Volume 9 — South Dakota Reports

Hon. A. J. Plowman, Judge. Action for divorce. From an order striking his answer from the files because of his failure to comply with an order to pay counsel fees and temporary alimony, defendant appeals, The facts are stated in the opinion. The court erred in adjudging defendant in comtempt in this action, there being no service of any of the orders made by the court, upon the defendant as provided by law.

Hon. J. O. An DREWS, Judge. Action to recover the value of live stock alleged to have been killed by the negligence of defendant. Plaintiff had judgment, defendant appeals. The facts are stated in the opinion. This case is so nearly in line with Hebron v. C., M. & St. P. Ry. Co., 4 S. D. 538, 57 N. W. 494, and Harrison v. Ry. Co., 6 S. D. ,100, 60 N. W. 405, that further citation of authorities upon the general questions involved seems unnecessary.

<p>1. In an action on a due bill which plaintiff claimed was assigned to him by the payee, defendant pleaded as a counterclaim an account against such payee bearing date subsequent to the action; and there was no affirmative proof that such account existed, in favor of defendant or any other person, when suit was brought. Held, that evidence of the account was properly excluded, under Comp. Laws, § 4915, which only authorizes demands “existing at the commencement of the action” to be counterclaimed.</p> <p>2. In an action on a due bill bearing no indorsement, but which plaintiff testified was assigned to him, a written order by the payee, made subsequently to the alleged assignment, directing plaintiff to deliver the due bill to defendant, was imcompetent to disprove the assignment.</p>

<p>Appeal from circuit court, Hughes county. Hon. Loring E. Gappy, Judge.</p> <p>Action by John S. White against Hughes county and its board of commissioners to recover for services as assistant to the clerk of the circuit court. Plaintiff had judgment and defendants appeal.</p> <p>The facts are stated in the opinion.</p> <p>The judge of a circuit court has no jurisdiction or authority in law to make the order appealed from, and thereby bind defendant county, and the same is absolutely void. Chap. 81, Laws of 1890. A deputy clerk of a circuit court is a public officer. Mechem on Public Officers, § 38. At common law there were no costs, and costs of every kind, whether fees or disbursements, are given only by statute. Officers take their offices cum onere and they are required to perform the duties of their office, for the fees or other compensation fixed by statute therefor. Crocken v. Brown County, 35 Wis. 284 and cases cited; Commissioners v. Black, 21 Ind. 32; Commissioners v. Johnson, 31 Ind. 463 and cases cited; County v. Gresham, 101 Ind. 53; Noble v. Wayne County, 101 Ind. 127, and cases cited; City of Brazil v. McBride, 69 Ind. 244; Hartwell v. Supervisors, 43 Wis. 311, and cases cited; Freeholders v. Freeman, 44 N, J. Li. 631; Atchinson Co. v. Tomlinson, 9 Kan. 167, Unless compensation is by law attached to an office, none can be recovered. And a person who accepts an office to which no compensation is attached, is bound to perform the duties pertaining to such office gratuitously. White v. Levant, 78 Me. 568; Walker v. Coots, 129 Mass. 578, cases cited, supra.</p> <p>The making of the order was within the inherent power of the court, in the conduct of its business. Dukes v. State, 11 Ind. 557; Mitchell v. State, 22 Ga. 211; 68 Am. Dec. 193; Shafer v. State, 18 Ind. 444. The circuit court, a court of general j urisdiction, during its session of court, found the fact that this clerk hire was necessary to the proper conduct of the court business. Underwood v. Lawrence County, 6 S. D. 5. In the absence of a showing to the contrary, orders and judgments of courts of general jurisdiction are presumed to be correct, and based upon facts before them at the time. Roehe v. Roehe, 19 N. W. 632; Redford v. Preley, 22 N. W. 70.</p>

<p>1. Comp. Laws, § 5115, provides that an execution shall not issue against the person of a judgment debtor unless an order of arrest has been served, or unless the complaint contains a statement of facts showing one or more causes of arrest. Held, that in an action on a purchase money note, allegations of the complaint that the note was given for goods obtained by false pretenses are immaterial, and therefore the arrest of defendant was not authorized unless an order for his arrest issued before judgment.</p> <p>2. In such a case a j udgment authorizing the arrest of defendant may be collaterally attacked on habeas corpus.</p>

<p>Plaintiff was elected county assessor in 1892, and in April, 1893, took the prescribed oath; but the county board erroneously and without authority refused to approve his bond because he did not qualify, etc., on the first Monday in January preceding, or within ten days thereafter, declared the office vacant, and appointed one L., who qualified, and made the assessment in May and June following as provided by law. Plaintiff was an applicant for the appointment, and took no legal steps to compel the board to approve or act upon his bond, and did not present the bond to_ the judge of the circuit court for approval, as provided by Comp. Laws, Sec. 1376, in such cases. Held, that after L. received the compensation, plaintiff could not recover from the county a sum equal thereto, or any other sum. Pylpaa v. Brown Co. (S. D.), 62 N. W. 962, distinguished.</p>

Hon. Jos. W. Jones, Judge. Action by the Singer Manufacturing Company against Porter P. Peck, to make him- liable for a debt incurred by the Wolgemuth Shirt Company, a corporation. From an order sustaining a demurrer to the complaint, plaintiff appeals. The facts are stated in the opinion. Defendant, having given his faith and credit to the corporation, should be held liable. Wechelberg v. Flower City Nat. Bank (Wis.), 64 Fed. 90; Burns et al. v. Beck etal., 10 N, El. 121.

Hon. William Gardner, Judge. Action by Patrick Daley against John Forsythe and Frank Brown. There was judgment for defendants, and from an order denying a motion for fixing a time to move for new trial the plaintiff appealed. Respondents moved to dismiss the appeal. The facts are stated in the opinion.

Hon. Joseph W. Jones, Judge. Action to cancel a lis pendens and a certificate of sale on execution, and to perpetually enjoin the issuance of a sheriff’s deed. Prom a judgment for plaintiff, defendants appeal. The facts are stated in the opinion. Under the code practice, in actions tried by the court full findings upon every issue of fact made by the pleadings is absolutely necessary.

Hon. D. Haney, Judge. Action to enforce the specific performance of a contract. Plaintiff had judgment, and defendant appeals. The facts are stated in the opinion. There is a defect of parties. The plaintiff’s wife is equally interested in the family homestead, and is a necessary party in all actions affecting the same.

Hon. F. H. Aikens, Judge. Action for divorce. From a judgment in favor of plaintiff, defendant appeals. The facts are stated in the opinion. Willful desertion must continue for one year before it is ground for divorce. Comp. Laws, §§ 2559, 2561, 2562, 2565. To establish desertion three things must be shown. First. Cessation from cohabitation, continuing the necessary time. Second. The intention in the mind of the deserter not to resume cohabitation. Third.

Application oj£ Anson J. McCain for discharge upon writ of habeas corpus. The petitioner was in custody of the sheriff, under a commitment for contempt. The facts are stated in the opinion.

Hon. D. Haney, Judge. Action by E. S. Hagaman against O. W. Gillis. There was a judgment for plaintiff, and defendant appeals. The facts are stated in the opinion. Notice to produce is an indispensable prerequisite to the introduction of secondary evidence of the contents of an instrument, and the fact of the giving of the notice must be proved before such secondary evidence can be offered.

Hon. D. Haney, Judge. Action to determine priority of mortgage liens. Defendants had judgment, and plaintiff appeals. The facts are stated in the opinion.

