Show test tes mes les T J ui I 1 gt A L DISTRICT fv COURT F FRIDAY AV sept 3 38 8 aiu alu am it 1 1 1 pursuant his bis dant to adjournment ana S V of aenry macaulay Ma caully vs chab chag S clark was d d for tor want vant ot of prosecution PerryT do vs win Lang hya bya gammel default taken judgment as assessed by the jury composed ol 01 t tha be f wu IM black edsel elmer elmers thos gus eil ell randal rilio ao W cummings J J irvine 1 nW we eb tb I 1 chas Cha foot J W W J oborn osborn geo J butler amount of unpaid notes with 10 per cent inhere y Johr john steward vs charles harrison harrlson continued formant aw or afterward jhn juhn hutchison va howe cause dismissed at plaintiffs cost col coi as t li jedawn D webb vs washington jolly and others case arfa s over 1 wan faa dju juhn john n G it iraln 7 in vs J john ohn if busier buller ian an lan appeal appell from the probate myrt court ot of cedar county in sn answer awer to the to dismiss for tor two causes caules IJ I lT lahat J mithat hat sald bald defendant defendants butler butter had no interest in the ini lal that coult be conveyed by deed 2 it elethe the probate court conn ba lia no jurisdiction to hear try or d determine ehia ebba ruline this thib action i theja thein be ge satis sai sat ai Is t in determining this the court will judicially take no ice that the title to lands in this territory Is lit in ili the anlu united d states slates 62 individuals without he vin i any right or title titie to the land have entered upon and ana the sli oil ull with knon ledge ot of tiie the o ower but thy they have no such interest in them as can be onry nry tr transferred by deed deti or mortgage the naked possession can be tran alered only b by V delivery to another and it may ur or may not be indented by dd deed but a arly party in posses lon ion bion loa can only be diacos espied bi ba the government it if the united states the relation of landlord and tenant eilts lu in this case there ig Is no fu it relation this mortgage Is therefore void as a security for the debt and cannot be enforced against the mortgaged property but it dues duei not aa as I 1 think follow that this cause canne should for that reason redson be d for under ulder the acts of the I 1 al i legislature I 1 am of opinion that the probate court might bave given glien jo in figment tor for the mortgage debt against the mortgagor although the security was wa void vold voidie it they had clinnin coin doln nin law ant and chancery and this brings me to consar the point urged for tor the of oaths cause by rete refe reference rence Tence to the acta acts of the territorial legislature ft will be seen ai at a glance that golar solar BO tar far as it narl nail the pow power er to confer conter jurisdiction on the probate court 4 they ai ara are made the superior tribunals of the territory to them I 1 by DT statute Is given the I 1 ajer iier awer to irant krant divorces and g riling lv ing alimony the probate of wilts the administration of decedent dece dant ilant estates em et etc and aud by an act of the list iasi session n of tild the legislature legia leRla lature eo so far as it could ive ive lve powers ts the probate judge with the selectmen of the county bas has kte ate A te been iiren ven the exclusive power ef all ail juror by grand krind grind or petit petits and judging or of their qualifications tor for or the district courts aa as well as all ail 01 berf herf in all other matters they have concurrent jurisdiction with the DItri district ct courts and in addition to their four taur regular cessious ses tes sious bious li Is by Is law W always open cleans means tur tvr holding their courts Is 1 by law alarm in their own power while it Is withhold from the courts and even the teea leea of or officers office neeri rc and wit dehes tur fur services service rendered ered in the district courts are often subject to their will to be paid or not at the plea piea pleasure gare sare of the probate judge and S selectmen thu thus the power dower to control the action of D district courts conns has been beed given fiven to probate courts so far mitis milis in the biwer ot of the le i slAture to do go 90 11 it legislature po possesses gesses besses the power und kundit r the act orran organ the territorial government to confer thelie these powers the proba e court it Is the duty of this cou con court ft to t conform its action to the law th enia onra nici act provide that abat the legislative power of it ther thet sald aid utah territory hall shall extend to all rightful 61 legislation co with the constitution of the tha Stat states esly and the provisions of this act with certain restrictions not necessary to be noti noticed cedy in deter taing the ibe question now before tb lbs tbt is court 1 Is it to thil thit the valous various acts of the legislative itle ot of the territory are ate in conflict with the constitution of the staves states itt it hen then remains to be seen whether they are in conti conflict lct with the organic act ilie tiie mystery of or the united states stages for a num n kun inn br tier pt of yeav years conta couta containing lulng similar powers and the construe liun usually glata to them would mem seem to leave but uttie little do doubt on thin thia quee lion von io ten far tar as their precedents can t