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not final, since the trial on appeal is de novo.
(H) Harmless Error. Molalla Electric Co. v. Wheeler, 154 P. 686. Om 1026 (Wyo.) The Supreme Court can only
Where, in an equity suit, the trial judge per- | reverse for prejudicial error appearing upon sonally examines the locus in quo in order prop- the record.–Stockgrowers' Bank of Wheaterly to apply the testimony to the issues, his land v. Gray. 154 P. 593. findings of fact and decree are entitled to care
Om 1027 (Okl.) That the court erroneously left ful consideration.-Id. The decree and findings of the judge in an
to the jury the interpretation of a contract did
not require a reversal, where the jury correctly equity suit are not of the same force on appeal
interpreted it.--Chenault v. Mauer Mercantile as those of the judge without a jury in a law action, which will not be disturbed if there is
Co., 154 P. 507. any evidence to support them.-Id.
lo 1039 (Cal.App.) Any error of the vendor of 1010 (Okl.) A finding that the sheriff's re
realty, suing the assignee of the buyer and turn of personal service was true will not be
others in ejectment, in joining a claim for a disturbed, when reasonably supported by evi
money judgment for the balance due on the condence.-Jones v. Jones, 154 P. 1136.
tract of sale, was harmless, where he waived
any claim for such money judgment.-Sweet v. Om 1010 (Or.) Under L. 0. L. $ 159, findings
| Richvale Land Co., 154 P. 608. on the facts in action tried without a jury held to have the same conclusiveness as a verdict,
cm 1041 (Mont.) Permission to plaintiff to and not to be disturbed if sustained by evidence.
amend his complaint by merely interlining -Doolittle v. Pacific Coast Safe & Vault Works,
words held harmless error.--Doichinoff v. Chi154 P. 753.
cago, M. & St. P. Ry. Co., 154 P. 924. Om 1010 (Wash.) Finding supported by evi
Om 1046 (Okl.) A remark made by the judge dence, mainly oral, could not be disturbed, where
relative to liability of a defendant held to reno material question was presented other than
quire a reversal, where it was calculated to misquestions of fact.-Winter v. Eberhardt, 154 P.
lead the jury and the verdict conclusively show139.
ed that it was affected there5;.-Pressley . Om 1010 (Wash.) In an action for breach of
Incorporated Town of Sallisaw, 154 P. 650. warranty of the value of bank stock sold, where
em 1047 (Okl.) In a case submitted to the jury all the witnesses testified to defendant's war
for an advisory verdict, error in rulings on eviranting in general, and the plaintiff testified
dence will not require a reversal in the absence consistently to the stock being warranted as
of a clear abuse of discretion depriving the obworth $235 a share, a finding explicitly for
jecting party of some substantial right.-Parker plaintiff as to warranty in such express sum
m v. Hamilton, 154 P. 65. will not be disturbed.-Peterson v. Brewer, 154
en 1048 (Mont.) Informalities in impeaching a
witness by showing that he had detailed the Om 1011 (Cal.) Where the last clear chance doc
events of the injuries to plaintiff's intestate and trine was relied on, and the evidence as to
failed to mention warning were not ground for whether the car could have been stopped after
reversal, where the matter of warning was imdeceased's peril was discovered conflicted, held on
material, since that referred only to contributhe evidence, that the question whether her neg.
tory negligence, which was admitted by the ligence was the proximate cause of the injury
complaint, based upon the theory of last clear
chance.-Doichinoff v. Chicago, Ni, & St. P. Ry. was a fact for determination by the trial court, and not for determination as matter of law by
Co., 154 P. 924. the court on appeal.–Tucker v. United Rail
em 1050 (Cal. App.) Errors in receiving testiroads of San Francisco, 154 P. 835.
mony cannot be deemed prejudicial to defendant, en 1011 (Cal. App.) A finding of the court on
when, disregarding the incompetent matter, conflicting evidence will not be disturbed on ap
enough remains in the record to sustain the peal.--National Lumber Co. v. Kennedy, 154 Ñ.
cause of action alleged.-Tingey V. Callahan 25.
