1155 INDEX-DIGEST Mines and Minerals For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER 417(7) (Colo.) Findings on evidence in compensation case conclusive.-Weaver v. In-204 (Cal.App.) Assignor of lien claim held V. ASSIGNMENT OF LIEN OR CLAIM. dustrial Commission of Colorado, 642. Finding of cause of death held conclusive. lien.-Heberling v. Day, 908. to have sufficient interest to entitle him to file -Id. 417(7) (Okl.) Findings of fact in compensation case final.-New State Ice Co. v. State Industrial Commission, 318. VII. ENFORCEMENT. 417(7) (Okl.) Findings without evidence ing of completion of building by use and oc281 (2) (Cal.App.) Evidence sustained findreviewable under Compensation Law.-Bran-cupation of owner.-Heberling v. Day, 908. ham v. Carter Oil Co., 400. 417(7) (Okl.) Findings without evidence reviewable under Compensation Law.-Producers' Lumber Co. v. Butler, 738. Relation of independent contractor may be question of law or fact.-Id. Finding of relationship without evidence reviewable under Compensation Law.-Id. 417(7) (Okl.) Findings of fact in compensation case final.-Hartford Accident & Indemnity Co. v. State Industrial Commission, 775. 417(7) (Okl.) Finding of compensable injury on evidence final.-Southern Surety Co. V. Childers, 927. 417(7) (Utah) Industrial Commission's findings on evidence final under Compensation Act.-Staker v. Industrial Commission, 880. 417(9) (Colo.) Remanding compensation case to Industrial Commission held proper.-Industrial Commission v. Fanganiello, 803. MAYHEM. 4 (Okl.Cr.App.) Particular description of instrument used need not be alleged.-Payne v. State, 334. 5 (Okl.Cr.App.) Evidence concerning unidentified club held improper, but not prejudicial; evidence as to statements made by injured person held improper, but not prejudicial.-Payne v. State, 334. 6 (Okl.Cr.App.) Instruction relating to premeditated design to maim held sufficient. Payne v. State, 334. MECHANICS' LIENS. I. NATURE, GROUNDS, AND SUBJECT- 5 (Cal.App.) Procedure adopted for invoking liens liberally construed.-Heberling Day, 908. II. RIGHT TO LIEN. ing of amount of claim for lumber.-Heberling 281(4) (Cal.App.) Evidence sustained findv. Day, 908. ent completion periods from which lien claim290(5) (Cal.App.) Findings of two differants could file liens not inconsistent.-Heberling v. Day, 908. MILITARY LAW. See Army and Navy. MINES AND MINERALS. 1. PUBLIC MINERAL LANDS. (B) Location and Acquisition of Claims. 27(1) (Ariz.) Lessee's employee could file Lessee's employee could file location notice tice for lessor suspending annual work.-Id. adverse to lessor, though he formerly filed no 31(1) (Ariz.) Right of owner of mining claim to go outside surface boundaries stated. -Tom Reed Gold Mines Co. v. 'United Eastern Mining Co., 283. ward.-Id. 31 (3) (Ariz.) Vein to which extralateral right attaches must be identical with vein lying within boundaries of claim.-Tom Reed Gold Mines Co. v. United Eastern Mining Co., 283. to a mining claim, the subject of patent pro38(2) (Mont.) Excluded cotenant's rights v.ceedings, may be tried in land office regardless of who is in possession.-O'Hanlon v. Ruby Gulch Mining Co., 1062. (C) Agreement or Consent of Owner. 73 (3) (Colo.) May arise out of oral contract.-Home Public Market Co. v. Fallis, 641. 74 (Colo.) May arise out of oral contract not filed.-Home Public Market Co. v. Fallis, 641. 78 (Cal.) Owner held liable for repairs by lessee.-Leoni v. Quinn, 551. III. PROCEEDINGS TO PERFECT. 154(2) (Cal.App.) Affidavit attached to notice of claim for lien held sufficient.-Heberling v. Day, 908. 157(1) (Cal.App.) Absence of corporate seal on notice of claim did not render claim invalid.-Heberling v. Day, 908. Lien notice failing to state that amount was due "after deducting all just credits and offsets" not defective.