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and its loss the loss of anticipated profits upon him, to suffer his title to be defeated, of a speculative character, not recoverable in and the conveyance to him to become wholly an action at law, and yet an injury sustained inoperative, and of no effect as a transfer of by Mosier's wrong. Taking the allegations any interest in the lots conveyed. He was of the petition alone, as the trial court was bound by his contract, and bound to know compelled to do in determining the merits of that, when the time for performance on his the demurrer, it cannot be said that an action part had expired, no equity existed in his for the value of the property conveyed was favor, nor any right to insist on notice of disa plain legal remedy by which to obtain ad- affirmance of a contract which he himself had equate compensation for the injuries sustain- disregarded, except in so far as it benefited ed. The contract in this case was an ex

him. As was well stated in the case of Kenecutory one, and the inability or refusal of nedy v. Embry, 72 Tex. 387, 10 S. W. 88: the vendee to comply with his executory "Where there has been no attempt to peragreement, as disclosed by the petition, was form any part of a contract for the sale of amply sufficient to give the court equitable ju- a. tract of land, and the time for performance risdiction, although the specific allegation of has expired, no equities exist in favor of the a lack of an adequate remedy at law was not vendee, and the vendor may rescind, without made; and this irrespective of any question notice to the vendee of intention to do so. of fraud. We fully agree with the views of

If the vendee has actually abandonJustice Maxwell, as expressed in Willard v. ed the contract, or has so acted as to create Ford, 16 Neb. 543, 20 N. W. 859, a case par- the reasonable belief on the part of the venallel to the one at bar: “It would be a re

dor that he has abandoned it, the vendor may proach upon the law if a party could secure rescind, without notice of his intention, notthe title to real estate in consideration, in withstanding part performance by the vendee. whole or in part, that he would erect certain

When there has been no attempt to perform buildings thereon, and, upon receiving a con

any part of the contract, and the time for veyance, refuse to perform his agreement. performance has expired, * * * the venThe law favors good faith and fair dealing. dor may rescind, without notice to the vendee This required the defendant to erect the of his intention to do so, and convey the land building in question, according to his agree

to another. * * *” And this we think the ment, or, in case of his failure to do so within better rule, and one sustained by the weight a reasonable time, to submit to a cancella- of authority. So that, in this case, under the tion of his deed. In a contract of this kind, facts pleaded, we cannot say that the trial the court will look at the entire transaction, court erred in holding the petition sufficient, and grant or withhold relief as the circum

when attacked for this reason. stances of the case may seem to require.”

Nor does the plaintiff in error the First Nor do we think notice of disaffirmance of

National Bank of Walter occupy any better the contract was necessary to be pleaded,

position than its grantor, Mosier, by reason since under the facts in this case no such

of its deed from him. At the time it attemptnotice was necessary to be given. Some of ed to purchase an interest in the property the the authorities go to the extent of holding

suit seeking the cancellation of its grantor's that no notice whatever is required to be giv

deed had been pending more than two years, en, other than the institution of the suit, and it will be held to have had constructive and all unite in upholding the doctrine that and presumptive notice of Mrs. Walter's where, in a purchase and sale of real estate, rights at the time it purchased. Under the the vendee has so acted as to create the rea- facts in this case, as against the plaintiff in sonable belief on the part of the vendor that error Mosier, Mrs. Walter is entitled to a dehe has forsaken his contract, and no longer cree canceling the deed from her to Mosier considers himself obligated by it, the vendor and a reconveyance of the premises, and as may rescind without notice to the vendee of against the purchaser, the bank, its purchashis intention to do so. Herbert v. Stanford, ing under circumstances reasonably sufficient 12 Ind. 503; Knappen v. Freeman, 47 Minn, to apprise it of Mrs. Walter's equities entitles 191, 50 N. W. 533; Kirby v. Harrison, 2 Ohio her to a reconveyance against it. Reid v. St. 326, 59 Am. Dec. 677. Under the terms of Burns, 13 Ohio St. 49. the contract between the parties in this case, The remaining errors assigned arise out of Mosier was bound to move his stock to the the giving of certain instructions and the relots conveyed to him on or before July 1, fusal of the court below to allow certain spe1902, or the contract became null and void, cial interrogatories to be submitted to the jury. If he desired to acquire full and complete We have carefully examined the instructions title to the property, which then rested in in this case, having in mind the propositions him merely in form, it was his duty to pro- contended for by the plaintiffs in error, and cure his loan, erect his building, and move cannot see wherein the court erred in giving his stock of goods before the expiration of them. They are as favorable as the defendthe time specified by the contract, as he had ants below could expect, and correctly state obligated himself to do, or, upon his failure the law governing the case. As to the specia) to perform the condition subsequent imposed questions refused by the court, the first and second asked the jury to find upon a point , in error cannot complain, since the jury were already admitted by the defendants in their instructed that, from the evidence submitteil, answers, the execution of the written con- no actual fraud could be found as against the tract, it not having been denied under outlı; plaintiff in error Mosier. Moreover, in such and, moreover, this point was fully covi rel a proceeding as the one at bar, the submisin the general instructions. The fifth ini sion or rejection of interrogatories is entireighth questions submitted and refused re- ly within the discretion of the court. When ferred to the intentions of Josier in procuring clothed with equity jurisdiction, it lies within the loan and the attempts he made to comply the power of a court to reject all findings rewith his contract. All this might have been turned by a jury and make such of its own important to be considered, if the court had as it sees fit, or it may adopt as its own tl.e submitted to the jury the question of fraud; answers of the jury, or such portions of them but, not having done so, it is immaterial wiat

