</p>

<p>Appeal from a judgment of the district court of the third district and from an order refusing a new trial. The opinion states the facts. For the former opinion, .see Societe des Mines v. Mackintosh, 5 Utah 568.</p>

The opinion states the facts, except that the evidence of ■repudiation of the contract went in without objection by •the defendant. Defendant introduced no evidence.

<p>Appeal from a judgment of the district court of the •first district, and from an order refusing a new trial. The opinion states the facts.</p>

The opinion states the'facts, except the following, which are pertinent: The Territorial Legislature passed no act on this subject after the Anti-Polygamy Law of 1862 was passed until the act of 1876 (Utah Compiled Laws, 1876, § 714), which is as follows: “Every illegitimate child is in all cases an heir to its mother. It is also an heir to its father when acknowledged by him.

<p>Appeal from a judgment of the district court of the third district. The opinion states the facts.</p>

<p>Adverse Possession. — Patent.—Final Payment. — The statute of limitations begins to run againt the patentee of public lands from the United States from the date of the issuance of the patent, and not from the date of final payment for the land;, overruling Steele v. Boley, 6 Utah, 808, 22 Pac. Rep. 811.</p> <p>Practice. — Ejectment.—Equitable Defense. — Where in an action of ejectment an equitable defense is interposed with a legal defense, the equitable defense should first be disposed of.</p>

<p>Deed. — RESERVATION.—CONSTRUCTION.—A deed of land to the son-of the grantor conveying land in fee-simple contained a clause-of reservation as follows: “But, nevertheless, excepting and reserving from the said grant the possession and use of the said premises, and every part and parcel thereof, with the-appurtenances, for and during the natural life of Daniel H.. Wells, Jr,, the grantee, and also of his wife, Emma Geneva, if she shall continue to his death his wife and shall survive him, and so long as she shall continue thereafter unmarried,, and on the death of the said Daniel H. Wells, Jr., or in case-the said Emma Geneva shall continue his wife to his death and survive him, then on her death or marrying this exception and reservation shall wholly cease;” held that as an original question the deed would be construed as reserving an estate in the grantor.</p> <p>Appeal. — Findings.—New Trial. — Where the court below has-made its findings, even if the appellate court on the testimony might reach a different conclusion, this is not ground for-reversal unless the findings are so palpably erroneous and unsupported by the evidence as to unmistakably demonstrate-that the court committed some oversight or acted under some-mistake, and this rule applies both in equitable and legal actions.</p> <p>Estoppel. — Conduct.—Acquiescence.—Where a deed containing a clause of reservation like the above has been construed and acted upon as granting a life estate to the son, and the son entered into possession of the land, having exchanged other-lands therefor and made valuable improvements thereon, and. a suit for divorce has been tried and settled between the son and his wife, wherein the wife was appointed receiver of the-land in controversy, with power to receive the rents and profits thereof, and the wife as receiver has expended money and made valuable improvements upon the property, and these-facts were all known to the father, the grantor in the deed,, who made no objection for ten years; held that he, the grantor, was estopped from insisting upon the proper construction of the deed.</p> <p>Adverse Possession. — Statute oe Limitations. — Life Estate.— Where a son as grantee of a life estate and his wife as receiver of his life estate have held open, notorious, continuous and adverse possession of the land in dispute for more than seven years preceding the commencement of the action, the appellant’s cause of action is barred by the statute of limitations.</p>

<p>Appeal from a judgment of dismissal of the district court of the first district. The opinion states the facts.</p>

<p>Appeal from a judgment of the district court of the first district and from an order overruling a motion for a new trial. The opinion states the facts.</p>

The opinion states the facts. Where the description is so definite that the purchaser knows exactly what he is buying and the seller knows what he is selling, and the property is so described that the court can, with the aid of parol or other extrinsic ■evidence, apply the description to the exact property intended to be sold, it is sufficient. Martindale on Conveyancing, § 5, p. 8; 1 Green.

