120. Where assignments of error in the admis- | sion of evidence are not discussed by appellants they will be treated as abandoned.-Patrick Red Sandstone Co. v. Skoman, (Colo. App.) 29 P. 21 121. Under the requirement that all points relied on must be stated in the briefs of the respective parties, appellant cannot raise the point that the complaint was insufficient, unless he has suggested the question in his brief; and this, notwithstanding the statutory provision that such question may be raised at any time.-Fransioli v. Brue, (Wash.) 29 P. 928. V. EFFECT OF APPEAL. Stay of proceedings. further step in the cause within the time limited for the filing of his brief, the court, on respondent's motion, will dismiss or affirm, or order briefs to be filed and the cause to be heard upon such terms as may be just, respondent's motion to dismiss will be granted, where the transcript is filed only after great delay, and appellant fails to file his brief within 40 days thereafter, and the only excuse for the delay is that counsel was not sure whether the filing of the transcript was sufficient.-Tustin v. McFarland, (Wash.) 29 P. 929. 130. Although Sup. Ct. Rule 12 (28 P. vi.) provides that no alleged error will be considered unless clearly pointed out in appellant's brief, except that "the objection that the complaint does not state facts sufficient to constitute a cause of action" may be taken at any time, a statement that the only error intended to be raised is the insufficiency of the complaint will not excuse failure to file a brief within the prescribed time, since by rule 9, (28 P. vi.,) the brief must be filed before the cause can be placed on the calendar; and respondent's motion to dismiss will be granted, under rule 18, (28 P. vi.,) providing that, when appellant fails to file his brief within time, the court, on respondent's motion, will dismiss or affirm, or order briefs to be filed, and the cause to be heard upon such terms as may be just. P. 929. 122. On appeal from an order appointing an administrator the undertaking provided for by Code Civil Proc. § 941, stays all further proceed ings upon the "order appealed from or the matters embraced therein," such appeal not being within the exceptions mentioned in sections 942945, 949, where appellants are required to perform the directions of the order appealed from; and hence the administrator will be restrained from performing any acts as such, loss to the estate in consequence thereof being avoidable by the ap pointment of a special administrator under sec tion 1411. Pennie v. Superior Court, 26 P. 617, 89 Cal. 31, followed.-In re Wood's Estate, (Cal.) 29-Lacy v. North Olympia Land Co., (Wash.) 29 P. 1108. Affirmance. VI. DECISION. 123. Where defendant moves to dismiss plaintiff's appeal on the ground that a transcript of the case has not been filed within the time prescribed by law, and it appears that plaintiff has been duly served with notice of the motion, and has made no effort to perfect the appeal, and has offered no excuse for such failure, the judgment will be affirmed and entered, with costs, and interest at 10 per cent. from its date.-Seattle & M. Ry. Co. v. Joergenson, (Wash.) 29 P. 88. Dismissal. 124. On appeal from a judgment dismissing the action without prejudice, where it is admitted by counsel that, after the dismissal, another suit was commenced and is pending on the same cause of action, and it appears that the issues between the parties cannot be determined on the appeal, the appeal will be dismissed.-Hoskins v. McGirl, (Mont.) 29 P. 1120. 125. Where the transcript on appeal has not been filed within the time prescribed by the supreme court rules, the appeal will be dismissed. In re Read's Estate, (Cal.) 29 P. 245. 126. A motion to dismiss an appeal, on the ground that the transcript has not been filed within the time prescribed by the supreme court rules, will be denied, where the certificate of the clerk of the trial court on which such motion is based does not conform to supreme court rule 4.-In re Sweet's Estate, (Cal.) 29 P. 249. 127. An appeal perfected September 14, 1891, was dismissed January 12, 1892, on respondent's motion, for failure of appellants to file transcript within 60 days. Appellants, on January 25th, moved to restore the cause on affidavit, showing that the transcript was placed in hands of their attorneys in October, 1891, and that, on account of pressure of business and inadvertence, they failed to file the same in time. Held, that the motion to restore the cause should be denied.Fahey v. Belcher, (Idaho,) 29 P. 112. 128. Though rule 2 of the supreme court requires an appellant to file his bill of exceptions within 40 days after perfecting his appeal, fail. ure to file such bill within more than a year after perfecting an appeal is no ground for dismissal, where appellant has been trying, in good faith, to secure a settlement of her bill of exceptions, and a mandate of the court has issued to compel the settlement thereof. -In re Burton's Estate, (Cal.) 29 P. 224. 