1. Code Civil Proc. § 427, authorizes plain- tiff to "unite several causes of action in the same complaint where they all arise out of (6) injuries to person; (7) injuries to tion so united must all belong to only one of property," and provides that "the causes of ac- these classes." Held, that plaintiff cannot join in the same complaint a cause of action for forcing the noxious fumes of chemicals into plaintiff's shop, to the injury of his health, and a cause of action for breaking into the shop and removing his personal property.-Thelin ▾ Stewart, (Cal.) 34 P. 861.
2. A cause was entitled against a firm, the summons directed to the firm, and the at- tachment issued against firm property. The complaint stated a separate cause of action against each partner as an individual. Held that, if against the firm, the complaint stated no cause of action; if against the individuals, it misjoined causes of action.-Faust v. Smith, (Colo. App.) 34 P. 261.
Adequate Remedy at Law.
See "Equity," 1; "Injunction," 1, 2; "Specific Performance," 1.
Administration.
See "Executors and Administrators."
ADMIRALTY.
Jurisdiction of state court.
Hill's Code, § 3690, so far as it author- izes a proceeding in rem in the state courts to enforce a lien for necessary supplies furnished a vessel in her home port, is invalid, as it con- travenes Const. U. S. art. 3, § 2, and Rev. St. U. S. §§ 563, 711, which give exclusive juris- diction of such proceedings to the_district ing Co. v. The Willapa, (Or.) 34 P. 689. courts of the United States.-Portland Butcher-
e, also, "Abatement and Revival;" "Limi- ation of Actions;" "Lis Pendens;" "Par- ies:" "Pleading;" "Practice in Civil Cases;" Trial;" "Venue in Civil Cases;" "Witness." rticular actions, see, also, "Assault and Bat- As evidence, see "Criminal Law," 34, 35. ery;" "Assumpsit;" "Attachment;" "De- zeit;" "Divorce;" "Ejectment;" "Forcible Entry and Detainer;" "Garnishment;" "In- unction;" "Libel and Slander;" "Malicious Prosecution;" "Quieting Title:" "Replevin;" 'Specific Performance;" "Trespass;" "Trover and Conversion."
ainst cities, see "Municipal Corporations," 18.
executors and administrators, see "Execu- tors and Administrators," 16-20.
- partnership, see "Partnership," 3-5. state, joinder of officers, see "States and State Officers," 10.
etween partners, see "Partnership," 6. counties, see "Counties," 12.
y wife, see "Husband and Wife," 10. or deficiency on mortgage foreclosure, "Mortgages," 9, 10.
or price, see "Sale," 9-11; "Vendor and chaser," 12, 13.
n contracts, see "Contracts," 18-20. n insurance policy, see "Insurance," 9-12. n judgment, see "Judgment," 37-39.
ADVERSE POSSESSION.
Declarations accompanying acts of possession, see "Evidence," 6.
Character of possession.
1. Where there is subjection of land to the in some appropriate manner adapted to the con- will and dominion of the occupant manifested dition and location of the land, a residence thereon is not essential.-Anderson v. Burnham, (Kan.) 34 P. 1056.
2. Where the children of a decedent take possession of his land, their holding is adverse to persons who claim to be his children by an- other woman, his lawful wife, and that those see in possession are illegitimate.-Westenfelder v. Pur-Green, (Or.) 34 P. 23. Color of title.
n negotiable paper, see "Negotiable Instru- ments," 11, 12.
3. Actual, notorious, continuous, and exclu- sive possession of land by an adverse occupant for more than 15 years will give title thereto, though such possession is without color of title. -Anderson v. Burnham, (Kan.) 34 P. 1056.
4. Code Civil Proc. § 325, provides that one claiming title by adverse possession must See "Pleading," 10-16. have paid all the taxes during the five years of his adverse occupancy. Held that, the ad- verse claimant having paid the taxes for that number of years, it was immaterial that some of the taxes during that time had also been paid by the original owner. - Cavanaugh V. Jackson, (Cal.) 34 P. 509.
