Arizona republican., 1898-04-03
IN DISTRICT COURT.
An Interesting Decision in the Seass
 Zeck Case

Judge Baker yesterday conclud d his argument, begun week ago, on his motion to fix the amount of super- sedeas bond in the case of Seass vs. Zeck, notice of appeal having been given. The argument involved the theory that the appeal would keep an injunction alive. The case itself was of little interest and has been ire Quently described, but in view of rather interesting and unexpected de- cision it bcomes necessary to recount the leading features of the contro- versy. The plaintiff, Miss SeAss, is the owner of tract of land near Kyrene. Her land is watered by ditch which runs through and cuts off a corner of about twenty acres of the defend- ants farm. Other persons, among whom is Valentine Cant, also receive water from the same diteh. The de- fendant was desirous of closing this ditch and conducting the water around his farm instead of across it.
 Miss Seass brought suit against Zeck asking for a temporary lnjunc- tion restraining him from filling this ditch. At hearing of the case the temporary injunctioN\was dissolved
 
 ated until the next Saturday, on which day notice of appeal was given. Judge Baker in a very interesting argume ent, supported by many authorities, took the ground that an appeal carried the case to the supreme court in precisely the same shape in which it might be when the notice of appeal was given and that the court was without au- thority to make any order in the case so appealed. He insisted that no in justice could be done the defendant, since the supersedeas bond was de- signed to cover not only the costs, but any damages that might result to the opposing party. Among the au- thorities he quoted was one from Gila county which had come to the su- preme court of the territory at time when Judge Kibey of the opposing counsel was associate justice and who wrote the decision. Judge Baker re- lied wholly on the law of 1887 regard ing bonds in appealed cases. Judge Kibbey replied briefly, after which Judge Street sustained Judge Baier's contention regarding the effact Of the appeal on the injunction. But he ob- served that the fight Miss Seass was making was not her fight. but the fight of Valentine Cant, who had put her forward It was not proper. therefore, that MT. Cant should participate in any of the advantages which light re- suit from the cou~st. the litigation had taken, since he had not asked any thing of the court. The cou had So learned that Miss Sesss used only one fifth of the water conveyed by the ditch. It was. therefore ordered that Zeck, who had prematurely filled the ditch, should reopen it, not to it's or iginal capacity, but just enoueh to carry the water needed by the plaintiff, but that no water should be de- livered through it to anybody else.
 Yesterday was law day, perhaps the last that will be held for some time, as Judge Street will go to Yuma to hold court. Judge Slcan will arrive to- morrow and try the Bryan cases and other cases in which Judge Street Is disqualified. All these matters will oc- cupy about two weeks.
 In the case of Spicer vs. the Simms Improvement company, motion to dissolve attachment was overruled and judgment was rendered the plain tiff There was also judgment fer the plaintiff in the case Of Gang vs the Simms Improvement company.
 | A motion for new trial was over ruled in the case of Hickey vs. Far rington and ten days stay of execu- ] tion was ordered. In the divorce suit of Avery vs. Avery, the defendant husband was ordered to pay $100 as counsel fee for the wife and alimony ot $25 during the litigation. In the case of Hurley vs. the Tempe and Mesa Produce company, the defendant was given leave to file an amended answer There was a re-examination of the supersedeas bond in the W1lson-Daggs case.
 The cases of Walker vs. Gray, and Gray vs. the Hartford Banking com pany were reset for April 26.
 Orders for setting of all cases before April 25 were rescinded.