<p>Appeal from circuit court, Lincoln county. Hon. Joseph W. Jones, Judge.'</p> <p>Action upon a bond given by a bank to secure the safekeeping of public moneys. There was a judgment'for plaintiff, and defendants appeal.</p> <p>The facts are stated in the opinion.</p> <p>The general deposit of the public funds in defendant bank was a loan of the money deposited to the bank. §§ 1665 and 3697, Comp. Laws; McLaughlin v. Bank, 43 N. W. 715; Bank v. Bank, 2 Wall. 254; Thompson v. Riggs, 5 Wall. 680; Bank v. Millard, 10 Wall. 155; State v. Keim, 8 Neb. 67; Bank v. Goudy, 9 N. W. 566; State v. Bartley, 50 N. W. 176. Plaintiffs act of'depositing money in defendant bank being unlawful, his right of action is defeated. §§ 3526, 3528, 3532 and 3577, Comp. Laws. See, also, Melchoir v. McCarty, 31 Wis. 254; Griffith v. Dresschler, 4 Minn. 278.</p> <p>•Before the offense of embezzlment can be made out, it must distinctly appear that respondent has acted with felonious intent, and made an intentional wrong disposal; indicating a design to cheat and deceive the' owner. People v. Treadwell, 69 Cal. 226; People v. Gray, 66 Id. 271; Beatty v. State, 82 Ind. 228; People v. Ealland, 55 Mich. 628; People v. Hurst, 41 Id. 328; People v. Wadsworth (Mich.), 6 West. Rep. 180. Even if plaintiff had made the deposits himself and in his own name individually, or expressly so directed, this in the absence of a proper allegation, sustained by proof of an evil intent, could not avail appellants. State v. MeFetridge (Wis.), 54 N. W. 1.</p>

Hon. J. O. Andrews, Judge. Action against the county of Grant for rent of a building occupied as an office by the register of deeds of such county. From an order sustaining a motion by plaintiff to send the case to a referee, defendant appeals. The facts are stated in the opinion.

Hon. Loring E. Gappy,'Judge. Action by the state of South Dakota against Thomas H. Ruth to recover for failure to perform certain ministerial duties. A demurrer to the complaint was sustained, and plaintiff appeals. The facts are stated in the opinion. A complaint charging that the damages alleged to have been sustained were the direct and proximate result of the negligent acts of defendant, is not subject to demurrer. Mechem on Pub.

Hon. J. O. Andrews, Judge. Ejectment by Julius H. Seymour against Hannah P. Cleveland and another,, in which defendants set up a counterclaim for improvements. From a judgment in favor of plaintiff for possession and in favor of defendants on their counterclaim, plaintiff appeals. The facts are stated in the opinion. Defendants were neither holding under color of 'title, nor adversely to the claim of plaintiff.

<p>Where, after a school district has issued bonds for the erection of a school house, part of its territory is made into new districts, under a general law which does not expressly provide that the new districts shall be liable for a proportionate share of the debts of the old district, neither the old district nor a creditor thereof can enforce against the new districts a liability on such bonds; especially where the school house remains in the old district.</p>

Hon. E. G. Smith, Judge. Action in conversion. Plaintiff had judgment, and defendant appeals. The facts are stated in the opinion. To maintain trover there must be a concurrence both of the right of property, general or special, and of the actual possession, or the right to the immediate possession. 26 Am. & Eng. Encyc. of Law, 744; Lloyd v. Powers, 4 Dak. 62; S. C. 22 N. W. 462; Swenson v. Kleinschmidt, 26 Pac. 198; Tuthill v. Wheeler, 6 Barb. 363.

Hon. F. R. Aikens, Judge. Action to quiet title to certain land. From a judgment for defendants, plaintiffs appeal. The facts are stated in the opinion. The father having made a warranty deed, such conveyance carried with it the interest by him inherited, it being an after-acquired title, and such after-acquired title inured to the benefit of his grantee. 1 Devlin on Deeds, § 721; 1 Jones on Mortgages (4th Ed.), § 679.

Hon. A. J. Plowman, Judge. Action to annul a marriage contract. Defendant had judgment of dismissal, and plaintiff appeals. The facts are stated in the opinion. It is not contempt of court to fail to pay alimony where one neither has nor can obtain it, and where he has not causelessly either put it out of his hands or failed to receive it. Wight-man v. Wightman, 45 111. 167. Service of the order upon the attorneys is insufficient. § 5337, Comp.

Hon. J. W. Jones, Judge. Action to enjoin defendants from opening a highway on a section line. Defendants had judgment, and plaintiff appeals. The facts are stated in the opinion.

<p>Appeal from circuit court, Fall River county. Hon. William Gardner, Judge.</p> <p>Action to enjoin the execution and delivery of a tax deed. From an order overruling their demurrer to the complaint, defendants appeal.</p> <p>The facts are stated in the opinion.</p> <p>Any and all irregularities in making the assessment and sale have been cured by an act of the legislature. Chap. 3, Laws of 1895. Though this act was passed subsequent to the bringing of the suit,- yet it was a law prior to the demurrer of defendants, and therefore should have been considered by the court in passing upon said demurrer. People v. McDonald, 69 N. Y. 362; Commissioners v. Ruckman, 57 Ind. 96; Miller v. Graham, 17 Ohio St. 1; Cowgill v. Long, 15 111., 202; Bristol v. Supervisors, 20 Mich. 95; Ex parte McCardle, 7 Wall. 506; Cooley Taxation, 305. South Dakota has no constitutional restrictions against retroactive laws. In the absence of such restriction its legislature has power to pass laws curing irregularities and errors in tax proceedings. 25 Am. & Eng. Ency. of Law, 445; Cooley on Taxation, 301; People v. McCreary, 34 Cal. 432; People v. Bleckwein, 7 N Y. Sup., 914; Tifft v. Buffalo, 82 N Y. 204; Van Deventer v. L. I. Cy., 10 N. Y. Sup., 801. See also Smith v. Hand, 61 Vt. 469; Musselman v. Logan-sport,! 29 Ind. 523; Panning v. Funches, 60 Miss. 541. The act is not special. Cooley on Taxation, 301; People v. Todd, 23 Cal. 181.</p> <p>The legislative act is unconstitutional and void, because in this state the legislature has no power to pass a special privilege or private law or. retroactive law upon any subject which can be governed by general law. Cooley, Taxation, 223; Const., Art. 3, § 23, subd. 11. There was no lawful meeting of the board during the years 1891 and 1892, and-the taxpayer was given no opportunity to be heard. § 2, Bill of Rights; Cooley, Taxation (2d ed.), 363,' 751; Powers v. Larabee, 49 N. W. 724; Avant v. Flynn, 2 S. D. 153, 49 N. W. 15; Sumner v. County of Colfax, 16 N. W. 756; State v. Railroad, 30Pac. 693; Kuntz v. Sumption, 19 N. W. 474; Railroad v. Washington County, 3 Neb. 30; Mulligan v. Smith, 59 Cal. 232; County of Santa Clara v. Railroad, 18 Fed. 385. The right to a hearing is fundamental and indestructible. Hagar v. Reclamation Dist., Ill U. S. 701; Stewart v. Palmer, 74 N. Y. 192; Thomas v. Gain, 35 Mich. 164; San Matee v. Railroad, 13 Fed. 722; Davidson v. New Orleans, 96 U. S. 97.</p>

Hon. Loring E. Gaffy, Judge. Action to foreclose a mortgage and , to cancel certain certificates of sale made on foreclosure by advertisement. Plaintiff had judgment, and from such judgment and an order denying a new trial, defendants appeal. The facts are stated in the opinion.

