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MEMORANDUM DECISIONS.

trict Court, Butler County; G. P. Aikman, Judge. Action by Alpha Dunn against the city of Leon. Judgment for defendant, and plaintiff brings error. Dismissed. E. N. Smith. for plaintiff in error. Hamilton & Leydig and T. A. Kramer, for defendant in error.

PER CURIAM. This case is dismissed, upon the authority of Walton et al. v. Woodward, 84 Pac. 1028.

THOMPSON V. WHEELER.

V. WHEELER. (Civ. 216.) (Court of Appeal, Third District, California. Aug. 27, 1906.) Appeal from Superior Courts San Joaquin County; W. B. Nutter, Judge Action by Anna Thompson against C. M. Wheel. er. From a judgment for plaintiff, defendant appeals. Submission set aside. A. H. Carpenter, for appellant. Ashley & Neumiller, for respondent.

PER CURIAM. The submission is set aside and vacated, and the cause ordered to be placed on the next calendar for argument, especially upon the following points: (1) Was the delinquent tax list legally filed? (2) Did the lien given by statute rest in the purchaser? (3) To what extent and as to what facts connected with the sale is the deed conclusive evidence? (11) What constitutional limitations are placed upon the Legislature to make the facts recited in the deed conclusive evidence of the holder's title to the land? (5) Was it incumbent upon defendant to make proof of the ordinance under which the tax levy was made?

LOWE et al. v. CURRY et al. (Supreme Court of Kansas. Dec. 8, 1906.) Error from District Court, Sumner County; C. L. Swarts, Judge. Action by H. B. Lowe and others against Chwirles Curry and others. Judgment for defendants. Plaintiffs bring error. Affirmed. Herrick & Herrick and Ivan D. Rogers, for plaintiff in error. W. W. Schwinn and J. A. Burnette, for defendant in error.

PER CURLAM. Action to recover a balance alleged to be due for labor and material in connection with a lease of land, which resulted in a verdict that nothing was due. The terms of the written contract between the parties appear to support the result reached; but, assuming that the contract was ambiguous and incomplete, and that oral testimony was admissible to prove what the actual agreement was, that which was received by the trial court tends to show that nothing was due from defendants for the hauling of bundles to the threshing machine or for the other items included in the account. There is sufficient evidence to support the verdict. The rulings on instructions of which complaint is made have each been examined, but no prejudicial error is found. A detailed discussion of them is not warranted. Judgment affirmed.

JOHNSON v. CAMBRIA TILE & BRICK CO. (Supreme Court of Colorado. Dec. 3, 1906.) Error to District Court, Jefferson County; Allison H. De France, Judge. Action by J. M. Johnson, administrator of the estate of J. D. Bridgers, deceased, against the Cambria Tile & Brick Company. Judgment for defendant, and plaintiff brings error. Affirmed. Isham R. Howze, for plaintiff in error. Wm. A. Dier, for defendant in error.

GODDARD, J. This action was brought in the district court of Jefferson county on January 22, 1901, by the plaintiff in error to recover from the defendant in error upon the following causes of action: (1) Upon a promissory note for $2.000, payable to decedent and executed by the company April 13, 1881, upon which the payment of the sum of $45 is alleged to have been made on the 7th day of September, 1897; (2) an indebtedness of $5,500 upon an account stated June 28, 1893, between the decedent and the company, upon which the same amount on the same date is alleged to have been made; (3) for services rendered by decedent to the company from June 28, 1893,

1st day of November, 1899. The de fendant, for answer, averred that the note set forth in the first cause of action was satisfied and discharged on the 23d of October, 1887, and denied the alleged payment thereon on the 7th day of September, 1897. As a defense to the second cause of action it denied the alleged statement of account and denied the alleged payment thereon. For answer to the third cause of action it denied the employment of decedent by the company, or any promise on its part to pay for any services rendered by him. The cause was tried to the court, and the issues found for, and judgment rendered in favor of, the defendant. Upon an examination of the evidence introduced, and a careful consideration of the assignments of error and the extended argument of counsel in support of the same, we are satisfied that the finding of the trial court was clearly supported by the evidence, and that no error intervened in the trial of the cause that was in any manner prejudicial to the plaintiff in error. The judgment is therefore affirmed. Affirmed.

GABBERT, C. J., and BAILEY, J., concur.

