Show CTlDlCIAL CIRCLES = 7 r hree Very Important Decisions i De-cisions j 1 f 1 j q i J J THE 1KSDESIBYEB BUSIMBS The Court Adjourns Till tile 1st Cf February The Cotnmtsslonor Cano is 11H < hid I J t tOn tOn t-On the opening of the Supreme Court yesterday iiioruing rhererfwere within the bar Messrs Lewis Denny Suttierland Peters Varian Williams Royle Marshall Dick D Van Cot Clark Rawlins and General McCler nand But two opinions were rendered Li the moving and it was tho ight tl1t1 question as to the jurisdiction of commissioners com-missioners would not be reached Just before adjournment however an opinion opin-ion delivered on this subject lUi i I verylengthy and in substance is to ihe elfec lbftithe poVrerjot commissioners in civil business is tbVsams as that exercised ex-ercised by justices of the peace The writ of prohibition asked for how ver is dismissed on the ground tnat the remedy lay in the appeal The other opinions delivered yesterd y were In the matter ofJames Thompson appellant AS Jeanette Thompson respondent and Peter Thygerso appellant vs John C Witbeck and Elmer Taylo respondents re-spondents Both were of more than i passing interest A synopsis of each case is therefore given below JM THE FIRST CASE NAMED the appellant James Thompson filed his bill in the Probate Court of Salt Lake County for divorce and the cause I was removed on motion of respondent to the Third District Court The defendant de-fendant filed an answer and a cross complaint Afterwards a decree was entered in the case which recite that this came having this day been brought on to be heard pn complaint of plaintiff on file herein taken as confessed by the defendant who appeared ap-peared by her attorney W Van Cott and abandoned her nswer and defense de-fense herein The decree recites toe I hearing of testimony in support tbe complaint and than proceeos ou motion mo-tion of the plaintiif to decree a dissolution dissolu-tion of the marriage between tue ptu ties and to free them both from thr obligations thereof There is no provision pro-vision whatever in relation to alimony but it further decrees follows Ills i further ordered adjudged and decreed that the plaintiff pay to Rosalind Maud Thompson the issue of said plaintiff and defendant the sum of 20 per month for her sole and exclusive support sup-port and education and further pro vides times and jlaces of payment and manner of enforcing the same on the 10th of January the respondent plaintiff plain-tiff below appealea to this court from tnat part of the judgment or decree uroviding for the payment to Rosalind Maud as above set forth The appeal in this case rtiujt be claimed under the first subdivision of section 828 Laws of 1884 and it will be seen that it does no authorize an appeal from a part of a final judgment Section 829 prescribes tbe manner in which an appeal may betaken be-taken But it is contended that as the latter section provides that the notice of apPal shall sate the appeal from the judgment or order appealed from or some specific part ihereof It authorizes an appeal from any part of a final d cIee or judgment These eec tions are to be construed together They are the only provisions for appeal ap-peal and apply to all cases legal l and equitable and the Legislature in enacting enact-ing them intended to meet and provide pro-vide for the various causes as they should arise Equitable cams often involve in-volve numerous parties and various interests in-terests and in rendering fiml judgment and ir decreeing and adjusting what may be supposed fp be he requisites between be-tween the parties it may happen that seme part of it when segregated and set apart from the balance may in itself it-self constitute and be a perfect judgment judg-ment independent of all other parts of judgment and be in itself appeala ble or the court may in form combine some two of the orders mentioned in subdivision > 2 of Sec S23 Jin one order out such parts are no doubt appeala ble without appealing from the whole and are to be considered as final judgments judg-ments or orders but it was only intended in-tended to permit an appeal from final judgment within the meaning of the statute as a whole It remains to be considered whether the part of the decree de-cree appealed from in this cause is appealable under this rule The i statute provides that when a divorce di-vorce is decreed the court shall make such order in relation to the children and property of the parties and the maintenance oj the wile and such portion por-tion of the children may be awarded to her as may be just and equitable Provided further that the parties may with the approval oftue f themselves rs the VfrU court W u WU4WA f O agree upon UC I distrbntion of the property and dipo mtion of the children Several authorities authori-ties are here quoted and the opinion concludes We think in deducing from t < he language ex tne statute Umt jquestious of alimony and care and supportof birlprin are but incidents to a divorce and that when the court assumes as-sumes to destroy the relation whch bas brought chidren into existence tbey should become wards of the court and that as an incident theretoit may provide pro-vide for thom The distiict court in I granting thE reHef asked for by appej lanthas imposedcertain conditions concerning con-cerning ttiejrnaintenance of one who is de r bed Jas the issneof the parties If he did not wish to accept relief on such conditions he should lave appealed fromthe whole desree and therebv pat thj jeourt in position Ho deternaiuo tfap entire contrarersy If the court JTSd not made the provision appealed from in favor of the child it might in lieu thereof have provided for her or putt ting the respondent possession oft J neces = ary means for that pnnpose We are of the opinion that the part of the decree appealed from ia not a final judg menfbrat is merely an incident of the decree of divorce and cannot be considered con-sidered in this appeal There are other reasons appearing in the rec rd why the decree should not bedisturbetlf but itis wnWcesettry to discuss theuj An order should be entered diimrjlsing thciisp peal II The opinion was delivered by Judge ilenderspn Zane > C J 1l ndoragi A J concur IN THE SECOND CASE the opinion was delivered by Ohio Justice Zane both associate justices concurring tIlt appears from the allegations of the complaint flied in I this action that the parties entered into 8 writing by which they agreed to submit to arbitration certain matters in controversy in elation to the title of a certain piece of land situated inS in-S ctlon 9 in Township 15 South of Range 1 West Salt Lake meridian that one Charles Foote should be the arbitrator and that