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About Daily capital journal. (Salem, Or.) 1903-1919 | View Entire Issue (April 13, 1911)
ARE TWO i PAIL CAPITAL JOURNAL. SALEM, OREGOJ., THURSDAY, APRIL 13. 1011. the capital journal E. HOFER, Editor and Proprietor. R. M. HOFER, Manager Independent Newspaper Devoted to American Principle and v. the ProKreu and Develowwnt of All Oregon Vfc Published Every Evening Except Sunday, Salem, Or. irt wv SUBSCRIPTION RATES: l LilS,. (Invariably In Advance) Daily, by Carrier, per year $6.00 Per month COc V) Jn Caily, by Mail, per year 4.W Per month S5t J " ' iiL?3. Weekly, by Mail, per year 1.00 81 montii 60c I FULL LEASED WIRE TELEGRAPH REPORT OREGON SUPREME COURT DECISIONS Fall Text Published by Courtesy of F. A. Turner, Reporter of the Snpreme Court Gallagher t. Kcllilier, ct ill, Douglas County. A. M. Gallagher, respondent, v. W. J. Kelllber and Sawyer, appel lants. Appeal from the circuit court for Douglas county. The Hoa J. W. Hamilton, judge. Argued and sub mitted March 23, i9U. 0. P. Coshow (Coshow & Rice, on brief) for re spondent. J. 0. Watson (Cardwell & Watson, on brief) for appellants. Eakln, C. J. Affirmed. This la an action In ejectment. Plaintiff alleges that he is the owner and entitled to possession of the fol lowing described real estate In Doug las county, Oregon, "the same being a part of the Donation Land Claim of George B, Finch, in township 27, south of range 5 west, of Willamette meridian, and particularly described as: Beginning at the northwest cor ner of the tract of land commanly known as the "Pine Grove Church Property," and running thence sou therly along the western boundary of said "Pine Grove Church Proper ty," to the southwest corner there of; thence easterly along the south ern boundary of said Church prop erty and the southern boundary of the said Donation Land Claim of George B. Finch, 10 feet and five Inches; thence northerly to the nor thern boundary of said "Pine Grove Church Property" at a point six feet 10 Inches easterly from the north west corner thereof, and thence wes terly along the northern' boundary of said "Pine Grove Church Property," six feet 10 Inches to the place of be ginning, said land described being a portion of that tract of land particu larly described In the deed from G. W, Genger and wife to the Trustees of the United Brethren Church of the Deer Creek Class of Douglas county, Oregon, and recorded in page 149 and 150 of Vol. 10 of the Deed Records of said Douglas county;" that until ousted by defendants plaintiff lias been in the open, notor ious, exclusive and adverse posses sion thereof, under a clalhi of owner ship for more than 20 years; and that on April 28, 1909, defendants by ousted plaintiff stealth unlawfully therefrom. Defendants deny that they ousted plaintiff from possession of the premises as alleged, or at all, with hold the same from him, which an swer amounts to a disclaimer. The cause was tried before the court without a jury, and the facts were found in favor of plaintiff. From the Judgment thereon defendants appeal. Eakln, C. J.: The real controversy at the trial was whether the descrip tion of the property, sought to be re covered, as set out In the complaint, will Justify a recovery without proof that It Is included in the description contained In the deed from Genger to the trustees. There being no issue as to plaintiff's ownership of the property, he confined his proof to the erection of a fence on the west ern line of the property and his oc cupancy of the premises from the year 1888. There was no proof to show the location upon the ground of the west line of the tract as described in the deed; nor does it appear from the complaint that the property described In the jdeed from Genger to the trustee Is the property known as the "Pine Grove Church Property,"' but that fact appears from the evidence. David Hunter, a witness for plain tiff, testified, in substance, that he is j acquainted with the Pine drove ( Church property; has known it for about 25 years; was for 15 years a trustee of the United Brethren church; that he knows where the west boundary of the property has been during that time; that ,in the fall of 1888 he helped build the fence on that line, -(referring to the fence rmoved by defendants) ; that "there was an understanding with Genger. He made some objections in regard to where the line ran, and he also said that what he lost at one end next to the creek he would gain on the j other, and he said all right, to put It up. I cannot say in what j way they agreed with Genger, only ( I know that It was questioned at the time we were talking about putting By Lydia E. Pinkham's Vegetable Compound The Change of Life is the most critical period of a woman's existence, and neglect of health at this time