ÆäÀÌÁö À̹ÌÁö
PDF
ePub

(19 Idaho, 635)

judge of the Second judicial district on re

MCGUIRE v. GRANGEVILLE SAVINGS & spondent's motion for a new trial, on the

TRUST CO.

(Supreme Court of Idaho. March 30, 1911.)

(Syllabus by the Court.)

NEW TRIAL (8 70*)-INSUFFICIENCY OF EVI

DENCE.

Evidence in this case examined and considered, and held that there was no abuse of the discretion vested in the trial court in granting a new trial.

[Ed. Note. For other cases, see New Trial, Cent. Dig. § 142; Dec. Dig. § 70.*]

Appeal from District Court, Idaho County; Edgar C. Steele, Judge.

Action by P. A. McGuire against the Grangeville Savings & Trust Company. Verdict for plaintiff, and, from an order granting a new trial, he appeals. Affirmed.

21st day of January, 1910, and, on the 9th
day of February, 1910, the said judge made
an order granting said motion.
The ap-
peal is from said order.

J. M. McDonald, for appellant. W. N.
Scales, for respondent.

WOODS, District Judge (after stating the facts as above). This appeal was prosecuted from an order of the Honorable Edgar

C. Steele, judge of the Second judicial district of Idaho, granting respondent a new trial upon the ground that the evidence in said action is insufficient to justify the verdict of the jury.

We have examined the evidence in this case as contained in the record, and, it appearing therefrom that there was no abuse of discretion upon the part of the trial court in granting the motion for a new trial, the order made in the premises should be affirmed. It is therefore directed that the order granting a new trial be, and the same is hereby, affirmed. Costs awarded to respondent.

SULLIVAN, J., concurs. AILSHIE, P. J., took no part in the decision.

(19 Idaho, 537) AZCUENAGA BROS. LIVE STOCK & LAND CO. v. CORTA.

(Supreme Court of Idaho. March 16, 1911. Rehearing Denied April 20, 1911.)

The appellant by his complaint alleges the incorporation of respondents; that about the day of January, 1909, he sold to Frye & Bruhn, Incorporated, of Seattle, Wash., through its agent, J. H. Blackburn, now deceased, some live stock of the value of $445.87, of which $25 was to be paid at the time of the purchase, and the balance, $420.87, at the time of delivery of the stock; that the stock was received by one A. J. Logsdon as agent for Frye & Bruhn, Incorporated, acting also as agent for Blackburn and respondent in making payment therefor about January 20, 1909; that Frye & Bruhn, Incorporated, furnished said Blackburn the sum of $600 to make the partial payment for stock sold by appellant, and stock received from other parties near the same time, which money was deposited with respondent; that when the said stock was so delivered to said agent of Frye & Bruhn, Incorporated, the said Logsdon deposited with the respondent the amount due the different persons so delivering stock for shipment to Frye & Bruhn, Incorporated, in drafts, totaling $2,084.24, which, with the $600 theretofore advanced and deposited with respond-Cent. Dig. §§ 139-146; Dec. Dig. § 52.*] ent, completed the payment for said stock and the commission of said Blackburn; that the sum of $445.87 is the amount of money belonging to appellant so received by said respondent for the use and benefit of appellant, and respondent refuses to pay the same, and appellant prays judgment for said sum, with interest from January 1909, and costs.

The respondent denies specifically each material allegation of the complaint.

The action was tried before the court with a jury, and on September 24, 1910, the jury found for the appellant in the sum of $445.87, upon which verdict judgment was rendered for appellant on said last-named date. Upon a statement of the case prepared by respondent and specification that the evidence was insufficient to justify the verdict. the case came on to be heard before the

(Syllabus by the Court.) 1. PUBLIC LANDS (§ 52*) SCHOOL LANDS

GRANTED TO STATE-IDENTIFICATION.

Until the government causes the public domain to be surveyed, the state or its lessee or grantee has no method of identifying sections 16 and 36 granted to the state by the admission bill for school purposes.

[Ed. Note.-For other cases, see Public Lands,

2. PUBLIC LANDS (§ 52*) - SCHOOL LANDS GRANTED TO STATE-IDENTIFICATION.

Proof of a private survey is not admissible to identify school lands granted to the state by the government, but the government has reserved to itself the right to control the surveys and method of identification of school sections, of the public domain, and to furnish the means and, until the government causes a survey to be made, there is no competent and legal proof that can be adduced which will identify such sections.

[Ed. Note.-For other cases, see Public Lands, Dec. Dig. 8 52.*]

3. PUBLIC LANDS (8 51*) - SCHOOL LANDS

a

GRANTED TO STATE-TITLE OF STATE.

