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Idaho) GOLDEN MARGUERITE SILVER & C. M. CO. v. NATIONAL C. M. CO.

207

in the contemplation of the statute of appeals "Upon an appeal from a final judgment the and subject to appeal. Appellants have made Supreme Court may review any intermediate orno reply to this motion, although the affida

der involving the merits and necessarily affecting

| the judgment.” vit of the attorney for the movent alleges

| Paragraph 1232, Civil Code Ariz. 1913, and shows that a true copy of the motion

limits the right to appeal to any person ag. and a copy of the brief was mailed to one of

grieved in the cases prescribed in chapter 1, the attorneys for appellants with sufficient

tit. 6, of the Civil Code. postage thereon on the 27th day of November,

If the statute permits appeals from the 1915.

orders disposing of the issues of law arising [1, 2] The right to appeal in any case de

on the pleadings, the pleas in abatement and pends wholly upon the statute permitting an

other dilatory pleas and all pleas which do appeal in such case. Paragraph 1227, Civil

not go to the merits of the case, then necesCode Ariz. 1913, provides that:

sarily, an appeal would lie from each of said "An appeal may be taken to the Supreme

orders, and in order to receive the benefit of Court from a superior court in the following cases:

an appeal, all further proceedings must be "(1) From a final judgment entered in an ac- suspended from the time of taking an appeal tion or special proceeding commenced in a suo until the appeal is finally adjudicated. Paraperior court, or brought into a superior court from any other court.

graph 1231, Civil Code Ariz. 1913, requires “(2) From an order granting or refusing a this court to review all orders and rulings new trial, or granting a motion in arrest of made by the court below, which are assigned judgment; granting or dissolving an injunc

as error, only upon appeals from a final judgtion, or refusing to grant or dissolve an injunction. or appointing à receiver. or dissolving or ment. The orders appealed from certainly refusing to dissolve an attachment or garnish determined the issues of law raised by the ment; from any special order made after final pleading applicable to the facts, yet the judgment; froin any interlocutory judgment, order, or decree made or entered in actions to re

questions of fact remained unsettled, and for deem real or personal property from a mortgage that reason such orders are not, in their nathereof, or lien thereon, determining such right ture, final judgments in contemplation of apto redeem and directing an accounting; from an peals. 2 Cyc. 587; Potter y. Talkington, 5 interlocutory judgment in any action for partition which determines the rights and interests Idaho, 31

Idaho, 317, 49 Pac. 14. of the respective parties, and directs partition to "Sometimes several issues of law and of fact be made, and from any interlocutory judgment are presented for the consideration of the court which determines the rights of the parties and in the same suit or proceeding. In such case, directs an accounting or other proceeding to de- there can be no judgment from which an appeal termine the amount of the recovery.

may be taken until all the issues are determined. "(3) From [orders and judgments in probate For although the determination of an issue of matters).

law is a trial, and the decision rendered thereon “(4) From [orders and judgments adjudging a is not an order. * * * but a judgment, still person insane].

it is not until final judgment is entered that an "(5) From any order affecting a substantial appeal will lie.” Freeman on Judgments (3d right, made in any action when such order in ef- Ed.) § 10. fect determines the action and prevents judg. Such is the clear meaning of our statute, ment from which an appeal might be taken.

a substantial

ntial and consequently the motion is well taken. right made in special proceedings or upon a The appeal is dismissed, and the cause re summary application in an action after judg- manded, for further proceedings according to ment. “(7) From an order or judgment in habeas

law. corpus cases.