129. Under Sup. Ct. Rule 18, (28 P. vi.,) which provides that where the transcript has been filed, but the appellant shall have taken no 131. Sup. Ct. Rule 22 (28 P. vii.) provides that all technical motions tending to prevent the hearing of a cause on the merits shall be stated in respondent's brief, and will be heard at the time the cause is assigned on the calendar, etc. Held, that a motion by respondent to dismiss an appeal does not prevent appellants, after filing the transcript and briefs, moving to dismiss their own appeal.-Tacoma Lumber & Manuf'g Co. v. Wolff, (Wash.) 29 P. 936. Amendment of decree of appellate Modification of judgment. 133. Where an appeal constitutes a trial de novo the appellate court will modify so much of the judgment appealed from as fixes attorneys' fees, and seems to it to be faulty -Boyer v. Boyer, (Wash.) 29 P. 981. Remand for further proceedings. 134. Where, in a suit to foreclose a mortgage of land, given to secure notes of an association for the purchase money of such land, the complaint in the caption named the association and the individual menibers as defendants, but the decree and pleadings do not clearly show who were the members of the association against whom complainant was entitled to a deficiency judgment when such obligation was incurred, the court will not modify the decree, but remand the cause for further proceedings.-Goodlett v. St. Elmo Investment Co., (Cal.) 29 P. 505; Palmer v. Same, Id. 507. Mandate and proceedings below. 135. When a judgment has been affirmed, and the cause remanded by the supreme court to the court wherein the judgment was originally rendered, accompanied by a mandate showing such affirmance, the prevailing party is entitled to have execution issue upon such judgment from the court thus reinvested with the custody of the record.-Rockwell v. District Court of Lake County, (Colo. Sup.) 29 P. 454. Damages-Appeal taken for delay. 136. A motion for damages on the ground that an appeal was taken for delay only, will not be granted by an appellate court where there is no transcript before it by which to determine whether or not the appeal was taken for such purpose. -Walter v. Maresch, (Wash.) 29 P. 205. VII. LIABILITIES ON APPEAL Bonds. Appellee's attorney fee. Award. 2. Upon the hearing of a motion to make the award of arbitrators a rule of the district court, the court may permit an amendment of plaintiff's written statement of facts so that it will correspond with the award. -Anderson v. Burchett, (Kan.) 29 P. 315. 137. The supersedeas bond, on the removal by writ of error of a cause from the state supreme court to the United States supreme court, conditioned that appellant "shall prosecute his writ to effect, and answer all costs and damages if he shall fail to make good his plea," does not require the payment of appellce's attorney fee, where the writ was dismissed by the federal court for want of jurisdiction. -Kellogg v. Howes,-Anderson v. Burchett, (Kan.) 29 P. 315. (Cal.) 29 P. 230. Setting aside award. 3. Agreements between counsel with reference to the continuance of a cause which has been submitted to arbitration, not reduced to writing, nor brought to the attention of the arbitrators, are not of themselves suficient grounds to set aside an award if one of the parties, in the absence of the other, proceeded with the bearing. Action on bond filed too late. 138. An action may be maintained on an appeal bond filed one day too late, where such bond has operated to stay the judgment, and recites that it is given for such purpose, although the appeal is thereafter dismissed for failure to file the bond in time.-Pratt v. Gilbert, (Utah,) 29 P. 965. Effect. APPEARANCE. 4. The mere indebtedness of an arbitrator to one of the parties to the controversy submitted, where the indebtedness is small, and it is not thown that it was insecure, or that its payment depended to any extent on the result of the controversy, is not a sufficient reason to set aside an award.-Anderson v. Burchett, (Kan.) 29 P. 315. 5. Irregularities of arbitrators, to whom is submitted a controversy, and who act in good faith, which are not prejudicial to the complaining party, will not avoid an award.-Anderson v. Burchett, (Kan.) 29 P. 315. ARSON. What constitutes-First degree. 1. An action brought before a justice under the designation of "forcible detainer," but which was in reality ejectment, the only issue presented being title and the unlawful possession of de1. On a prosecution for arson, under section 49 fendants, and which should therefore have been of the act relating to crimes and punishments, dedismissed for want of jurisdiction, was, on mo- claring it arson in the first degree if a person shall tion of defendants, certified to the district court, set fire to or burn in the nighttime any dwelling apparently on the supposition that it was gov-house in which there shall be at the time some erned by Rev. St. § 3435, providing that, if it human being, where the evidence shows that the shall appear on the trial of any case before a jus- house was burned in the nighttime, and had in it a tice that the title to land is brought in question, the human being, who was burned up with it, it is not cause shall be certified to the district court. De- error to confine the instructions to arson in the fendants then appeared in the district court, and first degree.