Page images
PDF
EPUB
[ocr errors]

18

[ocr errors]

Dry. Ashworth, (Cal.) 34 P. 780.

the supreme court, in any civil action, unless only to appeals to and writs of error from
e amount in controversy, exclusive of costs, the supreme court, and, where a municipal cor-
ceeds $100, except in certain specified cases. poration appeals from a county to the district
ld, where the damages claimed exceeded $100, court, it must file a bond within the time pre-
at the judgment was for $100 only, exclusive scribed by section 1086.-City of Pueblo v. Jack-

costs, that defendant could not prosecute a son, (Colo. App.) 34 P. 766.
1 rit of error to the supreme court, since the 16. When it is shown that the surety on an

gount in controversy, as to him, was fixed by appeal bond has become insufficient, the appel-
e judgment.-Richmond v. Brummie, (Kan.) late court may order a new bond with suffi.
P. 783.

cient surety as a condition to the mainten:ince

of the appeal, and, in default thereof, may dis-
II. REQUISITES.

miss the appeal.-Williams v. Williams, (Colo.
otice.

Sup.) 34 P. 285.
9. A notice of appeal from a justice, en 17. Where no motion is filed to discharge an
-led “State of Washington, county of Spokane appeal bond for alleged defects, in accordance
ss.: Before C., justice of the peace,' is not with Code Proc. § 1421, providing for such mo-
jectionable as not entitled in a court.-State tion on 10 days' written notice to appellant, the
Superior Court of Spokane County, (Wash.) appeal will not be dismissed on the ground that
P. 922.

the bond is defective.--Seattle & M. Ry, Co.
10. A notice of appeal from a justice, ad- v. Johnson, (Wash.) 34 P. 567.
'essed to above-named plaintiff and his attor. Defective bond-Right to file new one.
'ys, "that the above-named defendant appeals
the superior court from a judgment hereto- the court, and the department thereof, in which

Where the undertaking on appeal names
re rendered by said justice of the peace the action was tried, gives the number of the

gainst him in the above-entitled action," is not
lid for failure to more particularly describe and order appealed from, but contains a mis-

cause, and accurately describes the judgment
Brie judgment. Dunbar, C. J., dissenting.--

ate v. Superior Court of Spokane County, take in the first name of respondent in the
Im Vash.) 34 P. 922.

title of the cause, a justice of the supreme
Where Burt, no other notice or service is necessary. worth, (Cal.) 34 P. 780.
11. Where notice of appeal is given in open court may, under Code Civil Proc. $ 954, allow

a new undertaking to be filed.—Butler v. Ash-
Moore v. Brownfield, (Wash.) 34 P. 199.

12. In an action to foreclose a mortgage, Necessity of exceptions.
* mate owners of two-thirds of the property al 19. Where the only error assigned is upon a
m-ged that plaintiff, as mortgagee, had been in judgment of dismissal, being substantially the

ossession and received certain rents and prof- sustaining of a demurrer to the complaint, no ex-
ws, and prayed for an accounting. A demur- ception is necessary, as the decision is apparent
ir to this answer having been sustained, judg. upon the record.-Long v. Billings, (Wash.) 34
ent was rendered against such owners, and P. 936.
ley appealed. The owner of the other third Necessity of motion for new trial.
.terest consented to judgment for plaintiff,
te latter having waived a deficiency judg-

20. A motion for a new trial is not needed
The mortgage debt bore interest at 8 to support an appeal from a judgment of non-
Baie I. cent., and the judgment at 7. Held, that suit. - William Mercantile Co. v. Fussy, (Mont.).

ptice of appeal must be served on the owner 34 P. 189.
the one-third interest, since he would be in-

21. A motion for new trial is not necessary
iriously affected by a reversal of the judg- to a review of proceedings on motion to set
ent.-De Arnaz v. Jaynes, (Cal.) 34 P. 223. aside a judicial sale of land.-Dreese v. Myers,

13. Under Code Civil Proc. $ 1016, declar- (Kan.) 34 P. 349.
ig a notice without the title of the action or
coceeding in which it is made, or with a de-

III. PRACTICE.
****ctive title, as valid and effectual as if duly
Leo ntitled, if it intelligently refers to the action or

Necessary parties.
roceeding, a notice of appeal, in which a mis 22. Where, in an action in tort against two
D:325 lke is made in the first name of respondent defendants, judgment is rendered against both
17-1 the title of the action, is sutlicient where it jointly, one may bring error to review the same

duly entitled as to the court and the depart without joining therein the codefendant.-New
à 5:2 ient in which the action was tried, and intel- Mexico & S. P. R. Co. v. Madden, (N. M.) 34

gently refers to the number of the cause, and P. 50.
the judgment and order appealed from.-But- Assignment of errors.

