of law, change his occupation within an ordi- | the parties had disagreed.-Goldstein v. Nation-
nary accident insurance policy.-Jaques v. al Fire Ins. Co. of Hartford, Conn., 180 P.
Order of United Commercial Travelers of Amer-409.
ica, 180 P. 200.

Ordinarily a person does not change his oc-
cupation, within the meaning of an ordinary ac-
cident insurance policy, without both acts and
intention showing a purpose so to do.-Id.

Where insured under an accident policy,
whose ordinary occupation was that of a com-
mercial traveler, accepted temporary work as
a janitor in order to be at home, but intended
to go back to his own vocation, whether he had
changed his vocation held for the jury.-Id.

Preliminary negotiations looking to an amica-
ble settlement of a loss are not waiver of
policy provision requiring appraisal of loss, un-
less assured was misled to his injury, in which
event a waiver will be implied.-Id.

XVII. PAYMENT OR DISCHARGE,
CONTRIBUTION, AND SUB-

ROGATION.

(E) Nonpayment of Premiums or Assess-gence of a third person, the company becomes

ments.

606(1) (Or.) Where company pays loss up-
on property destroyed by fire through negli-
subrogated to the rights of insured to the ex-
tent of money paid under the policy.-North-
west Door Co. v. Lewis Inv. Co., 180 P. 495.
XVIII. ACTIONS ON POLICIES.

367(2) (Wash.) Under the life policy in
question, the first coupon attached to the policy
providing that it should be accepted in part
payment of second yearly premium, did not con-
tinue insurance in force where said premium
was not paid within the time stipulated.-Mil-612(1) (Wash.) A recovery upon an insur-
lar v. Western Union Life Ins. Co., 180 P. 488.
XIII. EXTENT OF LOSS AND LIABIL

ITY OF INSURER.

(B) Insurance of Property and Titles.

505 (Kan.) A provision in a fire insurance
policy covering wheat in the stack, requiring
the assured if fire occur to protect property
from further damage, held to apply to property
involved in the fire but not to unaffected stacks
remote from those consumed.-Kenney v. St.
Paul Fire & Marine Ins. Co., 180 P. 227.

(E) Accident and Health Insurance.
531 (Colo.) Where a mining superintendent
had ceased his temporary employment as tim-
berman with intention of resuming his usual
occupation, just prior to being killed by a snow-
slide on his way home, he was not engaged in
an occupation more hazardous, within a clause
of the policy reducing the amount of indemnity
if engaged in an occupation more hazardous.
Union Health & Accident Co. v. Anderson, 180
P. 81.

XIV. NOTICE AND PROOF OF LOSS.
556(1) (Cal.) Insurer's Pacific Coast super-
intendent, who had authority to look after in-
surer's interests generally, with power to issue
policies without consulting home office, and with
duty of looking into accidents where liability
was claimed against company, and through
whom policies were canceled and return of
premiums offered, had authority to waive condi-
tion of policy requiring written proofs of loss
by refusal to furnish blank forms and denial
of liability.-Wilkinson v. Standard Accident
Ins. Co. of Detroit, Mich., 180 P. 607.

ance policy is based on the contract, and per-
formance on part of the one complaining is
essential to his cause of action.-Goldstein v.
National Fire Ins. Co. of Hartford, Conn., 180
P. 409.

612(3) (Wash.) Insured, who refused to
submit question of amount of loss to arbitra-
that upon such refusal, in event of disagree-
tors under provision of the policy providing
ment, no action could be maintained on policy,
and who claimed total loss under Rem. Code
1915, § 6059-1052, making total destruction
of property conclusive presumption that
amount of policy was true value of property,
was barred from recovering on policy where
loss in fact was only partial.-Goldstein v. Na-
tional Fire Ins. Co. of Hartford, Conn., 180
p. 409.

634(1) (Cal.) Where warranty is not prom-
issory in character, and there is nothing to be
performed thereunder, it is unnecessary to al-
lege truth thereof; an averment of performance
being required only where insured has war-
ranted that he will do something.-Wilkinson v.
Standard Accident Ins. Co. of Detroit, Mich.,
180 P. 607.

