« ΠροηγούμενηΣυνέχεια »
dence of their testimony on the ground that no , disturbed where the affidavits relative to such
proper foundation was laid, the question of the misconduct are conflicting.-State v. Jones, 154
competency of proof by affidavit was not pre- P. 378.
served.-Ivey v. State, 154 P. 589.
Om 1166/2 (Cal.App.). In a prosecution for li-
Cm 1038 (Okl.Cr.App.) A defendant convicted bel, error of the court in stating in the pres-
of manslaughter in the second degree cannot ence of the jury, when denying a motion to dis-
complain that the court instructed on such de- miss, that the publication might be fairly inter-
gree without eviden justifying such instruc- preted to state that all persons admitted to a
tion, where no objection was made below to degree of a fraternal order had taken the libel-
such instruction.-Ballard v. State, 154 P. ous oath, a statement which the jury were there-
after instructed to disregard, held harmless.-
Om 1056 (Okl.Cr.App.) A defendant convicted People v. Turner, 154 P. 34.
of manslaughter in the second degree cannot ww1169 (Cal.App.) When evidence of a custom
complain that the court instructed on such de- of a deceased in carrying considerable sums of
gree without evidence justifying such instruc- money with him is received to prove a motive
tion, where no exception was taken below to for his murder, subsequently striking it cures
such instruction.-Ballard v. State, 154 P. 1197. the error.–People v. Andrade, 154 P. 283.
w 1056 (Wash.) A defendant in a criminal Cama 169 (Nev.) Permitting witnesses to state
case, who failed to except to a charge, cannot conclusions as to statements made by accused
complain thereof on appeal.--State v. Brown- while under arrest, if error, held harmless, where
low, 154 P. 1099.
the entire conversation was shown, and it clear-
ly appeared that the statements were volun-
(1) Record and Proceedings Not in Rec- tarily made.-State v. Blaha, 154 P. 78.
m 1 170/2 (Nev.) Allowing a witness to refresh
em 1086 (Cal.) On appeal the record should his memory in homicide trial by reading his
not contain the arguments of the counsel on evidence given at inquest held harmless, where
questions of law arising during the trial, since statements before and after refreshing were sub-
they serve no useful purpose, and their inser- stantially the same.-State v. Tranmer, 154
tion is not required by law.--People v. Miller, P. 80.
154 P. 468.
Where a previously convicted joint principal
Om 1086 (Nev.) An assignment of error com is a state's witness on murder trial, permit-
plaining of the admission of a confession held ting him to testify that he is imprisoned under
not reviewable where the transcript disclosed death's sentence held reversible error.-Id.
no objection to the admission.-State v. Blaha, Omm 1172 (Mont.) In a prosecution for statu-
154 P. 78.
tory rape, submission of an instruction relating
Om 1105 (Ariz.) A reporter's transcript of the to the period of limitation applicable, unneces-
evidence, not authenticated by the trial judge sary under the facts, held not prejudicial error.
or certified as correct by the parties, cannot be -State v. Harris, 154 P. 198.
considered as a bill of exceptions or statement om 1172 (Okl.Cr.App.) Where accused has had
of facts.-Hamilton v. State, 154 P. 1039.
a fair trial, and it appears that the verdict of
Ci 1121 (Ariz.) As under Civ. Code 1913, par. guilty was not reached by error or as the result
614, a reporter's transcript cannot be consid- of passion or prejudice and sustained by the
ered as such, where not certified by the trial evidence, the conviction will be affirmed not-
judge, an assignment depending on the evidence withstanding an inaccurate instruction for the
cannot be reviewed.-Hamilton v. State, 154 P. state.-Wingo v. State, 154 P. 502.
(II) Determination and Disposition
(E) Assignment of Errors and Brlefs.
Om 1130 (Idaho) Where the brief does not cite oma 1184 (Okl.Cr.Ąpp.) Under Rev. Laws 1910,
the page and folio of the transcript wherein $ 6003, the appellate court has power to rectify
evidence on which an objection to instructions å sentence by reducing it to conformity with
is based is to be found, such evidence will not the punishment prescribed by statute.-Johnson
be considered.-State v. Jones, 154 P. 378. v. State, 154 P. 1004.
