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control are shown to be such as that it is, 1913, par. 636, providing that no court fees or but an instrumentality or adjunct of another costs shall be charged to or collected from any corporation.” See, also, Pittsburg & Buffalo county. Co. v. Duncan, 232 F. 585, 146 C. C. A. 542; 2. Counties w228-Statute held not to ex. Comm. v. Muir, 170 Ky. 435, 186 S. W. 194.

empt coun'y from costs of litigation. Plaintiff does not try to meet this proposi Civ. Code 1913, par. 636, as amended by tion either by averment or proof. It nowhere Laws 1922 (Sp. Sess.) c. 22, § 1, providing that appears that the Needles Company was a no court fees or costs shall be charged to or colsham corporation organized to conceal the lected from any county, does not exempt countruth or hide the real facts of the situation. ty from costs of litigation. Its organization and subsequent operations were open and aboveboard.

Appeal from Superior Court, Graham [9] The plaintiff's attitude, as manifested County; Dudley W. Windes, Judge. in brief and argument, is that it succeeded in

Action by Graham County against W. C. D. getting a jury's verdict in the trial court, and Cochran and others. Judgment for defendthat such verdict ought not to be disturbed; ants, and plaintiff appeals. Affirmed. the contention being that the verdict is binding upon the court. We grant the rule and E. L. Spriggs, of Safford, for appellant. its binding effect when there are two sides

G. V. Hays, of Willcox, for appellees. to the evidence and the only question is which way the scales tip; but where there is but one side, where the evidence in all material

ROSS, J. This suit was brought by the ways points the same direction and the ques-county of Grabam against W. C. D. Cochran, tion is not its truth or weight, but its effect court reporter, and M. E Du Bois, James A. then clearly the jury's verdict is not binding McBride, and E. M. Claridge, as the memupon the court.

bers of its board of supervisors, to recover [10] The conclusion in the Brutined v. Ny- from them the sum of $229.05, which it is gren Case, supra, seems so appropriate to the claimed was unlawfully paid by said sufacts in this case that we adopt it. We there pervisors to Cochran, on a demand of the said:

latter, for services as court reporter of the

superior court of Graham county. It ap"To sustain the judgment in this case it pears from the record that such item was a would be necessary to hold that the jury in arriving at their verdict have a legal right, in charge made by Cochran for transcribing his the absence of any evidence in regard thereto, shorthand notes of the evidence, in the crimto conjecture and assume necessary and con

inal case of State v. Lee, for the use of the trolling facts, which, under the law, is beyond defendant upon his appeal to the Supreme the province of a jury. The plaintiff may have Court. It also appears that defendant Lee a valid claim for remuneration. If he has, the made and filed his affidavit with the clerk of wrong defendant has been selected to pay it." the superior court showing that he was with

out funds and wholly unable to pay for a The judgment of the lower court is re- transcript of the evidence, and that unless versed, and the cause remanded, with the it was furnished him free of charge he would direction that complaint be dismissed.

be denied its use on his appeal. It further

appears that such transcript of the evidence MÇALISTER, C. J., and LYMAN, J., con

was furnished by the defendant Cochran with the understanding that it was “at the expense of the county," as provided in section 1163, Penal Code. The case was tried

before the court and judgment rendered in GRAHAM COUNTY V. COCHRAN et al.

favor of the defendants, and the county pros(No. 2219.)

ecutes this appeal.

[1] It is claimed by the county attorney (Supreme Court of Arizona. Dec. 10, 1924.) that the court reporter's salary is his entire 1. Courts Cw57(2)-Court reporter entitled and full compensation, and that he is not

to receive from county compensation for entitled to charge or collect any fees for any copy of notes furnished poor defendant for of his services. In support of this claim he appeal in criminal case.

