issues presented by such records and proceed- | grounds urged for reversal of the determination ings, made the following findings of fact:
"1. That the said ordinance is a valid ordinance of the said city of Milwaukee.
"2. That the place and premises of the plaintiff are lawfully subject to the provisions of the said ordinance, and that his place and premises are a place and premises that come within the provisions of the said ordinance, and that the said place of the plaintiff cannot be used for the purposes of giving public dances, as defined in the said ordinance, excepting only when duly authorized by the permits, licenses, and authorizations provided for in the said ordinance.
"3. That no such permit, license, or authorization has been obtained by the plaintiff under the terms of the said ordinance.
"4. That the effect of the said ordinance is
such that it does not deny to the plaintiff the equal protection of the laws under the provisions of the fourteenth amendment of the Constitution of the United States.
"5. That the effect of the said ordinance is such that it does not take the property of the plaintiff without due process of law, within the meaning of that provision of the Constitution of the United States.
"6. That plaintiff's lease of said premises has been extended two years, and he occupies the premises under it."
of this court sustaining the ordinance as a valid police regulation. We do not deem that further discussion of the case is required, and refer to the former opinion of this court as the basis for affirmance of the judgment now appealed from. The judgment appealed from is affirmed.
TIMLIN, J., took no part.
CONNIFF v. ALLEN et al. (No. 3660).† (Supreme Court of South Dakota. March 8, 1915.)
Joseph W. Jones, Judge.
Appeal from Circuit Court, McCook County;
E. Allen and others. Judgment for defendants, Action by Hannah M. Conniff against L and plaintiff appeals. Affirmed.
Sutherland & Payne, of Pierre, and E. H. Wilson, of Salem, for appellant. A. C. Biernatzki, of Salem, and Aikens & Judge, of Sioux Falls, for respondents.
SMITH, J. Action to quiet title. Defendant claims in her chain of title under a deed And it determined the case upon the follow-purporting to have been executed by plaintiff ing conclusions of law:
"1. That the plaintiff is not denied the equal protection of the laws by the enforcement of the said ordinance, nor is his property taken by such enforcement without due process of law. "2. That the said ordinance is valid and in full force and effect.
"3. That the plaintiff's cause herein is without merit, and he is entitled to no relief herein against the defendants, or any of them.
4. That the complaint of the plaintiff and this action should be dismissed upon the merits, and with costs against the plaintiff in favor of the defendants."
The court thereupon entered judgment dismissing the action and for recovery of defendants' costs.
The case of the former appeal is reported in 156 Wis. 591, 146 N. W. 882, 51 L. R. A. (N. S.) 1009. The ordinance in question is there set out in full and need not be reported here. The grounds of the decision on the issues raised in the action are amply elaborated in the opinion filed by this court on the former appeal. The present appeal presents no different issues from those which were then considered and determined, nor are there any additional or new
and her husband to one Zimri Paris on February 14, 1892. Plaintiff alleges this deed to have been a forgery. The trial court found that the deed was executed by plaintiff and her husband, and gave judgment for defendant.
Appellant assigns insufficiency of the evidence to sustain this finding. The evidence is conflicting, and on the part of respondents is largely circumstantial. Zimri Paris, the purported grantee, is dead. A recapitulation or discussion of the evidence would serve no useful purpose, and we shall not attempt it. The trial court had before it the witnesses who denied the execution of the deed, and was in a much better position than this court could possibly be to judge of the truthfulness and accuracy of memory of witnesses who testified to transactions occurring many years ago. The credibility of witnesses is a most important factor in determining whether a finding of the trial court is against the preponderance of evidence, and in a doubtful case must be given due weight. Other issues are presented on the appeal, but they become unimportant in the view we take of this case.
The judgment and order of the trial court are affirmed.
Rehearing denied May 7, 1915.
THIS IS A KEY-NUMBER INDEX
It Supplements the Decennial Digest, the Key-Number Series and
Prior Reporter Volume Index-Digests
See Appeal and Error, 805; Husband and See Navigable Waters, 44.
Wife, 302; Landlord and Tenant,
103; Railroads. 82.
2 (Iowa) Abandonment involves an intent See Boundaries, 48.
and purpose to surrender the right acquired,
accompanied by acts indicating that purpose
and intent.-Ray Coal Mining Co. v. Ross, 151
N. W. 63.
6 (Iowa) Abandonment is a question of
fact.-Ray Coal Mining Co. v. Ross, 151 N.
W. 63.
7 (Iowa) Nonuser of a right, under a con-
tract, coupled with circumstances showing an
intention to abandon, when acted upon by the
other party interested, destroys the right ac-
quired.-Ray Coal Mining Co. v. Ross, 151 N.
W. 63.
ABATEMENT AND REVIVAL.
