Under Rev. Codes 1905, § 502, and district court rule 21, a court held not authorized to OBLIGATION OF CONTRACT. take jurisdiction of a motion for a new trial Laws impairing, see Constitutional Law, § 4. on an alleged verbal agreement, asserted by one side and denied by the other.-Kaslow v. Chamberlin (N. D.) 529. OBSTRUCTIONS. OFFER. *Under Rev. Code Civ. Proc. §§ 296, 303, Of highways, see Highways, § 3. where new evidence was discovered after an appeal was taken, the trial court had power for cause shown to fix a further time within which a motion for a new trial could be made. -Fuller & Johnson Mfg. Co. v. Child (S. D.) 523. § 3. Statutory new trial as of right. Under Rev. Laws 1905, § 4431, defendant in ejectment who has paid the damages and costs awarded against him, and obtained a second trial, is entitled to a return of the amount so paid if he succeeds on the second trial, or if the action be voluntarily dismissed.-Sammons v. Pike (Minn.) 244. *A second trial in ejectment extends to all questions presented pertinent to the title and right of possession, including damages for use and occupation.-Sammons v. Pike (Minn.) 244. NOMINATION. For office, see Elections, § 3. NONRESIDENCE. Of proof, see Trial, § 3. Proposals for contract, see Contracts, § 1. OFFICERS. Amendment of statutes, see Statutes, § 4. Quo warranto, see Quo Warranto. Particular classes of officers. See Clerks of Courts; Justices of the Peace; Assessors of taxes, see Taxation, § 3. School officers, see Schools and School Districts, Effect on limitation, see Limitation of Actions, Town officers, see Towns, § 1. NONSUIT. Before trial, see Dismissal and Nonsuit. NOTES. Promissory notes, see Bills and Notes. NOTICE. As affecting particular classes of persons. See Principal and Agent, § 3. Of particular facts, acts, or proceedings not judicial. See Mechanics' Liens, § 2. Claim of injury on city street, see Municipal Expiration of redemption from tax sale, see Tax- Injuries to traveler on highways, see Highways, § 3. Loss insured against, see Insurance, § 8. Statement of claim against decedents' estate, see Executors and Administrators, § 2. Of particular judicial proceedings. Action or process, see Process, § 2. NUISANCE. Violation of liquor laws, see Intoxicating Liquors, § 6. NUNCUPATIVE WILLS. See Wills, § 2. OBJECTIONS. Municipal ordinances, see Municipal Corporations, §§ 2, 5, 6. For purpose of review, see Appeal and Error, Regulation of liquor traffic, see Intoxicating Liq§ 2. uors, § 1. *Point annotated. See syllabus. 1200 PARENT AND CHILD. See Adoption; Bastards; Infants. PARKS. Park officers, see Municipal Corporations, § 3. PAROL EVIDENCE. In civil actions, see Evidence, § 8. PARTIES. See Usury, § 1. Entitled to alleged error on appeal, see Appeal Harmless error as to parties, see Appeal and Error, & 14. Identity of parties as ground for abatement of To action to confirm tax title, see Taxation, § 8. To proceeding for removal of cause, see Remov- Transfer of interest ground for abatement, see § 1. New parties and change of parties. Conformity of judgment to proof in 1. The relation. action In an action on partnership notes, in which M., who had assumed payment of and become surety on the notes was made a defendant, and in which a surviving partner filed a cross-petition seeking to cancel notes executed by him to M., evidence offered by the cross-petitioner as to the existence of the partnership and as to the manner of conduct of some of the partnership business was admissible as against M.Culbertson v. Salinger & Brigham (Iowa) 6. Evidence held sufficient to show a partnership inter se and a holding out as to third parties.-Diamond Rubber Co. v. Hans (Minn.) 504; Pure Oil Co. v. Mainguy, Id. § 2. Rights and liabilities as to third persons. Evidence considered, and held insufficient to support a finding that notes executed by a surviving partner in satisfaction of a partnership debt were not supported by a consideration.Culbertson v. Salinger & Brigham (Iowa) 6. § 3. Death of partner, and surviving partners. *A surviving partner is entitled to continue the business as a matter of law.-Gaskill v. Weeks (Mich.) 647. PASSENGERS. See Carriers, § 4. PASSES. Anti-pass law, see Carriers, § 1. PASTURAGE. *A petition by taxpayers to have an attorney retained in behalf of a school district in an action to enjoin the issuance of bonds, not accompanied by any complaint in intervention, is not a petition to intervene.-Schouweiler v. Of animals, see Animals. Allen (N. D.) 866. § 2. Defects, objections, and amend ment. PATENTS. Where one plaintiff assigned his claim to the For public lands, see Public Lands, § 1. other, and the assignment was pleaded and proved, though the action proceeded to judgment under the original title, reversal for misjoinder of parties held not warranted.