SCHOOL DIST. NO. 75, JOHNSON COUNTY, V. JEWETT. (Supreme Court of Kansas. Dec. 8, 1906.) Error from District Court, Johnson County, C. A. Smart, Judge. Action by Nellie Jewett against School District No. 75, Johnson County. Judgment for plaintiff. Defendant brings error. Affirmed. J. W. Parker, for plaintiff in error. I. 0. Pickering, for defendant in error.

PER CURIAM. The plaintiff brought this action on a school teacher's contract to recover wages for services performed by her in teaching. Judgment was rendered for her, and the school district prosecutes error. The record presented to us deprives us of an examination of the proceedings had on the trial. It appears that a motion for a new trial was filed and overruled, but the motion is not contained in the record. Consequently we are unable to determine what trial errors were relied on and presented to the trial court. This court cannot review alleged errors which were not called to the attention of the trial court by a motion for a new trial. Under the present condition of the record, the only question which we may consider and pass upon is whether the petition supports the judgment. We think it does. The judgment is therefore affirmed.

STATE v. CATON. (Supreme Court of Kansas. Dec. 8, 1906.) Appeal

from District Court, Anderson County; C. A. Smart, Judge. Wal. ter M. Caton was convicted of crime, and appeals. Affirmed. Frank M. Sheridan, for appellant. C. C. Coleman, Atty. Gen., and C. W. Whittington, for the State,

DUNN v. CITY OF LEON. (Supreme Court of Kansas. Nov. 10, 1906.) Error from Dis

PER CURIAM. This is an appeal from a conviction and judgment fining the appellant $50. The state moves to dismiss, and assigns various reasons, none of which are considered sufficient. The bill of exceptions does not disclose the commission of any error prejudicial to the appellant. Therefore the judgment is affirmed.

STATE v. EASTWOOD. (Supreme Court of Kansas. Nov. 10, 1906.) Appeal from District Court, Allen County; Oscar Foust, Judge. George Eastwood was convicted of crime, and appeals. Affirmed. J. B. Atchison, for appellant. C. C. Coleman and Burton E. Clifford, for the State.

PER CURIAM. The only material error assigned was that the evidence did not sustain the verdict of the jury; but, upon a careful reading of the record, we are of the opinion that there was sufficient evidence to support the verdict of the jury. Judgment affirmed.

the sale confirmed, and a guardian's deed was duly executed, approved, delivered, and recorded. The wife, as such, joined in the conveyance. After a lapse of many more than five years a guardian, who had been appointed instead of the wife, brought suit in the district court for possession of the land and the nullification of the guardian's deed and the proceedings upon which it was based. The five-year statute of limitations was pleaded in defense, and the court after a trial found generally in favor of the defendant in the action, who was the purchaser from the grantee in the guardian's deed. In the recent case of O'Keefe v. Behrens (Kan.) 85 Pac. 555, the purpose and effect of the statute referred to was fully considered. In that case the probate sale had been made by an administrator. The statute places administrators and guardians in the same class, and makes no distinction between guardians of minors and guardians of insane persons; hence, no defect in the qualification, after appointment, of the guardian who made the sale, and no defect in the jurisdiction of the probate court to order the sale, could be urged to defeat the defendant's title. Whether or not the probate court was without jurisdiction is not decide. The fact, found by the court, that the defendant purchased with knowledge of the character of the probate proceedings, did not enlarge the statutory period within which the plaintiff might assail the title derived through them. The judgment of the district court is affirmed.

STATE v. FRAMPTON. (Supreme Court of Kansas. Nov. 10, 1906.) Appeal from District Court, Allen County; Oscar Foust, Judge. William Frampton was convicted of violating the liquor law, and appeals. Affirmed. Ewing, Gard & Gard, for appellant. C. C. Coleman and C. L. Evans (R. H. Bennett, of counsel), for the State.

PER CURIAM. Defendant was convicted of two unlawful sales of intoxicating liquor, and also for maintaining a nuisance. By an election the state designated the transactions upon which it would rely to establish the sales. The proof was sufficient to support the findings on both counts. A sale by defendant's barkeeper at defendant's place of business and in his presence is strong proof of a sale by himself. According to the testimony the witness Kern bought liquor from the defendant directly, and at other times he was served by those who were assisting in the sale of liquor in defendant's place of business. Judgment affirmed.

ANDERSON V. ZARING. (Supreme Court of Oklahoma. Sept. 6, 1906.) Error from District Court. Kay County, before Justice Bayard T. IIainer. Action between Henry T. Anderson and Andrew J. Zaring. From the judgment, Anderson brings error. Affirmed. S. II. Harris, for plaintiff in error. C. W. Ransom, for defendant in error.

