TIME OF ELECTION TO REMOVE COUNTY SEAT-see COUNTY SEat, 2.
TIME OF ELECTION FOR DISTRICT JUDGES-see ELECTIONS, 1.
TIME TO MOVE FOR NEW TRIAL-see NEW TRIAL, 3.
WAIVER AS TO TIME TO MAKE STATEMENT ON APPEAL-see WAIVER, 4.
TRANSCRIPT NOT CONTAINING ALL THE EVIDENCE. An objection that the evi- dence is insufficient to support the judgment is unavailable on appeal, if the transcript does not purport to contain all the evidence on the point; it requir- ing an affirmative showing to rebut the presumption that all 'facts necessary to support the judgment were sufficiently proved. Caples v. Central Pacific R. R. Co., 265.
TRANSCRIPT CONTAINING NOTHING TO BE REVIEWED-See APPEAL, 6.
DISMISSAL OF APPEAL WHERE NOTHING BROUGHT UP FOR REVIEW-see AP- PEAL, 7.
POINTS NOT COVERED BY TRANSCRIPT NOT CONSIDERED-sec APPEAL, 17.
ADDITIONS TO JUDGE'S CERTIFICATE TO STATEMENT-See STATEMENT, 2.
TRANSFER OF ACTIONS TO UNITED STATES COURTS. Where a motion was made to transfer a suit brought against a citizen of California to the United States Court on the ground that the plaintiff was a citizen of this State; and on counter affidavits showing plaintiff to be a 'citizen of Missouri, the motion was denied: Held, no error. Caples v. Central Pacific R. R. Co., 265.
TRANSFER OF ACTION BY STIPULATION-See VENUE, 6.
TREASURER'S POWERS AS TO SUBSEQUENT TAX ASSESSMENTS. The evident object of the supplemental revenue act of 1867 (Stats. 1867, 111) was to make all assessments made by the treasurer final, or at least, exempt them from any
supervision by the county commissioners, except in cases where application might be made by a person 'feeling aggrieved. State ex rel. Swift v. Ormsby County Commisssoners, 95.
2. DELINQUENCY OF STATE TREASURER NOT INFRACTION OF REVENUE LAWS. The delinquency of the State treasurer in failing to safely keep the money of the State, cannot be said to be an infraction of the "revenue laws," specially so called. Swift v. Doron, 125.
MORTGAGEE FOR PRE-EXISTENT DEBT WHEN REGARDED AS BONA FIDE PUR- CHASER FOR VALUE AS AGAINST UNRECORDED TRUST - see MORTGAGE, 1. POSSESSION OF LAND AFTER DEED NOT NOTICE OF TRUST IN IT-See POSSESSION, 1.
RIGHT OF WAY OVER PUBLIC LANDS GIVEN BY UNITED STATES-See EMINENT DOMAIN, 1.
JURISDICTION OF FEDERAL JUDICIARY AS TO FEDERAL POWERS-see JURISDIC- TION, 4.
JURISDICTION OF STATE COURTS AS TO PROPERTY SEIZED UNDER FEDERAL PROCESS-See JURISDICTION, 5.
TRANSFER OF ACTIONS TO UNITED STATES COURTS-see TRANSFEr, 1.
1. DISCRETION AS TO CHANGE OF PLACE OF TRIAL. As a general rule, the matter of change of place of trial is within the discretion of the court; but when the motion to change is made on the ground of the residence of defendant, (Prac- tice Act, Sec. 20) there is no room for the exercise of discretion. Williams v. Keller, 141.
DEFENDANT'S RIGHT OF TRIAL AT HIS RESIDENCE. A defendant who comes within the purview of Sec. 20 of the Practice Act is entitled, as a matter of right, to have an action against him tried in the county of his residence; the statute is peremptory. Williams v. Keller, 141.
"MOTION TO RETAIN PLACE OF TRIAL. There cannot properly be any such practice as an affirmative motion to retain a cause for trial; everything usually called so is only matter of defense to a motion for a change. Williams v. Keller, 141.
41 CONTESTING DEFENSE NO WAIVER OF RIGHT TO CHANGE OF PLACE OF TRIAL. Where a defendant in a proper case moves to change the place of trial to the
county of his residence, he has an absolute right to such change; and the mere fact that he files counter affidavits and contests an effort to retain the cause on the ground of convenience of witnesses, will not amount to any waiver of his right. Williams v. Keller, 141.
EFFECT OF MOTION TO CHANGE PLACE OF TRIAL FOR RESIDENCE. defendant in a proper case moves to change the place of trial to the county of his residence, the court is by force of his motion ousted of all jurisdiction in the cause, except to decide upon the proposition of his residence at the time of the commencement of the action, and to transfer the case. Williams v. Keller, 141.
TRANSFER OF ACTION BY STIPULATION. Where a cause was transferred from one judicial district to another on a stipulation, which provided that if a trial should not be had in the new district by a certain time, the cause should be transferred back to the original district, and it was so transferred back: Held no error. Lyon County v. Washoe County, 241
OMISSION OF VENUE IN INDICTMENT NOT AMENDABLE-See AMENDMENT, 1.
VENUE IN TRIAL OF ACCESSORY-see CRIMINAL Law, 14.
VENUE MATERIAL IN INDICTMENTS-see INDICTMENT, 2.
CONVENIENCE OF WITNESSES AS AFFECTING PLACE OF TRIAL-See PRACTICE, 2.
MOTION FOR JUDGMENT "NON OBSTANTE VEREDICTO." A motion for judgment non obstante veredicto, if proper at all under the Practice Act, can certainly not be made by defendant. Brown & Eagar v. Lillie, 177.