5. In a suit to quiet title it appeared that defendant claimed under a deed made and re- corded in 1858, while plaintiff claimed under one from the same person, made and recorded in 1859, and that the grantee in the latter deed and his successors in title, including plaintiff, held open, exclusive, and adverse possession of the premises under claim of title for more than 10 years before the commencement of suit, while neither defendant nor his predecessors in title were at any time in possession. Held, that any rights possessed by defendant were barred.-Logus v. Hutson, (Or.) 34 P. 477.
On application to open judgment, see "Judg- ment," 34.
Certificate of officer-Deputy clerk.
The deputy county clerk, being duly qualified to administer oaths, may and should sign the jurat to the verification of an informa- tion without mentioning his principal.-State v. Doe, (Wash.) 34 P. 154.
See "Principal and Agent."
AGISTMENT.
Rights and liabilities of agister.
I. APPELLATE JURISDICTION II. REQUISITES.
III. PRACTICE.
IV. REVIEW.
V. EFFECT OF APPEAL.
VI. DECISION.
Appellate jurisdiction, see, also, "Courts,” 4" Compelling courts to entertain appeal, s "Mandamus," 3, 4.
Costs on, see "Costs," 8. Harmless error, see "Jury," 9, 10. In criminal cases, see "Criminal Law," 71-41 - bond, see "Bail." Record on appeal, enforcement of assessment see "Municipal Corporations," 44. Review on, see "Homicide," 6.
I. APPELLATE JURISDICTION. When appeal lies.
1. Appeals are creatures of the statute, and neither joinder in error nor the consent of per ties can confer jurisdiction upon the supres court by appeal.-Gordon v. Gray, (Colo. Sup 34 P. 840.
2. Under Practice Act 1891, the propr method for the review of common-law ca is by writ of error, and not by appeal-A son, T. & S. F. R. Co. v. Martin, (N. M.) 34 P. 536; Martin v. Atchison, T. & S. F. R. Co.. Id Appealable judgments and orders.
3. Before an appeal can be taken from action of the probate court on any part of the final settlement of an administrator, it must pear that the probate court has taken final st tion on the settlement, and has passed on the whole account presented. — Appeal of Bigge (Kan.) 34 P. 782.
A person claiming a lien for feeding live stock has the right of possession until the debt is paid, but he can do nothing to enforce payment except in pursuance of the statute 4. An order of the superior court appoint providing for the enforcement of such a lien;ing an assignee in insolvency in place and, if he makes a sale of the stock without named by the assignor in his deed of assig complying with the statute, the owner of the ment is not a final judgment, from which an stock may resume possession thereof, or bring appeal will lie.-State v. Parker, (Wash.) 4 an action for its conversion.-Greenawalt v. Wilson, (Kan.) 34 P. 403.
Alcoholic Liquors.
See "Intoxicating Liquors."
6. The right of a physician to appeal to the Eligibility to office, see "Office and Officer," 1. district court from the action of the state
Alteration of Instruments. Delivery of bond with blanks, authority to fill, see "Bonds."
board of medical examiners in revoking his license to practice his profession, as provided by Sess. Laws 1889, p. 175, is not nugang because the legislature has prescribed no ras of practice to guide the district court in ad dicating such cases.-State v. District Court d First Judicial District, (Mont.) 34 P. 298. Jurisdictional amount.
7. Under Const. art. 6, § 4, granting the supreme court appellate jurisdiction in cases at law only where the demand, exclusive of interest, amounts to $300, that court cann taxing a cost bill which is less than tast 101.
Of articles or certificate of incorporation, see review an order, made after final judgmen "Corporations," 1.
city charter, see "Municipal Corpora- amount.-Fairbanks v. Lampkin, (Cal.) 34 P.
Of pleading, see "Pleading," 19-23. Of statutes, see "Statutes," 2-4.
8. Civil Code, § 542a, provides that no peal or proceeding in error can be had or tar
9. A notice of appeal from a justice, en- itled "State of Washington, county of Spokane -ss.: Before C., justice of the peace,' is not bjectionable as not entitled in a court.-State Superior Court of Spokane County, (Wash.) 84 P. 922.
