not deny the averment, it is an admission of the fact for the purposes of the
trial, and the marriage need not be proved. Fox v. Fox,
587.
See LANDLORD and Tenant, 2, 3; COMPLAINT, 1; SUPERVISORS, 3; NEW TRIAL, 7;
TAXES, 9, 12, 13; FINDINGS OF FACT, 2; ESTOPPEL, 4, 5.
1. ENTRY ON A PORTION OF A TRACT OF LAND UNDER A DEED DESCRIBING ALL-
One who enters into actual possession of a portion of a tract of land,
claiming the whole, under a deed in which the entire tract is described by
metes and bounds, is not limited in his possession to his actual inclosure, but
acquires possession to the entire tract, if it was not in the adverse possession
of any other person at the time of the entry. Hicks v. Coleman et al. 130.
2. SAME. The rule in such cases is not limited to small tracts of land, such as
are usually occupied and cultivated for farms. Id.
8. POSSESSION OF PERSONAL PROPERTY. An actual change of the possession of
personal property, as distinguished from that which by mere intendment of
law follows the transfer of title, is an open visible change, manifested by
such outward signs as render it evident that the possession of the vendor
has wholly ceased. Cahoon v. Marshall et al. 198.
4. POSSESSION OF LAND.- The possession of real property is of two kinds: the
one constructive, depending upon the title and the right to the actual
possession, and the other subsisting in the actual occupation. Id.
5. DELIVERY OF PERSONAL PROPERTY.- Where one purchases land and receives a
conveyance therefor, and at the same time buys personal property on the
land, the question whether the vendee had actual possession of the land is an
important one in determining whether there was an actual delivery of
possession of the personal property. Id.
See MINING CLAIMS, 1; LIMITATION, STATUTE OF, 3; ACTION, 8.
1. FAILURE TO FILE BRIEFS.- Where a cause is submitted on briefs to be filed in
a specified time, and no briefs are filed within the time, and the transcript
contains no assignment of errors, the judgment will be affirmed. Holm V.
Roach et al. 37.
2. ASSIGNMENT OF ERRORS.- An assignment of errors at common law was in the
nature of a pleading, to which there was a demurrer or joinder in error. It
did not constitute a part of the transcript, but was founded on it, and was
filed in the appellate Court after the transcript had been filed. Hutton v.
Reed et als. 483.
The term assignment of errors is not used in our Practice Act, nor is
it known in our practice in its common law sense. Id.
4. APPEAL ON JUDGMENT ROLL-When an appeal is taken on the judgment roll
alone, and no statement is made, a specification of grounds of error is not
required to be inserted in the transcript. But when the Court comes to
examine the case, and no brief or statement of points and authority has been
furnished by the appellant, as required by Rule XVII, the judgment will be
affirmed without examination. Id.
5. STATEMENT ON APPEAL.- A general specification in the statement of grounds
error relied on, such as insufficiency of the evidence to justify the verdict, the
verdict and judgment are against law, or error in law occurring at the trial,
is not sufficient; but the statement should specify the particular grounds of
error relied on; and annexed to the statement of the grounds of error relied
on by the appellant should be so much of the evidence as may be necessary
to explain the points specified, and no more. Id.
6. STATEMENT NOT SPECIFYING ERRORS RELIED ON.- A specification of the par-
ticular grounds of error is the essential element of a statement; the evidence
is the mere incident. On appeal from the judgment, if the transcript con-
tains a paper purporting to be a statement, which does not distinctly
specify the grounds of error relied on, and objection to its insufficiency in
this respect to constitute a statement is made at the proper time, such
paper will be disregarded, and only such errors as are disclosed by the
Judgment roll will be considered. Id.
7. STATEMENT ON MOTION FOR NEW TRIAL.-When the appeal is from an order
denying a new trial, and the statement does not contain the specific grounds
of error relied on, the order will be affirmed, or, on motion, the appeal will
be dismissed.
8. SAME.— If a paper purporting to be a statement on motion for a new trial
does not contain a specification of the particular grounds relied on, there is
no such statement as is required by section one hundred and ninety-five of the
Practice Act, and nothing on which the Court can act. Id.
9. WHAT STATEMENT SHOULD CONTAIN.—The statement made on appeal, or on
motion for new trial to be annexed to the judgment roll, should contain first
a clear specification of the particular grounds relied on by the appellant,
and then so much of the evidence, rulings of the Court, instructions, etc., as
may be necessary to explain the points relied on. Id.