Const. Co., 154 P. 28. em 1011 (Cal.App.) Findings of fact made on
em 1050 (Cal. App.) Where a stock purchase conflicting evidence cannot be questioned.- | contract provided that payment to the seller's Stroud v. Fairbanks, 154 P. 282.
agent, a bank, would be sufficient, held, in an Om 1011 (Cal.App.) A finding of the trial court
action on a check given to the bank and payon substantial conflicting evidence will not be
vill not be able to it or bearer, that the admission of eridisturbed on appeal.--Hughes v. Chung Sun
dence of the bank's delivery of the check to the Tung Co., 154 P. 299.
seller, if erroneous for immateriality, was harm
less error.-Bank of Bakersfield v. Conner, 154 Om 1011 (Nev.) Testimony in action to foreclose
I'. 869. mechanic's lien as to posting notice disclaiming
Om 1050 (Kan.) In a shipper's action for cost liability for work and materials furnished held
of repairing cars to receive grain, held, that the to be in such conflict that judgment below would not be disturbed.-Gaston v. Avansino, 154
154 | admission in evidence of "Santa Fé Cooperage P. 85.
Circular, No. 1,” was not prejudicial, though .
immaterial.-Rock Milling & Elevator Co. v. At. cm 1011 (Wash.) A finding of the trial court on
chison, T. & S. F. Ry. Co., 154 P. 254. conflicting evidence, where it had the witnesses before it, will not be disturbed.-In re Connol
1050 (Kan.) Error cannot be predicated on ly's Estate, 154 P. 155.
the admission of incompetent testimony not Om 1011 (Wash.) Where the only question on
shown to have improperly affected the result.appeal is of fact, the finding of the court be
Ogallah Elevator Co. v. Harrison, 154 P. 1016. low. where the evidence is conflicting. cannot be 1050 (Wyo.) Admission of evidence as to a disturbed. -Folmsbee v. Daniell, 154 P. 796. conversation between plaintiff's husband and a en 1011 (Wyo.) The appellate court cannot re- vice president of the bank, in which the latter view the finding of the trial court upon issues guaranteed not to damage plaintiff's wall, held of fact as to which the evidence was conflicting. harmless.--Stockgrowers' Bank of Wheatland v. -Stockgrowers' Bank of Wheatland v. Gray, Gray, 154 P. 593. 154 P. 593.
Om 1051 (Okl.) Admission of an incompetent Om 1012 (Okl.) Findings on controverted ques- letter relating to a warranty held harmless, tions of fact in a trial to the court, will not where the sale contract containing the warranty be disturbed on the weight of evidence, where was already in evidence.—Gutenberg Mach. Co. they are reasonably supported by the evidence.- v. Husonian Pub. Co., 154 P. 346. King v. Farris, 154 P. 510.
Om 1058 (Wash.) Error in the court's refusal 1014 (Okl.) A judgment ignoring findings of to allow a witness to testify as to who was the the jury which are advisory only will be affirm- real owner of corporate stock is harmless where ed when reasonably supported by evidence. he detailed the facts concerning the ownership. Om 1060 (Wash.) A defendant held not preju- no 1066 (Wash.) An instruction that, when an diced by plaintiff objecting to counsel of another employé is ordered or permitted to do 'dangerous further participating in the case, where a non-work, he should be warned, if erroneous in the suit as to the other party was then entered. use of the word "permitted,” held harmless, Jensen v. Schlenz, 154 P. 159.
where the issue was whether he was "ordered," Om 1060 (Wash.) In an action on an employ
and there was no contention that he was merely ers' indemnity policy assigned by the assured,
permitted as a volunteer to crank the machine. where plaintiff, under the undisputed testimony, |
-Godley v. Gowen, 154 P. 141. was entitled to an instructed verdict for $5,000,
en 1066 (Wash.) Instructing, in an action for the amount of the policy, for which sum the
falling into a manhole, that there was no evijury returned verdict, the judgment cannot be
dence to warrant a finding of fault in construcreversed for misconduct of plaintiff's counsel.
tion, is not prejudicial as to defendants, charged Davies v. Maryland Casualty Co., 154 P. 1116. |
only with negligence in the manner of its main
tenance.-Jensen v. Schlenz, 154 P. 159. 1062 (Kan.) The refusal to submit two of Instructing that the jury might allow plaintiff, ten special questions which were requested held
eld among other things, for "depreciation in earning not prejudicial, where they were substantial
capacity, if any," when there was no evidence repetitions, and the answers to those submitted thereof, but to the contrary, held harmless.-Id. clearly indicated that answers to those refused
Om 1067 (Kan.) Refusal of defendant's instrucwould not have benefited the complaining party. -- Christian v. Union Traction Co., 154 P. 271.
