dence of their testimony on the ground that no proper foundation was laid, the question of the competency of proof by affidavit was not pre- served.--Ivey v. State, 154 P. 589.
1038 (Okl.Cr.App.) A defendant convicted of manslaughter in the second degree cannot complain that the court instructed on such de- gree without evidence justifying such instruc- tion, where no objection was made below to such instruction.-Ballard v. State, 154 P. 1197.
disturbed where the affidavits relative to such misconduct are conflicting.-State v. Jones, 154 P. 378.
11662 (Cal.App.). In a prosecution for li- bel, error of the court in stating in the pres- ence of the jury, when denying a motion to dis- miss, that the publication might be fairly inter- preted to state that all persons admitted to a degree of a fraternal order had taken the libel- ous oath, a statement which the jury were there- after instructed to disregard, held harmless.- People v. Turner, 154 P. 34.
1169 (Cal.App.) When evidence of a custom of a deceased in carrying considerable sums of money with him is received to prove a motive for his murder, subsequently striking it cures the error.-People v. Andrade, 154 P. 283.
1056 (Okl.Cr.App.) A defendant convicted of manslaughter in the second degree cannot complain that the court instructed on such de- gree without evidence justifying such instruc- tion, where no exception was taken below to such instruction.-Ballard v. State, 154 P. 1197. 1056 (Wash.) A defendant in a criminal1169 (Nev.) Permitting witnesses to state case, who failed to except to a charge, cannot complain thereof on appeal.-State v. Brown- low, 154 P. 1099.
(1) Record and Proceedings Not in Rec- ord.
1086 (Cal.) On appeal the record should not contain the arguments of the counsel on questions of law arising during the trial, since they serve no useful purpose, and their inser- tion is not required by law.-People v. Miller, 154 P. 468.
1086 (Nev.) An assignment of error com- plaining of the admission of a confession held not reviewable where the transcript disclosed no objection to the admission.-State v. Blaha, 154 P. 78.
1105 (Ariz.) A reporter's transcript of the evidence, not authenticated by the trial judge or certified as correct by the parties, cannot be considered as a bill of exceptions or statement of facts.-Hamilton v. State, 154 P. 1039.
1121 (Ariz.) As under Civ. Code 1913, par. 614, a reporter's transcript cannot be consid- ered as such, where not certified by the trial judge, an assignment depending on the evidence cannot be reviewed.-Hamilton v. State, 154 P. 1039.
(E) Assignment of Errors and Briefs.
1130 (Idaho) Where the brief does not cite the page and folio of the transcript wherein evidence on which an objection to instructions is based is to be found, such evidence will not be considered.-State v. Jones, 154 P. 378.
conclusions as to statements made by accused while under arrest, if error, held harmless, where the entire conversation was shown, and it clear- ly appeared that the statements were volun- tarily made.-State v. Blaha, 154 P. 78.
11702 (Nev.) Allowing a witness to refresh his memory in homicide trial by reading his evidence given at inquest held harmless, where statements before and after refreshing were sub- stantially the same.-State v. Tranmer, 154 P. 80.
Where a previously convicted joint principal is a state's witness on murder trial, permit- ting him to testify that he is imprisoned under death's sentence held reversible error.-Id.
1172 (Mont.) In a prosecution for statu- tory rape, submission of an instruction relating to the period of limitation applicable, unneces sary under the facts, held not prejudicial error. -State v. Harris, 154 P. 198.
1172 (Okl.Cr.App.) Where accused has had a fair trial, and it appears that the verdict of guilty was not reached by error or as the result of passion or prejudice and sustained by the evidence, the conviction will be affirmed not- withstanding an inaccurate instruction for the state.-Wingo v. State, 154 P. 502. (II) Determination and
1184 (Okl. Cr.App.) Under Rev. Laws 1910, § 6003, the appellate court has power to rectify a sentence by reducing it to conformity with the punishment prescribed by statute.-Johnson v. State, 154 P. 1004.
Where a verdict of guilty of assault with a dangerous weapon in violation of Rev. Laws 1910, § 2344, prescribed punishment by fine in addition to imprisonment, held, that the provi- sion for a fine should be deemed surplusage, and the judgment and sentence be modified ac cordingly.-Id.