10. RULE IX OF THE SUPREME COURT.- Rule IX of the Supreme Court is in har
mony with the three hundred and forty-sixth section of the Practice Act as
amended in 1864. Estate of Boyd, 512.
11. TRANSCRIPT ON APPEAL. Matter that does not tend in some degree to
illustrate the points made on appeal should be omitted in a transcript. Id.
12. CERTIFICATE TO TRANSCRIPT. The object of the rule allowing attorneys to
stipulate to the correctness of a transcript was to enable the attorney for
the appellant, with the consent of the opposite attorney, to make up the
record, and omit all useless and superfluous matter, and thereby save
expense and facilitate the examination, and hasten the decision of causes.
Id.
18. SERVICE OF TRANSCRIPT. The failure of the attorney for appellant to serve
a copy of the transcript upon the attorney for the respondent before or at
the time of filing, is not a ground for dismissing the appeal, if reasonable
diligence is used, but the respondent may object to a hearing at the first
term if service is not made in time for him to prepare for argument. Id.
14. SAME. When the appellant prints the transcript, service should be made
before or at the time of filing, and when sent to the Clerk to be printed, the
appellant should direct the Clerk to forward him copies as soon as printed
for service. Id.
15. STATEMENT ON APPEAL FROM PROBATE COURTS.- Section three hundred and
thirty-eight of the Practice Act, prescribing what statements on appeal shall
contain, applies to statements made on appeal from the Probate Courts. Id.
16. STATEMENT ON APPEAL FROM PROBATE COURT.-If a statement on appeal from
the Probate Court does not state specifically the particular errors or
grounds upon which the appellant intends to rely, and the appeal rests on
the statement alone, the appeal will be dismissed on motion of the respondent.
Id.
17. PRACTICE IN CASES ORIGINALLY COMMENCED IN THE SUPREME COURT. Where
a judgment is rendered in the Supreme Court, as a court of original juris
diction, on an application for a writ of mandate, an application for a re
hearing will not be entertained unless a motion for a new trial is made in
the manner prescribed by the Practice Act in cases arising in the District
Court. People v. Coon, 653.
Bee NEW TRIAL, 1, 2, 8, 4; STATEMENT, 1; APPEAL, 1, 8, 11, 12; FINDINGS OF
FACT, 1; EXCEPTIONS, 1.
Bee WATER RIGHTS, 1, 2; BOUNDARY LINES, 4.
PROBATE COURT.
Bee SURETIES, 1, 2, 3, 4.
PROHIBITION.
Bee CONSTITUTION, 1.
1. PROMISSORY NOTE.-A promissory note is neither an account, an unliquidated
demand, nor a thing in action not arising out of contract. Priest v. Bounds,
188.
See WITNESS, 1; MORTGAGE, 3, 4, 5, 6.
See CENTRAL PACIFIC RAILROAD COMPANY, 1, 2.
1. MOTION FOR NEW TRIAL- STAY OF PROCEEDINGS.— The pendency of a mo-
tion for a new trial does not operate as a stay of proceedings, so as to de.
prive the Court of the power of vacating an order appointing a receiver
made before the trial. Copper Hill Mining Company V. Spencer et al.
(No. 1,) 15.
2. RECEIVER — VACATING ORDER APPOINTING. The appointment of a receiver
rests in the sound discretion of the Court upon a view of all the facts;
one of which is, that the party asking the appointment should make out a
prima facie case; and after an ex parte appointment has been made, the
order may be vacated, either before or after the trial, upon a proper showing.
Id.
8. EFFECT OF MOTION FOR NEW TRIAL ON RECEIVER.— Where, pending an
action, a receiver has been appointed, and on the trial judgment of nonsult
is rendered against the party at whose instance the receiver was appointed.
a motion for a new trial suspends the operation of the judgment so as to
prevent it from operating as a discharge of the receiver, unless an order is
made, discharging the receiver. Id.
4. Lurvey v. Wells, Fargo & Co., 4 Cal. 106, commented on. Id.
1. AMENDMENT OF RECORDs of Court. Where an order has been made extending
the time allowed by statute to prepare a statement on motion for a new
trial, and the term has adjourned, the Court has no power at a subsequent
term to amend the order, so as to make it include a notice of intention to
move for a new trial, unless a motion to amend has been made at the term
during which the order was entered and continued, or unless the record dis-
closes that the entry does not correctly give what was the order of the Court.
De Castro v. Richardson et al. 49.
The power of a Court to amend the record after the adjournment of
a term only extends to the correction of a mere clerical error. Id.