646 (3) (Cal.App.) In view of Code Civ.
Proc. § 1981, insurer, seeking to avoid policy
upon ground that insured misrepresented cause
of her mother's death, has burden of proving
the falsity of such representation; the truth
thereof being presumed.-Mickschl v. National
Council of Knights and Ladies of Security, 180
P. 27.

646(7) (Cal.) In action on accident policy
involving the issue of whether insured commit-
ted suicide or was shot by accident, the pre-
sumption is against suicide and in favor of ac-
cident, in view of Code Civ. Proc. § 1963, subd.
1, providing that a person is presumed to be
Standard Accident Ins. Co. of Detroit, Mich.,
innocent of crime or wrong.-Wilkinson V.
180 P. 607.
lia-654(2) (Kan.) In an action on an accident
insurance policy, one defense to which was that
insured had changed his occupation without
notice to insurer, as required by the policy,
the acts and conduct of deceased, including his
verbal conduct prior to the accident, touching
his purpose and intention, held competent to
determine whether he had changed his occupa-
tion in fact.-Jaques v. Order of United Com-
de-mercial Travelers of America, 180 P. 200.

558(1) (Cal.) In view of Civ. Code, § 1440,
insurer waived condition of policy requiring
written proof of loss by refusing to furnish ben-
eficiary blank form of proofs and denying
bility upon policy and informing beneficiary
that it was useless for her to make proof of loss.
-Wilkinson v. Standard Accident Ins. Co. of
Detroit, Mich., 180 P. 607.

XV. ADJUSTMENT OF LOSS.
567 (Wash.) Provisions of fire policy call-
ing for appraisement of property partially
stroyed and the denial of a right to maintain
an action unless they are complied with are up-
held upon grounds of sound public policy, since
they tend to fair dealing and the prevention
of litigation.-Goldstein v. National Fire Ins.
Co. of Hartford, Conn., 180 P. 409.

665(3) (Cal.App.) Evidence held insufficient
to prove that insured's representation that her
mother had died from pneumonia was untrue.-
Mickschl v. National Council of Knights and
Ladies of Security, 180 P. 27.

665(4) (Kan.) Evidence that insured's agent
576(1) (Wash.) Insurer did not waive ap- had fraudulently withheld money and had ap-
praisal provision of policy by procuring serv-propriated it to his own use warranted recov-
ices of a builder to estimate loss and by ad-ery upon fidelity bond covering loss by agent's
vising insured to secure similar estimate, the fraud or dishonesty amounting to larceny or
men so employed not being appraisers, since embezzlement, and that agent had not been

For cases in Dec.Dig. & Am,Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

not strictly that required in prosecution for embezzlement would not defeat recovery.-Vilm Milling Co. v. Kansas Casualty & Surety Co., 180 P. 782.

665(5) (Kan.) In an action on an accident policy, where insured came to his death by falling down a stairway at his home, evidence held to support a verdict that he died of violent, external, and accidental means within the meaning of the policy.-Jaques v. Order of United Commercial Travelers of America, 180 P. 200.

665(6) (Cal.) In action on accident policy involving issue of whether insured was shot by accident or committed suicide, evidence held sufficient to sustain jury finding that death of insured was due to accident, and not to suicide. -Wilkinson v. Standard Accident Ins. Co. of Detroit, Mich., 180 P. 607.

668(1) (Or.) Evidence held sufficient to take to the jury the question whether insurance company paid any losses, so that they were entitled to be subrogated to insured's rights against defendant, a third person, through whose negligence the property was destroyed by fire. Northwest Door Co. v. Lewis Inv. Co., 180 P. 495.

668(11) (Kan.) In an action on an accident insurance policy, whether insured, who came to his death by falling down a stairway at his home, died of violent, external, and accidental means, or from disease, held, under the dence, for the jury.-Jaques v. Order of United Commercial Travelers of America, 180 P.