<p>Habeas Cobpus. — Appeal.—Under section 9 of the Organic Act of Utah Territory providing “that writs of'error, bills of exceptions, and appeals, shall be allowed in all cases from the final decision of the district courts to the Supreme Court of the Territory; and under section 3635, 2 Comp. Laws, 1888, providing “that an appeal may be taken to the Supreme Court from the district court from all final judgments in an action or special proceeding;” and section 5134, Id., providing “that either party in a criminal cáse may appeal to the Supreme Court on questions of law alone,” no appeal will lie from an order discharging a prisoner upon habeas corpus.</p>

<p>Appeal from a judgment of the district court of the first district and from an order overruling a motion for a new trial. The opinion states the facts.</p>

<p>•Supreme Court Commissioner. — Appeal.—Bule oe Court. — The Commissioners of the Supreme Court of the Territory of Utah, in the matter of appeals from their courts to the district courts, are subject to the rule of the district court applying to appeals from courts of justices of the peace, and a rule of the district court providing that in all cases from county and justices’ courts to the district courts, the appellant shall within thirty days after the receipt by the clerk of the papers in the case, pay to the clerk the lawful fees for filing and docketing the same and also the jury fee, and if appellant fail to so docket his appeal the respondent may advance the fees, docket the case, and have the same dismissed, applies to appeals from Supreme Court Commissioners and is valid; affirming Salt Lake City v. Bedwine, 5 Utah, 335.</p>

The findings of the lower court were that the agreement to convey was executed and delivered; that five hundred dollars were paid down; that defendant failed and refused to make conveyance of the property; that defendant never returned to plaintiff the five hundred dollars paid; that the contract price of the property was three thousand six hundred dollars; that its value at the time the conveyance should have been made was five thousand dollars; and that plaintiff was…

<p>RailRoads. — Conditional Ticket. — Forfeit.—A contract ticket providing that if it is presented by any other person than the-original holder it shall be void, and the conductor shall take it-up and collect full fare, is valid.</p> <p>Id. — Id.—Agreement of Unauthorized Agents. — Where an unauthorized agent of another road than the defendant assured the purchaser of a ticket already used for part of a trip and conditioned to be void if presented by any other person than the original purchaser, that the ticket would be honored and gave the purchaser a letter to the conductors of the defendant road, and the purchaser; relying upon these representations, bought the ticket and attempted to ride upon it, held that the defendant company was in no way bound by the representations.</p> <p>Id. — Id.—Signing of Ticket. — The fact that the ticket was notsigned by the original purchaser, made no difference since the-purchaser in accepting a ticket, where the contract was set out in full, accepted the terms of the contract and was bound by them.</p> <p>Id. — Id.—Conductor taking up Ticket. — The conductor had aright to take up the ticket presented by a person other than, the original purchaser, and plaintiff could not have been damaged because the ticket was returned to him.</p>

<p>Master and Servant. — Negligence.—Province op Jury. — The question of negligence is generally one of mixed law and fact and seldom exclusively one of fact, and jurors pass upon the question of negligence only where there is some evidence to prove it. The relevancy and admissibility of evidence tending to prove negligence, and whether there is any such evidence, is not a question of fact for the jury, but a question of law for the court.</p> <p>Id. — Id.—Contributory Negligence. — A laborer employed to load cars and sort coal at night at the defendant’s coal-chutes, who has been so employed for several nights and is familiar with the premises, knowing the location of the chutes and being used to moving the cars, where there is sufficient light and where the coal chutes are constructed and placed in a reasonably safe and prudent manner, cannot recover for a personal injury, suffered by him from being caught between a car, being moved by himself and a fellow servant, and a coal chute, when he could have seen the coal chute by looking in the-exercise of ordinary prudence.</p>

The opinion states the facts. Section 4391, 2 Comp. Laws, 1888, 563, is: “All persons who after full knowledge that a felony has been committed, conceal it from the magistrate, or harbor and protect the person charged with or convicted thereof, are accessories.” Section 4949, 2 Comp. Laws, 1888, 690, is: “An ac-cessary to the commission of a felony may be indicted, tried and punished, though the principal may be neither indicted nor tried.” Section 5049, 2 Comp.

The petition for a writ of mandamus set out the ordinances of Salt Lake City upon the subject of granting liquor licenses, and a compliance with the law and! the refusal of the city council to grant the license without assigning any reason therefor. The answer of the-city council is quoted in the opinion. The petitioner thereupon demurred to the answer and oral argument was had upon the demurrer.