23. In an action in the nature of ejectment,
14. Where a petition to vacate a judgment a specification of error that “the evidence
gainst plaintiff was answered by only a part showed that defendant M. was not in posses-

the defendants, service of notice of appeal sion of said premises, or of any part thereof,
om an order denying such petition on only at the time of the commencement of this ac-
nose defendants who answered the petition is tion," is insufficient.-Moore v. Moore, (Cal.) 34 -
ufficient service, within Code Proc. 8 1406, P. 90.
roviding that such notice shall be served on 24. In a proceeding in the nature of a quo
ll parties interested in the proceedling: -Seattle warranto to oust an officer for misconduct, the
: M. Ry. Co. v. Johnson, (Wash.) 34 P. 567. sutriciency of the information cannot be at-

tacked in the supreme court, in the absence of
Bond.

a specific assignment of error in that regard.-
15. Mills' Ann. St. § 4444, provides that in Bradford v. Territory, (Okl.) 34 P. 66.
U actions, suits, and proceedings in any court
1 the state in which a municipal corporation is Specifications of error in notice of ap-
party it may take an appeal, and have a writ peal.
f error made a supersedeas, without giving 25. Under Hill's Code, $ 537, providing that.
ond, Section 1086, shortly afterwards enact- when a motion specifies its grounds with rea-

at the same session of the legislature, pro- sonable certainty, the specifications of error.
iding for appeals from the county to the 'dis- on notice of appeal, need only distinguish the
rict court, requires a bond to be filed as a pre- particular ruling, of which a review is sought.
equisite, making no exceptions. Civil Code, & å specification of error in such notice that the
95, afterwards enacted at the same session, court erred in sustaining in part plaintiff's mo-
elates to appeals to the supreme court only, tion to strike out portions of the answer, and in
pd provides that when a municipal corpora- making an order striking out a portion of such
ion is appellant, the court shall direct a stay answer, sufficiently shows what motion and or.
f execution without filing a supersedeas der are referred to, where it appears from the
ndertaking. Held, that section 4441 applies record that the motion designated the particular

[ocr errors]
[ocr errors]
[ocr errors]
[ocr errors]

parts of the answer which it attacked, and that , sisted - City of Santa Ana v. Harlin, (CEL) 2
the court made an order striking out such part. P. 224.
- Bridal

Veil Lumbering Co. v. Johnson, (Or.) 36. A paper in the transcript, denomin
34 P. 1026.

a "bill of exceptions," not certified by the
Insufficient exceptions helped out by

to be a correct copy of any bill of except

on file, and not containing any specific eIn
assignment of errors.

tions to any particular finding of the au.
26. Though an exception to instructions, as will not be considered by the supreme corri-
it appears in one place in the bill of exceptions, Helsel v. Seeger, (Cal.) 34 P. 237.
may be too general, the instruction will be re 37. The sufficiency of testimony contain
viewed where, in immediate connection with in a transcript on appeal, unaccompanied !
the instructions set out in the bill, and, so far certificate that it was given or is corte
as appears from the bul, of the same date as stated, will not be considered.-Hawkins 1
the general exception, there appears an assign- Morehead, (Cal.) 34 P. 223.
ment of errors in which the particular instruc-

Statement of facts.
tions are set out, and it is stated that they are
relied on as error.—Mipler v. Vermurie, (Wash.) judge must certify that the statement of it

38. Under 2 Hill's Code, ş 1423, the tria
34 P. 1108.

on appeal in an equity case contains "al
Record.