-State v. Nolan, (Kan.) 23 P. 56S. successfully resisted plaintiff's motion to remand. Punishment-Constitutional law. Held that, by reason of such appearance and proceedings on the part of defendants, the court obtained jurisdiction of their persons, which could not be affected by the fact that, before going to trial, they moved to dismiss for want of jurisdiction; and therefore the district court had Jurisdiction of the action, the subject-matter thereof being within its original jurisdiction.Jenkins v. Jeffrey, (Wyo.) 29 P. 186. 2. A general appearance, and the filing of an answer, after denial of a motion to quash the return upon the summons, constitute a waiver of all irregularities or defects in the issue, service, or return of the process.-Ruby Chief Min. & Mill. Co. v. Gurley, (Colo. Sup.) 29 P. 668. Application. For new trial, see New Trial, 1. Appointment. Of receivers, see Receivers. Appropriation. See States and State Officers, 1. ARBITRATION AND AWARD. See, also, Compromise. Qualification of arbitrators. 2. Under the various statutes of the state re lating to crimes and punishments, criminal pro- ASSAULT AND BATTERY. On a prosecution for an attempt to commit an assault with a deadly weapon it appeared that defendant met a traveler in a road, and, pointing a rifle towards him, commanded him to halt, saying to him, "Turn around quick, or will blow your head off;" and, "If you move another step forward, I will blow your head off." It was not shown that the rifle was loaded. Held, that the fact that the rifle was not loaded was s matter of defense, and the court erred in ruling as a matter of law that it was not a deadly weapon.-State v. Herron, (Mont.) 29 P. $19. Assessment. 1. Where a party to an arbitration, after Of taxes, see Taxation, 6-12. learning facts which make an arbitrator incompetent, proceeds with the hearing without objec tion, he will be deemed to have waived his objection, and will not be permitted to raise the ASSIGNMENT. same after an award has been made.-Anderson See, also, Assignment for Benefit of Creditors. v. Burchett, (Kan.) 29 P. 315. Of mortgage, see Mortgages, 6. 3. Where a contractor with a railroad company to construct its road, after becoming financially embarrassed, and unable to complete his contract, agrees with a construction company to transfer to it all his contracts, upon condition that it shall receive all of the stock, moneys, and property agreed to be paid to him by the railroad company, the construction company, if it carries out and completes such contract, has a prior right to all of such stock, moneys, and property as against the contractor, or any persons to whom the contractor has attempted to transfer any stock, when it was not earned or paid for.Sargent v. Kansas Midland R. Co., (Kan.) 29 P. 1063. Assignment after suit-Right to retain assignor as party. 4. Where one sues a corporation on a contract or other obligation, he has the right to have such corporation retained as defendant, and cannot be deprived of such right by its insolvency, or by any disposition it may make of its property, and on appeal in such action a motion to substitute an assignee of the corporation as defendant will be denied.-Hood v. California Wine Co., (Wash.) 29 P. 768. ASSIGNMENT FOR BENEFIT See, also, Insolvency. ing merely E.'s representative, he obtained no greater rights than those possessed by E. at the time of the assignment, and could not recover, the statute concerning assignments conferring no special power on the assignee. BEATTY, C. J., and PATERSON, J., dissenting. Francisco v. Aguirre, (Cal.) 29 P. 495. Assignment of Errors. See Appeal, 34–39. Associations. See Corporations. ASSUMPSIT. Money had and received. 1. A husband and wife conveyed by a quitclaim deed land in which they had a homestead estate to plaintiff, who conveyed his right of title and interest in such land to defendant under an agreement that the latter should protect plaintiff's title, perfect it if necessary, and sell the land for plaintiff. Thereafter defendant procured a grant, bargain, and sale deed of the land to himself from plaintiff's grantors, and then sold the land. In an action to recover the proceeds of the sale in the hands of defendant, plaintiff testified as follows: "He [defendant] agreed to give me one-half. I told him I would give him onehalf what he got." And defendant testified that he agreed to give plaintiff one-half of whatever he recovered under the deed, that plaintiff was to give him the land, and that he was to divide the receipts with plaintiff. Held, that such evidence was sufficient to support a finding that defendant was to pay all costs incurred in the recovery, sale, or disposal of the land.