<p>Appeal from a judgment of the district court of the third district and from an order overruling a motion for .a new trial.' The opinion states the facts.</p>

<p>Costs on Appeal.— Stenographic Transcription. — Section 3099, 3 Comp. Laws 1888, provides that in cases where a transcript has been ordered by the court, the fees for transcription must be paid by the respective parties to the action or proceeding in equal proportions, or by such of them and in such proportions as the court, in its discretion, may order, and that the party ordering the reporter to transcribe any portion of the testimony or proceedings must pay the fees of the reporter therefor. A party ordered a transcript and taxed the cost of it against the opposite party, held that such costs were not allowable.</p> <p>Id. — Printing Abstract and Briers. — Under the rules of the court allowing costs for printing abstracts and briefs, only usual and reasonable expenses therefor should be allowed, not exceeding one dollar per page.</p> <p>Id. — Attorney’s Docket Fee. — No attorney’s fee for trying and arguing a cause in the supreme court on appeal can be allowed and recovered as costs.</p>

The opinion states the facts. The Territorial legislature is vested with the power to legislate upon all rightful subjects of legislation consistent with the constitution and laws of the United States, which subjects are to be determined by an examination of the subjects upon which legislatures had been *n the practice of acting with the consent of the people. Maynard v. Hill, 125 U. S. 204.

The evidence was exceedingly voluminous and conflicting. The fact of Hancock’s doing the killing was testified to by an eye-witness, who was strongly contradicted by other eye-witnesses. The charge of the court is as follows.

Cross-Appeal from a judgment of the district court of the first district. The findings of the court on which the plaintiffs asked to have the decree reversed on the measure of damages were as follows: “That said land at the time of the filing of the original complaint in this cause, to wit: February 23, 1889, was worth the sum of 824,000, and at the time of the trial of this cause was worth the sum of $48,000.” The remaining facts are found in the opinion.

The opinion states the facts. The judgment must be affirmed, because, this being an action at law, this court has no jurisdiction to review or pass upon the evidence, or its sufficiency. Section 1 of Article 7 of amendments to Constitution permits a reexamination only according to the rules of the common jaw. Constitution is extended over this Territory. Rev. Stat. § 1891.

<p>Appeal. — New Trial. — Evidence.—Where the lower court has granted a new trial, and the appellate court, owing to the fact that the evidence in the record is vague and uncertain, and a diagram to which witnesses referred is not in the record, much of which cannot, for that reason, be fully understood, is unable to reach any satisfactory conclusion, and one of the reasons urged for a new trial is that the verdict is opposed to the evidence, and the record does not show for what reason the new trial was granted; held, that the order granting a new trial would not be reversed, except for-manifest error.</p>

Section 3402, 2 Oomp. Laws, 1888, 295 is: The party-intending to move for a new trial, must, within ten days after the verdict of the jury, if the action was tried by a jury, or after notice of the decision of the court or referee, if the action was tried without a jury, file with the clerk, and serve upon the adverse party, a notice of his intention, designating the grounds upon which the motion will be made, and whether the same will be made upon affidavits, or the minutes…

The power to grant franchises to street railways nowhere appears in the Ogden Oity charter, except under the general welfare clause, but on March 8, 1888, the general incorporation law gave to all city councils the power to ¡■authorize the construction and maintenance thereof.

The complaint alleged the grant to the Ogden City Railway Co., made August 7, 1883, which was exclusive, and the acceptance and performance of the conditions thereof by the grantee, that the plaintiff had acted on the grant, and expended large sums of money, issued bonds, and built its tracks, etc.; that “plaintiff owns a valuable tract of land on Washington avenue, and pays taxes on a large amount of real estate and personalty; that said Twenty-fifth street, from the depot…

• Appeal from a decree of the district court of the first district. The appeal was from the judgment roll, consisting of the complaint, answer, findings and decree.

