Volume 8 — Wyoming Reports

-ReseRved Questions from the District Court, Sheridan County, Hon. Joseph L. Stotts, Judge. Proceedings for the apportionment of the indebtedness of the original counties of Fremont, Johnson, and Sheridan, between them respectively and the county of Big Horn, created out of territory taken partly from each of ' said original counties. The opinion contains a full statement of the facts.

Jesse Knight, Judge. This was an action upon a promissory note brought by Charles Edwards, tbe payee, against David L. Swinney, the maker. The defense was that consideration of the notes was money won at cards. Judgment was rendered for the plaintiff, and the defendant prosecuted error. The facts are stated in the opinion.

Bramel, Judge. Replevin, by Hannah Durlacher, the holder of a chattel mortgage, against Charles C. Frazer, sheriff of Albany County, who held the goods included in the mortgage by virtue of writs of attachment issued at the suit of various creditors of the mortgagor. Judgment for defendant, and plaintiff brought error. The material facts are set forth in the opinion.

Hon. Joseph L. Stotts, Judge of the Fourth District, presiding. The case is fully stated in the opinion. The trial court erred in admitting in evidence the conversation between the witness, Mitchell, and one Me Fall. It was inadmissible as hearsay. (1 Greenleaf on Ev. 99, 124.) It is immaterial to any issue in the case. Me Fall is not sued, and unless it can be shown that he was acting as agent for the defendant, it makes no difference what he said to Mitchell.

ERROR .to the District Court. Sweetwater County, Hon. Jesse Knight, Judge. Replevin brought by H. M. Clendenning against Frank Guise, before a justice of the peace. Judgment was rendered for plaintiff for the possession of the property, and ten (10) dollars damages for its detention, and costs of suit.

On reserved questions from the District Court, Laramie County, Hon. Riohakd H. Soott, Judge. This was an action brought by the State against the Board of the County Commissioners of the County of Laramie to recover certain State taxes alleged to be due the State from said county. The defendant demurred to the petition, which had set out in full all the facts out of which the liability of the county was claimed to have arisen.

EeROR to the District Court. Weston County. Hon. Joseph L. Stotts, Judge. This action was brought by the Standard Cattle Company against John L. Bail’d,^ as Treasurer of the County of Weston, to enjoin the collection of taxes levied upon three thousand head of cattle. In the district court judgment was rendered for defendant, and the plaintiff prosecuted error. The facts are stated in the opinion.

Reserved questions from the District Court, Albany County Hon. Chaeles W. Bramel, Judge. Quo Warranto, to determine the title to the office of County Assessor of Albany County. The facts are stated in the opinion. Section 5 of the Act of 1899 relating to the appointment of assessors for the years 1899 and 1900 is a special law, and interrupts the uniform operation of the general election laws; as the relator was elected in 1898 county treasurer and ex-officio assessor.

Richard H. Scott, Judge. Suit upon the bond of John Roberts as county treasurer of Laramie County.

Ekbok to tbe District Court, Sweetwater County,. Hon. David H. Ceaig, Judge. This was a suit in replevin brought by the First National Bank of Eock Springs against Mary Ludvigsen as administratrix of the estate of John Ludvigsen, deceased. The bank claimed under a chattel mortgage.

On reserved questions from the District Court, Sheridan County, Hon. Joseph L. Stotts, Judge. The material facts are stated in the opinion. By the great weight of authority, a partnership assignment, where the statute requires participating creditors to execute releases of the assignor, is void unless the separate property of the members of the firm is included in the assignment.

On reserved questions from the District Court, Carbon County, Hon. David H. Craig, Judge. The material facts are stated in the opinion. The judgment in the election contest had the same force and effect as to the result of the election as if it had been so declared by the canvassers.

Reserved questions from- the District Court, Carbon County, Hon. David H. Craig, Judge. The material facts are stated in the opinion. With the exception of the seventh reserved question the questions are substantially the same as in the case of Rasmussen v. Board. The fact that the incumbent had lawfully held the office during the preceding term can make no difference. After the election in 1896 he qualified anew by taking a new oath and. filing a new bond.

<p>Appeal and Error —Order op District Judge at Chambers — Review op Order Appointing Receiver — -Parties.</p> <p>1. The supreme court does not have jurisdiction on appeal of an order of a district judge at chambers, as distinguished from an order of. court.</p> <p>2. But an act of the judge at chambers, within the limitations of the statute, declaring the court open at all times for certain specified purposes, is the act of the court as much so as if performed at a regular term; and an order of the judge duly entered pursuant to said statute, is an order entered in open court, and it is as much an order of court as any decision announced and entered in term time.</p> <p>.3. Upon application of plaintiff in a foreclosure suit a receiver was appointed. One of the defendants, holder of a senior mortgage, upon filing answer and cross petition' asking foreclosure of his mortgage, moved the appointment of a receiver in his behalf and the vacation of the former appointment. The motion was denied. Held, that the order appointing the receiver, and the order denying defendant’s motion for the vacation of the appointment, and for a receiver in his own behalf, were final orders and reviewable on error.</p> <p>4. In a proceeding in error seeking the review and reversal of an order appointing a receiver in a foreclosure suit, the receiver is not a necessary party. Nor is he a necessary party on error from an order denying the motion of a party to the cause for the vacation of the appointment and the substitution of a receiver to be appointed in behalf of the moving party.</p>

