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[2] It will thus be seen that appellant's rights, if any, depend entirely upon the levy and sale of respondent's judgment. It must be remembered that this judgment is one obtained against the receiver for the possession of mortgaged goods, which mortgaged goods the receiver was holding as the receiver of the mortgagor, and that the only title which the receiver had, and therefore his only right of possession in and to such property, was under and by virtue of the title and right of possession formerly in the mortgagor, This judgment vested in the respondent identically the same rights as he would have acquired if no receiver had been appointed; and, the mortgagor having refused to surrender possession, respondent, in an action of replevin against such mortgagor, had procured judgment.

erty therein aside from the judgment against | could pass thereby. High on Receivers (4th the said receiver. The complaint prays that Ed.) § 141; Smith on Receivers, § 45; 34 Cyc. the judgment of the mortgagee against the 233. receiver be decreed to be the property of the mercantile company; that the chattel mortgage, which formed the basis of the mortgagee's judgment, be decreed to be void and satisfied as to plaintiff; that plaintiff be decreed to have a valid and subsisting lien upon said judgment by virtue of its levy of execution thereon; that the sheriff's sale made under such execution be decreed to pass a good and sufficient title to said judgment to the purchaser at such sale; that the receiver and the defendant bank be decreed to pay over to the purchaser of said judgment on execution sale the moneys in his hand or on deposit with said bank; that the surety company be required to pay plaintiff, upon the appeal bond given by it, the amount for which it shall be liable; that the mortgagee be restrained during the pendency of the action, and, upon final decree be perpetually restrained and enjoined, from issuing an execution upon her judgment, from in any manner attempting to enforce the same, from asserting any right, title, or interest therein, and from interfering with the purchaser thereof at the sheriff's sale in his ownership and enjoyment thereof; that plaintiff have such other and further relief as may be just, and costs.

A clear understanding as to the nature of the chattel mortgage and the proceedings had thereunder may be obtained by reference to the two decisions of this court in the case of Albien v. Smith, 24 S. D. 203, 123 N. W. 675, and 26 S. D. 552, 128 N. W. 714.

An examination of the complaint herein, including the prayer for relief, reveals the fact that, while such complaint contains an allegation to the effect that, under its execution, the plaintiff levied upon money (the proceeds of the stock of merchandise upon deposit in defendant bank to the credit or in the name of the receiver), yet the prayer of the complaint, wherein it asks that the receiver and the bank be directed to pay over this money to whomsoever shall be the purchaser of the judgment, asks for a relief which could not be granted to such purchaser, provided there was also a levy upon such money. In its brief herein appellant states: "It will be noticed that plaintiff's execution was not levied upon the mortgaged property itself, * but that it was levied upon a judgment rendered in favor of Mrs. Albien against the receiver of the vendee of the mortgagor." This statement in the brief is consistent with the prayer of relief, and we shall consider the same true and treat the complaint as though it contained no allegation of a levy upon the money held by the receiver.

[1] Moreover, if the appellant had caused its execution to be levied upon money belonging to the receiver, such levy would have been futile and of no validity, and no title

[3] Upon what possible theory can appellant, claiming the mortgage invalid as against it, but conceding it valid as against the mortgagor, contend that a judgment based upon such mortgage became in effect the property of the judgment debtor and, as such, subject to levy against the said judgment debtor in an action brought by the party claiming a right to procure a superior lien to that of the mortgage? Appellant has no rights which it can acquire by virtue of or under respondent's judgment. Its rights, if any, are opposed to and in conflict with any rights that could be acquired under respondent's judgment. To see the nature of appellant's rights, one need but consider what would be its rights, provided no receiver had been appointed and respondent had secured a judgment in replevin against the mercantile company, which judg ment had not yet been satisfied either by the delivery of the property or by the payment of the value thereof. The right of appellant would be to satisfy the judgment out of that property, and, while it might have a right superior to respondents to the extent of its judgment, it could by no process or procedure based upon its judgment obtain any rights in respondent's judgment. The only thing that prevents appellant pursuing its direct remedy by levy and sale of the property of its debtor, as it might, provided there had been no receiver, is the fact that this property is in the hands of the court and not subject to levy and sale; but that does not prevent its bringing a proper action in the nature of a creditor's bill through which to procure an adjudication of the relative rights and interests of all parties in and to the assets of the mercantile company. An execution sale forms no basis for such an action, and in such an action appellant could acquire no rights under the judgment of respondent, but would be protected in its rights (if it had rights in equity superior to those of respondent) in spite of and in opposition