as it may deem proper. In equitable priceedMosier's intentions were, so long as th' y ings, a jury is not a matter of right, nor can were not carried out. The ninth and tenth a party, in such case, require of the court questions refer to the consideration for the that any questions or interrogatories be subconveyance of the lots by Mrs. Walter and mitted to a jury for its determination. A to the natter of a tender back of what she jury, if used at all, sits in merely an adreceived. Inasmuch as the court correc:ly visory capacity, and as such its verdict and says in his general instructions that the con- findings are to be treated. sideration for the deed

deed was that Mosier From a reading of the entire record, we are should inove his stock, no tender was ner- convinced that no injustice will be done eiessary, as there was nothing to tender, and, ther of the plaintiffs in error by an affirmnone being required, no questions were nec- ance of the judgment of the court below, essary to be answered in that regard by the and that regard for the rights of the defendjury. The eleventh question asks the jury to ant in error requires that this be done. find whether or not the representations made There being no reversible error in the record, by Mosier to procure the deed sooner than for the reasons above given, the judgment of the contract called for were made "intentioni- the trial court is affirmed. All the Justices ally, knowingly, and fraudulently"; but of concurring, except GILLETTE, J., who tried the refusal of this interrogatory the plaintiffs the case below, not sitting.

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(12 Idaho, 749)

In re NEIL (Supreme Court of Idaho. Dec. 14, 1:4:6.) 1. CRIMIXAL LAW-APPEAL-CERTIFICATE OF PRODABLE CAUSE.

Paragraph 3 of rule 27 (32 Pac. v) of the rules of the Supreme Court rejuures that one who applies to a justice of the Supreme Court for a certificate of probable cause under section S048. Rev. St. 1887. shall have first nade at plication to the district judge who tried the case or show good reason why he h:s failed to do so. and shall give five days' notice to the county attorney or Attorney General of his intention to make such application. 2. SAME-PROBABLE CAUSE.

The phrase "probable cause for thi. pineal" used in section S018, Rev. St. 1987, does not mean that there is probable reason to suppose the judgment will be reversed, but, rather, means that the appelant has assigned or specified! grounds on which he expects to rely that are open to doubt or honest difference of opinion, and over which rational, reasonable, and honest discussion may arise, -that the appeal must present some debatable question, and is not merely frivolous and vexatious.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15 Criminal Law, § 2730.] 3. SAME-RIGHT OF ACCUSED--STAY OF PUXISILMENT.

The right of appeal by a defendant in a criminal case is absolute, and in no respect dependent on his guilt or innocence, and where lie is availing himself of this remedy with any degree of good faith, and not as a pretext for delay, it would be manifestly unjust to inflict upon him the punishment while he is having the validity of the judgment judicially determined.

[Ed. Note.-For cases in point, sre Cent. Dig. vol. 15, Criminal Law, $8 2728, 2731.) 4. BAIL-APPEAL FROM CONVICTION.

The right of admission to bail after (onviction of a felony does not necessarily follow the right to have a certificate of probable cause issue.