EeRoe to the District Court, Sheridan County, Hon. Joseph L. Stotts, Judge. The facts are stated in the opinion. A denial by motion, unsupported by affidavit,, of the truth of the grounds for attachment as alleged in the affidavit for attachment, amounts to no denial at all, and creates no issue. Until an affidavit is filed by defendant denying the grounds set forth in the attachment affidavit, the plaintiff can not be required to submit proof to sustain the writ.

EbROe to the District Court, Sheridan. County, Hon. Joseph L. Stotts, Judge. Action upon a bond of indemnity given to the sheriff of Sheridan County to secure him against loss on account of the levy of an execution upon chattels claimed by a third person. Judgment for plaintiff. Defendants prosecuted error. The material facts are stated in the opinion.

Joseph L. Stotts, Judge. Action on a promissory note brought in justice court. Defendant pleaded a set-off. Plaintiff recovered judgment for $150 and costs, and defendant appealed to the district court. In that court judgment was rendered for plaintiff for $120, and the latter ordered to pay all costs.

Jesse Knight, Judge of the Third District, presiding. Francis E. Ross was informed against for murder in the first degree, being charged with having killed Amos Robinson, at Buelah, in Crook County, 'on the night of June 21, 1896. The case was tried in Weston County upon change of venue, and the defendant convicted of murder in the second degree. He was sentenced to the penitentiary for life, and prosecuted error. The material facts are stated in the opinion.

Petition by John Miskimmins for a writ of habeas corpus. This is a writ of habeas corpus. The prosecuting attorney of Laramie County upon information furnished him by the plaintiff made complaint before a justice of the peace against one Oliver C. Hough charging him with having obtained the sum of $1,130 from plaintiff by false pretenses.

On petition for rehearing. The original hearing reported, 7 Wyo., 392. The petition failing to allege an assignment of the lease, the property is not bound for the sum alleged to be due to the assignee. The second cause of action is insufficient, not being complete in itself. (Bliss Code PI., 121; Pomeroy Bern., 575.)

Joseph L. Stotts, Judge. Motion to strike bill of exceptions from the record. contended that the bill of exceptions was improperly allowed, and cited Roy v. U. M. Co., 3 Wyo. 417; Hon-ard v. Bowman, id., 311; Smith Drug Co. v. Casper Drug Co., 5 id., 510.

David H. Craig, Judge. Patrick L. Johnson was informed against for the crime of murder, and was convicted of murder in the second degree. He prosecuted error. It was error to deny the motion of defendant below to require the prosecution to call a witness whose name was indorsed on the information, who had been subposnaed by the prosecution and was present at the trial.

<p>HeseRved questions from the District Court, Johnson County, Hon. Joseph L. Stotts, Judge.</p> <p>Motion to discontinue, upon dismissal in the District Court.</p>

EkRoe to the District Court, Sweetwater County, Hon. Dayid H. Craig, Judge. The material facts are stated in the opinion. . A receiver can not be appointed until the action is pending. (Smith on Receivers, 35, 602; Beach on Bee., 50; High on Bee., 17; 2 Beach Mod. Eq., 931, 970; 20 Ency.

Ekboe to the District Court, Albany County, Hon. Charles W. Bramel, Judge. The material facts are stated in the opinion. Where the evidence is .conflicting, the court should examine it to see if the legal effect thereof has been properly declared. (48 Pac., 460, (Kan.).) Where the facts are undisputed, and no testimony to support the verdict, the appellate court will vacate it.

Joseph L. Stotts, Judge. There being no statutory liability,- the ditch owner is liable only at the common law, if at all. He who is prior in time has the better right. Where one locates under the line of a ditch, the rule of coming to a nuisance applies. (Tenny v. Ditch Co., 7 Cal., 335.) A ravine may be used as a ditch. (37 Cal., 263.) As the company was operating its ditch in-the usual way no negligence can be imputed to it.

EeRob to the District Court, Fremont County, Hon. Jesse Knight, Judge. Replevin. The material facts áre stated in the opinion. The calling of a jury to try the cause, after a waiver thereof by the parties, was error. '(R. S., Sec. 2567; Syndicate Imp. Co. t. Bradley, 6 Wyo., 171; Suth. Stat. Const., 587; 60 Pa. St., 464.) In case of a conflict between the journal entry as to the matter of calling a jury, and the bill of exceptions, the latter must control.