Where the government has caused a survey to be made, and by such survey the identity of school section is established, the state has such an interest and equity in the property as to enable it to maintain an action to enjoin and restrain trespassers from entering upon the property and committing waste, and this is especially true where such trespasser in no way connects himself with the government or the ti

tle to the land or shows that he has any right to acquire title to the land under any of the laws of the United States.

[Ed. Note.-For other cases, see Public Lands, Dec. Dig. § 51.*]

4. PUBLIC LANDS (§ 52*)—SURVEYS-IDENTIFICATION OF SCHOOL LAND GRANTED TO THE STATE.

Where the government has caused school lands to be surveyed, the evidence of identification is competent and sufficient, even though the survey has not been formally approved and accepted.

[Ed. Note. For other cases, see Public Lands, Dec. Dig. § 52.*]

sections until after the survey has been made by the government and formally accepted and approved by the General Land Office. As we view the matter, however, it is not so much a question in this case as to when

the absolute title or fee vests in the state, as it is a matter of proof of the state's interest or equity in and to the identica! tract of land. The government seems to have reserved to itself the implied power to control the public surveys, and consequently has reserved in itself the means of identification of sections 16 and 36 which were granted to the

Appeal from District Court, Owyhee Coun- state by the admission bill for school purty; Ed. L. Bryan, Judge.

Action by the Azcuenaga Brothers Live Stock & Land Company against Miguel Corta. Judgment for plaintiff, and defendant appeals. Affirmed.

N. M. Ruick, D. A. Dunning, and B. W. Oppenheim, for appellant. Hawley, Puckett & Hawley, for respondent.

AILSHIE, P. J. This action was instituted by the plaintiff to enjoin the defendant from trespassing on section 16, township 8 south of range 5 west, Boise Meridian, and for damages for his repeated acts of trespass. The complaint alleged that plaintiff was the lessee of the state of this section of land. A temporary injunction was issued, and the case was thereafter submitted to the court on the pleadings and stipulation as to the facts concerning the title and right of possession to the land. Judgment was entered in favor of the plaintiff, and the defendant appealed.

It seems that the government caused a survey to be made covering this section of land, and that, after the survey and prior to the formal approval of the survey by the General Land Office, the state leased section 16 to the respondent company, and thereafter, and while respondent was in possession of the land grazing the same with its live stock, the appellant entered upon the land with his band of sheep and occupied and grazed the same. The only authority under which the appellant claims the right of entering upon the land and occupying it is the general sufferance, permission, or license of the United States to graze live stock on the public domain. It is admitted by appellant that he knew the lands had been surveyed and that according to such survey this was section 16 of the township. He also admits that he was aware of the occupancy of the respondent at the time he entered upon the land with his live stock.

poses. When the respondent in this case undertook to prove its case and show as lessee of the state that the state had a right to lease this land, it was necessary to identify the land by means of a government survey. No private survey could establish that fact or identify the tract of land.

The Supreme Court of the United States, in United States v. Montana Lumber & Mfg. Co., 196 U. S. 573, 25 Sup. Ct. 367, 49 L. Ed. 604, held that proof of a private survey was not admissible to show that timber cut was taken from an odd section which fell within the limits of the Northern Pacific Railroad In that case, three questions were grant. certified by the Circuit Court of Appeals for the Ninth Circuit up to the Supreme Court of the United States, and that court answered the first and third questions in the affirmative.

Those were purely and solely questions as to the admissibility of evidence. That case was subsequently followed by the Circuit Court of Appeals in United States v. Birdseye, 137 Fed. 516, 70 C. C. A. 100, and also in Clemmons v. Gillette, 33 Mont. 321, 83 Pac. 879, 114 Am. St. Rep. 814. So far as we are aware, it has never been directly held by the Supreme Court of the United States, or any other court, that the state has absolutely no right or interest in school sections until after the official survey is made; but it has rather been held that there is no means of proof as to the particular tract or body of land which constitutes sections 16 and 36, and that therefore there is no legal means of identification of the land until after the official survey is made. That is what we un derstand to be held by the foregoing authorities, and, indeed, we so announced our understanding of the rule in Balderston v. Brady, 18 Idaho, 238, 108 Pac. 742.