<p>Easement. — PRESCRIPTION.—Statute op Limitations. — Under sections 3132, 3133, 3137, requiring for an adverse possession that the property claimed adversely should have been enclosed, or cultivated, or used for some useful purpose, such as husbandry, fuel or' pasturage, and that in all cases the claimant should have paid the taxes upon the property; held, that one who uses land of another merely as a means of exit to a road cannot claim title thereto under the statute of limitations, which provides a term of seven years for perfecting a title by adverse possession.</p> <p>Id. — Id.—License.—Wherein a suit brought to establish a right of way, the evidence tends to show that the plaintiffs’ use was simply permissive, and that the defendant, the owner of the . land, was not aware that plaintiffs’ were using a way which the defendant had opened for the use of his own premises, without causing any damage, it will be held that such use was simply permissive and not under claim of right.</p>

<p>Appeal from an order of the district court of the third district dissolving an attachment. The opinion states the facts.</p>

<p>Appeal from a judgment of the district court of the first district and from an order overruling- a motion for a new trial. The opinion states the facts, except that the demurrer was on three grounds; incapacity of the plaintiff, Spanish Fork City, to sue; ambiguity and uncertainty in the complaint, and that the complaint did not state facts sufficient to constitute a cause of action.</p>

There are other portions of the charge not stated in .¡.he opinion, which are as follows: At the outset the ■court instructed the jury “that negligence is not to be presumed, but must be affirmatively proven by the party alleging it, and in the manner alleged in the declaration in the ease; and in this case the burden is upon the plaintiff to show that the defendant is entirely responsible for the injury to the plaintiff by reason of and in consequence of the neglect charged…

The pleadings in this action were as follows: The complaint alleged the purchase of the hill from the defendants under the belief that it was genuine, that it was in fact forged and raised from six dollars and fifty cents to six hundred dollars, that the said bill had been presented, payment refused, and the bill duly protested, that no part of the consideration had been paid back, and asked for judgment for the amount paid with interest.

The following facts are necessary to an understanding of the casé. In 1864 one Thomas Cope died intestate, leaving surviving him his legal wife, Janet, a legitimate son (not, however, by Janet), Thomas H., an illegitimate son, George, and a polygamous wife, Margaret, the mother of George. He was at the time of his death the owner of four land claims, three lots in the city of Salt Lake and the five-acre lot in question in this suit.

<p>Appeal from a judgment of the district court of the third district, and from an order refusing a new trial. The facts are stated in the opinion.</p>

The opinion states the facts, except that in his answer defendant denied that he was in possession of the premises, hut this seems to have been overlooked by the attorneys for the parties.

The opinion states the facts except the following: The statutes of the Territory provide that, qualified voters may object in writing to the right to-vote of any person upon the voting lists, and that a. hearing shall be had thereon before the deputy registration officer, and if upon such hearing the deputy registrar shall find that the person objected to is not a qualified voter he shall transmit the name to the judges of election, and such judges shall strike the name so…

This cause contained the same facts as Dope’s Estate ante, which was reversed by the case of Dope v. Cope, 137 U. S. 682, except that the descent east was after the-year 1876, to-wit October 3, 1881.

<p>Appeal from an order and judgment of the district court of the third district refusing a writ of prohibition.. The opinion states the facts.</p>

<p>Appeal from a judgment of the district court of the first district and from an order refusing a new trial. The opinion states the mcts.</p>

The opinion states the facts except the following: The order made by the court on the 2d day of March, 1889, contain findings of fact made after the examination of witnesses to the effect that W. L. Pickard was indebted to David Weaver upon a promissory note in the sum of $10,700, and it was ordered that the said Pickard as garnishee pay the said sum under this order and that the marshal of the court give him a receipt therefor and acquittance of his debt.

<p>Appeal from a judgment of the district court of the first district and from an order refusing a new trial. The opinion states the facts.</p>

<p>Appeal from a judgment of the district court of the third district and from an order refusing a new trial. The opinion states the facts.</p>

The opinion states the facts except the following which appear in the record. There was evidence tending to show that there were no mineral lands in the land in controversy, and no evidence to the contrary so far as the record discloses, and the plaintiff offered in evidence as admissions of the defendant the defendant’s sworn cross complaint, alleging title in the railroad company, and a recognition of that title by the defendant.