II. ANOTHER ACTION PENDING.
4 (Neb.) The pendency of another action in
the same court between the same parties re-
garding the same subject-matter, for practically
the same relief, is a good defense in a second ac-
tion, though it be a proceeding in mandamus.
-State v. Claney, 151 N. W. 155.
See Criminal Law, 507, 5072, 742, 824.
See Executors and Administrators,
514; Injunction, 194.
II. PROCEEDINGS AND RELIEF.
12 (Mich.) Complainant held to have an
adequate remedy at law, and so not entitled to
maintain his bill in equity for an accounting.-
Lannin v. Lynn, 151 N. W. 645.
See Abatement and Revival.
II. NATURE AND FORM.
36 (Wis.) Where the subject of litigation
is within the court's jurisdiction and involves
a question of great public importance, the court
may permit the scope of the proceeding to be
broadened as public interest requires, though
this changes the form of action or nature of
the remedy.-State v. Donald, 151 N. W. 331.
III. JOINDER, SPLITTING, CONSOLI-
DATION, AND SEVERANCE.
48 (Neb.) Under Rev. St. 1913, § 7657, an
action on a quantum meruit may be joined with
an action on an express contract, where they
originate in the same transaction.-Stout v.
Omaha, L. & B. Ry. Co., 151 N. W. 295.
IV. COMMENCEMENT, PROSECUTION,
AND TERMINATION.
63 (N.D.) At common law there was no fix-
ed time within which actions must be brought.
-Pratt v. Pratt, 151 N. W. 294.
ADJOINING LANDOWNERS.
See Boundaries; Eminent Domain, 288;
Mines and Minerals, 106.
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ADVERSE CLAIM.
See Quieting Title, 19-44, 54.
ADVERSE POSSESSION.
I. NATURE AND REQUISITES.
(F) Hostile Character of Possession.
64 (Mich.) Retention of possession by a
bailee, however long continued, does not work a
change of ownership, and limitations do not
For cases in Dec. Dig. & Am. Dig. Ker No. Series & Indexes see same topic and KEY-NUMBER
run in his favor until he asserts an adverse
claim.-Edgar v. Parsell, 151 N. W. 714.
85 (Wis.) Evidence held to sustain a finding
that defendant in possession for over 20 years
did not hold under a lease.-Illinois Steel Co. v.
Bilot, 151 N. W. 258.
III. PLEADING, EVIDENCE, TRIAL,
AND REVIEW.
114 (Minn.) Evidence held to sustain find-
ing that plaintiff had acquired title by adverse
possession of land claimed to be part of a
street.-Morgan v. City of Albert Lea, 151 N.
ALTERATION.
See Bills and Notes, 378.
ALTERATION OF INSTRUMENTS.
3 (Iowa) Changing a note from one pay-
able to the order of a named payee to one pay-
able to bearer is a "material alteration," under
Code Supp. 1907, § 3060a125.-Builders' Lime
& Cement Co. v. Weimer, 151 N. W. 100.
8 (Minn.) Undersigning of notes by plaintiff
without defendant's request or knowledge held
not such a material alteration as discharged de-
fendant from liability.-Kiefer v. Tolbert, 151
N. W. 529.
20 (Iowa) A joint maker of a note, who in-
trusted it to a comaker, by whom it was altered
before delivery to the payee, is not liable to the
payee on the note.-Builders' Lime & Cement
Co. v. Weimer, 151 N. W. 100.
AMBIGUITIES.
See Constitutional Law, 70.
AMENDMENT.
ages to one purchasing the animal at its fair
market value as a registered animal.-Id.
A draft horse association maintaining registry
of pedigree animals was bound to use reasonable
care to make its records speak the truth, and its
failure to do so would be actionable negligence.
-Id.
Evidence, in suit to enjoin cancellation of
certificate of registration of mare, held to show
that defendant association had not exercised due
care in registering the mare.-Id.
Draft horse association liable in damages to
purchaser of registered mare, afterwards found
to be ineligible to registry, held not liable in
damages for difference in market value of colts
produced; that being too remote.-Id.
22 (Mich.) An agreement whereby a party
received from the adverse party sheep to keep,
for rental of half the wool and increase, for
three years creates a bailment, and imposes on
the bailee the duty to return the same sheep.-
Edgar v. Parsell, 151 N. W. 714.
A party receiving sheep of another to keep,
for rental annually of, half the wool and in-
crease, for a specified term must exercise aver
age diligence in caring for the sheep.-Id.
74 (N.D.) Evidence held to authorize sub-
mitting to the jury the question of defendant's
negligence in permitting the escape of the stal-
lion which inflicted injuries on plaintiff.-Whit-
ney v. Ritz, 151 N. W. 762.