200.

XIX. REINSURANCE.

upon the ground that warranty of insured as to bodily conditions in application for reinstatement was false.-Valentine v. Head Camp, Pacific Jurisdiction, Woodmen of the World, 180 P. 2.

The rights of the parties became fixed upon death of insured, and retention by local camp clerk of defendant fraternal order of money paid by insured's wife upon attempted reinstatement, made a few days before insured's death, at which time the Head Camp had no knowledge of the payment, would not constitute a waiver or estoppel on the part of defendant to dispute effectiveness of reinstatement.-Id.

INTEREST.

See Courts, 169; Gas, 13; Mortgages,
608; Vendor and Purchaser, 17, 95,
101, 186, 187.

I. RIGHTS AND LIABILITES IN
GENERAL.

~19(1) (Okl.) Interest cannot be recovered
upon unliquidated damages, in view of Rev.
Laws 1910, § 2848, where it is necessary for a
judgment on verdict to be had in order to as-
certain the amount of same.-St. Paul Fire &
Marine Ins. Co. of St. Paul, Minn., v. Robison,
180 P. 702.
II. RATE.

evi-34 (Wash.) Where

corporation advanced money to its secretary, to be used in his private business, under his oral agreement to pay interest therefor, the money bore interest at the rate of 6 per cent., and not the rate fixed by 6250, providing that loans shall bear interest the oral agreement, under Rem. Code 1915, § at the rate of 6 per cent., where no different rate is agreed to in writing.-Connecticut Inv. Co. v. Yokom, 180 P. 926.

686 (Cal.App.) In an action by an insured upon a reinsurance contract covering liability for injuries, whereby the reinsurer agreed to settle the claims and losses of the original insurer, and which provided for the transfer of cash or securities by the original insurer to the37(2) (Okl.) A note, providing that if inreinsurer as a prerequisite condition, proof by plaintiff that such company had complied with its obligations under the contract was essential to recovery, in view of Civ. Code, $8 2646, 2649.-Grbavach v. Casualty Co. of America,

180 P. 835.

XX. MUTUAL BENEFIT INSURANCE.
(D) Forfeiture or Suspension.
755(2) (Cal.) In view of laws of defendant
mutual fraternal organization, held, that local
camp clerk was nothing more than a special
agent of defendant with defined powers known
to members, so that he could not waive any
requirements of the law of the organization or
by any act or course of conduct create an es
toppel against defendant.-Valentine v. Head
Camp, Pacific Jurisdiction, Woodmen of the
World, 180 P. 2.

terest is not paid at maturity note shall bear an increased rate from a time antedating maturity, creates a penalty, which, in view of Rev. Laws 1910, 88 974, 975, consists only of from maturity rate is properly charged and is the increased interest before maturity, and not a penalty.-Alliance Trust Co. v. Jackson, 180 P. 249.

INTERPLEADER.

See Appeal and Error, 1176.

I. RIGHT TO INTERPLEADER. (Kan.) Where plaintiffs, who had offered a reward for the apprehension of a criminal, alleged that they were threatened with litigation by different parties claiming the reentitled to receive it, and asked that defendward, that some one or more of defendants were fund which was paid into court, an action in ants be required to litigate their claims to the the nature of a bill of interpleader was proper.

756 (1) (Cal.) The local camp clerk having no power to waive requirements of law of defendant society as to time of payment of assess--Taft v. Hyatt, 180 P. 213. ments or consequences thereof, failure of insured to pay assessments as required operated ipso facto to remove him from good standing

INTOXICATING LIQUORS.

and suspend his benefit_certificate.-Valentine See Costs, 304; Criminal Law,
v. Head Camp, Pacific Jurisdiction, Woodmen
of the World, 180 P. 2.

202,

223, 304, 369, 419, 420, 681, 855, 878, 957, 1134, 1202; Easements, 1; Indictment and Information, 86, 110, 125, 137; Statutes, 352.

II. CONSTITUTIONALITY OF ACTS

AND ORDINANCES.