invites disease. Women everywhere should remember that there is no other remedy known to medicine that will so successfully carry women through this trying period as Lydia h. Pinkham's Vegetable Compound, made from native roots and herbs. Here is proof: JNatlck, Mass., "I cannot express what I went through during the Change of Life before MI tried Lyula Is. rinkhanrs Vegetable Com f j pound. I was in such a nervous condition I could not keep still. My limbs were cold. I had creepy sensations and could not sleep nights. I wan finally told by two phvslcians that I hnd a tumor. ' " I real one day of the wonderful Cures made Iby Lydia K. Pinkham's Vegetable Compound Jand decided to try it, and it bus made nte a well J woman. My neighbors and friends declare it has worked a miracle for inc. Lydin E. Pinkham's Vegetable Compound Is worth its weight in gold for women during this period of life. If it will help others you may publish this letter." Mrs. Nathan It, Greaton, CI ,o.MainSt.,Natiok,3Iass. nmni h'iiimi ANOTHER SIMILAR CASE. Cornwallville, N. Y. "I have been taking Lydia E. Pinkham's egetablo Compound for some time for Change of Life, nervousness, and a ilbroid growth. "Two doctors advised me to po to the hospital, but one day while I was awny visiting, I met a woman who told mo to take Lydia Pinkham's V cgetable Compound. I did so and I know it helped me wonderftdly. I am very thankful that I was told to try Lydia 13.1 Pinkham's Vegetable Compound." Mrs. "VYm. Boughton, Cornwallville, N. Y., Greene Co. The makers of Lydia E. Pinkham's Vegetable Com pound have thousands of such letters as those above they tell the truth, else they could not have been obtained for love or money. This medicine is no stranger it has stood the test for years. For 30 years Lydia E. Pinkham's Vegetable ComMund bus been the standard remedy for female ills. Jfo sick woman does justice to licfelf who will not try this famous medicine. Made exclusively from roots and herbs, and lias thousands of cures to its credit. f Mrs. Pink ham Invites all sick women to write her for advice. She has guided thousands to health free of charge. Address Mrs. Plnkuam, Lynn, Mass. up the new fence;" and that Genger I agreed that the fence should be put where It was built and It has re mained the boundary since 1883. The evidence Is conclusive that the United Brethren Church was in pos session of tho property to th"at fence all that time and that the fence was put on the western boundary on the division line between Genger's land and that of the United Brethren Church. This proof we think was, at least, prima facie sufficient to estab lish the western boundary of the tract described In the deed. In Turner v. Baker, 64 Mo. 238, it is said: "That when proprietors of contiguous estates, the boundaries of which are indefinite and unascer tained, agree upon the lines dividing their estates, the calls in their re spective deeds, fasten themselves upon the property to which they are thus applied, and the title passed by the conveyances covers and includes every part of the property so Identi fied as being comprehended within the description." This language is quoted with approval in Lennox v. Hendricks 11 Or. 33, 37. In Egan v. Finney, 42 Or. 599, Mr. Chief Justice Moore holds that a division line, agreed upon between adjacent own ers of real property, and acquiesced in for a long time, is a circumstance tending to show that It was built upon the true boundary. We think the possession of the tract to the fence by plaintiff and his grantors claiming under the deed, long acquiesced in, is. as against a stranger to the title, prima facie evi dence, at least, that the tract de scribed in the complaint is within the boundaries mentioned in the deed, and, therefore, evidence of posses sion of the property described In the complaint. Prior, actual possession of the land Is enough to enable the possessor to recover It against a mere trespasser who enters without any title. This rule concedes that he who secures possession of real prop erty thereby obtains a prior right against all persons except the owner, and Is recognized in , Browning v. Lewis,39 Or. 11, 17; and Sommer v. Compton, 52 Or. 173. Therefore, we conclude that, under the description In the complaint, plaintiff has estab lished a prima facie case. On the trial defendants admitted that they removed the fence as al leged In the complaint, and offered Borne evidence to establish that the true west line of the property de scribed in the deed to the trustees Is 8 or 10 feet ast of the old location of the west fence. Germond, deputy county surveyor, is the only witness who attempts to testify upon that matter. He says that he surveyed a piece of property there for Mr. Gal lagher and established the northwest corner of the Church property (which Is the beginning point for defendant's fence). He testlfiess to no facts in regard to the survey or the data from which he made it. This Is not competent evidence of the true loca tion of the corner or line but only "Just Say" HORLICK'S It Means Original and Eanulm HALTED MILK Thi Food-drink for All kgtu More healthful than Tea or Coffee. ( Agrees with the weakest dlgesh'on. Delicious, invigorating and nutritious. Rich milk, malted grain, powder form. A quick lunch prepared in a minute. Take no substitute. AtkforHORLICK'S. Others are imitations. 