_nnexation of contiguous towns.
3. Act April 11, 1893, § 10, relating to the nnexation of contiguous towns and cities, is ot obnoxious to Const. art. 10, $$ 3, 7, article 1, §§ 1, 8, or article 15, § 12, relating to taxa- on and public indebtedness.-Town of Val- erde v. Shattuck, (Colo. Sup.) 34 P. 947. mendment of charter--Procedure.
Ordinances and resolutions.
10. Where all the members of the council were present at a special meeting, except one, and a resolution was adopted unanimously, there is no error in admitting testimony of the clerk of the council that he served a proper notice of the meeting on all the members, the notice not having been entered of record.-Gill v. Dunliam, (Cal.) 34 P. 68.
4. City Charter Spokane, providing that 11. The consolidation act of 1856, § 68, re- ny proposed amendment must be submitted quiring certain ordinances of the board of su the city council at one meeting, and resub-pervisors to be presented to the mayor for ap- itted "at the second regular meeting of the proval before they take effect, does not make ouncil thereafter." before submission to the the mayor a member of the board of super- lectors for adoption, does not make an amend- visors, as a "governing body."-Jacobs v. Board ent invalid because not resubmitted till after Sup'rs City and County of San Francisco, (Cal.) the second regular meeting of the council" 34 P. 630. ubsequent to that at which it was first sub- aitted.-Pierce v. City Clerk of Spokane, Wash.) 34 P. 428.
ncorporation under void act-Effect of reincorporation.
5. Act March 27, 1890, provides that noth- ng therein shall prevent the reincorporation hereunder of towns which had attempted to ncorporate under the void act of February 2; SSS, and empowers such towns to incorporate inder section 4, relating to reincorporations. feld, that such incorporation would not validate prior street-grading assessment, made under he supposed sanction of the act of 1888.-Town f Medical Lake v. Smith, (Wash.) 34 P. 835; Same v. Landis, Id. 836.
Method of government-Election of al-
6. The state constitution does not impera- ively require local aldermanic representation in owns or cities.-Town of Valverde v. Shat- uck, (Colo. Sup.) 34 P. 947.
Submission of questions to voters.
7. Acts 1891, p. 261, provides that when city council deems it advisable to borrow noney or create an indebtedness for municipal purposes greater than 1% per cent. of the city's axable property, it shall provide therefor by ordinance specifying the amount desired to be created, and the same shall be submitted to the electors of such city at a special election. Held, that where such an ordinance submitted wo distinct propositions,-one to fund $20,000 of old debts, and the other to borrow $5,000 for future purposes,-and only one ballot was used, so that the voter had no opportunity to express himself separately as to each, the whole election was void.-McBryde v. City of Monte- sano, (Wash.) 34 P. 559.
12. The constitutional requirement that an ordinance fixing water rates should be passed by the board "in the manner that other or- dinances or legislative acts or resolutions are passed by such body" does not render the may- or's approval of the ordinance necessary to its validity, as such ordinance is not included to be presented to the mayor for approval.- among those required by Consolidation Act, § 68, Jacobs v. Board Sup'rs City and County of San Francisco, (Cal.) 34 P. 630.
Subjects of municipal legislation. 13. An ordinance prohibiting the location of a livery stable in any block in which a school building is situated, or in any block which is opposite to a block in which a school building is situated, without reference to the manner in which such stable is constructed, kept, or used, and without further specifying the distance, is unreasonable, and cannot be upheld under a general or incidental grant of authority to the city.-Phillips v. City of Denver, (Colo. Sup.) 34 P. 902.
14. Since Gen. St. c. 19, par. 89, authorizes the commitment, by the police judge of a city of the second class, of a person convicted of violating a city ordinance, until he comply with the judgment and pay costs, it is imma- terial that the ordinance under which the per- son is convicted contains no provision for such commitment.-In re McCort, (Kan.) 34 P. 456. 15. Gen. St. c. 19, par. 68, provides that any person convicted of violating a city ordinance, and committed for nonpayment of fine and costs, may be compelled to work on the streets and public grounds at such rate per day as the city council may prescribe. A city ordinance likewise provided that such person "may" be compelled to do such work, for which he shall be credited one dollar for each day's work done. Held. that there was no obligation to so employ the person committed, and he could not claim a credit for time during which he was not so employed.-In re McCort, (Kan.) 34 P. 456.