761 (Cal.) Statement in application for reinstatement in defendant fraternal organization, "I certify, warrant, and represent that I am in good sound bodily health," was one upon the literal truth or fulfillment of which validity of contract depended, and amounted to a war-17 (Kan.) The Bone Dry Law is a valid exranty, so that there was no effective reinstate- ercise of the state's police power, designed to ment where warranty was absolutely false.Valentine v. Head Camp, Pacific Jurisdiction, Woodmen of the World, 180 P. 2.

763 (Cal.) In view of limitations upon the powers of local camp clerk under laws of defendant fraternal organization, he could not by any course of conduct or possession of knowledge of insured's bodily health bind defendant in such manner as to estop it from defending

anti-liquor legislation, and offends neither state secure a more effectual enforcement of earlier nor federal Constitution.-State v. Macek, 180

P. 985.

VI. OFFENSES.

132 (Colo.) Violation of each one of the sections of the prohibition act of 1915 constitutes a distinct offense.-Noble v. People, 180 P. 562.

134 (Colo.) Laws 1915, p. 275, prohibiting | session 25 gallons of whisky made a prima facie the sale of, or keeping for sale, intoxicating liq- case that the liquor was kept for purposes of uors, includes intoxicating liquors of every kind unlawful sale or disposition.-State v. Bachtold, and character which are now in use, or which 180 P. 896. in the future may come into use as a beverage, 236(11) (Okl.Cr.App.) Evidence held insuffino matter by what name they may be named cient to sustain a conviction for the sale of inor called, and no matter how small a percentage toxicating liquors in violation of the prohibitof alcohol they may contain, and no matter ory liquor law-Hill v. State, 180 P. 717. what other ingredients may be in them.-Mc-236(11) (Okl.Cr.App.) Uncontradicted testiLean v. People, 180 P. 676. mony that defendant, while operating a rooming house, told guests that he would have some whisky the following day, which he would retail, and that guest, given a marked bill by police, gave it to defendant and received a bottle of whisky and his change, and that whisky was found in the house, warranted a conviction of an unlawful sale.-Holden v. State, 180 P. 969. in possession an excess quantity of whisky for illegal disposition in violation of Rem. Code 1915, § 6262-22, evidence held sufficient to raise a question for the jury.-State v. Bachtold, 180 P. 896.

138 (Colo.) Under Prohibition Act 1915, § 10, intrastate carriage of one gallon liquor purchased and had in the state before the act went into effect, for his own private use, is not a shipment or delivery in violation of that act, the packages referred to in such section being the same as in the preceding sections, the word "package" meaning a shipping package as ordi-238 (4) (Wash.) In a prosecution for having narily understood in the commercial world, and to "ship" and "deliver" meaning change of custody.-Noble v. People, 180 P. 562.

VIII. CRIMINAL PROSECUTIONS.

235 (Colo.) In a prosecution for violating the prohibition law by selling Jamaica ginger, evidence that he sold the liquor as medicine in good faith was properly excluded, where defendant had made no attempt to comply with the provisions of Const. art. 22, or the ute regulating the handling of intoxicating liquor for medicinal purposes.-McLean v. People, 180 P. 676.

231 (Colo.) In a prosecution for violating 239(3) (Colo.) In a prosecution for violating the prohibition law by selling Jamaica ginger, the prohibition law by the sale of Jamaica ginany evidence as to its nature and constituent ger, it was not error to refuse an instruction elements, its ordinary use, its susceptibility to that the people must prove beyond a reasonable use as an intoxicant, and the extent of such doubt that a sale was made of intoxicating liquse, is admissible to determine whether the liquor either by defendant personally or by his uor sold is intoxicating or not.-McLean v. edge and consent, in view of Laws 1915, p. 285, agent under his instructions with his full knowlPeople, 180 P. 676. 8 22, providing that any person whose employé or agent shall violate any of the provisions of the act shall be deemed guilty of a misdemeanor; it being conceded that defendant made sales himself and authorized his clerk to sell the liqstat-239(5) (Colo.) In a prosecution for violatuor.-McLean v. People, 180 P. 676. ing the prohibition law by selling Jamaica ginger, instructions to find for defendant if the compound sold be such that its use as a bev erage is undesirable or practically impossible by reason of other ingredients and the liquor is used merely as a vehicle for, or preservation of, other ingredients and to hold them in solution, although its use may produce intoxication, named in the United States dispensatory, was or if it is a standard or medical preparation properly refused.-McLean v. People, 180 P.

