ABANDONMENT.
Of homestead, see "Homestead," § 3.
Of nuisance, see "Intoxicating Liquors," § 6.
ABATEMENT AND REVIVAL.
Election of remedy, see "Election of Remedies." Judgment as bar to another action, see "Judg- ment," § 9.
Revival of judgment, see "Judgment," § 12. Right of action by or against personal repre- sentative, see "Executors and Administra- tors," § 5.
1. Death of party and revival of ac- tion.
ACCOMPLICES.
Testimony, see "Criminal Law," § 6.
ACCORD AND SATISFACTION.
See "Compromise and Settlement"; "Pay- ment"; "Release."
There can be no accord and satisfaction of a disputed claim, unless something of value has been received in full payment thereof.- Ness v. Minnesota & Colorado Co. (Minn.) 333.
Where payment of a sum admitted to be due for work and labor, and for money paid out, is made on condition that the creditor receipts in full for all demands, such receipt is without consideration.-Ness v. Minnesota & Colorado Co. (Minn.) 333.
An agreement to convey land held to create Acceptance of a check for a less amount than an interest in the vendee subject to enforce the contract price of goods sold, without any ment, so that the right of enforcement sur-condition as to its acceptance, held no bar to an vived under Code, § 3443.-Cone V. Cone action for the balance.-Fremont Foundry & (Iowa) 665. Machine Co. v. Norton (Neb.) 1058.
Limitation by statute, see "Limitation of Ac- tions."
Malicious actions, see "Malicious Prosecution." Review of proceedings, see "Appeal and Er- ror"; "Certiorari"; "Judgment," § 6; "Jus- tices of the Peace," § 4; "New Trial." Survival, see "Abatement and Revival," § 1. Actions between parties in particular relations. See "Landlord and Tenant"; "Master and Serv- ant." § 6.
Co-tenants, see "Partition."
Actions by or against particular classes of
See "Associations"; "Brokers," § 4; "Carriers," $8 2, 3; "Corporations," § 5; "Executors and Administrators," § 5; "Husband and Wife," § 4; "Infants," § 1; "Insane Persons," § 1; "Master and Servant," § 10; "Municipal Cor- porations," §§ 9, 11; "Partnership," § 1; "Principal and Agent," § 1. Bailees for hire, see "Bailments." Banks, see "Banks and Banking," § 2. Foreign corporations, see "Corporations," § 7. Heirs, see "Descent and Distribution," § 1. Mortgagees, see "Chattel Mortgages," § 2. Stockholders, see "Corporations," § 3. Sureties on trustees' bond, see "Trusts," § 3. Taxpayers, see "Municipal Corporations," § 10. Trustees in bankruptcy, see "Bankruptcy," § 3. Actions relating to particular species of property See "Fixtures."
Particular causes or grounds of action. See "Bills and Notes," $5; "False Imprison- ment," § 1; "Forcible Entry and Detainer," § 1; "Fraud," § 1; "Insurance," §§ 13, 18; "Judgment," § 13; "Libel and Slander," § 3; "Malicious Prosecution," § 3; "Negligence," § 2; "Nuisance," § 1; "Subscriptions"; "Tax- ation,' § 5; "Torts"; "Trover and Conver- sion," § 2.
Abuse of process, see "Process," § 3. Appeal bond, see "Appeal and Error," § 23. Breach of contract, see "Contracts," § 5; "Sales," §§ 7, 8.
Breach of covenant, see "Covenants," § 3.
Particular forms of special relief. See "Creditors' Suit"; "Divorce"; "Injunction"; "Interpleader"; "Quieting Title"; "Specific Performance."
Alimony, see "Divorce," § 3.
Cancellation of deed, see "Deeds," § 1. Confirmation of tax title, see "Taxation," § 8. Determination of adverse claims to real prop- Establishment of boundaries, see "Boundaries,” erty, see "Quieting Title." § 2.