-Id. 38(5) (Mont.) Rule against laches applied most rigidly to cases involving mining claims.O'Hanlon v. Ruby Gulch Mining Co., 1062. governed by element of time, but circumstances Bar of laches in asserting mining claim not properly considered.-Id. 38(9) (Mont.) Allegations held sufficient to mining claims.-O'Hanlon v. Ruby Gulch Mining characterize an action as an adverse suit for Co., 1062. 38(18) (Ariz.) Evidence held to support judgment awarding bisected apex of side line vein.-Tom Reed Gold Mines Co. v. United Eastern Mining Co., 283. title to vein of mineral, held entitled to costs, 38 (28) (Ariz.) Plaintiff, in suit to quiet where judgment was partly in his favor.-Tom Reed Gold Mines Co. v. United Eastern Mining Co., 283. (C) Patents. entry of mining claim for patent not concludbe44 (Ariz.) One claiming rights anterior to covery.-Tom Reed Gold Mines Co. v. United ed by patent, but entitled to show his prior disEastern Mining Co., 283. 158 (Cal.App.) Amended lien may filed within the 30 days within which original may be filed.-Heberling v. Day, 908. Claimant, having filed original and amended claims, not put on election as between them. -Id. IV. OPERATION AND EFFECT. (B) Property, Estates, and Rights Affected. 189 (Colo.) Lienor has lien on additional interest secured by owner before enforcement. -Home Public Market Co. v. Fallis, 641. II. TITLE, CONVEYANCES, AND CON- (C) Leases, Licenses, and Contracts. 732 (Okl.) Lease held subject to termination at will by failure to pay rentals.-Ireland v. Chatman, 408. III. OPERATION OF MINES, QUARRIES, AND WELLS. (B) Mining Partnerships and Companies. 97 (Mont.) Agreement to stake prospectors for interest in claims located creates cotenancy, not partnership.-O'Hanlon v. Ruby Gulch Mining Co., 1062. 105(2) (Kan.) Presumption is that manager of oil company was authorized to dispose of salvaged casing and burden on it to show lack of authority to third person's knowledge. Sheldon Petroleum Co. v. Empire Gas & Fuel Co., 826. Evidence held to show ratification of sale by field manager of oil and gas company.-Id. See Infants. MINORS. MONEY RECEIVED. 12 (Cal.App.) Action not barred by laches. -Althouse v. Provident Mut. Building-Loan Ass'n, 1018. MORTGAGES. See Chattel Mortgages. I. REQUISITES AND VALIDITY. 81 (Okl.) Decree that mortgage is void as compelling mortgagor to pay registration tax held error.-Knebel v. Rennie, 414. III. CONSTRUCTION AND OPERATION. (C) Property Mortgaged, and Estates of Parties Therein. 139 (Wash.) Mortgage not obligation_independent of debt secured.-Pratt v. Pratt, 535. (D) Lien and Priority. 151 (2) (Cal.App.) Future advances with knowledge of other mortgage held subsequent thereto. Althouse v. Provident Mut. BuildingLoan Ass'n, 1018. Further advances under mortgage securing future advances held not prior as involuntary. -Id. 183 (Cal.App.) Second mortgagee not estopped to assert his lien in preference to the lien of a first mortgagee for subsequent advances. Althouse v. Provident Mut. BuildingLoan Ass'n, 1018. VI. TRANSFER OF PROPERTY MORTGAGED OR OF EQUITY OF REDEMPTION. 280 (4) (Wash.) Purchaser, assuming mortgage indebtedness, becomes primarily liable to mortgagee.-Insley v. Webb, 1093. 283(2) (Wash.) Release of deficiency judgment against vendee assuming mortgage also released mortgagor.-Insley v. Webb, 1093. XI. REDEMPTION. 624(3) (Colo.) Rank of incumbrancer's lien cannot be improved by redeeming from a prior lien.-Stryker v. Dunn, 644. Redemption from sale under mortgage or deed of trust cannot prejudice subsequent lienors.-Id. Statute authorizing deed to redemptioner does not determine effect of deed as to order of lien. -Id. II. GOVERNMENTAL POWERS AND FUNCTIONS IN GENERAL. 58 (Or.) City charter is a grant, not limitation of power.-State v. Funk, 113. 63 (2) (Cal.App.) Question of reasonableness of only that part of ordinance regulating nuisances applicable to case considered.