236(1) (Okl.Cr.App.) Evidence, though conflicting and somewhat circumstantial, held sufficient to reasonably support a conviction for a second violation of prohibitory liquor laws. Browder v. State, 180 P. 570.

236(1) (Okl.Cr.App.) Evidence, in a prosecution for unlawfully conveying intoxicating liquors, held sufficient to sustain conviction.-Ross v. State, 180 P. 573.

236(1) (Okl.Cr.App.) Evidence held insufficient to sustain a conviction for unlawful transporting of intoxicating liquor.-Carrico v. State, 180 P. 870.

676.

XII. RIGHTS OF PROPERTY AND
CONTRACTS.

236(5) (Okl.Cr.App.) Evidence held to sus-327(1) (Wash.) Despite statute prohibiting tain a conviction for having possession of intoxi-interest of wholesale liquor dealer in a saloon cating liquors with intent to violate the prohibitory liquor law.-Stubblefield v. State, 180

P. 251.

236(5) (Okl.Cr.App.) Evidence held sufficient to support a conviction for the unlawful possession of intoxicating liquors with intent to violate the prohibitory liquor law.-Stubblefield v. State, 180 P. 252.

236(5) (Okl.Cr.App.) Where there was evidence that liquor in unlawful quantities was found on premises searched by officers, and defendant admitted that premises and liquor seized were his, and made no defense to prosecution for its unlawful possession, a conviction would not be disturbed for want of sufficient proof of the corpus delicti.-High v. State, 180 P. 572.

business, such a dealer or brewer may be concerned with a saloon business in a legitimate financial transaction by way of loan, mortgage, and lease; there being no direct or indirect payment of the license fee of the retail saloon business.-Greene v. Atwood, 180 P. 399.

Where part of money loaned by wholesale liquor dealer or brewer to a saloon business is illegally applied in payment of a retail liquor license, the courts will recognize the divisibility of the loan into its legal and illegal parts.-Id.

JAMAICA GINGER.

See Criminal Law, 304, 369, 419, 420, 855;
Intoxicating Liquors, 231, 235, 239.

JEOPARDY.

236(7) (Okl.Cr.App.) Evidence held sufficient to sustain a conviction of each of three See Criminal Law, 186-202. defendants for having unlawful possession of intoxicating liquor with intent to sell it.-Proctor v. State, 180 P. 251.

236(7) (Okl.Cr.App.) Evidence held sufficient to sustain a conviction for having possession of intoxicating liquor with intent to sell it. -Pate v. State, 180 P. 559.

JOINT ADVENTURES.

See Attorney and Client, 151.

JOINT TENANCY.

236(7) (Okl.Cr.App.) Evidence, in a prose- See Tenancy in Common. cution for the possession of intoxicating liquors with intent to sell it, held sufficient to sustain

a conviction.-Morris v. State, 180 P. 561.

JUDGES.

236(7) (Wash.) Under Rem. Code 1915, § See Appeal and Error,

634; Courts,

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

Jury, damus, Trial,

39; Justices of the Peace; Man-
44; Mortgages, 528; New
114; Witnesses, 305.

III. RIGHTS, POWERS, DUTIES, AND
LIABILITIES.

22(7) (Ariz.) The specific provisions of Const. art. 6, § 24, that no judge's salary shall be reduced during the term of office for which he was elected, cannot be construed to prevail over the general provisions of article 4, pt. 2, $17, forbidding the compensation of any public officer to be increased or diminished during his term of office, so as to authorize a legislative enactment increasing the salary of a su perior judge during his term of office, under the rule that specific provisions prevail over general terms or expressions-Greenlee County Laine, 180 P. 151. V.