if either party should fnil to abide by the award the party failing should pay to the other party 1600 It further appears ap-pears from the complaint that > in pursuance of the alleged contract tooote decided that appellant Thyper son should deed to respondents Wit beck and Taylor all the land lying south 6f what is known as the Palmer line and in considerAtion of the same Witbick should deed to Thveerson ten cres of land in another portion of tbe county and that Wubeck and Taylor tmuld pay to Thygerson the sum of 123 It further appears by the complaint com-plaint that Thygerson conveyed the land he agreed to and l Witbeck and Taylor accepted it and paid the 125 butrefused to make the deed to him M required by the award The actien was brought to recover 1000 she respondents demurred to the complaint com-plaint on the ground that fat sufficient suffi-cient to constitute a cause of action i wer < J not staed therein The Court I sustained the demurrer and the appellant appel-lant elected to stand upon his complaint com-plaint and the Court then dismissed the aetin The ruling of the Court in sustaining the demurrer to the complaint com-plaint the app llant assign s as error rke respondents take the position that the submission to arbitration void because it was prohibited by Section 1135 Code of Civil Procedure Laws of Utah 1884 We are of the opinion > hat the submission declared on was iuva > id because it was an attempt tu Submit to arbitration a controversy as to the legal title to real estate contrary n he custom of the statute quoted If the submission sued on was void i I the fact that the parties went before the person named as an arbitrator as i averred and submitted their dispute to him and he made an award that was accepted by them and performed by one party and partly performed bv the othersthis would not make the void coitract submission valid Upon a prnper showing the party who had performed per-formed the award might regain tile consideration parted with by him or its value who might insist upon a specific I spe-cific verforniance by the other party In the fcUfataining of the demurrer to I the c < mplaint by the court below wa hid 10 error The judgment is af i firmed i THE BBEDKMEYER TRIAL The trial of Dr Bredemeyer charged with drawing a pistol on Mark Lewis list Friday evening was commenced before Judge Pyper yesterday afternoon after-noon Mr Varian appeared for the defendant endant while Barlow Ferguson conducted con-ducted the prosecution From the evidence of Lewis ito it-o that on Friday last Lewis ciuseu n ictier 10 UB wriiieri to Alis Bred meyer the defendants wife asking her to call at the residence of Lewis wnen some mutters of interest inter-est to her would be explained Dr Bredemeyer called at the house between be-tween 5 and G pm on the day named and when Lewis appeared at the door dew his revolver and pointing it at him said to You sent a letter to my wifr you black niggar At this stage of the proceedings Mrs Michaelte ap pered at the door with a young baby in her arms and the defendant left Ms Susanna Lewis testified to the sam efftct Mrs l Amelia Michaelis was the next witnss for the prosecution and as she va too sick to be pr sent the co rt Adjourned to the reidence of Mrs Lewis on Brigham street where she is topping The witness was unable to peak English and Ward E Pack was sworn in as interpreter She testified that last Friday afternoon while lying sick in bed she saw the defendant enter the gate and walk towards the kitchen of Mr Lewisresidence Lewis went to the door and she followed him taking her baby which was born on I Friday morning Upon reaching I he kitchen she looked through be window and the defendant was point1ng a pistol at Lwis when she became be-came unconscious ai d saw no more She did not hear the conversation between be-tween Lewis and the defendant Being naked why she took the child with her she replied that the defendant was its father ad she intended to give it to miOn On crossexamination the witness stated that she was 10 years of age had been married to Edward Michaelis for over six years i this was her first child had never said that a Chinaman wait wa-it father B tug granted permisstoi to make I an explanaion in regard to ti d the witness stated that in April last when I she first became intimate with the defendant de-fendant he told htr thao In case a ciild was born she was to say that a Chiaan an a negro or any 003 else was ts father but if she mentioned his name in connection with it he would kill her The court attorneys and reporters tbenweat the rsiAsnfie of DrBrede meyer where the testimony of Mrs u L c 1 Hredemeyor was taken She testified that on Friday afternoon a mes enger boy called at her residence and gave her a letter from Mark Lewis rquesti her to call at his residence The defendant entered the house as slie was reading the letter and the handed I it to him After reading it he said he wonlei go and locate the house designated desig-nated in the note he immediately left and returned in a lew minutes The witness swore positively that the defendant de-fendant wa unarmed when he left The court then adjourned to the City Ball and Dr Bowers the physician who attended Mrs Michaelis during her confinement was called He testified testi-fied that the letter sent to Mrs Brede meyer was written by him in his ofII eat e-at the dictation of Lewis The trial was continued until 1930 Iris morning PROBATE CO < JRT 4 In the matter of the estate of W H HCekenlooper deceased bon oD ad ministratrix filled and approved Estate of Amelia So Woodmansee deceased de-ceased order made appc4ntlnj Joseph Woodmansee administrator of s ides tate upon fiUng abond in the sum of 13000 and taking the oath prescribed by law Estate fpf John Ifiaykoe deceased rder made of publication of notice to credi ors sft Tbe marriage certificate of Barney i liley and Francis V Wright has been iteo with the dark ef the court I I I i POLICE M COUBT j May Hart charged with fceeping a house of prostitution and May Home charged with being a resortee thereto were arraigned befere Judg Pyper yesterday and plead not guilty to the charges A fellow boasting the high sounding patronymic of W T Dever aux who was arrested with these women on the charge resorting to a house of prostitution left l 100 for his apptarance The delectable trio wi tbd t-bd tried at 2 p m today Charles Nielsen a State Road saloonkeeper saloon-keeper was found guilty of selling liquor on Sunday He will be sentenced sen-tenced this morning Charles Ballwinkle of Sugar House Ward whomade a biutal assault upon his stepmother was tried on the charge of battery ana being convicted was fined 75 and costs j |