Instructions on the care required to prevent
the escape of the stallion which inflicted injuries
on plaintiff held proper.—Id.
82 (S.D.) A stock raiser is charged with
knowledge of the natural propensity of young
horses on opposite sides of a fence to play and
quarrel with each other.-Houska v. Hrabe, 151
N. W. 1021.
97 (S.D.) Where defendant allowed his
horses to trespass on plaintiff's land, and one
of plaintiff's animals, in playing with them at
a fence, was injured, held that, in view of Laws
1907, c. 244, defendant's negligence was the
proximate cause of the injury.-Houska v.
Hrabe, 151 N. W. 1021.
See Pleading, 253.
APPEAL AND ERROR.
See Certiorari; Contempt, 66; Costs,
241; Criminal Law, 1037-1172; Divorce,
184; Drains, 39; Executors and Ad-
ministrators, 510; Justices of the Peace,
145-164; Maritime Liens, 70; Mu-
nicipal Corporations, 511; New Trial,
90; Time, 10.
I. NATURE AND FORM OF REMEDY.
5 (Mich.) A writ of error to an order over-
ruling a demurrer to a plea in abatement, is
under Comp. Laws 1897, § 10484 (How. Ann.
St. 1912, § 14099), disapproved; Pub. Acts
1905, No. 310, creating a better method.-City
of Sault Ste. Marie v. Minneapolis, St. P. &
S. S. M. Ry. Co., 151 N. W. 649.
III. DECISIONS REVIEWABLE.
(E) Nature, Scope, and Effect of Decision.
See Constitutional Law, 5-9, 68; Indict-102 (Iowa) Under Code, § 4101, par. 3, a
ment and Information, 159; Pleading,
229-253; Statutes, 141.
plaintiff to whose petition a demurrer is sus
tained, and who excepts thereto, and does not
amend his pleadings, may appeal directly from
the ruling.-Western Securities Co. v. Atlee,
151 N. W. 56.
202 [New, vol. 20 Key-No. Series]
(Iowa) A certificate of registration of 110 (Minn.) An order granting a new trial
mare by a draft horse association, obtained by on a motion stating various grounds, including
fraudulent representations of applicant, was not misconduct, held not appealable under Laws
irrevocable and would be canceled on suit of 1913, c. 474 (Gen. St. 1913, § 8001), where it
the association.-Howard v. National French did not state, or the attached memorandum
show, that it was based exclusively on errors of
Draft Horse Ass'n, 151 N. W. 1056.
law.-Heide v. Lyons, 151 N. W. 139.
A draft horse association issuing certificate of
registration on an application fraudulently rep-110 (Minn.) Under Gen. St. 1913, § 8001,
resenting pedigree of mare held liable in dam- held, that an order, wherein the court denied
motion for judgment and on its own motion and
granted a new trial, was not appealable, in the
absence of any statement that it was based on
errors occurring at the trial.-Montee v. Great
Northern Ry. Co., 151 N. W. 1101.
(F) Mode of Rendition, Form, and Entry
of Judgment or Order.
125 (N.D.) An order vacating a default
judgment and granting defendant leave to an-
swer held not appealable, where entered by con-
sent.-North Dakota Lumber Co. v. James, 151
N. W. 430.
131 (S.D.) Order striking out notice of in-
tent to move for new trial and proposed state-
ment entered in one circuit in an action pend-
ing in another is not appealable.-Gorman v.
Madden, 151 N. W. 1020.
IV. RIGHT OF REVIEW.
(B) Estoppel, Waiver, or Agreements
fecting Right.
261 (Mich.) Argument of counsel to the
jury will not be reviewed unless a ruling there-
on is requested of or made by the trial court,
and an assignment of error based on exception
to the argument.-Spencer v. Johnson, 151 N.
W. 684.
263 (N.D.) An assignment of error com-
plaining of failure to instruct on waiver will
not be considered when not based on any ex-
ception taken below.-North Star Lumber Co. v.
Rosenquist, 151 N. W. 289.
265 (Mich.) Under Circuit Court Rule No.
26, subds. "c," "d," assignments of error based
on exceptions to the refusal of a new trial can-
not be considered where no exceptions were
taken to the court's finding for appellee.
Walker v. Village of Brooklyn, 151 N. W. 628.
(D) Motions for New Trial.
Af-289 (Minn.) Where defendant waived its
right to a new trial, assignments of error in the
admission of evidence, which bore only on the
Helmer v. Shevlin-Mathieu Lumber Co., 151 N.
right to a new trial, could not be considered.-
W. 421.
167 (Mich.) Matter covered by stipulation
between the parties cannot be questioned on ap-
peal.-Powers v. Corry, 151 N. W. 876.
