coming to themselves. We are therefore of the opinion that, whenever it clearly appears upon the face of a complaint, as it does in this case, that the party upon whose behalf an obligation or undertaking is ex

if the liability of Bratager is joint with that of the sureties-then he should have been joined as a defendant. That the liability of the two sureties is joint is, of course, without dispute. Appellants rely upon the decision of this court in the case of Schwitz v. Thom-ecuted by others executes such instrument as, 38 S. D. 180, 160 N. W. 734; while the respondent relies upon the decision of this court in State v. Western Surety Co., 26 S. D. 170, 128 N. W. 173.

when the law does not require him to execute it, it should be held that the presumption that might otherwise arise under and by virtue of section 725, supra, is destroyed, and that the obligation of such unnecessary

The order appealed from is affirmed.

Under section 725, R. C. 1919, an obligation imposed upon several persons is pre-party is several. sumed to be joint and several. The bond before the court in Schwitz v. Thomas was given in conformity with express provisions of a statute which required a bond executed by the principal and the sureties. Section 2839, Pol. Code 1903. In State v. Surety Co., the bond in suit was a bail bond given under certain statutory provisions which did not contemplate the execution of the bond by the party on behalf of whom it was given.

STATE v. CAMPBELL. (No. 5007.)

(Supreme Court of South Dakota. March 1, 1922.)

Rape

51 (4)-Evidence held to sustain conviction in the first degree.

[1] In the case before us, while the undertaking is one on appeal, and in no sense a bond given in a criminal proceeding, such as In a, prosecution for forcible rape of a was the one in State v. Surety Co., yet the female over 18 years of age under Rev. Code statute under which this particular bond was 1919, § 4092, subds. 3, 4, and sections 4095, 4096, where defendant admitted adultery, evigiven (section 3150, R. C. 1919), like the stat-dence showing that prosecutrix struggled unute under which the bond in the Western til overcome by defendant's choking her held Surety Co. Case was given (section 4595, R. sufficient to sustain a conviction of rape in C. 1919), does not contemplate its execution the first degree. by the party on whose behalf it is given. The sureties in the bond now before us, as well as those in the bond in State v. Surety Co., are called bail. Section 1472, R. C. 1919. Their obligations are governed by the statute specially applicable thereto. Section 1473, R. C. 1919. Hence the presumption declared in section 725, R. C. 1919, must give way if not consistent with the statutes relating to this particular kind of contract.

Appeal from Circuit Court, Tripp County; N. D. Burch, Judge.

J. M. Campbell was convicted of rape în the first degree, and he appeals. Judgment and order affirmed.

W. J. Hooper, of Gregory, and J. R. Cash, of Bonesteel, for appellant.

Byron S. Payne, Atty. Gen., and Vernon R. Sickel, Asst. Atty. Gen., for the State.

Rev.

[2] We think that the court did not err, in State v. Surety Co., when it held in effect that the bond in that case was not a joint bond. We are satisfied with our reasoning GATES, P. J. Appellant was convicted of therein. We might suggest further that, un- the crime of rape in the first degree; that doubtedly, upon the appeal in the Bratager is to say, rape accomplished upon prosecutrix, Case, the respondent therein, also respondent who was over the age of 18 years, by means here, could not have objected to the bond of force overcoming her resistance. simply because Bratager had signed same. Code 1919, § 4095, section 4092, subd. 3. In view of that fact, respondent should not now be compelled to treat Bratager as jointly liable with appellants. Certainly Bratager, as between himself and his sureties, could not claim the rights of a joint obligor under section 726, R. C. 1919; that is, if he had paid the obligation evidenced by the bond, he could not have demanded contribution from appellants. Bratager could not, by signing this bond, make himself a joint. obligor either as to this respondent or as to these appellants. Bratager's obligation, under this bond, is based upon the fact that he is receiving a benefit through and be cause of the bond; while the obligation of the sureties is not based upon any benefit

The sole question presented by the appeal is whether the evidence is sufficient to show that prosecutrix made that degree of resistance which entitled the jury to bring in a verdict of first degree rape. The appellant offered no evidence. The appellant concedes that the crime of adultery was committed, and almost concedes that the record shows rape in the second degree; that is, where resistance is overcome by threats of great bodily harm, accompanied by apparent power of execution. Rev. Code 1919, § 4096, section 4092, subd. 4. But whether or not rape in the second degree be conceded, the evidence clearly and convincingly shows the commission of that crime, and we think that the

(186 N.W.)

evidence warranted the verdict that the jury did return.