Who to fix water rates.
S. 1 Gen. St. § 518, provides for the sub- mission of charter amendments to the voter by numbers. City Charter Spokane provides for the submission of amendments by the city council to the electors for adoption. Held, that the fact that amendments voted on were not numbered when the city council concurred 16. Const. art. 14, § 1, providing that water therein did not affect their validity, they hav-rates "shall be fixed annually, by the board of ing afterwards received from the city clerk supervisors or other governing body of such city numbers by which they were published in the and county, by ordinance or otherwise, in the election notices, and referred to on the printed manner that other ordinances or legislative acts ballots, and it not appearing that the result of or resolutions are passed by such body," grants the election was altered by the absence of the to the board of supervisors of the city and numbers when the proposed amendments were county of San Francisco the sole power to fix concurred in by the council.-Pierce v. City the water rates in such city and county.-Ja- Clerk of Spokane, (Wash.) 34 P. 428. cobs v. Board Sup'rs City and County of San Francisco, (Cal.) 34 P. 630.
9. A recital in an ordinance submitting a proposition to bond the city for the establish- ment of an electric lighting plant, that said ordinance was passed in pursuance of a certain act, is mere surplusage; and where the act re- cited is no longer in force, but is substantially re-enacted by the repealing act under which the ordinance must in fact have been adopted, there is no ground for an injunction on the bond is sue.- Lewis v. City of Port Angeles, (Wash.) 34 P. 914.
Fire department-Appointment of chief.
17. One elected chief of the fire department of a city of the fifth class under an ordinance providing that he shall be elected annually by members of the department, is not entitled to hold the position for the year, an ordinance having in the mean time been passed, to take effect immediately, providing for the appoint- ment of the chief of the fire department by the
23. A city permitted a lot owner to make a dangerous cellarway in a sidewalk and street in front of his house, which he subsequently covered with a frail trapdoor, that was defective in construction, and around which no safeguards were placed. It remained in this condition for some time, when a pedestrian stepped upon the trapdoor, which broke down, and precipitated him into the excavation below. Held, that the city could not relieve itself from responsibility because the opening was made and covered by the lot owner, since it was its duty to supervise the work of covering the cellarway, and to cause the use of suitable precautions to prevent accidents. City of Abilene v. Cowperthwait, (Kan.) 34 P. 795.
24. Where a diligent performance of the duty of supervision in the construction of a covering over a perilous excavation in a street would bring knowledge to the officers of a city of the dangerous character of the same, a want of such knowledge is negligence.-City of Abilene v. Cowperthwait, (Kan.) 34 P. 795.
same dimensions as the culvert built by o city. This drain became obstructed the it dammed up the water of the creek, floo plaintiff's property, and caused damage. that the fact that the city permitted the company to join its drain to that constante by the city does not render the city list plaintiff.-City of Kansas City v. Brady, (ã2) 34 P. 884.
Public improvements.
27. A resolution to pave a street, which re fers by number to certain ordinances for manner in which the work is to be done, is gri ficient, without reciting the provisions of be ordinance.-Williams v. Bisagno, (Cal) 34 P 640.
28. Act March 14, 1889, amending A March 18, 1885, in relation to improvement streets, provides (section 3) that before orde ing improvements the council shall pass a r olution of intention, which shall be publishi and posted for two days in the manner scribed by section 34." The latter section p vides that resolutions required to be publ shall be published in a newspaper, etc.: profu ed, however, that in case there is no newspape they shall be posted and kept posted for e same time as required for publication. Esi that a resolution which is published neel also be posted.-Gill v. Dunham, (Cal.) 34 P.
