APPEAL (Continued). thereof for a period of time, is a proper exercise of such legislative power.-People v. Jackson, 257. 14. CODE AMENDMENT ISSUANCE OF WRITS POWER OF SUPREME COURT UNAFFECTED.-The amendment of section 949 of the Code of Civil Procedure excepting from a stay of execution by an appeal a judgment declaring a building to be a nuisance is not an impairment of the power of the supreme court given by section 4 of article VI of the constitution to issue all writs and process necessary to the exercise of its appellate jurisdiction, since the execution of a judgment does not deprive the court of its jurisdiction to determine the correctness of the judgment on appeal, and the court has authority under the constitution to issue a writ of supersedeas whenever it is essential to preserve the rights of the parties pending the appeal.-Id. 15. EFFECT OF CODE AMENDMENTS.-The amendment of section 941 of the Code of Civil Procedure in 1921, which prior thereto provided for the giving of undertakings on appeal, did not have the effect of rendering section 949 of such code unintelligible, since the effect of the repeal of section 941b and the amendments of sections 940 and 941 was to make the filing of a notice with the clerk effective to take an appeal in all cases and to give to section 949 the meaning that the perfecting of an appeal without a bond is sufficient to stay execution of a judgment except when a special bond is required under sections 942, 943, 944 or 945, from which it follows that an appeal, with or without a bond, does not stay execution of a judgment in an action to have a building declared to be a nuisance and closed for a period of time.-Id. 16. SUPERSEDEAS-ISSUANCE OF WRIT.-A writ of supersedeas does not issue of right, but only when in the judgment of the court it is necessary to protect the rights of the parties on appeal, and it will not be granted where there has been an unreasonable delay in taking an appeal or where the appeal is merely for the purpose of delay. Id. 17. STAY OF EXECUTION ABATEMENT OF NUISANCE - ATTITUDE OF SUPREME COURT.-The legislature by the amendment of section 949 of the Code of Civil Procedure has indicated that there should be no stay of an action to abate a building as a nuisance, and the supreme court should not lend its aid to the continuance of such nuisance in the absence of some showing of merit in the appeal or of diligence in its prosecution.--Id. 18. POINTS NOT RAISED CONSIDERATION BY COURT.-Although it is true an appellant should state in his opening brief the points upon which he relies and that matters first raised in a reply brief may be disregarded, the supreme court is undoubtedly at liberty to decide a case upon any points that its proper disposition may APPEAL (Continued). seem to require, whether taken by counsel or not.-Burns v. Ross, 269. 19. ORDER SUSTAINING OBJECTION TO TESTIMONY - DISMISSAL.-No appeal lies from an order sustaining an objection to the taking of any testimony in a cause on the ground that the complaint does not state a cause of action, since the order is not one mentioned among the interlocutory orders which section 963 of the Code of Civil Procedure makes the subject of appeal, but it may be reviewed upon appeal from the judgment as an intermediate order which necessarily affects the judgment.-Dabney v. Wilhelm, 340. 20. APPOINTMENT OF RECEIVER AUTHORITY TO SUE-DENIAL OF MoTION TO VACATE ORDERS - APPEALABLE ORDERS.-In an action on a promissory note, wherein plaintiff obtained judgment, and thereafter, the judgment being unsatisfied, a receiver of the defendant corporation was appointed and authorized to institute suit against certain alleged debtors of the corporation, and also against other persons upon the ground that they, as directors of the corporation, had divided and paid to themselves, as stockholders, out of the capital stock, certain money, in violation of section 309 of the Civil Code, orders denying motions of such directors to vacate the order appointing the receiver and the order authorizing him to sue them are appealable, although the appellants were not parties to the original action.-Luckenbach v. Laer, 395. 21. AGGRIEVED PARTIES.-Only aggrieved parties may appeal; and stockholders of a corporation, whose rights are fully protected, in proceedings resulting in the appointment of a receiver of the corporation, after due notice to the corporation of an actual controversy in open court, are not entitled to relief on appeal from orders denying their motions to vacate the order appointing the receiver and authorizing him to sue, as the corporation was the aggrieved party and had the right to appeal and the stockholders were bound by the action of the court; nor were persons who were not parties to nor interested in the controversy resulting in the appointing of the receiver and having no interest in the subject matter of the proceeding aggrieved parties.-Id. 22. ORDER PERMITTING RECEIVER TO SUE-RIGHTS NOT AFFECTED BY.Neither the personal nor property rights of parties whom a receiver is permitted by court orders to sue are so affected by the orders as to render them aggrieved parties.-Id. 23. FINDING QUESTION OF FACT — INFERENCES.-Even though all the facts are admitted or uncontradicted, if it appears that either one of two inferences may fairly and reasonably be deduced from those facts, there still remains in the case a question of fact to APPEAL (Continued). be determined by the jury, or court if tried by the court, and the verdict of the jury or finding of the court thereon cannot be set aside on appeal on the ground that it is not sustained by the evidence; and the evidence must be regarded in the light most favorable to the support of the judgment.-Mah See v. North American Acc. Ins. Co., 421. 24. CONFLICTING EVIDENCE-APPEAL WITHOUT MERIT.-Where the evidence is conflicting, an appeal from a judgment on the ground that the evidence is insufficient to justify it is without merit.— Mason v. Mason, 439. 25. CONTRACTS RATIFICATION.-A person cannot be held to have ratified a contract which she had not authorized, of which she had no knowledge, and concerning which she did not have knowledge of circumstances sufficient to put her upon inquiry.