We will not relate the salacious details, except to state that the evidence does show that prosecutrix resisted and struggled until resistance was overcome by appellant choking her with his right arm.

The judgment and order appealed from are affirmed.

(Supreme Court of South Dakota. March 1, lant, William Hoese, was appointed receiver

Davis, Lyon & Bradford, of Sioux Falls, shipped upon the above terms and conditions

on the condition that settlement was to be made by trade acceptances dated on the "Where something is to be done by the purdate of the shipment, and payable, one-third has not been waived by delivering the property chaser simultaneously with the delivery, which April 10, one-third May 10, and one-third without requiring it to be done, the delivery June 10, 1921. Plaintiff forwarded the bill is conditional, and does not become complete of lading together with the three trade ac- so as to change the right of property until the ceptances, and requested defendant to exe-condition is complied with, although the vendee

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

get the possession of the goods; for possession | manded that they be forwarded. This dein such case is obtained under an expectation mand was not complied with and plaintiff on the part of the vendor that the terms of the made two subsequent demands at intervals of contract will be complied with, and the vendor about 10 days. To none of these demands does not thereby part with his lien upon the did defendant make any reply whatever, and property." Russell v. Minor, 22 Wend. (N. Y.) 659, and, cases cited. J. I. Case Threshing did not make known its intention not to comM. Co. v. Eichinger, 15 S. D. 530, 91 N. W. 82. ply until the personal demand was made by plaintiff on the 3d day of March. Refusal was then made for the first time, and plaintiff immediately commenced this action. Under all these circumstances it cannot be said as a matter of law that title to the merchandise involved ever passed to defendant, and plaintiff was entitled to a return thereof when the demand was made. Daugherty v. Fowler, 44 Kan. 628, 25 Pac. 40, 10 L. R. A. 314; Hirschorn v. Canney, 98 Mass. 149; Armour v. Pecker, 123 Mass. 143; Salomon v. Hathaway, 126 Mass. 482; Thorpe v. Fowler, 57 Iowa, 541, 11 N. W. 3. The judgment and order appealed from are affirmed.

HOVEN STATE BANK v. ACKER. (No. 4955.)

1922.)

1. Appeal and error 1041 (2) Defendant not prejudiced by rulings as to value of prop. erty awarded to plaintiff.

[2] But it is contended by appellant that plaintiff by its conduct after the delivery of the goods waived its right of property and acquiesced in defendant's claim of ownership in the property. What constitutes a waiver depends upon the conduct of the parties and the circumstances of each particular case. In this case there were no intervening rights of third parties between the time of the delivery and the commencement of the action. No credit had been extended to the defendant because of defendant's apparent ownership of the merchandise, nor had the condition of any party been changed thereby. The goods were shipped about the last of December, 1920, subject to the terms and conditions above set out. They reached the defendant at Sioux Falls about the 1st of January, 1921. The defendant failed to forward the acceptances as provided for by the terms of the sale, and on the 11th day of January (Supreme Court of South Dakota. March 1, plaintiff wrote defendant, demanding the acceptances. To this letter defendant made no reply. On the 26th day of January plaintiff again wrote demanding said acceptances, and again defendant made no reply. On the 4th day of February plaintiff again wrote defendant, demanding said acceptances, but with no better results. From about the time of this last letter until the 1st of March plaintiff's manager, who had charge of this transaction, was absent from his office in the states of Oklahoma and Texas attending to other matters, and does not appear to have been kept posted in regard to the transaction with defendant, and did not know until his return to his place of business in Kansas City, Mo., that defendant had failed to forward said acceptances. Upon his return about the 1st of March, and learning that said acceptances had not been forwarded, he at once went to Sioux Falls, notified defendant that plaintiff rescinded the agreement to sell, and demanded a return of the goods, and, upon being refused, immediately commenced this action. While a period of something more than 60 days was allowed to elapse from the time of the shipment until the demand was made for a return of the goods, there was no act or intimation on the part of plaintiff that it intended to waive any of its rights under the contract. The gages was unauthorized by him. contract provided that the acceptances were to be executed and returned on receipt of the bill of lading. After waiting a reasonable ty; Raymond L. Dillman, Judge. time for this to be done, and not receiving Action by the Hoven State Bank against such acceptances, plaintiff wrote and de- W. S. Acker. Judgment for plaintiff, and

In an action for the possession of personal property brought by a chattel mortgagee against the mortgagor, where the jury found plaintiff was entitled to possession of the property, error, if any, in permitting the plaintiff to amend its allegations as to the value of the property, was not prejudicial to defendant. 2. Alteration of instruments 30-Evidence held to make question for jury as to whether names as witnesses were added.