<p>Release. — Mistake.—Evidence.—Plaintiff having been injured in a railway accident, eleven days after the accident occurred signed a release of all her claims, and before the time of signing the release was informed by the appellant’s physician that no danger was apprehended and no fraud or concealment of any kind was practiced and only a mistake was claimed, and that at the time she signed, she hesitated, fearing a miscarriage, but finally executed the release under the advice of her husband and his father; held, in an action for damages on account of a miscarriage happening nineteen days after the signing of the release, that a verdict for the plaintiff was unsupported by the evidence.</p>

<p>Appeal from a judgment of the district court of the first district and from an order refusing a new trial. The opinion states the facts.</p>

<p>Taxation, — Municipal CORPORATIONS. — Municipal Beneifts. — In a suit brought to recover the value of a wagon seized for city taxes upon lands situated one mile away from the platted portion of the city, but where a street extended past the land, upon which work had been done as far as the plaintiff’s premises, and plaintiff had enjoyed police protection and some municipal benefits; held, that the land was subject to city taxation, distinguishing this case from People v. Daniels, 6 Utah, 290.</p>

The opinion states the facts except what are here given more fully. The charge of the court was as follows: On uninclosed land, stock has a right to run across, no odds to whom it belongs.

<p>Pleading. — JoindeR of Plaintiffs. — Office.—Under section 3534, 2 Comp. Laws 1888, providing that when several persons claim to be entitled to the same office or franchise, one action may be brought against all such persons in order to try their respective rights to such office or franchise; where a municipal ward in a city is entitled to three councilmen and three persons claim as councilmen from such ward, one action may be brought in the name of the people against the three persons so claiming in order to determine the right, and a judgment entered in favor of the three relators claiming against the three defendants claiming.</p>

Appeal írom a judgment of the district court of the first district and from an order refusing a new trial' The opinion states the facts.

The opinion states the facts except the following: The evidence showed that deceased was unmarried and lived with his father, aged seventy-seven years, and his mother, who was sixty-two years old. The complaint alleged that the deceased left suiwiving him as his sole heir his mo.ther, who was dependent upon him for support, but the suit was brought in the name of the administrator of the deceased, and not by the mother.

The complaint alleged that defendant Hardy was collector for Salt Lake City and as such claimed to be collector for the consolidated Salt Lake City school district; that the defendant, the board of education of Salt Lake City, and Joseph B. “Walden, Salt Lake City treasurer, claimed to be entitled to the special school tax in dispute, and that Hardy was proceeding to collect the tax, which had been voted in December, 1889; that at all times mentioned prior to March 13, 1890,…

<p>Criminal Law, — Larceny.—Felonious Intent. — Where the court charged the jury that “if the defendant was an inmate of the penitentiary at the time of the larceny, serving out a sentence of a competent court, and he took the horse in question for the purpose of escaping, that would be larceny;” and also charged that “there ought to be á union of act and intent in every criminal offense, and they must find beyond a reasonable doubt that the defendant feloniously took and rode away the horse in question, with intent to deprive the owner thereof of ownership and use of the horse, and the taking must have been with the intent to convert the horse to his own use, and take him away from the possession of the owner, and without any intention of returning the same;” held, that the instruction was not erroneous.</p> <p>Id. — Trial While in Penitentiary. — Disability.—A convict may be tried and sentenced for a criminal offense committed in trying to escape from the penitentiary, even though the trial and sentence were had before his term of imprisonment had expired.</p> <p>Id. — Impeaching Verdict. — Affidavits of Jurors. — In a criminal case, affidavits of jurors will not be received to impeach or question their verdict, nor to show the grounds upon- which it was rendered, nor to show their misunderstanding of facts or of law, nor that they misunderstood the charge of the court, or the effect of their verdict, nor their opinions, surmises, and processes of reasoning in arriving at their verdict.</p>

<p>Appeal from a judgment of the district court of the first district and from an order refusing a new trial. The opinion states the facts.</p>

<p>Appeal from a judgment of the district court of the first district and from an order overruling a motion for •a new trial. The opinion states the facts.</p>

<p>Costs. — EepoRter’s Fees. — Discretion oe the Court. — Where a motion was made to retax costs on the ground that the fees allowed in the cost-bill for the services of a phonographic reporter, and such motion was denied by the court, upon appeal every presumption not negatived by the record will be in favor of the rightfulness of the lower court’s action.</p> <p>Id. — Id.—Charge for Per Diem. — Under section 8099, 2 Comp. Laws 1-888, providing ten dollars a day compensation for the court reporter, and that where the reporter performs services in more than one case on the same day the per diem shall be apportioned, where a case was called for trial at 11 o’clock a. m. of one day, and the trial lasted until 1:15 o’clock p. m. the next day, but a case was on trial part of the first day, before this case was begun, and a trial was begun on the second day after this case was closed, but where it does not appear how much time was taken by either of the other cases or whether or not there was a night session of the court; held, that an allowance to the reporter of twenty dollars per day would not be reversed.</p>

The opinion states the facts, except the findings are here given more fully.