-Ex parte Mathews, 220. 63(2) (Okl.Cr.App.) Appellate court cannot declare ordinance regulating automobiles on streets unreasonable unless it clearly appears so.-McGuire v. Wilkerson, 445. IV. PROCEEDINGS OF COUNCIL OR OTHER GOVERNING BODY. (B) Ordinances and By-Laws in General. 120 (Okl.Cr.App.) Construction of ordinance for court.-McGuire v. Wilkerson, 445. 122(2) (Okl.Cr.App.) Municipal ordinance presumed valid.-McGuire v. Wilkerson, 445. V. OFFICERS, AGENTS, AND EMPLOYÉS. (A) Municipal Officers in General. 142 (Cal.) Charter forbidding person holding two offices at same time does not affect eligibility of chief of fire department to appointment as battalion chief.-Whitehead v. Davie, 1008. 168 (Cal.App.) Acts of mayor must be authorized or necessarily implied.-In re Dunscomb, 74. Mayor not authorized to investigate bill approved by council.-Id. Mayor not authorized to issue subpoena to investigate claim against city.-Id. (B) Municipal Departments and Officers Thereof. 196 (Cal.) Chief of fire department may be appointed without reference to civil service rules and classifications.-Whitehead v. Davie, 1008. 200 (Cal.) Charter providing retirement and pension for members of fire department retroactive as to period of service.-Whitehead v. Davie, 1008. Period member of fire department acted as chief considered as part of aggregate service, as affecting retirement and pension.-Id. Fireman pension computed on basis of salary one year before retirement.-Id. (C) Agents and Employés. 218(3) (Wash.) Facts held not to warrant court's interference with action of civil service commission in dismissal of employee.-Ryan v. City of Everett, 532. 218(8) (Wash.) Where municipality and its civil service commission are joined as codefendants, separate costs to both improper.-Ryan v. City of Everett, 532. 218(9) (Wash.) Court's review of municiJunior incumbrancer cannot cut off or post-pal civil service commission's hearings on dispone his senior's lien by redeeming first from missal of employee limited.-Ryan v. City of mortgage sale.-Id. Everett, 532. 1157 For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER XII. TORTS. VI. PROPERTY. 225(5) (Idaho) Deed by city may be at- (A) Exercise of Governmental and Corperate Powers in General. tacked as void by succeeding mayor, without returning or offering to return consideration.-729 (Cal.App.) Exercising Miller v. Lewiston-Clarkston Canning Co., 194. VII. CONTRACTS IN GENERAL. 244(1) (Or.) Offer of city to reimburse contractor for losses held not binding.-State v. Funk, 113. 244(2) (Or.) City not bound by contracts in absence of compliance with charter.-State v. Funk, 113. IX. PUBLIC IMPROVEMENTS. governmental function in collecting garbage, and not liable for negligence, though selling the garbage.Manning v. City of Pasadena, 253. (C) Defects or Obstructions in Streets and Other Public Ways. 819(2) (Mont.) Evidence held to show icy condition of sidewalk where plaintiff fell.-Reilly v. City of Butte, 1057. 819(6) (Mont.) Evidence held to show icy condition of sidewalk where plaintiff fell, and constructive notice thereof to city.-Reilly v. (E) Assessments for Benefits, and Special | City of Butte, 1057. Taxes. 594 (2) (Utah) Ordinance for which no penalty provided without force.-Moorehouse v. Hammond, 883. 604 (Cal.App.) City has power to regulate keeping of goats.-Ex parte Mathews, 220. 605 (Cal.App.) City has police power to protect inhabitants from anticipated injurious conditions.-Ex parte Mathews, 220. 607 (Okt.Cr.App.) May create monopoly under police power to regulate disposal of garbage.-Bishop v. City of Tulsa, 228. By-products of kitchen or restaurant held not "garbage"; term "garbage" not equivalent to "by-product"; "hog food" held not garbage. --Id. 621 (Colo.) City cannot revoke building permit already acted on.