ABATEMENT. See Intoxicating Liquors, 444.
See Discretion, 128, 222, 235, 359,
Whether a motion to make an information more definite may ever be granted
as a matter of right, not determined, but if permissible, there was no
abuse of discretion in denying such motion in this case. State v. Hakon,
It is held that under the facts of this case it is unnecessary to decide whether
§ 4752, R. C. 1905, which provides that the owner of a thing owns all its
products and accessions, establishes title to grain raised on land and
severed therefrom by one holding possession thereof after forfeiture of
an executory contract of purchase, in the vendor as against his vendee,
when such vendor has never been in possession of the land; but a review
of the authorities discloses them overwhelmingly in favor of ownership
in the grower of the crop. Golden Valley L. & C. Co. v. Johnstone, 101.
1. Under the facts of this case, held, in the absence of fraud or mistake, it
will be presumed that accountings and settlements were fairly made and
embraced all prior transactions between the parties. Held, further, that
burden is on defendant to overthrow such presumptions in which they have
failed, and to show that such settlements were erroneous in respect to
any item in the account. Wood v. Pehrsson, 357.
2. On the trial plaintiff accounted for all transactions between the parties which
occurred subsequent to the July 15, 1903, settlement, and from a con-
sideration of the testimony it is held, that there was a balance due
plaintiff on January 1, 1906, of $3,900.97, and that, to the extent of
such sum, with interest, plaintiff has a lien under the chattel mortgage
in suit, and is entitled to a foreclosure thereof, as prayed for in his com-
plaint. Wood v. Pehrsson, 357.
ACTION. See Parties, 383; Practice, 287; Quieting Title, 290.
1. Recovery of a judgment against the debtor, in a suit at law, does not waive
the right to a lien nor bar an equitable action to enforce the same.
Erickson v. Russ, 208.
2. While foreclosing his mortgage in an appropriate action, plaintiff has the right
to maintain an action to quiet title based upon his quitclaim deed, and
it is error for the trial court to force him to elect between the two actions.
May v. Cummings, 287.
3. When a use plaintiff brings suit to quiet title in the name of his grantor,
he must rely upon the title as of the date of the transfer from the nomi-
nal plaintiff to him. Hanitch v. Beiseker, 290.
4. An action begun as an equitable action may, by subsequent pleadings, be
changed in nature to one at law properly triable on demand to a jury.
Hart v. Wyndmere, 383.
5. If such action between many parties, even though of conflicting interest, is
but a combination of two or more separate actions at law, the action
is not necessarily changed from one at law to one in equity because of
such voluntary consolidation of issues by the parties. Hart v. Wynd-
ADVERSE CLAIMS. See Action, 287; Pleading, 97; Quieting
Title, 25, 290; Vendor and Purchaser, 101.
1. Secs. 7520 and 7534, R. C. 1905, define the nature of the recovery which
may be had by plaintiff in actions to determine adverse claims to real
property; and a plaintiff who has proceeded under the provisions of said
chapter can only recover a money judgment for the value of the use
and occupation, except when he shows damages by waste or removal of
the property from the premises. Golden Valley L. & C. Co. v. Johnstone,
101.
2. On an appeal in an action to determine adverse claims, where the judgment
roll only is before the supreme court, and it appears by defendant's coun-
terclaim that the tax deed under which he claims and is in possession
is a valid tax deed, and the findings show that all tax proceedings
were in accordance with the statute, and that all the grounds urged
by plaintiff to show defects in the tax proceedings do not exist,—held,
that defendant's title is valid, and that the deed under which he claims
vested a complete title in him, and that the deed under which the plaintiff
claims conveyed nothing. Murray v. Lamson, 125.
AFFIDAVIT. See Attachment, 344; District Judge, 444; Judg-
ments, 198, 222; New Trial, 551; Voters and Elections, 245.
1. Affidavits of prejudice directed at the judge of the district court, and not
filed before the commencement of the term at which the case is to be
tried, are of no effect, and do not deprive the judge of the right or power
to try the action in which such affidavits are filed during the term time.
Stockwell v. Crawford, 261.