[3] On the other hand, the Supreme Court of the United States and the inferior federal courts have almost uniformly recognized an inchoate right or an equitable title as exist

prior to the survey, and that this right is subject to be defeated on the one hand, or vested absolutely and in fee simple on the other hand, according to the condition and occupation of the property at the time the survey is made. A homesteader, however,

[1, 2] Appellant has gone into the questioning in the state to these sections at all times at great length of the state's title to sections 16 and 36, granted to the state by the general government for common school purposes. He has argued and cited many authorities which he insists support his position that the state acquires no interest or right or title to school For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

could not acquire any interest in the prop- | the Hussey Case and involved in the case erty after the survey is actually made ou now before us. the ground, although the survey might not be actually accepted and approved for years thereafter.

No question is raised in this case as to the sufficiency of the facts pleaded to entitle the plaintiff to an injunction except as to the specific question of title above considered. We therefore express no opinion as to the sufficiency of the complaint in other respects to entitle the plaintiff to an injunction in this

For the foregoing reasons, the judgment should be affirmed, and it is so ordered. Costs awarded in favor of respondent. SULLIVAN, J., concurs.

(19 Idaho, 612)

SHEFFIELD v. CLELAND. (Supreme Court of Idaho. March 30, 1911.)

[4] The appellant in this case fails to connect himself with the government in any way, whereby he could acquire any title or right or interest in and to the property from the government. According to his own show-case. ing, he is at the best a mere trespasser on the land or possibly a temporary occupant by sufferance of the government if the government still retains the right to direct the control and occupation of such land. The respondent, on the other hand, shows that it is a lessee from the state. He also shows that the land has been surveyed, and this fact is not established by proofs of a private survey, but by proofs of a government survey. While it appears that this survey has not yet been formally accepted and approved by the department, that fact could not improve appel- 1. lant's condition or relation to the land, nor could it in any way tend to connect the appellant with the government or its title to the land. While a rejection of the survey and a resurvey by the government showing that this body of land is not in fact section 16 would ultimately defeat the state and incidentally the respondent as its lessee, that would present a condition and state of facts that does not arise in the present case and with which we are not confronted. As be tween these parties, where the government is asserting no right to the land, we think the state's lessee is clearly entitled to protect its possession and occupancy of the land as against appellant.

This is a much stronger case in its facts than was the case of Northern Pacific Ry. Co. v. Hussey, 9 C. C. A. 463, 61 Fed. 231, for the reason that here the land has been surveyed and the grantee's lessee was in pos

session. In that case the Northern Pacific Railway Company was allowed to maintain an action to enjoin trespassers from cutting timber off of land within the limits of the Northern Pacific land grant, even though the land was still unsurveyed. This was done upon the theory that the railroad company had such an interest in the land that it might maintain its action to preserve the property from waste. Justice McKenna presided over the Circuit Court of Appeals as one of the circuit judges at the time the Hussey Case was decided. He also wrote the opinion of the Supreme Court in the case of United States v. Montana Lbr. & Mfg. Co.,

(Syllabus by the Court.)

BILLS AND NOTES (§ 510*)-ACTIONS-AD

MISSIBILITY OF EVIDENCE.

Held, that the court did not err in the admission and rejection of certain evidence. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 1746-1759; Dec. Dig. § 510.*]

2. BILLS AND NOTES (§ 404*)-LIABILITY OF INDORSER-TIME FOR PRESENTMENT "REASONABLE TIME.

As a general rule the question of what is a "reasonable time" in which to present for payment a promissory note which was indorsed after maturity is one of fact to be determined by the circumstances of each particular case.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 1091-1103; Dec. Dig. § 404.*

For other definitions, see Words and Phrases, vol. 7, pp. 5977-5983; vol. 8, p. 7780.] 3. BILLS AND NOTES (§ 499*)-ACTIONS—EVI

DENCE-NONPAYMENT.

A promissory note introduced in the trial of an action brought thereon is prima facie evidence that the debt evidenced thereby is unpaid. Notes, Cent. Dig. §§ 1695-1697; Dec. Dig. § [Ed. Note.-For other cases, see Bills and 499.*]

4. SUFFICIENCY OF EVIDENCE.

Held, that there was sufficient evidence to make a prima facie case, and that the court did not err in denying a motion for a nonsuit. 5. BILLS AND NOTES (§ 538*)-ACTIONS-IN

STRUCTIONS.

Held, that the court did not err in giving certain instructions.

[Ed. Note. For other cases, see Bills and Notes, Dec. Dig. § 538.*]

Appeal from District Court, Kootenai County; Robt. N. Dunn, Judge.

Action by Curtis H. Sheffield against William H. Cleland. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Affirmed.

McBee & La Veine, for appellant. C. H. Potts, for respondent.

supra, and refers specifically to the Hussey Case, and says there is nothing in the Hussey Case which is in conflict with the rule announced by the Supreme Court in the Montana Lumber & Mfg. Co. Case. This furnishes a strong indication as to the view of the SULLIVAN, J. This action was brought Supreme Court on the question considered in by respondent against the appellant as in

dorser of a certain promissory note executed as follows: "In determining what is a 'reaby one McBee.