material facts.” Clark-Harris Co. v. Daca
27. Where it is not shown by record that the 30. P. 744, 4 Wash. 465, followed.-Hola i
motion for a new trial was filed within three Gilchrist, (Wash.) 34 P. 1102.
days after the judgment was rendered, the su 39. A notice to settle a statement of fa
preme court cannot say that the district court given 21 days after judgment is filed, is in
erred in overruling the motion.-De Ford v. Or. time, though it is not given until 33 days afe
vis, (Kan.) 34 P. 1014.

the date of the judgment, and the filing of
28. The record must affirmatively show the findings of fact. – McGlauflin . Merre,
service of the notice of appeal on the adverse (Wash.) 34 P. 561.
party or his attorney.-Adams v. McPherson, 40. Where a party appears before the jode
(Idaho) 34 P. 1095.

the day after the date fixed in the note 3
29. Though an application for designation of settle a statement of facts, and objects to
a way of necessity as a common-law right would tlement only because the notice was not girenia
be an equitable proceeding, so that the entire time, he thereby waives objection to the just
record on an appeal taken in April, 1893, would diction of the court to settle the statement a
have to be brought up, a proceeding to appro- that day.—McGlauflin v. Merriam, (Wash.)
priate a private way of necessity, not author- P. 561.
ized by the common law, is a condemnation 41. Where, in a suit in equity for partition
proceeding, and no more of the record need be the judge erroneously transfers the case to us
brought up than in ordinary civil actions.—other department, before another judge, for :
Long v. Billings, (Wash.) 34 Þ. 936.

jury trial, which is had, and by manda nos te
30. A supplemental transcript showing equity judge is afterwards required to proceso
amendments to the statement on motion for new with the case, which he does by dismissing the
trial, sent up on an order granting a motion sus action, and on appeal each judge certifies ta
gesting a diminution of the record, should not statement of the facts before

him, the sota
be stricken from the files where there is a dis- ment of the equity judge, only, will be cold
pute as to whether or not such amendments are ered.-Hill v. Young, (Wash.) 34 P. 144.
incorporated in the original statement; since, if
they are, no harm will result from a duplication

Compelling ex-judge to settle state-
of the same, while, if they are not, the party ment.
calling therefor is entitled to have them in the 42. A judge of a superior court, whose tars
record.-Doyle v. Gore, (Mont.) 34 P. 846. expired on the second Monday of January, 150.

31. Rule 2 of the supreme court, which re- cannot be thereafter compelled by maodana ta
quires the transcript to be filed within 40 days settle and certify a statement of facts; de
after taking an appeal, is not superseded, nor Jan. 21, 1893, only authorizing, and not regt:
is the time of filing extended for 5 dalys, by ing, such action by an ex-judge.-State 5. 1
rule 11, which allows the appellee 5 days in lyn, (Wash.) 34 P. 914.
appellant and to certify to its correctness.-43. Where an exception to the dismissa: a
Bethell v. Rogers, (Cal.) 34 P. 615.

32. Where, on appeal, the only question is an action was noted and signed by the judge
whether an instrument sought to be fore being made a part of the order of dismissal. 2
closed was given as a mortgage, and the ques: lings, (Wash.) 34 P. 936.

bill of exceptions is necessary.-Long F. EL-
tion was treated as an issue of fact below, but
no finding was made, and the instrument is ing a petition to vacate a judgment, the s

44. Where, on appeal from an order dar
not brought up by the record, and is only
pleaded according to its legal effect, there is question presented is the regularity of the jako
nothing by which the appellate court can de ment, neither a bill of exceptions nor statezza
termine the nature of the instrument, and a in the record being sufficient to enable e de

of facts is necessary; the facts legitim.
decree refusing a foreclosure must be reversed. termination of such question. -Seattle & M
-Powell v. Patison, (Cal.) 34 P. 676.
33. Under Code Civil Proc. $ 950, providing

Co. v. Johnson, (Wash.) 34 P. 567.