Where a verdict of guilty of assault with a
dangerous weapon in violation of Rev. Laws
en 1149 (Okl.Cr.App.) The trial court's ac- 1910, $ 2344, prescribed punishment by fine in
tion in permitting the names of additional wit- addition to imprisonment, held, that the provi-
nesses to be indorsed on the information under sion for a fine should be deemed surplusage,
Rev. Laws 1910, $ 5694, will not be disturbed, and the judgment and sentence be modified ac-
in the absence of an abuse of discretion preju- cordingly.--Id.
dicial to defendant's substantial rights.-Gray- Om 1186 (Cal.) Where the court required the
son v. State, 154 P. 334.
defendant in a prosecution for murder to estab-
Om 1159 (Cal.App.) A conviction cannot be re- lish his defense of insanity beyond a reasonable
versed unless the appellate court can, as a mat- doubt, the error was not such that the decree
ter of law, say that the verdict was not justi- could be affirmed in accordance with Const. art.
fied.--People v. Sidwell, 154 P. 290.
6, § 442, where the evidence was such that the
C 1159 (Nev.) Judgment will not be reversed jury might reasonably have found for the de-
for insufficiency of evidence where the verdict is fendant under a proper instruction.-People v.
supported by substantial evidence.-State v. Miller, 154 P. 468.
Whitaker, 154 P. 927.
Om 1186 (Cal. App.) Under Const. art. 6, § 443,
On 1159 (Okl.Cr.App.) A conviction will not be prohibiting reversal for nonprejudicial error
set aside as against the evidence, where sustain- in criminal cases, in a prosecution for libel,
ed by sufficient evidence, though the evidence is where the magistrate at preliminary, hearing
conflicting.---Jones v. State, 154 P. 689.
merely caused to be entered in his docket with-
Om 1159 (Okl.Cr. App.) A conviction on evi- out signing an order that defendant should be
dence tending to prove all material allegations held to nswer in the superior court, in contra.
of the information will not be disturbed; the vention of Pen. Code, $ 872, judgment of con.
weight and sufficiency of the evidence being for viction will not be reversed after fair trial.--
the jury under Rev. Laws 1910, $ 5873.-Mitch- People v. Turner, 154 P. 34.
ell v. State, 154 P. 1197.
en 1186 (Mont.) Under Rev. Codes, $ 9415, di-
Om 1159 (Wash.) The question of credibility of recting the disregard of technical errors not
witnesses is for the jury, whose finding is con- affecting substantial rights, the court will dis-
clusive on appeal.--State v. Brooks, 154 P. 795. regard the action of the trial court, in a prose-
On 1160 (Idaho) The denial of a new trial tion for statutory rape, where the evidence tend-
sought for misconduct of the jury will not be led to show several offenses, in not requiring
the state to elect until the close of its case. I will be subjected to.-Godley V. Gowen, 154
State v. Harris, 154 P. 198.
Om 1186 (Nev.) Where on murder trial counsel
for defense was reading testimony of witness on (B) Aggravation, Mitigation, and Reduc-
former trial in impeachment, remark of trial
* There is
no incon-m62 (Mont.) The rule that an injured person
sistencies or contradictions," held harmless er- must use ordinary diligence to effect a cure and
ror, under statute providing for disregard of minimize the damages does not require an in-
technical errors.-State v. Tranmer, 154 P. 80.
jured passenger, after one unsuccessful opera-
Om 1188 (Mont.) On appeal from a sentence tion, to submit to a major operation to re-
improperly pronounced under a proper convic- duce the damages caused by the carrier's neg-
tion, the sentence may be annulled, and the ligence.- Freeman v. Chicago, M. & St. P. Ry.
cause remanded for proper sentence.Ex parte Co., 154 P. 912.
Lewis, 154 P. 713.
em 62 (Okl.) An injured party, on finding that
a wrong has been perpetrated on him, should
XVII. PUNISHMENT AND PREVEN- use all reasonable means to arrest the loss.-
TION OF CRIME,
Sackett v. Rose, 154 P. 1177.
