Page images
PDF
EPUB

INDEX.

ABANDONMENT.

Of homestead, see "Homestead."

Of wife, see "Husband and Wife."

ABATEMENT AND REVIVAL.

Survival of action after death of servant, see
"Death."

Pending an action on a note where judgment
is recovered in another state, it is a bar to the
further prosecution of the action.-Swedish-
American Nat. Bank v. Dickinson Co. (N. D.)
455.

Death of plaintiff pending suit for wrongful
attachment will not prevent the recovery of ex-
emplary damages by his administrator.-Union
Mill Co. v. Prenzler (Iowa) 876.

ABSENCE.

Of witness as ground for continuance, see
"Criminal Law.'

ABSTRACTS.

Of record on appeal, see "Appeal and Error."

ABUTTING OWNERS.

Assessment for public improvements, see "Mu-
nicipal Corporations."

ACCIDENT.

Evidence, to impeach a certificate for fraud,
must be clear and convincing.-Saginaw
Building & Loan Ass'n v. Tennant (Mich.)
1118.

ACTION.

See, also, "Appearance"; "Continuance"; "Dis-
missal and Nonsuit"; "Limitation of Ac-
tions"; "Venue."

Against attorney, see "Attorney and Client."
officers of corporation, see "Corporations."
town, see "Towns."

By assignee, see "Assignments."

By guardian, see "Guardian and Ward."
For alienating wife's affections, see "Husband
and Wife."
For assault and battery, see "Assault and Bat-
tery."

For breach of warranty, see "Sales."
For injuries to passenger, see "Carriers."

to servant, see "Master and Servant."
For negligence, see "Negligence."
For price of goods, see "Sales."
For rent, see "Landlord and Tenant."
On bills and notes, see "Bills and Notes."
On contract, see "Contracts."
On policy, see "Insurance."
Particular actions, see "Assault and Battery";
"Assumpsit, Action of"; "Attachment":
"Breach of Marriage Promise"; "Creditors'
Suit"; "Death"; "Divorce"; "Forcible En-
try and Detainer"; "Garnishment"; "Injunc-
tion"; "Interpleader"; "Libel and Slander";
"Malicious Prosecution"; "Mandamus":
"Money Received"; "Quieting Title"; "Quo
Warranto"; "Replevin"; "Specific Perform-
ance"; "Trespass"; "Trover and Conversion";
"Work and Labor."

See "Carriers"; "Negligence"; "Railroads"; Pendency of other action, see "Abatement and

"Street Railroads."

At crossing, see "Railroads."

Excusable homicide, see "Homicide."

ACCIDENT INSURANCE.

See "Insurance."

ACCOMMODATION PAPER.

See "Bills and Notes."

ACCORD AND SATISFACTION.
See, also, "Compromise and Settlement"; "Pay-
ment"; "Release."

A claim of damages for fraud held not to have
been compromised.-Stoney Creek Woolen Co.
v. Smalley (Mich.) 722.

ACKNOWLEDGMENT.

Of adverse possession, see "Adverse Posses-
sion."

An acknowledgment of a mortgage by a no-
tary who is a stockholder in a bank which is a
beneficiary under the mortgage is void, and the
record of the mortgage does not impart notice
of a lien.-Smith v. Clark (Iowa) 1011.

69 N.W.-73

Revival."

To enforce stockholders' liability, see "Corpo-
rations."

To set aside fraudulent conveyance,
"Fraudulent Conveyances.'

[ocr errors]

see

[blocks in formation]

(1153)

[blocks in formation]

The marriage of a man after committing the

See "Husband and Wife."

ALIENATION.

offense of adultery does not bar his prosecution, Suspension of power, see "Wills.” under the statute, on complaint of the husband of the woman.-State v. Oden (Iowa) 270.

ADVERSE CLAIM.

See "Quieting Title."

ADVERSE POSSESSION.