Hon. A. J. Plowman, Judge. Action to recover balance alleged to be due upon a builder’s contract. Defendants had judgment and plaintiff appeals. The facts are stated in the opinion. The provisions of the law requiring a referee to report the testimony with his report, is mandatory. Ch. 100, § 8, Laws 1891; Kent v. Ins. Co., 2 S. D. 300; Supervisors v. Ehlers, 45 Wis. 281; Betts v. Letcher, 1 S. D. 190.

Original action to enjoin defendant from certifying to the county auditors a proposition to amend the' state constitution. The facts are stated in the opinion.

<p>Appeal from circuit court, Sully county. Hon. Loring E. Gaffy, Judge.</p> <p>Action by James R. Stacy against Phillip M. Liddy and others. Judgment for plaintiff and defendants appeal.</p>

<p>Appeal from circuit court, Sully county.- Hon. Loring E. Gappy, Judge.</p> <p>Action by W. R. Hayes against Evangeline F. Gleason and others. Judgment for plaintiff and defendants appeal.</p>

Hon‘. J. 0. Andrews, Judge. Action to enjoin tbe sale of real property for taxes. Plaintiff had judgment and defendants appeal. The facts are stated in the opinion. An excessive valuation alone -will not be sufficient to warrant the interference of a court of equity.

Hon. A. J. Plowman, Judge. Action to recover damages for injury to real property. Plaintiff had judgment. Defendant appeals from the taxation of costs against it. The facts are stated in the opinion. No claim of title to real projaerty being alleged or denied in the pleadings or having come in question at the trial, and the damages claimed not exceeding one hundred dollars, this case was within the jurisdiction of a justice of the peace. § 6042, Com.

Hon. Charles M. Thomas, Judge. Mandamus proceedings by Amelia Meyer against Volunteer M. Beaver, as sheriff of Meade county, S. D. Demurrer to the alternative writ was overruled, and peremptory writ awarded. Defendant appeals. The facts are stated in the opinion.

Hon. A. W. Campbell, Judge. Proceeding in mandamus by A. W. Wilmarth. against William A. Ritschlag, as treasurer of the city of Huron, to compel defendant to pay a warrant. Prom an order denying plaintiff’s application for a peremptory writ, he appeals. The facts are stated in the opinion.

Hon. A. J. Plowman, Judge. Action in claim and delivery. From a judgment in favor of defendant, plaintiffs appeal. The facts are stated in the opinion. The taking of a note or order upon a third person is not payment unless so agreed by the parties, and the burden of proof is on the debtor to establish payment. Baker v. Baker, 2 S. D. 261; Holmes v. Briggs, 18 Atl. 928.

<p>Appeal from circuit court, Day county. Hon. A. W. Campbell, Judge.</p> <p>Action by Brooks Bros, against E. W. Bigelow. From an order overruling a motion to vacate a default judgment, defendant appeals.</p> <p>The facts are stated in the opinion.</p>

Hon. D. Haney, Judge. Action by Phoebe Milliron' against Lorenzo Milliron for ' separate maintenance. From an order requiring defendant to make payments to plaintiff for counsel fees and temporary support, defendant appeals. The facts are stated in the opinion. This is an action at law. § 2596, Comp. Laws; Sykes v. Bank, 2 S. D. 242. To sustain the court below would require the insertion of words not found in the section. Mortgage Co. v. Bradley, 4 S. D. 162.

Hon. J. O. Andrews, Judge. Action to set aside a sale of real and personal property, as in fraud of creditors. From an order striking out parts of the answer, defendant appeals. The facts are stated in the opinion. The appellant (the alienee of respondent’s debtor) from whom it is sought to recover property, may show that there was in fact no existing indebtedness, by alienor to respondent, at the time of purchase of the property alleged to be disposed of fraudulently..

Hon. Joseph W. Jones, Judge. Action by Norman D. McGillivray against Adella R. Mc-Gillivray, the county of Lake, and others to foreclose a mortgage. From a judgment in favor of plaintiff, defendant Lake county appeals. The facts are stated in the opinion. The allegation in the complaint that no proceedings have been had at law or otherwise, etc., was put in issue by appellant’s answer, and proof should have been given on this point. 5434, Comp.

Hon. J. W. Jones, Judge. Action by H. C. Bright, administrator of the estate of Jerry Law, deceased, against O. Ecker and Susie Law, to-recover assets claimed to belong to his intestate’s estate. The court directed a verdict for defendants. Prom an order denying his motion for a new trial, plaintiff appeals. The facts are stated in the opinion.

Hon. Joseph W. Jones, Judge. Action to foreclose a real estate mortgage. From an order vacating a sale and order of confirmation, plaintiff appeals. The facts are stated in the opinion. A sale made in this state under a decree of foreclosure of a mortgage is a quasi judicial sale, and no confirmation thereof is necessary, except in compliance with Sec. 5149, Comp. Laws, and rule 29 of the trial court. Rorer on Judicial Sales, 2nd Ed. § 591; 12 Am. & Eng. Encyc. of Law, 208.

Hon. Wm. Gardner, Judge. Action for damages. Plaintiff had judgment. Prom an order granting defendant a new trial plaintiff appeals. The facts are stated in the opinion. The statement of the case was never signed or settled by the trial court and hence was a nullity. Adams v. Dohrmann, 63 Cal. 417; Schreiber v. Whitney, 60 Cal 431; Kellar v. Lewis, 56 Cal. 466; Mining Co. v. Smith, 2 Dak. 455; Bank v, Bu-cannon, 33 Pae. 595; Meineri v. Snow, 27 Pac. 677.

Hon A.- J. Plowman, Judge. Action by Richard Trebilcock against the Big Missouri Mining Company, a corporation'. Motion to dissolve an attachment was denied, and defendant appeals. The facts are stated in the opinion. The question of fraudulent intent is one of fact and not of law, the presumption of law being that the defendant is innocent until it is shown that it is guilty. §§ 3509, 4659 and 3298, Comp.

Hon. J. W. Jones, Judge. Action by Andrew Cornwall against Charles E. McKinney upon certain certificates of deposit. From an order denying defendant’s motion to require plaintiff to reply to new matter in the answer defendant appeals. The facts are stated in the opinion. The order of the trial court in refusing to require a reply to be served to the new matter set up in the answer was an abuse of discretion. § 4918, Comp. Laws; Hubbell v. Fowler, 1 Abb. Pr.

Hon. J. O. Andrews, Judge. Action to recovery a salary as county judge. Judgment for plaintiff, and defendant appeals. The facts are stated in the opinion. Salary paid to the defacto officer, under the circumstances of this case, is a complete defense to the action. 5 Am. & Eng. Encyc. of Law 109; 19 Id. 531; 1 Mechem Pub. Off., § 332; Auditors v. Benoit, 20 Mich. 176; 4 Am.

<p>Appeal from circuit court, Roberts county. Hon. J. O. Andrews, Judge.</p> <p>Action to recover salary as county judge. A portion of the amount claimed was disallowed, and plaintiff appeals from that part of the judgment.</p>

Defendant was convicted in a justice court of violating a city ordinance, and from a reversal by the circuit court of the judgment of conviction the city appealed.

Hon J. W. Jones, Judge. Proceedings by the town of Dell Rapids against Margaret Irving, to establish a highway. Defendant had judgment for damages, and from such judgment and an order refusing a new trial, plaintiff appeals. The facts are stated in 'the opinion. In all cases where the damages awarded are less than $100, the only appellate forum is the justice court and jury. § 1324, Comp. Laws. See, also, Town of Dell Rapids v. Irving, 7 S. D. 310, 64 N. W. 149.