Om 1206 (Or.) Where defendant was indicted, Whether an injured party, on discovering per-
tried, convicted, and sentenced for a violation of petration of a wrong, has used reasonable means
Laws 1913, c. 278, while that act was in force, to arrest the loss, depends on whether he has
and pending his appeal, Laws 1915, c. 219, used reasonable exertion and incurred reason-
repealed chapter 278, and substantially re-enact able expense in view of all circumstances of the
ed it, the repeal and re-enactment did not neces- particular case.-Id.
sitate the dismissal of the indictment and the
discharge of defendant.-State v. Ware, 154 P.
IV. LIQUIDATED DAMAGES AND
Ow76 (Or.) Forfeitures are to be strictly con-
strued, and one who would avail himself of them
em 5 (Wash.) Growing crops so far partake of must bring himself precisely within the letter
the nature of realty that they pass by a sale or of the contract authorizing them.-City of Rain-
conveyance of the land as an appurtenance ier v. Masters, 154 P. 426.
thereto; the same being true when a mortgage 79 (Or.) In general damages are limited to
upon the land is foreclosed or when a leasehold compensation that the injured party may be
interest is forfeited.-Woody v. Wagner, 154 P. made whole, and it is only where it is difficult
or impossible to calculate the actual dam.
ages that the previous stipulation of the par.
See Set-Off and Counterclaim, m10.
ties for liquidated damages will be enforced. -
City of Rainier v. Masters, 154 P. 426.
85 (Or.) Stipulation in contract for pub-
lic work that if it were not completed by a
See Witnesses, 277, 301.
day specified, the contractor should forfeit $10
for each day after such day to the date of com-
pletion, held not to apply to general damages
on abandonment of the contract, but only to
See Railroads, em 307–350.
breach by mere delay.-City of Rainier v. Mas-
ters, 154 P. 426.
Om 86 (Wash.) A city, after rescinding a con-
See Divorce, em 27, 116.
tract to construct a building, could not recover
liquidated damages provided therein for failure
to complete the contract within the time speci-
fied, so far as such damages accrued after re-
See Corporations, em 90.
scission.-Garey v. City of Pasco, 154 P. 433.
VI. MEASURE OF DAMAGES.
(A) Injuries to the Person.
See Infants; Parent and Child, Om2.
@mw95 (Okl.) Compensation for a wrong for
which the law provides a remedy should be
equal to the injury and such as to place the in-
See Animals, Om55; Collision. Om 124, 130 ; jured party as near as possible in the position
Death, ww99; Fraud, m59; Injunction, he would have occupied but for the wrong.--
w186 ; Insurance, C514; Líbel and Slan-Sackett v. Rose, 154 P. 1177.
der. Om 89; Master and Servant, C8712,
25034 ; New Trial, 74; Nuisance, 50,
(C) Breach of Contract.
72; Sales, 339. 369, 384, 442; Specific em 120 (Cal. App.) Except where exemplary
damages are given, courts will not allow a party
to a contract to recover upon its breach more
III. GROUNDS AND SUBJECTS OF than he would have received by its due perform-
COMPENSATORY DAMAGES. ance.-Johnson v. Hinkel, 15 P. 487.
Remote, Contingent, mw 120 (Okl.) Where a contract of sale of
Prospective Consequences or Losses. land is assigned as collateral security for the
On 23 (Wash.) Where the purchaser of a busi- faithful performance of a building contract by
ness paid an increased price for the seller's the assignor, the measure of damages recover-
agreement not to engage in the same business able from the vendor is the damage sustained
in the same locality within two years, on breach by him from breach of the building contract.-
by the seller the buyer could recover the lost Marker v. Gillam, 154 P. 351.
profit resulting therefrom; such damages hav-
ing been reasonably within the contemplation of VII. INADEQUATE AND EXCESSIVE
the parties on making the agreement.-Loutzen-
hiser v. Peck, 154 P. 814.
131 (Wash.) Where an employé suffered a
mw26 (Wash.). The recovery in a personal in- broken arm, and his expenses connected there-
jury case may include damages for future pain with were about $40, a recovery of $400 was
and suffering which the evidence shows plaintiff | not excessive.-Godley v. Gowen, 154 P. 141.
