ABATEMENT. See Intoxicating Liquors, 444.
See Discretion, 128, 222, 235, 359,
Whether a motion to make an information more definite may ever be granted as a matter of right, not determined, but if permissible, there was no abuse of discretion in denying such motion in this case. State v. Hakon,
It is held that under the facts of this case it is unnecessary to decide whether § 4752, R. C. 1905, which provides that the owner of a thing owns all its products and accessions, establishes title to grain raised on land and severed therefrom by one holding possession thereof after forfeiture of an executory contract of purchase, in the vendor as against his vendee, when such vendor has never been in possession of the land; but a review of the authorities discloses them overwhelmingly in favor of ownership in the grower of the crop. Golden Valley L. & C. Co. v. Johnstone, 101.
1. Under the facts of this case, held, in the absence of fraud or mistake, it will be presumed that accountings and settlements were fairly made and embraced all prior transactions between the parties. Held, further, that burden is on defendant to overthrow such presumptions in which they have failed, and to show that such settlements were erroneous in respect to any item in the account. Wood v. Pehrsson, 357.
2. On the trial plaintiff accounted for all transactions between the parties which occurred subsequent to the July 15, 1903, settlement, and from a con- sideration of the testimony it is held, that there was a balance due plaintiff on January 1, 1906, of $3,900.97, and that, to the extent of such sum, with interest, plaintiff has a lien under the chattel mortgage in suit, and is entitled to a foreclosure thereof, as prayed for in his com- plaint. Wood v. Pehrsson, 357.
ACTION. See Parties, 383; Practice, 287; Quieting Title, 290. 1. Recovery of a judgment against the debtor, in a suit at law, does not waive the right to a lien nor bar an equitable action to enforce the same. Erickson v. Russ, 208.
2. While foreclosing his mortgage in an appropriate action, plaintiff has the right to maintain an action to quiet title based upon his quitclaim deed, and it is error for the trial court to force him to elect between the two actions. May v. Cummings, 287.
3. When a use plaintiff brings suit to quiet title in the name of his grantor, he must rely upon the title as of the date of the transfer from the nomi- nal plaintiff to him. Hanitch v. Beiseker, 290.
4. An action begun as an equitable action may, by subsequent pleadings, be changed in nature to one at law properly triable on demand to a jury. Hart v. Wyndmere, 383.
5. If such action between many parties, even though of conflicting interest, is but a combination of two or more separate actions at law, the action is not necessarily changed from one at law to one in equity because of such voluntary consolidation of issues by the parties. Hart v. Wynd-
ADVERSE CLAIMS. See Action, 287; Pleading, 97; Quieting Title, 25, 290; Vendor and Purchaser, 101.
1. Secs. 7520 and 7534, R. C. 1905, define the nature of the recovery which may be had by plaintiff in actions to determine adverse claims to real property; and a plaintiff who has proceeded under the provisions of said chapter can only recover a money judgment for the value of the use and occupation, except when he shows damages by waste or removal of the property from the premises. Golden Valley L. & C. Co. v. Johnstone, 101.
2. On an appeal in an action to determine adverse claims, where the judgment roll only is before the supreme court, and it appears by defendant's coun- terclaim that the tax deed under which he claims and is in possession is a valid tax deed, and the findings show that all tax proceedings were in accordance with the statute, and that all the grounds urged by plaintiff to show defects in the tax proceedings do not exist,—held, that defendant's title is valid, and that the deed under which he claims vested a complete title in him, and that the deed under which the plaintiff claims conveyed nothing. Murray v. Lamson, 125.
AFFIDAVIT. See Attachment, 344; District Judge, 444; Judg- ments, 198, 222; New Trial, 551; Voters and Elections, 245.
1. Affidavits of prejudice directed at the judge of the district court, and not
filed before the commencement of the term at which the case is to be tried, are of no effect, and do not deprive the judge of the right or power to try the action in which such affidavits are filed during the term time. Stockwell v. Crawford, 261.