refers to section 9 of chapter 61, Laws of In view of Civ. Code 1913, pars. 619-622, 1917. That section is perhaps broad enough and paragraph 623, as amended by Laws 1921, in its terms to cover court reporters. It unc. 175, § 1, compensation of court reporters is dertakes to limit the compensation of all pernot limited by Laws 1917, c. 61, to salary provided, and hence reporter was entitled to re- ployees, to the salaries provided by the laws

sons who serve the county, including emceive from county compensation for transcribing evidence in criminal case furnished under creating or authorizing their respective posiPen. Code 1913, § 1163, for appeal by impe- tions, or acts amendatory thereof. If it be cunious criminal, notwithstanding Laws 1922 conceded that section 9 was intended as a (Sp. Sess.) c. 22, § 1, amending Civ. Code I prohibition against court reporters receiving

cur.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexen

a

sum

(230 P.) anything except their salaries, it was subject As we said in the beginning, the item the to change by amendment by any subsequent recovery of which is sought in this suit was Legislature; and, as we shall later show, if for furnishing an impecunious appellant in it ever affected their compensation by limit- a criminal case a copy of the evidence. It ing it to a salary, it is not the present law. is not for any copy furnished the county at

To begin with, the Legislature in every torney or Attorney General. By virtue of instance that it has noticed the subject of one statute it is provided that the court recourt reporters has treated it independently porter shall receive for transcribing his of every other subject. While the Legisla- shorthand notes fixed

per folio ture has several times acted upon salaries of (amended paragraph 623, supra), and it is county officers and their deputies and clerks, provided by another statute that it shall be in none of such acts bas it specifically includ- furnished "at the expense of the county" ed the salary of court reporter. On the con- (section 1163, Penal Code), when furnished, trary, since the creation of the office of court as in this case, to an appellant in a criminal reporter in 1912 the Legislature has twice, case. by acts exclusively devoted to that subject, [2] It is also suggested that since it is proamended the law. It has treated the subject vided that no court fees or costs shall be of court reporters as in a class to itself, and charged to or collected from any county for that reason any legislation about salaries (chapter 22, Laws 1922), it is unlawful for of county officers and their deputies, even the court reporter to collect from the county though general in terins, should be restrict- for furnishing a copy of his notes to a poor ed to its obvious purpose.

defendant wishing to appeal. This act is an The Legislature took a separate act to amendment to section 636, being part of create the position. Chapter 22, pt. 2, title chapter 23, pt. 2, title 6, Civil Code, concern6, Civil Code. This act provides for the ing "Costs." This whole chapter is devotreporter's appointment by the superior court ed to the assessment of costs as between parjudge and makes the tenure of the office sub- ties litigant. The evident purpose of section ject to the appointing power (paragraph 619), 636 as amended is that when the county is a requires that he take an oath of office (para-party litigant it shall not be required to graph 620), prescribes his qualifications and pay fees and costs to the clerk, or sheriff, or by whom and how determined (paragraph other officers who may serve it. This does 621), enumerates his duties (paragraph 622), not mean, however, that a county may not and in paragraph 623, as amended by chapter be mulcted the costs of litigation. If a coun175, p. 433, Laws of 1921, the matter of his ty is sued and successfully prosecuted, any compensation, consisting of salary fixed by judgment obtained against it would include the judge and fees fixed by the Legislature, all 'legal costs incurred by its antagonist. is taken care of. This amendment being sub The copy of the transcript sued for was not sequent to the classification act (chapter 61, furnished by Cochran to the county, but to Laws 1917), and providing for compensation an impecunious criminal desiring to appeal, in two ways, takes the place of said act, if it and what he collected for it may well be reever applied, and becomes the source and garded as a part of his compensation. measure of the reporter's right to collect fees Doubtless items of this kind were taken into for transcriptions of his notes. The plain consideration by the superior judge in fixing explicit language is that he "shall also re the court reporter's salary for Graham ceive, for transcribing shorthand notes, fif- county, teen cents per folio.

