Offices and Officers - Partition.
OFFICES AND OFFICERS-Con. the limitation may be disregarded; and such construction should be given, when reasonable, as will up- hold the statute rather than one which would defeat it. State v. Craig. 577
Deputy state supervisors of elections, are not officers, within the legal definition of that term, and, though their jurisdiction may be co- terminous with that of the county, they are not county officers or with- in sec. 1, art. 10, of the constitution, providing that the general assem- bly shall provide by law for the elec- tion of such township and county officers as may be necessary. Sec- tion 2966-3, Rev. Stat., is not, there- fore, unconstitutional for the reason that it provides for appointment in- stead of election of deputy state su- pervisors of elections. Ib. The provisions of sec. 20, art. 2, of the constitution, that the salary of a county official cannot be creased during his term of office, ap- ply only to compensation for duties germain to his office or incidental or collateral thereto, and do not ap- ply to services rendered in an inde- pendent employment to which he is appointed by an act of the state leg- islature. State v. Lewis. 537
Under circumstances above stated, where it appears that the mother's relatives seeking guardian- ship of children of the ages (at date of application) of six and seven years, made no application therefor until more than four years after the mother's death, and that the chil- dren have grown into the affections of the father's relatives, with whom they have been allowed to remain, and no preponderating circumstances appear establishing that the best in- terests of the children will be sub- served by a change, they should be allowed to remain with the father's relatives although under such guard- ianship their religious training will be in violation of the marriage agreement above referred to. Ib.
See OFFICES AND OFFICERS; WRONGFUL DEATH.
Partition may be had where the life tenant consents to a sale free of the life estate and it appears to the court that a sale will not be prej- udicial to the interests of the re- maindermen. Helmig V. Meyer.
The limitation of sec. 5756, Rev. Stat., refers to the time of entering the decree, and not to the time of fil- ing the petition. Therefore, upon application for partition within the time limit, and without compliance with the statute, the court may over- rule a motion to dismiss the petition and grant an order overruling the motion for plaintiff in partition for judgment until the statutory period has elapsed, unless the latter prove,
The fact that one member of a firm, organized for the purpose of carrying on a banking business, pur- chased in good faith, goods for the firm in consideration for and in sat- isfaction of a judgment held by the firm against the owner thereof, with- out consulting with the other mem- ber or getting his consent thereto, and kept the store, containing these goods as a stock, open as a going concern, and sold goods from time to time, will not operate, as a de- fense of dissolution of the firm.
fringed where the matter in refer- ence to which the pleading is said to be uncertain, is peculiarly within the knowledge of the opposing party. Ib.
Less certainty is required in set- ting out matters of inducement, than in setting out the gist of the , action; therefore, a plaintiff will not be compellel to set forth the names of individuals, copartnerships, and corporations, organized as, a trust, under a certain name, for the pur- pose of "freezing" him out of a cer- tain line of business. Ib.
The filing and determination of a demurrer to a pleading on the ground of insufficiency, is a waiver of the right to file a motion to strike out from such pleading or to make the same definite and certain. Mont- gomery v. Thomas. 290
A petition in an action on an in- junction bond, alleging that a tem- porary restraining order was grant- ed and a bond given; that plaintiff was restrained and prevented from completing his building for some time and that he was caused expense in procuring the restraining order to be dissolved and the petition in the original action to be dismissed, by a fair inference amounts to a suffi- cient allegation of the fact that the court decided that the injunction ought not to have been granted, al- though the better course would have been to have stated more directly the action of the court as to the re- straining order. Tarbell v. Ennis.