Where chattel mortgages admitted in evidence without objection had the names of two that the witnesses did not sign in his presence, witnesses thereon, testimony by the mortgagor contradicted by evidence for the mortgagee, does not conclusively show that the mortgages had been altered after their execution without the consent of the mortgagor, so as to entitle him to a directed verdict, but that question was one of fact for the jury.

3. Trial 105(4)-Burden is on objector to prove chattel mortgage admitted without objection was unwitnessed.

Where certified copies of chattel mortgages were received in evidence without objection, the burden is on the mortgagor to establish his contention that the witnessing of the mort

Appeal from Circuit Court, Dewey Coun

(186 N.W.)

Af

defendant appeals therefrom, and from the verdict. The trial court submitted the quesorder denying a motion for new trial. tion of the witnessing of the mortgages to the jury under instructions that were not challenged. The jury found for plaintiff.

firmed.

R. A. Dunham and J. M. Henderson, both We perceive no error in this behalf. of Clark, for appellant.

O'Keeffe & Auldridge, of Gettysburg, for respondent.

The judgment and order appealed from are affirmed.

BURNS, County Judge, v. CIRCUIT COURT
OF THIRD JUDICIAL CIRCUIT et al.
(No. 5066.)

GATES, P. J. Action for the possession of personal property by a chattel mortgagee against the mortgagor. The provisional remedy of claim and delivery was invoked, and plaintiff obtained and retained possession of (Supreme Court of South Dakota. March 1, the property. Verdict and judgment for plaintiff. Defendant appeals.

[1] In the complaint the property was alleged to be of the value of $2,500. In the answer it was alleged to be $5,000. At the beginning of the trial defendant in open court admitted the value to be $2,500. After the jury was sworn, plaintiff sought, and over the objection of defendant obtained, leave to amend the complaint by alleging the value to be $1,500. The ruling is assigned as error. No prejudice resulted to appellant from the ruling, because by the verdict respondent was held to be entitled to the possession of the property, and there was therefore no occasion for the determination of a basis for an alternative money judgment, which might have been necessary if the verdict had been for appellant.

1922.)

Officers 702, New, vol. 17 Key-No. Series -Recall provisions of Primary Election Law construed.

tion Law (Rev. Code 1919, §§ 7009-7016) deal The recall provisions of the Primary Eleconly with the matter of removal by party machinery, and such procedure is open only to electors of the political party through which the election or appointment came, and not to the electors of other parties, and such statutes do not supersede or conflict with Primary Election Law, sections 7176-7183, in view of section 7097.

of Deuel County, for writ of prohibition to Application by L. A. Burns, County Judge

cial Circuit and Hon. W. N. Skinner, Judge restrain the Circuit Court of the Third Judithereof, the State of South Dakota, on the relation of Byron S. Payne, as Attorney General and another, as State's Attorney, from proceeding in an action brought against the relator seeking his removal from the office of County Judge of Deuel County. Writ denied.

Law, Dobie & Law, of Clear Lake, and Hall & Purdy, of Brookings, for plaintiff. Byron S. Payne, Atty. Gen., and Benj. D. Mintener, Asst. Atty. Gen., for defendants.

[2] Certified copies of the chattel mortgages had been received in evidence without objection. Upon his examination appellant testified that the two persons whose names appeared as witnesses to the execution of the mortgages were not present when he executed and delivered them to respondent's assignor, and that he did not consent to the signatures by the witnesses. Evidence on behalf of respondent tended to show that appellant called at the store of the mortgagee on the next day, and that the witnesses then and there signed their names to the GATES, P. J. Plaintiff is the county instruments. Appellant assigns as error the judge of Deuel county. An action was be refusal of the court to strike out the chattel gun in the circuit court of the Third judicial mortgages, and the refusal of the trial court circuit within and for said county by the to direct a verdict for him, upon the ground Attorney General and the state's attorney of that the witnessing of the mortgages was Deuel county by direction of the Governor unauthorized, and that the mortgages were of South Dakota, seeking the removal of intentionally and materially altered. Rev. this plaintiff from office under the provisions of sections 7009-7016, Rev. Code 1919, and upon grounds specified in article 16, § 4, of the Constitution.

Code 1919, § 910. The court did not err. The question whether or not the mortgages were witnessed was a question of fact for the jury to determine.

elected through party election, viz. sections 7176-7183, Rev. Code 1919. This plaintiff obtained his said office through party election.

