APPEAL (Continued). time of receiving the papers that the same would not be filed until the fee was paid. Held: The record of the Court below cannot be altered or amended by proof made in this Court; if it is incorrect, that must be made to appear by proper evidence to the Court below, which has power to alter it so as to make it speak the truth. It would be a departure from all principle to allow a record sent to this Court to be assailed by evidence of less dignity than a record. Held, further: The clerk was justified in refusing to file the notice and undertaking until his fee was paid.— Id. 3. ID. ID. ID. CASE DISTINGUISHED.- Tregambo v. Comanche M. & M. Co., 57 Cal. 501, distinguished. Id. 4 APPEAL - JURISDICTION MOTION FOR NEW TRIAL.-An appeal from a judg ment does not divest the trial Court of jurisdiction to hear and determine a motion for a new trial. Naglee v. Spencer, 10. 5. APPEAL - REVERSAL OF JUDGMENT NEW TRIAL - PRACTICE.— Extreme caution ought to be exercised in refusing new trials where judgments are reversed. The discretion of the appellate Court should be exercised in that direction only in cases where it is plain, either from the pleadings or from the nature of the controversy, that the party against whom the reversal is pronounced cannot prevail in the suit. Held: Accordingly in this case (THORNTON, J., dissenting), that the cause should be remanded for a new trial.- Schroeder v. Schweizer Lloyd Transport Versicherungs Gesellschaft, 468. See ALIMONY, 1, 2. 6. APPEAL FROM JUDGMENT DISMISSAL.-The transcript does not contain the Judgment from which the appeal purports to be taken, and the appeal therefore can not be entertained.- People v. Sing Lum, 6. 7. APPEAL FROM A JUDGMENT OF NONSUIT RECORD ON APPEAL.-Appeal from a judgment of non-suit. There was no statement or bill of exceptions setting forth the evidence on which the Court granted the motion. Held: The ruling of the Court can not be reviewed.― Nicholl v. Littlefield, 238. 8. APPEAL FROM Order-RECORD TRANSCRIPT IDENTIFICATION OF PAPERSBILL OF EXCEPTIONS.- Appeal from an order made after a final judgment dismissed on the ground that there is no bill of exceptions, or anything else in the record to show what papers were used on the hearing in the Court below. Angell v. Delmas, 254. 9. APPEAL FROM ORDER BILL OF EXCEPTIONS RECORD TRANSCRIPT IDENTIFICATION OF PAPERS CLERK'S CERTIFICATE. Upon an appeal from an order, opening a default, papers appeared in the transcript as printed, purporting to be an affidavit of the defendant, and a counter-affidavit of the plaintiff; and there was a certificate of the Clerk, that the transcript contained full, true, and correct copies of all papers used upon the hearing of the motion. in the Court below; but there was no bill of exceptions or certificate of the Judge as to the identity of the papers. Held: It is not for the Clerk to determine what papers or evidence the Court acted upon; and his certificate must be disregarded.— Walsh v. Hutchings, 228. APPEAL (Continued). 10. APPEAL IN PROBATE PROCEEDINGS-APPEALABLE ORDER-Appeal from an order vacating a decree of distribution. Held: Appealable judgments and orders in probate proceedings are all enumerated in the third Subdivision of Section 963, Code of Civil Procedure; and as the order appealed from is not therein mentioned, it is not an appealable order.- Estate of Calahan, 232. 11. DISMISSAL OF APPEAL.-Appeal dismissed for failure to file transcript within the time prescribed by the rules. Smith v. Arnold, 234. 12. DISMISSAL OF APPEAL. In this case the appellant having failed to file the transcript within the time prescribed by the rules, notice to dismiss the appeal was served upon him, but pending the appeal leave was given him to file the transcript. Held: The leave given to file the transcript was not the equivalent of an extension of time under the rules, because such an extension was grant able only for twenty days after the prescribed time; and the limitary time had elapsed long before the transcript was filed. Nor was there an adjudication of the respondent's right to a dismissal by granting leave to file the transcript, for leave was given subject to respondent's pending motion to dismiss.