For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER
Co 132 (Wash.) In view of conflict in medical | low him “for inability to follow his usual occu-
testimony as to the permanency of the injuries pation.”—Jensen v. Schlenz, 154 P. 159.
of a servant 54 years of age, whose injuries con-
sisted of paralysis of one leg and internal in-
juries, held, that an award of $5,000 could not
be determined excessive.-Remsnider v. Union See Abatement and Revival, 53; Appeal
Savings & Trust Co., 154 P. 135.
and Error, Cum 334; Sheriffs and Constables,
em 132 (Wash.) Under the evidence held a ver- Om 157.
dict of $1,500 for personal injuries, resulting in
varicose veins, was not excessive.-Jensen v. II. ACTIONS FOR CAUSING DEATH.
Schlenz, 154 P. 159.
(A) Right of Action and Defenses.
Om 138 (Wyo.) Where the jury is required to 32 (Okl.) The right of recovery for death un-
find the different items of damage to an adjoin- der Rev. Laws 1910, 8 5281, extends to all chil.
ing landowner's property from an excavation, dren of deceased, regardless of their ages; but
and to return them separately, and the amounts the recovery must be based on the reasonable
so found are within the proof, and, in the ag. expectancy of pecuniary benefit of wbich they
gregate, are within the issues, the verdict is
were deprived by their father's death.-Press.
not excessive.-- Stockgrowers' Bank of Wheat- ley v. Incorporated Town of Sallisaw, 154 P.
land v. Gray, 154 P. 593.
VIII. PLEADING, EVIDENCE, AND (E) Damages, Forfeiture, or Fine.
ww99 (Wash.) An award of $8,500 damages
in favor of a mother for the death of her son,
Om 141 (Wash.) Where the complaint of plain-ried and stated that he did not intend to marry
who though earning $175 a month was unmar-
tiff, suing for breach of contract, sufficiently as long as she lived, and contributed $75 a
stated a contract, its breach and proximate in: month to her support, cannot be held excessive.
jury, the complaint was good, although it set-Donaldson v. Great' Northern Ry. Co., 154 P.
out an improper measure of damages.-Huschke
v. Arcadia Orchards Co., 154 P. 800.
cm 150 (Or.) Complaint in city's action
DEBTOR AND CREDITOR.
bond of surety for contractor whose contract
provided a forfeiture of $10 a day from the See Assignments for Benefit of Creditors; Bank-
day specified for completion to the date of com-
ruptcy; Compositions with Creditors; Fraud-
pletion, not alleging a completion of the con-
tract so as to fix the period of forfeiture, held
bad on demurrer.-City of Rainier v. Masters,
154 P. 426.
Om 163 (Okl.) The burden of proving mitiga-
tion of damages is on the party guilty of the
wrong.-Sackett v. Rose, 154 P. 1177.
See Criminal Law, Ow414.
Om 167 (N.M.) Where there is substantial evi-
dence that the injuries are permanent, evidence
of life expectancy is admissible.-Tha yer v. Den-
ver & R. G. R. Co., 154 P. 691.
I. NATURE AND REQUISITES.
Om 168 (N.M.) The physical ability or inability 12 (Or.) There could be no parol dedication
of an injured employé to do work or perform to charitable use of land held by claimant under
any act may be proved by direct testimony of the provisional Constitution and before obtain-
the employé himself.--Thayer v. Denver & R. ing certificate under Donation Act Cong. Sept.
G. R. Co., 154 P. 691.
27, 1850.-Stansbery v. First Methodist Episco-
Cm 176 (Wash.) On breach of seller's agree-pal Church, 154 P. 887.
ment not to engage in the meat business in the 31 (Or.) A formal acceptance of a dedica-
same locality, the buyer could show compara- tion of a street is unnecessary, since approval
tive gross receipts before and after the breach, by the municipality will be implied.-Nicholas
and the amounts taken in by the seller in his v. Title & Trust Co., 154 P. 391.
own business and the average profit figured on
percentage of gross receints; that being them 39 (Or.) An owner of land, who exhibited
best evidence on the question of damages.-Lout-of certain widths, which purchasers bought be-
to intending purchasers a map showing streets
zenhiser v. Peck, 154 P. 814.