ROSS, C. J., and FRANKLIN, J., concur. The orders overruling a demurrer, a plea in abatement, or a plea in bar, are not such final determinative orders as are made the subject of appeal and separate review within GOLDEN MARGUERITE SILVER & COPthe purview of the said statute. Until final! PER MINING CO., Limited, v. NATIONjudgment in the cause, the trial court retains I AL COPPER MINING CO., Limited. the power to vacate such orders upon proper (Supreme Court of Idaho. Dec. 28, 1915.) grounds appearing, and grant the relief Costs 146, 162–TAXATION-ITEMS Tax. sought without appeal. Such orders may ABLE. affect the final judgment, yet they are neces

Under the statutes of this state, only such

costs as are necessarily incurred in an action or sarily intermediate orders, made in con

proceeding in the courts of this state are chargetemplation of the trial on the merits as pro able against the losing party as costs, unless vided in paragraph 509, Civil Code Ariz. 1913. the statute clearly provides that other necesas follows:

sary disbursements may be charged up as costs

| in an action or proceeding. "All issues of law arising on the pleadings, [Ed. Note.--For other cases, see Costs, Cent. and all pleas in abatement and other dilatory Dig. 8$ 567-569, 572-574, 580; Dec. Dig. Om pleas remaining, and all pleas which do not go | 140, 162.) to the merits of the case shall be disposed of by the court before the case is called for trial on Appeal from District Court, Shoshone the merits.”

County; Wm. W. Woods, Judge. Paragraph 1230, Civil Code Ariz. 1913, pro- Action by the Golden Marguerite Silver & vides that:

| Copper Mining Company, Limited, against

a

order

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the National Copper Mining Company, Limit-ity Com'rs, 16 Idaho, 32, 100 Pac. 106, 21 L. ed. From an order denying motion to tax R. A. (N. S.) 199, 133 Am. St. Rep. 89, 17 costs, defendant appeals. Reversed and re- Ann. Cas. 1226, Steensland v. Hess, 25 Idaho, manded, with directions,

181, 136 Pac. 1124, and other authorities on John P. Gray, of cour d'Alene, and Ther

the proposition that statutes allowing costs rett Towles, of Wallace, for appellant. A. G.

are penal and must be strictly construed, Kerns, of Wallace, for respondent.

and appellant also contends that costs ex

pended in the United States Land Office in SULLIVAN, C. J. This is an action support of an adverse claim under the provi. brought under the provisions of section 2326, sions of said section 2326, Rev. Stats, of the Rev. Stats, of the U. S. (U. S, Comp. St. 1913, U. S., cannot be recovered in a suit in the dis8 4623) in support of an adverse claim against trict court of this state. an application for patent to certain mining Under the provisions of section 4912, Rev. ground. The appeal is from an order of the Codes, the party in whose favor the judgcourt taxing costs. The items of the memo- ment is rendered and who claims his costs randum of costs which the court allowed and must, within five days after the verdict or from which order this appeal is taken, are as notice of the decision of the court or referee, follows:

file with the clerk, and serve upon the adTo filing fees paid the land office on filing

verse party or his attorney, a copy of the protest and adverse claim ...... : $10.00

memorandum of the items of his costs and To paid for certified copy of notice for

necessary disbursements in the action or proTo paid for copy of articles of incorpora

ceeding. This section of the statute, as well tion for the land office ...

2.50 as other sections, refers only to such costs To paid for abstract of title for land of

and disbursements as are occasioned in the

action or proceeding in the courts of this Total .....

........ $18.00 state, and does not contemplate costs occaThe judgment was in favor of the adverse sioned by proceedings in the United States claimant, and awarded the area of conflict to | Land Office. the adverse claimant. After judgment was We conclude, therefore, that the court entered the adverse claimant, who is re-erred in allowing the items of cost above spondent here, filed his memorandum of mentioned, since they were all incurred on costs, and taxed, among other costs, the | account of proceedings in the United States above set forth items. The allowance of Land Office. said items of cost is assigned as error.

The order of the district court must thereThe contention of appellant is that the fore be reversed and the cause remanded, allowance of costs is a matter dependent with instructions to sustain the motion and wholly upon the statute, and where there is disallow the items of cost above mentioned no statute authorizing it, no costs can be amounting to $18. Costs are awarded to apallowed, and cites in support of that conten- pellant. tion Cronan v. District Court, 15 Idaho, 462, 98 Pac. 614, Schmelzel v. Board of Coun- BUDGE and MORGAN, JJ., concur,

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| lief was denied, and an appeal is taken from LESLIE V. HARRISON NAT. BANK et al. the decision refusing the injunction. (No. 19784.)

