Слике страница
PDF
ePub

INDEX.

ABANDONMENT.

See LEASE, 1.

ABATEMENT.

1. ABATEMENT-DIVORCE-FRAUDULENT MARRIAGE CONTRACT.-A suit in equity by one party to a marriage contract in writing, alleged to have been entered into in pursuance of section 75 of the civil code of California, to annul the contract as fraudulent, and for an injunction, is for a different cause from one by the other party to the contract, for a divorce arising upon the same alleged marriage contract; and a suit for the latter object pending in one court, will not abate a suit of the former character subsequently brought in another court. Sharon v. Hill. (U. S. Cir. Ct.) Cal. 199.

2. ABATEMENT-DIFFERENT JURISDICTIONS.-The State and United States courts are courts of different jurisdictions, and a suit pending in a State court will not abate a suit subsequently brought in a United States court for the same cause. Id. See CORPORATIONS, 6; NUISANCE, 6, 10.

ACCOUNT.

See PAYMENT.

ACKNOWLEDGMENT.

See MORTGAGE, 1.

ADMINISTRATORS.

See ESTATES OF DECEASED PERSONS; EXECUTORS AND ADMINISTRATORS.

ADVERSE POSSESSION.
See INFANTS, 1.
AFFIDAVITS.

See AFFIDAVIT OF MERITS; APPEAL, 19; ATTACHMENT, 1; CERTIORARI, 6; CONTEMPT; JURY AND JURORS, 9; RELEASE, 2; SUMMONS, 2-4.

AFFIDAVIT OF MERITS.

1. AFFIDAVIT OF MERITS, STATEMENT IN.-The statement in an affidavit of merits that the defendant "has fully and fairly stated the case in this action," is equivalent to a statement that he "has fully and fairly stated the facts of the said case. Rathgeb v. Tiscornia. Cal. 375.

See VENUE, 6, 7, 11.

AGENT.

See PRINCIPAL AND AGENT.

AMENDMENTS.

See APPEAL, 2.

[ocr errors]

ANSWER.

See APPEAL, 3; ASSIGNMENT, 5.

APPEAL.

1. APPEAL FROM JUDGMENT BY PERSON NOT A PARTY.-A person who is not a party
nor privy to, nor aggrieved by a judgment, cannot appeal therefrom. Dunphy v
Potrero Co. et al. Cal. 526.

2. STRIKING COMPLAINT FROM FILES AMENDMENT-APPEAL.-An order striking a com-
plaint from the files, and overruling a motion to allow it to be amended, is not a
final judgment. Such order is not appealable. Owen (a lunatic), by his Committee,
v. McCormick. Mont. 479.

3. AN ORDER STRIKING OUT AN ANSWER IS NOT APPEALABLE.-Beach v. Hodgdon.
Cal. 610.
4. ORDER MADE AFTER REVERSAL OF JUDGMENT NOT APPEALABLE.—An order made in
an action after the judgment therein has been reversed in the supreme court, is not
appealable as a special order made after final judgment. The effect of such reversal
is to place the parties in the lower court in the same position as if the case had never
been tried. Sharp v. Miller. Cal. 384.

5. ORDER APPOINTING RECEIVER-APPEAL DOES NOT LEE FROM.-No appeal lies from
an order of the district court appointing a receiver, although such order may com-
mand the defendants to refrain from any and all interference with the receiver in
the discharge of his duties as such. Stebbins v. Savage et al. Mont. 477.

6. SHERIFF APPEALS BY FROM ORDER APPOINTING RECEIVER.-A sheriff, who has
taken possession of property assigned for the benefit of creditors, under attachment
issued in favor of one creditor, cannot appeal from an order, made at the instance of
another creditor of the assignor, which requires him to deliver such property to a
receiver. If an appeal lies from such order, the proper parties to take the same are
the creditors interested. Id.

7. APPELLATE JURISDICTION OF SUPREME COURT-PROCEDURE ON APPEALS.-The su-
preme court cannot decline to take cognizance of a matter clearly within its juris-
diction, because the mode of procedure applicable to it has not been regulated by
statute, written rule or precedent. In such case it is its duty to create a precedent,
and it may adopt or ratify the practice resorted to on the first occasion when the
exigencies of a cause require a reasonable and unprecedented practice to be resorted
to. People v. Jordan. Cal. 84.