The findings of the trial court were as follows: That on the second day of November, 1889, the plaintiff and J. L. .Lawson defendant, and Peter Brixen owned the premises described in plaintiff’s complaint, each an undivided one-third interest, and that on the same day the plaintiff employed defendants to act as his agents in the sale of his interest in. said property, and that defendants accepted said employment.

<p>Appeal. — Findings.—Conflicting- Evidence. — The findings of the lower court will not be disturbed where there is conflicting evidence, unless they are clearly and manifestly against right and justice.</p>

<p>Practice. — New Trial. — Notice as Motion. — Under the practice in Utah Territory, the notice of intention to move for a new trial stands for the formal motion, and after the notice has been given the motion may be called up to be heard without a written motion having been made.</p> <p>Id. — Id.—WAIVER op Statute. — Where the parties had stipulated ■ that thirty days time be given in which to file notice of motion and statement upon motion for new trial, held, that the statute giving ten days after filing notice of motion to file statement upon motion for new trial was waived, and no motion or statement having been filed within the thirty days, the motion for new trial could be called up and overruled.</p>

<p>Appeal from a judgment of the district court of the third district and from an order overruling a motion for a new trial. The opinion states the facts.</p>

' Appeal from a judgment of the district court of the first district and from an order refusing a new trial. The opinion states the faqts.

The opinion states the facts except the following: “ The organic act approved September 9, 1850, provided, at section 9, that the jurisdiction of the several courts shall be as limited by law, provided that the district and supreme courts, have chancery and common-law jurisdiction.” This section is partly incorporated into the Revised Statutes, as section 1866.

<p>Appeal from a judgment of the district court of the first district and from an order refusing a new trial. The opinion states the facts.</p>

Section 1024, Revised Statutes, provides: “When there are several charges against any person for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined, instead of having several indictments the whole may he joined in one indictment in separate counts; and if two or more indictments are found in such case the court may order them to…

Appeals from judgments of the district court of the first district and from orders denying new trials in each of the cases. The opinion states the facts except the following: The defendant in each case requested the lower court to charge that the plaintiff could not recover for goods lost by theft. This the court refused to do.

The opinion states the facts except the following: At the conclusion of the testimony, and after both parties had rested, the counsel for appellant, defendant below, asked the court to instruct the jury to return a verdict for fifty-five cents, the cost of the message, which was done and judgment rendered thereon.

<p>Appeal from a judgment made upon an order granting a non-suit and from an order refusing a new trial of the district court of the first district. The opinion •states the facts.</p>

<p>Appeal. — Affidavits for New Trial. — Where motion for a new trial is made upon affidavits which are not incorporated into-the statement or in any bill of exceptions, they cannot he considered upon appeal.</p> <p>Id. — Exception to Charge. — Where there is simply in the record a general statement that the charge was excepted to, if any portion of the charge is correct it is sufficient to sustain the-entire charge.</p> <p>to. — Statement for New Trial. — Settling.—Where the record does not disclose that the statement used upon motion for new trial was ever settled, it cannot be considered upon an appeal.</p>

<p>Appeal from a judgment of tbe district court of the first district and from an order refusing a new trial. The opinion states the facts.</p>

The opinion states the facts, except that the suit was by the three trustees of the third school district of Emery county against the county collector and the two sureties upon his bond.

