INDEX.

ABATEMENT. See NUISANCE.

ACCOMPLICE TESTIMONY. See CRIMINAL LAW, 6; HOMICIDE,
1, 2.

ACCRETION. See RIPARIAN RIGHTS, 5.

ACTION. See EQUITY, 2; INSURANCE; JUDGMENT, 8; MECHANICS'
LIEN, 2; MUNICIPAL CORPORATIONS, 6; PLEADING, 5; VENUE
IN CIVIL CASES, 1, 3.

ADMISSION. See APPEAL AND ERROR, 1; WITNESS, 3.

AFFIDAVIT. See ATTACHMENT, 2, 3, 4; CRIMINAL LAW, 3; JURY, 3.

AGENCY. See FACTORS AND BROKERS.

AMENDMENT. See PLEADING, 1.

APPEAL AND ERROR.

1. Defective Record- Cured by Admissions in Brief and Argument.
Where the record shows the motion to strike out certain allega-
tions of an answer, but fails to show the order of the court thereon,
or that any exception was taken thereto, appellant's admission in
his brief and upon the argument in this court that the motion was
granted, must be taken as true, coupled, however, with the state-
ment that the order was excepted to. - Pettygrove v. Rothschild, 6.
2. When Lies Without Exceptions Taken.

Where judgment is given on the pleadings in an equity case, an
appeal may be maintained therefrom, though no exception is taken.
-Travis v. Ward, 30.

3. Interlocutory Order-Attachments.

An order of the superior court discharging an attachment is not
reviewable on appeal under the laws of this state for the removal
of causes to the supreme court (Laws 1889-90, pp. 333, 336). — Windt
v. Banniza, 147.

4. Record-Affidavits in Attachment not Part of.

-

Affidavits used upon the hearing of a motion to discharge an
attachment are not part of the record, and, in order to be available
on appeal, must be brought up by a statement or bill of exceptions.
- Id., 147.

5. Order of Arrest in Civil Actions- Not Appealable.

An order of arrest in civil actions is not a special proceeding,
but is a provisional remedy, merely ancillary to the action in which
it is invoked, and consequently not appealable under the act (Laws
1889-90, pp. 333, 336) providing that "an appeal may be taken to
the supreme court from the superior courts in all actions and pro-
ceedings," as the term "proceedings" embraces only special pro-
ceedings, as distinguished from ordinary actions at law. - Cline v.
Harmon, 155.

(699)

APPEAL AND ERROR (Continued).

6. Findings by Court - When Sufficient.

A finding by the court stands as a special verdict, under Code
1881, 247, and, unless so clearly unfounded that it would be set
aside if made by a jury, will not be disturbed. - Reynolds v. Dexter
Horton & Co., 185.

7. Substituted Statement of Facts- When Considered.

A statement of facts will be considered by the supreme court,
where the record shows that it was agreed upon by the attorneys of
both parties to the action, certified by the judge, and by an order of
the court substituted for an original statement which had been lost.
- Squire v. Greer, 209.

--

8. Failure to Perfect Appeal - Dismissal.

Where an appeal is not perfected within the time prescribed by
law and the rules of the supreme court, the appeal will be dismissed
unless a reasonable excuse is shown for the failure. -Murphy v.
Ross, 327.

9. Notice of Appeal - Upon Whom Served.

Where the decree in an action is such that several of the defend-
ants, who do not join in an appeal, are prevailing parties as against
those who do, notice of appeal should be served on those not join-
ing, under the act of March 22, 1890, providing that a party desiring
to appeal must serve notice on the prevailing party. — Jones v. Sunder,

329.

10. Referee's Findings - Presumption in Absence of Evidence.

On the appeal of an action tried before a referee, the supreme
court will assume, in the absence of the evidence, that the facts
found by the referee are true, and that the evidence warranted the
findings. Ferry v. King County, 337.

11. Dismissal - Failure to File Transcript and Briefs.

Where appellant fails to cause a transcript to be prepared, and
to serve and file a brief as required by rule 6 of the supreme court,
without satisfactory excuse for the failure, the appeal will be dis-
missed on appellee's motion therefor, accompanied by a certified
copy of the judgment and notice of appeal.-Higgins v. Burns, 372.
12. Same.

Where appellant fails to file a transcript and to serve and file a
brief as provided by law and the rules of this court, and gives no
reason or excuse for such failure, the appeal will be dismissed.—
Edison Electric, etc., Co. v. Needham, 450.

13. Erroneous Exceptions - Equity Cases-Harmless Error.

On appeal in a proceeding in equity, the supreme court looks at
the substance of the case as presented below, and not at any tech-
nical exceptions or objections made therein; exceptions which might
be erroneous in an action at law will not be regarded as error in a
proceeding in equity. - Smith v. Taylor, 422.

14. Appealable Order— Vacating Judgment.

An order vacating a decree on petition of a party who had been
served with process in the proceeding by publication only, and
allowing her to appear and defend the action, is not an appealable
order under Laws 1889-90, p. 336, amending 1 of the act passed
March 22, 1890, relating to removal of causes from the superior to
the supreme court.- Sander-Boman Co. v. Yesler's Estate, 429.
15. Record-Exhibits in Equity Cases.

In causes of equitable cognizance, the original exhibits should be
sent up on appeal, and not copies thereof.— State ex rel. Quade v.
Allyn, 470.

APPEAL AND ERROR (Continued).

16. Review- Motion for New Trial Unnecessary.

Under Code 1188, 450, the supreme court may review and re-
verse on appeal any judgment of the superior court, although no
motion for a new trial was made in such court. -Johnson v. Maxwell,
482.