. Hon. A. J. Plowman, Judge. Action upon promissory notes. From an order dissolving an attachment, plaintiff appeals. The facts are stated in the opinion. The assignment was void, because it did not include all the debtor’s property. Burrill on Ass’g’t§ 94; Comp. Laws, § 4663; Juliand v. Rathbone. 39 N. Y. 369. See, also, Mackiev. Carems, 5 Cow. 547; Burrill, § 200; McGlurg v. Lecky, 3 Penn. & W. 83; Wakeman v. Grover, 4 Paige 23; 11.

<p>Original action in the supreme court to recover certain fees of justices of the peace, sheriff, clerk and witnesses, in certain criminal cases tried in Brule county, and assigned by such officers and witnesses' to plaintiff. Defendant demurs to the complaint. Demurrer overruled.</p> <p>The facts are stated in the opinion.</p>

Hon. A. J. Plowman, Judge. Action by Edwin Van Cise and John R. Wilson against Theodore G. Carter, substituted for Norman T. Mason, to set aside a tax deed. From a judgment in favor of defendant, plaintiff appeals. The facts are stated in the opinion. The description of the property was insufficient. Stout v. Maston, 139 U. S. 151; People v. Purviance, 12 111.

Hon. D. Haney, Judge. Action to recover damages for breach of contract. From a judgment for plaintiffs for nominal damages only, they appeal. The facts are stated in the opinion. The contract is entire, and plaintiffs are entitled to the return of the cpnsideration. Partial performance is immaterial in principle as well as law.

<p>1. Delivery to the clerk of the court of the original notice of appeal, with direction to file the same, is not a service on the clerk of notice of such appeal, as required by Comp. Laws, § 5215.</p> <p>2. Service of notice of appeal, as required by Comp. Laws, § 5215, on the clerk of the court, is essential to an appeal.</p>

Plowman, Judge. Hon. A. J. Action by H. Grant Lower against James P. Wilson and others. There was a judgment for plaintiff, and defendant Wilson appeals. The facts are stated in the opinion. The summons was not legally served. Comp. Laws, §§4898, 4903; Mayer v. Griffin, 7 Wis. 82; Knox v. Miller. 18 Wis. 397; Rape v. Heaton, 9 Wis. 328; Northrup v. Shepard, 23 Wis. 513; Buildey v. Bulldey, 6 Abb. 307; Williams v. Yan Valkenburg, 16 How. 144.

Hon. J. O. Andrews, Judge. Action upon an account not yet due. From an order dissolving attachments, plaintiffs appeal. The facts are stated in the opinion. The supreme court of this state has held that what might be grounds for attachment on a debt due, would not be on a debt not due, and, presumably, the converse is true. Deering & Co. v. Warren, 1 S. D. 46. See, also, Foley-Wadsworth Co. v. Porteous, 8 S. D. 74, 65 N. W. 429; §§ 4993 and 5014, Comp. Laws.

Hon. J. O. Andrews, Judge. Action by James W. Ask against John Armstrong. Plaintiff appeals from an order discharging an attachment. The facts are stated in the opinion. The amendment was proper and allowable. Comp. Laws, §§ 4938 and 4939; Brookmire v. Rosa, 51 N.'W. 840; Banking Co. v. Wright, 55 N. W. 1060; Moline M. & S. Co. v. Curtis, 57 N. W. 161. The original affidavit was sufficient and unobjectionable.

Hon. J. O. Andrews, Judge. Attachment by Bradley, Metcalf & Co., a corporation, against John. Armstrong. From an order discharging the attachment, plaintiff appeals. The facts are stated in the opinion.

Hon. J. O. Andrews, Judge. Action by H. A. Park and another against John Armstrong. Prom an order discharging an attachment, plaintiffs appeal. The facts are stated in the opinion. The traversing affidavit must deny the existence of every statutory ground for attachment alleged in the affidavit for attachment. Hornick Drug Co. v. Lane, 1 S. D. 129; McFarland v. Claypool, 128 111. 397; Walker v. Welch, 13 111. 674; 3 Ency. of PI. & Pr. 79.

<p>Appeal from circuit court, Brookings county. Hon. J. O. Andrews, Judge.</p> <p>Action by John G. Miller and others against John Armstrong. From an order dissolving an attachment, plaintiffs appeal.</p>

Hon. A. J. Plowman, Judge. Action in equity to subject certain realty to the payment of a judgment. Decree for plaintiffs, and defendants appeal. The facts are stated in the opinion. The premises were purchased with the intention to use and occupy as a homestead, and therefore became impressed with the homestead character before this action was begun.

<p>Appeal from circuit court, Brookings county. Hon. J O Andrews, Judge.</p> <p>Action by George R. Finch and others against John Armstrong. From an order discharging an attachment, plaintiffs appeal.</p>

■ Appeal from circuit court, Minnehaha county. Hon. J. W. Jones, Judge. Action upon, promissory note. Prom a judgment for plaintiff, and from an order denying a new trial, defendant appeals. The facts are stated in the opinion.

Hon. E. G. Smith, Judge. Action in claim and delivery. From a judgment in justice’s court for plaintiff, defendant appealed to the circuit court, where the judgment was reversed, and plaintiff appeals. The facts are stated in the opinion. The circuit court had no jurisdiction of the subject matter, for the reason that no statement on appeal was filed or settled by the justice. § 6130, Comp. Laws. The provisions of Sec. 6130, Comp. Laws, are directory and not mandatory.

Hon. Joseph W. Jones, Judge. Action by Oscar O. Murray, state’s attorney for Lake county, on the relation of Charles Bingham, against William Whitmore, to contest defendant’s election to the office of mayor of the city of Madison. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. The facts are stated in the opinion.

Hon. Joseph W. Jones, Judge. Application for a writ of certiorari for the purpose of reviewing and invalidating the action of the board of county commissioners and county superintendent in forming a new school district out of portions of certain existing districts. From a judgment refusing the writ, the applicant appeals. The facts are stated in the opinion.

Hon. J. W. Jones, Judge. Attachment. From an order dissolving the warrant, plaintiff appeals. The facts are stated in the opinion. The traversing affidavits of respondents placed the burden of proof on appellant, and as it produced no evidence to sustain the allegation, the attachment was rightly dissolved. Wyman v. Wilmarth, 1 S. D. 172; 46 N. W. 190; Wilcox v. Smith, 4 S. D. 125; 55 N. W. 1105.

Original application by the state of South Dakota, on the relation of George Adkins, for a writ of mandamus to compel E. E. Lien and others, constituting the board of county commissioners of the county of Roberts, state of South Dakota, to submit the question of the location of the county seat of such county to the voters thereof, in conformity with the requirements of the constitution. The facts are stated in the opinion.

Hon. E. G. Smith, Judge. Action for damages to real and personal property. There was a judgment for defendants, and plaintiff appeals. The facts are stated in the opinion. A particular or special description will always control a general or implied description. 2 Am. & Eng.

Hon J. W Jones, Judge. Action brought in justice’s court, and from a judgment for plaintiff the defendant appealed to the circuit court. Prom an order dismissing the appeal, the defendant appeals. The facts are stated in the opinion. Appellant was entitled to file new bond and proceed with the trial. Towle v. Bradley, 2 S. D. 472. “If in an appeal from justice court, the sufficiency of the sureties in the undertaking is excepted to, as provided in Sec. 6133, Oomp.

Hon. J. O. Andrews, Judge. Action to recover the value of services. There was a judgment for plaintiff, and defendant appeals. The facts are stated in the opinion. A school district, though generally a corporation, can exercise no powers beyond those expressly conferred by statute, or which by necessary implication arises therefrom. 2 Am. & Eng. Encyc. of Law 800.