tions on one of two allegations of negligence
which was ignored in the instructions given in Om 1064 (Cal.) In an action for deceit by the which the jury were told that, to recover, plainpurchaser of citrus nurseries for the vendor's tiff must sustain the other allegation, held not misrepresentation as to the number of budded material error,-Christian v. Union Traction trees, an instruction that, if the purchaser had Co., 154 P. 271. the means to ascertain the truth of the repre Om 1068 (Or.) Errors in instructions on the sentations and failed to do so, he could not measure of damages are harmless where plainrecover, held prejudicially erroneous.-Teague tiff, who was shot while hunting, recovered no v. Hall, 154 p. 851.
| damages.-Gibson v. Payne, 154 P. 422. Em 1064 (Cal.App.) In action for injuries to Om 1070 (Wash.) Error in returning a verdict employé 20 years old, held that, though fact of for $100 for an item as to which the instrucminority should not have been presented in the tions limited the recovery to $40 was cured instructions as affecting his responsibility, the where the verdict was reduced more than $100. jury could not have been materially influenced --Godley v. Gowen, 154 P. 141. thereby.--Congdon v. California Drug & Chem-1m 1071 (Idaho) Though part of the findings ical Co., 154 P. 1062.
are not fully supported by the agreed stipulaOm 1064 (Idaho) In an action on a fire insur
tion of facts, the case will not be reversed ance policy, held, that an erroneous instruction where the law applicable to the agreed statethat in arriving at the loss the jury should ment supports the judgment.--McKune v. Con“determine the same by ascertaining the cash | tinents ! Casualty Co., 154 P. 990. value of the lumber in the millyard," instead of uw 1071 (Okl.) The making of a finding of fact the cash value of the total amount destroyed, on a matter on which all evidence was excluded was harmless where, in view of the evidence, I held not to require a reversal where the other the jury could not have been prejudicially mis
findings sustained the judgment and were supled thereby.-Carroll v. Hartford Fire Ins. Co.,
ported by evidence.-Freeman v. State Board of 154 P. 985.
Medical Examiners, 154 P. 56. Om 1064 (Kan.) That through a typographical
Om 1071 (Okl.) The trial court's finding that error the name of "plaintiff" was inserted in an
proof of loss of a written contract authorizes instruction in place of "defendant" held not to
the admission of secondary evidence as to its require a reversal, where the jury could not
contents, will not be disturbed, unless clearly have been misled thereby.-Rorschach v. Diven,
erroneous and injurious to the complaining 154 P. 268.
party.-Marker v. Gillam, 154 P. 351. em 1064 (Okl.) Giving of instruction which, as
emom 1073 (Cal. App.) Where a judgment is eran abstract proposition, is erroneous, but, when
roneous only in that it fails to include nominal applied to the evidence, has the same meaning
damages, it will not be reversed, unless it be as it would have had if strictly correct, is harm
made to appear that such damages, if allowed, less. Gutenberg Mach. Co. v. Husonian Pub.
would have carried costs.-Lund v. Lachman, Co., 154 P. 346.
154 P. 295. Om 1064 (Okl.) That the court misnamed an for the trial court to allow amendment to the
em 1074 (Wyo.) If it was not prejudicial error instruction to be on "implied warranty," instead
bill of exceptions, the Supreme Court cannot
in of on tort, held harmless, where the instruction
| disturb the judgment on such ground.–Stockclearly sounded in tort and it was improbable
growers' Bank of Wheatland v. Gray, 154 P. that the jury were misled.-Summers v. Gates, a 154 P. 1159.
(K) Subsequent Appeals. em 1066 (Ariz.) In an action to recover for selling defendant's drug business under employ
cm 1097 (Wash.) A decision by the court on a ment by defendant's special agent, instruction
former appeal constitutes the law of the case. that the issue was whether plaintiff had earned
-Smith Sand & Gravel Co. v. Corbin, 154 P. a commission according to the terms of his con
150. tract, ignoring the issue of the power of the special agent to employ plaintiff, held prejudi
XVII. DETERMINATION AND DIScial to defendant.-Brutinel v. Nygren, 154 P.
POSITION OF CAUSE. 1042.