10. A notice of appeal from a justice, ad- Hressed to above-named plaintiff and his attor- neys, "that the above-named defendant appeals to the superior court from a judgment hereto- Fore rendered by said justice of the peace against him in the above-entitled action," is not bad for failure to more particularly describe the judgment. Dunbar, C. J., dissenting.-- State v. Superior Court of Spokane County, (Wash.) 34 P. 922.
11. Where notice of appeal is given in open court, no other notice or service is necessary. -Moore v. Brownfield, (Wash.) 34 P. 199.
12. In an action to foreclose a mortgage, the owners of two-thirds of the property al- leged that plaintiff, as mortgagee, had been in possession and received certain rents and prof- its, and prayed for an accounting. A demur- rer to this answer having been sustained, judg- ment was rendered against such owners, and they appealed. The owner of the other third
interest consented to judgment for plaintiff, the latter having waived a deficiency judg- ment. The mortgage debt bore interest at 8 per cent., and the judgment at 7. Held, that notice of appeal must be served on the owner of the one-third interest, since he would be in- juriously affected by a reversal of the judg- ment.-De Arnaz v. Jaynes, (Cal.) 34 P. 223.
13. Under Code Civil Proc. § 1016, declar- ing a notice without the title of the action or proceeding in which it is made, or with a de- fective title, as valid and effeétual as if duly entitled, if it intelligently refers to the action or proceeding, a notice of appeal, in which a mis- take is made in the first name of respondent in the title of the action, is sufficient where it is duly entitled as to the court and the depart- ment in which the action was tried, and intel- ligently refers to the number of the cause, and to the judgment and order appealed from.-But- ler v. Ashworth, (Cal.) 34 P. 780.
14. Where a petition to vacate a judgment against plaintiff was answered by only a part of the defendants, service of notice of appeal from an order denying such petition on only those defendants who answered the petition is sufficient service, within Code Proc. § 1406, providing that such notice shall be served on all parties interested in the proceeding.-Seattle & M. Ry. Co. v. Johnson, (Wash.) 34 P. 567. Bond.
15. Mills' Ann. St. § 4444, provides that in all actions, suits, and proceedings in any court in the state in which a municipal corporation is a party it may take an appeal, and have a writ of error made a supersedeas, without giving bond. Section 1086, shortly afterwards enact ed at the same session of the legislature, pro- viding for appeals from the county to the dis trict court, requires a bond to be filed as a pre- requisite, making no exceptions. Civil Code, § 395, afterwards enacted at the same session, relates to appeals to the supreme court only, and provides that when a municipal corpora- tion is appellant, the court shall direct a stay of execution without filing a supersedeas undertaking. Held, that section 4444 applies
only to appeals to and writs of error from the supreme court, and, where a municipal cor- poration appeals from a county to the district court, it must file a bond within the time pre- scribed by section 1086.-City of Pueblo v. Jack- son, (Colo. App.) 34 P. 766.
16. When it is shown that the surety on an appeal bond has become insufficient, the appel- late court may order a new bond with suffi- cient surety as a condition to the maintenance of the appeal, and, in default thereof, may dis- miss the appeal.-Williams v. Williams, (Colo. Sup.) 34 P. 285.
17. Where no motion is filed to discharge an appeal bond for alleged defects, in accordance with Code Proc. § 1421, providing for such mo- tion on 10 days' written notice to appellant, the appeal will not be dismissed on the ground that the bond is defective.-Seattle & M. Ry. Co. v. Johnson, (Wash.) 34 P. 567. Defective bond-Right to file new one. the court, and the department thereof, in which 18. Where the undertaking on appeal names the action was tried, gives the number of the cause, and accurately describes the judgment and order appealed from, but contains a mis- take in the first name of respondent in the title of the cause, a justice of the supreme court may, under Code Civil Proc. § 954, allow worth, (Cal.) 34 P. 780. a new undertaking to be filed.-Butler v. Ash-
Necessity of exceptions.