29. Though acts which the statute require to be performed before making a public provement are conditions precedent to the power to levy a tax on the property owes only a substantial compliance with the stat is required; and the assessment is not viriad by want of technicality of expression, or pre cision of statement as to the work, which des not affect the essential object in view.-GI! Y. Dunham, (Cal.) 34 P. 68.
30. Under Acts 1889, p. 159, relating to pub lic improvements, and providing that plans and specifications shall be furnished to the city cour cil, if required by it, by the city engineer, but not specifying the mode of requiring them, the fact that they were prepared by the engineer. and were on file, and approved by the cours is sufficient evidence of their authenticity.-GI v. Dunham, (Cal.) 34 P. 68.
31. The mere fact that individuals sab
scribed money or gave bond to a city to ex tribute to the expense of laying out a street will not vitiate the proceedings, or prove that the land was taken for the accommodation & private persons, and not for a public use-C of Santa Ana v. Harlin. (Cal.) 34 P. 224
32. Under Comp. Laws 1888, § 1800, requir ing that the city council give notice of inter tion to levy taxes for public improvemen's naming the purpose, describing the improve ment, the district to be affected, and the e timated cost, and designating the time for hear ing objections, a notice that the council intends to "pave and macadamize * TwentyFifth street, from the west line of W. avente to the west line of V. avenue," which shall be known as "Paving District No. 2;" that the "boundaries of the district are lines running 150 feet back and parallel with the outer Enes of each side of the streets, on each and every block, and for the full length thereof;" that the estimated cost is a certain sum; that local taxes will be levied on the real estate in the district for the benefits; and that it will best objections on a certain day at a given hour.-is sufficient.-Armstrong v. Ogden City, (Utah) 34
25. A petition for injuries from a defective sidewalk, alleging that the walk was negligent ly constructed, and that defendant city, well knowing this, had permitted it to remain in a defective condition until after the accident, charges the city with notice of the defect.-P. 53. Lewis v. City of Eskridge, (Kan.) 34 P. 892. Defective drains.
26. A city, in grading an avenue, built an embankment across a creek, and constructed a culvert through it for the passage of the stream. A land company also placed an embankment on its land adjacent to the avenue, through which it constructed a drain of the
Objections by property owners. 33. Since the statute requiring notice by the common council of intention to levy taxes for improvements provides that if written ohjes tions, signed by one-half the property owners be not filed at or before the time fixed for be hearing, the city council shall be deemed to have acquired jurisdiction to order the improve
ment, a complaint to enjoin a levy of taxes for | an improvement, which alleges that objections were filed by such a number of property own- ers, is not demurrable, since the demurrer ad- mits the allegation, and in such case the coun- cil could have no jurisdiction to order the in- provement.-Armstrong v. Ogden City, (Utah,) 34 P. 53.
Contracts for improvements.
34. A requirement in a street-paving con- tract that the contractor shall keep the street in repair for five years imposes an additional burden on the property owners, and so vitiates the assessment, unless expressly authorized by statute. Brown v. Jenks, (Cal.) 32 P. 701, Excelsior Pav. Co. V. Leach,
followed. (Cal.) 34 P. 116.
ties in the action of the city council, which do not affect their jurisdiction.-Wilson v. City of Salem, (Or.) 34 P. 9; Id. 691.
41. A resolution to pave and curb a street required the city engineer to furnish the coun- cil with estimates. The estimates, in addition to the items of paving and curbing, stated, un- der the head of "grading," that 66 cubic yards of excavation and 42 cubic yards of embank- ment would be required. The grading, if taken from the entire surface of the street, would in- volve the removal of 1 5-7 inches in depth. Held, that it would be assumed, from the small amount of the so-called "grading" required, that the street had been graded, and that the grading mentioned in the estimates was merely the removal of small inequalities in the surface, and therefore an assessment for the paving and
required grading, which was not mentioned in the resolution.-Williams v. Bisagno, (Cal.) 34
35. Testimony that the requirement of recurbing was not invalid on the ground that it pairs did not enhance the amount of the suc- cessful bid is worthless against the objection of additional burden, since it may have en- hanced other bids. Brown v. Jenks, (Cal.) 32 P. 701, followed.-Excelsior Pav. Co. v. Leach, (Cal.) 34 P. 116.