-Steber v. Chicago G. W. Ry. Co. (Iowa) 304. *Unless the question of a defect of parties plaintiff or defendant is raised by demurrer or answer, it is waived.-Budds v. Frey (Minn.) 158. *Objection that a suit was not brought by the real party in interest need not be raised by demurrer or special pleading, when plaintiff has no interest in the claim or right to represent it.-Hilliard v. Wisconsin Life Ins. Co. (Wis.) 999. PARTITION. Conclusiveness of adjudication in foreclosure suit in subsequent partition suit, see Judgment, § 8. Evidence of limitations, see Limitation of Actions, § 3. § 1. Actions for partition. A wife held properly adjudged liable only as surety for her husband.-Matheson v. Matheson (Iowa) 755. PARTNERSHIP. See Joint-Stock Companies. PAVEMENTS. Of streets and alleys, see Municipal Corporations, § 7. PAYMENT. See Accord and Satisfaction; Compromise and Recovery of payments made on saloon license, Subrogation on payment, see Subrogation. Of particular classes of obligations or liabilities. Bill of exchange or promissory note, see Bills Taxes, see Taxation, § 4. § 1. Requisites and sufficiency. Settlement for a collection made is not accomplished by forwarding a draft which on be ing presented for payment within a reasonable time is repudiated for want of funds.-Brown v. Sheldon State Bank (Iowa) 289. § 2. Recovery of payments. *Whether a payment was made voluntarily is Competency of witnesses in action on partner- a question of law where the facts are undisputed.-Eslow v. City of Albion (Mich.) 328. *Point annotated. See syllabus. ship notes, see Witnesses, § 2. PEACE. the police power of the state identical in their objects and power.-Smith v. State Board of Breach of public peace, see Breach of the Peace. Medical Examiners (Iowa) 1116. PENALTIES. Under contracts, see Damages, § 2. PERCOLATING WATERS. See Waters and Water Courses, § 2. PERSONAL INJURIES. Particular causes or means of injury. See Assault and Battery, § 1; Negligence. Operation of railroads, see Railroads, § 2. Operation of street railroad, see Street Railroads, § 2. Particular classes of persons injured. Employé, see Master and Servant, § 2. Passenger, see Carriers, § 4. Traveler on highway, see Highways, § 3; Municipal Corporations, § 8. Traveler on highway crossing railroad, see Railroads, § 2. Remedies. Admissions as evidence, see Evidence, § 5. Argument and conduct of counsel, see Trial, § 4. Compromise of claim, see Compromise and Settlement. Construction of instructions, see Trial, § 11. Cross-examination of witnesses, see Witnesses, § 3. Excessive damages, see Damages, § 4. Grounds for new trial, see New Trial, § 1. Harmless error in rulings, see Appeal and Error, §§ 18, 21. Measure of damages, see Damages, § 3. Necessity and subject-matter of instructions, see Trial, § 7. Opinion evidence, see Evidence, § 9. Pleading, evidence and assessment of damages, see Damages, § 5. Pleading matters of evidence, see Pleading, §. 1. Province of court and jury in general, see Trial, § 6. Requests for instructions, see Trial, § 10. Taking case or question from jury, see Trial, § 5. PERSONAL PROPERTY. See Property. PETITION. Statute of limitations, see Limitation of Actions, § 3. In actions by or against particular classes of persons. See Corporations, § 6. In particular actions or proceedings For breach of liquor dealer's bond, see Intoxicating Liquors, § 3. For breach of warranty, see Sales, § 8. For civil damages for sale of liquor, see Intoxicating Liquors, § 7. For compensation of broker, see Brokers, § 3. For death of servant, see Master and Servant, $ 9. For death of traveler on highway, see Municipal Corporations, § 8. For injuries to animals, see Animals. For personal injuries, see Carriers, § 4; Master and Servant, § 9; Municipal Corporations, $8. For price of goods, see Sales, § 7. For removal of cause, see Removal of Causes, $ 2. For wrongful discharge of servant, see Master and Servant, § 1. Indictment or criminal information or complaint, see Indictment and Information. On insurance policies, see Insurance, §§ 9, 11. To collect taxes, see Taxation, § 5. To establish water rights, see Waters and Water Courses, § 3. For removal of cause, see Removal of Causes, Review of decisions and pleading in appellate § 2. To establish drain, see Drains, § 1. PHYSICIANS AND SURGEONS. Laws relating to as delegating legislative power to executive, see Constitutional Law, § 2. Laws relating to as denying due process of law, see Constitutional Law, § 7. *The question whether a physician exercised proper care and skill in treating a patient held one for the jury.