1. POWERS OF DEPUTY RECORDER. The ninth section of said Act, enabling the
deputy to perform the duties of Recorder in case of a vacancy in the
office, or the absence or inability of the Recorder to perform his duties, is an
enlargement of and not an abridgment of the powers of the deputy. Muller
v. Boggs, 185.
2. COUNTY RECORDERS.- The powers conferred upon County Recorders by the
Act of March 26th, 1851, to take and certify acknowledgments of deeds, is an
incident of the office, and not personal to the incumbent. Id.
1. FINDINGS OF FACT BY A REFEREE.- Where a cause is tried by a referee, and
the testimony is conflicting, the Supreme Court will not disturb his findings
of fact. Muller v. Boggs, 179.
REHEARING.
Bee PRACTICE, 17.
REMITTITUR.
Bee WRIT OF ERROR, 5.
Bee LEASE, 1, 2, 3, 4, 5, 6; PLEADINGS, B
RENTS AND PROFITS.
Bee TENANT IN COMMON, 1, 2.
RESIGNATION OF OFFICE.
See OFFICE, 1, 2.
1. WHO SHERIFF MAY NOT DISPOSSESS ON WRIT OF RESTITUTION. A Sheriff has
no authority by virtue of a writ of restitution to remove from the premises
described in the writ persons who were not parties to the judgment on
which the writ was issued, and did not enter under defendant in the judg-
ment pending the sult. Tevis v. Ellis et al. 516.
1. RIGHT TO MAKE ROADS.- The State does not possess the exclusive authority to
construct a road over the public domain, or over any land within the State;
but any person who can procure from the landholder a right of way, may
construct and maintain a road. Bartram v. Central Turnpike Company, and
Bartram v. Ogilby et als. 284.
See FRANCHISE, 1, 2, 8; ROAD OVERSEERS, 1, 2, 3; EL DORADO COUNTY, 1.
1. LIABILITY OF COUNTY FOR DAMAGES.- A county is not liable for damages for
injuries sustained by individuals caused by a road overseer placing the abut-
ment of a bridge in the bed of a stream in such manner as to cause the
waters of the stream to flow out of their usual channel, and wash away land
or the Improvements thereon. Crowell v. Sonoma County, 313.
2. ROAD OVERSEER. The relation between a county and its road overseer bears
no resemblance to that of master and servant, nor to that of employer and
employé. Id.
8. LIABILITY FOR ACT OF ROAD OVERSEER.- If an abutment to a bridge is wrong-
fully built in the channel of a stream, the remedy, if any exists, is against
him by whom the injury was committed. Id.
SACRAMENTO.
Bee EL DORADO COUNTY, 1.
Bee CENTRAL PACIFIC RAILROAD CO. 1, 2: MUNICIPAL CORPORATIONS, 1, 8.
1. MINERAY LANDS.- Mineral lands are not excepted from the operation of the
grant of the sixteenth and thirty-sixth sections in each township, made to
California for school purposes by the Act of Congress of March 8, 1858.
Higgins v. Houghton, 253.
2. SIXTEENTH AND THIRTY-SIXTH SECTIONS.- By the Act of Congress granting
to California the sixteenth and thirty-sixth sections in each township, the
State became the owner of said sections, with the right reserved in the
General Government of locating the same; and as fast as townships are sur-
veyed and sectionized the State becomes the owner of said sections absolutely,
not only as to quantity but as to position also. Id.
8. SAME. The title of the State to sald sections does not depend in any manner
upon the action or non-action of the officers of the General Government, in
approving of selections or sales of the same made by the State. Id.
4. PATENTS FOR SIXTEENTH AND THIRTY-SIXTH SECTIONS.-The fact that sections
sixteen and thirty-six contain mines of the precious metals does not prevent
the State from selling the same and issuing patents therefor to the pur-
chaser. The State may, however, by the passage of laws to that effect, pro-
hibit the sale of such lands or the issuance of patents for the same. Id.
5. CERTIFICATES OF PURCHASE OF SCHOOL LANDS.- Persons who hold certificates
of purchase from the State for the sixteenth or thirty-sixth sections, or
portions thereof, hold the land as the State held it before the certificate was
Issued, subject to the right of miners to enter upon and work it for mining
purposes. Id.
6. PATENTS FOR SCHOOL LANDS.— Query: Does the patentee of the State, for any
part of the sixteenth or thirty-sixth sections, hold the same subject to the
right for miners to enter upon and work the same for mining purposes? Id.
See RESTITUTION, WRIT OF, 1; EXECUTION, 2, 8; SHERIFF'S SALES, 1, 2.
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