Hon. E. G. Smith, Judge. Action to quiet title. The court directed a verdict for defendant, but thereafter granted plaintiff’s motion for a new trial, and defendant appeals. The facts are stated in the opinion. A court can acquire competent jurisdiction only by the service of a summons in some of the modes prescribed by law. Waldron v. Railroad, 1 Dak. 352. The statutes prescribe the manner of service. §§ 4898 and 4900, Comp. Laws.

Hon. William Gardner, Judge. Action on two promissory notes. From a judgment for de fendants Price and Buell, plaintiff appeals. The facts are stated in the opinion. The terms surety and guarantor are in the books used interchangeably, and as having the same meaning. The distinction between them is, at common law, shadowy, whatever may be the change made by our statute. A surety is treated as an original promisor, and is held to know every default of bis principal.

Hon. J. W. Jones, Judge. Action by school district No. 56 of Lincoln county, S. D., against school district No. 27 of Lincoln county, S. D. There was a judgment for plaintiff, and defendant appeals. The facts are stated in the opinion. There is no power conferred upon the special board to create an independent district out of districts already in existence. § 6, Chap. 114, Law's 1893. See, also, Bank v. School Dists., 6 Dak. 332, 43 N. W. 822.

Hon. D. Haney, Judge. Action to foreclose a mortgage. A decree was rendered in favor of defendant Wickhem, who alone appeared, and plaintiff appeals. The facts are fully stated in the opinion.

Hon. J. O. Andrews, Judge. Action upon a school bond. Demurrer to the complaint was overruled, and defendant school district appeals. The facts are stated in the opinion. The bond sued on is void for the reason that it is in greater denomination than $500.

<p>The supreme court will not assume original jurisdiction of mandamus proceedings to compel the hoard of canvassers to reconvene and recanvass the votes, unless some reason is shown why the application was not made to the circuit court.</p>

Hon. A. W. Campbell, Judge. Action to set aside a statutory foreclosure of a real estate mortgage. Defendant had judgment, and plaintiff appeals. The facts are stated in the opinion.

Hon. A. W. Campbell, Judge. Action to recover upon certain city warrants. From an order sustaining in part and overruling in part a demurrer to the answer, both parties appeal. The facts are stated in the opinion.

<p>1. Under Comp. Laws, Sec. 5102, providing that a judgment “shall be entered in the judgment book,” a judgment so entered is the original judgment, and a form of judgment signed by the judge is only an order for judgment, and not the judgment of the court.</p> <p>2. Comp. Laws, Sec. 5102, providing that the judgment must be entered in the judgment book, does not, in effect, give authority to the clerk to enter the judgment, as the act of the clerk in so entering the judgment is merely the clerical act of writing the judgment under the direction of ,the court.</p> <p>3. Where oral evidence of the clerk of the court is admitted without objection to contradict the recitals in an execution, it cannot be disregarded on appeal.</p> <p>4. Under Comp. Laws, Section 5110, providing for the issuance of execution within five years after entry of judgment, no execution can issue until after such entry.</p> <p>5. A payment by' a third person to a bank on its delivery to him of a note secured by a mortgage, on which payments have been made, but not indorsed, which fact was known to all the parties thereto, is an assignment by the bank of the note, and continues the lien in behalf of the assignee for the amount paid by him.</p>

Hon. A. W. Campbell, Judge. Action to try title. Judgment for plaintiff, and defendant appeals. The facts are stated in the opinion. After cash entry upon which patent is subsequently issued land is subject to taxation, notwithstanding delays are had and additional proceedings taken to complete the original entry. Witherspoon v. Duncan, 4 Wall. 210; Wheeler v. Merriman, 15 N. W. 665; State v. Railroad, 21 Minn. 472.

Hon. Loring E. G-affy, Judge. Action in ejectment. Defendant had judgment, and plaintiff appeals. The facts are stated in the opinion. There was no valid dedication of the premises to public use. (1) Miller was without power to dedicate. 9 How. (U. S.) 10; Angel-1, Highways, 147; 2 Dillon Mun. Corp., § 498; 5 Am. & Eng.

Hon. Wm. Gardner, Judge. Action to foreclose a real estate mortgage. There was a judgment in favor of plaintiff, from which defendant appeals. The facts are stated in the opinion. The agreement was an absolute contract, upon valid consideration, modifying the terms of the mortgage; it was both executed and in writing, and therefore sufficient to change the terms of the original contract. Comp. Laws, § 3593. See, also, Wiltsie, Mortg. Forecl. (new edition) '§§ 52-54; Comp.

Hon. A. W Campbell, Judge. Action to compel the foreclosure of a mortgage by advertisement. From a judgement in favor of plaintiffs, defendant appeals. The facts are stated in the opinion.

<p>1. In habeas corpus proceedings the decision of the circuit court is a final order affecting a substantial right, made in a special proceeding, from which an appeal will lie to the supreme court.</p> <p>2. Though the writ of habeas corpus is one of constitutional right, its privilege is to be exercised in a reasonable manner; and in ordinary cases application should, in the first instance be made to the circuit court, from whose decision an appeal may be taken which will be preferred, and considered as soon as submitted in the supreme court.</p>

Original application by Richard J. Woods against Charles H. Sheldon, governor, and another, for writ of mandamus. The facts are stated in the opinion.

Action by John Novotny against James A. Danforth and others. Judgment for defendants was affirmed (9 S. D. 301, 68 N. W. 749) on appeal. Appeal by plaintiff from taxation of costs.

Original action by Lyman county against tbe state of South Dakota. On demurrer to complaint. The facts are stated in the opinion. A comity is a mere political subdivision of a state. It is a part of the state. It cannot sue itself; hence it cannot sue the body politic of which it is an essential part. 4 Am. & Eng. Encyc. of Law 359; Vigo Twp. v. Board, 12 N. E. 305.

Hon. J. O. Andrews, Judge. Action by the state, on the relation of H. C. Morgan, against Edward Lamm, under the provisions of the prohibitory liquor law. From a refusal to dissolve an injunction granted on the prayer of plaintiff, defendant appeals. The facts are stated in the opinion. The appellate jurisdiction of this court will not be presumed, but must affirmatively appear from the record. Valley L. & I. Co. v. Schone, 2 S. D. 344; Bank v. Elevator Co., Id. 356.

<p>1. A person who has a contract to do state printing for one year comineno’ ing July 1, 1892, is entitled to print the auditor’s annual report, which by Laws 1891, Chap. 70, must he made to the governor by December following the ending of the-fiscal year in June, even though the auditor let the contract to another prior to the end of the fiscal year.</p> <p>2. It was the intention of the legislature, in passing Laws 1891, Chap. 99, providing for five classes of state printing to be let by the secretary of state, to have all the state printing done by contract; and a person who has a contract for the printing of the fifth class, which includes ‘‘printing of circulars and blanks for state officers, and all other printed matter not in pamphlet form, and not included in the foregoing classes,” is entitled to do all printing not specifically designated in the other four classes.</p>

Hon. E. G. Smith, Judge. Proceeding between Bertha R. Skinner and A. H. Holt and George Holt, co-partners as Holt Bros., and others to determine the rights of the parties to the proceeds of a policy of insurance on the life of John J. Skinner, deceased.

Hon J. W. Jones, Judge. Proceeding to abate a common nuisance, under the laws relating to intoxicating liquors. Prom an order vacating a judgment by default, with leave to defendant to answer, plaintiff appeals. The facts are stated in the opinion. The fact that defendant did not know what his rights and duties were is not ground for opening a judgment entered for his failure to answer. Chapin v. Fulkerson, 24 S. W. 1066.

Hon. Frank B. Smith, Judge. William Walker was convicted of a misdemeanor in the circuit court on an appeal from justice court, and prosecutes error. The facts are stated in the opinion.