Section 5091, Rev. Stat., substi- tuted an averment of performance, generally, for the specific averments of the common law, but in no way broadened the effect of such an aver- ment. It is still limited to, and is to be read in connection with the conditions precedent, pleaded by plaintiff as part of the defendant's contract. Lauer v. Life Assurance Society. 397
At common law it was the rule that a performance of each condi- tion precedent set forth as a part of the promise must be averred spe-
The time when the contract was made, if material, must be stated and laid truly; but if not material, any time antecedent to the bringing of the suit, within the statute of lim- itations, will suffice. The place of making the contract need not, as a general rule, be averred; place, how- ever, may become material in a par- ticular case, and the burden of plead- ing it, whether upon the plaintiff or defendant, will depend upon the circumstances of such case. Ib.
Plaintiff, in his petition, has the right to state his view or conception of the matter or contract, and if de- fendant does not agree with him, he then interposes his defense to sus- tain his own view or destroy plain- tiff's. But the court cannot under- take, on mere motion, to make plain- tiff plead a view of the contract not in harmony with defendant's no- tions, as the court cannot take ju- dicial notice of what the contract really may be.
ment must be attached to the peti- tion.
The court cannot take judicial notice of what the terms and condi- tions of the contract really are, save as disclosed by the petition; and in the first instance, when the question is presented by motion to make the petition more definite and certain, being in the nature of a special de- murrer, the court must assume that the contract is as stated, without qualification. Block V. Distilling 409
While it may not be material in the least to the controversy be- tween the parties, yet for the court to get an intelligent understanding of the subject of the controversy, it is always proper that explanatory averments should be made by way of inducement of matters connected with the subject of the controversy that otherwise would be left vague and uncertain. Ib.
So much of the petition as is de- voted to averment of performance of conditions precedent is not by way of explication of the contract, which must be independently set forth when the contract itself is stated, expressly or by way of necessary inference, but are averments which are to show that the conditions of the contract, as they are stated or described, when the contract is set forth, have been fully complied with and the obligation of the defendant fixed. Ib.
The question whether the plain- tiff has stated the contract correctly, or incorporated all that is essential to his right to recover, cannot be met by motion or special demurrer; that is matter of substance, and is reached by tendering proper issue of fact. Ib.
In a suit on a written contract, an averment that "among other things it was agreed," the words "among other things," should be stricken out as surplusage.
While a plaintiff must state the contract sued on, at least so much thereof as embraces the defendant's promise, truly and correctly, yet it is sufficient to state those parts of it whereof a breach is complained, or, in other words, to show so much of the terms beneficial to the plaintiff as constitutes the point for the fail- ure of which he sues. Ib.
Where a pleading contains in- consistent averments, as where a pe-
PRESCRIPTION-
In order to claim title by pre- scription, the use must be adverse, uninterrupted, continuous, and with the knowledge of the owner of the estate for a period of twenty-one years. Dayton v. Hydraulic Co. 192
PROBATE COURTS-
The jurisdiction of the probate court in the matter of removing ex- ecutors and administrators, under secs. 524 and 6017, Rev. Stat., is ex. clusive, and its exercise can be re- viewed only for fraud, or for palpa- ble and manifest abuse of power, and upon complainti by a party whose substantial rights are affected there- by. Munger v. Jeffries.
Publication, when a daily paper is selected, once each week and on the same day, for three consecutive weeks, constitutes a compliance with sec. 2502, Rev. Stat., relating to pub- lic notice of ordinances granting rights to street railway companies. It is not necessary that the notice should appear on every secular day for three weeks. Smith v. Railway Co. 441
Section 3365, Rev. Stat., impos- ing upon railroad companies the duty of blocking guard-rails, except to upon bridges, applies trestles. Johns v. Railway Co. 348
If data are furnished by which the speed of a railroad train can be determined, the question whether the train was running at an unlaw- ful rate of speed should go to the jury. If not, it is then a question of law for the court. Watson V. Railroad Co. 454
The mere fact that a railroad train was running at an unlawful rate of speed at a public crossing does not, of itself, constitute negli- gence. There must be some other element in the situation to consti- tute negligence. Ib.
Under circumstances stated in preceding paragraph, the question whether the whistle was blown with- in the prescribed distance from the crossing in question can not be prov- ed by mere opinions of witnesses, that it was blown for one crossing or the other; such fact must be proved by showing that the train was within the limits and the whistle was or was not blown. Ib.