(Syllabus by the Court.)

Application of Frank Neil for certificate of probable cause. Granted.

Batch & Bagley, for applicant. J. J. Guheen, Atty. Gen., and Edwin Snow, for the State.

nied, and then appealed to the Supreme Court from the judgment and order. He at once applied to the district judge, IIon. Alfred Budge, for a certificate of probable cause, under the provisions of section S018, Rev. St. 1887, and his application was denied. It appears, however, from the showing made by petitioner, that the judge fixed the amount of the bond that defendant would be requireil to give in the event the Supreme Court, or a justice thereof, should issue a certificate of probable cause. The application was made here in conformity with paragraph 3 of rule 27 of the Supreme Court, which is as follows: "No application made to a justice of this court under section S04S, Rev. St., for a certificate of probable cause will be considered until the application has first been made to the judge who tried the case, or good reason for a failure to do so shown by affidavit. and in such cases the party intending to apply for certificate shall give at least five days' notice of his intention to make such :pplication lig service of notice thereof, either upon the county attorney who tried the cause, or the Attorney General.” The Assistant Attorney General stated at the he:ring that he was of the opinion that this was a case in which a certificate should properly issue, and that he would not resist the application.

Section 8018 of the Rev. St. 1887, under which the application is made, provides its follows: "An appeal to the Supreme Court from a judgment of conviction, stays the execution of the judgment in all capital cases, and in all other cases, upon filing with the clerk of the court in which the conviction was had, a certificate of the judge of such court, or of a justice of the Supreme Court. that, in his opinion, there is probable cause for the appeal, but not otherwise.” The meaning of the words "probable cause for the appeal" is the evident subject of dispute and controversy when such applications are made to the trial judges. The provision of our statute is the same as section 1243 of the Penal Code of California. (1 Deering, $ 1243.) The California statute has receiver very full and careful consideration by the Supreme Court of that state, and in Re Adams, S1 (al, 163, 22 Pac. 547, Chief Justice Beatty has so clearly defined the meaning of these words that we quote him at length as follows: "It would seem that, notwithstanding what has been said by this court respecting this and cognate provisions of the statute, the opinion must obtain to some extent that the expression 'probable cause for the appeal is the equivalent of ‘probable ground for the reversal of the judgment,' and, consequently, that the superior judge who has overruled the defenda ant's motion in arrest of judgment, or for a new trial, cannot, without stultifying himself, grant a certificate of probable cause. If it were true that there is no probable cause for an appeal except in a case where

AILSHIE, J. In this matter an application was made to Mr. Justice SULLIVAN and the writer hereof at chambers, under section 8018, Rev. St. 1887, for a certificate of probable (ause. After hearing the matter, it appeared that a certificate of probable cause should issue, and it was accordingly granted. Since there seems to be considerable uncertainty and doubt among the members of the bar, as well as the trial judges of the state, as to the correct practice in the matter of applications for certificates of probable cause, and some of the trial judges appearing to have declined to issue such certificates in any case of conviction in their respective courts, it has appeared necessary that we file an opinion in this case announcing the rule of law as well as of practice to be followed in this state. The applicant, Frank Neil, was convicted and sentenced to serve a term of 10 years in the state penitentiary. He thereupon moved for a new trial, which was de

87 P.-56

the judgment is probably erroneous, it would issue. In such case there would be no quesnecessarily involve self-stultification for a tion presented over which an honest and fair judge, who, by denying a new trial, and pro- difference of opinion could arise as to its nouncing sentence, has solemnly affirmed merits. Another reason suggests itself in his belief in the validity of the judgment, this connection. Both the Constitution and to make a certificate implying that in his statute guaranty to him the right of appeal opinion the judgment ought to be reversed. from any judgment of conviction rendered The palpable absurdity of such a proceeding and entered against him. Const. art. 5, § 9, sufficiently demonstrates that the Legislature and section 8042, Rev. St. 1887. This right of could never have intended to require it- appeal is in no respect dependent upon the demonstrates, in other words, that the certifi- guilt or innocence of the defendant. One cate which the superior judges are required guilty beyond all question of doubt is guarto grant in proper cases cannot have the antied the same right of appeal as if he were meaning supposed. What, then, is meant by absolutely innocent. If innocent, and he the expression “probable cause for the ap- should appeal and his innocence be finally peal'? We answer, as we have answered established, it would be a grave and manifest heretofore, it means only that there is pre- | injustice to have inflicted upon him the punsented a case that is debatable; a case that ishment prescribed by the judgment during is not clearly and palpably frivolous and the very time that he was prosecuting his vexatious; a case upon which there may be appeal and establishing his innocence. On an honest difference of opinion. People v. the contrary, even if he is guilty beyond the Valencia. 10 Cal. 305; Ex parte Hoge, 48 question of a doubt, the state can suffer no Cal. 6. This is all that is required. It mat