(A) Decision in General. C 1066 (Utah) Where servant's complaint al-cm 1106 (Okl.) Under Rev. Laws, $ 5243, where leged spinal injuries, but defendant's evidence on appeal a direct issue of fact is raised by a together with plaintiff's disclosed rib fractures, motion to dismiss, plaintiff in error alleging that and defendant failed to request a charge ex- he did not intend to take time to plead and that cluding its consideration, but excepted to a the journal entry giving such time was entered charge including that issue, and failed to as-in his absence without his consent, and defendsail the verdict finding it negligent, the error, ant in error denying these statements, and the if any, in submitting that issue, was harmless. record not showing the true conditions, the case -Woodward v. Daly-West Mining Co., 154 P. will be remanded to the trial judge to find the 782.
facts.-Campbell v. Thornburgh, 154 P. 574,
(G) Jurisdiction and Proceedings of Ap
pellate Court After Remand. om 1127 (Cal.) A motion to affirm, amounting to an advancement of the hearing of the appeal. Om 1221 (Utah) After reversal on defendants' without good reason therefor, will be denied.- appeal and remand to the trial court with diChino Land & Water Co. v. Hamaker, 154 P. rections to enter judgment for defendants, the 850.
Supreme Court had jurisdiction to amend its (C) Modification.
judgment to make it conform to the opinion of 1151 (Wash.) In a death action under the
the majority of the court where there was a federal Employers' Liability Act tried without
difference between the opinion and the judga jury, held that, as it is tried de novo, on
ment.-Mountain Lake Mining Co. v. Midway appeal, the Supreme Court may make deduction
Irr. Co., 154 P. 584. for the contributory negligence of deceased and affirm.---Anest v. Columbia & P. S. R. Co., 154 XVIII. LIABILITIES ON BONDS AND P. 1100.
UNDERTAKINGS. ww1153 (Cal. App.) Failure of a judgment in 1234 (Cal.App.) A bond. given in a suit to suit to rescind contract for exchange of jack declare a trust in land, to secure stay of execufor horse, to provide for return of the jack on
tion of an order appointing a receiver and to satisfaction of the money judgment, could be
enable defendant to collect the rents pending corrected by judgment rendered on the appeal,
her appeal from such order, held intended to without remand. -Coats v. Hord, 154 P. 401.
indemnify plaintiff, if final judgment on the
merits was eventually obtained by him, against (D) Reversal.
any damage resulting from the defendant's colOn 1170 (Ariz.) The filing of an unnecessary lection of rents pending her appeal from the reply is a technical defect which will not, un order appointing a receiver.-Borges v. Hillder Const. art. 6, $ 22, warrant reversal.- | man, 154 P. 1075. Crane v. Franklin, 154 P. 1036.
w1237 (Wash.) Under Rem. & Bal. Code, $ Claw 1 170 (Cal. App.) Under Const. art. 6, § 442, 1739, providing that, on affirmance of a money denial to an attorney, defendant in the cause, judgment, judgment shall be rendered against who was represented by an attorney of record the appellant and his sureties for the amount of and would testify in his own behalf, of leave to the judgment appealed from, and for damages cross-examine a witness, held not reversible er- and costs on the appeal, the plaintiff, who seror.-Carter v. Holt, 154 P. 37.
cured a judgment for nersonal injuries, was enem 1170 (Okl.) Rulings on evidence held not to
titled to a summary judgment against the es
tate of the deceased suret von a supersedeas require a reversal under Rev. Laws 1910, S
bond.-Olson v. Seldovia Salmon Co., 154 P. 6005, where it appeared that there was no mis
1107. carriage of justice or substantial violation of any statutory or constitutional right.-Link
1239 (Cal. App.) Plaintiff, in action in which hart v. Kirkhart, 154 P. 645.
| a receiver was appointed and in wbich defend
ant therein gave bond to pay costs on appeal Om 1175 (Idaho) Though the verdict in replevin
from such order, could maintain an action is in the alternative and the judgment makes
against the sureties on such bond before final no provision for return of the property, the
judgment in the action in which the receiver case will not be remanded if it clearly appears
was appointed, where the order appointing the that return cannot be had.-Cady v. Keller, 154
receiver was affirmed on the appeal from it.P. 629.