-Pratt v. City and County of Denver, 508. XI. USE AND REGULATION OF PUBLIC PLACES, PROPERTY, AND WORKS. (A) Streets and Other Public Ways. 703(1) (Okl.Cr.App.) Use of streets as place of business not natural right.-McGuire v. Wilkerson, 445. 703 (3) (Okl.Cr.App.) Ordinance regulating parking of automobiles on streets held valid.McGuire v. Wilkerson, 445. 705 (2) (Wash.) That truck driver was at intersection first did not give him right to proceed without reasonable care.-Foley v. Taylor, 698. Right of automobile driver who has right of way is not exclusive.-Id. 705(10) (Cal.App.) Party, in whose name automobile registered, not deprived of right to maintain action for injury, though purchased with funds of another.-Whitworth v. Jones, 60. 706 (4) (Kan.) Evidence of settlements with other parties to accident inadmissible in action for personal injuries.-Hanks v. Yellow Cab & Baggage Co., 977. 706 (6) (Kan.) Evidence in action for injuries to a jitney passenger by taxicab held sufficient as against demurrer and motion to direct verdict.-Hanks v. Yellow Cab & Baggage Co., 977. 706 (7) (Cal.App.) Evidence held to warrant court in refusing to direct verdict on ground of contributory negligence of person injured by automobile.-Payne v. Wright, 218. XIII. FISCAL MANAGEMENT, PUBLIC (A) Power to Incur Indebtedness and Ex penditures. 878 (Or.) City of Portland has no authority to pay out money except upon legal obligations.-State v. Funk, 113. (B) Administration in General, Appropriations, Warrants and Payment, 897 (Or.) Duty of auditor to satisfy himself that money is legally due before drawing warrant.-State v. Funk, 113. (C) Bonds and Other Securities, and Sinking Funds. 918(2) (Ariz.) Bonds held not invalidated, though call for election did not show amount to be expended for building sites authorized.Cowan v. City of Tucson, 296. MUTUAL BENEFIT INSURANCE. See Insurance, 763-819. NAVIGABLE WATERS. I. RIGHTS OF PUBLIC. 22(1) (Wash.) Federal permit for dam not needed, when stream nonnavigable above site of dam.-State v. Superior Court of Skagit County, 17. II. LANDS UNDER WATER. 36(1)(Idaho) State holds title to beds of navigable streams below ordinary high-water mark.-Miller v. Lewiston-Clarkston Canning Co., 194. 37(4) (Idaho) Adjacent land under navigable water does not pass by patent alone.Miller v. Lewiston-Clarkston Canning Co., 194. 136(8) (Ariz.) Question for court on un-12 (Cal.App.) One relying on novation disputed evidence.-Arizona Power Co. V. must establish substitution.-Anglo-California Hayes, 280. Trust Co. v. Wallace, 78. 141 (3) (Cal.App.) Instruction that contributory negligence may be ignored because of any negligence of defendant erroneous.-McPherson v. Walling, 209. NEGOTIABLE INSTRUMENTS. See Bills and Notes. NEWSPAPERS. (4) (Ariz.) Paper held official for publishing notice of increased assessments.-Pinal County v. Heiner, 714. OBLIGATION OF CONTRACTS. See Constitutional Law, 121-169. OFFICERS. See Judges; Justices of the Peace; Public Service Commissions; Sheriffs and Constables. II. RIGHTS, POWERS, DUTIES, AND 100 (1) (Cal.) Appointment of advisory board held to increase compensation of assessor in violation of Constitution.-Forward v. San Diego County, 993. 2 (Ariz.) Newspaper contract for publishing legal notices held binding, though not formally executed in writing.-Pinal County v. 103 (Idaho) Void acts of public officials Heiner, 714. NEW TRIAL. See Criminal Law, 921-961. II. GROUNDS. (F) Verdict or Findings Contrary to Law or Evidence. not immune from collateral attack.-Miller v. Lewiston-Clarkston Canning Co., 194. PARENT AND CHILD. See Guardian and Ward; Infants. 8 (Or.) Father, suing as trustee of son's property, could not recover son's money, advanced to defendant without proof of an express trust or contract, made in father's name for benefit of son.