See, also, "Limitation of Actions."
Highways by prescription, see "Highways."

As between parent and child, possession of land of one by the other is presumed not to be adverse.-O'Boyle v. McHugh (Minn.) 37.

Good faith is not essential to the acquiring of ownership by adverse possession under the statute.-Lampman v. Van Alstyne (Wis.) 171.

One claiming adverse possession by himself and his predecessors must show such transfer of possession as will enable him to tack the previous possession to his own.-Ryan v. Schwartz (Wis.) 178.

One claiming by adverse possession must show that it has been continuously adverse for the requisite period.-Ryan v. Schwartz (Wis.) 178.

An acknowledgment by one holding title by adverse possession of the former owner's title by accepting a lease is competent evidence to prove his possession not adverse.-Sage v. Rudnick (Minn.) 1096.

An acknowledgment by one holding title by adverse possession of the former owner's title except by deed will not divest his title.-Sage v. Rudnick (Minn.) 1096.

ALIENS.

[blocks in formation]

Evidence held to justify a finding that possession by plaintiff of the lands of her children was See "Pleading." not adverse.-O'Boyle v. McHugh (Minn.) 37. Evidence on the question of adverse possession considered.-Lampman v. Van Alstyne (Wis.)

171.

Proof of all the elements required by the statute will establish adverse possession, regardless of the requirements of the common law.-Lampman v. Van Alstyne (Wis.) 171.

Evidence held not to show color of title on which to base adverse possession.-Laraway v. Zenor (Iowa) 416.

A finding that, when plaintiff's grantor entered into adverse possession, the owner of the land was not insane, held sustained by the evidence.-Kelly v. Gallup (Minn.) 812.

Instructions as to requisites of adverse possession held not erroneous.-Lampman v. Van Alstyne (Wis.) 171.

AFFIDAVITS.

For attachment, see "Attachment."

For publication of summons, see "Process." To impeach verdict, see "Trial."

AFTER-ACQUIRED PROPERTY. Effect of mortgage, see "Chattel Mortgages."

ANSWER.

ANTENUPTIAL CONTRACTS.

See "Husband and Wife."

APPEAL AND ERROR.

See, also, "Certiorari"; "Exceptions, Bill of'; "New Trial."

Costs on appeal, see "Costs."
From order of condemnation, see "Eminent
Domain."
Harmless error in refusing amendment, see
In criminal cases, see "Criminal Law."
"Pleading."

Jurisdiction.

The supreme court cannot assume jurisdie tion by consent.-Waterman v. Bailey (Mich.) 1109.

Where plaintiff moves for judgment notwithstanding the verdict, or for a new trial, and the new trial is granted and the judgment is denied, no appeal lies.-St. Anthony Falls Bank v. Graham (Minn.) 1077.

Jurisdiction of supreme court after judgment and remittitur filed in lower court determined. -Rud v. Board of Com'rs of Pope County (Minn.) 886.

On appeal by the garnishee from a justice, the |
amount in controversy, in determining the juris-
diction of the supreme court, is the amount of
the judgment recovered in the justice court
against the principal debtor.-Mayo v. Hansen
(Wis.) 344.

To determine whether the district court has

jurisdiction of an appeal from a justice, the
transcript only must be considered.-Bates v.
Phoenix Pub. Co. (Neb.) 305.

Appealable judgments and orders.
An order for the examination of defendant in
supplementary proceedings in aid of execution
is a final order, and appealable.-Clarke v. Ne-
braska Nat. Bank (Neb.) 104.

Circuit court's decision in proceeding of ha-
beas corpus is a final order affecting a substan-
tial right. In re Hammill (S. D.) 577.

An order striking out an amendment held
appealable (Code, § 3164) as affecting a sub-
stantial right.-Kay v. Pruden (Iowa) 1137.

An order for a change of venue is not ap-
pealable.-Kay v. Pruden (Iowa) 1137.