Necessity of taking bond from con-
Enforcement of assessments.
42. In an action by an assignee to enforce an assessment for a public improvement, which was against a certain lot, but to an unknown owner, the fact that the assignment, which de- scribes the lot, also states that the assess- ment was to a certain person as owner, does Gill v. Dunham, (Cal.) 34 P. 68. not render it inadmissible, as the name of the alleged owner may be rejected as surplusage.--
36. Under 1 Gen. St. § 2415, (Laws 1887-88, p. 15,) requiring municipal corporations con- tracting with any person "to do any work of vidual, a right of lien would exist under the any character which, if performed for an indi- law, or make any improvement for" such mu- nicipality, to take a bond conditioned for the improvement is merely an incident of the de- 43. The lien of an assessment for a public payment of laborers, mechanics, and material men, a city contracting with a person to grade mand, and passes with an assignment thereof. a street is not required to take a bond, as it is-Gill v. Dunham, (Cal.) 34 P. 68. only required to do so where the work to be done is such that, if done for an individual, a lien would attach in favor of laborers and oth: ers, and no lien would attach, under Gen. St. § 1663, for labor performed on a street for an in- dividual. Dunbar, C. J., and Scott, J., dis- senting. Clough v. City of Spokane, (Wash.)
work done abutted.
(Cal.) 34 P. 71.
fendant, in an action to enforce a street assess- 44. A recital in the record on appeal by de- ment, that plaintiff produced two witnesses who 'testified that the notice of the improve- ment "was posted at the time and in the man- ner required by law, both as to the number of said notices, the place of posting, and the time during which the same remained posted," sufficiently shows that the law as to posting the notice was complied with.-Williams v. Bisag- no, (Cal.) 34 P. 640.
Remedies for erroneous assess-
37. St. 1889, p. 157, § 7, subd. 8, provides that "where any work * is done on either or both sides of the center line of any street for one block or less, and further work opposite to the work of the same class already 45. A sufficient petition was presented in done is ordered to be done to complete the un- May, 1887, to the mayor and councilmen of improved portion of said street, the assessment Kansas City, Kan., for the grading of a part to cover the total expense of said work so or- of a street at the cost of the abutting property dered shall be made upon the lots or portions of the lots only fronting the portions of the owners, under Sess. Laws 1887. c. 99, § 4, and on September 22, 1887, an ordinance was duly Held, that where a street such im- was ordered to be paved for one block, where passed and published authorizing not already so paved, the assessment was prop-ed in accordance therewith, and the cost there- provement. Subsequently the street was grad- erly made on those lots, only, on which the of ascertained against each lot, according to - McDonald v. Conniff, the appraised value of the lots contained in 38. St. 1889, p. 166, provides that a diagram each block separately; and notice was given shall be attached to the assessment, "exhibit- to the owners of abutting property on the 10th ing each street on which any work has been of January, 1888, of such special assessment, done, and showing the relative location of each and that it could be paid in 30 days. Like no- lot to the work done, numbered to correspond tice was given on the 25th of August, 1888, with the numbers in the assessments, and show- for payment of the improvement on or before ing the number of feet fronting, or number of September 27, 1888, and the plaintiffs made lots assessed for said work." Held, that the no objection to such assessment, and did not diagram need not show on what portion of the attempt to enjoin or otherwise interfere with street the work was done.--McDonald v. Con- its collection until August, 1891, and at that niff, (Cal.) 34 P. 71. time only made a demand on the mayor and councilmen for a reapportionment of the assess- ment on the whole length of the street so im- proved, according to the provisions of the stat- ute, delaying legal proceedings to compel such reapportionment until August 22, 1892. Held, that as plaintiffs at one time had a plain and adequate remedy by injunction to prevent the collection of the erroneous assessment, and as they were guilty of great laches in making their demand for a reapportionment, manda- mus would not be granted to compel such reap- portionment.-Simpson v. City of Kansas City, (Kan.) 34 P. 406.