should be' vacated, must consider whether A city, in determining whether a street the street is necessary for public use and convenience, and sufficiently traveled to justify its maintenance at public expense; and the cated street is material only as bearing on use which a city proposes to make of a vathe validity of the vacation.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 722, 844, 1429, 1496; Dec. Dig. § 657.*]

5. MUNICIPAL CORPORATIONS (§ 657*)—VACATION OF STREETS-POWER.

to respondent's rights under her judgment. | 4. MUNICIPAL CORPORATIONS (§ 657*)—VaAppellant has cited the case of Stephens v. CATION OF STREETS-POWER. Perrine, 143 N. Y. 476, 39 N. E. 11. This case, while it is an authority in support of the proposition that respondent's mortgage was void as against appellant's claims as a creditor of the mercantile company, and would perhaps support a claim that any judgment based thereon is void against appellant, and that appellant might hold respondent accountable for any moneys collected thereon, yet is no authority for the proposition that appellant may enforce its rights by any such procedure as has been attempted in this case; neither has it cited any other authority announcing any rule of law under and by virtue of which it could possibly find support for the procedure followed herein. If the facts pleaded were such as would support a decree decreeing respondent's judgment "to be the property of the * mercantile company," then it is the property of Smith, as the receiver of such company, and appellant could not make a valid levy thereon so as to pass any title to an execution purchaser. What we have said in relation to appellant's gaining any rights under or through a levy upon and a sale of respondent's judgment applies to the alleged levy upon the appeal bond.

The order appealed from is affirmed.

Where the travel on a street was merely to and from the rear of lots abutting thereon, the action of the city in vacating a part of the street in the center thereof, leaving a strip on each side through which access to the lots could be had, was not an abuse of discretion; the vacation not affecting ingress or egress.

[Ed. Note. For other cases, see Municipal' Corporations, Cent. Dig. §§ 722, 844, 1429, 1496; Dec. Dig. § 657.*]

6. MUNICIPAL CORPORATIONS (§ 386*)-VACATION OF STREETS-DAMAGES.

with by the vacation of a street, the owners thereof had no claim for compensation.

Where access to lots was not interfered

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 929; Dec. Dig. § 386.*]

Appeal from District Court, Polk County; Charles S. Bradshaw, Judge.

Suit to set aside an ordinance vacating a street, and to enjoin its use for the storage of city machinery, resulted in a decree dismissing plaintiffs' petition. The plaintiffs

WALKER et al. v. CITY OF DES MOINES appeal. Affirmed.

et al.†

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[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. 88 722, 844, 1429, 1496; Dec. Dig. § 657.*]

3. MUNICIPAL CORPORATIONS (8 657*)-VACATION OF STREETS-POWER.

The power to vacate streets conferred on cities may not be exercised arbitrarily and in disregard of the trust to hold the fee of streets for the use of the public; but where fraud is not charged the vacation of a street is within the discretion of the city council, and not subject to control by the courts.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. 88 722, 844, 1429, 1496; Dec. Dig. § 657.*]

W. S. Ayres and Oscar Strauss, both of Des Moines, for appellants. Robert O. Brennan, H. W. Byers, and Eskill Carlson, all of Des Moines, for appellees.