It is alleged in the complaint that on the 10th day of December, 1903, one McBee, for value received, made, executed, and delivered a promissory note for the sum of $100, with interest thereon at the rate of 8 per cent., to the appellant, William H. Cleland; that some time after the maturity thereof, for a valuable consideration, said Cleland indorsed said promissory note and sold and assigned the same to the plaintiff, and the plaintiff is the lawful holder and owner thereof; that due notice of the sale and assignment of the note was given to the maker; that thereafter said promissory note was presented to the maker for pay ment and payment was refused, and that appellant had due notice thereof; that neither the indorser nor the maker has paid said note, or any part thereof, and that said sum of $100, with interest thereon at the rate of 8 per cent. from the 1st day of April, 1903, is due and payable; that said note provides for an attorney's fee in case suit is instituted to collect the same. Plaintiff prays for judgment in the sum of $100 and 8 per cent. interest, together with the further sum of $25 attorney's fee.

A demurrer was interposed to said complaint and overruled by the court, and an answer was filed which denies that due notice or any notice of any sale or assignment of said promissory note was ever given to the maker; denies that said promissory note was indorsed by the defendant; denies that payment thereof was demanded or refused; denies that defendant had due or any notice of any presentation thereof, or demand for payment or refusal of payment by the said maker; denies that said note or any part thereof remains unpaid; denies that the sum of $25 or any sum is a reasonable attorney's fee for the collection of said note. Upon the issues thus made the cause was tried by the court with a jury, and the jury returned a verdict in favor of the plaintiff, and assessed his damages at the sum of $176.65, and judgment was entered for that sum and costs of suit. A motion for a new trial was overruled, and the appeal is from the judgment and the order denying a new trial.

[1] The first, second, and third assignments of error relate to the action of the court in overruling appellant's objections to questions propounded to the respondent as to what transpired at the time the note was indorsed by appellant to the respondent. The note was indorsed after maturity, and the liability of the defendant depended upon the law governing such indorsements. Among other things, it was necessary to determine what was a reasonable time in which to present the note to the maker. Under our statutes this should be determined in connection with the facts of the particular case.

It is provided by section 3650, Rev. Codes,

sonable time' or an 'unreasonable time' regard is to be had to the nature of the instrument, the usage of trade or business (if any) with respect to such instruments, and the facts of the particular case."

The facts of this case could be disclosed only by evidence as to what was said and done at the time of the indorsement, and the answers given to the questions complained of show the materiality of the testimony sought to be elicited thereby, as shedding light on the transaction which would aid the jury in determining what was a reasonable time under the circumstances.

[2] While the liability of the indorser of a note is fixed by law, the question of what is a reasonable time to present the note to the maker for payment, when it is indorsed after maturity, is not fixed by law, but depends upon the facts of the case and the understanding and agreement of the parties. The court did not err in admitting the evidence referred to.

The fourth and fifth assignments of error relate to the action of the court in refusing to permit a witness for the appellant to answer questions directed to the circumstances concerning the making of the note sued on, and the purpose for which it was given by the witness to the appellant. The execution of the note was admitted, and it could not possibly make any difference in this case for what purpose the note was originally given, or as to what the attendant circumstances were. The evidence sought to be elicited by those questions was clearly immaterial to the issues involved in the case.

The sixth assignment of error has reference to a question as to the reasonable value of certain personal property. The record shows that said evidence was not material, as it appears that the transaction referred to had no connection with the note sued on in this action. The court did not err in denying defendant's motion for a nonsuit.

[5] The appellant's eighth assignment of error goes to the action of the court in giving instruction No. 4. Said instruction is taken verbatim from our statute defining how to determine what is a reasonable time to present a promissory note for payment under the negotiable instrument law. Section 3510, Rev. Codes. It was not error to give that instruction. It is admitted that the note in question was indorsed to the respondent by appellant after maturity, and was therefore under our statute, as regards the appellant, payable on demand.

Section 3464, Rev. Codes, is as follows. "An instrument is payable on demand: "First. Where it is expressed to be payable on demand, or at sight, or on presentation; or,

"Second. In which no time for payment is expressed.

"Where an instrument is issued, accepted

or indorsed when overdue, it is, as regards | ey, after maturity, is prima facle evidence the person so issuing, accepting or indorsing that the debt evidenced thereby is unpaid. it, payable on demand."

Said note therefore came within the rules governing the presentment for payment of demand paper.