be 0 useful to us in determining it 1 but it Is desirable to uhei niel ni el this question as a aa an original one by ref ettrice to the it if it can he be done the rth roh section or 0 the organic act read reads as follows SEC 9 and be it further enacted that the judicial power ot of aid gid said ald territory shall be vested in a supreme court district court couris courtay and in justices just aust ices of 0 the peace til the supreme court ab all consist of a khiet justice addil adill two associate justices justi Justl dee cee my any two of whom shall conail who hail hall hold bold a term at the eat seat of 0 government governmental ot ol ali all sald aid territory na they shall hold bold their 1 eues jues during the period of four tour fearn yearn the gaid said sil ald Terri terni territory mry ory shall be divided into three judicial d districts and a district court fh shall all ail be held in each bachof of sald said districts by oni one of ot the justices of t the supreme court at such cuch time and place as mas may be prescribed by bylaw law and the sald said aid ald judges judge sha aha iatter lajter arter aster their reldon the which hall ball be thew them thu the ot of courts court bedein provided for tor or both appell ato sto andose and ai and that of the probate court courts and atrid of justices of the bt bylaw lawt provided Provid edg that justices justice of os the peace shall ahall not have jurisdiction of any SOY matut arnatt r in controversy contro khen when the title or ot boundaries of land krial ittai bay bly be in dispute or where the debt or sum min claimed ab chali chatt all ail exceed one hundred dollars aud and the aid 2344 supreme and district courts respectively than bhan possess chancery as well aa as common law jurisdiction each zach district cour courton courter ter tor th ahr judge thereof hll hii hil appolit ua its clerk who shall bhail niso also bilm bill b resister register in chancery and shall halt keep his office at the place where the court may be held writ writs of error bills bill of exception and apeuli ape als ali xau agu masu basu be avowed la ali 11 II rn the final flail decisions of of said raid district courts to the gup nub niB court under such regulation regulations as may be prescribed by Is law but la in no cabe case removed to the supreme court shall trial by jury be allowed in said court the supreme court or the justice justices s thereof shall appoint its own clerks clerk and every clerk shall bold hold his office at the pleasure of 0 the court for which he shall have been appointed writs of error and appeals from rom toe the alual deci deat oon tilon ot of said supreme court shall ball te be allowed and may be taken to the supreme court ot of the united states in the fame mo manner and under the same regulations js as from the V circuit court ot of the united states where the value of the property or the amount in controversy to be ascertained by the oata or affirmation of 0 either party or other competent shall exceed one thousand dollars except only that in all cases involving title to slaves the tim said writs otier of error or appeals shall te be allowed and decided by the said supreme court without regard to the the matter nutter property or title in controversy and except also that a writ ot error or appeal shall also be allowed to the supreme court ot of the united states from the decisions of tr it e sald said supreme court created by this act or of any ano judge thereof or of the diarist dh tract courts created by bt this act or of any judge judye thereof upon any writ of habeas corpus involving tile the olues eloes question tiou ut of per personal bonal freedom and each of or the be said lct let courts shail shall have lave and jurisdiction in all aises cases arising under the and laws othe united states stairs as Is vested in th iff circuit and district courts of the united states stater and supreme and district couts cou ta td of the said territory and the respective 1 judges thereof shail shall and may aay grant writs or habeas corpus in lit all rames cames in which aich the same are granted by the judges or of the united states slates in the district of columbia i and the first itz days of every term of said courts or so much thereof r ts shall be necessary shall be appropriated to the trial of causes arising arbing wider the said constitution and law lawa and writs of erro error faud and aud appeal appeals in all such cd ca en td hhall be made to the supreme court of said territory the sae rae same as us in other cases the said clerk shall receive in all suh su h cases the same fees fee which the clerks of the district courts of oregon territory now receive for similar services 11 it would seem clear that this action section vets the entire judicial pour ut of the TerrI territory toly in four different tribunals A supreme courts court a district courts court probate court and aultice justice of the peace to determine the qualifications of jurors if iq a judicial act and to create another tribunal tribunals and take from these any judicial power to vesa veea it in such new tribunal Is clearly a vie of the organic acu aci in lit tha th supreme and district courts Is vetta original common law and chancery power but no such buch juricic alc tion tin la Is vested invested