-Id. 26. ENTIRE VERDICT ON SEVERAL CONTRACTS-UNSEGREGATED DAMAGES —REVERSAL.—In such a case, even if the record owner of the land is liable on an alleged contract of her own to level parts of the land, exclusive of the land covered by the contract executed by the one claiming a beneficial interest, the entire judgment against the former must be reversed where the damages have not been segregated. Bloom v. Coates, 458. 27. FINDINGS-EVIDENCE-PRESUMPTION.-In the absence of a record on appeal showing the evidence, the presumption is that there was evidence offered and received in the case fully supporting the findings of the trial court.-Morgan v. Morgan, 522. 28. TRANSFER BY SUPREME COURT―Jurisdiction.-If a judgment is an appealable one and the appeal lies in the first instance to a district court of appeal, the appeal may be transferred by the supreme court to the proper district court of appeal, as provided in article VI, section 4, of the constitution, or retained in the supreme court, pursuant to the power possessed by that court to order a transfer to it either before or after judgment given in any case pending in a district court of appeal.-In re Sutter-Butte By-Pass Assessment, 532. 29. RIGHT OF APPEAL-POWER OF LEGISLATURE.-The right of appeal from the judgment of an inferior to a higher court must be found either in the state's constitution or statutes, and it is the settled rule of law that if the right of appeal is constitutionally granted in any given case such right cannot be destroyed or delimited by legislative enactment.-Id. 30. MOOT CASE-DISMISSAL.-Where, pending appeal, the case becomes a moot one, the appeal will be dismissed.-Weiss v. City of Los Angeles, 576. 31. APPEAL OPINION OF TRIAL COURT-RECORD.-The opinion of the trial court, though printed in the transcript, is not a part of the APPEAL (Continued). record and cannot be considered by an appellate court as indi- APPEARANCE. See Promissory Notes, 2. APPRAISEMENT. See Homesteads, 3. APPROPRIATION. See Waters and Water Rights, 10. ARBITRATION. 1. FUTURE DISPUTES - INVALID AGREEMENT.-An agreement between parties to a contract to arbitrate all disputes thereafter to arise thereunder is invalid and unenforceable, as it constitutes an attempt to oust the legally constituted courts of their jurisdiction and to set up private tribunals; but if the matter to be submitted to the arbitrators is the finding of a fact or facts the determination of which is essential to the accrual of the cause of action itself, such arbitration or finding becomes a condition precedent to the right to sue, and is, therefore, not within the general rule. Blodgett Co. v. Bebe Co., 666. 2. INVALID PROVISION OF CONTRACT-RIGHT OF ACTION-NONSUIT.—A provision in a contract requiring all disputes thereafter arising under it to be submitted to arbitration being invalid, a party suing upon the contract is not called upon to prove that he submitted his claim to the method of arbitration provided in the contract, and it is error for the trial court to grant a nonsuit based upon plaintiff's noncompliance with such provision. Id. ASSAULT. 1. AMOUNT OF FORCE QUESTION FOR JURY. The question of the amount of force justified in repelling an assault or maintaining the possession of property is one peculiarly within the province of the jury.-Fawkes v. Reynolds, 204. 2. RESISTANCE OF INTERFERENCE WITH PIPE-LINE- - REASONABLE FORCE-SUFFICIENCY OF EVIDENCE.-In an action to recover damages for an alleged battery committed in maintaining the right to a flow of water through a pipe-line extending across the plaintiff's land, the verdict in favor of the defendant cannot be disturbed on the ground that he used more force than was ASSAULT (Continued). reasonably necessary, where, although he struck the plaintiff three terrific blows with his fist, he remained in his position upon the pipe-line and only struck one blow in each instance in defense of a separate assault by the plaintiff, who, three different times, tried to push him off the pipe-line.-Id. 3. PLEA OF GUILTY TO CRIMINAL CHARGE-EFFECT OF INSTRUCTION.— An instruction in such action that the plea of guilty which had been proven to have been entered by the defendant to a charge of assault and battery based on the same occurrence was not to be taken as being conclusive of guilt, but should only be regarded as an admission and that all that was said should be considered, was not an invasion of the province of the jury by instructing them on a question of fact.-Id. ASSESSMENTS. See California Water Storage District Act, 18; Special Proceedings, 2; Taxation, 3. ASSIGNMENTS. See Claim and Delivery, 3; Irrigation Districts, 5; Landlord and Tenant, 9; Trusts, 1, 3, 4. ATTACHMENT. 1. DISCHARGE-RECOVERY OF COSTS AND DAMAGES.-The defendant in an action in which an attachment is levied is entitled to recover from the plaintiff the costs and damages sustained by reason of the attachment, where judgment is rendered in defendant's favor and the attachment discharged for the reason that the plaintiff was not entitled thereto under the provisions of section 537 of the Code of Civil Procedure.-Atlas Dev. Co. v. National Surety Co., 329. 2. OIL RIG-DAMAGES-PREVENTION OF CONSUMMATION OF CONTRACT OF SALE. In an action on an attachment bond for the wrongful attachment of an oil rig which the plaintiff had entered into a contract to sell to a corporation to be organized for oil development, for fifty thousand shares of the corporation stock, the plaintiff is not entitled to recover damages through being prevented from carrying out and realizing on such contract, such damages being remote, speculative and uncertain.-Id. - 3. WANT OF RENTAL VALUE IN COUNTY OF ATTACHMENT- EFFECT OF. The fact that an attached oil rig cannot be further used in the county in which it is attached does not indicate that its adaptability and commercial requirement for use elsewhere would not give value to the right to possess and use it, if there is any locality within practical shipping distance where it is in demand and can command an ascertainable price.-Id. |