Borges v. Hillman, 154 P. 1075. O 1175 (Okl.) In purely equitable cases the 1240 (Wash.) Where, pending entry of deSupreme Court may consider the entire record, cree of affirmance on appeal, surety on superand, if the judgment is clearly against the evi
sedeas bond died, the judgment creditor could dence, may render or cause to be rendered such
proceed against his estate as a principal obligor, judgment as should have been rendered below.
for as between obligors and obligee all of the --Jones v. Thompson, 154 P. 1139.
former are principal debtors, though as between Om 1177 (Cal.App.) Where, in a proceeding to themselves they enjoy the relation of principal establish title to land, it was found that plain and surety.-Oison v. Seldovia Salmon Co., 154 tiff's tax title was invalid, the appellate court,
| P. 1107. no finding having been made, should not deter Om 1243 (Cal.App.) Plaintiff, in an action inmine what amount plaintiff paid for his tax ti- volving real property in which a receiver was tle on competitive bidding above the amount of appointed for the rents, could maintain an ac. taxes due, but the cause should be remanded for tion against the sureties on the bond given by that purpose.--O'Reilly V. All Persons, 154 P. defendant to enable her to collect the rents 474.
pending her appeal from the order of appointC 1178 (Cal.) While Code Civ. Proc. § 1714,
ment though the judgment in the main action abolished new trials in probate proceedings ex
had not become final so that the court had cept in will contests, an appellate court may, on
not discharged the receiver when the suit was appeal from a decree of distribution, order the
brought.---Borges v. Hillman, 154 P. 1075. doing of anything which the probate court should
Under Code Civ. Proc. 88 939, 1049, touching have done in the exercise of its jurisdiction. In
the time for appeals, and providing that an acre Vanderhurst's Estate, 154 P. 5.
tion is pending from commencement until the
time for appeal has passed, an action against (F) Mandate and Proceedings in Lower
the sureties on the bond of defendant in a suit Court.
given to secure a stay of execution of an order
appointing a receiver, etc., held prematurely Om 1189 (N. M.) Under Supreme Court rule
| brought within six months after judgment in 15 (154 Pac. xxxviii), held, that the clerk should
the main action.-Id. issue a mandate on request where all costs have been paid by either party, and not withhold same until an appellee against whom judgment
APPEARANCE. for costs has been entered in the Supreme Court ment.-TI
See Corporations, em508; Justices of the G. R. Co., 154 P. 691.
Peace, 84, 161. em 1195 (Utah) Holding on former appeal that om 9 (Okl.) The filing of a motion setting forth contract between parties was evidenced by tele- both jurisdictional and nonjurisdictional grounds grams and that agreement of third party was I for dismissal held a general appearance though neither authorized nor ratified by defendant, denominated a special appearance.--St. Louis held the law of the case on retrial.-Tyng v. Cordage Mills v. Western Supply Co., 154 P.
er v. Den
em 9 (Utah) Filing a general demurrer consti- I. REQUISITES AND VALIDITY. tutes a general appearance.-McMillan v. For- 1 (A) Property, Estates, and Rights Assignsythe, 154 P. 959.**
able. em 10 (Okl.) Filing of answer claiming damages
em 20 (Okl.) A written contract of sale of land after overruling of special appearance held al for $2.500 619
for $2,500, $1 cash in hand and the remainder general appearance waiving any error in over
to be paid within two years, subject to an ruling a special appearance.-Hamra V. Fitz
existing mortgage of $1,200, held assignable. patrick, 154 P. 665.
Marker v. Gillam, 154 P. 351. Om 19 (Kan.) Defendants appearing by counsel to resist the granting of a temporary injunction (B) Mode and Suficiency of Assignment. are in court for all purposes without issuance of
48 (Wash.) Though a contract for complesummons.-Arment v. Dodge City, 154 P. 219.
tion of a public improvement, which required C 24 (Mont.) Under Rev. Codes, § 6526, a the contractor to pay the debts of his predegeneral appearance must be voluntary to consti- cessor, did not warrant a city in paying claims, tute a waiver of defective service of process.- yet, on payment, the city became the owner State v. District Court of Second Judicial Dist.by .process of equitable assignment.-Paul v. in and for Silver Bow County, 154 P. 200.