The only For the reasons given, we are satisfied that exception is, when requested in advance of the judgment of the lower court was correct, his transcribing his notes in a criminal case, and the order will be one of affirmance. he must furnish a copy to the county attorney or Attorney General, and to the Attorney MCALISTER, C. J., and LYMAN, J., conGeneral when the state is a party.

cur,

MEMORANDUM DECISIONS

thereupon made, is conclusive if there is evi. PEOPLE of the State of California, Plain-dence to support it.” There was some conflict tiff and Respondent, v. J A. WARREN, De- in the testimony, but there was abundant evifendant and appellant. (Cr. 796.) (District dence to justify the finding in favor of plainCourt of Appeal, Third District, California. tiff below. We find no reversible error in the Sept. 16, 1924.) Appeal by defendant from a record. Supersedeas denied, judgment afjudgment of conviction of escaping from state firmed. prison of the Superior Court of Sacramento Mr. Justice ALLEN (sitting for Chief Justice County; Charles O. Busick, Judge. Aflirm- TELLER) and Mr. Justice DENISON concur. ed. Lee Gebhart, of Sacramento, for appellant. U. S. Webb, Atty. Gen., and J. Charles Jones, Dep. Atty. Gen., for the People.

3 PLUMMER, J. It appears from the tran

Frank FAJKOSZ, Plaintiff in Error, v. Agnes script that the defendant was, prior to the of, BEYNON, Defendant in Error. (No. 10973.) fense upon which he was tried and convicted (Supreme Court of Colorado. Nov. 10, 1924. in this court, lawfully committed to the state Rehearing Denied Dec. 1, 1924.) Department prison at Folsom, and, during the time for 2. Error to District Court, Weld County; Neil which he had been sentenced, placed at work F. Graham, Judge. Supersedeas denied. Judgupon the highways of the state under the sur

ment affirmed. Morrissey, Mahoney & Scofield, veillance of prison guards, and while there, un

of Denver, for plaintiff in error. William Hall der their custody and control, effected his es. Thompson, of Greeley, and Rinn & Archibald, cape, was thereafter captured, and prosecuted of Boulder, for defendant in error. for such offense. All the points made for re

WHITFORD, J. Defendant in error, as 48versal in this case are identical in substance signee of an option to purchase town lots

, with the questions raised and decided adverse brought suit against the plaintiff in error to ly to the contention of appellant in the follow-enforce the specific performance of the option ing cases: People v. Vanderburg, 227 P. 621; contract. The answer denied the execution of People v. French, 61 Cal. App. 275, 214 P: the option and alleged fraud in procuring its 1003; People v. Lewis, 61 Cal. App. 280, 214 execution. The optionee conveyed the lots to P. 1005; People v. Johnson (Cal. App.) 228 the plaintiff in error by warranty deed, in satP. 357. All of these cases and the case at isfaction of a prior indebtedness of $1,000 and bar show that the defendants were taken from the additional consideration of $1,000 in casb, Folsom to different road camps, placed in and at the same time and as a part of the same charge of guards, and while at work upon the transaction took back from his grantee the ophighway effected their escape. Under these cir- tion in question, giving the grantor the rigbt cumstances, it was held that the superior court to repurchase the property within a year for of the county of Sacramento had jurisdiction, $2,000. The trial was to the court. The eviand that also all the points raised in this case dence was conflicting, and the court found genfor reversal are without merit. Upon the au- erally for the plaintiff and against the defendthority of the cases cited, judgment and orders

ant upon the issues joined. The court ex• of the trial court in this case are affirmed.

pressly found that “the allegations of the plainWe concur: FINCH, P. J.; HART, J. tiff's complaint have been and are sustained by

the evidence, and that the allegations of fraud

set forth in defendant's answer have not been 2

sustained by the evidence." The evidence in

troduced upon the trial was clearly sufficient CATLIN & CATLIN, Plaintiffs in Error, v. Charles J. MOYNIHAN, Deputy Bank Com- Under the rule so frequently announced, the

to support the allegations of the complaint. missioner, in charge of the Home State Bank, finding of the trial court is conclusive upon and Charles A. W. Gordon, Defendants in Error. (No. 10992.) (Supreme Court of Colora- findings upon review. Barnett v. Jaynes, 26

us, and we are precluded from disturbing its do. July 7, 1924. Rehearing Denied Nov. 10, Colo. 279-282, 57 P. 703. However, we have 1924.) Department 2. Error Montrose

carefully read the entire testimony, and are County Court; S. S. Sherman, Judge. On ap

not only satisfied that the evidence is sufficient plication for supersedeas. Supersedeas denied.

to sustain the findings of the court below, but Judgment affirmed. Catlin & Catlin, of Mont- that the clear preponderance of the testimony rose, for plaintiffs in error. Moynihan, Hughes, supports the plaintiff's contention. Our ex: Knous & Fauber, of Montrose, for defend-amination of the record convinces us that the ants in error.

case was fairly tried and that no errors interWHITFORD, J. A verdict for $50 was di- vened that would justify a reversal. Superse rected by the court against the plaintiff in error deas denied, judgment affirmed. as garnishee. After the evidence was all in and both plaintiff and defendant had rested, TELLER) and Mr. Justice DENISON concur.

