Volume 9 — Wyoming Reports

Joseph L. Stotts, Judge. Action had been brought by a surety upon promissory note to recover from the principal the amount of the note, alleging payment thereof by such surety. An attachment was sued out and levied upon a stock of goods belonging to one not the defendant, but who, it was claimed, had held defendant out as the owner, and upon the faith of which the surety had signed the notes. The owner brought this suit to enjoin the sheriff from proceeding with the levy.

EeRoe to the District Court, Johnson County, Hon. Joseph L. Stotts, Judge. Suit upon an undertaking given to secure the operation of a temporary restraining order. Judgment was for plaintiff, and defendant brought error. The facts are stated in the opinion. The reply was insufficient as a plea of former adjudication.

EreoR to the District Court, Albany County, Hon. Charles W. Bramel, Judge. This was an action brought by the Laramie National Bank, Henry Gr. Balch and Charles C. Frazer upon certain promissory notes owned by the bank, executed by Thomas Bird, and to foreclose a trust deed given to secure the payment of the notes. The defendant Constantine P. Arnold claimed under a prior mortgage, made to one Frederick Bell, and transferred to Baid Arnold.

David H. Craio, Judge. Louis T. Palmer was charged with murder, and convicted of manslaughter, and prosecuted error. The facts are stated in the opinion.

Reserved questions from the District Court, Crook County, Hon. Joseph L. Stotts, Judge. The case and question is stated in the opinion. The lucrativeness of an office does not depend upon the amount of the compensation attached to it. The office of coroner is a lucrative office. (Ency. L., Yol. 13, 1192; Dailey v. State, 8 Blackf., 329; Howard v. Shoemaker, 35 Ind., Ill; Grd. Island Gas Co. v. West, 28 Neb., 852; McElhinney v. City, 32 Neb., 744.

Charles W. Bramel, Judge. Suit was brought upon promissory notes by Nathaniel K. Boswell, administrator of the estate of Bertha A. Hance, deceased, against Warren Bliler. Judgment was given for the plaintiff, and defendant alleged error. The facts are fully stated in the opinion, so far as material. Movables by fiction of law are deemed to be attached to the person of the owner, and to be present at his dom-icil, regardless of their actual situation.

Charles W. Brahel, Judge of the Second District, presiding. This was an action brought by the New Hampshire Insurance Company upon the bond of its agent to recover money alleged to have been received by the agent and not paid over. The surety, Charles W. Biner, was the defendant. The case was tried to a jury, but the court directed a verdict for the plaintiff. The defendant prosecuted error. The facts are stated in the opinion.

Eiohard H. Scott, Judge. Mandamus to require the Eegister of Deeds of Laramie County to receive for record, and record in his office a deed to lands in said county, executed in the State of Kansas, without having a subscribing witness.

David H. Craig, Judge. Matthew G. Brantley waa tried in the district court upon an information charging that on the 24th day of April a. d. 1899, the defendant “ did unlawfully, willfully, maliciously, feloniously, purposely, and with premeditated malice, then and there having the present ability to do so, attempt then and there to commit a violent injury on the person of one James Lavin, then and there being, and did unlawfully, willfully, maliciously, feloniously,…

On reserved questions from the District Court, Johnson County, Hon. Joseph L. Stotts, Judge. Action to quiet title to a right to the use of water. The case is fully stated in the opinion. Irrigation was practiced from the beginning of the civilized settlements of the arid regions of this country; and the first taker was conceded to have the first right.

On petition for rehearing. For former opinion, see 7 Wyo., 494. When the provision of the constitution as to impairing the obligation of contracts is invoked for the protection of a judgment creditor, the courts look beyond the judgment to the original cause of action, to determine whether or not the obligation is a contract obligation, and, therefore, beyond the power of the Legislature to impair, (Scarborough v. Dugan, 10 Cal., 305; Weaver v. Lapsley, 43 Ala., 224; Sprottv.

David H. Craig, Judge. At the September, 1899, term of the District Court for Sweetwater County, on Oct. 4, 1899, was tried this action, theretofore brought by Richard Foster, as plaintiff against the First National Bank of Rock Springs, as defendant. Said action was an action at law, A trial by jury was demanded, and the cause was tried by a jury of twelve men.