LADD, J. The plaintiffs have title, as trustees, to lot 3 and the south 321⁄2 feet of lot 2, in block 1, East Des Moines, now within the limits of the city of Des Moines, but several blocks from the business portion of the city. These lots are about 1121⁄2 feet on First street, running north and south, and lot 3 lies along Des Moines street on the south, which commences at a narrow strip of land along the east side of the Des Moines river, known as "Water Power Place," and

That

runs to the east. "Water Power Place" also
forms the west boundary of the lots.
part of Des Moines street west of First
street is a cul de sac, and is 80 feet wide and
124 feet long on the north side and 2 feet
more on the south side. It is neither curbed

nor paved. There are four small dwellings
on the lots, but none facing Des Moines
street, and there is no alley along the north
line of the lots. The streets were dedicated
by the owners of the land in platting it into

lots and blocks in 1854, and afterwards confirmed by them in 1859, and have been traveled for more than 20 years. On October 2,

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

1912, the city council of Des Moines passed | city could not divert it to other uses (Pettit an ordinance in words following:

"Section 1. That there be and is hereby vacated all of the part of Des Moines street in the city of Des Moines bounded as follows: Beginning on the west line of East First street at a point sixteen (16) feet south of the northwest corner of East First street and Des Moines street; thence west on a line parallel with the north line of Des Moines street one hundred (100) feet; thence south thirty-one (31) feet; thence east one hundred (100) feet to the west line of East First street; thence north forty-one (41) feet to the point of beginning.

"Sec. 2. That portion of Des Moines street by section 1 hereof vacated be and the same is hereby dedicated to the use of the city of Des Moines for the use and occupancy of a public yard."

Prior to this the city council had resolved: "That the Sup. of the Dept. of streets and public improvements is hereby authorized to construct a suitable storage and warehouse building on Des Moines street between East First street and the Des Moines river, the cost of the same not to exceed $1,000.00." And, notwithstanding plaintiff's protest, the department of public streets and improvements proceeded with the construction of a building with north wall nine feet high and the south wall 12 feet, with gravel roof, to be used in storing wagons, carts, flushers, and other tools of the department. The plat

indicates the situation:

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[1, 2] Without questioning the power of the city to vacate streets and alleys, the appellants contend that this may not be done by the city in order to devote the same to its private use. The fee to all streets and alleys is in the city, and, as contended by appellants, title thereto is held by it in trust for the general public. This was laid down on great consideration in Clinton v. Railway, 24 Iowa, 455. But the Legislature has authorized the city council, by ordinance, to withdraw a street or alley from such public use by vacating it. See section 751, Code. And after vacating the same the city, through its council, may dispose of the ground so vacated "in such manner and upon such terms as the council shall direct." Section 883, Code. When continued as a street, the

v. Grand Junction, 119 Iowa, 352, 93 N. W. 381); but having effected its vacation the title, freed from the trust, continues in the city, and it may convey the ground vacated to another, to be used for private purposes. Marshalltown v. Forney, 61 Iowa, 578, 16 N. W. 740; Dempsey v. Burlington, 66 Iowa, 687, 24 N. W. 508; Harrington v. Railway, 126 Iowa, 388, 102 N. W. 139; Spitzer v. Runyan, 113 Iowa, 619, 85 N. W. 782. See Chrisman v. Brandes, 137 Iowa, 433, 112 N. W. 833. As said in Tomlin v. Railway Co., 141 Iowa, 599, 120 N. W. 93, 22 L. R. A. (N. S.) 530: "When a street is properly vacated, it ceases to be a street. The right of the pub. lic therein is divested, and for all of the essentials of this case it becomes, in effect, private property. Elliott on Roads and Streets (2d Ed.) § 136. And when a street ceases to be public by reason of its vacation it is private property, within the meaning of the law, and a road located thereon does not entitle an abutting owner to damages." If, then, the city became the owner of the vacated ground, it could make use of the same for any legitimate purpose, and the erection of the structure for the storage of vehicles and tools ought not to be declared an improper use, unless shown to constitute a nuisance.