<p>Appeal from a judgment of the district court of the first district. The opinion states the facts.</p>

<p>Appeal — Findings.—Conflicting Evidence. — Where the comí below has made findings upon the evidence, which are justified by the evidence, in the absence of errors of law, the judgment upon the findings will be affirmed.</p>

<p>Water Eights. — Abandonment op Ditch. — Failure to Repair.— Where appellant had once had a ditch across certain land, then government land, but had made no use of or any repairs upon the ditch since 1882, and in 1883 the ditch had been filled up by the respondent, with appellant’s knowledge and consent, who thereby abandoned the ditch, and in 1890 appellant entered upon the respondent’s land, whose grantor had acquired the title from the government after 1883; held, in a suit for damages for the trespass, and for a permanent injunction against appellant, that he had no right of way for his ditch across defendant’s land.</p>

<p>Master and Servant. — Negligence.—Non-suit.—In a suit by-administratrix for death of her decedent caused by alleged negligence of the appellant company, where the accident was caused by the defective condition of the coupling and draw-head of a freight car, and one witness testified that immediately before the accident the couplings of the two cars causing the injury were apparently in good condition, and another witness testified that at a distance, of four or five feet he noticed the defects in one of the cars; held, upon motion for non-suit, that the motion was properly denied and the question of contributory negligence left to the jury.</p> <p>Evidence. — Good Reputation. — Damages.—While evidence as to the good reputation of the deceased as a railroad man was inadmissible as bearing on the question of contributory negligence, yet it was admissible upon the the question of damages and loss to his heirs.</p> <p>Id. — General Condition of Rolling Stock. — Harmless Error.— Where it was admitted that the accident was caused by the defective condition of the couplings of a narrow-gauge car, even though it was error to admit evidence that the narrow-gauge rolling stock was all in a bad condition, yet this was harmless error.</p> <p>Measure of Damages. — Companionship.—Where the court instructed the jury that the respondent was entitled to recover for any loss which the widow of the deceased and his daughter had sustained by reason of the death of their decedent in being- deprived of the support, care, nurture, companionship, assistance and protection of deceased, but immediately after-wards instructed them that they should allow nothing for the mental suffering of the widow and child, nor anything as solace for their feelings; held, that the instruction was correct.</p>

the first district, and from an order refusing a new trial. The abstract in this case did not show that any motion for a new trial had been made, nor any statement or bill of exceptions ever settled, or that any exception to the charge of the court had been taken, or that the evidence-included in the alleged abstract was all the evidence in the case, nor that any appeal had been taken from anything. But the respondent in his brief made no objection to the abstract.

The ruling in the lower court against a non-suit was placed upon the ground that there was evidence to show that the ear had been left unfastened upon the track, and if so, it was negligence to leave the car in Buch a position. The opinion does not notice this aspect of the testimony. Other facts are found in the opinion.

In this case the abstract was an imperfect one. It did not show, but the transcript did, any motion for judgment on the pleadings, nor any objection to the introduction or production of the contract in evidence. The complaint alleged the contract and execution thereof, to-wit; That the party of the first part hereby agrees to sell to the parties of the second part all of lot 29, in block 10, (excepting the ET. E. corner, which belongs to IST.

The opinion states the facts except the following: In section 3846, 2 Compiled Laws of Htah, it is provided that proceedings in condemnation “must be commenced by filing a complaint and issuing a summons thereon.” In section 3847, that the complaint must contain “the names of all owners and claimant, of the property, if known, or a statement that they are unknown, who must be styled defendants.” Section 3848 provides that “ the clerk must issue a summons, which must contain…

<p>Appeal from a judgment of the district court of the first district and from an order refusing a new trial. The opinion states the facts.</p>

The opinion states the facts, but the following sections of the statute may be worthy of note. Section 3646, 2 Comp. Laws 1888, requires the appellant on appeal from a judgment, to furnish the court with the copy of notice of appeal, the judgment roll, and any bill of exceptions or statement in the case on which appellant relies. Section 3648 requires, on appeal from an order granting or refusing a new trial, the same papers with a copy of the order appealed from.

and from an order refusing a new trial. The opinion states the facts, except the following: The •complaint alleged two causes of action, one for relief at law, the possession of the premises, the second, for possession of the premises and a permanent injunction.

. The opinion states the facts, except that the suit wae against William J. Crowther and John T. Lynch and William Glasmann. Crowther’s wife was not a party to the suit. Lynch and Glasmann held a contract on the land subsequent to the one in suit.

<p>Appeal from a judgment of the district court of the third district and from an order refusing a new trial. The opinion states the facts.</p>