45. Instructions given and refused, not i
that any statement used on motion for new
used on appeal from a final judgment, the fact Electric Light Co. v. Morgan, (Mont.) 34 P.
trial, or any bill of exceptions settled, may be corporated in the statement or bill of P3

tions, cannot be reviewed on appeal.-Misu
that a bill of exceptions on appeal is entitled a

488.
bill of exceptions on motion for new trial is

46. In order to obtain a reriew of a relize
immaterial.-Bedan v. Turney, (Cal.) 34 P. 442.
34. Where the only thing in the record to of pleadings, the request and ruling puust

on the refusal of the court to allow amerier
show service of the "case" on defendant in
error is an indorsement thereon that “the fore- incorporated in the statement, or brought up is
going is 0. K.,” signed by his attorney, and bill of exceptions.-Campbell r. Freeman, its

34 P. 113.
dated after the expiration of the time given by
the court in which to make a case, the writ of Bringing up the evidence.

will be dismissed. - Hunter v. Cross, 47. The evidence taken at a trial before !
(Kan.) 34 P. 781.

referee, in an action at law, and which less
35. An objection to the exclusion of evi. Proc. $ 387, requires him to file with his me
dence will not be considered on appeal, where port, when so filed, becomes a part of the internet
the statement does not show in what it con- 'ord in the case, proper to be sent up on appena

error

without any statement.-Bash y. Culver Gold- | the action is dismissed, and judgment rendered
Min. Co., (Wash.) 34 P. 462.

for defendant, plaintiff may, on appeal from
Hearing to be had at what term.

this judgment, obtain a review of errors com-
48. Comp. Laws, $ 2189, making all ap-

mitted in setting aside the verdict and grant-
peals taken less than 30 days before the next | ing a new trial.-Kahn v. Traders’ Ins. Co.,
term of the supreme court returnable to the (Wyo.) 34 P. 1059.
next succeeding term, is not affected by Act Estoppel to allege error.
Feb. 24, 1887, as amended by Act Jan. 5, 1889, 58. A record on appeal showed that defend-
making it the duty of the clerk, riut less than ant's motion for new trial was "by consent sub-
5 for more than 10 days before the meeting of mitted to the court without argument,” and that
the court, to print a calendar of the causes defendant said that the "court might pass upon
pending; and a case placed on such calendar, said motion then and there, without taking time
when appealed less than the statutory 30 days to consider the same, and that, so far as defend-
before the term, will be stricken therefrom on ant was concerned, the motion might then and
motion. -Cunningham v. Conklin, (N. M.) 34 P. there be overruled.” Held to show only that de-
43; Conklin v. Cunningham, Id.

fendant consented to a formal ruling on his
Hearing cases out of order-When jus- motion to enable him to appeal for a review of
tified.

the questions involved, and not that he con-
49. The practice of bringing cases to be prevent a review on appeal.-Wastl v. Montana

sented to the overruling of the motion so as to
heard out of their order, as presenting a ques- Union Ry. Co., (Mont.) 34 P. 844.
tion of great public interest," is to be discour-
aged, and is only warranted by grave public Law of the case-Second appeal.
considerations. - City of Olympia V. Moore, 59. Where, on the retrial of an action after a
(Wash.) 34 P. 930.

judgment of reversal by the supreme court, the
Appeals from inferior courts.

conclusion of the trial court, based on the same
50. Under Code Civil Proc. 88 730, 731, facts established on the first trial, is in accord-
822-826, providing that on appeal from 'a jus: ance with the decision on such appeal, such

con-
tice's court the cause shall be tried de novo in clusion will not be reviewed on a second ap-
the district court, the latter court cannot re- peal.-Smith v. City of San Luis Obispo, (Cal.)
view the action of the justice in rendering

34 P. 830.
judgment five days after hearing instead of

60. On an appeal on the judgment roll by
within four days, as provided by Code Civil plaintiff from a judgment for defendant, the
Proc. $ 794.-Missoula Electric Light Co. v.

supreme court reversed and directed the court
Morgan, (Mont.) 34 P. 488.

below to enter a judgment on the findings for
51. Where, in a suit before a justice, the plaintiff in accordance with the prayer of the
amount of the claim is indorsed on the sum- complaint. The court did so, and defendant ex-
mons by the justice, as provided by Gen. St. cepted and appealed. Held, that the question
1883, § 1938, the county court on appeal can-

whether the complaint stated a cause of ac-
not enter judginent in excess of such amount. tion was decided on the former appeal, whether
- Meyer v. Helland, (Colo. App.) 34 P. 482.

the demurrer was in the record or not. 32 P.
Waiver of objections.

