Daily capital journal., January 13, 1912, Page PAGE FOUR, Image 4

fAGK FOTH
SALT LAKE
WILL HAVE
DRV SUNDAY
cxitid mis ix wiu.l
Salt Lake City, I'tab, Jan. 13. Ills
arrets no numerous that the city
jail Is overflowing and the city au
thorities are considering leasing the
old county prison, B. F. Grant, Mor
mon chief of police under the com
mission form of government, Is wag
ing a "blue law" campaign here.
Salt Lake City Is to be a closed
town on Sunday as long as Grant is
In power, he lid was put on tight to
day, when he Issued an order closing
all saloons from midnight Saturday
to 7 o'clock Monday morning; clon
ing all tohacco shops during the
same hours and prohibiting drug
stores or other establishments from
selling liquor or tobacco In any form
during that time.
Amusement places are next on the
list Grant has started a campaign
to close all theaters on Sunday.
o
WILDE CASE
WILL BE LONG
DRAWN OUT
DAILY CAPITAL JOUBSAL, SALEM, OKtCOX, SATURDAY, JA.M ABY 1. mi.
l I I , . i i t - . Mif
of three men and starting theexam
Inatlon of a fourth, and no one eligi
ble to serve on the case of Wilde has
yet been found.
Curiously enough, the three men
disqualified were not excused be
cause of any opinion they hold "on
ceriing the guilt or innocence of
Wilde All of them were eliminated
because of their opinions concerning
W Cooper Morris, cashier of the de
funct Oregon Trust and Savings
bank, who Is jointly accused with
Wllda of embezzling 90,000 from the
bank.
(UIMTlt. mil l.IABID WIKI.1
Portland, Or, Jan. 13. After
spending all of yesterday afternoon
and today In fruitless questioning,
the selection of a Jury In the. cae of
Louis .1 Wilde, Is as far away in
Judge Kavanaugh'g department of
the circuit court as when the law
yers first began to ask their Intricate
questions.
Practically eight hours In all have
been consumed in the examination
red the GnlK
fritiTin rim uusso wim.J
v inn 13 Touched by
the pitiful condition of thousands of
gulls starving in tne naroor i
weather, city offi
cials today took steps to relieve
them. Refuse ana garoage raii
from cafes and restaurants, usually
incineratd, were spread over the Ice
and thousands of the gulls gathered
and feasted.
OREGON SUPREME
COURT DECISIONS
Matthew t. Matthews, Multnomah
Decided January 9, 1912.
(Continued from yesterday's Daily.)
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, o
The Portland Taft committee will
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shows that the appellant is ngag1
in business, and much better able to
support the child then the respond
ent, and Its age and sex favor his be
ing given such a preference. We are
of the opinion. In the absence of a
tinding and proof, that it would have
been improper to award the care and
custody of the child to the appellant;
the circuit court was not Justified n
giving the respondent the preference
in that regard." here seems to be a
hiatus between the premise laid down
by the court, namely: that the father
was entitled to the custody of the min
or, and he hnal conclusion reacnea -
that the custody should be given to
the grandfather. The fact seems to
be that the court did what courts
usually do in these cases, gave the
custody of the child to the person
most likely to look after its welfare.
It is true that the court Incidentally
mentions the fact that no tinding had
been made that the father was an
Improper person to be entrusted with
the care of the infant, but, as we
shall presently show, such findi ig
would have had no controlling influ
ence if It had been made.
Ilarnes v. Long, 54 Or. 548, was a
habeas corpus proceeding brought ly
the father of a minor against its ma
ternal grandmother. The mother
had been given the custody of the
child In divorce proceedings, and sub
sequently died. Tbe grandmothtr,
without any order of the court, at
tempted to retain its custody ns
against the father. The court held,
that, in the absence of any showing
that the father was an improper per
son to care for the child, he was en
titled to Its custody. The case does
no seem to he in po'.nt here.
If we take the findings here as Im
porting absolute verity, it appears
that the plaintiff is not an adulteress,
and that she is a woman of good,
moral character, who has been guilty
of certain indiscreet conduct whim
age and experience will no doubt cor
rect. The trial judge had the parties
berore him and heard the testimony
and, in the absence of these, we must
conculdo that he found correctly. If
defendant had desired an affirmative
finding as to his qualifications to
care for the child, he no doubt could j
have obtained It by a request to that j
effect. It appears that the child is i
a litle girl under four years of age
and the court no doubt concluded,1
and perhasp correctly, that she j
would, for the present, he better off I
in the care of her mother than any-
where else, and we are not disposed 1
to reverse his decree. j
In addition to what has already!