Establishment of drains, see "Drains," § 1. Foreclosure of mortgage, see "Chattel Mort- gages," § 4; "Mortgages," §§ 6-11. Reformation of written instrument, see "Refor- Foreclosure of tax lien, see "Taxation," § 6. mation of Instruments."
Removal of cloud on title, see "Quieting Title.” Rescission of insurance policy, see "Insurance," § 5.
Setting aside fraudulent
conveyance, "Fraudulent Conveyances," § 3. Setting aside will, see "Wills," § 3. Trial of tax title, see "Taxation," § 8.
Particular proceedings in actions. See "Continuance"; "Costs"; "Damages"; "Depositions"; "Evidence"; "Execution" "Judgment"; "Judicial Sales"; "Jury"; "Lim- itation of Actions"; "Motions"; "Parties"; "Pleading"; "Process"; "Stipulations"; Bill of particulars, see "Pleading," § 6. "Trial"; "Venue." Default, see "Judgment," § 3.
Notice of action, see "Process," § 2. Revival of judgment, see "Judgment," § 12. Verdict, see "Trial,” § 11.
Particular remedies in or incident to actions. See "Attachment"; "Garnishment"; "Injunc- tion"; "Receivers."
Proceedings in exercise of special jurisdictions. Criminal prosecutions, see "Criminal Law." Suits in equity, see "Equity." Suits in justices' courts, see "Justices of the Peace," § 3.
1. Nature and form.
A proceeding in quo warranto, under Rev. St.
Breach of promise of marriage, see "Breach of 1898, c. 149, to determine the right of a person
Breach of warranty, see "Sales," § 8. Change of highway, see "Highways," § 1. Civil damages for sale of liquors, see "Intoxi- cating Liquors," § 7.
Compensation, see "Brokers," § 4. Conversion of mortgaged goods, see "Chattel Mortgages," § 2. see "Husband and
Criminal conversation, Wife," § 5.
Enforcement of claim against ward's estate, see "Guardian and Ward," § 1.
Enforcement of homestead rights, see "Home- stead," § 4.
Indemnity, see "Indemnity.".
Injuries to animals, see "Railroads," § 1. Loss of mail, see "Post Office," § 1. Lost instruments, see "Lost Instruments." Medical services, see "Physicians and Sur- geons."
Personal injuries, see "Bridges," & 2; "Car- riers," § 3; "Highways," § 2; "Master and Servant," $ 7; "Municipal Corporations," § 9; "Railroads," § 1; "Street Railroads," § 2. Price of goods, see "Sales," § 7.
Recovery of payment, see "Payment." § 2. Recovery of tax paid, see "Taxation," § 4. Rent, see "Landlord and Tenant," § 7. Trustees' bonds, see "Trusts," § 3. Wrongful execution, see "Execution," § 4. Wrongful use of streets, see "Municipal Corpo- rations," § 8.
Particular forms of action.
to hold the office of county superintendent, by the state, on the relation of a resident and tax- payer, is in the nature of a civil action.-For- dyce v. State (Wis.) 430; State v. Fordyce, Id. § 2. Joinder, splitting, consolidation, and severance.
That two several contracts with different persons are for the same service will not au- thorize joinder of causes of action against such persons on their several contracts.— Stewart v. Rosengren (Neb.) 586.
Under Rev. St. 1898, § 2647, an action against a vendor for breach of covenant of seizure may be joined with an action against him for false representations in the sale.-Koepke v. Winter- field (Wis.) 437.
ADEQUATE REMEDY AT LAW.
Adequacy of ordinary legal remedies as ground for denying mandamus, see "Mandamus," § 1. Effect on jurisdiction of equity, see "Creditors' Suit"; "Equity," § 1; "Injunction," § 1.
ADJOINING LANDOWNERS.
See "Boundaries."
Of courts in general, see "Courts," § 1.
See "Ejectment"; "Replevin"; "Trover and Operation and effect of former adjudication, see Conversion."