PANCOAST, J. It is conceded by counsel for plaintiff in error that the questions here involved are identical with those presented in the case of McCalla v. Acker (Okl.) reported in 78 Pac. at page 223, and in 200 U. s. 613, 26 Sup. Ct. 754, 50 L. Ed. 620; and upon the authority of that case the judgment of the court below in this case is affirmed.

HIAINER, J., who tried the case below, not sitting. All the other Justices concurring.

STATE v. GLASS. (Supreme Court of Kansas. Nov. 10, 1906.) Appeal from District Court, Stafford County; J. W. Brinckerhoff, Judge. Charles Glass was convicted of burglary, and appeals. Affirmed. Prigg & Williams, for appellant. C. C. Coleman, G. W. Alford, and Ray H. Beals, for the State.

PER CURIAM. Charles Glass was charged with having burglarized, in the nighttime, a coalhouse belonging to school district No. 34, in Stafford county, Kan., in which was contained goods and wares of the school district. He appeals from a judgment of conviction. Several errors are assigned, but an examination of the record does not disclose anything prejudicial to the appellant. The judgment is affirmed.

COATES et al. v. McCOY. (Supreme Court of Washington. Nov. S, 1906.) Appeal from Superior Court, King County; Arthur E. Griffin, Judge. Suit by R. F. Coates and another against C. K. McCoy. From a decree in favor of plaintiffs, defendant appeals. Affirmed. E. A. Vinsonhaler, for appellant. Higgins & Hall, for respondents.

PER CURIAM. This case, being in equity, was tried by the court, who found in favor of the plaintiff and awarded judgment accordingly. We have examined the record in detail, and have concluded that the findings of the court are amply justified by the testimony, and that the conclusions of law were justified by the findings. The judgment is therefore affirmed.

STEWARD V. REA. (Supreme Court of Kansas. Oct. 6, 1906.) Error from District Court, Kingman County; P. B. Gillett, Judge. Action by J. W. Steward against Allie M. Rea. Judgment for defendant, and plaintiff brings error. Affirmed. C. W. Fairchild, for plaintiff in error. Geo. L. Hay and H. W. Lewis, for defendant in error.

PER CURIAM. The owner of a tract of land occupied as a homestead was adjudged to be insane, and his wife was appointed his guardian, but failed to publish notice of her appointment. No other assets being available for the purpose, she instituted proceedings in the probate court, as guardian, to sell the land to satisfy mortgage liens upon it. The statute was strictly followed, and pursuant to an order of court directing a sale the land was sold,

HYSLOP v. WHITE. (Supreme Court of Washington. Dec. 15, 1906.) Appeal from Superior Court, Spokane County; Henry L. Kennan, Judge. Bill by W. W. Hyslop against C. Ferris White to dissolve a partnership. From a judgment for defendant, plaintiff appeals. Affirmed. 0. C. Moore, for appellant. Graves, Kizer & Graves, for respondent.

PER CURIAM. This is a proceeding in equity for the dissolution and winding up of a

copartnership, begun on the 2d day of February, Wetmore, the sole devisee, where he resided 1906.

The complaint alleged a copartnership from the time of the funeral of his wife until between the plaintiff and the defendant, who his death. None of his children or grandchilare professional architects in Spokane, Washi. dren were mentioned or provided for in the The defendant, White, had a contract, called the will; but he bequeathed all of his property, "Potlatch Lumber Company Contract," the com with a slight exception, to the said Ella G. mission on which would be $8.500. This con Wetmore, between whom and himself there tract was entered into on the 1st day of Feb were no ties of consanguinity. There was no ruary, 1906, and the object of the suit was to testamentary disposition of the small amount of determine who was entitled to such commis property excepted. The court found that he sion; the plaintiff claiming that, as a partner was unduly influenced by the said Ella G. of the defendant, he was entitled to a division Wetmore, and that his mind at the time of of the commission. The answer admitted that the execution of the will was wandering, weak, the partnership had been entered into at the and feeble. This is equivalent to a finding that time alleged in the complaint but alleged that he did not have a sound and disposing mind. the agreement had terminated on or about the Other findings of the court it is not necessary 7th day of October, 1901. The cause was tried to discuss here. Nor is it necessary to notice by the court, and the court found that the many of the propositions discussed by repartnership had, as a matter of fact, been dis spective counsel, for from an examination of solved in the latter part of the year 1904, and

the record we are convinced that the finding of judgment was entered dismissing the action at the court is sustained by the overwhelming plaintiff's costs. This case involves purely ques weight of the testimony; and, indeed, had not tions of fact, and from an examination of the the court so found, we would have been comtestimony in the case we are satisfied that the pelled to have found from the testimony that conclusion reached by the lower court was right,

the decedent was utterly incapable of making and that in fact no other judgment could have so solemn and important an instrument as a will been rendered under the testimony. Affirmed. at the time the alleged will was executed. For

this reason the judgment will be affirmed.