542; Moores v. Moores, 36 Or. 261; State ex rel v. Fields, 53 Or. 453. Therefore, this court will not deter mine the question suggested. The appeal is dismissed. Zt'lig t. nine Point Oyster Co, et al, .Multnomah County. M. A. Zellg, respondent, v. Blue Point Oyster Company, et al, appel lants. Appeal from the circuit court for Multnomah county. The Hon. W. N Gatens, Judge. On petition for re hearing. Dismissed, March 7, 1911. U3 Pac. 852. Julius Silvestone, for respondent. Claude Strahan and Waldemar Seton, for appellants. Burnett, J. Motion to dismiss is overruled. Burnett, J.: Since the petition for rehearing was filed in this cause, challenging the correctness of the order dismissing the appeal, it has for the first time come to the know ledge of the court by the statement of the clerk that the transcript here in reached his possession a least by October 2, 1910,. which day being Sunday, according to his custom he marked it filed as of the following day. This being true, the appellant was In time with his transcript. The former order dismissing the ap peal is set aside and the motion to dismiss the appeal Is overruled. Francis t. The Mutual Life Insur ance Co., Miiltnonuih County. Mary C. Francis, plaintiff and ap pellant, v. The Mutual Life Insur ance Company of New York, a cor poration, defendant and respondent. Appeal from he circuit court for Multnomah county. Hon. John B. Cleland, judge. Motion to strike out the bill of' exceptions. Miller Mur doch and John F. Logan, for appel lant. Jerry E. Bronaugh, for re spondent. Per Curiam. Motion de nied. In this aation a judgment was ren dered on the verdict for defendant June 11, 1910. On December 10, 1910, the plaintiff filed her notice of appeal with proof of service Indorsed thereon and on the 20th of that month filed her undertaking tin ap peal. On January 6, 1911, a judge of the circuit court In which the cause was tried made an ex parte order allowing the plaintiff till Jan- lng or refusing of a new trial if a motion for a new trial is filed, pre pare and file a bill of exceptions. It shall not be necessary to enter an order in the Journal granting time to file a bill of exceptions, unless the court, by special order, extends or shortens the time within which to file it The court, upon be ing satisfied that the adverse party or' his attorney has had due notice thereof, may, on application of either party, grant an extension of time to file a bill of exceptions, or a statement of objections thereto, or fix a time for the settlement there of, but written notice shall not be required." The case Is here pre sented upon the motion of the de fendant to strike out the bill of ex ceptions because when it was certi fied by the court eblow the time, as provided by the rules of that court In which said bill might be settled and certified, nad long since elapsed. Per Curiam. The syllogism of the respondent in support of this motion consists of' the major premise that a rule of practice established by a court has the same force and effect as law and of a minor premise that this bill of exceptions was not pre sented within the term prescribed by the rule from which the conclusion sought to be deduced is that the bill should be stricken out. The major premise may well be conceded. The statute relating to the transaction of business In the circuit court of the fourth Judicial district prescribes that "the judges of said court, or a majority of them, shall jointly have power to make all needful rules and regulations, not Inconsistent with law, to render ef fectual the provisions of this sec tion and facilitate the transaction of business." L. O. L. Sec. 913. This statute is but delcaratory of the pow er Inherent in all courts of record to establish rules relating to the dis position of business before such courts and it is settled by the case of Coyote G. & S. M. Co. v. Ruble, 9 Or. 121, that such rules have the force and effect of law and are obligatory upon the court making them as well as upon suitors. The question then Is remitted un der the minor premise to a construc tion of rule 19. The code Itself does not prescribe any particular time within which a bill of exceptions may be presented for settlement and In the absence of any rule