On June 18, 1878, Alexander Leslie (father (Supreme Court of Kansas. Jan. 8, 1916.) of the judgment debtor, and grandfather of

the plaintiff in the injunction action) made (Syllabus by the Court.)

a will which, without describing any specific 1. ESTOPPEL E90_EQUITABLE ESTOPPEL-| PUBLIC LAND-WILLS.

property, gave a life interest in all the estate, Where a settler upon public land of the both real and personal, of which he should United States died, leaving a will giving a life die seised, to his wife, with a remainder in estate in all his property to his wife, with a re- l equal shares to their four sons, one of whom mainder to their children, and the widow enjoy. ed during her life all the rents and profits of was J. F. Leslie. At the time of making the land, which was patented to the heirs, she the will both tracts referred to were gov. and the children supposing that title had passed ernment land, occupied by the testator with in accordance with the terms of the will, no es la toppel thereby arose such as to vest an equitable

a view to acquiring title under the pre-emptitle to the fee in the children, subject to a life tion and timber culture acts. He died July interest in the mother.

2, 1878. The widow elected to take under [Ed. Note.-For other cases, see Estoppel, the will. Patents were issued on one tract Cent. Dig. 88 242–244, 248–256; Dec. Dig. Om

in 1880, and on the other in 1890, to the 90.)

heirs of Alexander Leslie, who were his wid. 2. DEEDS 114-PROPERTY CONVEYED-INTEREST OF GRANTOR – MISTAKE AS TO Ex

ow and the four sons named in his will. TENT.

The will, of course, did not affect the title A grantor who, in fact, owns an undivided to the land, which by virtue of the federal one-eighth interest in a tract of land derivedis

law passed to the heirs as grantees of the from the government, but who supposes that he owns an undivided one-fourth interest subject government. Byerly V. Eadie, 95 Kan. 400, to a life estate derived from a will, passes all 148 Pac. 757; Buxton v. Traver, 130 U. S. the title he has by a deed describing the prop- | 232, 9 Sup. Ct. 509, 32 L. Ed. 920. No queserty conveyed as a one-fourth interest arising under the will; the warranty clause containing

tion is made regarding this proposition, but an exception as to the life estate.

Frank Leslie maintains that the conduct (Ed. Note.-For other cases, see Deeds, Cent. of the heirs produced the same result as Dig. $$ 316-322, 326-329, 388; Dec. Dig. Omo though they had entered into an effective 114.)

agreement with each other that the land 3. JUDGMENT 782–LIENS-GIFT OF LAND.

i should be held in accordance with the terms Where one, under the mistaken belief that he is the owner of an interest in a tract of land of the will. Oral evidence was introduced executes a warranty deed thereto as a gift to his by Frank Leslie to the effect that they all son, a title afterwards acquired by him will pass understood that each son owned an undividto the grantee only in subjection to the lien of any judgment existing against the grantor at the

ed one-fourth interest, subject to a life estime of acquiring the title.

tate in their mother, and that she enjoyed [Ed. Note. For other cases, see Judgment, all the rents and profits until her death. Cent. Dig. & 1351; Dec. Dig. On 782.]

On August 2, 1904, J. F. Leslie (his wife 1. EXECUTION 171 - SALE - INJUNCTION | joining) executed to his son Frank Leslie, -OWNER OF UNDIVIDED INTEREST IN LAND. for a recited consideration of $1 and love

An owner of an undivided one-fourth in. terest in land, one eighth interest being subject

and affection, a general warranty deed in to the payment of a judgment against his gran- which the property conveyed was thus detor, and the other eighth not, is entitled to an injunction against the sale of more than an undivided one-eighth interest in the land under an

"Our undivided one-fourth interest in and to execution issued on such judgment.

the east one-half of section thirty (30), in town

I ship twenty-two (22) south, of range nine (9) (Ed. Note.-For other cases, see Execution,

west of the 6th P. M., being the interest arising Cent. Dig. 88 497-518; Dec. Dig. Om 171;

under the will of Alexander Leslie, deceased, the Judgment, Cent. Dig. $$ 794, 795, 813, 825.)

father of John F. Leslie." Appeal from District Court, Reno County.