injury on account of the execution of the ters not that the judge before whom the judgment having been stayed, pending the prisoner has been tried may be satisfied final determination of his case on appeal. If that his conviction is in every respect regular not admitted to bail, he is in the meanwhile and valid (which, indeed, must always be the

held in custody of the sheriff of the county (ase before there can arise any necessity for

where he committed the offense, and the an appeal); he is, nevertheless, bound to

term of his punishment will begin to run grant a certificate of probable cause, and from the final determination of his case and stay the execution pending the appeal, unless

nis surrender to the warden of the penitenthe case is so clear as to admit of no rational tiary. In the meanwhile he will have served cloubt or serious discussion."

in the county jail during the period his apIf, as intimated by the California court, peal has been pending, and he will still have the issuance of a certificate of probable cause to serve the full period of his sentence. The were equivalent to saying that the judgment idea seems to have prevailed in some degree will probably be reversed, the statute author

without any foundation in law therefor, that izing such a certificate would become entire- the issuance of a certificate of probable cause ly meaningless and useless. If a trial judge carries with it as a matter of course the adbelieves that there is any reason why the mission to bail. This notion is entirely erjudgment should be reversed, or a new trial

roneous. The admission to bail is a matter granted, it is made his duty to grant a new entirely separate and independent from the trial without entailing upon the defendant issuance of a certificate of probable cause. the necessity, burden, and expense of an ap- While the defendant could not be admitted to peal. The fact that he denies a new trial bail prior to the issuance of such a certificate, is of itself a judicial determination, so far on the other hand, a certificate may and as his court is concerned, that there exists

should properly issue in many cases where no good reason why the judgment should be

the defendant should not be admitted to bail. reversed or a new trial granted. But section Section 8104, Rev. St. 1887. Indeed, it is 8018 has no reference to such a condition ei

true that, in many cases that have come to ther in point of law or fact. That statute this court, certificates of probable cause have must undoubtedly mean that if the appellant been granted, and the defendant has been rehas assigned any error or specified any fused admission to bail. In such cases he is ground on which he expects to rely on appeal held in custody in the county jail until his concerning which a doubt may exist or over case is finally determined on appeal. In those which an honest difference or a reasonable instances the defendant takes his chances of discussion may arise, then and in that case having to serve that period in the county jail a certificate should issue. The trial judge in addition to and over and above the period must of necessity in every case believe that designated in the sentence and judgment the verdict and judgment will be sustained ; against him. If he hasn't reasonable hopes otherwise he would set them aside and grant of securing a reversal of the judgment, he a new trial. On the other hand, where it is will seldom take the chances of procuring clearly evident that the appeal is frivolous, such a certificate. As touching the various as, for example, where the appellant has as- phases of this matter, see People v. Lane, 96 signed no error and specified no ground recog- Cal. 596, 31 Pac. 580; People v. Durrant, 119 nized by law for granting a new trial, or in Cal. 54, 50 Pac. 1070 ; People v. Gallanar, 144 arrest of judgment, a certificate should not Cal. 656, 79 Pac. 378.




This matter has been considered by the county for an injunction restraining the marcourt sitting with a full bench, and is fully or and council from issuing such bonds, concurred in by STOCKSLAGER, C. J., and which was denied, and it prosecutes this SULLIVAN, J.


Plaintiff in error contends that the peti

tion presented to the mayor and council, iisk(74 Kan. 661)

ing the city to vote aid and issue the bonds WATER, LIGHT & GAS CO. v. HITCIIIN

to the corporation, did not bring the petiSON INTERURBAN RY. CO. et al.

tioner within the statute authorizing cities (Supreme Court of Kansas. Nov. 10, 1906.

of the first and second classes to aid in the Rehearing Denied Dec. 8, 1906.)

construction of railroads or to extend aid 1. MUNICIPAL CORPORATIONS-RAILROAD AID

in purchasing a right of way, depot grounds, -ISSUE OF BONDS.