-Faivre v. Daley, (Cal.) 29 P. 256. 2. An action for money had and received does not lie to recover money placed in defendant's hands as an officer of a land pool, and with plaintiff's consent invested in land contracts in trust for plaintiff, though defendant, after the purchase, contrary to plaintiff's wishes, transferred the contracts to a corporation formed of the members of the pool, and refused to issue to plaintiff his proportion of stock in the corporation.— McCreery v. Wells, (Cal.) 29 P. 877. Pleading. 1. An instrument in writing executed by insolvent debtors, whereby they place all their property, consisting of a stock of general mer3. An action by an agent against his principal chandise, in the exclusive possession of a third person, as trustee, and give detailed directions and received, but for money due; and an allegafor commissions is not an action for money had as to how the business shall be conducted in the tion in the complaint in such an action, that the future, and provide for the payment of certain principal has collected the proceeds of sales creditors pro rata, and for the return of the re-made by the agent and has appropriated them to mainder to themselves, heirs, or assigns, is intended to and has the effect to leave the absolute his own use, does not charge a conversion.control of their business in their own hands, and Park v. Mighell, (Wash.) 29 P. 556. is absolutely void, and an application by a judg ment creditor to have the property placed in the hands of a receiver ought to be granted. -Brigham v. Jones, (Kan.) 29 P. 308. Action by assignee-Recovery of property. 2. E., being indebted to sundry persons, executed a bill of sale of certain furniture to defend ant in satisfaction of an existing debt, and at the same time received from defendant a lease of the furniture for a given term, at the expiration of which, E. refusing to deliver possession, defeudant seized the property under claim and delivery. On the morning of the same day, and before seizure, E. executed an assignment of "all her property" to plaintiff for the benefit of creditors, which was filed for record before the seizure, but plaintiff did not attempt to take possession until several days thereafter, when he found the sheriff in possession under defendant's suit, and sued the sheriff and defendant for conversion. Held, that while defendant's title could not be asserted against E.'s creditors, in the absence of an "actual and continued change of possession," as required by Civil Code, § 3440, yet such title being good as against E., and plaintiff be ATTACHMENT. See, also, Execution; Garnishment. 1. Mortgaging property in pursuance of an agreement to secure an accommodation indorser of the mortgagor's note is not a fraudulent disposition of property, so as to warrant an attachment.-Godbe Pitts Drug Co. v. Allen, (Utah,) 29 P. 881. Property subject to. levied on under an attachment against H., and re- 3. If an affidavit for an attachment is defective in not stating all the statute requires, or if it is false, the court has no jurisdiction to issue Compensation Bonds. 4. Hill's Code, 317, providing that the in- 5. If an attachment was issued upon a false 29 P. 851. 6. In a suit on a bond given by the defendant Claims by third persons. 7. Plaintiff claimed certain wheat in his pos- Motion to discharge-Burden of proof. Dissolution. 9. In proceedings to discharge an attachment, ATTORNEY AND CLIENT. Attorneys' fees allowed, see Divorce, 8; Executors Evidence of value of services, see Evidence, 13. 1. A client cannot maintain an action against 2. Though the supreme court has original ment. Contract of employ- 3. Plaintiff, an attorney at law, agreed to 4. Where the supreme court of the territory 5. Where the supreme court of the territory places where defendant's business called him, Employment of other attorneys. 8. In an action to recover for services ren- Requisite knowledge and skill. 9. The court properly charged that "an at- Contracts between. 10. In an action to recover for services, defend ATTORNEY GENERAL. Appointment to fill vacancy. Under the act creating the office of attor- "-the person appointed by the governor to AUCTION AND AUCTIONEER. 4. In an action on a bail bond to secure a fine 5. Crim. Prac. Act § 508, provides that, in Bailment. See Banks and Banking; Carriers. Ballots. The terms of a public auction sale of land at the end of each description were stated the A vency. Bankruptcy. perfect. Instrument of sale at purchaser's ex- See Assignment for Benefit of Creditors; Insol- 1. Under Organic Act, $ 9, which provides Action on recognizance-Defenses. 2 In an action upon a recognizance the fact In an action on a recognizance the sureties BANKS AND BANKING. 1. In an action against defendant vank to re- |