[3] But it is well settled that, though the

city has the power to vacate its streets and bitrarily and in disregard of the trust for alleys, this power may not be exercised ar

the use of the public. This doctrine was recognized in Williams v. Carey, 73 Iowa, 194, 34 N. W. 813, and is alluded to in several of the cases above cited.

The rule is well stated in 2 Elliott on Roads and Streets, § 1182: "Whether it is expedient to discontinue a highway is a question for legislative decision, and when the authority to discontinue is delegated to local officers, and no restrictions are placed upon its exercise, the officers are invested with a very broad discretion, and unless this discretion has been abused the courts cannot interfere."

The subject was touched in Spitzer v. Runyan, 113 Iowa, 619, 85 N. W. 782, where, in upholding the vacation of a street for depot purposes, the court, speaking through Waterman, J., said: "We must look further, then, for the statutes that govern. Section 751, among other powers given, authorizes cities and towns to vacate streets and alleys. It is said by appellants that this power can be exercised only for some public purpose, and that the purpose here is not public. While the power to vacate is not arbitrary, and may to some extent be controlled by the courts, the cases are exceptional where such interference is authorized. McLachlan v. Town of Gray, 105 Iowa, 259 [74 N. W. 773]. See, also, 2 Dillon, Municipal Corporations, 666. We have held that a city council may divert the ground covered

by an alley which is vacated from public to | to divide the land acquired. It was held private use by granting it to an individual. in Shue v. Commissioners, 41 Mich. 638, 2 Dempsey v. City of Burlington, 66 Iowa, 687 [24 N. W. 508]. Likewise, that a city may vacate an alley for the purpose of allowing it to be devoted to private use. City of Marshalltown v. Forney, 61 Iowa, 578 [16 N. W. 740]. We do not feel called upon here to go to the extent of the doctrine announced in these cases, in order to decide the issues before us. Ostensibly, the vacation and conveyance of the streets and alleys in question were for the public good. Where no fraud is charged, the determination of such a question is within the discretion of the council, and not subject to control by the courts."

In Smith v. McDowell, 148 Ill. 51, 35 N. E. 141, 22 L. R. A. 393, the vacation of a street open and used by the public for the occupancy of an individual was denounced as illegal, the court, after reviewing the authorities, saying: "The municipal corporation holding and controlling its streets in trust for the use of the general public, without power of converting them to any other use, it follows, necessarily, that the right to 'vacate the same' is to be exercised only when the municipal authorities, in the exercise of their discretion, determine the street is no longer required for the public use or convenience. It is not necessary to here discuss or determine whether the courts will, in any case, interfere to prevent the abuse of municipal discretion in the respect mentioned, for the reason that it is not sought to restrain the exercise of such discretion, but to prevent the perversion of their power to the promotion of private interests, in violation of the trust upon which the streets are held. * ** In this case there is no pretense that the public interests required the vacation of any part of the street, or that any public interest, local or general, would be subserved by the proposed vacation. The ordinance, professedly and in terms, proposed to destroy the public right and use, for the sole purpose of enabling a private person to occupy a portion of the street with a permanent structure, appurtenant to his building abutting upon the street. This the municipal authorities are not empowered to do, and their action was ultra vires and void."