2. Where the attachment is sought under subparagraph 8 of § 6938, the prop- erty must be described specifically. It is not enough to tell where the goods are, but definite allegations must be made showing what they are. Weil v. Quam, 344.
3. A subsequent mortgagee may make the necessary affidavit and enjoin the sale. State v. Buttz, 540.
4. The affidavit upon which the restraining order is based should set forth the facts, for the satisfaction of the judge of the district court, but the facts need not be stated with the same particularity required of pleadings. The affidavit in this case examined, and, held, sufficient to confer juris- diction. State v. Buttz, 540.
5. An application to reopen a judgment must be accompanied by an affidavit of merits. Such affidavit of merits may set up all of the facts of the case, and be presented to the court itself for an inspection of the merits. It is not necessary that the client submit the facts to an attorney upon the merits. Bismarch Grocery Co. v. Yeager, 547.
ALIMONY. See Divorce, 503.
AMENDMENT. See Pleading, 235, 359.
ANIMALS. See Criminal Law, 133.
ANSWER. See Pleading, 359.
APPEAL AND ERROR. See Certiorari, 476; Criminal Law, 179; Evidence, 305; Indictment and Information, 179; Justice of Peace, 348; New Trial, 377; Sales, 478; Trial, 335, 569.
1. A notice of appeal to this court is sufficient that states that the appeal is from an order, fully describing it, although it does not state that it is from the whole of the order, in accordance with the provisions of the statute. State v. Bleth, 27.
2. Failure to follow § 7325, R. C. 1905, by enumerating, in an order, all papers on which it is based, does not warrant a dismissal of an appeal from such order. State v. Bleth, 27.
3. Payment of costs to the clerk, under an order, which are not accepted by
APPEAL AND ERROR-continued.
the appellant, is no ground for the dismissal of the appeal. State v. Bleth, 27.
4. Where the record fails to disclose what items of cost and disbursements were incurred, the supreme court will not review the taxation by the trial court. State v. Winbauer, 70.
5. On demurrer to the complaint solely for improper union of several causes of action, it is contended on appeal from an order overruling such de- murrer that the complaint does not state a cause of action, and the order overruling the demurrer should be reversed. Held, this question
is not before the court. Golden Valley L. & C. Co. v. Johnstone, 97. 6. In an action for damages for conversion of grain by a common carrier, in- trusted to it for transportation, one of the defenses relied upon by appellant was that the grain did not belong to the plaintiff consignor, but was the property of one C. In attempting to make prooi of such ownership after proper foundation laid, and after C. had testified that the grain all belonged to plaintiff, C. was interrogated as to whether he had made statements to the effect that he owned the grain. Held, that such questions were proper as going to the credibility of C. as a wit- ness, when offered for that purpose, and that it was reversible error of the trial court to sustain objections to such questions. Taugher v. N. P. Ry. Co. 111.
7. A justice's summons bore date two days after the date of filing with the justice of the complaint, affidavit, and undertaking for attachment, and issuance of the writ of attachment. Held, that on the offer of such papers in evidence in an attempt to show that they were simultaneously issued, it was not error to exclude them from evidence. Taugher v. N. P. Ry. Co. 111.
8. On an appeal in an action to determine adverse claims, where the judgment roll only is before the supreme court, and it appears by defendant's coun- terclaim that the tax deed under which he claims and is in possession is a valid tax deed, and the findings show that all tax proceedings were in accordance with the statute, and that all the grounds urged by plaintiff to show defects in the tax proceedings do not exist, held, that defendant's title is valid, and that the deed under which he claims vested a complete title in him, and that the deed under which the plaintiff claims conveyed nothing. Murray v. Lamson, 125.
9. Whether a bill of particulars in a criminal case is permissible in this state. not decided, but, conceding it to be, it is always within the discretion of the trial court, which discretion will be interfered with only for abuse. State v. Empting, 128.
10. The allowance of answers to leading questions which assume facts not proven is strictly discretionary with trial judge; and unless there appears a
« 이전계속 » |