876, reversed.-Klauber v. San Diego Street-
52. While it is the general rule that a party

Car Co., (Cal.) 34 P. 516.
who has objected to the sufficiency of process, Objections not raised below.
by answering over, waives such objection, this 61. As the supreme court will only consider
rule does not apply to appeals from justice or questions which were passed upon by the trial
probate courts to district courts, since Rev. St. court, where the record does not show that any
§ 4841, provides that in such appeals either of the pleadings were demurred to, nor that
party may have the benefit of all legal objec- any exceptions were taken to the rulings at
tions and exceptions in the court below, and the the trial, nor that a motion for a new trial
trial in the district court shall be de novo. was made, it presents nothing for review.-
Chase v. Hagood, (Idaho,) 34 P. 811.

Perez y. Barber, (N. M.) 34 P. 189.

62. Error in granting nonsuits is an error
IV. REVIEW

in law which must be excepted to that it may
In general.

be considered on appeal. Nelmes v. Wilson,
53. Where it clearly appears that the judg-

(Cal.) 34 P. 341.
ment is right, it will not be reversed on the argument is deemed prejudicial, the attentiou

63. Where the language used by counsel in
sole ground that some erroneous reason for the of the court should be challenged by a proper
decision was expressed.-Home Ins. Co. v.
Atchison, T. & S. F. R. Co., (Colo. Sup.) 31 P: objection, and a ruling had thereon by the trial
281.

court; and generally, when this is not done,
54. Though an order for a new trial is made there can be no review of the question on ap-
on an erroneous ground, yet, if the order can peal.-State v. Nusbaum, (Kan.) 34 P. 407.
be justified on grounds of error in law occur. Discretion of trial court.
ring during the progress of the trial, it should 64. An order of the district court, refusing
be affirmed.-Shanklin v. Hall, (Cal.) 34 P. 636. to reinstate an appeal from a United States
Constitutional questions.

commissioner's court, which was dismissed
55. The supreme court cannot decide a con.

for failure to pay the docket fees within the
stitutional question not raised below, and de- time required by the rules of court, will be
pending on questions of fact as well as of law, presumed to have been a proper exercise of
unless the questions of fact have been submit: judicial discretion, unless the contrary is af.
ted and determined in the lower court.-Rice firmatively and clearly shown.-Henderson v.
v. Carmichael, (Colo. App.) 34 P. 1010.

Higgins, (Utah) 34 P. 61.

65. The overruling of a motion to amend the
Appeal from decree sustaining demur- record as to what was admitted in court will
rer.

not be disturbed, there being involved only a
56. On appeal from a decree for plaintiff question of fact, as to what was admitted. -
given on demurrer to the answer, the allega- Magna Charta Silver lining & Tunnel Co. v.
tions of the latter must be taken as true.-Wil- Tapscott, (Colo. App.) 31 P. 812.
son v. City of Salem, (Or.) 34 P. 9; Id. 691.

66. The determination of whether the fail.

ure of a party to procure additional time to
Review of order granting new trial.

prepare a statement on which to apply for a
57. Where a verdict for plaintiff is set aside new trial was the result of excusable neglect
and a new trial granted, and, plaintiff electing or mistake is within the discretion of the trial
to rely on his exceptions taken to such action court, and its findings are conclusive.-Cole v.
of the court, and refusing to proceed further, Wilcox, (Cal.) 34 P. 114.

67. Where the record on appeal from a ment, but inhibiting consideration of an er
judgment baserl on conflicting evidence does tion to the decision, as being unsupport
not disclose any abuse of judicial discretion evidence, unless the appeal is withic a fi
in overruling the motion for a new trial, the after rendition of judgment, the erida 2
judgment will not be disturbed.-Mattock v. not be considered on an appeal taken after the
Goughner, (Mont.) 34 P. 36.

60 days.-Nelmes v. Wilson, (Cal.) 34 P. 341
68. Granting a new trial because the judg. 81. Where the evidence, though em
ment is not supported by the evidence being is quite sufficient to support the findiago
within the discretion of the trial court, in the lower court, the judgment based on saber
absence of an abuse of that discretion the or- ings will not be reversed on appeal.- Ver 2
der will not be disturbed on appeal.--Cole v. | land Ins. Co. v. Bradbeer, (Cal.) 34 P. 46.
Wilcox, (Cal.) 34 P. 114.