Eichard Ii. Scott, Judge. On motion to dismiss. The grounds are stated in the opinion. The requirements of law have not been complied with as to the filing of a petition in error. (E. S., Sec. 4251; Eule 11 of this court.) There is no transcript. Such files as are here are merely attached to the petition in error as a part thereof. A failure to file the papers required by the rules of the court is a ground for dismissal.

Charles W. Bramel, Judge of Second District, presiding. On motion to dismiss. The facts and grounds of the motion are stated in the opinion. for the motion, contended that there was no transcript filed with the petition, since the transcript was annexed’ to the petition and made a part of it; and that did not amount to a filing with the petition.

David H. Craig, Judge. This was a suit in mandamus, wherein the relator, G. W. Shutter-Cottrell sought to have the respondent, Peter Appel, as the chairman of the board of county commissioners, commanded to sign a certain county warrant ordered issued to the relator, by the board, upon the allowance of his claim for services performed as an attorney in assisting the county attorney in defending a suit against the board.

David H. Craig, Judge. . The action was brought in justice court, and judgment given for plaintiff on default. The defendant attempted to appeal to the district court, but did not observe the statutory requirements. The district court refused to dismiss, on motion, and allowed the defendants to give evidence, and rendered judgment for them. The plaintiff thereupon brought error. The right of appeal from a justice court is purely a statutory proceeding.

Exceptions to final report of William A. Robins as guardian of the estate of George II. Nagle, a minor. The district court decided adversely to the ward, and sustained the acts of the guardian. The ward prosecuted error. The facts are stated in the opinion. The constitution prohibits the Legislature from authorizing, by any kind of legislation, the investment of trust funds in the bonds or stock of private corporations. (Art. 3, Sec. 38, Sec. 27).

Eeeoe to the District Court, Weston County, Hon. Joseph L. Stotts, Judge. The case and the material facts were stated by Mr. Justice Corn, who delivered the opinion as follows: — The plaintiff in error, who was also the plaintiff below, brought suit in replevin against the defendant to recover possession of one thousand head of sheep and three hundred and seventy-five lambs, their increase for the spring of 1895.

Dayid H. Craig, Judge. The plaintiff in error, Robert Casteel, was charged with murder in the second degree for the killing of one Mels Thorn. He was convicted of manslaughter. The defendant, on his trial, offered to prove uncommunicated threats of the deceased against him, but the court refused to admit the testimony. Some of the instructions were also objected to. The defendant after making a motion for new trial which was overruled, prosecuted error.

Charles W. Bramel, Judge. Action upon an account for the agistment of cattle. Judgment went for plaintiff, and defendant brings error. The only error assigned was an excessive allowance of interest. contended that interest should have been allowed from thirty days after the date of the last item, instead of from thirty days after each item as allowed by the trial court, and cited San-derson. v. Reed, 75 Ill., 190; Pac. C. L. S. Co. v. U. S., 33 Ct.

<p>ReseRyed questions from tbe District Court, Carbon County, HoN. Richard H. Scott, Judge of the First District, presiding.</p> <p>The case is fully stated in the opinion.</p>

Reseeved questions from tbe District Court, Laramie County, Hon. Richard H. Scott, Judge. The facts in this case were stated by Mr. Justice Corn, who delivered the opinion of the court, as follows: The defendant was convicted before a justice of the peace of a violation of an ordinance of the city of Cheyenne, entitled, ‘ ‘ An ordinance concerning city licenses, ’5 and sentenced to pay a fine of §50 and costs. The ordinance is as follows: ‘ ‘ Section 1.

Charles W. BrAMel, Judge. This action was brought in the District Court, by George H. Leighton against Peter Sherlock for the possession of a mining claim in support of an adverse claim, said Sherlock having applied for a patent. Judgment was rendered for the plaintiff, and the defendant prosecuted error. The material facts are stated in the opinion.

ON reserved questions from the District Court, Laramie County, Hon. Eiohard H. Soott, Judge. In the order reserving the question, the facts are stated substantially as follows : The plaintiff, Mark M. Coad, on the 14th day of September, 1888, in the district court for Laramie county, recovered a judgment against Oscar F. Cowhick upon which a balance remained unpaid.

EbeoR to the District Court, Uinta County; Hon. David H. Craig, Judge. John Quayle brought the action against William H. Wyman and Jennie E. Woodward to recover a judgment for money and to foreclose a mechanic’s lien claimed to have been acquired upon certain property for the amount claimed, the said amount being claimed for certain materials furnished for a certain building erected for the defendants.

