« ΠροηγούμενηΣυνέχεια »
APPEAL AND ERROR-continued.
2. Where this court, under a misapprehension of the lower court's ruling.
granted a special appeal, and thereafter reversed the decree appealed
from, and it was shown on a motion by the appellee for a rehearing
that the decision of the lower court was in effect in harmony with
the decision of this court, the appeal was dismissed. Taylor v.
3. A reversal will be directed unless it appears beyond doubt that the error
complained of did not, and could not, have prejudiced the rights of
the parties. Traver v. Smolik, 150.
4. Where there is no bill of exceptions in the record on appeal, the appel-
late court will assume that the evidence adduced on the trial was
sufficient to justify the lower court in making the order or decree
from which the appeal was taken. Fletcher v. Fletcher, 180.
5. Where this court reversed an order denying a motion for restitution of
property taken under an erroneous judgment, and remanded the
cause, with direction to grant the order of restitution as moved by
the appellant, and thereafter, on motion of the appellee to have the
mandate recalled, it appeared that the motion for restitution in-
cluded certain accrued payments of rent on deposit in the registry
of the court, the motion to recall the mandate was denied, but the
mandate was so amended as to apply only to the restitution of the
property, leaving the fund in question subject to the order of
the court below. (Citing Warder v. Newburgh, 40 App. D. C. 385.)
Wilson v. Newburgh, 202.
6. Where, on an appeal from a decree passed on the pleadings and the evi-
dence, the statement of the evidence has been stricken from the
transcript of the record by this court on motion of the appellee, as
not having been presented to the court below within the time pre-
scribed by the rules of that court, the decree will be affirmed, as
there is nothing left in the record but the pleadings and the decree
appealed from. Hines v. Hines (2) 280.
7. On a trademark appeal, where, at the instance of the appellee, papers
omitted from the transcript of the record were brought to this
court by means of the writ of certiorari, and on the hearing of the
appeal on the merits, the court found that the papers were un-
necessary to a decision of the appeal, the costs of the writ of
certiorari and the printing resulting therefrom were ordered to be
taxed against the appellee, although the decision appealed from
was affirmed. Van Alstyne & Co. v. Boutwell M. & G. Co. 530.
8. Where, in an action of libel, the jury returned a verdict for the plain-
tiff for $6,000, assessing $5,000 as compensatory and $1,000 as puni-
tive damages, and this court found that the lower court erred in
permitting the jury to award punitive damages, the judgment was
APPEAL AND ERROR-continued.
reversed unless the plaintiff should remit $1,000, in which event it
was modified to that extent and affirmed, each party to pay his
own costs in this court. A. S. Abell Co. v. Ingham, 582.
ARGUMENT TO JURY. See CRIMINAL LAW, 5; TRIAL, 3.
ARMY AND NAVY.
1. The proviso of the act of Congress of August 23, 1912 (37 Stat. at
L. 360, chap. 350), to the effect that in the event of a reduction
being made in the force of any of the executive departments in
the District of Columbia, no honorably discharged soldier or sailor
whose record is rated good shall be discharged or dropped or re-
duced in rank or salary, is ineffective until the system of efficiency
ratings which the act requires the Civil Service Commission to
establish with the approval of the President has been put into effect:
so that mandamus will not lie to compel the Secretary of the Navy
and the Commandant of the Navy Yard at Washington to reinstate
a former employee of the Navy Yard, who is an honorably dis-
charged soldier, and who has been discharged for lack of work,
where it appears that such system of efficiency ratings has never
been established. Persing v. Daniels, 470.
2. Quare, whether the Navy Yard at Washington is part of the executive
department of the Navy within the meaning of the act of Congress
of August 23, 1912, requiring the Civil Service Commission, sub-
ject to the approval of the President, to establish a system of effì-
ciency ratings for the classified service in the several executive de-
partments in the District of Columbia. Id.
3. This case is governed by the decision of the court in the case of Persing
v. Daniels, ante, 470. Dean v. Burleson, 475.
ARREST. See FALSE IMPRISONMENT; MALICIOUS PROSECUTION.
ASSAULT AND BATTERY. See DAMAGES, 1; EVIDENCE, 3, 5.
An action to recover damages for an alleged assault, by a former servant
against her mistress, will not lie where the defendant locked the
plaintiff in a room in an apartment which they occupied, and de-
clined to give the plaintiff any explanation of her act in so doing,
but thereafter unlocked the door and released the plaintiff, and
where there was no threat of violence on the part of the defendant,
and no manifestation of intent to use violence; although the plain-
tiff became so distressed and humiliated as the result of the act
ASSAULT AND BATTERY-continued.
of the defendant that she became nervous and unable to sleep. Pat-
terson v. Pillans, 505.
ASSESSMENT FOR TAXATION. See TAXATION,
ASSUMPSIT. See PLEADING, 5.
ASSUMPTION OF RISK. See MASTER AND SERVANT.
ATTACHMENT. See GARNISHMENT.
1. Costs of suit and interest which may accrue on the plaintiff's claim dur-
ing litigation are not to be considered in fixing the amount of a
bond in an attachment proceeding before judgment instituted by the
plaintiff. If the plaintiff's claim, irrespective of costs and interest
to accrue, is less than one half of the penalty of the bond, the bond
is sufficient. (Construing sec. 445, D. C. Code, 31 Stat. at L. 1258,
chap. 854, requiring such a bond to be in double the amount of the
plaintiff's claim.) Rhodes v. Bowling G. W. S. Co. 298.
