We, therefore, are of the opinion that the judgment ought to be affirmed, with costs. Such is the order. FRICK and MCCARTY, JJ., concur. MEMORANDUM DECISIONS. PEOPLE v. GISH. (Cr. 349.) (District Court of Appeal, Third District, California. Sept. 2, 1916.) Appeal from Superior Court, Napa County; Henry C. Gesford, Judge. C. H. Gish was convicted of an offense, and he appeals. Appeal dismissed, and record stricken from the files. E. S. Bell, of Napa, for appellant. U. S. Webb, Atty. Gen., and J. Charles Jones, Deputy Atty. Gen., for the People. BURNETT, J. The record in the above-entitled cause has been filed in this court. It contains, however, no notice of appeal, either from the judgment or the order denying the motion for a new trial. Neither has there been any appearance of appellant in this court. We may say, though, that we have read the record, and there appears to be no doubt of defendant's guilt, or that he had a fair trial. The purported appeal is dismissed, and the record stricken from the files. We concur: CHIPMAN, P. J.; HART, J. som. HARRIS v. SANSOM. (No. 8987.) (Supreme Court of Colorado. Nov. 6, 1916.) En Banc. Error to District Court, City and County of Denver; H. P. Burke. Judge. Action between C. B. Harris and William SanFrom the judgment, C. B. Harris brings error. Supersedeas denied, and judgment affirmed. Philip S. Van Cise, of Denver, for plaintiff in error. Frank McLaughlin, of Denver, and Norman T. Mason and Eben W. Martin, both of Deadwood, S. D., for defendant in error. PER CURIAM. This action involves the disposition of $2,031 paid to the clerk of the court by the American Smelting & Refining Company, being the proceeds of a car of ore claimed to have been shipped to it by the defendant in error. The controversy grew out of a contract between the parties, under which it was alleged to have been shipped, etc. We have given the assignments careful consideration, and are of opinion that the record fails to disclose any prejudicial error, for which reason the application for supersedeas will be denied, and the judgment affirmed. Supersedeas denied; judgment affirmed. GABBERT, C. J., and BAILEY, J., not participating. ROUTT COUNTY SENTINEL PUB. CO. v. INDUSTRIAL BUILDING & LOAN ASS'N et al. (No. 9040.) (Supreme Court of Colorado. Oct. 2, 1916.) En Banc. Error to District Court, Routt County; John T. Shumate, Judge. Suit between the Routt County Sentinel Publishing Company and the Industrial Building & Loan Association and Fred S. Follett, Public Trustee for the County of Routt. To review an order appointing a receiver, etc., the Publishing Company brings error, applying for supersedeas. Application for supersedeas denied, and action dismissed. Joseph K. Bozard, of Steamboat Springs, for cum, of Denver, and Gooding & Gooding, of Steamboat Springs, for defendants in error. PER CURIAM. This writ of error and application for supersedeas is from an order appointing a receiver, etc., for certain real property in Routt county pending the result of the suit for its possession. Upon review of the entire record, we find no error in this respect. for which reason the application for supersedeas will be denied, and the action dismissed. Supersedeas denied, and action dismissed. GABBERT, C. J., and BAILEY, J., not participating. WATTS v. LOUTHAN et al. (No. 8844.) (Supreme Court of Colorado. July 21, 1916.) En Banc. Error to County Court, City and County of Denver; Ira C. Rothgerber, Judge. Action between George T. Watts and Howard C. Louthan, executor of the will of Lucinda B. Pike, deceased, and others. To review a judgment for the latter, the former brings error, and applies for writ of supersedeas. Application denied, and judgment affirmed. Tolles & Cobbey, of Denver, and Albert E. Dunning, of C. Los Angeles, Cal., for plaintiff in error. V. Mead and James G. Rogers, both of Denver, for defendants in error. PER CURIAM. Application for supersedeas denied, and judgment affirmed. GARRIGUES and SCOTT, JJ., not participating. In re BURKERT. (No. 2177.) (Supreme Court of Nevada. Oct. 2, 1916.) In the matter of the disbarment of C. O. Burkert as an attorney at law. Respondent suspended from and J. H. Evans, both of Tonopah, for Nevada practice until further order. Hugh H. Brown Bar Ass'n. C. O. Burkert, of Oakland, Cal., pro se. C. O. Burkert, a member of the bar of the COLEMAN, J. A verified petition, charging state of Nevada, with unprofessional conduct while acting in the capacity of attorney, was filed in this court on the initiative of the Nevada Bar Association. To the petition the respondent filed an unverified answer, denying the allegations of misconduct alleged in the petition. In a letter to one of the attorneys in this proceeding, the respondent wrote as follows: "I fully appreciate your position, and do not feel justified in asking for any more favors, and therefore I presume there is nothing for you to do but to go ahead. There will be no contest. The answer filed some time ago was purely formal, and was filed only for the purpose of formally giving me more time. It is not claimed that the facts alleged do not constitute sufficient ground for suspension or disbarment. At the hearing, oral and documentary evidence was introduced_in support of the allegations of the petition. The respondent is traveling the downgrade of the highway of life. It would serve no useful purpose to discuss the facts of the case, and the "mantle