19. Where the only error assigned is upon a judgment of dismissal, being substantially the sustaining of a demurrer to the complaint, no ex- ception is necessary, as the decision is apparent upon the record.-Long v. Billings, (Wash.) 34 P. 936. Necessity of motion for new trial.
20. A motion for a new trial is not needed to support an appeal from a judgment of non- suit.-William Mercantile Co. v. Fussy, (Mont.) 34 P. 189.
21. A motion for new trial is not necessary to a review of proceedings on motion to set aside a judicial sale of land.-Dreese v. Myers, (Kan.) 34 P. 349.
III. PRACTICE. Necessary parties.
22. Where, in an action in tort against two defendants, judgment is rendered against both jointly, one may bring error to review the same without joining therein the codefendant.-New Mexico & S. P. R. Co. v. Madden, (N. M.) 34 P. 50. Assignment of errors.
23. In an action in the nature of ejectment, a specification of error that "the evidence showed that defendant M. was not in posses- sion of said premises, or of any part thereof, at the time of the commencement of this ac tion," is insufficient.-Moore v. Moore, (Cal.) 34- P. 90.
24. In a proceeding in the nature of a quo warranto to oust an officer for misconduct, the sufficiency of the information cannot be at- tacked in the supreme court, in the absence of a specific assignment of error in that regard.- Bradford v. Territory, (Okl.) 34 P. 66. Specifications of error in notice of ap-
25. Under Hill's Code, § 537, providing that. when a motion specifies its grounds with rea- sonable certainty, the specifications of error. on notice of appeal, need only distinguish the particular ruling of which a review is sought. a specification of error in such notice that the court erred in sustaining in part plaintiff's mo- tion to strike out portions of the answer, and in making an order striking out a portion of such answer, sufficiently shows what motion and or- der are referred to, where it appears from the record that the motion designated the particular-
parts of the answer which it attacked, and that the court made an order striking out such part. -Bridal Veil Lumbering Co. v. Johnson, (Or.) 34 P. 1026.
Insufficient exceptions helped out by assignment of errors.
26. Though an exception to instructions, as it appears in one place in the bill of exceptions, may be too general, the instruction will be re- viewed where, in immediate connection with the instructions set out in the bill, and, so far as appears from the bal, of the same date as the general exception, there appears an assign- ment of errors in which the particular instruc- tions are set out, and it is stated that they are
relied on as error.-Miller v. Vermurie, (Wash.)
27. Where it is not shown by record that the motion for a new trial was filed within three days after the judgment was rendered, the su- preme court cannot say that the district court erred in overruling the motion.-De Ford v. Or- vis, (Kan.) 34 P. 1044.
28. The record must affirmatively show the service of the notice of appeal on the adverse party or his attorney.-Adams v. McPherson, (Idaho) 34 P. 1095.
29. Though an application for designation of a way of necessity as a common-law right would be an equitable proceeding, so that the entire record on an appeal taken in April, 1893, would have to be brought up, a proceeding to appro- priate a private way of necessity, not author- ized by the common law, is a condemnation proceeding, and no more of the record need be brought up than in ordinary civil actions.- Long v. Billings, (Wash.) 34 P. 936.
30. A supplemental transcript showing amendments to the statement on motion for new trial, sent up on an order granting a motion sug- gesting a diminution of the record, should not be stricken from the files where there is a dis- pute as to whether or not such amendments are incorporated in the original statement; since, if they are, no harm will result from a duplication of the same, while, if they are not, the party calling therefor is entitled to have them in the record.-Doyle v. Gore, (Mont.) 34 P. 846.
31. Rule 2 of the supreme court, which re- quires the transcript to be filed within 40 days after taking an appeal, is not superseded, nor is the time of filing extended for 5 days, by rule 11, which allows the appellee 5 days in which to examine the transcript presented by appellant and to certify to its correctness.― Bethell v. Rogers, (Cal.) 34 P. 645.
32. Where, on appeal, the only question is whether an instrument sought to be fore closed was given as a mortgage, and the ques- tion was treated as an issue of fact below, but no finding was made, and the instrument is not brought up by the record, and is only pleaded according to its legal effect, there is nothing by which the appellate court can de- termine the nature of the instrument, and a decree refusing a foreclosure must be reversed. -Powell v. Patison, (Cal.) 34 P. 676.