NO LEGAL JUDGMENT ON VERDICT IRRESPONSIVE TO PLEADINGS.
is absolutely defective under the pleadings, no legal judgment can be entered thereon. Brown & Eagar v. Lillie, 177.
"TREATING" OF JURY AVOIDS VERDICT-See JURY, 4, 5.
REQUISITES OF VERDICT IN REPLEVIN-See REPLEVIN, 1, 2.
VIRGINIA CITY CHARTER - OPENING AND REPAIRING STREETS. The provision of the charter of Virginia City, that the "board of aldermen shall have power" to open streets, improve them, and keep sidewalks in repair, gives a permissive power only, and does not impose the duty upon the city to do these things. McDonough v. Mayor and Aldermen of Virginia City, 90.
VIRGINIA CITY NOT OBLIGED TO REPAIR STREETS. The charter of Virginia City in express terms leaves the matter of repairing the streets discretionary with
the authorities, as it does the opening of them in the first instance; and con- sequently the city cannot be held liable for a refusal to repair a street after it has once been properly opened and put in good condition. McDonough v. Mayor and Aldermen of Virginia City, 90.
VIRGINIA CITY, When Responsible for Defects in STREETS. Though Virginia City, under its charter, is not obliged to open a street, nor to repair one after it is opened, yet if a street, when opened, is left in such a defective condition that injuries result therefrom to persons exercising proper care, the city is liable therefor. McDonough v. Mayor and Aldermen of Virginia City, 90.
PRESUMPTION AGAINST WAIVER OF ERRORS. It is always the duty of the person wishing to avoid the consequences of error in legal proceedings, upon the ground of waiver by the opposite party, to show such waiver, and not of the person insisting on the error to establish that it was not waived. White v. White, 20.
WAIVER NOT PRESUMED EXCEPT IN CLEAR CASE. The legal presumption of a waiver of any right by a litigant will not be drawn except in a clear case, and especially not when to allow such a presumption would be to deprive a party of his day in court. Williams v. Keller, 141.
WAIVER OF RIGHT TO MOVE FOR A NEW TRIAL. Where a party in a case tried by the court appealed from a judgment without the preliminary step of moving for a new trial: Held, that he thereby waived such motion, and could not after- wards take advantage of the fact that he had received no written notice of the rendering of the decision of the judge. Corbett v. Swift, 194.
WAIVER OF WAIVER-TIME TO MAKE A failure to make a statement on appeal within twenty days after the entry of judgment is equivalent to a waiver of such statement; but such waiver may be itself waived; and a stipulation that the statement on new trial shall be also the statement on appeal, though made more than twenty days after judgment, is such a waiver. Johnson v. Wells, Fargo & Co., 224.
WAIVER OF OBJECTIONS TO AFFIDAVITS FOR CONTINUANCE. Where in a crim- inial case, on motion for continuance on the ground of absence of witnesses, no objection was made that the affidavits did not set forth the materiality of their testimony; but it appeared that the court assumed its materiality: Held, that it would be unfair to allow the objection to be made for the first time in the Supreme Court. State v. Chapman, 320.
FAILURE TO OBJECT TO WANT OF PROOF WHEN WAIVER OF PROOF. Where a deed purporting to be that of a corporation was permitted to be introduced in evidence, without any objection, at the time, that the seal had not been proved, nor any authority to affix it shown: Held, a waiver of such proof. Sharon v. Minnock, 377.
WAIVER OF PROOF OF FACT PLEADED ON OTHER SIDE-see BANkruptcy, 1.
STOCK BROKERAGE-Waiver OF DELIVERY OR TENDER-See BROKER, 1.
WAIVER OF PERFORMANCE OF CONTRACT BY WAY OF ESTOPPEL·
MOTION FOR NEW TRIAL-WAIVER OF NOTICE OF DECISION-see NEW TRIAL, 2.
NAMING A PAPER "STATEMENT" NOT A WAIVER OF OBJECTIONS TO IT-see STIPULATION, 1.
CONTESTING DEFENSE NO WAIVER OF RIGHT TO CHANGE VENUE-see YENUE, 4.
RIGHT UNDER WARRANT TO MONEY IN TREASURY-see COUNTY FUNDS, 1.
SUFFICIENCY OF COMPLAINT FOR INJUNCTION TO STAY WASTE-see PLEADING, 4.
ACT OF CONGRESS AS TO WATER RIGHTS OVER PUBLIC LAND. The act of Con- gress (14 Statutes at Large, 253, Sec. 9) gives-as clearly as acts of Congress usually express their objects-a right of way over public lands to all who may desire to construct ditches or canals for mining or agricultural purposes. Ho- bart v. Ford, 77.
WATER RIGHTS-OBSTRUCTIONS HARMLESS WHEN ERECTED. A dam erected on a stream in a manner in no wise injurious or prejudicial at the time of its erec- tion to a mill above, but which, by reason of circumstances that could not have been anticipated happening subsequently and operating in connection with it, causes the water to flow back upon the mill, is not such an obstruction as to authorize its abatement or justify a recovery of damages against the person building it. Proctor v. Jennings, 83.
RIGHTS OF SUBSEQUENT APPROPRIATORS OF WATER. A person appropriating a water right on a stream already partly appropriated acquires a right to the surplus or residuum he appropriates; and those who acquired prior rights, whether above or below him on the stream, can in no way change or extend their use of water to his prejudice, but are limited to the rights enjoyed by them when he secured his. Proctor v. Jennings, 83.
FORTUITOUS INJURIES TO WATER RIGHTS. Where a dam was erected on a stream below another's mill, and so as not at the time to interfere with it, but subsequently, on account of a new process of mining going into operation on the
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