An order denying a motion to set aside the
report of commissioners in condemnation pro-
ceedings is not appealable.-Fletcher v. Chi-
cago, St. P., M. & O. Ry. Co. (Minn.) 1085.

An order refusing to compel plaintiff to elect
between causes of action is not appealable.-
Milbauer v. Schotten (Wis.) 984.

A finding without judgment in a summary
prosecution for contempt held not a final order
which will be reviewed. - Blodgett v. State
(Neb.) 751.

Appeal held not to lie from order refusing de-
fault.-Roberts v. Malloy (Iowa) 674.

Notice.

In an action against a principal and sureties
on a bond, in which the principal was not
served and did not appear, it is not necessary
that he should be served with notice of appeal.
-Marshall County v. Knoll (Iowa) 1146.

An appeal will be dismissed where notice
thereof was never served on the clerk below.--
Pratt v. Pratt (Iowa) 1128.

Proof of service of notice of appeal cannot be
amended after 10 days within which such proof
must be filed with a justice.-Graham v. Con-
rad (Minn.) 334.

Proof of service of notice of appeal on "E.
and E., attorneys for plaintiff," is not proof of
service of notice on "E. E. E.," the attorney of
record.-Graham v. Conrad (Minn.) 334.

Bond.

Under Comp. Laws, § 5232, failure to justify
an appeal bond on exceptions leaves the ap-
peal ineffectual for any purpose.-Haseltine v.
Browne (S. D.) 579.

Where an appeal bond from the county to the
circuit court is good as a common-law bond,
but defective as a statutory bond, and the ap-
peal is taken in good faith, the court may, un-
der Comp. Laws, § 5235, permit a sufficient un-
dertaking to be filed.-Skinner v. Holt (S. D.)
595.

Service of notice of exception to sureties on ap-
peal, when personal, may be at any time before
12 p. m. of the last of the 10 days allowed by
Comp. Laws, § 5232, therefor.-Haseltine
Browne (S. D.) 579.

Assignments of error.

V.

An assignment of error as to instructions
made in gross will be overruled if any one of
the instructions was correct.-Behrends v. Bey-

An order requiring defendants to deliver to re-
ceiver property in possession of others is appeal-schlag (Neb.) 835.
able.-Hall v. Donovan (Mich.) 643.

Assignments of error held too general to be
When appeal will lie from order of board of available.-Carpenter v. Eastern Ry. Co. of Min-
equalization.-Webster v. City of Lincoln (Neb.) nesota (Minn.) 720.

394.

An appeal will not lie directly to review deci-
sions of the secretary of the state under the Aus-
tralian ballot law.-State v. Piper (Neb.) 378.

An appeal will lie from an order denying a
motion by claimant of a fund in court that the
fund be paid to it.-Ellis v. Southwestern Land
Co. (Wis.) 363.

Whether a judgment of a justice is appealable
depends on the amount claimed in the bill of
particulars, and not on the judgment recovered.
-Bates v. Phoenix Pub. Co. (Neb.) 305.

No appeal lies from an order denying a motion
to dismiss objections filed to the allowance of the
account of the trustee.-Minneapolis Trust Co. v.
Menage (Minn.) 224.

No appeal will lie from the order of dismissal
of an appeal from a justice, but must be taken
from the judgment entered in the district court.-
Graham v. Conrad (Minn.) 215.

Where a cause is remanded, a denial of a mo-
tion to introduce additional evidence, or for a new
trial, held not appealable.-Johns v. Northwest-
ern Mut. Relief Ass'n (Wis.) 160.

Time of taking.

Where, by agreement, the court makes addi-
tional findings and an order thereon, the time
for taking appeal runs from the last order.-
Billson v. Lardner (Minn.) 477.

An appeal not taken within six months from
decree rendered will be dismissed.-Renard v.
Thomas (Neb.) 932.

No appeal lies until the order appealed from
has been "entered" on the record of the court
below.-State v. Lamm (S. D.) 592.