The warranty clause contained an excepAction by Frank Leslie against the Harri.

tion as to the life interest of Elizabeth Leslie. son National Bank and another. From a

The bank sued J. F. Leslie July 21, 1901. judgment for defendants, plaintiff appeals.

Its judgment was rendered September 16, Modified and affirmed.

1904. Elizabeth Leslie died May 17, 1913, C. M. Williams, of Hutchinson, for appel- leaving all her property in equal shares to lant. Fairchild & Lewis, of Hutchinson, for the four sons already referred to. The exappellees.

ecution levied upon the real estate in ques

tion was issued October 20, 1913. MASON, J. The Harrison National Bank, [1] 1. Frank Leslie maintains that his having a judgment against J. F. Leslie, levied grandmother, having acquiesced in and rean execution upon the undivided one-fourth ceived the benefits of the arrangement by interest in two tracts of land, and was about which she was treated as owning a life esto sell it as his property, when his son Frank tate, was estopped to assert any other title, Leslie brought an action to enjoin the sale and therefore that his father should be reon the ground that he was the owner of the garded as having owned a one-fourth interinterest sought to be sold. Upon a trial re-est in the land when he executed the deed.

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

No doubt, the heirs of Alexander Leslie, terest which J. F. Leslie acquired under his could have made any agreement they saw mother's will. It claims, however, the right fit as to the disposition of the property, and, to reach also the other eighth interest, which even although not in writing, it would have J. F. Leslie derived directly from the gov. been enforced if it had been so far acted ernment, not only on the ground already upon as to take it out of the statute of stated, that the deed passed no title, but also frauds. McCullough v. Finley, 69 Kan. 705, on the theory that it was made in fraud of 77 Pac. 696. But it does not üppear that creditors. No showing was made, however, any contract was made. The mother and her that J. F. Leslie was insolvent when it was sons seem to have acted upon the assump executed. Moreover, no attack having been tion that the land was disposed of by the made upon it for more than nine years after will. But we cannot regard the acquiescence the judgment was rendered, the statute of in that view by all concerned, under a com- limitations had barred an action to set it mon mistake, and the innocent acceptance aside on the ground of fraud. Donaldson by the mother of the temporary fruits of the v. Jacobitz, 67 Kan. 244, 72 Pac. 846. Frank error, even for a period extending over many Leslie was entitled to a judgment enjoining years, as accomplishing by estoppel a change the sale of more than an eighth interest in the in the equitable title to the property. The land. The considerations that permit the mother's election to take under the will full owner of a tract to obtain an injunction could not have such an effect. That was a against its sale as the property of some one proper proceeding in any event, having no else, apply with equal force where an effort necessary connection with this land, which is made to sell upon execution an interest was not specifically referred to by the testa- | larger than may rightfully be subjected to tor.

the payment of the judgment. [2] 2. The bank contends that the deed The judgment will be modified to the exexecuted by J. F. Leslie purported to convey | tent indicated, and, as so modified, affirmed. only the interest arising under the will, and | All the Justices concurring. therefore that it conveyed nothing at all, since no title whatever was derived from that source. Considering the language of the deed in connection with the undisputed facts it is clear that the grantor intended to convey all the interest he had in the prop

HALL V. KANSAS CITY TERRA COTTA erty. He supposed it to be an undivided

CO. et al. (No. 19850.) one-fourth, subject to a life estate in his (Supreme Court of Kansas. Jan. 8, 1916.) mother, 'when, in fact, it was a present right to an undivided one-eighth; he supposed