been said, we do not feel that, as a j
matter or law. we have any jurlsdlc- j
tion to pass on the matter on this j
appeal. Suits in equity are tried "de J
novo" in this court. While the find-i
Ings of the lower curt in an equity j
case may be, to some extent, advis- j
ory. In cases where the testimony is '
conflicting and where the circuit '
Judge had an opportunity of hearing I
and seeing the witnesses and thereby 1
, mm ireuiuimy ; yet when
brought here on appeal, unaccom
panied by the testimony, they present
nothing from which this court can
find any fact or base any conclusion
of law. Vpon appeal In such cases,
this court must mkc Its own find
ings and this it canuot do in the ab
sence of testimony. The reason for
this is plain. A court may make a
wronK finding or one not Justified by
the testimony and yet render a cor
rect and righteous decree. In this
case the court found that the plain
tiff was not humor' hut that she had
been Indiscreet. It might be that
with the testimony before us we
"mu conclude that she was both or ! (ft
neither w t are not concerned wi'li
the findings of tho lower court but
with (he facts produced before it on
the trial and these are not before us.
Following this view it has iHVn
many times held by this mart, thi't
ai'ie,u, which unngs up only the
decree and findings of the "lower
court, presents only one question for
review here ramcty; ,u, sullU'iencv
of the pleadings.
Howe v. Patterson, 5 Or. 3,-,3, is a
case where the transcript contained
only the pleadings and the decree
and findings of fact, without any evi
dence accompanying it. This court,
In affirming the decree of the lower
court, say: "The Civil Code (Sec.
533), provides that 'upon an appeal
from a Judgment the same shall oniy
be reviewed as to questions of law
appearing upon the transcript; but
upon an appeal from a decree given
in any court, the suit shall be tried
anew upon the transcript and evi
dence accompany) it.' This evi
dently means that it shall be trl"d
over again on the facts as well as the
law, and this cannot be done In the
absence of the testimony.
TheWorldKnows
the best preventive and cor
rective of disorders of the
digestive organs is the gentle,
harmless, vegetable, always
effective family remedy
BEECHAf.TS
PILLS
Sold rrl
ia boxM 10c IStt
nd expressly approved, Moore, C.
t i inautprf w nnnellant's cousvl. I saying: "It would be impossiuic
that the judge, on the hearing of this modify the findings of fact
cause in the court below.
found certain conclusions of fact, and
having inserted them in his decree
I.,
to
without
having having before us the evidence upon
which they are predicated, or to cor
Irect conclusions of law not properly
they are conclusive upon the parties
on appeal. To this proposition we
cannot assent. An appeal from a
Judgment, In an action at law, as pro
vided for in our code, is in the na
ture of a writ of error at common
law, because It expressly provides
that 'a Judgment can only be re
viewed as to questions of law ap
pearing upon the transcript.' Thus
it will be seen that on appeals in ac
tions at law, issues of fact cannot
be reviewed by this court. But, as
it Is provided that, on an appeal
from a decree In n suit in equity,
'the same shall be tried anew upon
the transcript and evidence,' it is ob
vious that where testimony was tak
en in the court below, it must be
brought here so this court may try
the cause anew, as well upon the
facts as upon the law."
In Wyatt v. Wyatt, 31 Or. 531, the
ease of Howe v. Patterson Is quoted
deducible therefrom. This
being so, the only question before us
for consideration is, does the com
plaint state facts sufficient to sup
port the decree." See also, Morri
son's Kstate, 48 Or. 612.
In many instances these orders are
merely tentative and in this case If
It should transpire that plaintiff has
proved unfaithful t the trust com
mitted to her or that her conduct is
such that it is not for the best Inter
est of the child to permit her to
longer retain its custody, defendant
has always an adequate remedy isy
applying to the court for a modifica
tion of this portion of its decree.
For the reasons heretofore as
signed, the decree o' the circuit court
will be affirmed.
Stayton is having a continuous ses
sion of her city dads, wrestling with
the saloon problem.
A. McCulloch
THE QUALITY
of our work is our
strongest argument
for the scientific ex
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ment of your eyes,
A. McCulloch
Optometrist
No. 291 N. Commercial Street.
(Ground Floor)
Phone 925. Ofice hours 9 to 5
Perfect Collar
Laundering
Every collar and cuff that nf
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Vie use the Mime equipment
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Everyone pn."s through a pro.
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Ve shape turn down
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collars J r
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W HOME FURNISHINGS NOW Wg
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n. II .i "'.
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Headquarters for Woven Wire
Fencing. Hup wire, Barb
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CHAS. D. MULLIGAN
150 Court ttreet. Phnn mi
BUY
FURNISHINGS
at Buren & Hamilton's Great PreInventory
If you need new furnishings or expect to need them
Sale
dur-
ing the year it will pay you to look now. You will fina
here a clean, well selected stock from which to make your
purchases, no shop-worn or out of date goods. Remember
thisour reputation for square dealing stands back of
every article sold during this sale, same as though it were
sold at regular price. We want satisfied customers.
Furniture
Heaters
raperies
e
anges
VOORd
Kitchen Ute
toves
nsils
dding
Carpets
Rugs
Crockery
Wall Paper
Pictures and Frames
9Jt!L excepted.
r r
IB
1 . . " -
A.
v