fore he changed his mind and recorded a differ-
Om 189 (Wash.) Evidence held to show that the ent map showing different widths, held estop-
purchaser of a meat market suffered damages at ped to deny dedication to the public of the high-
least equal to those awarded in his action for ways as shown by the original map.-Nicholas
breach of the contract of the seller not to en- v. Title & Trust Co., 154 P. 391.
gage in the same business in the same locality Where the successor in title of a dedicator of
within two years.-Loutzenhiser v. Peck, 154 | land as highways, which took title by mesne
conveyances and for value, could have ascertain-
ed from stakes on the land the location of the
(C) Proceedings for Assessment.
dedicated highways, it was estopped to deny the
Om 210 (Or.) Under the evidence in personal original dedication.-Id.
injury action, held, that an instruction that if m43 (Or.) In a suit to determine an ad-
plaintiff's condition was the result of disease, verse interest in realty, plaintiff seeking to es-
and not the accident, there could be no recov- tablish that his lots were bounded by highways
ery, was warranted.-Hudson v. Brown Lumber 60 feet wide, where the original purchaser, who
Co., 154 P. 533.
dedicated the ways, testified to noticing stakes
On 216 (Utah) Where a servant sued for spinal marking the highway lines, the admission of
injuries, but failed to allege rib fractures, and evidence relating to such stakes was proper.-
the defendant's evidence disclosed rib fractures, Nicholas y. Title & Trust Co., 154 P. 391.
submission of such injuries to the jury, was m 44 (Or.) In a suit to determine an adverse
not error; injuries to the ribs being probably interest in land, evidence held sufficient to show
concurrent with spinal injuries and covered by that the owner of land knowingly permitted
the pleadings.- Woodward v. Daly-West Mining intending purchasers to believe that the print.
Co., 154 P. 782.
ed plat thereof had been duly recorded.-Nichol-
216 (Wash.) That plaintiff had for a time as v. Title & Trust Co., 154 P. 391.
been unable to pursue his .usual occupation, au- To establish a parol dedication, evidence inust
thorizes an instruction that the jury might al. I be adduced tending to substantiate a clear in.
tention to devote some particularly described IV. PLEADING AND EVIDENCE.
land to a public use.-Id.
In a suit to determine an adverse interest the question of delivery of a deed held sufficient
208 (Cal.App.) Evidence in a suit involving
in realty, evidence held sufficient to show an
intention on the part of the owner of lots, Ragan, 154 P. 479.
to support a finding of delivery.-Ragan v.
selling them through an agent, to make a paroi em 208 (Kan.) Evidence held to show deliv-
printed plat shown purchasers, of parts of cer- ery of deed though it was retained by the no-
tain streets bordering on certain blocks as tary until after the grantor's death, where the
highways 60 feet in width.-Id.
grantor had directed that the deed be secured
by the grantees from the notary and recorded,
II. OPERATION AND EFFECT. which was done after his death, and it clearly
Cm 63 (Or.) Where the original owner of land, to make the conveyance. -Elliott v. Hoffhine,
appeared from his statements that he intended
by exhibiting a plat to intending purchasers, 154 P. 225.
dedicated highways, and his successor in title
did not encroach upon
such highways for 4 term an action to foreclose a deed as a mortgage held
211 (Mont.) Evidence of the defendant in
equal to the period of the statute of limita- insufficient to sustain his allegations of fraud
tions, the right of the public in the streets was or mistake in the execution of the deed.-- Yel-
not extinguished.-Nicholas v. Title & Trust lowstone Nat. Bank v. McCullough, 154 P. 919.
Co., 154 P. 391.
Om211 (Or.) In a suit to reform a deed pro-
viding for reverter in case livery business was
carried on upon premises granted, and to re-
See Acknowledgment; Covenants; Estoppel, strain a judgment of ejectment procured by the
37; Evidence, w 419, 461; Judgment, grantors, evidence held insufficient to show the
Om781, 782; Mortgages; Municipal Corpo- grantors' fraud in the execution of the deed,
rations, w582; Navigable Waters, cm37. or that they entrapped defendant into allow-
ing livery business to be carried on upon the
I. REQUISITES AND VALIDITY.
premises.—Jakel v. Seeck, 154 P. 424.