The primary election law of this state con[3] Certified copies of the mortgages hav-tains provisions for the recall of officers ing been received in evidence without objection, the burden was upon appellant to prove that the witnessing of them was unauthorized. His mere statement that it was done without his consent did not entitle him to have the chattel mortgages stricken from the evidence, nor did it entitle him to a directed

Section 7097, Rev. Code 1919, being the first section of the chapter dealing with Primary Elections, says:

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

A. B. Carlson, of Canton, for appellant. Thomas McInerny, of Elk Point, for respondent.

"And in case of any conflict between the pro- | plaintiff's application for a mandatory invisions of this chapter and other provisions of junction, he appeals. Affirmed. this Code, effect shall be given to the former." Claiming that the recall provisions of the primary election law have superseded sections 7009-7016, Rev. Code 1919, as to officers elected through party election, the plaintiff has applied to this court for a writ of prohibition to restrain the circuit court of the Third judicial circuit, the judge thereof, the Attorney Generál, and the state's attor ney of Deuel county from proceeding in the action brought against him in the circuit court.

Several legal propositions are advanced by the defendants herein tending to sustain their right and duty to proceed with their action in the circuit court, but we are of the opinion that one of them is decisive of the question before us, and therefore the others need not be considered.

POLLEY, J. Action for a mandatory injunction to prevent defendant from maintaining an embankment along the dividing line between the respective farms of plaintiff and defendant. Findings of fact, conclusions of law, and judgment were in favor of defendant, and plaintiff appeals.

The farms of plaintiff and defendant are situated on the river bottom of the Big Sioux river in Union county. Defendant owns the east half of the northwest quarter of section 15. Plaintiff owns all of the northeast quarter of section 15 and a small part of the northwest quarter of section 14 lying on the west side of the river. Both tracts of land are low and flat, and prior to the construction of certain dikes along said river bottom both tracts were subject to overflow from the river. The river runs in a southwesterly direction, bounding plaintiff's land on the east, and runs through the south half of Sec. 15 so that it is but a short distance from the south side of plaintiff's land to the river. Before the construction of the dikes above mentioned the flood water from the

The recall provisions of the primary election law deal only with the matter of removal by party machinery. Such procedure is open only to electors of the political party through which the election or appointment came, and is not open to electors of other political parties. The recall procedure does not purport to cover the entire field of the matter of removal from office, and is there fore only cumulative to, and, not inconsistent nor in conflict with, the general statutes up-river during freshets flowed down from the on removal.

north and northeast onto and across plain

For this reason the writ of prohibition will tiff's land in a southwesterly direction, then be denied.

HUCKERT v. MAYNARD. (No. 4959.) (Supreme Court of South Dakota. March 1, 1922.)

Waters and water courses 177(1)-Defendant's dike between his and plaintiff's land held not to cause sufficient damage to plaintiff to warrant mandatory injunction to prevent maintenance.

Where the boundary between plaintiff's and defendant's land was high enough so that the greater part of plaintiff's land was under water in flood time from a few inches to several feet before it flowed over onto defendant's land

in the natural course of drainage, the erection of a dike by defendant on the boundary line, although causing the waters to become deeper in flood time and delaying the drainage of plaintiff's land when the flood of the river abated, was a benefit to defendant, but the damage to plaintiff was not sufficient to warrant a mandatory injunction to prevent defendant from maintaining the dike.

onto and across defendant's land. Some years prior to the controversy between plaintiff and defendant a system of dikes was constructed along the west side of the river and to the north of plaintiff's land. The river bank along the west side of the river is high enough so that except at times of very high water no flood water reaches plaintiff's land from the east. But from a point in the southeast quarter of section 15 a slough some 20 to 40 rods wide extends from the river in a northerly direction up into plaintiff's land for a distance of 60 to 70 rods, and from the end of this slough a large drain ditch has been dug practically due north entirely across plaintiff's land. During times of excessively high water in the river the water used to back up in the slough and ditch, and spread out over practically all of plaintiff's land, and then run across defendant's land and on down the river bottom and into the river at a point lower down the stream. But the land along the boundary line between plaintiff and defendant is high enough so that by far the greater part of plaintiff's land is under water, from a few inches to several feet in

Appeal from Circuit Court, Union County; depth, before any water runs over onto deL. L. Fleeger, Judge.

· Action by A. Huckert against O. R. Maynard. From a judgment and order denying

fendant's land. In order to protect his land and his growing crops from such overflow defendant in 1916 threw up a dike or em