on that subject the course of authority Is uniform in this state that it is dis cretionary with the court whether or not it shall settle a bill of excep tions at any time after the trial. Hayes v. Clifford, 42 Or. 568. The jeffect of the rule In declaring that any party to a civil or criminal ac tion may within 30 days prepare and file a bill of exceptions is to obviate Joy AMD SICKNESS DON'T CHUM A 1 APPY HOME I IN REACH !F ALL TO DE HAPPY KEEP WELL USE ONLY DR. KING'S NEW DISCOVERY TO CURE COUGHS AND COLDS WHOOPING COUGH And all diseases of THROAT AND LUNGS IT HAS BROUGHT! JOY TO Millions 3 SOLO AND GUARANTEED BY Price SOe and $1.00 i. C. I'fcKKY, his opinion. A surveyor's opinion as j ary 31st" to present her bill of to the result of the survey, unsup-! ceptions. Afterwards on January 30 ported by the details of the survey, both as to the data upon which it is based and the manner of reaching the the same judge made a further ex parte order allowing the plaintiff five days additional time to present result is not competent, but when he ! her bill of exceptions. The record gives the details of his work it is a question of law whether, his method was correct and a question of fact whether his result is correct: Sea brook v. Coos Bay Ice Co., 49 Or. 237, 242; 54 Or. 172. There is no evidence before us tending to prove that defendants were entitled to possession of the tract in question. Neither were defendants entitled to offer evidenc of title thereof, having pleaded neither right nor title. Therefore they were naked traspassrs: Sec. 328 L. C. L.; Oregon Railroad & Nav. Co., 26 Or. 216. Judgment of the lower court Is affirmed. sent to this court discloses that the circuit court has prescribed, among others, rule 19, as follows: "Any party to a civil or criminal action may, within 30 days after the entry of final judgment, or after the grant- State of Oregon, Ex Rel. H. C. King, t. WebHter, Multnomah County. State of Oregon, Ex "Rel. H. C. ing, appellant, v. Lionel R. Webster, respondent. Appeal from the circuit pourt for Multnomah county. The Hon. Earl C. Bronaugh, Judge. Ar gued and submitted March 29, 1911. H. C. King, .for appellant. Zera Snow, for respondent. Eakln, C. J. Appeal dismissed. Eakln, C. J.: This Is a proceeding upon a writ of mandamus Issued upon the relation of H. C. King, re quiring Uie defendant, Webster, county Judge of Multnomah county, to render a verified statement to the county auditor of the amount due him for services each month since July 1, 1906, and to set out in detail the time he was absent from his of fice during that period, other than on official business, as required by Sec. 3059 L, O. L., or show cause why he should not be required to do so. A demurrer to the writ was sustained by the circuit court and the cause dismissed. Plaintiff appeals. It appears that the defendant re-' signed from the office of county judge in May, 1910, at which time he ceased to exercise the office or act as county Judge of Multnomah county, and Sec. 3059, If applicablpe to county judges, which we do not decide, is functus officio as to duties required of defen dant during the time he exercise the office. The controvrsy ts at an end. The conditions have so changed that any Judgment rendered upon this ap peal could not be made effective: State ex rel v. Grand Jury, 37 Or. Instead of Liquid Antisepticsor Peroxide many people are now using Paxtine Toilet .Antiseptic The new toilet germicide powder to be dissolved in water as needed. For all toilet and hygienic uses it is better and more economical. To cleanse and whiten tho teeth, remove tartar and prevent decay. To disinfect the mouth, de stroy disease germs, and purify the breath. i To keep artificial teeth and brldgework clean, odorless To remove nicotine from the teeth and purify the breath after smoking. To eradicate perspiration and body odors by sponge bathing. The best antiseptic wash known. Relieves and strengthens tired, weak, inflamedeyes. Heals sore throat, wounds and cuts. 25 and 50 cts. a box, druggists rr by mail postpaid. Sample Free. . XTON TOILET CO., BoTQN,Maa. mm ttA fcf RiWi j MSI Olpbrated Lenr V'imrrr The Best Heater It will save you tn-ey every day yo own It. I -ell aid natal1 the best Let me give you figures. See Me About an individual lighting plani or your home. The best thing It ibe market for coking and lixbtinr A. L. Frasier . Photie 135. ?f stat Mthwi THE BEST i STRONGEST AND MOST DURABtC SEWER PIPE MANUFACTURED MACHINE CEMENT MADE GLAZED SEWER PIPE It will pay you lo invcr vestigate before placing your order for Sewer Connections. Salem Sewer Pipe Co. j 205 LIBERTY STREET ; t FAIR GROUND FEED AXD GROCERY 5 gal. Kerosene (bring can) 65c Extra choice Sugar Cured, government Inspected Hams, per lb 18c Extra fcige meaty Pick-Nick Hams 14 He 5 lbs. pure Lard "5c Best Valley Flour, sack... $1.20 Best Eastern Oregon Blue Stem Flour $1.35 Choice heavy Bacon, lb 17c 11 lbs. 