V. PRESENTATION AND RESERVA-292 (Minn.) Where defendant waived its
TION IN LOWER COURT OF
GROUNDS OF REVIEW.
(A) Issues and Questions in Lower Court.
169 (Mich.) A question not raised below
cannot be considered.-Walsh v. Lake Shore &
M. S. Ry. Co., 151 N. W. 754.
172 (S.D.) In action to have judgment for
trespass declared lien superior to mortgage, con-
tention that mortgagee was joint tort-feasor
not presented by the pleadings or in the trial
court, held not available as ground for rever-
sal.-Clinton Mining & Mineral Co. v. Trust
Co. of North America, 151 N. W. 998.
173 (Iowa) Where the validity of a foreign
judgment was questioned, grounds of invalidity
not raised in the court below cannot be raised
on appeal.-Droge Elevator Co. v. W. P. Brown
Co., 151 N. W. 1048.
174 (Mich.) Where the case proceeded to
trial on the assumption that plaintiff was, in
fact, the trustee of a bankrupt as he claimed,
and there was evidence of that fact, defendant
cannot on appeal question the capacity in which
plaintiff sued.-Wilson v. Van Buren County
Farmers' Mut. Fire Ins. Co., 151 N. W. 752.
(B) Objections and Motions, and Rulings
Thereon.
184 (N.D.) An objection that a cause is of
equitable and not of legal cognizance cannot be
raised for the first time on appeal.-French v.
State Farmers' Mut. Hail Ins. Co., 151
193 (N.D.) An objection that there is a mis-
joinder of causes cannot be raised for the first
time on appeal.-French v. State Farmers' Mut.
Hail Ins. Co., 151 N. W. 7.
206 (Iowa) Where evidence is admissible
on one issue only, its general admission canuot
be complained of, if no request is made to lim-
it it.-Blake v. City of Bedford, 151 N. W. 74.
216 (Iowa) Defendant held not entitled to
complain of failure of trial court to instruct as
to the assumption of risk, where it requested no
such instruction.-Parkhill v. Bekin's Van &
Storage Co., 151 N. W. 506.
223 (N.D.) An objection that a judgment
on a quantum meruit was unauthorized because
the complaint was on an express contract can-
not be considered when not presented below.-
Lynn v. Seby, 151 N. W. 31.
226 (Minn.) Where defendant failed to ob-
ject below to the allowance of an item of costs,
he could not object on appeal.-Daly v. Curry,
151 N. W. 274.
right to a new trial, assignments of error in the
instructions, which bore only on the right to a
Shevlin-Mathieu Lumber Co., 151 N. W. 421.
new trial, could not be considered.-Helmer v.
VII. REQUISITES AND PROCEEDINGS
FOR TRANSFER OF CAUSE.
(C) Payment of Fees or Costs, and Bonds
or Other Securities.
374 (Neb.) Where a guardian is personally
interested adversely to the estate of the ward,
he must give bond on appeal notwithstanding
Comp. St. 1901, c. 20, § 44, and chapter 23,
§ 234.-In re Williams' Guardianship, 151 N.
W. 161.
(D) Writ of Error, Citation, or Notice.
415 (Iowa) Under Code 1897, §§ 3935, 3947,
3948, 3951, 3953, and 4111, held, defendant in
garnishment was a "coparty," and entitled to
notice of the garnishee's appeal.-State Savings
Bank, Missouri Valley, Iowa, v. Guaranty Ab-
stract Co., Missouri Valley, Iowa, 151 N. W.
512.
IX. SUPERSEDEAS OR STAY OF PRO-
CEEDINGS.
466 (Neb.) On a decree of strict foreclosure
of a contract of sale of realty, the supersedeas
bond, under Laws 1903, c. 126, should be con-
ditioned for payment on affirmance of the rea-
sonable value of the use of the premises pend-
ing appeal.-State v. Rice, 151 Ñ. W. 925.
X. RECORD AND PROCEEDINGS NOT
IN RECORD.
(B) Scope and Contents of Record.
529 (N.D.) Under Comp. Laws 1913, §
7822, and Supreme Court rule 24 (145 N.
W. x), the clerk will attach to an order denying
vacation of judgment the files and certificates
to the record, and transmit same as the appeal
record.-Harris v. Hessin, 151 N. W. 4.
(H) Transmission, Filing, Printing, and
Service of Copies.
633 (Iowa) A judgment will be affirmed as
ment. In re Moynihan's Estate, 151 N. W. 504.
to a party not served with abstract and argu-
(1) Defects, Objections, Amendment, and
Correction.
636 (S.D.) Where appellant's counsel in-
serted in the statement of the case, testimony
and immaterial matters without any effort at
condensation, the judgment will be affirmed.--
Smith v. Johnson, 151 N. W. 46.
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