in the probate court by the act it cannot be pre presumed turned thai that congress anten led to create two tribunals with concurrent powers or it 11 1 would foul d ba have V e heen be hern ru so de clarid when the subject was b beaure or their k I 1 ir I 1 in I 1 there was waino no necessity nece sity tor for having such guch tribunals tribunal I 1 and irom front t the h e constant coustant bonnici in the jurisdiction between t i such tribunals btuch mitch mitchlee let lef would having provid provided etl til tribunals having common law and chancery it was eitler titter to add the tho bual po powers ers of probate court which are not embraced ve within common law or chancery powers to the district courts or another tribunal tor tur that purpose and this ibis congress did in the organic act by providing for probate courts the powers of hete bete courte are limited to the to of vt we ills and testaments the administration of decena nl tit estates etc etc it would be as for the territorial legislature to create another budr nin uin court and slid vest iu im it the I 1 powers conferred conr ened tipon the un is So supreme prema preme as a to create a I 1 tribunal po essing powers given to the ibe D i strict court the jurisdictions of thee the e tribunals are conferred by the act of congress and the power thus given may b br ex ernea ered as by liy acts fut fat lne ine terr territorial tal lal legislature not dot I 1 given by it I 1 for example examples it li Is provided tb atthe althe the jurisdiction of the t af the peace not exceed it 1 compe i lent tor lor the legislature to limit it to sao 50 ur or any oth other r sums ielo leto than sim sip indeed it would eem seem clear abatt t would be le as a conia conie tent with the ibe arlit atilt act to create I 1 another or executive dep department ariment tribe government I 1 and invent them ith ith the po porter er to usurp the i tins tina of thebe departments indeed li it would baem beem that the congress oun Cun gres of the tiit united states la in the order iu in which the judicial trl albun Is are mentioned in the organ c act acts Intend intended td to 10 bet set them tim forth lu in a regular gradation fr r in ta the lighett to the lowest and unit hence they say the judicial I 1 ud ici ai power of or khe the territory shail shall be vested in a supreme court district court probate court and I 1 isil ceo of the pence perce the couris courts are the creatures cleatur 3 of congressional legi lalon and their powers are cont cout co merred erred upon thum them by the balue bame power that breaud atheni them the only power poser gwei gnei the legislature in relation to them Is tu to regulate the mode ID in which these pow r ri krould be exercised ahe ah territorial legislature has no power to give or take away the juris jurls diction conferred by the organic act for lorl lorleee burl burt the hee bee among uther other reasons it that the various acts of the territorial legislature or attempting to culifer origin carn cAru nun law dawaud aud and chancery power upon the P bobae obbe courts ie Js incon lacon liuni and contrary to the organic act and b hence bence t nee dee Is void the ibe probate courts havi 9 wither ii ither common law nor chancery power had bad no jurisdiction of this cau baue and this thia court not havlu by ghe the he appeals appeal more po power werthan than the tribunal from front wb whilce Ilce ll 11 came canie it follows that this motion to distalo dia dla mais rals mosi most prevail this sait salt Is to therefore dismissed at the cust cost ot of the ln tho the be court below court took a recas rec as till I 1 ilum limm I 1 am II 11 a me m 1 court resumed 18 its sitting cage cake of D J howard va vs R johnson called railed this was a sult call to recover rent or and nl done to a house to howard camp floyd the latter wa w A veny tery excited elc cited and had to be reprimanded by the judge the jury finally gave the following verdict 69 rent 84 damage du iKe the jury don dou daunted ted ten cents each to howard at the close 0 of f the suitbe ozithe having insinuated in anipen pen court that a jury might tw be packed which caused much merriment to the non mali aall annoyance anno vance yance of mr 11 II court adjourned till tomorrow to morrow worrow 8 am hr air J L at butler was made a littzen of the united stages SATURDAY 1 sept 48 am court met pu pusant to juji read over 01 r the following cases cares on dockety dockets docket and disposed of chent as appe arek aree people of the uni ted led states vs mcdoanld Mc donld earl and 4 other rule ruie continued against sheriff of ulah utah county to answer next time people of the states to v lysander ly ander gee get cause continued with order lor for allas atlas till dent terin tena people of 0 the united stated va vs john scott et t al cause continued wilh with order for next term People of the united states state vs T george toby con cou tinned with order for alias till next term people of 0 the united stated va thomas lvie ivle rule against G P of san petey pete rete continued and alias for ivie ivle ordered for next term people of the united sates states vs aaron jonson dongon Jo sinson linson ngon con tinned with order log fox aliamo with rule to keep peace tul till next term terni abo case cage edwin vv W ton jolly et |