Appellant cannot amend his assignments of er-
ror after the time for service passed except by
consent.-Carpenter v. Eastern Ry. Co. of Min-
nesota (Minn.) 720.

An assignment must particularly designate the
evidence in regard to which it is complained the
error occurred.-Fremont, E. & M. V. R. Co. v.
Root (Neb.) 397.

An assignment that "the court erred in direct-
ing a verdict for defendant" is sufficiently specific.
Conely v. Dudley (Mich.) 151.

An assignment that the verdict is "contrary to
the instructions" will be overruled if the verdict
is in accordance with any one instruction.-Aet-
na Ins. Co. v. Simmons (Neb.) 125.

An assignment of error as to several instruc-
tions in gross will be overruled if the court acted
properly as to any one of them.-Aetna Ins. Co.
v. Simmons (Neb.) 125.

An assignment of error referring in gross to
a series of propositions relating to instructions,
will be considered no further than to ascertain
that any one of the series is correct.-Denise v.
City of Omaha (Neb.) 119.

Record.

The sufficiency of the evidence cannot be con-
sidered in the absence of a bill of exceptions.-
Denise v. City of Omaha (Neb.) 119.

Appeal dismissed for failure to settle case
within the statutory time.-Waterman v. Bail-
ey (Mich.) 1109.

Certificate of trial court that the settled case
contains all the evidence is not conclusive when
the case itself shows the contrary.-Sage v.
Rudnick (Minn.) 1096.

Error in giving instructions not considered, Certificate that questions of law are involved because all the instructions were not in the held insufficient where it does not state that the record.-Kreuger v. Sylvester (Iowa) 1059. questions certified are involved in the case.Record on appeal held insufficient, as not show-Connor v. Bennke (Iowa) 414.

ing that the certificates in the abstract were in fact made by the officers whose names they bore.-Mahr v. Hanford Produce Co. (Iowa) 1019.

A stipulation for filing the original pleadings in place of the certified transcript does not give the court jurisdiction, in the absence of such a transcript.-Smith v. Beagle (Neb.) 936.

Where the abstracts do not contain all the evidence, questions of fact cannot be reviewed. -Koster v. Seney (Iowa) 868.

Findings of fact will not be reviewed where the bill of exceptions does not contain all the evidence.-Williamson v. Neeves (Wis.) 806. The requirement of a transcript is not complied with by filing the original pleadings with a transcript of the record showing judgment.Peck v. Nebraska Loan & Trust Co. (Neb.) 777. In a case submitted on an agreed printed abstract, the court will not look beyond the abstract. Closson v. Roman (Neb.) 760.

Alleged errors as to the evidence are not available where the bill of exceptions was quashed before final submission.-Reynolds v. McCandless (Neb.) 760.

When appeal may be considered, though assignments of error were not embodied in the bill of exceptions.-Coon v. Dennis (Mich.) 666.

Where a statement by appellee that the abstracts do not contain all the evidence is not denied by appellant, the evidence will not be reviewed.-Hiatt v. Nelson (Iowa) 553.

Where the record does not show an appeal taken, it will be dismissed.-Brandenburg v. Keller (Iowa) 448.

Court rule 97, requiring an index to the abstract, will be enforced.-State v. Abegglen (Iowa)

256.

Review.

On second trial, the judgment of the supreme court on the former trial constitutes the law of the case.-Bradley v. Norris (Minn.) 624.

An assignment of error cannot be considered on a second appeal as to matters involved in the first appeal.-In re Kittson's Estate (Minn.) 625; Appeal of St. Paul Trust Co., Id.; Appeal of Kittson, Id.

One who objects to the withdrawal of evidence admitted against his objection cannot complain of the admission.-Geiger v. Payne (Iowa) 554.

Oral evidence of the clerk of court, contradicting recitals in an execution not objected to. cannot be disregarded on appeal.-Locke v. Hubbard (S. D.) 588.