In Horton v. Williams, 99 Mich. 423, 58 N. W. 369, the Supreme Court of Michigan declared the proceedings for the vacation of an alley invalid, saying: "There is another and fatal objection to the proceedings taken by the common council. It shows upon its face that the inducement for the council's action was the division of the property attempted to be acquired by the vacation between the defendant and the city. The council was set in motion by the defendant, whose apparent motive was to procure a valuable frontage for his own use, and in

N. W. 808, that every road must be opened or closed upon its own merits. 'It is easy to see,' says the court, 'how great mischief and wrong might be done by uniting several different schemes. Combinations of separate interests are not allowed.' The affidavits of the five aldermen who voted for the resolution of vacation appear in this record; and, while they depose that the alley was unsightly, they also say that the city would thereby acquire a valuable property interest in the way of a city hall and engine house, without expense to the city. The same motive might suggest the vacation of any street. The advantage which the public derives from the discontinuance of a way must arise from the vacation itself, rather than from the use to which the property is put, or from the fact that the city, through a deal with the individual specially interested, is to have an interest in the property acquired by such vacation. A city cannot barter away streets and alleys; nor can it do indirectly, by invoking its power of vacating ways, what it cannot do directly. Streets and alleys are not to be vacated at the instance of individuals interested only in the acquisition of the vacated property, and the exercise of legislative discretion in such matters must, at least upon the face of the record, be free from affirmative evidence that such discretion was invoked for individual gain, and its exercise influenced by an offer to divide the property acquired."

[4] As the street and alleys are held by the city in trust for the general public, it must, in all matters relating thereto, act in behalf of the public, and may not dispose of them in disregard of public good, in order to subserve the private interests of the municipality or of others, unless this be in recognition of a public purpose approved by the Legislature. The sole inquiry should be whether the way is necessary for public use and convenience, and sufficiently traveled to justify its maintenance at the public expense; and the matter of subsequent disposition should be postponed until the feasibility of vacation has been settled, or at the least treated as of secondary consideration. If properly vacated, the city may devote the ground to whatever legitimate purpose it may elect, or otherwise dispose of the same. The use, then, to which the defendants propose to make of the ground is material only as it bears on the validity of the ordinance effecting the vacation.

[5] There was little or no travel on the portion of the street below First street, and this was to and from the rear of the lots in hauling coal and the like for the use of tenants. A space 16 feet wide on one side of the part vacated and 23 feet wide on the other was left, through which access to the back of the lots might be had for these and

give certain warnings at the approach of a A statute requiring a railroad company to crossing does not abrogate the common-law obligation which requires a company to give appropriate warnings in accordance with the danwarnings are an insufficient protection to the ger of the place; therefore, where the statutory public, the railroad company is bound to give additional warning.

egress from First street was interfered with. 15. RAILROADS (§ 307*)—INJURIES TO PERSONS The thought of the city seems to have been ON CROSSINGS-SIGNALS. that the street was not essential to the convenient use of the lots on either side, and was not traveled by the public generally; that the portions on either side of the part vacated would serve as alleyways, be ample for and fulfill every purpose for which the street had been used, and as the evidence tending so to show was uncontradicted, and its vacation would relieve the city of the cost of maintenance, it ought not be said that enacting the vacation ordinance the city 6. RAILROADS (§_330*)-INJURIES TO PERSONS council abused the broad discretion with While a traveler must look and listen for which the law has clothed it, or arbitrarily approaching trains, he may assume, upon apviolated the obligation of the trust by virtue proaching a crossing, that the railroad comof which it held title to the street in ques-pany will give the usual warnings, and will exercise the care required of it in approaching such dangerous places.

tion.

[6] Access to plaintiffs' lots not having been interfered with, they could have no claim for compensation. Ridgway v. Osceola, 139 Iowa, 590, 117 N. W. 974. And therefore interference was rightly refused on this ground also. There was no error in denying the relief prayed. Affirmed.

WILSON v. CHICAGO, M. & ST. P. RY. CO.†
(Supreme Court of Iowa. June 7, 1913.)
1. CONTINUANCE (§ 26*)-ABSENT WITNESSES
-RIGHT TO CONTINUANCE.

As the granting of a continuance for ab sence of witnesses is largely discretionary, it was not improper for the trial court to deny a motion for a continuance asked on that ground, where it appeared that, although defendant's counsel knew of the assignment of the case on Thursday, he did nothing toward procuring the witness or her testimony until the following Monday, and failed to procure her attendance in time to testify.