8. THE SAME-APPEALS IN MISDEMEANORS-PROCEDURE.-The supreme court has
jurisdiction to entertain appeals in cases of misdemeanors prosecuted by indictment
or information; and, as the legislature has failed to prescribe the mode of procedure
on such appeals, to provide therefor by rule, and, in the absence of a previous rule,
to sanction a mode of procedure adopted on a particular occasion. The practice
pursued in taking the present appeal is adopted, and hereafter appeals in criminal
actions prosecuted by indictment or information amounting to misdemeanors only,
will be sustained, from the judgments and orders mentioned in chapter I of title 9
of part 2 of the penal code, when the appeal is taken in the manner therein pre-
scribed. Id.

9. NOTICE OF APPEAL, FORM OF.-A notice of appeal which plainly indicates the par-
ticular order appealed from, is sufficient in form. Id.

10. JUDGMENT ON DEMURRER TO INDICTMENT, ENTRY OF NOTICE OF APPEAL-The
penal code does not provide for any entry of judgment on a demarrer to an indict-
ment other than the entry of the order upon the minutes. The order in the min-
utes is the judgment. A judgment that such demurrer be "sustained" is a sub-
stantial compliance with section 1007 of the penal code, and is in effect a judgment
that the demurrer be allowed. An appeal from such judgment is not rendered
ineffectual because, in the notice of appeal, the judgment specifically described is
called an "order." Id.

IJ. APPEAL FROM JUDGMENT-NOTICE OF APPEAL, SERVICE OF JURISDICTION OF SU-
PREME COURT OVER APPEAL.-The supreme court has no power to hear an appeal
from a judgment unless the appellant has served a notice of appeal on all the adverse
parties whose rights may be affected by a reversal of the judgment; or, where the
appeal is from a part of the judgment, by a reversal of the part appealed from. But
a modification of a judgment may be had on an appeal from the whole judgment,
although some of the adverse parties have not been served with notice of appeal;
provided such modification cannot affect the rights of the parties not served with
notice. Williams v. Santa Clara M. Co. of Baltimore, et al. Cal. 616.

12. THE SAME MODIFICATION OF JUDGMENT.-On an appeal from a judgment as an
entirety, the power of the supreme court is not limited to an affirmance or reversal
of the judgment as a whole. It may modify the judgment when a modification is
appropriate and necessary to a correct determination of the rights of the par-
ties. Id.
13. CRIMINAL LAW-NOTICE OF APPEAL MUST BE SERVED ON CLERK.-An appeal in
a criminal case will be dismissed if the appellant fails to serve a notice of appeal
upon the clerk of the court in which the judgment was rendered, in the manner re-
quired by the statute. A notice directed to and served upon the attorney for the
respondent, and filed with the clerk, is not sufficient. Territory v. Hanna. Mont.
470.

14. THE SAME TIME FOR FILING TRANSCRIPT.-After an appeal has been properly
taken, a failure to file the transcript within the time required by statute is not fatal
to the jurisdiction of the appellate court. Such statutory requirement is directory
and not mandatory. Id.

15. APPEAL UNDERTAKING STAY OF EXECUTION.-An undertaking on appeal to stay
execution may be filed at any time, after the appeal is taken, and before the execu
tion is satisfied. Mansfield v. Stern. Cal. 141.

16. APPEAL CERTIFICATE OF DEPOSIT IN LIEU OF APPEAL UNDERTAKING.—The stat-
utory requirement that, to render an appeal effectual, the appellant may, instead of
giving an undertaking with sureties, deposit money equal in amount to the sum
named in the undertaking, is substantially complied with by leaving with the clerk
a certificate of deposit, payable to his order, for the requisite amount. Alt v. Cal-
ifornia Fig Syrup Co. Nev. 255.

17. ERRORS OF LAW OCCURRING ON TRIAL MUST BE SPECIFIED.—Errors of law alleged
to have occurred on the trial will not be considered on appeal unless the same are
specified in the statement of the case. Carter v. Allen et al. Cal. 385.

18. MOTION MADE AFTER Judgment-APPEAL FROM ORDER-IDENTIFICATION OF PA-
PERS.-Copies of papers used on a motion made after judgment will not be consid-
ered on appeal, although contained in the transcript, unless the same are identified
by the certificate of the judge, or otherwise, as having been used or considered on
the hearing. Peltret v. Frank. Cal. 221.

19. TRANSCRIPT ON APPEAL-ATTACK ON IN SUPREME COURT.-The verity of a fact
stated in the transcript on appeal cannot be attacked by affidavits in the supreme
court. People v. Jordan. Cal. 138.

20. WHERE THE TRANSCRIPT ON APPEAL CONTAINS NO INDEX, as required by the rule,
the appeal may be dismissed. Donohoe v. Mariposa L. and M. Co. et al. Cal. 192.
21. APPEAL HELD WITHOUT Merit, anD JUDGMENT AND ORDER AFFIRMED with dam-
ages. Hooper v. Powers. Cal. 525.