Mr. Justice ALLEN (sitting for Chief Justice each side requested the court to direct a verdict in nis favor. We said, in Auto Co. v. Petter, 72 Colo. 570, 212 P. 823, that "a request by each party for a directed verdict is

4 equivalent to a stipulation that the facts may J. W. JAMES, Plaintiff in Error, v. Alvin S. be found by the court. The court's finding, 'FRANK, Defendant in Error. (No. 10725.)

to

(230 P.) (Supreme Court of Colorado. Nov. 10, 1924. , brings the case bere for review and applies Rehearing Denied Dec. 1, 1924.) Error to Dis- for supersedeas. Both parties ask that the trict Court, City and County of Denver; cause be determined upon this application. Charles C. Butler, Judge. Harry S. Class, of The parties are here designated as in the trial Brighton, for plaintiff in error. J. W. Kelley, court. We have examined the record with the of Denver, for defendant in error.

utmost care and have read all of the evidence. TELLER, C. J. Defendant in error brought Defendant had executed a written lease to desuit against the plaintiff in error for damages feodaot's assignor. Defendant had received resulting to the plaintiff from his purchase from the sum of $500 as security for the fulfillment defendant of a moving picture business at of the obligations of the lease, and in the lease Brighton, Colo., said purchase being alleged to agreed that a proportion of this sum should have been induced by fraudulent representa- be deducted from the monthly rent, and in the tions made by defendant in the action. The ac event of cancellation of the lease before the tion was for $3,000 paid on account of the pur- deposit was exhausted the balance should be cbase price. Verdict and judgment were for returned to the lessee. Only questions of fact $2,000. Plaintiff in error appears to consider are involved, and as to the material facts the this an action to rescind, but the complaint testimony was that of the parties to the suit, shows that it was an action for damages, both The evidence was conflicting, and it was wholly actual and exemplary, and cbarged fraud, mal- within the province of the court to determine ice, etc., upon which a body judgment was de- the credibility of the witnesses and the weight manded. There are numerous assignments of to be given to their testimony. Under the reerror concerning the giving and the refusing of peated decisions of this court we cannot disinstructions, but, as none of the instructions turb the findings and judgment of the trial given or requested are contained in the ab- court. Peppers v. Heiserman, 74 Colo. 139, 219 stract, we cannot consider them. The principal P. 781; Insurance Co. y. Fukushima, 74 Colo. points argued are that the evidence does not 236, 220 P. 994; Clover Leaf Co. v Steamboat support the verdict, in that the evidence shows Springs Co., 74 Colo. 377, 221 P. 887; Lathrop that the minds of the parties had met before v. John, 73 Colo 304, 306, 215 P. 472. There the alleged misrepresentations upon which the appearing no error in the record, the superplaintiff relied were made, if made at all. sedeas is denied, and the judgment affirmed. Counsel for plaintiff in error state that reliance TELLER, C. J., and CAMPBELL, J., concur. is bad upon the proposition that the testimony of the plaintiff in the cause is improbable and unworthy of belief. There was evidence which, if believed by the jury, would fully justify them

2 in finding that the defendant made false and

John MARTENS and Adeline Martens, Refraudulent statements to the plaintiff during the negotiations for the purchase of the busi- spondents, v. A. E. EHLE and Theodore u. ness; that these statements were made before Ehle, Defendants, and Mrs. Ira Pottenger, Anthe final conclusion of the contract of purchase; ho. Dec. 2. 1924 ) Appeal from District

pellant. (No. 4187.) (Supreme Court of Idathat they were relied upon by the plaintiff, and Court, Valley County: B. S. Varian, Judge, were the inducing cause of his making the pur; Action to quiet title. Judgment for plaintiffs. chase. It is further urged that the court erred

med

AL in refusing a change of venue. The abstract Tant. R. B. Ayers, of Emmett, for respondents.