Section 3528, Rev. Codes, provides:

"Where the instrument is not payable on demand, presentment must be made on the day it falls due.

"Where it is payable on demand, presentment must be made within a reasonable time after its issue, except that in case of a bill of exchange, presentment for payment will be sufficient if made within a reasonable time after the last negotiation thereof." It therefore became necessary, in order to hold the indorser, who in this case is the appellant, to show that the note was presented to the maker thereof for payment within a reasonable time after the indorsement, and what was a reasonable time in this case depended upon the facts in the case, which would include the understanding or agree ment between the appellant and respondent at the time the note was indorsed and sold to the respondent. Nor does it make any difference as to whether the question of

what was a reasonable time was determined by the court or by the jury, because, if it should be held that this matter was one to be determined by the court, then it is 'apparent that the court determined that pre sentment was made in this case within a reasonable time by overruling the defendant's motion for a nonsuit. The respondent, and not the appellant, was the only one who could complain of the action of the court in letting this question go to the jury.

It was held in Bassenhorst v. Wilby, 45 Ohio St. 333, 13 N. E. 75, as follows: "What

is a reasonable time is generally a mixed question of law and fact. Where the facts are in dispute, it should be submitted to the jury for its determination under proper instructions from the court; but where the material facts are admitted, or not in dispute, it is a question for the court, and cannot properly be submitted to the jury."

As a general rule, the question of what is a reasonable time within which to present for payment a promissory note which was indorsed after maturity is one of fact to be determined by the circumstances of each particular case by the jury, if there is a conflict in the evidence; otherwise by the court. [3] The giving of the seventh instruction by the court is assigned as error. That instruction was to the effect that the possession by the plaintiff of an uncanceled promissory note is prima facie evidence that such note remains unpaid, and the burden of proving the payment thereof is upon the defendant. The possession by the creditor of a writing providing for the payment of mon

30 Cyc. 1264-1268. The introduction of an unpaid note by plaintiff was sufficient evi-. dence, if evidence were necessary, in support of the negative allegation of nonpayment. Partene v. Pardini, 135 Cal. 431, 67 Pac. 681; Brennan v. Brennan, 122 Cal. 440, 55 Pac. 124, 68 Am. St. Rep. 46.

[4] Appellant devotes a large portion of his brief to a discussion of the alleged insufficiency of the evidence to sustain the verdict. The evidence in this case as to the time within which the note was presented to the maker for payment and notice given to the indorser of nonpayment thereof is conflicting. The rule is too well established in this state to the effect that where there is a substantial conflict in the evidence a judgment entered on the verdict of a jury will not be reversed, to require any further discussion of that question.

Finding no reversible error in the record, the judgment must be affirmed, and it is so ordered, with costs in favor of respondent.

AILSHIE, P. J., and WOODS, District Judge, concur.

(19 Idaho, 586) MENASHA WOODENWARE CO. v. SPOKANE INTERNATIONAL RY. CO.

(Supreme Court of Idaho. March 25, 1911. Rehearing Denied April 20, 1911.)

1.

(Official Syllabus.)

TRIAL (§ 348*) - SPECIAL AND GENERAL VERDICTS.

Under sections 4396 and 4397, Rev. Codes, the trial court is authorized to render judgment on general and special verdicts.

[Ed. Note. For other cases, see Trial, Cent. Dig. § 822; Dec. Dig. § 348.*]

2. TRIAL (8 350*)-SUBMISSION OF QUESTIONS -SPECIAL VERDICT.

Held, that certain findings of fact by the jury in the form of special verdicts were answers to questions of fact, which it was proper stituted a substantial compliance with the refor the court to submit to the jury, and conquest of appellant in relation thereto.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 828-833; Dec. Dig. § 350.*] 3. TRESPASS (§ 61*) — UNLAWFUL CUTTING AND CARRYING AWAY OF TIMBER-ACTIONS -TREBLE DAMAGES-APPLICATION OF STAT

UTE.

Section 4531, Rev. Codes, authorizing rying off timber from the lands of another, is treble damages for unlawfully cutting and carnot applicable where it is not shown that the trespass was willfully and intentionally committed.

Cent. Dig. § 147; Dec. Dig. § 61.*] [Ed. Note.-For other cases, see Trespass, 4. TRESPASS (§ 16*)-NATURE OF ACTIONUNLAWFUL CUTTING OF TIMBER-ACTIONS— PLEADING.

section 4531, Rev. Codes, where it is not allegAn action to recover treble damages under ed that the damage was committed willfully or intentionally, does not come within the purview

« ÀÌÀü°è¼Ó »