-Reynolds v. McManus (Iowa) 667. A verdict for $5.000 damages for malpractice held under the evidence so excessive as to indicate passion or prejudice on the part of the jury. Reynolds v. McManus (Iowa) 667. courts. It cannot be inferred, from an averment in a petition for the removal of an action to the zenship that one is a resident, that he is also federal court on the ground of diversity of citia citizen.-O'Connor v. Chicago, R. I. & P. Ry. Co. (Iowa) 979. To aver in a petition for the removal of an action to the federal court that the controversy is between citizens of different states held but a conclusion.-O'Connor v. Chicago, R. I. & P. Ry. Co. (Iowa) 979. *Point annotated. See syllabus. *The granting of a certificate to practice medicine and its revocation are an exercise of 117 N.W.-76 *A count in a declaration for the death of a servant by the fall of the skip in a mine shaft held not demurrable for failure to allege whether the foot brake on the hoist engine was set at the time.-Cristanelli v. Saginaw Min. Co. (Mich.) 910. *In an action for negligent injury, plaintiff need not plead the facts which tend to establish the negligence charged.-Cristanelli v. Saginaw Min. Co. (Mich.) 910. § 2. Plea or answer, cross-complaint, and affidavit of defense. *A defense going to the merits of the case may be pleaded by all defendants, or, where pleaded by one of them, it inures to the benefit of all.-City Nat. Bank of Columbus, Ohio, v. Jordan (Iowa) 758. Under Code, § 3622, a denial, in an answer in an action for breach of contract to teach a public school of the damages alleged, held not to raise any issue.-Byrne v. Independent School Dist. of Struble (Iowa) 983. *Admissions of an individual defendant in his pleading in a suit against a county and others to establish a highway line were not binding on the county.-Quinn v. Monona County (Iowa) 1100. *In an action by grain brokers for money advanced and commissions, allegations that plaintiffs bought and sold wheat and advanced money for defendant held not admitted by the answer.-Elliott v. McAllister (Minn.) 921. Any fact which plaintiff must prove to establish his cause of action may be disproved under a general denial.-Hilliard v. Wisconsin Life Ins. Co. (Wis.) 999. That no cause of action existed at the commencement of the suit may be established under a general denial.-Hilliard v. Wisconsin Life Ins. Co. (Wis.) 999. An answer is amendable, in the discretion o the court, alleging a release of the debt sued in bankruptcy proceedings begun after action commenced.-Erickson v. Elliott (N. D.) 361, 363. *The court before trial may permit amendments to pleadings, though the effect thereof is to substantially change the cause of action or defense.-Driskill v. Rebbe (S. D.) 135. $ 6. Motions. and renewal notes are sued on, and only one *No election held required where the original recovery is sought.-Farmers' Savings Bank of Arispe v. Arispe Mercantile Co. (Iowa) 672. In an action against a city for injuries caused by falling into an open drain ditch in the street, certain allegations held properly stricken, as matters of evidence admissible under the general denial.-Parker v. City of Bedford (Iowa) 955. *In a suit for conversion of timber, a defense that plaintiffs' grantor had waived his right to the timber held not necessarily inconsistent with a defense ou a former trial that he had released all claims therefor in a settlement.-Newberry v. Chicago Lumbering Co. (Mich.) 592. It is error to grant a motion for judgment on the pleadings where the answer states matters of affirmative defense.-Erickson v. Elliott (N. D.) 361, 363. § 7. Issues, proof, and variance. *Admissions made in the pleadings forming the issues tried are to be considered without further action.-Wood v. Brotherhood of American Yeomen (Iowa) 1123. *Where, in an action concerning rights in property, plaintiff discloses the source of his title, defendant must in his answer plead all defenses relied on in avoidance of the title so dis § 3. Replication or reply and subse-closed.-Dickson v. City of St. Paul (Minn.) 426. quent pleadings. *Where plaintiff in an action to enjoin trespass claimed under a lease, an allegation in the answer that the lease has been canceled is new matter which must be denied by a reply -Stanser v. Cather (Neb.) 98. It is not necessary to reply to an answer alleging a release of the debt sued on by virtue of the discharge in bankruptcy after the action was commenced.-Erickson v. Elliott (N. D.) 361, 363. § 4. Demurrer or exception. *A demurrer to a pleading admits only the facts well pleaded-Warner v. Trustees of Norwegian Cemetery Ass'n (Iowa) 39. Misjoinder of parties or of causes of action can be raised only by motion, and not by demurrer or answer.