Merely because Const. art. 6, § 24, only for bids a reduction of a judge's salary, it does not impliedly authorize an increase thereof, in view of article 4, pt. 2, § 17, forbidding compensation of any public officer to be increased or diminished during his term of office.-Id.

Const. art. 4, pt. 2, § 17, forbidding the compensation of any public officer to be increased or diminished during his term of office, does not except judges by implication, in view of the Constitution as a whole.-Id.

Const. art. 4, pt. 2, § 17. forbidding the compensation of any public officer to be increased or diminished during his term of office, is a constitutional declaration of policy that public officers' compensation, when once fixed, should be inviolate, at least during the term for which the officer was elected.-Id.

Judgment

such an appearance by defendants as amounted to a submission of the cause to the presiding judge, precluding defendants from moving for change of judge for prejudice, pursuant to Rem. Code 1915, §§ 209-1, 209-2.-State v. Superior Court of Lewis County, 180 P. 481.

Filing of second motion in support of affidavit' for change of judges, pursuant to Rem. Code 1915, §§ 209-1, 209-2, on the ground of prejudice of the presiding judge, was not a waiver of the first motion.-Id.

I. NATURE AND ESSENTIALS IN
GENERAL.

18(2) (Cal.) Failure of complaint to state facts sufficient to constitute a cause of action does not render a judgment void.-Gillespie v. Fender. 180 P. 332.

18(2) (Or.) Complaint in suit against county on claim arising out of contract, where lacking in material and essential allegation that claim had been presented to county auditor as required by L. O. L. §§ 3048, 3049, 3052, wil! not support judgment for claimant.-Bridges v. Multnomah County. 180 P. 505.

23 (Cal.App.) Findings and conclusions of law do not constitute a judgment.-San Diego Inv. Co. v. Crane, 180 P. 837.

II. BY CONFESSION.

Laws 1917, c. 61, increasing the salary of superior judges, is not unconstitutional, when applied to officers elected after its passage.-Id. 25(2) (N.M.) Where the Chief Justice of the Supreme Court, under Const. art. 6, § 15,30 (N.M.) The cognovit statute (Code designated a district judge other than regular presiding judge of any given district to preside over trial of a particular case, his jurisdiction thereof is exclusive and continuous until cause is disposed of or his designation is rescinded.-State v. Towndrow, 180 P. 282.

IV. DISQUALIFICATION TO ACT. 40 (Wash.) Though Rem. Code 1915, $$ 209-1, 209-2, providing for change of judges, has been and will continue to be abused, it is a remedial statute, and must be liberally construed.-State v. Superior Court of Lewis County, 180 P. 481.

1915, $$ 3071-3078), does not cover the same field as that occupied by the common-law practice of taking judgments upon warrant of attorney, and does not impliedly or otherwise abrogate such practice.-First Nat. Bank v. Baker, 180 P. 291.

43 (N.M.) A warrant of attorney given as secruity to a creditor and accompanying a note fession of judgment in any court of competent confers a valid power, and authorizes a conjurisdiction in an action on note.-First Nat. Bank v. Baker, 180 P. 291.

of attorney, after filing of verified waiver of Practice of taking judgments upon warrant sion of judgment, is not against any public issuance and service of summons and confespolicy of state as declared by its laws.-İd.

IV. BY DEFAULT.

51(1) (Wash.) Rem. Code 1915, §§ 209-1, 209-2, providing for change of judges in the event of prejudice, contemplates that the affidavit of prejudice may be by the attorney or by the party, whoever has knowledge of the fact, or is willing to affirm a belief that a fair and impartial trial cannot be had before the pre-128(3) (Cal.App.) In a suit to set aside a siding judge.-State v. Superior Court of Lewis County, 180 P. 481.