17. Statement of Facts not Certified.

A statement of facts not certified by the trial judge will not be
considered by the supreme court. - Hanson v. Tompkins, 508.
18. Statement of Facts- Notice of Settlement — Jurisdictional.

Where the record on appeal does not disclose that notice of
settlement of the statement of facts included therein was given
appellee, nor that there was a waiver thereof, and there is no
appearance by appellee in this court, the purported statement will
be disregarded. The notice required to be given the opposite party
for the settlement of a statement on appeal is jurisdictional, and
there can be no presumption in favor of its having been given, or
waived. Mooney v. State, 487.

19. Statement of Facts-Trial Judge out of Office- By Whom Settled.
Under Laws 1889-90, p. 334, 4, a statement of facts on appeal
cannot be settled by the judge who tried the cause after he goes out
of office, as there is nothing in the statute specially providing that
judicial functions shall be retained for such purpose.- Faulconer
v. Warner, 525.

20. Failure to File Transcript After Notice - Excuse.

Where the court in a cause of equitable cognizance delivered
his findings and decree to the clerk to be filed, and defendant there-
upon gave notice in open court of appeal, and ordered and paid for
a transcript, which the clerk failed to prepare and file within thirty
days thereafter, on the ground that he had not entered the decree
because plaintiff had not paid the fees therefor, no laches can be
attributed to the defendant.- Callahan v. Houghton, 539.

21. Weight of Testimony.

Where there is sufficient evidence to sustain the verdict of the
jury, the supreme court will not pass upon the weight of testimony.
Lybarger v. State, 552.

The supreme court will, on suggestion of a diminution of the
record of a case before the court, order the record supplied; but
after appellant has rested his case on certain points of the record, he
will not be granted a rehearing upon an amended record. — Id., 552.
23. Record-Presumptions.

Where the evidence in a cause is not made a part of the record
on appeal, it will be presumed that the findings of fact by the court
below were warranted by the evidence. — Rathbun v. Thurston County,
564.

24. Appeal Bond-Judgment Against Sureties.

The supreme court will not render judgment against the sureties
on an appeal bond, under Code 1891, 1432, where the bond secures
to appellee the payment of all rents or damages to property during
the pendency of the appeal, unless such damages can be known
without an issue and trial. - Muzzy v. Tompkinson, 616.

25. Weight and Sufficiency of Evidence.

In an action by an architect to recover for services, the refusal of
the court to set aside a verdict for plaintiff, on the ground that the
evidence fails to show any employment of the architect by defend-
ant, is not error, when both parties testified fully and there was a
direct conflict in their testimony, as it is for the jury to determine,
under all the facts and circumstances before them, upon which side
lay the preponderance of evidence. — Noyes v. Pugin, 653.

APPEAL AND ERROR (Continued).

26. Dismissal — Appeal Bond - Judgment Against Sureties.

On a motion of appellee to affirm judgment on the ground of fail-
ure of appellant to file transcript and brief within the time prescribed
by law, there can be no judgment against the sureties on the appeal
bond, when no copy of the bond has been filed in this court. -Sul-
livan v. Skagit County, 681.

27. Dismissal for Failure to Prosecute Appeal-Judgment upon
Supersedeas Bond.

Upon aflirming judgment of the court below against appellant
for failure to prosecute his appeal after notice thereof duly served,
and the filing of a supersedeas bond, this court will render judgment,
unless sufficient excuse is shown for such failure against appellant
and sureties on said bond for the amount of judgment and costs in
the court below, and for costs in this court.— Tinkham v. Kimble, 682.

See CRIMINAL LAW, 1, 3, 10, 11, 12, 13; JURY, 3; JUSTICE OF
THE PEACE, 2; MANDAMUS, 1; PROHIBITION, WRIT OF, 3.

ARGUMENTS OF COUNSEL. See TRIAL, 2.

ARREST. See APPEAL AND ERROR, 5.

ASSAULT. See CRIMINAL LAW, 11; HOMICIDE, 3; RAPE, 1, 2.

ASSIGNMENT FOR BENEFIT OF CREDITORS. See INSOLV-
ENCY, 1, 2, 3.

ASSUMPSIT. See DAMAGES, 7; EVIDENCE, 9.

ATTACHMENT.

1. Motion to Vacate-Jury Trial.

A motion to discharge an attachment is addressed to the con-
sideration of the court or judge, and the statute of this state (Laws
1885-6, p. 45) does not contemplate the interposition of a jury to
determine it, or to aid in its determination. - Windt v. Banniza, 147.
2. Motion to Vacate - Oral Testimony.

When the motion to discharge an attachment is made by defend-
ant upon affidavits, the plaintiff may oppose the same by affidavits
or oral testimony; but the defendant has no right, in the first
instance, to introduce any testimony other than affidavits in support
of his motion. Id., 147.

3. Motion to Vacate- By One of Several Defendants.

An attachment may be dissolved upon the motion and affidavit
of but one of several defendants. - Id., 147.

4. Insufficiency of Affidavit.

A motion to discharge an attachment on the ground of the in-
sufficiency of plaintiff's affidavit therefor, should point out explicitly
the nature of the insufficiency. — Id., 147.

5. Debts not Due- When Writ Granted.

Under the statute (Laws 1885-6, p. 39, 3) allowing attachment
upon claims not yet due, when the debtor has fraudulently disposed
of his property, the plaintiff must allege such fraudulent disposition
in his complaint, and, in case of denial, prove the same upon the
trial, in order to authorize a judgment in his favor. — Cox v. Dawson,

381.