22. APPEAL-MOTION FOR NEW TRIAL-SERVICE OF PROPOSED STATEMENT.-An ap-
peal from an order denying a new trial will not be dismissed merely because the pro-
posed statement, on which the motion for a new trial was based, was not served
upon one of the adverse parties. Dore v. Dougherty et al. Cal. 420.

See BAIL, 3, 4; BILL OF EXCEPTIONS, 1-3; CERTIORARI, 1, 2, 9, 10; CRIMINAL LAW AND
PRACTICE, 4, 5; EXECUTORS AND ADMINISTRATORS, 2.

APPROPRIATION OF WATER,

See LARCENY, 7; WATER RIGHTS, 2–8

ARBITRATION AND AWARD.
See CONTRACT, 4.

ARRAIGNMENT.

See CRIMINAL LAW AND PRACTICE, 2.

ARREST OF JUDGMENT.

See JURY AND JURORS, 10.

ASSAULT WITH DEADLY WEAPON.

1. ASSAULT WITH DEADLY WEAPON-SUFFICIENCY OF INFORMATION.-An information,
charging the defendant with having feloniously assaulted one R. S. with a deadly

weapon, to wit: a loaded pistol, with intent to kill and murder the said R. S,,
specifying the time and place, is a sufficient statement of the offense charged, if in
other respects the information conforms to the requirements of sections 950, 951 and
952 of the penal code. People v. Villarino. Cal.TM 693.

ASSESSMENT.

See SWAMP LANDS; TAXATION.

ASSESSMENT ROLL.

See JURY AND JURORS, 10.

ASSESSORS.

See ELECTION, 2.

ASSIGNMENT.

1. ASSIGNMENT OF CONTRACT-PAYMENTS TO ORIGINAL CONTRACTOR AFTER NOTICE OF
ASSIGNMENT.-The assignee of a contract for grading a public square in the city and
county of San Francisco, upon performing the work contracted for, is entitled to
payment of the full contract price. The amount of money paid by the city and
county to the workmen of the original contractor for work done by them under the
contract, after it had notice of the assignment of the same, cannot be deducted,
McCloskey v. San Francisco. Cal. 419.

2 SETTLEMENT OF ACTION BY PLAINTIFF AFTER ASSIGNMENT-EFFECT OF AS BETWEEN
DEFENDANT AND THE ASSIGNEE.-The settlement of an action made by the defend-
ant with the nominal plaintiff, without notice, actual or constructive, of any assign-
ment of the cause of action, is valid as against the plaintiff's secret assignee. The
assignee's only remedy is against the plaintiff. Nor, if such assignee is the plaintiff's
attorney in the action, does he have any lien for costs, by which he can disturb the
satisfaction of the demand. Hogan v. Black et al. Cal. 290.

3. ASSIGNMENT OF OFFICIAL'S SALARY BEFORE IT BECOMES DUE.-The assignment by a
public official of his salary before it becomes due, is contrary to public policy and
void. Bangs v. Dunn, Auditor, etc., et al. Cal. 352.

4. THE SAME DEMAND FOR SALARY-ESTOPPEL OF OFFICER.-A deputy of a public
officer, who delivers to his superior a demand upon the treasury for his salary before
the same is due, and indorses thereon the words "received payment," subscribing
the same with his name, is not estopped from disputing the authority of such supe
rior officer to make an assignment of such demand, if the same is made before the
salary becomes due. Id.

5. ACTION BY ASSIGNEE-ALLEGATIONS OF ASSIGNMENT-DENIAL OF ON INFORMATION
AND BELIEF.-In an action by an assignee of a judgment, allegations of assignment
are material, and proofs thereof are essential to a recovery by the plaintiff. The
facts connected with such assignment are not presumptively within the knowledge
of the defendant. He may, therefore, specifically deny the allegations of assign-
ment, basing his denials upon information and belief. An answer containing such
denials should not be stricken from the files as sham. Hughes v. Brewer. Col. 450.
6. EQUITABLE ASSIGNMENT-MAINTENANCE.-E. being a member of a railway construc-
tion firm in Oregon, and defendant in a suit brought there by his partners to dissolve
said firm and determine the rights of the parties therein, applied, in California, to
W., a citizen of that state, for a loan of money to aid him in asserting his rights in
said suit, which W. agreed to and did advance on E.'s promise to repay the same
with interest, and his assignment to H., in trust for W., of all his interest in said
firm, as a security for the repayment of said money and interest; in which suit there
was afterward a decree given in favor of E. and against his partners for a sum of
money; and at the time of making such assignment E. also gave W. the option to
take a portion of any railway property or bonds that he might obtain in such suit,
in lieu of said money and interest: Held, (1) That the assignment of E.'s interest in
the firm embraced the decree in his favor for the sum of money which represented
and stood for such interest, and that the trustee therein became in equity the as-
signee of said decree, as soon as it came into existence, and might maintain a suit
to set aside specific covinous assignments and conveyances by the defendant therein,
made with intent to hinder and delay the collection of the same; (2) The option
given W. is not involved in the suit to enforce the decree, and therefore it is imma-