2. A motion by the surety on an undertaking given by the defendant under
sec. 454, D. C. Code (31 Stat. at L. 1261, chap. 854), to secure the
release of attached property, and by the terms of which the surety,
submits to the jurisdiction of the court and agrees to perform the
judgment of the court in relation to the property, to quash the at-
tachment on the ground that the affidavits therefor were defective,
in that they failed to state, as required by sec. 445, D. C. Code (31
Stat. at L. 1258, chap. 854), that the defendant had "estate or
debts owing to said defendant in said District," is properly over-
ruled. Such an undertaking has the effect of dissolving the attach-
ment, and the surety is thereafter estopped, except upon a showing
of fraud, to set up mere irregularities in the attachment. (Citing
United States Surety Co. v. American Fruit Product Co. 40 App.
D. C. 239.) National Surety Co. v. Poates, 334.
3. In entering a judgment against the principal and surety on an under-
taking given by the defendant under sec. 454, D. C. Code, to secure
the release of attached property, it is not necessary to provide in
the judgment that it should be released in event of the delivery
by the principal or surety to the marshal of the property attached
within a prescribed time. (Citing United States Surety Co. v.
American Fruit Product Co. supra.) Id.
ATTORNEY AND CLIENT. See ATTORNEYS' FEES.
1. A contract whereby a client agrees to pay his attorney a retaining fee
and a "further fee of 15 per cent upon the amount recovered" does
ATTORNEY AND CLIENT-continued.
not amount to an appropriation of the fund by the client to the
extent of the percentage specified, so as to give the attorney an
equitable lien upon the fund when recovered, but merely establishes
the amount which the attorney is entitled to receive from the client
upon the settlement of the claim. (Following Thurston v. Bullowa,
42 App. D. C. 18.) Taylor v. Wharton, 104.
2. In the absence of express notice to the contrary, court officials and per-
sons connected, either directly or indirectly, with the progress of
litigation, may safely regard themselves as dealing with the attorney
instead of with the client; and this rule applies not only to obli
gations incurred by the attorney for actual costs attending the liti
gation, but to the necessary expenses of attorneys, including the
printing of briefs, which are not taxed as costs. Judd & Detweiler,
Inc. v. Gittings, 304.
3. An action is maintainable by printers against attorneys for the price
of printing briefs in two cases in which the attorneys were counsel,
where it appears that one set of the briefs was for use in a case
pending in this jurisdiction, and the other set in a case pending in
another jurisdiction; that for a number of years similar transac-
tions had been had between the parties, and in all instances it had
been the custom of the plaintiffs to render their bill to the defend-
ants, made out in their name, and for which in each instance they
received in payment the check of the defendants, and that the de-
fendants did not dispute the plaintiffs' account, or liability there
for, until suit was brought thereon, which was about eighteen
months after it was rendered. Id.
4. In an action by printers against attorneys to recover the price of print-
ing briefs in two cases in which the defendants were counsel, the
rules of court have little, if any, bearing upon the question of wheth-
er the plaintiffs had legal notice as to the filing and distribution of
briefs in pending cases, especially where one set of the briefs in ques
tion was for use in a court in another jurisdiction. (Distinguishing
District of Columbia v. Roth, 18 App. D. C. 547.)
ATTORNEYS' FEES. See CONTRACTS, 2-4; PARTNERSHIP, 1.
AUTOMOBILES. See PUBLIC UTILITIES.
AUTOPSY AS EVIDENCE. See PHYSICIANS AND SURGEONS, 2
BAIL BONDS. See CRIMINAL LAW, 2.
1. A trustee in bankruptcy takes the property of the bankrupt, in a case
unaffected by fraud, in the same plight and condition as the bank-
rupt held it, subject to all of the equities impressed upon it in the
hands of the bankrupt. Lyttle v. National Surety Co. 136.
2. Where a fund is in an equity court, and an issue is made as to its owner-
ship, between a surety company asserting a lien against it and a
trustee in bankruptcy, the court will adjudicate the issue with re-
gard to the bankruptcy act and the rights of the respective parties
under it, and to that end protect the estate of the bankrupt. Id.
3. Where, as the result of a suit by a surety company which as surety on
a government contractor's bond had completed, at a loss, a public
building, the United States paid over to a receiver appointed by the
court the balance due from the United States on the contract, and
thereafter a trustee in bankruptcy of the contractor intervenes and
claims that as such trustee he is entitled to the fund, and it is ad-
mitted by the trustee that the surety company's lien on the fund is a
valid one, and also that the surety company is entitled to be subro-
gated to the rights of the United States in respect to the security
of the fund, the fund will not be turned over to the trustee for ad-
ministration in the bankruptcy court, but will be awarded to the
surety company to the extent of its lien. Id.
BATTERY. See ASSAULT AND BATTERY,
BEQUESTS VOID FOR UNCERTAINTY. See WILLS, 3.
BILL OF EXCEPTIONS. See EXCEPTIONS, BILL of.
BILL OF PARTICULARS. See PLEADING, 2-7
BILL OF REVIEW. See EQUITY, 1.
BILLS AND NOTES.
1. Where a promissory note was procured from the maker by the payee
by fraud and deception, nothing short of guilty knowledge of the
fraud or deception on the part of a subsequent indorsee for value
will defeat his right to recover upon it. Mere suspicion or knowl-
edge of circumstances that might excite suspicion, or even gross
negligence, is not sufficient. (Following Hutchins v. Langley, 27
App. D. C. 234.) Hazen v. Van Senden, 161.
2. Statements in an affidavit of defense in an action by the last indorsee
of a promissory note against the maker, that "I am informed and
believe and expect to prove at the trial, that the plaintiff became