'White Beans 50c 5 1-lb. pkg. Corn Starch. ,. ,23c 5 cans nice Table Peaches. 50c Garden Seeds 3 large full size 5c pkgs 10c 2 large full size 10c pkg... 13c 10-lb. sk. best Eastern Corn mal 25c 2 lbs. best Cream Cheese... 35c 3 cans Buttercup Milk 25c 60 lbs. full weight Bran 80c Shorts per sack $1.20 Telephone Orders promptly deiitered. Give me a trial for I can save you money. R.N. MORRIS PhniM. 1497. the necessity of making an order in each particular case prescribing the time within which the bill shall be presented. The restriction is ap plied only to the parties. Under this rule the trial court in its discretion might say to the party: "You have not availed yourself, of the time al lowed by the standing rule," and so deny the application for an extension. On the other hand the court might, without a showing, extend the time without any abuse of its prerogative. The rule does not amount to an ab dication in any degree of the power of the court in that respect. On the contrary the last paragraph of the rule expressly reserves to the court the discretion of allowing the ex tension of time to file a bill of ex ceptions. It is not stated in the rule that the application for such exten sion must be made within the 30 days flr3t mentioned. The minor premise of the syllogism Is not sus tained by a fair construction of the rule. We cannot say, therefore that the court has abused Its authority and in the absence of any .showing on that subject, aside from the application of the rule, the motion to strike out the bill of exceptions must be denied. o Kescucd From Whaler. corLD not write ' Versailles, Ky.-Mrs. Ellsha Green, of this place, says, "I could not write all the different pains I had, when 1 first tried Cardui. I could scarcely walk. Now I am able to run the sew ing machine and do my work; and mj neighbors tell me the medicine must be good, for I look so much better." Cardui Is a specific, pain-relieving, tonic remedy, for women. In the past 50 years, It has been found to relieve women's unnecessary pains, and fe male misery, for which over a millloa suffering women have successfully used it. Try Cardui for your trou bles. It will help you. At the near est drug store. o A Kansas man fell Into a barrel of hard cider and broke his wrist. That's hard. dives Aid to Strikers. fUNITED PBESS LEASED WIIIB.1 San Francisco, April 12. Melvin Donlin, 13, missing from Oakland since last week, was rescued from the whaling ship Lapita in the bay today just as the vessel was hoisting an chor for a cruise in the Arctic. The rescue was made by a posse of har bor police. The lad had confided to a companion that he was going to sea for $35 a month and the compan ion notified the boy's parents. Sometimes liver, kidney and bowels seem to go on a strike and refuse to work tight. Then you need those pleasant little strike-breakers Dr. King's New Life Pills to give them natural aid and gently compel prop er action. Excellent health soon fol lows. Try them, 25c at J. C, Perry's, Druggist .Saving HiniNrlf. A little boy was asked by his mother to bring in some wood. Five minutes later his mother, looking out and seeing him silting in the yard, asked why he did not fetch the wood. Oh, I am tired," he replied, "and if I use all my strength ruw, when I am a boy, what will I do when I'm a man," Omaha World Her aid. TJf J 1 an neadaches. Dizzy, sick riCQuGchcs headaches- Bumin throl bing, splitting headaches. And the great majority are all due to constipation. Anything better than Ayer's Pill? ? Let vour doctor decide J. O.AierCo., T2J HM MM" Salem Bank & Trust Co. I fieneral hnnlinor nnrl Trust RfKines wuw. MB ITMIIIlltl UUU AaMfcJfr J a. w w With our assurance that we are able and willing to take care of J It, we solicit your Banking Business. Open an account with us and we will extend you every favor consistent with good banking prln- ciples. We Pay Foor Per Cent on Savings. LIBERTY ST., JUST OFF STATE ST. Salem's most poular res taurant THE WHITE HOUSE We cater to the public who demand a good meal for a small price, Wm. McGilchrist & Sons. Gold Dust Hour Made t thr iVII.SIvl fll cu.eA.v, fyio. UTr" Made for 'mllT Use. ..k miMr for It. Br ud Hhort lwf hal P. B. WALLACE, Agt. ' M MillllTTI The Bosom Sets Flat 130-16A buleintr front In ftnt n shirts. It is done wlth our new STEAM FKw - The stud button holes exactly meet, the neck bBnd does not bind on your neck; button holes exactly meet bu'tons: perfect fit If we launu. ,rnew STEAM PRESSES, whlcb , . . . ... ..snttt n ha MlffS. n ao noi ,-ud or hum tne nore. Dut mun band and bosom to a PERFECT SHAPE. Try the work. Vlslion welcome. Salem Steam Laundry South Liberty Street Phone 25