terial whether it is void for champerty or not; (3) The contract for the loan and re-
payment of the money was made and to be fulfilled in California, and therefore
valid, whether champertous or not by the law of Oregon; and the fact that security
was taken on property in Oregon for the performance of the contract, does not
change its character in this respect. Hickox v. Elliott (U. S. Cir. Ct.) Ór. 397.
See INSURANCE, 7; LEASE, 4, 5.

ASSIGNMENT FOR BENEFIT OF CREDITORS.

See APPEAL, 6; PARTNERSHIP, 7.

ASSIGNOR AND ASSIGNEE
See ASSIGNMENT.

ATTACHMENT.

1. ATTACHMENT LAW-AFFIDAVIT, WHAT MUST CONTAIN.-To authorize the issuance of
an attachment under the fourteenth subdivision of the attachment law (Civil Code,
1883, p. 30), the affidavit need only state the ground therein mentioned. Such sub-
division was intended to create a separate and distinct cause of attachment. Here-
• fort v. Cramer. Col. 229.

2 LEVY OF ATTACHMENT ON UNOCCUPIED LAND-POSTING NOTICES.-An attachment
lien upon unoccupied real estate is not created, under section 542 of the code of
civil procedure, unless the officer executing the writ posts upon the land a copy of
the description of the land, in connection with a copy of the writ of attachment,
and of the notice that the land has been attached. Watt v. Wright. Cal. 624.

See APPEAL, 6; FRAUD, 2; Mortgage, 2.

ATTORNEYS.

1. COMPROMISE OF ACTION BY ATTORNEY-INSTRUCTIONS OF CLIENT.-A compromise of
an action, entered into by an attorney in accordance with his understanding of his
client's wishes as expressed by the client himself, will not be set aside simply
because the attorney misunderstood his client's wishes. Chaffey et al. v. Dexter.
Cal. 354.

2. REMOVAL AND SUSPENSION OF ATTORNEY-WHAT CAUSES WILL JUSTIFY.-Whether
an attorney can be removed or suspended from the bar for causes other than those
specified in section 287 of the code of civil procedure, quære; but in this case the
court concludes not to investigate any other charges. In re Treadwell. Cal. 608.
3. ATTORNEY AT LAW-SUSPENSION AND REMOVAL FROM THE BAR-UNPROFESSIONAL
CONDUCT.-An attorney at law who publicly and without cause charges a court with
bribery, is guilty of such a violation of his professional duties as to justify his sus-
pension and removal from the bar, both by the common law and under the statutes
of this territory. In re Brown. Wy. 495.

See ASSIGNMENt, 2; Infants, 2; Venue, 7, 10.

BAIL.

1. POWER OF DISTRICT JUDGE TO ADMIT TO BAIL-DEFENDANT CHARGED WITH MUR-
DER.-The power of a district judge under section 1016 of the United States re-
vised statutes, to admit a prisoner to bail in a criminal case where the punishment
may be death, is discretionary. Such power should only be exercised when the ne-
cessity is most urgent, and when peculiar reasons exist, and are shown to the court,
for granting the application. The fact that the prisoner is suffering from disease,
which his confinement may have increased, is not sufficient to warrant his admis-
sion to bail, unless further confinement might seriously affect his body or mind, and
possibly bring about his death. United States v. Kie (U. S. Dist. Ct.) Alaska, 553.
2. RIGHT OF PRISONER TO SPEEDY TRIAL-CONFINEMENT TO AWAIT TRIAL.-Confin-
ing a prisoner to await his trial at the next regular term of the court is not depriv.
ing him of his right to a speedy trial, as guaranteed by the constitution of the
United States. Nor does the fact that such confinement must necessarily continue
until such term entitle the prisoner to be admitted to bail. Id.

[ocr errors]

3. BAIL ON APPEAL DISCRETIONARY-ORDER DENYING BAIL, WHEN NOT REVIEWED. —
A defendant convicted and under sentence for public offense is not entitled, as of

« ПретходнаНастави »