S. T. Schreiber, of oise, for appelstates that such a motion was filed, with an affidavit annexed in support thereof, to which

McCARTHY, C. J. June 14, 1920, respondthe plaintiff filed a counter affidavit. As these ents brought an action against defendants and affidavits are not before us, we cannot consider appellant in the district court for Valley counthe error assigned. It should be observed, fur- ty to quiet title to certain real estate. Septher, that so far as the abstract shows Do

tember 13, 1920, appellant filed an answer and exception was taken to the order refusing the cross-complaint. After trial, the district court change. Finding no error in the record, the made its findings in favor of respondents, and judgment is affirmed,

April 18, 1922, entered a decree quieting their CAMPBELL and SHEAFOR, JJ., concur.

title in the premises as against defendants and appellant. May 3, 1922, appellant perfected this appeal from that judgment. A transcript on appeal was filed in this court June 25, 1923.

October 14, 1924, the case came on for hearing, 1

no briefs having been filed. Appe}lant was not E. A. TOWER, Plaintiff in Error, v. Samuel represented in person or by counsel on the WEINRUB, Defendant in Error. (No. 11108.) hearing. Respondents appeared by counsel. (Supreme Court of Colorado. Nov. 10, 1924.) Thereupon the case was taken under adviseError to County Court. City and County of ment on the record. Thereafter appellant's Denver; George W. Dunn, Judge. E. A. Tow-counsel filed a motion asking leave to submit a er, of Denver, for plaintiff in error. Ira C. brief, or at least a written assignment of error. Rotbgerber and Walter M. Appel, both of Den- In view of the fact that the appeal was perver, for defendant in error.

fected 214 years ago, that the transcript has SHEAFOR, J. The defendant in

error,

been on file in this court about 16 months, and Weinrub, brought this suit against the plaintiff that the affidavit in support of the motion does in error in the justice court, and recovered ( not show any excuse for the failure to file a judgment. The defendant appealed to the brief, we conclude that there is no satisfactory county court, where a trial was had to the reason for adding to the delay which has alcourt, resulting in a general finding in favor ready occurred in the prosecution of this apof plaintiff, and judgment against defendant for peal, and that the motion should be denied. the sum of $165 and costs. The defendant Under rule 48 an affirmance of the judgment is

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in order. However, we have examined the as., Court of Oklahoma. Nov. 18, 1924.) Error signments of error which counsel tendered with from District Court, Kiowa County; Thomas his motion, and an examination of the record | A, Edwards, Judge. Reversed and remandconvinces us that they are not well taken. The ed. Philip J. Dickerson, of Pawhuska, for judgment is affirmed, with costs to respondents. plaintiffs in error. Leahy, Macdonald & Files, DUNN and WM. E. LEE, JJ., concur.

of Pawhuska, for defendants in error.

PER CURIAM. Upon authority of Ellis v.

Outler, 25 Okl. 469, 106 P. 957, the cause is 1

reversed, and remanded for new trial, for failSTATE of Idaho, Respondent, V. B. E.

ure of defendant in error to comply with rule

7 of this court, PEDERSON, Appellant. (No. 4344.) (Supreme Court of Idaho. Dec. 2, 1924.) Appeal from District Court, Canyon County; Ed. L.

4 Bryan, Judge. Appeal from judgment of con

J. E. CROSSMAN OIL & DEVELOPMENT viction of obtaining money by false pretenses. co. et al., Plaintiffs in Error, v. Hommer s. Affirmed. L. D. Hyslop, of Caldwell, A. H. CROSSMAN, Defendant in Error. (No. Connor, Atty. Gen., and Jas. L. Boone, Asst.