2. Where the attachment is sought under subparagraph 8 of § 6938, the prop-
erty must be described specifically. It is not enough to tell where the
goods are, but definite allegations must be made showing what they are.
Weil v. Quam, 344.
3. A subsequent mortgagee may make the necessary affidavit and enjoin the
sale. State v. Buttz, 540.
4. The affidavit upon which the restraining order is based should set forth
the facts, for the satisfaction of the judge of the district court, but the
facts need not be stated with the same particularity required of pleadings.
The affidavit in this case examined, and, held, sufficient to confer juris-
diction. State v. Buttz, 540.
5. An application to reopen a judgment must be accompanied by an affidavit
of merits. Such affidavit of merits may set up all of the facts of the
case, and be presented to the court itself for an inspection of the merits.
It is not necessary that the client submit the facts to an attorney upon
the merits. Bismarch Grocery Co. v. Yeager, 547.
ALIMONY. See Divorce, 503.
AMENDMENT. See Pleading, 235, 359.
ANIMALS. See Criminal Law, 133.
ANSWER. See Pleading, 359.
APPEAL AND ERROR. See Certiorari, 476; Criminal Law, 179;
Evidence, 305; Indictment and Information, 179; Justice of
Peace, 348; New Trial, 377; Sales, 478; Trial, 335, 569.
1. A notice of appeal to this court is sufficient that states that the appeal is
from an order, fully describing it, although it does not state that it is
from the whole of the order, in accordance with the provisions of the
statute. State v. Bleth, 27.
2. Failure to follow § 7325, R. C. 1905, by enumerating, in an order, all papers
on which it is based, does not warrant a dismissal of an appeal from
such order. State v. Bleth, 27.
3. Payment of costs to the clerk, under an order, which are not accepted by
APPEAL AND ERROR-continued.
the appellant, is no ground for the dismissal of the appeal. State v.
Bleth, 27.
4. Where the record fails to disclose what items of cost and disbursements
were incurred, the supreme court will not review the taxation by the
trial court. State v. Winbauer, 70.
5. On demurrer to the complaint solely for improper union of several causes
of action, it is contended on appeal from an order overruling such de-
murrer that the complaint does not state a cause of action, and the
order overruling the demurrer should be reversed. Held, this question
is not before the court. Golden Valley L. & C. Co. v. Johnstone, 97.
6. In an action for damages for conversion of grain by a common carrier, in-
trusted to it for transportation, one of the defenses relied upon by
appellant was that the grain did not belong to the plaintiff consignor,
but was the property of one C. In attempting to make prooi of such
ownership after proper foundation laid, and after C. had testified that
the grain all belonged to plaintiff, C. was interrogated as to whether he
had made statements to the effect that he owned the grain. Held, that
such questions were proper as going to the credibility of C. as a wit-
ness, when offered for that purpose, and that it was reversible error of
the trial court to sustain objections to such questions. Taugher v. N.
P. Ry. Co. 111.
7. A justice's summons bore date two days after the date of filing with the
justice of the complaint, affidavit, and undertaking for attachment, and
issuance of the writ of attachment. Held, that on the offer of such
papers in evidence in an attempt to show that they were simultaneously
issued, it was not error to exclude them from evidence. Taugher v. N.
P. Ry. Co. 111.
8. On an appeal in an action to determine adverse claims, where the judgment
roll only is before the supreme court, and it appears by defendant's coun-
terclaim that the tax deed under which he claims and is in possession
is a valid tax deed, and the findings show that all tax proceedings were
in accordance with the statute, and that all the grounds urged by plaintiff
to show defects in the tax proceedings do not exist, held, that defendant's
title is valid, and that the deed under which he claims vested a complete
title in him, and that the deed under which the plaintiff claims conveyed
nothing. Murray v. Lamson, 125.
9. Whether a bill of particulars in a criminal case is permissible in this state.
not decided, but, conceding it to be, it is always within the discretion
of the trial court, which discretion will be interfered with only for abuse.
State v. Empting, 128.
10. The allowance of answers to leading questions which assume facts not proven
is strictly discretionary with trial judge; and unless there appears a
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