- Page v. Latham, Jr., 601. See DIVORCE, 1, 2; EJECTMENT, 8; INDICTMENT, 1; INJUNCTION; JUDG- APPEAL TO SUPERVISORS. APPEALABLE ORDER. See STREET ASSESSMENT, 1, 2. APPEALABLE ORDER. An order denying defendant's motion for judgment by default on his cross-complaint is not appealable.- Broadribb v. Tibbets, 412. See APPEAL, 10. APPEARANCE. See JURISDICTION, 9. APPLICATION TO PURCHASE. See STATE Lands, 1. APPORTIONMENT. See TAXATION, 12, 15. ARGUMENT. See MURDER, 3. ASSAULT WITH A DEADLY WEAPON. 1. ASSAULT WITH A DEADLY WEAPON SUFFICIENCY OF EVIDENCE TO SUSTAIN VERDICT. Unless the evidence is so slight that the Court below would be justified in directing a verdict for defendant, this Court is not authorized to reverse the judgment upon the ground that the evidence does not sustain a verdict of guilty. If there is a conflict, it is for the jury, under proper instructions, to determine the credibility of witnesses. People v. Bird, 7. 2. ID. INSTRUCTIONS.- The Court did not err in giving the following instructions: "If the person having the present ability to commit a violent injury upon the person of another, and having with him a deadly weapon, rushes ASSAULT WITH A DEADLY WEAPON (Continued). 8. ID. towards such other person with menacing gestures, and with a purpose to use such weapon, an assault is committed, though such person is prevented from striking or using the weapon before he comes near enough to do so." Id. RELEVANCY OF INSTRUCTIONS.-The Court charged the jury as follows: "Further in this connection the Court, of its motion, instructs you that if a man has been for a period of two years or thereabouts in the quiet, peaceable, and exclusive possession of a house and certain grounds immediately surrounding the same, and necessary to the comfort and enjoyment of such house, and during such time has resided in such house and has occupied and used such ground with his family, and another person, without his consent, places timbers upon such ground which obstruct the free use and enjoyment of such house and grounds, the man who has so had the possession of said house and grounds and occupied the same with his family, may the next day after the timbers are so placed upon such grounds, remove the same from such grounds. And if it becomes necessary to saw such timbers up to remove them, he may do so. And if he is interfered with in such removal, he may use so much force as is necessary to protect his person in so doing." Held: As there was no evidence tending to establish the circumstances recited as possible facts, the charge was clearly erroneous.- Id. ASSESSMENT. See TAXATION, 1, 7, 8, 18-21. ASSESSMENT ROLL. See TAXATION, 3, 4, 13, ATTACHMENT. - ATTACHMENT SUBSEQUENT MORTGAGE FOR OWELTY OF PARTITION.- The interest of M., an undivided half, in a tract of land owned by him as tenant in common with S., was attached by A. Subsequently by a judg ment of partition a specific portion of the tract was allotted to M.she however, being required by the judgment in order to equalize the partition, to execute a mortgage to S. upon her allotment for one hundred and eighty-five dollars. Afterwards the interest of M. in the tract allotted to her was sold under execution in the attachment suit, and A. became the purchaser and received his deed, and having been made party to a suit to foreclose the mortgage of S. claimed that his title was paramount to the mortgage. Held: The plaintiff was entitled to have foreclosure of his mortgage upon whatever interest M. held in the premises in excess of the undivided one half held by her at the time of the levy of A.'s attachment.— Whitney v. McCoy, 627. See CONTRACT, CONSTRUCTION OF UNDERTAKING ON, 1-4. ATTEMPT TO COMMIT ROBBERY. ATTEMPT TO COMMIT ROBBERY -INSTRUCTIONS.