Hon. A. J. Plowman, Judge. Action by Job Lawrenson against Edward McDonald, as sheriff, for services as a custodian. There was a judgment for plaintiff, from which defendant appeals. The facts are stated in the opinion.

<p>Appeal from circuit court, Lawrence county. Hon. A. J Plowman, Judge.</p> <p>Action to have two deeds absolute in form adjudged to be mortgages, and a decree permitting plaintiff to redeem the property described therein. There was a judgment for defendant, and plaintiff appeals.</p> <p>The facts are stated in the opinion.</p> <p>The provisions of Secs. 5066 and 5067, Comp. Laws, are mandatory. Gull River Lum. Co. v. School Disk, 48 N. W. 427. Scott & Co. v. Spaulding, 59 N. W. 867. See, also, Jandt v. Smith, 2 Dak. 46. Neither equity nor the law forbids parties making a sale of their land with a contract to reconvey, and where parties enter into such a contract in good faith, the contract will be upheld. Where the papers upon their face show a loan, they will be construed to be a mortgage. Parol evidence will be received to show that the transaction was in fact a mortgage. Where the papers do not show that a security was meant, it is incumbent upon the party seeking to establish a mortgage to show that a mortgage was intended. Morris v. Nyswanger, 5 S. D. 307, 58 N. W. 800; Wallace v. Johnstone, 129 U. S. 58, 9 Sup. Ct. Rep/243; Hanford v. Blessing, 80 111. 188. Stahl v. Dehn, 40 N. W. 922; 15 Am. & Eng. Encyc. of Law 779, et seq.; Gassert v. Bogk, 19 Pac. 281; S. C. 149 U. S. 19; Sup. Ct. Rep. 738.</p> <p>Where there is a deed and contract to reconvey, and oral evidence has been introduced tending to show that the transaction was one of security, and leaving upon the mind a well founded doubt as to the nature of the transaction, then courts of equity incline to construe the transaction a mortgage.' Conway v. Alexander, 7 Cranch 281; Russell v. Southard, 12 How. 145; Crosby v. Buchanan, 81 Ala. 574, 1 So. 898; Mitchell v. Wellman, 8Q Ala. 16; Turner v. Wilkinson, 72 Ala. 361; McNeil v. Norsworthy, 39 Ala. 156; Trucks v. Lindsay, 18 Iowa 504; Rockwell v. Humphrey, 57 Wis. 412, 15 N. W. 394; Snavely v. Pickle, 29 Gratt. 27; Keithley v. Wood, 38 N. E. 149; Jones on Mortgages, § 279; 15 Am. & Eng. Encyc. of Law, 783; Alder-son v. Caskey, 25 S. W. 629; Peugh v. Davis, 96 U. S. 332; Brick v. Brick, 98 U. S. 514.</p> <p>‘ ‘Each case must be decided in view of the peculiar circumstances which belong to it and mark its character, and the only safe criterion is the intention of the parties, to be ascertained by considering their situation and the surrounding facts, as well as the written memorials of the transaction.” Graves, J., in Cornell v. Hall, 22 Mich. 377. See, also, 15 Am. & Eng. Encyc. of Law, 783; Slee v. Manhattan Co., 1 Paige Ch. 56; 4 Kent’s Com. 145; Martindale on Conveyancing, 384. “Unless the relation of debtor and creditor remains, no mortgage can exist, for it is essential to the existence of a mortgage that there shall be either a pre-existing debt or one created at the time or one contracted to be created. ” 15 Am. & Eng. Encyc. of Law, 780; Glover v. Payn, 19 Wend. 518; McNamara v. Culver, 22 Kan. 661; Bridges v. Linder, 60 la. 190; Henley v. Hotaling, 41 Cal. 22; Hall v. Ashart, 80 Cal. 348; Chandler v. Chandler, 76 Iowa 574; Horn v. Kettellas, 46 N. Y. 605; Robinson v. Crosby, 6 Paige 1069. See, also, Heath v. Williams, 30 Ind. 495; 4 Kent’s Com. 144.</p>

This case was affirmed at the present term, the opinion being reported in 9 S. D. 295, 68 N. W. 747. Appellant now petitions for a rehearing.

<p>1. The sustaining of a general objection by a defendant to the admission of the record of a court, which is made by statute prima facie evidence of plaintiff’s right of action, constitutes reversible error where the defendant’s argument on appeal discloses that the real objection relied on is that proper foundation for the introduction of the record had not been laid — an objection which might have been obviated had it been specifically stated.</p> <p>2. Comp. Laws, Sec. 5776, making an order of a county court, entered after a citation, requiring a person to deliver assets of the estate of an intestate to his administrator, prima facie evidence of the right of the administrator to recover such assets, contemplates a reasonable and proper method of exercising powers usually conferred on probate courts and is constitutional and valid.</p>

Original action by Calvin J. B. Harris against the state of South Dakota for services rendered in the revision and compilation of the laws of the territory of Dakota. The facts are stated in the opinion. Where the state authorizes itself to be sued, its measure of responsibility is to be determined by the same rules as those which determine the liabilities of ordinary private litigants.

Original application by George L. Houghton for leave t© file charges against certain attorneys. The facts are stated in the opinion.

Hon. J. W. Jones, Judge. Action to foreclose a mechanic’s lien. Defendants had judgment, and from an order denying a new trial, plaintiff appeals. The facts are stated in the opinion. Whether the notes were bankable paper or not is not material in this controversy, as the plaintiff would have a right under the statute to enforce his mechanic’s lien independent of any collateral security jvhich he might hold.

Hon. Joseph W. Jones, Judge. Action to restrain the county treasurer from collecting certain personal taxes. A demurrer to the complaint was sustained, and plaintiff appeals. The facts are stated in the opinion. There is ground for equitable interference if under the law no remedy can be had to recover back taxes paid. Cooley on Taxation (2nd Ed.) p. 773. And such taxes cannot be recovered back from the state.

Hon. J. W. Jones, Judge. Action to recover possession of land. From a judgment in favor of plaintiff for part of the land only, and from an order denying his motion for a new trial, plaintiff appeals. The facts are stated in the opinion. Plaintiff having become a bona fide purchaser, in good faith, of the premises, the defendants are estopped from claiming a lesser sum due than that which appeared from the note and mortgage and so stated in the notice of sale.

Hon. L. E. Gappy, Judge. Action by John W. Fallihee against John Wittmayer and Magdalena Wittmayer. From so much of a judgment as cancels a mechanics’ lien claimed by plaintiff, he appeals. The facts are stated in the opinion.

Hon. J. W. Jones, Judge. Action in claim and delivery. From a judgment for plaintiff, and from an order overruling a motion for a new trial, defendant appeals. The facts are stated in the opinion.

Hon. J. W. Jones, Judge. Action for the conversion of personal property. From a judgment in favor of defendants, and from an order denying plaintiff’s motion for a new trial, it appeals. The facts are stated in the opinion. The description in the mortgage was insufficient. Powers v. Larabee, 2 N. D. 141, 49 N. W. 724; Powers v. Bowdle, 3 N. D. 107, 54 N. W. 404; Keith v. Hayden, 2 N. W. 494.