82. A verdict on a finding of fact me
69. Granting a new trial because of the in- set aside where it is against the great en
sufficiency of evidence is within the discretion of evidence, although one or two general con
of the trial court, and, where no abuse of dis- ments of one or two witnesses bring it to
cretion is apparent, the order will not be dis- the rule which governs where there is a
turbed on appeal.- Tousey v. Etzel, (Utah,) 34 terial conflict of evidence.-Field 4. ET
P. 291.

(Cal.) 34 P. 504.
70. As a motion for a new trial is addressed 83. The appellate court will not start :
to the discretion of the court, where the only decree on the ground of insufficiency of the et
assignment of error is the overruling of such dence where there was evidence to justify: -
motion, the writ of error may properly be dis- McGranahan v. Barber, (Colo. A pp.) 34 P.
missed.-Buntz v. Lucero, (N. M.) 34 P. 50. Matters not apparent on record.
Discretion of trial court Refusal of 84. Even if the court could by rule re-
continuance.

a jury to be asked for before the day sector
71 The action of the trial court in refusing trial, where the record does not shor seks
a motion for continuance will not be reversed rule, refusal of a jury demanded on that de
unless it appears that such court abused its must be held error.---Woods v. Tanquary, (...
discretion.- Texas, S. F. & N. Ry. Co. v. Sax. App.) 34 P. 737.
ton, (N. M.) 34 P. 532.

85. On appeal by plaintiff from an o

vacating an order for the inspection of bus
Presumptions.

of account, and from an order denying a =-
72. Where there is in the record no finding tion to strike out defendant's answer, Do ETU
by the court of the facts alleged as ground for is shown where the record states that s.
attachment in an action on a debt not due, judgment was rendered for plaintiff sea
and plaintiff's evidence is not such as would months before the order for inspection ru
justify a finding of the existence of such made, and before the motion to strike out, £.
grounds, the omission of the finding is not the purpose of the order and motion at sa
cured by presumptions from a judgment entry a time is not disclosed.--Clarke v. Baird, (Cen!
in his favor.-Woods v. Tanquary, (Colo. App.) 34 P. 777.
34 P. 737.

Harmless error.
73. Under Code Civil Proc. $ 650, providing
that the judge in settling a bill of exceptions

86. The fact that evidence is introduced 9
shall strike out all superfluous matter, it will contradict, a fact alleged in the complaint is
be presumed that all matter relevant to rulings immaterial, where the fact is not denied in te
complained of has been inserted in the bill.

answer, as there is no issue on the question -
Bedan v. Turney, (Cal.) 34 P. 442.

Gill v. Dunham, (Cal.) 34 P. 68.
74. Code Civil Proc. § 396, provides that if

87. Where the record shows that evideos
the county in which the action is commenced is offered by plaintiff was admitted subject to ta
not the proper county for the trial thereof the fendant's objections, plaintiff cannot compas

.
action may, notwithstanding, be tried therein, of the subsequent failure of the court toʻrte
unless defendant demands in writing that on the objections.- Meserve v. Pomona Leod
trial be had in the proper county. Held, that & Water Co., (Cal.) 34 P. 508; Id. 303.
where the bill of exceptions recites that a "no-

88. Where a finding on one of the issues i
tice in due form” of the motion by defendant volved is determinative of the case against
for a change in the place of trial was filed, plaintiffs, the failure of the court to find a
and no objection was raised to the absence of defendant's plea of the statute of limitares
a demand in writing, it will be presumed on

as to one of the plaintiffs is not prejudicial sa
appeal that the notice included a proper de such plaintiff.-Bradley v. Parker, (Cal.) 34 P.
mand. Beatty, C. J., dissenting.-Warner V.