(B) Form and Contents of Instruments.
32 (Colo.) A deed delivered in blank as to
DE FACTO OFFICERS.
grantee conveyed no title, and a subsequent de: See Municipal Corporations, Em147; Officers,
livery to another party without insertion of
grantee's name and deed by him to the plaintiff
creates no title in the plaintiff.-McGrew v.
Lamb, 154 P. 91.
See Libel and Slander,
III. CONSTRUCTION AND OPERA-
(A) General Rules of Construction,
95 (Or.) Abbreviation "etc.," following re-
See Judgment, m107.
cital of purpose in deed, means "and other like
purposes."-Stansbery v. First Methodist Epis-
copal Church, 154 P. 887.
See Mortgages, Cw556, 558.
Om99 (Wash.) Where a right of way deed re-
ferred to a written agreement of the parties and DELEGATION OF POWER.
the agreement referred to the deed, the two in-
struments must be considered in pari materia. See Constitutional Law, em 61, 62.
-Tacoma Mill Co. v, Northern ac. Ry. Co.,
154 P. 173.
(B) Property Conveyed.
See Carriers, cm 40; Deeds, 208; Gifts,
I!4 (Kan.) A grantor owning an undivided
ww19; Insurance, w136; Principal and
one-eighth interest in land derived from the gov-
Surety, ew57; Sales, 161.
ernment, but supposing that he owns an undi-
vided one-fourth interest subject to a life estate
derived from a will, conveys all his title by a See Insurance, Omw392.
deed describing the property as a one-fourth
interest arising under the will and containing
in the warranty clause an exception as to the
life estate.-Leslie v. Harrison Nat. Bank, 154 See Pleading, en 187-208; Trial, ew156.
Om 114 (Or.) A description in a deed of a lot
of land of a minor held sufficient, notwithstand-
ing the omission of the article "an" in the name See Banks and Banking, C134; Escheat,
of the addition in which the lot was located, in
2, 3, 8.
view of reference to papers on file in connection
with the sale under court order.---Wettersten v.
DEPOSITS IN COURT.
Fisher, 154 P. 534,
See Bail, 73.
(C) Estates and Interests Created.
Cu 124 (Or.) Under policy of law favoring vest-
ing of estates, rule is that, upon conveyance of See Carriers, Ow316.
fee, doubts in deed's language must be resolved
in favor of free use of property, and against re- DESCENT AND DISTRIBUTION.
strictions.-Stansbery v. First Methodist Episco-
pal Church, 154 P. 887.
See Executors and Administrators; Indians,
Om 128 (Cal.) The effect of the repeal of the
rule in Shelley's Case, by Civ. Code, $ 779, 11. PERSONS ENTITLED AND THEIR
was to restore to courts of equity their right
to construe apt words to create a remainder as
a limitation, in accordance with its lwin im-
(B) Surviving Husband or Wife.
port and intent.-Gray v. Union Trust Co. of 58 (Mont.) Under Rev. Codes, $ 4820, subd.
San Francisco, 154 P. 306.
4, a wife may be the sole heir of her husband
where he leaves neither issue, father, mother, with Rev. Laws 1910, $ 5268 (Comp. Laws
brother, or sister.-Marcellus v. Wright, 154 P. 1909, $ 6095), and that the order was therefore
See Deeds, Om 114; Intoxicating Liquors, On 45 (Cal.) Code Civ. Proc. $ 583, providing
for dismissal where the action is not brought to
trial within five years after filing of answer,
is mandatory.-Larkin v. Superior Court of
Shasta County, 154 P. 841.