-Parks v. Keeney, 497. V.17(2) (Okl.Cr.App.) Omission of parent to provide for child held to mean such failure to provide as affects health and life; "failure to furnish food, clothing, shelter, and medical attendance."-Washington v. State, 967. 70 (Or.) Constitution prohibits re-examination of fact by court where substantial evidence supports jury's verdict.-Mitchell Southern Pac. Co., 718. 71 (Mont.) Where evidence materially conflicts, denial of new trial is discretionary.Stankey v. Citizens' Nat. Bank of Laurel, 1054. 72 (Wash.) Court required to grant new 17(5) (Colo.) Information charging failure trial if he believes verdict not in accordance to support children held to sufficiently allege with weight of evidence.-City of Tacoma v. that defendant was the father of the children. Olympia Door Co., 836. -People v. Driscoll, 869. 76(4) (Cal.App.) No abuse of discretion shown in grant for excessive damages.-Griffey v. Pacific Electric Ry. Co., 45. Properly granted in death action, where loss of any heir is assessed too high.-Id. (H) Newly Discovered Evidence. 99 (Okl.) Rule as to newly discovered evidence stated.-Wysong v. Amarillo Nat. Life Ins. Co. of Texas, 332. Newly discovered evidence held not ground, in view of failure to move for continuance and immaterial character of evidence.-Id. PARTIES. For parties on appeal and review of rulings as to parties, see Appeal and Error. For parties to particular proceedings or instruments, see also the various specific topics. III. NEW PARTIES AND CHANGE OF PARTIES. 40(1) (Utah) In injunction action reduced to one for damages, all persons damaged proper parties.-Utah Oil Refining Co. v. District Court of Salt Lake County, 624. 108(4) (Wash.) Newly discovered evidence as to injury, not constituting important ele-44 (Mont.) Leave to intervene granted ex ment of damage, not ground.-Dishman v. parte.-State Bank of New Salem v. Schultze, Whitney, 12. III. PROCEEDINGS TO PROCURE NEW TRIAL. 116(2)(Idaho) Time for notice of motion for new trial in unlawful detainer runs from verdict, and must be given within 10 days.Hess v. Swanson, 721. 138 (Ariz.) Service of motion all the notice that is required.-Arizona Power Co. v. Hayes, 280. 163 (2) (Cal.App.) Judgment falls on granting of new trial.-Griffey v. Pacific Electric Ry. Co., 45. 163(2) (Cal.App.) General order granting new trial opens case as to all parties.-Bishop v. Superior Court in and for Los Angeles County, 1012. As exoneration of agent exonerates principal where fraud committed without knowledge or consent of principal, grant of motion as to one opens case as to other.-Id. 599. 47 (Mont.) Intervener must accept pending action as found, but thereafter has same rights as other parties.—State Bank of New Salem v. Schultze, 599. 48 (Mont.) Original parties must answer intervention of trustee in bankruptcy, notwithstanding their original answer partially traversed intervention.-State Bank of New Salem v. Schultze, 599. Intervention adverse to both plaintiff and defendant requires all parties to plead.-Id. Ordinary rules of pleading apply under statute to complaint in intervention.-Id. Allegations in complaint in intervention not denied, deemed admitted.-Id. Service upon other parties required on intervention.-Id. 59(2) (Cal.) No abuse of discretion to allow subsequent assignee of note sued on to be substituted as plaintiff.-Whittier v. Visscher, 123. For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER V. DEFECTS, OBJECTIONS, AND AMENDMENT. 76(1) (Or.) Defendant must aver (1) (Cal.) Under Dental Act, board may revoke license for unprofessional conduct.real Jacobs v. Board of Dental Examiners of Cal party in interest to raise issue as to whether ifornia, 1006. plaintiff is real party in interest.-Bank of Jor-11 (3) (Cal.) Dental board may act on accusation filed by its agent.-Jacobs v. Board dan Valley v. Duncan, 149. 