1149 (Okl.Cr.App.) The trial court's ac- tion in permitting the names of additional wit- nesses to be indorsed on the information under Rev. Laws 1910, § 5694, will not be disturbed, in the absence of an abuse of discretion preju- dicial to defendant's substantial rights.-Gray-1186 (Cal.) Where the court required the son v. State, 154 P. 334.
1159 (Cal.App.) A conviction cannot be re- versed unless the appellate court can, as a mat- ter of law, say that the verdict was not justi- fied.-People v. Sidwell, 154 P. 290.
1159 (Nev.) Judgment will not be reversed for insufficiency of evidence where the verdict is supported by substantial evidence.-State v. Whitaker, 154 P. 927.
1159 (Okl.Cr.App.) A conviction will not be set aside as against the evidence, where sustain- ed by sufficient evidence, though the evidence is conflicting.-Jones v. State, 154 P. 689.
1159 (Okl.Cr.App.) A conviction on evi- dence tending to prove all material allegations of the information will not be disturbed; the weight and sufficiency of the evidence being for the jury under Rev. Laws 1910, § 5873.-Mitch- ell v. State, 154 P. 1197.
1159 (Wash.) The question of credibility of witnesses is for the jury, whose finding is con- clusive on appeal.-State v. Brooks, 154 P. 795.
1160 (Idaho) The denial of a new trial sought for misconduct of the jury will not be
defendant in a prosecution for murder to estab- lish his defense of insanity beyond a reasonable doubt, the error was not such that the decree could be affirmed in accordance with Const. art. 6, § 42, where the evidence was such that the jury might reasonably have found for the de- fendant under a proper instruction.-People v. Miller, 154 P. 468.
1186 (Cal.App.) Under Const. art. 6, § 41⁄2, prohibiting reversal for nonprejudicial error in criminal cases, in a prosecution for libel, where the magistrate at preliminary hearing merely caused to be entered in his docket with- out signing an order that defendant should be held to answer in the superior court, in contra- vention of Pen. Code, § 872, judgment of con- viction will not be reversed after fair trial.- People v. Turner, 154 P. 34.
1186 (Mont.) Under Rev. Codes, § 9415, di- recting the disregard of technical errors not affecting substantial rights, the court will dis- regard the action of the trial court, in a prose- tion for statutory rape, where the evidence tend- ed to show several offenses, in not requiring
the state to elect until the close of its case. State v. Harris, 154 P. 198.
will be subjected to.-Godley v. Gowen, 154 P. 141.
(B) Aggravation, Mitigation, and Reduc- tion of Loss.
1186 (Nev.) Where on murder trial counsel for defense was reading testimony of witness on former trial in impeachment, remark of trial judge, * There is no incon-62 sistencies or contradictions," held harmless er- ror, under statute providing for disregard of technical errors.-State v. Tranmer, 154 P. 80.
1188 (Mont.) On appeal from a sentence improperly pronounced under a proper convic- tion, the sentence may be annulled, and the cause remanded for proper sentence.-Ex parte Lewis, 154 P. 713.
III. GROUNDS AND SUBJECTS OF COMPENSATORY DAMAGES. (A) Direct or Remote, Contingent, OP Prospective Consequences or Losses.
23 (Wash.) Where the purchaser of a busi- ness paid an increased price for the seller's agreement not to engage in the same business in the same locality within two years, on breach by the seller the buyer could recover the lost profit resulting therefrom; such damages hav- ing been reasonably within the contemplation of the parties on making the agreement.-Loutzen- hiser v. Peck, 154 P. 814.
26 (Wash.) The recovery in a personal in- jury case may include damages for future pain and suffering which the evidence shows plaintiff
(Mont.) The rule that an injured person must use ordinary diligence to effect a cure and minimize the damages does not require an in- jured passenger, after one unsuccessful opera- tion, to submit to a major operation to re- duce the damages caused by the carrier's neg- ligence.-Freeman v. Chicago, M. & St. P. Ry. Co., 154 P. 912.
62 (Okl.) An injured party, on finding that a wrong has been perpetrated on him, should use all reasonable means to arrest the loss.- Sackett v. Rose, 154 P. 1177.
Whether an injured party, on discovering per- petration of a wrong, has used reasonable means to arrest the loss, depends on whether he has used reasonable exertion and incurred reason- able expense in view of all circumstances of the particular case.-Id.