FULLERTON and HADLEY, JJ., not sitSTATE ex rel. WASHINGTON DREDG ting. ING & IMPROVEMENT CO. y. ROSS, Public Lands Com'r, et al. (Supreme Court of Washington. Nov. 22, 1906.) Appeal from Superior

WINCKLER V. HUNT. (Supreme Court of Court, King County; Arthur E. Griffin, Judge. Washington. Dec. 19, 1906.) Appeal from SuAction by the state of Washington, on relation

perior Court, Walla Walla County ; Thos. of the Washington Dredging & Improvement

II. Brents, Judge. Action by Gus Winckler Company, against E. W. Ross, Commissioner

against Gilbert Hunt. From a judgment in of Public Lands, and others. From a judgment favor of defendant, plaintiff appeals. Affirmed. for defendants, plaintiff appeals. Affirmed. W. F. Hays, Vance & Mitchell and Shepard &

Oscar Cain, for appellant. Sharpstein & SharpFlett, for appellant. J. D. Atkinson, Robert

stein, for respondent. F. Booth, and James M. Epler, for respond

ROOT, J. This action was brought for the ents.

conversion of personal property, consisting of a

sawmill, machinery, and equipments. From a PER CURIAM. The record in this case

judgment in favor of defendant, this appeal is shows that every material proposition involved

prosecuted. It appears that one Dr. Bingham, was decided adversely to appellant's conten

who had or claimed to have some claim against tion by this court in the case of State v.

the property in question or its owner, spoke to Washington Dredging & Improvement Com

the respondent, who was the manager of the pany (August 28, 1906) S6 Pac. 936. An elabor

Gilbert Hunt Company, a corporation, about ate and able petition for rehearing was filed in

placing this property upon the company's premthat case, which, after due consideration, was ises, and that, pursuant to the conversation denied. Being satisfied with the decision in

then had, said property was by said Dr. Bingthat case, the judgment in this case will be

ham, or at his instance and request, delivered affirmed.

upon said premises, and was subsequently in FULLERTON and HADLEY, JJ., not sit whole or in part appropriated and disposed of ting.

by said company. The complaint is short, merely alleging ownership in the plaintiff, pos

session and detention of the property by deIn re WETMORE'S ESTATE. MORGAN fendant, and the property's value. The answer v. MORRISON. (Supreme Court of Washing is a general denial. The principal issue is one ton. Dec. 5, 1906.) Appeal from Superior Court, of fact as to whether or not the property was Snohomish County ; W. W. Black, Judge. Pro detained or appropriated by respondent. The ceedings by Luvenchia L. Morrison against Ever lower court found that respondent never had ett Morgan, executor, to contest the will of Na possession of said property. While there is than N. Wetmore. From a judgment in favor of some conflict, yet we think this conclusion of the contestant, the executor appeals. Affirmed. the trial court is sustained by a fair preponPadgett & Bell, for appellant. Hathaway & Al derance of the evidence; it being made to ston, for respondent.

appear that respondent personally had nothing PER CURIAM. This is an appeal from the to do with receiving, handling, or disposing of decree and judgment of the lower court in a the property. It is urged here, as a matter of proceeding in contest of the will of Nathan N. law, that, where a party in any way participates Wetmore, deceased, instituted by Luvenchia L.

in the conversion of property, he becomes liable, Morrison, a child of the deceased. The de

whether he is acting either in his individual cedent, at the time of making the alleged will,

or in a representative capacity. Appellant cites was 78 years of age. His wife died 9 days us to numerous authorities sustaining this propprior to his death, causing him great mental

osition. But, it not being established that reanguish. He also languished physicially from

spondent did any of the acts that contributed the time of the death of his wife, which cul

to the conversion, the principle is not appliminated, as we have intimated, in his death

cable. Finding no error in the judgment of 9 days thereafter. The will was executed be the trial court, the same is affirmed. tween 9 and 10 o'clock on Wednesday night CROW, FULLERTON, and HADLEY, JJ.. preceding the death of the decedent Sunday concur. MCUNT, C. J. and DUNBAR, J., morning. He died at the residence of Ella G. not sitting.

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