Chapter 67, p. 96, of the Laws of 1886 or terminal facilities. The petition reads: (sections 5907 to 5912, Gen. St. 1901), does not "The conditions upon which said bonds shall authorize a city of the first or second class to

be voted and issued are: That the Ilutchinvote aid and issue bonds to purchase lands for a right of way, depot grounds, and terminal

son Interurban Railway Company shall confacilities to a railroad company whose entire struct and build a line of railroad, standard line is confined within the corporate limits of gauge, propelled by electric current or other such city.

mechanical power, including all necessary 2. SAME-ACTION BY TAXPAYER-INJUNCTION. Under chapter 334, p. 550, of the Laws of

side tracks and switches, preparatory to run1905, a taxpayer may enjoin any board or ning the cars thereon, from a point on Sevenbody from entering into any contract or doing teenth street, in said city, and over Main any act, not authorized by law, which might result in the creation of any public burden.

street, Fourth avenue, and Avenue A, to [Ed. Note.-For cases in point, see Cent. Dig.

the distance now occupied by the Hutchinson vol. 36, Municipal Corporations, § 2162.] Street Railway Company. Said bonds to be (Syllabus by the Court.)

delivered to the Hutchinson Interurban Rail

way Company as soon as the track is laid Error from District Court, Reno County ; upon said streets, provided said track is laid P. J. Galle, Judge.

and cars running thereon on or before the Action by the Water, Light & Gas Company first day of September, 1906, delays by litiagainst the Hutchinson Interurban Railway gation and unavoidable casualties excepted." Company and others. Judgment for defend- The objection to this petition is that it deants, and plaintiff brings error. Reversed. scribes the railroad for which aid was reH. Whiteside, Geo. A. Vandeveer, F. L.

quested to be a line wholly within the city. Martin, and Fairchild & Lewis, for plaintiff It may also be mentioned that the ordinance. in error. Prigg & Williams and A. C. Mal

calling the election and making it obligatory loy, for defendants in error.

on the mayor and council to issue the bonds

when the railroad company had complied GREENE, J. This is a proceeding to re

with the conditions expressed in the petiverse an order of the district court of Reno

tion, followed the exact language of the peticounty, refusing to grant an injunction re

tion in this respect. The aid was attempted straining the mayor and council of the city

to be secured under the provisions of the of Hutchinson from issuing $20,000 of the

act of February 26, 1886, being sections 5907 city's bonds to the Hutchinson Interurban

to 5912 of the General Statutes of 1901. The Railway Company. The material allegations grant of authority to cities of the first and of the petition are that the plaintiff is a large

second classes to aid railroad companies in real estate owner and taxpayer in the city of securing and paying for land for a right of Hutchinson; that the city of Hutchinson is way, depot grounds, and terminal facilities a city of the second class; that the defend

is found in section 5.07, which provides that: ant is a railroad corporation organized and “When a petition in writing, signed by at existing under and by virtue of the laws of

least two-fifths of the resident tax payers the state of Kansas, with its principal place of any incorporated city of the first or second of business in the city of Hutchinson; that class, shall be presented to the mayor and a petition, signed by more than two-fifths of council of such city, asking that a vote be the resident taxpayers of the city of Ilutch- taken and an election held upon the question inson, was presented to the mayor and coun- of aiding any railroad company constructing cil of such city, January 18, 1906, requesting or proposing to construct its line of railroad the mayor and council to submit at a special into or through said city, in securing and election to the qualified voters of the city a paying for land for right of way, depot proposition to extend aid to the amount of grounds, and terminal facilities, the mayor $20.000 to said corporation, to be used in the and council of such city shall cause an elecpurchase of its right of way, depot grounds, tion to be held to determine whether such and terminal facilities, and to issue its bonds city shall aid such railroad company in setherefor. An election was called, at which a curing and paying for lands for right of way, majority of those voting voted in favor of ex- depot grounds and terminal facilities." It tending the aid and issuing the bonds. The will be observed that such cities are only auplaintiff applied to the district court of Reno thorized to grant aid for such purposes to

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