Filing of second motion in support of affidavit for change of judges, pursuant to Rem. Code 1915, §§ 209-1, 209-2, on the ground of prejudice of the presiding judge, was not a waiver of the first motion, and the second motion can be considered; if the first motion was well taken it should have been granted, and, if not, it was abortive and had no effect.-Id.

51(3) (Wash.) Under Rem. Code 1915, $$ 209-1, 209-2, providing for change of judges for prejudice, an affirmation of prejudice on the part of the presiding judge, made only on an affiant's information and belief, is sufficient. -State v. Superior Court of Lewis County, 180 P. 481.

51(4) (Wash.) An order for change of judges, entered without notice, was properly vacated on motion.-State v. Superior Court of Lewis County, 180 P. 481.

53 (Wash.) Filing of motion to make the complaint more definite and certain was not

(A) Requisites and Validity.

judgment in a justice court action, on the ground of failure of the return of service of summons to show service on each of defendants, a complaint which failed to aver that plaintiffs in the equity suit had a good defense on the merits was demurrable.-Celiano v. Giordanengo, 180 P. 543.

(B) Opening or Setting Aside Default.

151 (Kan.) The statute (Gen. St. 1915, § 6974, Code Civ. Proc. § 83) does not require that an application to open a default judgment be verified.-Wyatt v. Collins, 180 P. 992.

tion to open a judgment in a suit to quiet title, 161 (Kan.) An answer filed with an applicawhich expressly denies the facts pleaded in the petition, is a "full answer," within Code Civ. Proc. § 83 (Gen. St. 1915, § 6974), relating to opening of defaults.-Wyatt v. Collins, 180 P. 789.

Civ. Proc. § 83) providing that an applicant to 162(3) (Kan.) Gen. St. 1915, § 6974 (Code open a default judg nent shall make it clear

CATION.

to the court's satisfaction by affidavit that dur- | XIV. CONCLUSIVENESS OF ADJUDIing the pendency of the action he had no actual notice, etc., may be complied with by oral testimony in open court.-Wyatt v. Collins, 180 P. 992.

176 (Kan.) After a default judgment has been opened up under Code Civ. Proc. § 83 (Gen. St. 1915, § 6974), it is within court's discretion to permit an amended answer to be filed.-Wyatt

v. Collins. 180 P. 789.

176 (Kan.) Where a default judgment had been opened at the instance of parties who have a valid defense, Gen. St. 1915, § 6974 (Code Civ. Proc. § 83), relating to procedure, should receive a liberal construction.-Wyatt v. Collins, 180 P. 992.

VI. ON TRIAL OF ISSUES.

(B) Parties.

243 (Mont.) In action against several defendants, where one defendant was not served and did not appear, court cannot enter judgment in favor of such defendant.-McIntyre v. Northern Pac. Ry. Co., 180 P. 971.

(C)_Conformity to Process, Pleadings, Proofs, and Verdict or Findings.

251(1) (Cal.App.) In an action for money had and received, where the answer admitted the receipt of the money and set up affirmative matters in defense, the judgment based upon findings adverse to the defendant as to the affirmative matters is a judgment upon a cause of action set forth in the complaint, and not upon one which appears for the first time in the answer.-Ruperd v. Hunter, 180 P. 638.

X. EQUITABLE RELIEF.

(A) Nature of Remedy and Grounds. 403 (Cal.App.) Where an equitable suit is brought to set aside a judgment at law, the judgment is not res adjudicata on the issues, since, while it is not a direct attack on the judgment, neither is it collateral, but is an indirect attack.-Patterson v. Almond City Land & Development Co., 180 P. 823.

(B) Jurisdiction and Proceedings. 460(1) (Okl.) In action to vacate a judgment for fraud practiced by plaintiff in obtaining it, the petition must set forth the judgment complained of.-First State Bank of Indiahoma v. Carr, 180 P. 856.

460(6) (Okl.) A petition under Rev. Laws 1910, §§ 5267, 5269, to vacate a judgment on ground of fraud which sets up only a general denial by way of defense and does not state facts constituting it, is fatally defective.-First State Bank of Indiahoma v. Carr, 180 P. 856.