When testimony as to value of article lost under fire insurance policy held to have related to market value.-Huston v. State Ins. Co. (Iowa) 674.

An appeal from an order striking an ameniment held to bring up for review an order for a change of venue made at the same time.Kay v. Pruden (Iowa) 1137.

An appellate court will not interfere with

the discretion of the trial court as to the order of admitting evidence.-Kramer v. Messner (Iowa) 1142.

The dissolving of a temporary injunction will not be disturbed unless an abuse of judicial discretion is shown.-Gorton v. Town of Forest City (Minn.) 478.

An order granting a new trial on the ground that the evidence does not sustain the verdict is in the discretion of the court.-Gull River Lumber Co. v. Osbrone-McMillan Elevator Co. (N. D.) 691.

Objections not raised below.

Objections not raised below will not be considered.-Williamson v. Neeves (Wis.) 806.

It cannot be first objected on appeal that no notice of intention to move for new trial was served.-Fletcher v. Nelson (N. D.) 53.

The admission of evidence cannot be reviewed where it was not objected to.-Denise v. City of Omaha (Neb.) 119.

The admission of evidence cannot be reviewed in the absence of an assignment in reference thereto.-Denise v. City of Omaha (Neb.) 119.

Defendant cannot object for the first time on appeal that persons jointly liable were not par ties.-Clark v. O'Rourke (Mich.) 147.

It is too late to raise, by supplemental brief. the question whether the verdict in a slander case was defective for not specifying the amount awarded for damages to feelings.-Hewitt v. Mor

On appeal from the county court, the same is-ley (Mich.) 245. sues must be tried as were tried below unless An objection that plaintiff's remedy was at new matter has arisen.-Bellamy v. Chambers law, and not equity, cannot be first raised on (Neb.) 770. appeal.-Bull v. Keenan (Iowa) 433.

Where the jury, on a trial for slander, was charged to estimate the amount of "actual injury," it will not be presumed that exemplary damages were given.-Trimble v. Tantlinger (Iowa) 1045.

A motion for new trial on purely legal grounds may be reviewed.-Davis v. Cook (S. D.) 18.

Where a claim is sought to be enforced against the decedent's estate on the basis of a trust, on appeal to the circuit court it cannot be enforced on the theory of a sale.-Raub v. Nisbett (Mich.) 77.

Objections to instructions, to be available, must be specifically pointed out in a motion for new trial.-Denise v. City of Omaha (Neb.) 119. Matters not specifically assigned both in petition in error and in brief will not be considered. -Aetna Ins. Co. v. Simmons (Neb.) 125.

Presumption favoring trial court's finding on question of fact prevails where the evidence is nearly balanced.-Kirkland v. Kirkland (Mich.) 233.

[ocr errors][merged small][merged small][merged small][merged small][merged small]
[merged small][merged small][merged small][ocr errors]

Error in admitting evidence held harmless.-
Robinson v. City of Cedar Rapids (Iowa) 1064.
Admission of incompetent evidence is harm-!
less where the fact was established by compe-
tent evidence.-Mead v. Randall (Mich.) 506.

Erroneous admission of evidence held not prej-
udicial error.-Richardson v. Douglas (Iowa)
530.

Admission of improper evidence in a suit in
equity held not reversible error where there is
sufficient evidence to sustain the judgment.
Williamson v. Neeves (Wis.) 806.

Rejection of competent evidence held harmless.
-Whitney v. Gretna State Bank (Neb.) 933.
Error in admitting evidence of time lost as
an element of damage held harmless, where
no evidence of the value of the time was offered.
-Citizens' State Bank v. Rowley (Iowa) 1017.
Exclusion of evidence is harmless error, where
the witness afterwards testified to the same
matter.-Trimble v. Tantlinger (Iowa) 1045.
Error in permitting a reply to be filed which
raised a new issue he'd harmless.-Kreuger v.
Sylvester (lowa) 1059.