39. Under a city charter making each lot or part liable in whole or in part for the cost, as the council may determine, of an improve- ment on the half street in front thereof, and providing that the council may assess on each lot or part thereof liable therefor its proportion- ate share of said cost, it is proper to make an assessment by the front foot.--Wilson v. City of Salem, (Or.) 34 P. 9; Id. 691.
40. An abutting property owner, with actual 4 knowledge that the work is being done, cannot wait till the completion thereof to object to the method of assessment or other irregulari-
46. A provision in a city charter that the levy and collection of taxes shall be made in accordance with the requirements of the "exist ing general law," or of the "general law now in force," means the general law in force when the tax is levied or collected, and not the general law in force at the time of the city's incorporation. -Newman v. City of North Yakima, Wash.) 34 P. 921.
47. Under the charter of the city of Seattle, which gives the city the right to tax all property within its limits "which is by law taxable for territorial and county purposes," such city had no authority to impose taxes on the property of a railroad company which was exempted by general law from taxation for territorial and county purposes.-Columbia & P. S. R. Co. v. Chilberg, (Wash.) 34 P. 163.
Action against-Averment as to corporate existence.
48. In an action against a city, its organization and corporate existence are sufficiently al: leged by statements as to the public use of streets therein "ever since the organization of said city, in August, A. D. 1887, as a city of the third class."-Lewis v. City of Eskridge, (Kan.) 34 P. 892.
Mutual Benefit Insurance. See "Insurance," 14.
What constitutes-Frightening horses.
2. Plaintiff, driving a horse and cart, ap proached defendant's crossing, when a train ap peared on the crossing two feet from the horse the engine being behind. The horse shied, and upset the cart. There was a coal shed, which was within seven feet of the crossing, and b structed a view of all cars more than eight fet from the crossing. The evidence as to signS was conflicting. Defendant generally kept a flagman near the crossing, and the engineer t tified that the flagman signaled him that the way was clear, from a place behind the coal shed, where the flagman and plaintiff could t have seen each other. Held, that a verdict for plaintiff could not be disturbed. Carraher San Francisco Bridge Co., (Cal.) 34 P. 828. Dangerous premises.
3. The fact that a railroad company connected a spur track to a mill with the main track at one end only, so that it was necessary main track, when it was to be drawn behind to use stakes to move a car therefrom to the the engine, does not show that the company to make it liable to servants of the mill owner. was negligent in constructing its road, so as who owned the engine, injured in moving a car by staking, where they could have had the car drawn in front of the engine, and in soa case the engine could have taken it from the spur track.-Watts v. Hart, (Wash.) 34 P. 42, 771.
Contributory negligence.
4. Plaintiff's child, two years old, escaped from its home, and wandered on the railroad track, distant 40 feet therefrom. In from three to five minutes thereafter, it was run over and injured by a train of defendant's cars. The mother was busy ironing, and did not pereire that the child was on the track, and the train approaching, until it was too late to rescue it The door of the house was open, and there was no fence sufficient to prevent the child from going on the track. Held, that it was for the jury to determine whether the mother was g ty of negligence.-Atchison, T. & S. F. R. C6. v. Calvert, (Kan.) 34 P. 976.
5. One is guilty of contributory negligenc if he is guilty of want of ordinary care, and the want of extraordinary care, merely, is no de fense.-Tobin v. Omnibus Cable Co., (Cal) 34 P. 124.
6. Negligence on plaintiff's part, amounting to absence of ordinary care, which, concurrent ly with the negligence of defendant, proximate ly contributes to the injury, is a good defense, whether or not defendant, with ordinary or extraordinary care, could have guarded against it.