IV. LIQUIDATED DAMAGES AND
76 (Or.) Forfeitures are to be strictly con- strued, and one who would avail himself of them must bring himself precisely within the letter of the contract authorizing them.-City of Rain- ier v. Masters, 154 P. 426.
79 (Or.) In general damages are limited to compensation that the injured party may be 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- 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 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 breach by mere delay.-City of Rainier v. Mas- ters, 154 P. 426.
86 (Wash.) A city, after rescinding a con- 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- scission. Garey v. City of Pasco, 154 P. 433.
VI. MEASURE OF DAMAGES.
(A) Injuries to the Person.
95 (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- jured party as near as possible in the position he would have occupied but for the wrong.- Sackett v. Rose, 154 P. 1177.
(C) Breach of Contract.
120 (Cal.App.) Except where exemplary damages are given, courts will not allow a party to a contract to recover upon its breach more than he would have received by its due perform- ance.-Johnson v. Hinkel, 154 P. 487.
120 (Okl.) Where a contract of sale of land is assigned as collateral security for the faithful performance of a building contract by the assignor, the measure of damages recover- able from the vendor is the damage sustained by him from breach of the building contract.- Marker v. Gillam, 154 P. 351.
VII. INADEQUATE AND EXCESSIVE
131 (Wash.) Where an employé suffered a broken arm, and his expenses connected there- with were about $40, a recovery of $400 was 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
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 Savings & Trust Co., 154 P. 135.
132 (Wash.) Under the evidence held a ver- dict of $1,500 for personal injuries, resulting in varicose veins, was not excessive.-Jensen v. Schlenz, 154 P. 159.
See Abatement and Revival,
53; Appeal and Error, 334; Sheriffs and Constables, On 157.
II. ACTIONS FOR CAUSING DEATH. (A) Right of Action and Defenses.
138 (Wyo.) Where the jury is required to find the different items of damage to an adjoin- ing landowner's property from an excavation, and to return them separately, and the amounts so found are within the proof, and, in the ag- gregate, are within the issues, the verdict is not excessive.-Stockgrowers' Bank of Wheatley land v. Gray, 154 P. 593.
VIII. PLEADING, EVIDENCE, AND
ASSESSMENT.
(A) Pleading.
32 (Okl.) The right of recovery for death un- der Rev. Laws 1910, § 5281, extends to all chil- dren of deceased, regardless of their ages; but the recovery must be based on the reasonable expectancy of pecuniary benefit of which they were deprived by their father's death.-Press- v. Incorporated Town of Sallisaw, 154 P. 660.
(E) Damages, Forfeiture, or Fine.
99 (Wash.) An award of $8,500 damages in favor of a mother for the death of her son, 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.
163 (Okl.) The burden of proving mitiga- tion of damages is on the party guilty of the wrong.-Sackett v. Rose, 154 P. 1177.
167 (N.M.) Where there is substantial evi- dence that the injuries are permanent, evidence of life expectancy is admissible.-Thayer v. Den- ver & R. G. R. Co., 154 P. 691.
168 (N.M.) The physical ability or inability of an injured employé to do work or perform any act may be proved by direct testimony of the employé himself. Thayer v. Denver & R. G. R. Co., 154 P. 691.
DEBTOR AND CREDITOR.
See Assignments for Benefit of Creditors; Bank- ruptcy; Compositions with Creditors; Fraud- ulent Conveyances.
I. NATURE AND REQUISITES.
12 (Or.) There could be no parol dedication to charitable use of land held by claimant under the provisional Constitution and before obtain- ing certificate under Donation Act Cong. Sept. 27, 1850.-Stansbery v. First Methodist Episco- pal Church, 154 P. 887.
31 (Or.) A formal acceptance of a dedica- tion of a street is unnecessary, since approval by the municipality will be implied.-Nicholas v. Title & Trust Co., 154 P. 391.
176 (Wash.) On breach of seller's agree- ment not to engage in the meat business in the same locality, the buyer could show compara- tive gross receipts before and after the breach, and the amounts taken in by the seller in his own business and the average profit figured on percentage of gross receints; that being the best evidence on the question of damages.-Lout-of zenhiser v. Peck, 154 P. 814.