80(1) (Okl.) Objection to parties plaintiff of Dental Examiners of California, 1006. unavailing after verdict.-Eves Tall Chief v. 18(8) (Okl.) Not error to direct verdict for plaintiff, where evidence insufficient to support Aaron, 915. verdict for defendant.-Eves Tall Chief Aaron, 915, PARTITION. II. ACTIONS FOR PARTITION. (A) Right of Action and Defenses. 10 (Cal.) Action equitable in nature under Code.-Akley v. Bassett, 576. 19 (Cal.) Stockholders of defunct corporation held to have right of possession necessary to maintain suit.-Capuccio v. Caire, 367. 27 (Cal.) Suit by stockholders for accounting held not bar to subsequent action by a stockholder in partition of realty.-Capuccio v. Caire, 367. (B) Proceedings and Relief, 44 (Cal.) Limitations available to establish interest in property.-Akley v. Bassett, PARTNERSHIP. 576. II. THE FIRM, ITS NAME, POWERS, AND 64 (Wash.) The words "manufacturing company" added to surname not "assumed name" within statute requiring filing of certificate of membership.-McCreery v. Graham, 692, VII. DISSOLUTION, SETTLEMENT, AND ACCOUNTING. (D) Actions for Dissolution and Accounting. 327 (3) (Or.) Cross-bill stricken out as disclosing no element nership.-Garber v. Bradbury, 477. V. 24(4) (Okl.) Instruction on sole question of fact submitted held not error.-Eves Tall Chief v. Aaron, 915. III. PLEA OR ANSWER, CROSS-COM- held properly (C) Traverses or Denials and Admissions. PARTY WALLS. 7 (Wash.) Party wall agreement, granting defendants rights already possessed, lacked consideration.-Barnes v. Spurch, 513. Agreement to share cost of repairs not consideration for agreement to share building cost. -Id. PAYMENT. II. APPLICATION. 47(1) (Cal.App.) Pledgor not entitled to have payments on contracts held as collateral applied otherwise than on the contracts on which made.-Pacific Acceptance Corporation v. Bank of Italy, Fresno Branch, 1024. PERJURY. 1. OFFENSES AND RESPONSIBILITY THEREFOR. 129(2) (Cal.App.) Defendant's failure to plead sheriff's fraud in execution return of execution is admission of regular return.-Hutchinson v. U. S. Fidelity & Guaranty Co., 249. (D) Matter in Avoidance. 132 (Nev.) Answer sufficient, if setting up affirmative matter which in law defeats the cause of action.-State v. Streshley, 712. (E) Set-Off, Counterclaim, and Cross-Com plaint. 142 (Okl.) Affirmative relief of defendant must be in accord with pleading based on definite theory.-J. Crouch & Son v. Huber, 764. IV. REPLICATION OR REPLY AND SUBSEQUENT PLEADINGS. 177 (Wash.) Reply held not to admit discharge of original debt by payment by note.R. R. Donnelly & Sons Co. v. Dunphy, 1101. V. DEMURRER OR EXCEPTION. 212 (Or.) General demurrer never waived. 9(2) (Or.) Officer authorized to administer oath by department of federal government held an "officer authorized to administer an oath" within provision of federal Penal Code defining perjury.-State v. Woerndle, 604. Notary public of state held an "officer author--Nally v. Richmond, 871. ized to administer oath" within federal statute defining perjury.—Id. PHYSICIANS AND SURGEONS. 2 (Utah) Ordinance requiring greater duties than statute relating to revocation of physician's license held invalid.-Moorehouse v. Hammond, 883. 6(2) (Cal.) Acts performed by unlicensed dentist not within permission of Dental Act; "operate;" "operation;" "practicing dentistry."-Jacobs v. Board of Dental Examiners of California, 1006. VI. AMENDED AND SUPPLEMENTAL PLEADINGS AND REPLEADER. 236(6) (Wash.) Amendment of petition alleging merger of corporations to allege assumption of liabilities not error or abuse of discretion.-Sterios v. Southern Surety Co., 1107. XI. MOTIONS. 343 (Kan.) Where question of fact raised motion for judgment on pleadings properly denied.-Ludwig v. Macy, 657. 349 (Wash.) Bailee, making unauthorized delivery of goods to third party, held not en |