(Syllabus by the Court.) that he derived what title he had from the 1. GARNISHMENT Om51–PROCEEDS OF BUILDwill, when, in fact, he derived it from the ING CONTRACT. government by operation of law. He was

Where a defendant corporation assigned to

a bank the proceeds of a contract due and to mistaken as to the extent and as to the ex- I become due for furnishing materials and labor act source of his title, but knew in a general to a building contractor, such assignment is way that an interest in the land came to

valid as against a garnishment of the funds in him through the death of his father. Since

the hands of the building contractor. he obviously intended to dispose of all the Cent. Dig. $$ 74, 97–101 ; Dec. Dig. Om51.)

[Ed. Note.-For other cases, see Garnishment, interest he had, and since he employed words

2. CHATTEL MORTGAGES On 5REGISTRATION sufficient to convey even more, the deed --NECESSITY-GARNISHMENT. should be interpreted as conveying that Such an assignment is not a chattel mortmuch. 13 Cyc. 656, 657; 8 R. C. L. 1060. gage requiring registration to be valid against [3] 3. Upon the death of his mother (May

the claim of another creditor proceeding by

writ of garnishment. 17. 1913) J. F. Leslie acquired from her an [Ed. Note.--For other cases, see Chattel Mortadditional eighth interest in the property. gages, Cent. Dig. $$ 4-13, 16; Dec. Dig. ww5.] As he had already executed a warranty deed to his son for a quarter interest, this newly Appeal from District Court, Montgomery acquired title doubtless inured to the benefit County. of the grantee. Gen. Stat. 1909, $ 1656. But Action by W. C. Hall against the Kansas in the meantime the bank had obtained a City Terra Cotta Company, wherein the judgment against him, the lien of which at Southwest National Bank of Kansas City, tached to his interest in the land as soon as Mo., was impleaded. From a judgment for he received it, and remained an incumbrance

| plaintiff, interpleader appeals. Reversed, notwithstanding the immediate vesting of

| with directions to render judgment for intitle in Frank Leslie. Bliss V. Brown, 78 terpleader. Kan. 467, 96 Pac. 945.

Elis, Cook & Barnett, of Kansas City, Mo., [4] 4. It follows that the bank was en- and W. E. Ziegler, of Coffeyville, for appeltitled to sell upon execution an undivided lant. A. R. Lamb and J. H. Keith, both of one-eighth interest in the land, being the in- Coffeyville, for appellee.

DAWSON, J. The plaintiff, W. C. Hall, 1 “The purpose of this assignment is to transfer commenced this action on October 12, 1912, to assignee the net contract price, that is to against the Kansas City Terra Cotta Com

say, the sums due and to accrue upon this con

tract to assignor over and above necessary expany to recover on the defendant's promis penditures of like nature at the point of consory note, and on the same day caused gar struction-no allowances for outlays or expendi. nishment proceedings to be served on Albert

Jodon Albert | tures at point of manufacture to be made ex

cept upon written consent of assignee. Neville, a Coffeyville contractor, Neville, the

"To avoid embarrassment to business of asgarnishee, answered and alleged that on July signor and to relations of assignor with contract26, 1912, he had entered into a written con

ing parties, assignor is hereby made agent of as

I signee, to receive and receipt for sums due and tract with the defendant, the Kansas City

payable and to become due and payable upon Terra Cotta Company, for certain materials the above assigned items; however, same to be to be delivered to him at Coffeyville on or for account and use of assignee, and all sums so before September 20, 1912. Other allegations

collected by said assignor to be forthwith turncovered failure of the terra cotta company

ed over to assignee for credit in pursuance of

the purpose above stated. Provided however, to comply in full with its contract, conse that this agency is to be subject to revocation by que

damages to garnishee, including freight assignee, and right of accounting at any and all bills which he was compelled to pay for the times is expressly reserved." defendant, etc. He also pleaded that on No

pleaded that on No. The district court found that the terra vember 16, 1912, he had been notified by the cotta company was indebted to the bank, and Southwest National Bank of Kansas City that for the purpose of securing the same and that the claim of the terra cotta company to procure a further loan wh

to procure a further loan which was then had been assigned to it on September 16, 1912, made, the contract between Neville and the and advising him that all the proceeds of his terra cotta company was assigned and delivcontract should be paid to the bank. He also ered to the bank on September 16, 1912; that prayed that the bank should be impleaded the bauk did not notify Neville until about a and required to set up its rights, and that he

month after this action and garnishment be protected.