33. Under Code Civil Proc. § 950, providing that any statement used on motion for new trial, or any bill of exceptions settled, may be used on appeal from a final judgment, the fact that a bill of exceptions on appeal is entitled a bill of exceptions on motion for new trial is immaterial.-Bedan v. Turney, (Cal.) 34 P. 442. 34. Where the only thing in the record to show service of the "case' on defendant in error is an indorsement thereon that "the fore- going is O. K.," signed by his attorney, and dated after the expiration of the time given by the court in which to make a case, the writ of error will be dismissed. - Hunter v. Cross, (Kan.) 34 P. 781.
35. An objection to the exclusion of evi- dence will not be considered on appeal, where the statement does not show in what it con-
sisted.-City of Santa Ana v. Harlin, (Cal) # P. 224.
36. A paper in the transcript, denominate a "bill of exceptions," not certified by the des to be a correct copy of any bill of excepties on file, and not containing any specific er tions to any particular finding of the ear will not be considered by the supreme court- Helsel v. Seeger, (Cal.) 34 P. 237.
37. The sufficiency of testimony containe in a transcript on appeal, unaccompanied bra certificate that it was given or is corrent stated, will not be considered.-Hawkins T Morehead, (Cal.) 34 P. 223.
judge must certify that the statement of fat 38. Under 2 Hill's Code, § 1423, the tri on appeal in an equity case contains_al_be material facts." Clark-Harris Co. v. Douthit. 30 P. 744, 4 Wash. 465, followed.—Holm t Gilchrist, (Wash.) 34 P. 1102.
89. A notice to settle a statement of fac given 21 days after judgment is filed, is n time, though it is not given until 33 days after the date of the judgment, and the filing of the findings of fact. - McGlauflin v. Merrian, (Wash.) 34 P. 561.
40. Where a party appears before the judge the day after the date fixed in the notice a settle a statement of facts, and objects to set tlement only because the notice was not given in time, he thereby waives objection to the jur diction of the court to settle the statement on that day.-McGlauflin v. Merriam, (Wash.) 34 P. 561.
41. Where, in a suit in equity for partition. the judge erroneously transfers the case to a other department, before another judge, for jury trial, which is had, and by mandamus the equity judge is afterwards required to proceed with the case, which he does by dismissing the action, and on appeal each judge certifies to statement of the facts before him, the state ment of the equity judge, only, will be const ered.-Hill v. Young, (Wash.) 34 P. 144.
Compelling ex-judge to settle state-
42. A judge of a superior court, whose term expired on the second Monday of January, 186 cannot be thereafter compelled by mandamus ta settle and certify a statement of facts; Act Jan. 21, 1893, only authorizing, and not requ ing, such action by an ex-judge.-State v. A lyn, (Wash.) 34 P. 914.
How matters brought into record. 43. Where an exception to the dismissal of an action was noted and signed by the judg being made a part of the order of dismissal. : lings, (Wash.) 34 P. 936. bill of exceptions is necessary.-Long v. E-
ing a petition to vacate a judgment, the on 44. Where, on appeal from an order decy question presented is the regularity of the jui of facts is necessary; the facts legitimate ment, neither a bill of exceptions nor statement in the record being sufficient to enable a termination of such question.—Seattle & M. Ry Co. v. Johnson, (Wash.) 34 P. 567.
45. Instructions given and refused, not in corporated in the statement or bill of ex>> Electric Light Co. v. Morgan, (Mont.) 34 P. tions, cannot be reviewed on appeal.-Miss na
46. In order to obtain a review of a rela on the refusal of the court to allow amendmet of pleadings, the request and ruling must e incorporated in the statement, or brought up is bill of exceptions.-Campbell v. Freeman, (Ca 34 P. 113.
Bringing up the evidence.
47. The evidence taken at a trial before & referee, in an action at law, and which Co Proc. § 387, requires him to file with his re port, when so filed, becomes a part of the ree ord in the case, proper to be sent up on appel
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