Cm60 (Cal.) Under Code Civ. Proc. $ 583, pro-
viding for dismissal if an action is not brought
See Courts, On92.
to trial within five years after answer, unless the
time be extended by stipulation of the parties,
stipulation by counsel of the parties is a stipula-
See Appeal and Error, Ow997; Trial, eww169. Shasta County, 154 P. 841.
tion by them.-Larkin v. Superior Court of
Agreements for continuances made by stipula-
tion of counsel in open court, which extended
time for trial for little over a year after the
See Attorney and Client, Om 39.
filing of answer, will not preclude dismissal un-
der Code Civ. Proc. $ 583, where action was not
brought to trial within five years after answer.
See Accord and Satisfaction; Bankruptcy, om That the original defendant administrator died
433; Compositions with Creditors; Compro- within the five year period, and no other was ap-
mise and Settlement; Garnishment, 195; pointed until after that time, will not preclude
disinissal under Code Civ. Proc. $ 583, on ac-
count of plaintiff's failure to bring the action
to trial within five years after answer.-Id.
See Costs, 47.
Though after answer plaintiff's attorney died
and defendants filed no notice for appointment
of another attorney in accordance with Code
Civ. Proc. § 286, defendants could, under sec-
See Negligence, w 83; Street Railroads,
tion 583, claim dismissal for plaintiff's failure to
bring action to trial within five years.--Id,
That one of defendant's counsel died after the
DISCRETION OF COURT.
filing of the answer, and the other ceased to act,
See Appeal and Error, Om959-981; Contin. will not excuse plaintiff from bringing the action
uance, em 20; Costs, 13;. Criminal Law, to trial within five years after answer, and
Cw1149; Judgment, cm344; Pleading,
so save dismissal under Code Civ. Proc. § 583,
236; Trial, 59.
for plaintiff could, under section 286, require
appointment of another attorney.-Id.
That defendant filed a cross-complaint asking
that his title be quieted does not preclude dis-
See Carriers, ww13.
missal under Code Civ. Proc. $ 583, for plain-
tiff's failure to bring the action to trial within
DISMISSAL AND NONSUIT.
See Appeal and Error, 430, 565, 568, 612,
614, 797, 803, 866; Mandamus, Om43; Trial,
See Corporations, Ow617.
On 26 (Wash.) Entering a judgment of nonsuit
with consent of plaintiff, equivalent to a volun- See Animals.
tary dismissal, as to one defendant, in a negli-
gence case, is not a matter of which the other
defendants may complain.-Jensen v. Schlenz, See Descent and Distribution.
154 P. 159.
Cu 42 (Or.) Where on trial plaintiff dismissed
as to part of the defendants, such dismissal ex-
DISTRICT AND PROSECUTING
onerates them from liability.-Humphry v. City
of Portland, 154 P. 897.
m43 (Okl.) The district court held to be with. See Malicious Prosecution.
out jurisdiction at a subsequent term to vacate
a judgment or order of voluntary dismissal and
reinstate the cause under Rev. Laws 1910, 8
5267, subd. 3 (Comp. Laws 1909, $ 6094, subd. See Drains.
3), without a substantial compliance with sec-
tion 5268 (section 6095), relative to proceed-
ings to correct mistakes, omissions or irregular- See Process, w166; Prohibition, w5.
ities by motion on notice.-Rollow v. Frost &
Saddler, 154 P. 542.
Where an action to quiet title and cancel
a conveyance is dismissed on plaintiff's applica- wo27 (Cal.App.) A continual course of con-
tion pending a demurrer to the petition, such duct, consisting of acts calculated to irritate
dismissal is a judgment or order, within Rev. and humiliate and produce the resulting high
Laws 1910, $ 5267 (Comp. Laws 1909, 8 6094), nervous tension and distraction resulting, will
authorizing the district court to vacate or modi constitute extreme cruelty, as ground for di.
fy its own judgments or orders.---Id.
vorce.-Perkins v. Perkins, 154 P. 483.
Where the district court at a subsequentem 27 (Okl.) The conduct of one spouse in fre-
term made an attempted order vacating a judg- quently cursing and abusing the other consti-
ment of voluntary dismissal and reinstating the tutes “extreme cruelty" authorizing a divorce.
cause, without written notice or application and Clark v. Clark, 154 P. 1142.
reasonable notice to the adverse party, held, Whipping one's wife constitutes "extreme cru-
that there was not a substantial compliancel elty” authorizing a divorce.-Id.