- Information for an attempt to commit robbery. The Court instructed the jury as stated in the opinion, and refused to grant an instruction asked by the defendant. Held: The charge of the Court was correct and embodied the instruction refused. People v. Cadd, 640. ATTORNEY'S FEE. See FORECLOSURE, 3, 4; MORTGAGE. ATTORNEY IN FACT. See ESTOPPEL, 2. BANK OFFICERS, LIABILITY OF. See OVERDRAFTS, 1, 2, 3, 4, 5. BATTERY. BATTERY PUNISHMENT HABEAS CORPUS.- The defendant was convicted of the crime of battery and sentenced to three years imprisonment in the House of Correction. Held: Battery is punishable by fine • or by imprisonment in the County Jail not exceeding six months or by both. The prisoner has been in prison for the term of six months.- Ex parte Bulger, 438. BEQUEST TO RELIGIOUS CORPORATION. See CORPORATION, 1, 2. BILL OF EXCEPTIONS. 1. BILL OF EXCEPTIONS -MISTAKE IN NAMING STATEMENT PRACTICE.After judgment for the defendant, the plaintiff prepared and served a document, containing the essential requisites of a bill of exceptions, but entitled " 'plaintiff's proposed statement on appeal;" and the Court refused to settle the same. Held: A mistake in entitling a bill of exceptions is not a sufficient ground for refusing to settle it. People v. Crane, Judge, etc., 279. 2. ID. ID. ID. There is no difference between a statement and a bill of exceptions in form or substance, except that the former follows a notice of motion for a new trial.— Id. See APPEAL, 8, 9; ROBBERY, 5; STIPULATION. BOND. See PARTIES. BREACH OF BOND. See SURETIES, 8. BREACH OF CONDITION. See UNDERTAKING ON ATTACHMENT, 4. BREACH OF TRUST. See OVERDRAFTS, 4. BURDEN OF PROOF. See SELF-DEFENSE, 4. BY-LAWS. See OVERDRAFTS, 3; SWAMP LAND ASSESSMENT, 4. CALENDAR OF COURT. See JUDGMENT, MOTION TO SET ASIDE, 1, 2. CAPACITY TO SUE. See DEMURRER, 1, 2. CASES OVERRULED, CRITICISED, LIMITED, DISTINGUISHED, OR EX- Baggs v. Smith, 53 Cal. 88, distinguished, 396. CASES OVERRULED, CRITICISED, LIMITED, DISTINGUISHED, OR EX PLAINED (Continued). Doyle v. Seawall, 12 Cal. 280, distinguished, 653. Dunphy v. Guindon, 13 Cal. 28, distinguished, 653. Dyer v. Barstow, 50 Cal. 652, distinguished, 403. Earle v. Board of Education, 55 Cal. 481, distinguished, 78. Ea parte Chin Yan, 60 Cal. 78, distinguished, 432. Ex parte Ellis, 54 Cal. 204, distinguished, 432. Ex parte Kelly, 28 Cal. 414, distinguished, 432, Gay v. Ide, 6 Cal. 99, overruled, 10. Gordon v. Ross, 2 Cal. 156, distingiushed, 653. McGary v. Pedrorena, 58 Cal. 9, distinguished, 292. Melson v. Melson, 2 Munf. 542, distinguished, 653. Spring Valley Water Works v. Board of Supervisors of San Francisco, 7 Pac. L. J. 614, explained, 166. Taylor v. Warnaky, 55 Cal. 350, distinguished, 485. Tipton v. Chambers, 1 Metc. 565, distinguished, 653. Tobleman v. Roper, 7 P. C. L. J. 56, distinguished, 380. Tregambo v. Comanche M. & M. Co., 57 Cal. 501, distinguished, 280. Votan v. Reese, 20 Cal. 90, distinguished, 653. Walker v. United States, 4 Wall. 163, distinguished, 653. Zabriskie v. Torrey, 20 Cal, 173, distinguished, 653. CERTIFICATE. See NEW TRIAL, 1. CERTIFICATE OF PURCHASE. See PATENT, 2; TIDE LAND, 1 CERTIORARI. 1. CERTIORARI VACANCY IN OFFICE OF SUPERVISORS -APPOINTMENT BY SUPERIOR JUDGE. Certiorari to review an order of the defendants (under Pol. C. 4026) appointing a person to fill a vacancy in the office of Supervisor. Held: The order was not an exercise of a judicial function within the meaning of § 1068 C. C. P.- Myers v. Hamilton, 289. 2. AFFIDAVIT UPON APPLICATION FOR WRIT OF CERTIORARI PETITION.- The affidavit upon an application for a writ of certiorari stated in effect that judgment had been rendered in a Superior Court against the plaintiff for the sum of one hundred dollars and eighty cents for goods sold, etc., and that the said judgment is in excess of the jurisdiction of the said Court. Held: It does not appear from the petition, that the Court had not jurisdiction. The action may have been commenced in a Justice's Court, and appealed to the Superior Court.— Cunningham v. Superior Court, 576. See JURISDICTION, 2, 3, 8. |