Refusal to strike out a plea stating a mere
legal conclusion is harmless.-Graves v. Clark
(Iowa) 1046.

Error in refusing to strike out amended an-
swer is harmless, where every fact available
to plaintiff without the answer is available with
it.-Graves v. Clark (Iowa) 1046.

Allowing a petition to be amended increasing
the ad damnum was harmless error where the
court subsequently reduced the verdict to the
amount originally claimed.-Newbury v. Getch-
ell & Martin Lumber & Manufacturing Co.
(Iowa) 743.

Weight and sufficiency of evidence.
A finding that adverse possession is established,
made under proper instructions, will not be dis-
turbed, when based on the evidence.-Lampman
v. Van Alstyne (Wis.) 171.

[blocks in formation]

The fact that the preponderance of evidence
is against facts on which an instruction is based
will not support an objection that the instruc-
tion is not based on evidence. - Newbury v.
Getchell & Martin Lumber & Manufacturing
Co. (Iowa) 743.

Evidence, though conflicting, held sufficient to
sustain decree.-Ryley v. Sandean (Neb.) 761.

When conclusions of trial court on facts and
law not reviewed.-Robson v. Dayton (Mich.)
834.

The rule that the supreme court will not dis-
turb a decision on conflicting evidence applies
to orders confirming judicial sales.-Creighton
University v. Riley (Neb.) 943.

Findings on conflicting evidence will not be
disturbed.-Slauson v. Goodrich Transp. Co.
(Wis.) 990.

Verdict supported by the evidence will not be
disturbed.-Craig v. Sylvester (Iowa) 1030.

not be disturbed.-Shafer v. Hostetler (Neb.)
A judgment based on conflicting evidence will
302.

Effect of appeal-Supersedeas.

A judgment from which an appeal has been
taken within the statutory time will not be re-
viewed.-Omaha Loan & Trust Co. Sav. Bank
v. Knight (Neb.) 933.

The filing of a supersedeas bond is indispen-
sable to a stay of proceedings, but not to re-
view.-State v. Ramsey (Neb.) 758.

A supersedeas bond will not act as a superse-
deas of a decree subsequently rendered in an-
other action between the same parties.-State
v. Ramsey (Neb.) 758.

A bond, when approved, will not operate as a
supersedeas unless conditioned as prescribed
by law. State v. Ramsey (Neb.) 758.

Payments on a judgment pending an appeal,
by a party not appealing, will not affect the ap-
peal.-Belden v. Hurlbut (Wis.) 357.

The appointment of a receiver cannot be su-
perseded, as a matter of right, during an appeal
therefrom.-State v. Stull (Neb.) 101.

Decision.

An appeal from a refusal to modify a judg
ment will be dismissed, where, pending the ap-
peal, the judgment has been reversed.-Mark-
well v. Pereles (Wis.) 984.

Where the district court reverses a judgment
of the county court, it may retain the cause for
trial.-Maryott v. Gardner (Neb.) 837.

An appeal from a discretionary order will be
dismissed where there was no abuse of discre-

tion.-Homestead Land Co. v. Joseph Schlitz
Brewing Co. (Wis.) 346.

An appeal will be dismissed where it presents
no question of an existing substantive right in
the appellant.-Edgerton v. State (Neb.) 302.

The supreme court, on appeal from a decree for
rescission of a contract, may, on reversal, reform
the contract for mistake.-Johnson v. Wilson
(Mich.) 149.

On appeal from a justice, where no return was
filed, on dismissal it was error to enter against
defendant a judgment of affirmance.-Rowell v.
Zier (Minn.) 222.

APPEARANCE.

insisted that the court had no jurisdiction, after
A defendant who filed an answer in which he
his motion to dismiss on the ground of want of
jurisdiction had been denied, held not to have ap-
peared generally.-Perkins v. Mellicke (Minn.)
220.

« PreviousContinue »