EeeoR to the District Court, Johnson County, Hon. Joseph L. Stotts, Judge. Eobert Foote sued J. M. Stanley and caused an attachment to issue. Certain parties were summoned as garnishees in said action, and answered, showing that they were indebted to the defendant. J. S. Stanley filed a petition of intervention, claiming that the indebtedness was to him instead of the defendant. The matter was tried, and judgment was rendered against the intervenor. He prosecuted error.

Richard H. Scott, Judge. This wa,s an action by John Kelley against Oliver F. Rhoads to recover taxes alleged to have been illegally collected from plaintiff by defendant while assessor of the county, upon a herd of sheep. The material facts are fully stated in the opinion. The essential elements of interstate commerce are : point of departure in one State, destination in another, and such time required or consumed as is customary and usual by the means employed.

Joseph L. Stotts, Judge. On motion of the county attorney to dismiss proceedings in error taken by the board of commissioners of a county from a judgment against it. The motion was resisted by the attorneys employed by the board to assist the county attorney, after the board had, by resolution, ordered that the services of said attorneys be dispensed with.

Ekeoe to the District Court, Sheridan County, ITon. Joseph L. Stotts, Judge. Mandamus in the name o£ the State, on the relation of Mary L. Carpenter and Francis Bacon, against J. M. Lobban as treasurer and ex-officio collector of taxes of Sheridan County, to compel said treasurer to issue and deliver to the relators a tax receipt in full for all taxes due upon certain lands. The facts are stated in the opinion. Mandamus in this case does not lie.

Charles W. Bramel, Judge of the Second District, presiding. Proceedings in aid of execution. The garnishee answered that he had money of the judgment debtor in his hands. The wife of the debtor filed a petition to be made a party, claiming that the money in the hands of the garnishee was her property. The petition was received with, out objection, and testimony was received, also without objection, in support of the petition, and the finding was in favor of the claimant.

Sweetwater County, IIon. Jesse Knight, Judge. A receiver pendente lite was appointed in this action brought to foreclose a real estate and a chattel mortgage given to secure the same sum of money. The defendant moved for the discharge of the receiver on the ground that no notice of the application had been given him. The motion was denied, and the defendant prosecuted error.

EeRok to the District Court, Johnson County, Hon. Joseph L. Stotts, Judge. Action upon a promissory note against the sureties thereon. The sureties defended on the ground that the note had been extended without their consent, and judgment was rendered in their favor. The plaintiff brought error. The facts are fully stated in the opinion. The burden of proof is upon the defendants.

EeeoR to tlie District Court, Sheridan County, Hon. Joseph L. Stotts, Judge. Action for the recovery of the price of goods alleged to have been sold and delivered to the defendants, On the trial the defendants objected to the proof by parol of the contract on the ground that the contract was within the statute of frauds, and that there was no note or memorandum signed by the party to be charged.

David H. Craig, Judge. Replevin for a piano. Defendants claimed storage charges. The facts are stated in the opinion. While, if a general agent exceed his authority, the principal is bound, provided the party dealing with him does not know the agent’s authority is being exceeded, the rule is different as to a special or particular agent. In the latter case, the principal is not bound. (1 Pars.

On Rehearing. For former opinion, see ante, 81. for the petition for rehearing, in addition to the argument and points made bty the brief on the original hearing, contended the plaintiff in error had it in his power to produce the agent to show the source of the funds which were used to pay the old note, and not having done so, the presumption follows that the testimony of the agent would have been unfavorable to the plaintiff in error, and cited Gulf etc., Ry.

Original proceeding on Habeas Corpus. Belle Fisher was adjudged guilty of contempt by the district court for Carbon County, and sentenced to imprisonment for six months in the county jail, and to pay a fine of $500, and to stand committed until the fine be paid and the sentence served. The term of imprisonment having expired, and she remaining imprisoned for non-payment of the fine, she applied to be discharged upon habeas corpus. The facts are stated in the opinion.

Bichard H. Soott, Judge of First District, presiding. This was a suit to set aside a conveyance executed by one James Terrill to Mary B. Personette, who soon thereafter became Mrs. Terrill. The suit was instituted by certain creditors of Terrill. Subsequently, and after Ter-rill had answered in the case in opposition to the credit- or’s claims, Terrill filed a cross-petition seeking to avoid the same conveyance on the ground that fraud was practiced upon him by the grantee.