Where there is no evidence as to when an entryman became entitled to his patent, it is
Of loss within insurance policy, see "Insur- proper to refuse to leave to the jury to deter- ance," 10.
mine when possession of the land became ad- verse.-Baty v. Elrod (Neb.) 1032.
ADVERTISEMENT.
Publication of process, see "Process," § 2.
ADVICE OF COUNSEL.
Ground for prosecution, see "Malicious Prose- cution," § 1.
In particular proceedings.
As evidence, see "Criminal Law," § 10; "Evi- For change of venue, see "Venue," § 1. dence." § 4.
In pleading, see "Pleading," § 2.
ADVERSE CLAIM.
To real property, see "Quieting Title."
ADVERSE POSSESSION.
See "Limitation of Actions."
For continuance of action, see "Continuance." For service of summons, see "Process," § 2. On appeal from justice's court, see "Justices of the l'eace," § 4.
On application for default judgment, see "Judg- ment," § 3.
An affidavit taken before a notary of a sis- ter state held properly received in support of a motion in the courts of this state.-Browne v. Palmer (Neb.) 315.
Between tenants in common, see "Tenancy in St. 1901, p. 1196], a consular officer held a Common," § 1.
§ 1. Nature and requisites.
Evidence held sufficient to establish defend- ant's claim to certain land by adverse posses- sion.-Hohl v. Osborne (Iowa) 697.
Evidence of adverse possession held sufficient to sustain conclusion of law that plaintiff was the owner of land sued for.-Diers v. Ward (Minn.) 402.
Under Rev. St. U. S. § 1750 [U. S. Comp. notary public, within the meaning of Code Civ. Proc. 371, 375.-Browne v. Palmer (Neb.) 315.
See "Principal and Agent."
The possession of land under an executory contract of purchase is not adverse to the vendor until the purchase price is paid or the vendee is entitled to a deed of conveyance.- Irrigation, see "Waters and Water Courses," Beer v. Dalton (Neb.) 593.
Possession may be adverse, though the claim- ant occupies under a mistaken belief that the land is actually part of another tract.-Baty v. Elrod (Neb.) 1032.
§ 2. Operation and effect.
In a proceeding to assess damages for the construction of a highway, where defendant had title by adverse possession, the fact that he did not have record title was immaterial. -Hohl v. Osborne (Iowa) 697.
3. Pleading, evidence, trial, and re- view.
In an action involving the title to realty, evidence considered, and held insufficient to sustain a jury finding of 15 years' adverse pos- session on the part of plaintiff.-Glover v. Sage (Minn.) 471.
By contract with state agricultural society, plaintiff held to acquire a mere privilege, on the conditions named in the license, and not any interest in the real estate.-Mackay v. Minnesota State Agricultural Soc. (Minn.) 539.
A privilege to conduct a show on the state fair grounds held subject to cancellation on a violation by the licensee of the contract.— Mackay v. Minnesota State Agricultural Soc. (Minn.) 539.
show on the state fair grounds was revoked Where the privilege granted to conduct a because the terms of the privilege were will- fully broken by the licensee, he is without remedy.-Mackay v. Minnesota State Agri- cultural Soc. (Minn.) 539.
Suspension of power of alienation of property, see "Perpetuities.'
See "Divorce," § 3. Liability for, as enforceable against homestead, see "Homestead," § 1.
Of geographical or political divisions, see "Schools and School Districts," § L Of highways, see "Highways," § 1.
ALTERATION OF INSTRUMENTS.
See "Reformation of Instruments."
In an action for money laid out and ex- pended for defendants on a note on which they were sureties, an instruction that a material al- teration of the note would be available to de- fendants only in case they were sureties, and the plaintiff, when making the alterations, knew that fact, was erroneous.-Ball v. Beaumont (Neb.) 170.