189 (Wash.) Evidence held to show that the purchaser of a meat market suffered damages at least equal to those awarded in his action for breach of the contract of the seller not to en- gage in the same business in the same locality within two years.-Loutzenhiser v. Peck, 154 P. 814.
(C) Proceedings for Assessment.
210 (Or.) Under the evidence in personal injury action, held, that an instruction that if plaintiff's condition was the result of disease, and not the accident, there could be no recov- ery, was warranted.-Hudson v. Brown Lumber Co., 154 P. 533.
216 (Utah) Where a servant sued for spinal injuries, but failed to allege rib fractures, and the defendant's evidence disclosed rib fractures, submission of such injuries to the jury was not error; injuries to the ribs being probably concurrent with spinal injuries and covered by the pleadings.-Woodward v. Daly-West Mining Co., 154 P. 782.
216 (Wash.) That plaintiff had for a time been unable to pursue his usual occupation, au- thorizes an instruction that the jury might al-
39 (Or.) An owner of land, who exhibited to intending purchasers a map showing streets certain widths, which purchasers bought be fore he changed his mind and recorded a differ- ent map showing different widths, held estop- ped to deny dedication to the public of the high- ways as shown by the original map.-Nicholas v. Title & Trust Co., 154 P. 391.
Where the successor in title of a dedicator of 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 dedicated highways, it was estopped to deny the original dedication.-Id.
43 (Or.) In a suit to determine an ad- verse interest in realty, plaintiff seeking to es- tablish that his lots were bounded by highways 60 feet wide, where the original purchaser, who dedicated the ways, testified to noticing stakes marking the highway lines, the admission of evidence relating to such stakes was proper.- Nicholas v. Title & Trust Co., 154 P. 391.
44 (Or.) In a suit to determine an adverse interest in land, evidence held sufficient to show that the owner of land knowingly permitted intending purchasers to believe that the print- ed plat thereof had been duly recorded.-Nichol- as v. Title & Trust Co., 154 P. 391.
To establish a parol dedication, evidence must 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 in realty, evidence held sufficient to show an intention on the part of the owner of lots, selling them through an agent, to make a parol dedication to the public, as indicated upon a printed plat shown purchasers, of parts of cer- tain streets bordering on certain blocks as highways 60 feet in width.-Id.
II. OPERATION AND EFFECT.
63 (Or.) Where the original owner of land, by exhibiting a plat to intending purchasers, dedicated highways, and his successor in title did not encroach upon such highways for a term equal to the period of the statute of limita- tions, the right of the public in the streets was not extinguished.-Nicholas v. Title & Trust Co., 154 P. 391.
See Acknowledgment; Covenants; Estoppel, 37; Evidence, 419, 461; Judgment, 781, 782; Mortgages; Municipal Corpo- rations, 582; Navigable Waters, 37. I. REQUISITES AND VALIDITY. (B) Form and Contents of Instruments.
32 (Colo.) A deed delivered in blank as to
208 (Cal.App.) Evidence in a suit involving the question of delivery of a deed held sufficient to support a finding of delivery.-Ragan v. Ragan, 154 P. 479.
208 (Kan.) Evidence held to show deliv- ery of deed though it was retained by the no- tary until after the grantor's death, where the grantor had directed that the deed be secured by the grantees from the notary and recorded, which was done after his death, and it clearly appeared from his statements that he intended to make the conveyance.-Elliott v. Hoffhine, 154 P. 225.
21! (Mont.) Evidence of the defendant in an action to foreclose a deed as a mortgage held insufficient to sustain his allegations of fraud or mistake in the execution of the deed.-Yel- lowstone Nat. Bank v. McCullough, 154 P. 919.
211 (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- strain a judgment of ejectment procured by the grantors, evidence held insufficient to show the grantors' fraud in the execution of the deed, or that they entrapped defendant into allow- ing livery business to be carried on upon the premises.-Jakel v. Seeck, 154 P. 424.
DE FACTO OFFICERS.
grantee conveyed no title, and a subsequent de- See Municipal Corporations, 147; 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.
III. CONSTRUCTION AND OPERA-
(A) General Rules of Construction.
95 (Or.) Abbreviation "etc.," following re- cital of purpose in deed, means "and other like purposes."-Stansbery v. First Methodist Epis- copal Church, 154 P. 887.