Contributory, see, also, "Carriers," 6; "Master-Tobin. v. Omnibus Cable Co., (Cal.) 34 P. 124
and Servant," 27-30; "Railroad Companies," 12-14.
Defective streets, see "Municipal Corporations,"
Of attorney, see "Attorney and Client," 2-4. Of carriers, see "Carriers," 3-6.
Of fellow servants, see "Master and Servant,"
Of master, see "Master and Servant," 2-10. Of railroad company, see "Railroad Companies," 6-20.
Of vice principal, see "Master and Servant," 17. What constitutes.
1. A teamster driving a horse and cart on a road crossing a railroad track, who is injured by his horse shying at the train, is not debarred from recovery by the fact that the horse was frightened by the ordinary movement, noise, or appearance of the train, if it further appear that the horse was ordinarily well broken and gentle, and was permitted, by defendant's negligence in running the train, to come so close to the crossing, before he or his driver saw the train. that said ordinary movement naturally frightened him. - Carraher v. San Francisco Bridge Co., (Cal.) 34 P. 828.
7. Where the facts constituting the defense of contributory negligence are so disconnected
from the facts constituting defendant's ned
gence that it cannot be determined as a maner of law that the one was the cause or sequence of the other, their relation or dependence should & Oriental Steamship Co., (Cal.) 34 P. 84. be submitted to the jury.-Smith v. Occidental Burden of proof.
8. Under Mills' Ann. St. § 2272, providing that the owners of reservoirs shall be liable for floods caused by the breaking of embankments, one injured is not bound, in the first instance. at least, to show negligence on the part of the owner, but, if the owner is not absolutely liable, it is for him to exonerate himself.-Larimer County Ditch Co. v. Zimmerman, (Colo. App) 34 P. 1111.
NEGOTIABLE INSTRUMENTS. Provision for attorney's fees.
1. Where a note contains a promise to pay an attorney's fee in case an action is brought on it, the holder is not restricted to the statetory attorney's fee, but may recover a reason
able amount therefor.-Cloud v. Rivord, (Wash.) | specific facts constituting the fraud, and that
When indorser's liability accrues.
defendant was influenced by or relied on the fraudulent acts.-Voorhees v. Fisher, (Utah,) 34 P. 64.
2. A note signed by three as makers was secured by a trust deed by only two of them, the answer that "plaintiff is not an innocent 9. In an action on a note, an allegation in conditioned that on default in the interest the holder for value" will not justify the admission whole principal should at once mature, notwith- standing anything in the notes. The payee be- of evidence of facts showing a want of good ing also beneficiary of the deed, indorsed over faith, but such facts must be distinctly alleged. the note and assigned the deed. Default in in--Voorhees v. Fisher, (Utah,) 34 P. 64. terest was made, and the deed foreclosed before the maturity expressed in the note. Held that, since the third maker was no party to the deed, and so not yet in default on the note, the in- dorser's estate could not be sued on the note for the deficiency.-Heisler v. Lyon, (Colo. App.) 34 P. 841.
Bona fide purchasers.
3. Where a note has been transferred by the payee to a firm of which he is a member, the firm cannot defeat the defense of fraud, in an action thereon, on the ground that it had no notice thereof, as it is chargeable with the payee's knowledge. Calvert v. Dimon, (Colo. Sup.) 34 P. 170.
Who entitled to payment-Evidence as to ownership.