City of Vancouver, 154 P. 453. Where defendant, resident of another state, served with summons while in the state to at
III. RIGHTS AND LIABILITIES OF tend court as a witness, made proper objection
PARTIES. and exception, and in his answer again reserved the question, he did not by general appearance on 100 (Wash.) Claims against a public conwaive his right to object to the jurisdiction.-Id. tractor held not negotiable, so that a city which
by paying the claims became the equitable ownAPPLICATION.
er, could not cut off defenses available to the
contractor.-Paul v. City of Vancouver, 154 P. See Corporations, C590; Payment, en 47. 453.
Where a public contractor was allowed to APPOINTMENT.
urge all defenses to claims good as against his
predecessor, payment of which he assumed, held, See Executors and Administrators, en 20; Of- that he was not harmed because the city paid ficers, m7; Trusts, w160.
the claims, and deducted the amount thereof
from the contract price.-10. APPORTIONMENT.
IV. ACTIONS. See Municipal Corporations, ww466; Taxation,
Om 129 (Okl.) Where a written contract of 299.
sale of land was assigned as collateral security APPROPRIATION.
for faithful performance of a building contract
by the assignor, the assignee could sue the See States, ww130-132; Waters and Water original vendor for breach of the contract of Courses, Om 152.
sale, without making the assignor a party.
Marker v. Gillam, 154 P. 351.
ASSIGNMENTS FOR BENEFIT OF
I. REQUISITES AND VALIDITY. See Contracts, Om9, 287.
(A) Nature and Essentials of Trusts for
34 (Or.) An assignment for the benefit of See Appeal and Error, m1060; Criminal Law,
creditors, where it is fair and without fraud, Om 706, 730; Trial, m10842-133.
is valid, though the effect of the assignment is
Chrisman, 154 P. 908.
II. CONSTRUCTION AND OPERATION See Bail.
em 174 (Or.) Whether the property in the pos
session of the agent of an assignee for benefit See Homicide, om 86, 120.
of creditors was the property intended to be
assigned held, under the evidence, for the jury. II. CRIMINAL RESPONSIBILITY.
-Sabin v. Chrisman, 154 P. 908. (B) Prosecution and Punishment.
Om 175 (Or.) An assignment of the goods of a
merchant held sufficient to include a stock of 91 (Okl.Cr.App.) Evidence held to sustain stoves, the property being described as gen a conviction of assault with intent to do bodily merchandise, this being true though the merharm.-Rushing v. State, 154 P. 1005.
chant had two stores.--Sabin v. Chrisman, 154
ance, Om755-825. ASSIGNMENT OF ERRORS. See Appeal and Error, Ow719.
See Account Stated; Money Received; Work
See Master and Servant, w217-226, 288, 295.
ASSUMPSIT, ACTION OF.
attorney, defended on the ground that they had
been rendered gratuitously, evidence held to sus-
tain a verdict for defendant.-Cadle v. Black,
154 P. 997.
Om 167 (Wyo.) In an attorney's action to re-
cover for services, instruction relating to his
statements to a third person acting for defend-
ant held as favorable to plaintiff as he was en-
titled to under the evidence.---Cadle v. Black,
154 P. 997.
believed in determining plaintiff's original in-
tention, or whether his services were offered
and rendered gratuitously.-Id.
to a third party acting in the interest of the
defendant, held properly refused as misleading.
ceiver and substitution of new receiver and at-
torney, the attorneys for the first receiver filed
alidity held properly overruled where all
parties affected by the judgment were not before
See Negligence, @m39.
| See Criminal Law, Om1105.
See Affidavits, Omw5; Principal and Agent, en
II. IN CRIMINAL PROSECUTIONS.
for a capital offense, to determine whether the
thereof great, the burden is on the petitioner.
73 (Kan.) Under Cr. Code, $ 146 (Gen. St.
third person in lieu of bail and the accused has
been surrendered, the money should be returned
to the owner.-Campbell v. Board of Com'rs of
orney, Reno County, 154 P. 257.
money in lieu of bail held not to estop such per.
under arrest by another officer for commission