14977.) (Supreme Court of Oklahoma. Nov. Atty. Gen., for the State

18, 1924.) Appeal from District Court, Creek McCARTHY, C. J. On November 25, 1923, County; Fred A. Speakman, Judge. Reversed appellant perfected his appeal from a judg- and remanded. Hiles, Newell & Brown, of ment of conviction of obtaining money under Edwardsville, Ii., William J. Baxter, of Granfalse pretenses rendered against him in the ite City, Ill., and Thompson & Smith, of Sapuldistrict court of the Seventh judicial district pa, for plaintiffs in error. Chas. Richardson, for Canyon county. On March 17, 1924, the of Tulsa, for defendant in error, transcript on appeal was filed in this court. On May 12, 1924, appellant's attorneys withdrew. Outler, 25 Okl. 469, 106 P. 957, the cause is

PER CURIAM. Upon authority of Ellis P. On June 20, 1924, appellant applied in proper person for an order extending the time to file reversed, and remanded for new trial, for fail

are of defendant in error to file brief as prohis brief in this court, and the court granted an order extending the time to and including Au- / vided in rule 7 of this court. gust 21, 1924. Since that time there has been no brief filed and no substitution of attorney. The case was duly set down for hearing on

5 October 14. Appellant did not appear either ST. LOUIS-SAN FRANCISCO RAILWAY in person or by attorney. Respondent was COMPANY, Plaintiff in Error, v. W. W. represented by the Attorney General. Under WRIGHT, County Treasurer of Adair County, rule 48 it would be proper for this court to Oklahoma, Defendant in Error. (No. 13809.) affirm the judgment without examining the rec- (Supreme Court of Oklahoma. Nov. 25, 1924.) ord. However, we have taken the precaution Error from District Court, Adair County; J. of examining the record for fundamental er- H. Jarman, Judge. Reversed and remanded. ror. Finding no such error in the record, the W. F. Evans, of St. Louis, Mo., and Stuart, judgment is affirmed.

Sharp & Cruce, of Oklahoma City, for plainDUNN and WM. E. LEE, JJ., concur.

tiff in error.

G. O. Grant, Co. Atty., of Jay, for defendant in error.

THOMPSON, C. Upon authority of Ellis v. 2

Outler et al., 25 Okl. 469, 106 P. 957, the H. F. BEMIS, J. J. Riffel, Frank Riggs, for failure of defendant in error to comply

cause is reversed, and remanded for new trial, Tress Riggs, and Chas. E. Jontra, Plaintiffs in with rule 7 of this court. Error, v William CARSO., Defendant in Er

(No. 14931.) (Supreme Court of Oklahoma. Nov 18, 1924.) Appeal from District Court, Ellis County; T. P. Clay, Judge. Re

6 versed and remanded. C. B. Leedy and T, R.

George ALLISON, Plaintiff in Error, v. Blaine, both of Arnett, for plaintills in error.

STATE of Oklahoma, Defendant in Error. B. F. Barnett, of Shattuck, and Charles Swin- (No. A 4568.) (Criminal Court of Appeals of dall, of Woodward, for defendant in error.

Oklahoma. Nov. 15, 1924.)

Appeal from PER CURIAM. Upon authority of Ellis v. County Court, Choctaw County; Choice D. Outler, 25 Okl. 469, 106 P. 957, the cause is Holden, Judge George Allison was convicted reversed, and remanded for new trial, for of allowing stock to run at large, and he apfailure of defendant in error to file brief as peals. Appeal dismissed. Howe & Howe, of provided in rule 7 of this court.

Hugo, for plaintiff in error,

The Attorney
General, for the State.

PER CURIAM. George Allison was by a

verdict of a jury rendered in the county court 3

of Choctaw county found guilty of the offense P. J. DICKERSON and Blanche F. Dicker- of illegally permitting his hogs to run at son, Plaintiff's in Error, v. Margaret BOTCH- large. The penalty assessed was a fine of $1. LEOTT, Administrator with will annexed of The Attorney General has filed a motion to estate of Fred Botchleott, deceased, Margaret dismiss the appeal because it was filed too late, Botchleott, Ida Anderson, Dorsey Comstock, at a date more than 60 days after the final and the City Guarantee Bank of Hobart, for- judgment was rendered, and no order appears merly the City National Bank of Hobart, De- extending the time; also for the further reafendants in Error. (No. 14854.) (Supreme son that no notice of appeal was served on

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