[Ed. Note.-For other cases, see Continuance, Cent. Dig. §§ 74-93; Dec. Dig. § 26.*] 2. CONTINUANCE (§ 14*) PLEADING SURPRISE.

AMENDMENT OF

In an action against a railroad company for wrongful death, it is not improper to deny a continuance for surprise following the amendment of plaintiff's petition, where the amendment stated no new cause of action, but merely specifically stated the nature of the crossing at which deceased was killed.

[Ed. Note.-For other cases, see Continuance, Cent. Dig. §§ 25, 99-112; Dec. Dig. § 14.*] 3. WITNESSES (§ 405*)-CROSS-EXAMINATION— IMPEACHMENT.

A party is bound by statements of a witness brought out on cross-examination as to collateral matters, and he cannot introduce impeaching evidence.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 1273, 1275; Dec. Dig. § 405.*] 4. RAILROADS (§ 316*)-INJURIES TO PERSONS CROSSING EXCESSIVE SPEED - NEGLI

AT

GENCE.

No speed in a train moving in the open country is in itself negligence as to a person on a crossing, but an excessive speed may be considered on the question of negligence where the crossing is a peculiarly dangerous one.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1006-1008, 1011, 1012; Dec. Dig. § 316.*]

[Ed. Note.--For other cases, see Railroads, Cent. Dig. §§ 972-977, 979, 980; Dec. Dig. § 307.*]

AT CROSSING-DUTY OF TRAVELER.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1071-1074; Dec. Dig. § 330.*] 7. RAILROADS (§ 333*)-INJURIES TO PERSONS AT CROSSINGS-DUTY OF TRAVELER TO EXERCISE PRECAUTIONS.

the view at a crossing is obstructed, a traveler Where a crossing is obstructed, or where

should use the same caution as would be used by a reasonably prudent person under like circumstances, and if he can hear or see an approaching train, even though no signal is given, he should wait, unless as an ordinarily prudent person he has reason to believe that he could pass in safety; it being the duty of a traveler to exercise all ordinary care under the circumstances to avoid injury.

[Ed. Note.-For other cases. see Railroads, Cent. Dig. 88 1080-1083; Dec. Dig. § 333.*] 8. DEATH (§ 58*)—ACTIONS-PRESUMPTIONS. Where there were no eyewitnesses to an accident at a railroad crossing which resulted in the death of plaintiff's intestate, it may be inferred from the instinct of self-preservation that deceased used all ordinary care at the time of the accident, but this presumption is not conclusive, and may be rebutted by evidence of the surrounding circumstances.

[Ed. Note.-For other cases, see Death, Cent. Dig. $$ 75-78; Dec. Dig. § 58.*] 9. DEATH (§ 58*)

PROOF.

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ACTIONS

BURDEN OF

In an action for the death of one killed at a crossing where there were no eyewitnesses to the accident, plaintiff has the burden of negativing deceased's contributory negligence.

[Ed. Note. For other cases, seo Death, Cent. Dig. §§ 75-78; Dec. Dig. § 58.*]

10. DEATH (§ 58*)-ACTIONS-PRESUMPTIONS.

Unless the act of deceased when he was

killed on a railroad crossing was in itself negligent, the presumption that he was killed while in the exercise of reasonable care will support a finding to that effect in the absence of rebutting evidence.

[Ed. Note. For other cases, see Death, Cent. Dig. 88 75-78; Dec. Dig. § 58.*]

11. RAILROADS (§ 350*)-INJURIES TO PERSON AT CROSSING-ACTIONS EVIDENCE-SUFFICIENCY.

In an action against a railroad company for the death of one killed at a crossing, evidence on the question whether plaintiff was in the exercise of due care held for the jury.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.*]

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

† Rehearing denied September 22, 1913.

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