The engineer of a railroad train is required to use ordinary care to ascertain if a person at a public crossing is in danger; and by the ex- ercise of that care to save him if he can, but it is also the duty of a per- son at the crossing to exercise ordi- nary care on his part to avoid in- jury when he finds himself in a crit- ical place or can ascertain by the ex- ercise of ordinary care that he is in imminent danger. The two propo- sitions form the complement of the law on the subject. Ib.
A man has the right to rely up- on performance of duties which the law imposes upon a railroad com- pany at crossings, whenever it is not
apparent, to one exercising ordinary care, that the company has not com- plied with its duty. But where a look would have revealed the fact. and that danger was imminent, as where, in broad daylight, at a cross- ing where the track was straight and the view unobstructed, and the whistle of an approaching train was blown for another crossing but could be distinctly heard and the train plainly seen from the crossing in question, a person injured under these circumstances cannot recover. Ib.
The statute makes the failure to blow the whistle within the pre- scribed distance from a public cross- ing a ground of recovery, but where. within the statutory distance from a crossing there is another crossing, so that necessarily, in order to com- ply with the law, the minimum dis- tance at which the whistle could be blown for the crossing in question would be beyond the other crossing, this fact puts the plaintiff upon proof that a whistle blown beyond the first crossing was not blown within the statutory distance from the crossing in question.
In cities of the second grade of the second class, the board of water- works trustees is the creature of council, and no act done by such trustees can create an estoppel against the city (Dayton), under any claim the city may make as to the title of real estate. Dayton v. Hydraulic Co. 192
Exercising acts of ownership over unimproved land, such as haul- ing gravel, sand and dirt therefrom, sinking wells, and making streets on the same, shows sufficient possession on the part of one claiming to be the owner in fee of the land to maintain an action to quiet title thereto un- der sec. 5779, Rev. Stat. Ib.
Where the call in a deed is, "in and to the ground constituting the bed of said river," (the same being an unnavigable stream) the bed of said river is the hollow basin through which the water of the river flows at low water mark.
When the call in a deed is, "thence southwestwardly along the meanderings of the south bank of Mad river," such description carries
the northern boundary line to the south bank of Mad river, "at low water mark," when the water in the river is at its average and ordinary stage, during the entire year, with- out reference to the extraordinary freshets of the winter and spring or the extreme droughts of the summer or autumn. Ib.
A board of education is liable for damages where by its acts there has been an invasion of the property rights of a private party, as where such board causes excavations to be made to a greater depth than nine feet, as provided in sec. 2676, Rev. Stat., and thereby causes injury to the foundations, walls or buildings of an adjoining property owner. Volk v. Board of Ed.
The right conferred by sec. 2676, Rev. Stat., of having the foundations and walls and buildings secured against damages resulting from ex- cavations on adjoining property to a greater depth than nine feet, is in the nature of a property right; and, therefore, whoever causes injury to the foundation, walls or buildings of another, invades or takes a property right expressly given by statute. Ib.
The indebtedness of a devisee of specific realty is not, without judg- ment and levy by the executor, a charge upon or set-off against the realty so specifically devised. Wood- ruff v. Snowden.
Where a receiver was asked for on the ground that a certain con- tract between plaintiff and defend- ant had been broken by defendant, in the absence of sufficient evidence showing that the contract claimed to be broken, was made, the appoint- ment of such receiver will be de- nied. McCullough v. Mitchell. 704
When the receipts of property under a receivership are not suffi cient to maintain the trust, it is the duty of the receiver, for his own protection, to apply to the court for instructions, instead of voluntarily continuing the trust and allowing necessary claims to accumulate. Weber v. Naltner.
A receiver cannot be com- pelled to postpone present claims, properly incurred by him, in order to meet old claims incurred under Ib. a prior receivership.
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