234.
Warner, (Cal.) 34 P. 523.

V, EFFECT OF APPEAL
75. Where the record does purport to
contain all of the instructions given by the In general.
court, or all that were given on any particular 89. Though under Code Civil Proc.
branch of the case, the charge of the court is the service of the notice of appeal, and its
not open to review on appeal.-Davis v. Mc-ing with the bond prescribed, stays the rii
Carthy, (Kan.) 34 P. 399.

court's proceedings upon the judgment or on
Weight and sufficiency of evidence. der appealed from, the court thereafter reis I

76. The verdict of a jury, when supported jurisdiction to settle and certify the staterar
by competent testimony, disposes of all disput- l on appeal:-- William Mercantile Co. 5. Fun
ed questions of fact.-Stevens v. Clemmons,

(Mont.) 34 P. 189.
(Kan.) 34 P. 1013.

Stay of proceedings.
77. Where issues of fact are heard before 90. Code, $ 555, provides that "in an actoa
a trial judge without a jury, a general finding arising on contract for the payment of me?
made by him will not be disturbed, if there is only," not withstanding the execution of an
evidence to support it.-Teedrick v. City of dertaking to stay proceedings, if defendant in
Kansas City, (Kan.) 34 P. 972.

error give security to make restitution in ce
78. A finding against the apparent weight the judgment is rerersed, he may, on lesve
of evidence will be set aside if the conflict is tained from the court below, enforce the jede
not substantial.-Raker v. Bucher, (Cal.) 34 P. ment. Held, that a judgment on an impiu!!
849.

well as on an express contract for the payment
79. Where there is conflicting evidence, the of money may be thus enforced.-St. Ltd
findings of the jury are conclusive, if support. S. F. Ry. Co. v. Kirkpatrick, (Kan.) 34 P.
ed hy positive evidence.-Union Pac. Ry. Co. v. 91. The statute of New Mexico px
Geary, (Kan.) 34 P. 887.

that a writ of error must be sued out with 1.
80. Under Code . Civil Proc. $ 939, permit- months from date of judgment, and boni otten
ting an appeal within a year of entry of judg-1 within 30 days to secure supersedeas, the best

[ocr errors]

o be approved by the clerk of the supreme | ings, the motions for judgment, a motion for a
ourt. Bond was filed in the court below with new trial, and a sufficient statement of the
no the proper time, and was approved by the rulings of the court, the supreme court may di-
udge of that court, but was not indorsed" "Ap- rect what judgment the district court should
roved” by the clerk of the supreme court until have rendered in the premises.-Berry, v. Kan.
2 days after the rendition of judgment. Held sas City, Ft. S. & M. R. Co., (Kan.) 34 P. 805.
hat, although the correct practice requires that
he bond be filed and approved by the clerk, Excessive judgment-Affirmance on re-
nd that writ of sipersedeas be issued by mitting excess.
he clerk of supreme court within 90 days,

98. A judgment will not be reversed by rea-
here was a substantial compliance with the
tatute.-Atchison, T. & S. F. R. Co. 3. Mar son of an allowance by the verdict of excess-
in, (N. M.) 34 P. 536; Martin v. Atchison, T. ive interest, where, at the offer of the suc

cessful party, the excess was remitted.-Duzan
- S. F. R. Co., Id.

92. Under Code Civil Proc. $ 946, declaring v. Meserve, (Or.) 34 P. 548.
he effect of perfecting an appeal and giving an When new trial had.
undertaking to stay execution of the judgment

99. Where appeal is taken from the entire
o be not only "to stay all further proceedings judgment, a general reversal and remand re
n the court below on the judgment or order ap- quire a new trial of all the issues, as if the
sealed from," but to also "release from levy case had never been tried.-Mattock v. Gough-
property levied upon under execution issued up-
on such judgment,” it is the duty of the sheriff ner, (Mont.) 34 P. 36.
o release all property levied on immerliately on Mandate and proceedings below.
notice of the perfection of the appeal and the 100. In a suit to foreclose a mortgage, when
iling of the stay bond. without regard to the the decree for plaintiff has been affirmed on ap-
ufficiency of the sureties.-Sam Yuen v. Mc- peal, the lower court cannot reopen it, and al-
Mann, (Cal.) 34 P. 80.

low defendants to show a partial release of the
93. Under Code Civil Proc. $ 945, providing mortgage, since, on equity appeals, the supreme
hat, when the judgment appealed from di- court tries the cause de novo, and its judgment
'ects the sale of land, execution cannot be is final, and can only be reopened by itself.-
tayed without a bond on the part of appellant State y. Superior Court of Spokane County,
gainst waste, supersedeas cannot be granted (Wash.) 34 P. 930.
in the mere bond for costs on appeal, nor on
in application filed after the land has been ceased for the payment of debts, notice is given

101. When, on petition to sell land of de-
ictually sold under the judgment.-Hoppe v.

to persons interested as provided by Code Civil
; Joppe, (Cal.) 34 P. 222.