<p>Appeal from circuit court, Minnehaha county. Hon. J. W. Jones, Judge.</p> <p>Action upon promissory note. Plaintiff had judgment and defendant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>1. In a suit to recover land, the validity of foreclosure proceedings under which plaintiff claims cannot be attacked on the ground of usury.</p> <p>2. Nor can such defense be indirectly pleaded by alleging that the foreclosure was for an amount in excess of that due, the notice of sale having stated the amount due according’ to the terms of the note secured.</p> <p>3. Application to vacate a foreclosure sale by advertisement on the ground of inadquacy of price, or that separate parcels were sold an masse, comes too late where made over four months after the period of redemption has expired, and no excuse is shown for the delay.</p>

<p>Appeal from circuit court, Minnehaha county. Hon. J. W. Jones, Judge.</p> <p>Action in claim and delivery. Defendant had judgment upon a verdict; directed by the court, and plaintiff appeals.</p> <p>The facts are stated in the opinion.</p> <p>Where personal property has been mortgaged, and left in the possession of the mortgagor, and the mortgage is duly recorded, a subsequent removal of the mortgagor to another state does not make a new record of the mortgage necessary in the county and state to which the mortgagor has removed with the property. The rule of caveat emptor applies in such case. Keenan v. Stimson, 20 N. W. 364; Cobbey Ch. Mortg. §§ 476, 477; Nicholas v. Mase, 94 N. Y. 163; Jones Ch. Mortg. § 299; Blystone v. Burgett, 68 Am. Dec, 658; Bank v. Massey, 17 L. R. A. 127; Handley v. Harris, Id. 703; Garner v. Wright, 6 Id. 715; Hornthall v. Burnell, 13 Id. 740; Richardson v. Shelby, 41 Pac. 378.</p> <p>A motion for a new trial was presented to the trial court after judgment had been entered. This motion was denied, but no assignment of error in any such ruling is presented to this court, and he cannot 'now ask to be relieved from the effect of the order. Pierce v. Manning, 2 S. D. 517; Struthers v. Puller, 26 Pac. 471; Carson v. Punk, 27 Kan. 524; Lingerman v. Nave, 31 Ind. .222.</p>

<p>Laws 1890, Chap. 137, providing for the annual apportionment among the several educational institutions of the income of their lands (which lands, Const. Art. 8, § 7, provides, shall remain a perpetual fund, the income to be applied to the institutions to which they were granted) and providing for the issuance of warrants for the amounts so apportioned, was not impliedly repealed by Laws 1895, Chap. 97, forbidding the creation of unauthorized indebtedness against the state, and providing that no warrant shall issue without an appropriation first made by the legislature in exact amount for the specific purpose.</p>

Appeal, from circuit court, Beadle county. Hon. A. W. Campbell, Judge. Action by Lelia L. Smith against Fred F. B. Coffin. From an order refusing to dismiss plaintiff’s appeal from a justice’s court, defendant appeals. The facts are fully stated in the opinion.

Hon. J. W. Jones, Judge. Action on promissory note. Defendant had judgment, and plaintiff appeals. The facts are stated in the opinion. An alteration of an instrument is presumed to have been made before its execution and delivery. Proof of the maker’s signature is prima facie evidence that the instrument written over it is his act. Wilson v. Hayes (Minn.) 43 N. W. 467.

Hon. J. W. Jones, Judge. • Action against the makers and guarantors of certain promissory notes. The court directed a verdict in favor of the defendant guarantors, and from the judgment entered thereupon, plaintiffs appeal. The facts are stated in the opinion,

<p>Where the official survey has not been introduced on the issue of the location of a section line, and the evidence is conflicting, the findings will not be disturbed, unless clearly against the weight of the evidence.</p>

In an opinion reported in 9. S. D. 341, 69 N. W. 14, the judgment in favor of defendant Wickhem was affirmed. Plaintiff now petitions for a rehearing.

<p>Appeal from circuit court, Yankton county. Hon. E. G. Smith, Judge.</p> <p>Action to determine adverse claims to real estate. Plaintiff appeals from an order directing the sheriff to restore the possession of certain lots.</p> <p>The facts are stated in the opinion.</p>

Hon. E. G. Smith, Judge. Action to subject certain real property of a wife to the lien of a judgment against her husband. Defendants had judgment and plaintiffs appeal. The facts are stated in the opinion. The complaint was sufficient. The following cases support it, if not directly, at least by analogy. Daskam v. Nepp (Wis.), 47 N. W. 1132; Taney v. O’Connell (Colo.), 27 Pac. 888; Probert v. McDonald, 2 S. D. 495, 51 N. W. 212; Millard v. Shaw et al., 4 How.

Hon. A. W. Campbell, Judge. Action of detainer by J. Lewis Browne, assignee of the Western Farm-Mortgage Company, against Ira S. Haseltine. Judgment for plaintiff in justice court and on appeal in the circuit court, and defendant appeals. The facts are stated in the opinion.

<p>Appeal from circuit court, Minnehaha county. Hon. J. W. Jones, Judge.</p> <p>Action by Polina Randall against Burk township of Minnehaha county and others. Judgment for plaintiff. Defendants appeal.</p>

Hon. Prank B. Smith, Judge. Robert Dorman was convicted of removing growing timber from, school lands, and brings error. The facts are stated in the opinion. The indictment charged both a felony and a misdemeanor, and it is reasonable to infer that the jury were misled. State v. Hafsoos, 1 S. D. 382, 47 N. W. 400. Defendant has a right to know the exact nature of the offense charged against him. State v. Burchard, 4 S. D. 548, 57 N. W. 491.

<p>Appeal from circuit court, Minnehaha county. Hon. J. W. Jones, Judge.</p> <p>Action by Mary Randall against Burk towhship of Minnehaha county and others. Judgment for plaintiff. Defendants appeal.</p>

Hon. J. W. Jones, Judge. Action to restrain the defendant and its officers from laying out and preparing for use certain highways. Plaintiff had judgment, and defendants appeal. The facts are stated in the opinion.

Hon. A. J. Plowman, Judge. Action upon a promissory note. Prom a judgment for defendants, and an order denying a new trial, plaintiff appeals. The facts are stated in the opinion. A clause in a promissory note ‘ ‘and with attorney’s fees in addition to other costs in case the holder is obliged to enforce payment at law” does not render the note non-negotiable. Chandler v. Kennedy, 65 N. W. 439; 4 Am. & Eng. Ency. Law, pp. 313, 314; Apperson v. Ins.

Hon. A. J. Plowman, Judge. Action to foreclose a mechanic’s lien. Prom a judgment for defendants, plaintiff appeals. The facts are stated in the opinion. A corporation cannot avoid its obligation when, for instance, it has borrowed money and used it, on the ground that its officer who negotiated the loan was not properly authorized in the premises. Bank v. Piske, 60 N. H. 863; Wright v. Pipe Lum. Co., 101 Pa. St. 204; Tyler v. Tualatin, 14 Or. 485; Schurr v. Invest.

Hon. Boring E. Gappy, Judge. Action in claim and delivery. From a judgment in favor of plaintiff, defendant appeals. The facts are stated in the opinion. Property having been taken thereunder and the papers returned into court, the affidavit and notice became functus officio, and if a further levy were made it could only be upon an additional affidavit, bond and notice. Snow v. Ray, 22 Wend. 602; O’Reilley v. Good, 42 Barb. 521.

Hon. J O. Andrews, Judge. Action in conversion. From a judgment in favor of plaintiff against certain of the defendants, and from an order denying their motion for a new trial, such defendants appeal. The facts are stated in the opinion. Where a first mortgagee sells the mortgaged property without foreclosing, he is answerable to the second mortgagee in no case to exceed the difference between the market value of the goods converted and the amount of the first mortgage.

Hon. A. J. Plowman, Judge. WilliannC. Davidson was convicted of murder, and brings error. The facts are stated in the opinion. A witness cannot be cross-examined as to any fact which is collateral and irrelevant to the issues, merely for the purpose of impeaching him by other evidence; and mere opinions which the witness may have formerly expressed are inadmissible. 1 G-reenl. Evi., § 449; 1 Whart. Crim. Evi. §§ 457-459; Com’r v. Mooney, 110 Mass. 99.