DEFICIENCY.
See Mortgages, 556, 558.
99 (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, 61, 62. -Tacoma Mill Co. v. Northern Pac. Ry. Co., 154 P. 173.
See Carriers, 40; Deeds, 19; Insurance, 136; Surety, 57; Sales, 161.
208; Gifts, Principal and
114 (Kan.) A grantor owning an undivided one-eighth interest in land derived from the gov- 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 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, 187-208; Trial, 156. P. 209.
114 (Or.) A description in a deed of a lot
of land of a minor held sufficient, notwithstand- See Banks and Banking, 134; Escheat, ing the omission of the article "an" in the name of the addition in which the lot was located, in view of reference to papers on file in connection with the sale under court order.-Wettersten v. Fisher, 154 P. 534.
(C) Estates and Interests Created. 124 (Or.) Under policy of law favoring vest- ing of estates, rule is that, upon conveyance of fee, doubts in deed's language must be resolved in favor of free use of property and against re- strictions. Stansbery v. First Methodist Episco- pal Church, 154 P. 887.
128 (Cal.) The effect of the repeal of the rule in Shelley's Case, by Civ. Code, § 779, was to restore to courts of equity their right to construe apt words to create a remainder as a limitation, in accordance with its in im- port and intent.-Gray v. Union Trust Co. of San Francisco, 154 P. 306.
where he leaves neither issue, father, mother, brother, or sister.-Marcellus v. Wright, 154 P. 714. DESCRIPTION.
See Deeds, 114; Intoxicating Liquors, 216.
with Rev. Laws 1910, § 5268 (Comp. Laws 1909, § 6095), and that the order was therefore void. Id.
II. INVOLUNTARY.
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.
60 (Cal.) Under Code Civ. Proc. § 583, pro- viding for dismissal if an action is not brought 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- tion by them.-Larkin v. Superior Court of 169. Shasta County, 154 P. 841.
Agreements for continuances made by stipula- tion of counsel in open court, which extended time for trial for little over a year after the 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. -Id.
That the original defendant administrator died within the five year period, and no other was ap- pointed until after that time, will not preclude dismissal under Code Civ. Proc. § 583, on ac- count of plaintiff's failure to bring the_action to trial within five years after answer.-Id.
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- 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 filing of the answer, and the other ceased to act, will not excuse plaintiff from bringing the action to trial within five years after answer, and so save dismissal under Code Civ. Proc. § 583, 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- missal under Code Civ. Proc. § 583, for plain- tiff's failure to bring the action to trial within five years.-Id.
DISSOLUTION.
See Corporations, 617.
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, 154 P. 159.
42 (Or.) Where on trial plaintiff dismissed as to part of the defendants, such dismissal ex- onerates them from liability.-Humphry v. City of Portland, 154 P. 897.
DISTRIBUTION.
See Descent and Distribution.
DISTRICT AND PROSECUTING ATTORNEYS.
43 (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, §
3), without a substantial compliance with sec- tion 5268 (section 6095), relative to proceed-
5267, subd. 3 (Comp. Laws 1909, § 6094, subd. See Drains.
ings to correct mistakes, omissions or irregular- See Process, 166; Prohibition, 5. 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- tion pending a demurrer to the petition, such dismissal is a judgment or order, within Rev. Laws 1910, § 5267 (Comp. Laws 1909, § 6094), authorizing the district court to vacate or modi- fy its own judgments or orders.-Id.
Where the district court at a subsequent term made an attempted order vacating a judg- ment of voluntary dismissal and reinstating the cause, without written notice or application and reasonable notice to the adverse party, held, that there was not a substantial compliance
27 (Cal.App.) A continual course of con- duct, consisting of acts calculated to irritate and humiliate and produce the resulting high nervous tension and distraction resulting, will constitute extreme cruelty, as ground for di- vorce.-Perkins v. Perkins, 154 P. 483.
27 (Okl.) The conduct of one spouse in fre- quently cursing and abusing the other consti- tutes "extreme cruelty" authorizing a divorce.- Clark v. Clark, 154 P. 1142.
Whipping one's wife constitutes "extreme cru- elty" authorizing a divorce.-Id.
« ΠροηγούμενηΣυνέχεια » |