Proc. $ 1539, and thereafter an order refusing

such sale is reversed on appeal, and the pro-
VI. DECISION.

ceeding remanded for a new trial, the notice re-

quired by said section need not be again given;
Awarding damages for vexatious ap- but the court, in the exercise of a sound discre-
peal.

tion, may dispose of the petition on such notice
94. When it appears by the uncontradicted as may be provided by its general rules, or as it
:iffidavit of respondent, on an appeal from a

may deem reasonable, provided the parties in-
money judgment, that the appeal was taken terested are not deprived of a hearing.-In re
nerely for delay, and that there was no pre- Couts' Estate, (Cal.) 34 P. 865.
ense of any defense, the court, on dismissing

102. Where the supreme court reverses
he appeal for failure to file a transcript, will judgment canceling a deed delivered by mis-
iward respondent damages for appellant's take to one in possession of land under a con-
buse of the right of appeal.-Duncan v. Grady, tract of purchase, and refuses to foreclose the
Cal.) 34 P. 112.

vendor's lien, or cancel such deed, in case the

yendee fails to pay within a reasonable time,
Dismissal.

because the evidence fails to show the time
95. Following a stipulation filed in the su-

when certain of the purchase money still un-
court that an appeal might be dis- paid will become due, the trial court has power
missed without prejudice to a new appeal, were

to retain the case and hear evidence to deter-
written the words. “So ordered,

with the mine the vendor's claim for a lien, and such
names of four of the justices subscribed there lien should be determined before entry of judg-
to, and the clerk entered in the minutes, “Ap-

Stiles, J., dissenting.-Spinning v. Drake,
peal dismissed without prejudice," followed by (Wash.) 31 P. 212.
the names of such justices. Held, that such

103. A complaint in an action by five lien
appeal was thereby dismissed, and a second claimants to foreclose their liens set out the
appeal taken on the next day should not be claim of each as a separate cause of action,
lismissed on the ground that a prior appeal and asked for interest. There was a judgment
was then pending, though the supreme court, in favor of all the plaintiffs, allowing interest.
after the second appeal was taken, inadvertent. On appeal the question of interest was not
ly entered an order dismissing the first appeal raised. The judgment of the supreme court
absolutely.-Anthony v. Grand, (Cal.) 31 P.

was that the judgment be set aside, and the
325.

cause remanded, with directions to enter a

new judgment in favor of two of the plaintiffs
For what errors judgment reversed for the "amounts claimed," with certain allow-
Clerical error.

ances for filing liens, and for costs and attor-

neys' fees, and that, as against the other plain.
96. In an action by a wife for permanent tiffs, the complaint be dismissed. Held, that the
maintenance, order that defendant pay judgment of the supreme court authorized in-
plaintiff $50 per month alimony and $50 “to her terest.-Fairhaven Land Co. v. Jordan, (Wash.)
attorney," while erroneous in directing such 34 P. 142.
payment to her attorney, is no ground for re-

104. The supreme court, in its opinion re-
versal where it appears that the notice to show versing a case for lack of a certain and unam-
cause why the order should not be made was biguous finding on a material question of fact,
"to pay the clerk a certain sum of money; to added that, if the finding could be construed
be applied by plaintiff as counsel fees," since
the direction to pay the attorney is a clerical that in the court's opinion it was not supported

as in favor of respondent, it was enough to say
error, and may be modified.--Storke v. Storke, by the evidence. Held, that said remark was
(Cal.) 34 P. 339.

clearly obiter, and did not preclude the trial
Rendering such judgment as lower

court from finding for respondent on substan-

tially the same evidence, strengtheping its con:
court should have rendered.

clusion by other new findings, based on the
97. Where a case made contains all the evidence, and probative of the main finding.–
pleadings, the general verdict, the special find-' Luco v. De Toro, (Cal.) 34 P. 516.

preme

ment.

an

« PreviousContinue »