Hon. A. W. Campbell, Judge. Action by Maris Taylor, receiver of tbe Fidelity Fire Insurance Company, against the Bank of Volga and another, to recover certain securities. Johnson Nickeus intervened, by leave of court, claiming an interest in one of said securities adverse to both parties, and from a judgment for intervener the defendants appeal. The facts are stated in the opinion. The pleadings do not present a proper case for intervention.

Hon. J. O. Andrews, Judge. Action upon promissory notes. From an affirmative judgment in favor of defendant, plaintiffs appeal. The facts are stated in the opinion.

Hon. William Gardner, Judge. Action in forcible entry and detainer. Plaintiff had judgment and defendant appeals. The facts are stated in the opinion. “Where a lease does-not provide for re-entry in case of non-payment of rent, nor for a forfeiture or termination of the lease, in that event the mere non-payment of rent does not work a forfeiture.’’ Beal v. Bass, 29 Atl. 1088; Am. Dig. 1895, 2784; Park v. Hays, 22 S. W. 3; Am. Dig. 1893, 2986; Haynes v. Union Inv.

Hon. F. B. Smith, Judge. Action by the Bank of Iowa & Dakota against M. M. Price and John Oliver to foreclose a chattel mortgage. From an order overruling a demurrer of defendant Price to a pleading of defendant Oliver, Price appeals., The facts are stated in the opinion. The so-called cross bill is insufficient. Glenn v. Clark, 53 Md. 580; Newberry v. Blatchford, 106 111. 586; 5 Encyc. of PL & Pr. 640 et seq; Sebring v. Conkling, 32 N. J. Eq. 24.

Hon. J. W. Jones, Judge. Action by Melvin Grigsby against Frederick T. Day. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. The facts are stated in the opinion. The allegations of the complaint, and the undisputed evidence, disclose a co-partnership contract as between plaintiff and defendant, and that in their dealings they sustained the relation of partners towards each other. § 4027, Comp.

Hon. E. G. Smith, Judge. Action to recover on a policy of life insurance. Defendants’ demurrer to the complaint was overruled, and they appeal. The facts are stated in the opinion. The administrator was empowered to compromise with appellants without the approbation in any manner of the county# court, or of the heirs-at-law of the insured.

Hon. J. W. Jones, Judge. On rehearing. From a judgment for defendants, plaintiffs appealed. In an opinion reported in 8 S. D. 190, 65 N. W. 1071 the judgment was reversed and a new trial ordered.

Hon. F. R. Aikens, Judge. On rehearing. Action to foreclose a mortgage. Plaintiff had judgment, and defendant Jackson appealed. In an opinion reported in 7 S. D. 135, 63 N. W. 548, the judgment was modified.

Hon. Loring E. Gaffy, Judge. Action by James Garvie against Judson L. Greene. Prom a judgment in favor of plaintiff, defendant appeals. The facts are stated in the opinion. The motion to set aside the service of the summons extended the time to answer and defendant was not in default. Mitchell v. Campbell, 13 Pac. 190. The plea of the statute of limitations is a legal and not an unconscionable defense.

Hon. A. W. Campbell, Judge. Action to recover for keeping and feeding cattle. Plaintiff had judgment, and defendant appeals. The facts are stated in the opinion.

Hon. Frank B. Smith, Judge. Attachment. From an order granting intervener’s motion to discharge the attachment, plaintiff appeals. The facts are stated in the opinion.

Hon. Wm. Gardner, Judge. Action to quiet title to certain mining claims. Prom a judgment in favor of plaintiff, and from an order denying them a new trial, defendants appeal. The facts are stated in the opinion. The burden is on the relocator to show that the defendant failed to do its assessment work. Johnson v. Young (Colo.) 34 Pac. 173; Quigley v. Gillett (Cal.) 35 Id. 1040; Hammer v. Mining Co., 9 Sup. Ct. 548. Traveling expenses cannot be charged as development work.

<p>Appeal from circuit court, Minnehaha county. Hon. J. W. Jones, Judge.</p> <p>Action to recover on a contract for legal services. Plaintiff had judgment, and defendant appeals.</p> <p>The facts are stated in the opinion.</p>

Hon. Frank B. Smith, Judge. Action by H. M. Miles against Claus Arp. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. The facts are stated in the opinion. If there be a dispute as to the amount of a debt, and the debtor pays less that the amount claimed by his creditor, the latter’s agreement to accept the sum paid in full satisfaction need not be in writing. Comp.

<p>1. The words “illicit connection”, as used in the statute defining seduction under promise of marriage, are equivalent to “setual intercourse.”</p> <p>2. The presence of a witness during the taking of testimony in violation of an order of exclusion, is not ground for rejecting his testimony, unless the party calling him connived at his disobedience.</p> <p>3. Under Laws 1895, Chap. 64, Sec. 2, requiring the state’s attorney to indorse on the information the names of the witnesses known to him at the time of filing the same, and, at such time before the trial as the court may direct, also to indorse thereon other witnesses then known to him, witnesses whose names are not so indorsed are properly allowed to testify, in the absence of any showing that they were known to the state’s attorney before the trial began.</p> <p>4. In a prosecution for seduction, testimony as to defendant’s bad reputation for chastity up to the time^ he was accused was properly received, though the crime was committed several months prior thereto.</p> <p>5. In a prosecution for seduction, an unsigned typewritten letter, inclosed in an envelope, addressed to the pro'secutrix, and postmarked at a place where defendant was then staying, asking prosecutrix to go to that place, and be treated by a physician, was properly admitted; it appearing that she was then pregnant, that defendant had previously given her medicine to relieve her, that she told no one except him of her condition, and that when she complied with the request in said letter, she was taken in charge by an intimate friend of defendant.</p> <p>6. Under Comp Laws, Sec. 7386, requiring the testimony of the prosecutrix in cases of seduction under promise of marriage to be corroborated by other evidence “tending to connect defendant with the commission of the offense,” the testimony of the prosecutrix that such an offense was committed need not be corroborated.</p>

Hon. J. W. Jones, Judge. Action on a promissory note. From a judgment in favor of plaintiff, defendant appeals. The facts are stated in the opinion. The answer was not frivolous. 2 Wait’s Pr., 492-496; Strong v. Sproul, 53 N. Y. 498; State v. King, 6 S. D. 297, 60 N. W. 75; Sigmund v. Bank, 4 N. D. 164, 59.N. W. 966; Bliss Code PI. § 421; Maxw. Code PI. 555; Stebbins v. Lardner, 2 S. D. 127, 48 N. W. 847. The attempted denial of plaintiff’s corporate existence is frivolous.

<p>1. Rev. St. U. S. § 2324, provides that not less than $100 annually shall be put upon a mining claim, and that, on failure of a co-owner to contribute his share, those who have made the improvements may a the end of the year give the delinquent personal notice in writing, or notice by publication, and if, after ninety days, he fails to contribute, his interest in the claim shall become the property of said co-owners. Held, that where a delinquent owner was dead, and there was no administrator, a published notice addressed to the delinquent “his heirs, administrators and to all whom it may concern,” was, effectual to cut off the interests of the heirs, whether minors or not, on their failure to contribute within the time specified, and vest title in the other owner.</p> <p>2. Under said statute it is optional with the co-owner who makes the improvements, to serve personal notice or publish the same.</p> <p>3. The fact that the heirs were not individually named was immaterial.</p> <p>4. Where a co-owner has failed to contribute his share of the expenditures for several years, the delinquencies for said years may be grouped in one notice.</p>