of charity should be over all." Suffice it to say that the allegations of the petition are fully sustained by the evidence. It is ordered that the respondent, C. O. Burkert, be, and he hereby is, suspended from the practice of the law in the state of Nevada until the further order of the court. NORCROSS, C. J., and McCARRAN, J., concur. MANEY EXPORT CO. V. CENTRAL GRAIN & COMMISSION CO. (No. 8088.) (Supreme Court of Oklahoma. Oct. 31, 1916.) Commissioners' Opinion, Division No. 2. Er H. C. Thurman, Judge. Action by the Maney Export Company against the Central Grain & Commission Company. Judgment for defendant, and plaintiff brings error. Reversed and remanded for new trial. Hills & Manatt of Enid, and Franklin & Carey, of Muskogee, for plaintiff in error. COFER v. STATE. (No. A-2633.) (Criminal Court of Appeals of Oklahoma. Sept. 23, 1916.) Appeal from Superior Court, Pottawatomie County; Leander G. Pitman, Judge. Oscar Cofer was convicted of violating the prohibitory law, and he appeals. Affirmed. Mark Goode, of Shawnee, for plaintiff in error. R. McMillan, Asst. Atty. Gen., for the State. PER CURIAM. On information filed in the superior court of Pottawatomie county, charging that Oscar Cofer, did unlawfully and feloniously and without authority of law keep and maintain a place located at 7 West Main street, in the city of Shawnee, and known as the "Stagg Pool Hall," in which place intoxicating liquors were kept for sale, the plaintiff in error was tried and convicted, and his punishment fixed at a fine of $50 and confinement in the county jail for a period of 30 days. From the judgment rendered on the verdict the defendant appealed, by filing in this court on January 13, 1916, a petition in error with casemade. No brief has been filed, and when the case was called on the assignment for final submission no appearance was made in behalf of plaintiff in error. Upon a careful examination of the record it appears that the evidence is sufficient to support the verdict, and the charge of the court fully and fairly presented the law of the case. No error being apparent, the judgment of the court below is affirmed. BURFORD, C. This was an action brought by the plaintiff in error against the defend: ant in error to recover certain amounts for overcharge in weight and for loss by misgrading upon certain contracts for the sale of grain. The plaintiff in error has filed his brief in accordance with the rules of this court; the defendant in error has filed no brief, and under such circumstances we are not required to search the voluminous record in this cause, to find a theory upon which to support the judgment, provided the brief of the plaintiff in error reasonably supports his allegations of error in the trial court. The assignments by the plaintiff are directed almost wholly to the rejection of testimony by the trial court. Certain of this rejected testimony related to the customs prevalent among grainmen. Upon an examination of this rejected testimony we are of the opinion that it was not competent under the state of the pleadings, inasmuch as, although the plaintiff had pleaded certain customs of the grain trade, it did not plead the particular custom, testimony in regard to which was rejected. This was necessary under the ruling of this court in Smith v. Stewart, 29 Okl. 26, 116 Pac. 182. Testimony as to the weights of the various cars delivered was rejected, upon the ground CLARKE & EATON CO. v. WARDEN INVESTMENT CO. (Supreme that the weighing had not been made within a (No. 13348.) reasonable time after the delivery of the car. Nov. 13, 1916.)* DeCourt of Washington. Upon this point we are not required to pass, partment 1. Appeal from Superior Court, Spoinasmuch as there may be different pleadings kane County; Wm. A. Huneke, Judge. Action and testimony upon a new trial. It does apby the Clarke & Eaton Company against the pear, however, that certain testimony, appar-Warden Investment Company and another. ently competent and material, was rejected by Judgment for defendants, and plaintiff appeals. the trial court. Among these instances appears the testimony in relation to the weighing of car No. 33577MP, which was rejected upon the ground that it did not appear when the car was weighed. From the testimony set out in the brief, it seems that there was a definite time fixed as to when the car was weighed. Whether there are other reasons which might justify the rejection of this testimony, we are unable to say, without the assistance of a brief from the plaintiff in error, or on examination of the record, which, in the absence of the brief, we are not required to make. The cause is reversed and remanded, with directions to grant a new trial. PER CURIAM. Adopted in whole. Affirmed. Peacock & Ludden, of Spokane, for plaintiff in error. Wakefield & Witherspoon and E. P. Twohy, all of Spokane, for defendant in error. PER CURIAM. The question in this case is whether a payment of interest amounting to $1,466.64, made upon a note secured by a real estate mortgage, should be credited upon a note executed by the defendant and held by the plaintiff. The trial court upon the issues of the case found that a settlement and stated account was had by the parties, and that the defendant had assumed this payment in addition to the note held by the plaintiff. The evidence plainly sustains this finding. The judgment must thereof be affirmed. END OF CASES IN VOL. 160 |