were begun. The court's judgment, in part, By leave of court, the bank filed its answer proceeds thus: and cross-petition, and by agreement of par

"The court further finds that said assignment,

I taken and considered in connection with a numties, and with the approval of the court, Nev

ber of similar transactions between the said ille, the garnishee, was permitted to pay Terra Cotta Company and the bank, and their into court a sum of money and was discharg. method of doing business and course of dealing, ed. This action thereupon proceeded between

as shown by the evidence, is and was a conveythe plaintiff and the interpleading bank.

ance intended to operate as a mortgage of per

sonal property, and that it was not accompaIncorporated in the terms of the terra cot | nied by a delivery to the bank of the property, ta company's note of September 16, 1912, to nor was it followed by any actual or con the bank was the following:

change of possession of the property covered by

the conveyance. The court further finds that “Having deposited with said bank as collat- neither said assignment from said Terra Cotta eral security (being the legal holder) for the pay- Company to said bank, nor any copy thereof was ment thereof, and also for all other present or ever filed or made of record in the office of the future demands or claims of any kind of the said register of deeds of Montgomery County, Kan., bank against the undersigned, due or not duel or elsewhere, and that the said assignment is (give brief description or summary of collateral void as against the plaintiff, W. C. Hall."

re), sundry contracts which the makers and indorsers hereof hereby authorize said bank, or

From this judgment and its incidents the its president or cashier, to sell without notice bank appeals. at public or private sale at option of said bank (1) The general rule is that garnishment, or its assigns (and with the right to said bank like a or its assigns to be the purchaser of all or any

like other proceedings in invitum, only affects part of said collateral, or any such sale), in the actual property, money, credits, and ercase of nonperformance of the promise, applying fects of the debtor in the hands of the garthe net proceeds to the payment of the note, nishee, and the rule relating to bona fide including interest, and accounting for the sur-lheid plus, if any, and in case of deficiency, promise

16. holders or purchasers without notice has no to pay said bank, or its order, the amount there application. Investment Co. v. Jones, 2 Kan. of forthwith after such sale, with interest as App. 638, 42 Pac. 935; Bradley v. Byerley, 3 provided above; and in case of any exchange of, Kan. App. 357. 42 Pac. 930; Johnson v. or additions to, the collaterals above named, the provision of this note shall extend to such new brant, 50 Nin. To

Brant, 38 Kan. 754, 17 Pac. 791; Lumber Co. or additional collaterals. The margin of col-v. Trust Co., 54 Kan. 124, 37 Pac. 983; Bank laterals to be kept satisfactory to said bank, or y. Bank, 80 Kan. 205, 207, 101 Pac. 1005; in default thereof, the note to become due and Nason Saunders. S9 Kan. 300. 131 Pac. payable."

562. In 20 Cyc. 1012, it is said: The instrument purporting to assign the

"Where the principal defendant has made a Neville contract to the bank professed on its valid a'ssignment of the garnishce's indebtedness, face to be an "Assignment of Collateral, Con or conveyance of the property in his possession tracts for Work and Material.” In sub belonging to such defendant, before the service stance it recited that the terra cotta company

of the summons upon the garnishee, the latter

cannot be charged on account of such debt or was a customer of the bank, indebted to it, property. and contemplated further indebtedness, and | "The above rule is especially applicable to bills to secure the payment thereof. the debtor set of exchange, promissory notes, and other evi

dences of indebtedness, and where such paper is over to the bank certain items including the

assigned or transferred in good faith before the

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