a note of plaintiff for $550, its face value, and 10. Defendant accepted M.'s offer to sell him sent M. a check in payment, and requested him to forward the note. M.'s offer was never re- scinded, nor the mode of payment objected to, but he did not collect the check nor send de- fendant the note. Defendant sued on the note, and on the same day plaintiff paid him the amount of the note with interest. On the day after, the note was sent for collection to a bank in the town where plaintiff and defendant lived, and, though defendant advised plaintiff that he owned the note, and that he would give plain- 4. Defendants gave a note to one E. for tiff a bond to protect him, plaintiff paid the future medical treatment, to be returned if a amount of the note with interest to M. Held, cure were not accomplished, on E.'s fraudulent that it was error to direct a verdict for plaintiff statements of the standing and personnel of on the ground that defendant did not own the his "institute," and of its practice in regard to note when the payment was made to him. collecting such notes. E. the same day trans--Wetzstein v. Joy, (Mont.) 34 P. 876. ferred the note to plaintiff. It appeared that Actions on. before this E. had tried to sell some like notes
to plaintiff, who said he would not buy such notes, because they were given for medical treatment, and he knew there would be trouble over them; that plaintiff had himself taken E.'s treatment, and knew his "no cure, no pay" plan of business; that, after taking this note, he said he held the notes as collateral; that he knew such men as E. were frauds; that, when E. failed to cure, another note was to be put in the place of that which was to be surrender- ed. Held, that he was not a bona fide holder without notice, and defendants could set up against him E's fraud in obtaining the note.- Brook v. Teague, (Kan.) 34 P. 347.
5. One who obtains a negotiable instrument before maturity is presumed, in the absence of evidence to the contrary, to be a bona fide hold- er for value.-Voorhees v. Fisher, (Utah,) 34 P. 64.
Guaranty indorsed on note by payee- Reimbursement of guarantor.
6. Where defendants gave plaintiff and an- other person a note to secure an indebtedness, and the note was indorsed and guarantied by the payees, and the money obtained from a bank, and when the note became due it was not paid, but defendants took it up, and gave a new note directly to the bank, which was also indorsed and guarantied like the old one, the transactions show an intent on defendants' part to have the bank carry the amount of the note on the joint credit of themselves, as makers, and of plaintiff and the other payee, as indorsers and guaran- tees; and, if defendants fail to pay the new note, plaintiff may recover from them the amount he is compelled to pay as guarantor.- Austin v. Hamilton, (Wash.) 34 P. 1097. Payment.
7. Possession by the maker before ma- turity, and after it has been in circulation, of a note payable on or before" a certain date, is presumptive evidence of its payment. - First Nat. Bank v. Harris, (Wash.) 34 P. 466. Option of holder to declare note due- Answer.
8. In an action on a note an answer al- leging that a prior holder delivered the note to plaintiff without consideration, and for the pur- pose of colluding with the plaintiff to defraud defendant, is insufficient as failing to state the
of a negotiable promissory note, who alleges 11. Where an action is brought by the payee that he is the owner and holder thereof, but who shows by his petition that it was trans- ferred by indorsement to another, without any showing of its transfer back to him, and the defendant answers by a general denial, not veri- fied, a judgment upon the pleadings, without evidence of possession or ownership of the note, cannot be sustained. Hutchison v. Myers, (Kan.) 34 P. 742.
12. In an action on a note made to plain- tiff, an allegation in the complaint that plain- tiff is the owner is unnecessary, and may be treated as surplusage, and a general denial raises no issue.-Bank of Shasta v. Boyd, (Cal.) 34 P. 337.
New Promise.
See "Limitation of Actions," 15, 16.
Power of court to forbid publication of testi- mony, see "Trial," 1.
Decision on appeal, see "Appeal," 99. Discretion of trial court in passing on motion, see "Appeal," 64-71.
Necessity of motion for, see "Appeal," 20, 21. Review of order granting, see "Appeal," 57. Time to prepare statement for use on appliea- tion, see "Appeal," 66.
1. Under Code Civil Proc. § 536, which pro- vides that the trial court shall not extend the trial to exceed 30 days without consent of the time for filing a statement on motion for new adverse party, a statement filed more than 30 days after the first order granting an extension of the time was made must be stricken from the record, though it was filed within the time fixed by subsequent extensions granted by the court, where such extensions were made with- out the consent of the adverse party.-Doyle v Gore, (Mont.) 34 P. 846. Notice of motion.
2. Code Civil Proc. § 659, subd. 4, provides that where a motion for a new trial is made
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