-Steber v. Chicago G. W. Ry. Co. (Iowa) 304. § 5. Amended and supplemental pleadings and repleader. *A party obtaining leave to amend his pleading so as to make it conform to the proof held entitled only to amend by making averments in accordance with the evidence.-Warner v. Trustees of Norwegian Cemetery Ass'n (Iowa) 39. *Where an original declaration pleaded conversion of certain logs, an amended declaration pleading defendant's negligence, referring to the same logs, the same persons, and the same acts as alleged in the original, held authorized.-Croze v. St. Mary's Canal Mineral Land Co. (Mich.) 81. *In an action for breach of warranty against incumbrances on a span of horses, an amend ment to the declaration held improperly allow ed as stating a new cause of action.-Arnold v White (Mich.) 164. A plea of not guilty in unlawful detainer in justice court may, on transfer to the district court, stand as a general denial in ejectment.Bartleson v. Munson (Minn.) 512. Under a general denial in ejectment defendant may prove any fact the existence of which nectiff sets out the specific facts on which his title essarily negatives title in plaintiff, unless plainrests.-Bartleson v. Munson (Minn.) 512. 8. Defects and objections, waiver, and aider by verdict or judgment. *In view of the withdrawal of a certain claim and of a stipulation of the parties, the question of misjoinder of causes held unavailing on appeal.-Steber v. Chicago G. W. Ry. Co. (Iowa) 304. *Right to question ruling on demurrer held not waived by proceeding to trial.-Sullivan v. Sullivan (Iowa) 1086. *Defendants by answering an amended complaint without objection waived their objection to the amendment.-Driskill v. Rebbe (S. D.) 135. PLEDGES. A tender of the amount secured by pledge of personalty, though not accepted nor kept good. will release the property from the lien of the pledge.-Moyer v. Leavitt (Neb.) 698. The pledgee of personal property fraudulently represented that he had sold the property pledg ed and sent $20 to the pledgor as part of the price, which the latter retained until he discovered the fraud. Held, that the pledgor was not liable for interest on the $20.-Moyer v. Leavitt (Neb.) 698. *Point annotated. See syllabus. See Particular proceedings in actions. Abatement and Revival: Continuance; Costs; Damages, § 5; Depositions: Dismissal and Nonsuit: Evidence; Execution; Judgment; Judicial Sales; Jury; Limitation of Actions; Parties; Pleading; Process; Removal of Causes; Trial; Venue. Revival of judgment, see Judgment, § 11. Verdict, see Trial, § 12. Particular remedies in or incident to actions. See Attachment; Garnishment; Injunction; Receivers. Procedure in criminal prosecutions. Bastardy proceedings, see Bastards, § 1. Procedure in exercise of special or limited juris- In admiralty, see Maritime Liens, § 1. In insolvency, see Insolvency. In justices' courts, see Justices of the Peace, Procedure in or by particular courts or tribunals. Procedure on review. PREFERENCES. By debtor as fraudulent conveyance, see Fraudulent Conveyances, § 1. Effect of proceedings in bankruptcy, see Bankruptcy, § 1. PREJUDICE. Ground for reversal in civil actions, see Appeal and Error, §§ 13-22. PRELIMINARY INJUNCTION. See Injunction, § 4 PREMIUMS. For insurance, see Insurance, § 3. PRESCRIPTION. Acquisition of rights, see Adverse Possession, § 1; Waters and Water Courses, § 3. PRESENTMENT. Of claims against estate of decedent, see Executors and Administrators, § 2. PRESUMPTIONS. In civil actions, see Evidence, § 2. On appeal or error, see Appeal and Error, § 10. PRIMARY ELECTIONS. See Elections, § 3. PRINCIPAL AND AGENT. Admissions by agent, see Evidence, § 5. Measure of damages for breach of agency con- Nature and form of action against agent, see Opinion evidence as to agent's authority, see Agency in particular relations, offices, or vc- See Attorney and Client; Brokers. 1. The relation. A contract of agency which leaves the agent free to terminate his relations with the principal on specified notice held to confer the same right on the principal.-Newhall v. Journal Printing Co. (Minn.) 228. orders for its machines and entitled to a com- Mutual rights, duties, and liabili- A co-owner of certain land held authorized to bind his co-tenant by an agreement to pay a commission to a broker for bringing a prospective purchaser to inspect the property, if a sale to him is made.-Lee v. Conrad (Iowa) 1096. Where applications for the purchase of stock are made to an agent authorized to sell such stock, and the price is paid to the agent, the payment will be deemed to have been made to the principal.-Stat v. Phillips (Minn.) 508. *Point annotated. See syllabus. |