(B) Persons Concluded.

712 (Colo.) Where defendant in a foreclosure suit by bondholders filed a cross-complaint setting up a judgment in another court, establishing his title to certain of the bonds, such judgment was at least prima facie evidence of his title, and even if not conclusive on the bondholders because they were not parties thereto, they could not deny its effect after final decree in the foreclosure suit, where they failed in the latter suit to question the judgment so interposed.-Kenyon v. Behrens, 180 P. 681.

(C) Matters Concluded.

743(2) (Cal.App.) Judgment decreeing validity of husband's conveyance to wife is conclusive as to validity of conveyance upon wife's subsequent action to restrain sheriff from levying execution upon the land to satisfy a judgment against husband entered subsequent to the conveyance.-Murphy v. Riecks, 180 P. 15. (D) Judgments in Particular Classes of Actions and Proceedings.

747(2) (Wash.) Adjudication in partition proceedings that cotenant in possession of property is not entitled to reimbursement from other cotenants for payment of mortgage on common property is conclusive in other cotenant's subsequent action against cotenant in possession.-Womach v. Sandygren, 180 P. 922.

XV. LIEN.

773 (Cal.App.) Where judgment directed defendant to pay plaintiff specified amount per month until specified date, and subsequent to such date another hearing was had, and a judgment entered directing defendant to pay plaintiff a specified sum per month from such date, the two judgments were entirely distinct from each other, and latter judgment did not become a lien upon property conveyed by defendant prior to its entry, but subsequent to entry of first judgment.-Murphy v. Riecks, 180 P. 15.

780(1) (Okl.) The judgment lien contemplated by Rev. Laws 1910, § 5148, is a lien only on the actual interest of the judgment debtor, whatever that may be.-Guaranty State Bank of Okmulgee v. Pratt, 180 P. 376.

780 (5) (Okl.) The lien of a judgment does not attach to the mere legal title to land standing in the name of the judgment debtor when the equitable estate is in another.-Guaranty State Bank of Okmulgee v. Pratt, 180 P. 376.

A transitory seisin of lands by a judgment debtor in trust for another will not subject them to the lien of the judgment.-Id.

XX. PAYMENT, SATISFACTION,
MERGER, AND DISCHARGE.

460(8) (Okl.) In action to vacate a judgment for fraud practiced by plaintiff in obtaining it, the petition must be verified by affidavit.-First 890 (Wash.) Where plaintiff loaned money State Bank of Indiahoma v. Carr, 180 P. 856. to defendant, taking a deed to land subject to a contract to convey to a third person upon payXIII. MERGER AND BAR OF CAUSES ment by said person of an amount equal to the OF ACTION AND DEFENSES. sum loaned defendant, and on default of defend(B) Causes of Action and Defenses Merg-ant obtained a judgment against him for such ed, Barred, or Concluded. amount and foreclosed the land contract and 590(4) (Wash.) Partition bought at the sale, bidding an amount equal to court refused to require cotenant in possession the judgment against defendant, the judgment was thereby satisfied.-Magnoni v. Bono, 180 P. of land to turn over to receiver rents prior to 888. year in which action was brought, does not pre-896 (Okl.) In judgment debtor's action to clude subsequent action by other cotenants to recover from cotenant in possession the rents for the years prior to such year.-Womach v. Sandygren, 180 P. 922.

action, where

recover damages for judgment creditor's failure to acknowledge satisfaction of judgment, it is a competent defense to show a controversy as to whether judgment had been fully paid.-First State Bank of Indiahoma v. Carr, 180 P. 856. XXII. PLEADING AND EVIDENCE OF JUDGMENT AS ESTOPPEL OR DEFENSE.

619 (Or.) One who sued for the partition of real property under L. O. L. §§ 435, 436, 440, 441, his pleadings being silent as to rents, issues, and profits, cannot complain, in a subsequent action by the defendant for rents, issues, and profits, that the plaintiff should have set up such matter in his answer in the parti-949(2) (Colo.) In pleading a judgment of a