Interlocutory orders will not be reviewed.— Coleridge Creamery Co. v. Jenkins (Neb.) 123. § 3. Right of review.
Where, at a term subsequent to that at which a motion for a new trial was overruled, the unsuccessful party asked the court to ren- der judgment on the verdict, he was not there- by precluded from obtaining a review of al- leged errors in the supreme court.-Carlson v. Benton (Neb.) 600.
A plaintiff by retaining the costs paid under Alteration of a written order for a threshing an order vacating a default waives his right machine, to show provision for security, held to appeal therefrom.-Lounsbery v. Erickson not material, in view of the fact that defend- (S. D.) 1071. ants had given such security and received the machine without regard to the order as chan-§ ged.-J. I. Case Threshing Mach. Co. v. Eb- bighausen (N. D.) 826.
4. Presentation and reservation in lower court of grounds of review. Where the court made no ruling on an ob- jection to a question to a witness, the matter will not be considered on appeal.-Garretson v. Kinkead (Iowa) 55.
Where, in equitable action to subject wife's
On appeal or writ of error, see "Appeal and property' to pay for family medical service, Error," § 15.
Of pleading, see "Pleading," § 5.
Of statute, see "Statutes," § 4.
AMOUNT IN CONTROVERSY.
Jurisdictional amount, see "Justices of the Peace," § 2.
Carriage of live stock, see "Carriers," § 2. Description in chattel mortgage, see "Chattel Mortgages," § 1. Injuries from operation of railroads, see "Rail- roads," § 1.
Taxation of mortgaged cattle, see "Taxation," § 2.
ANNULMENT.
Of will, see "Wills," § 3.
In pleading, see "Pleading," § 2.
APPEAL AND ERROR.
See "Certiorari"; "New Trial."
Appellate jurisdiction of particular courts, see "Courts," § 2.
Review of proceedings of justice of the peace, see "Justices of the Peace," § 4.
Review in special proceedings. See "Mandamus," § 3.
Condemnation proceedings, see "Eminent Do- main," § 3.
Election contest, see "Elections," § 3.
Review of criminal prosecutions.
See "Criminal Law," § 23; "Homicide," § 6. § 1. Nature and form of remedy.
Errors of law occurring at the trial of an
equity case can be reviewed only on petition in error.-Browne v. Palmer (Neb.) 315.
A complaint that plaintiff was not permitted to amend his petition during the trial can be re- viewed only by petition in error.-Reiss v. Argu- bright (Neb.) 985.
An appeal in equity is not a proceeding to correct errors in the exclusion of evidence.- Kinney v. Bittinger (Neb.) 1005.
§ 2. Decisions reviewable.
From an order granting a motion for a judgment, notwithstanding the verdict, no ap- peal lies.-Sanderson v. Northern Pac. Ry. Co. (Minn.) 542.
wife answered to merits, heid, that she could not claim on appeal that she had a right to a trial by jury.-Boss v. Jordan (Iowa) 111. Misconduct of counsel in argument should be complained of and attempted to be corrected Co. (Iowa) 698. at the time.-Gorham v. Sioux City Stockyards
Rulings on admission of evidence cannot be reviewed, in the absence of objections and ex- ceptions, or on other objections than made below.-McCormick v. Olbinski (Mich.) 499.
considered unless objection was made below.- Trotter v. Tousey (Mich.) 544.
Error in the admission of evidence cannot be
Where plaintiffs think an instrument will be misunderstood by the jury, they should call the attention of the court to the matter; otherwise, they cannot complain on appeal.-Rutherford v. Simpson (Minn.) 413.
Under Laws 1901, c. 113, requests to sub- mit an issue to the jury, and exceptions for failure so to do, are not necessary.-Robertson v. Burton (Minn.) 538.
A judgment will not be reversed for errors at law, unless petition in error alleges error in overruling motion for new trial.-Orcutt v. McNair (Neb.) 200.
Objections not assigned in a motion for a viewed.-Engel v. Dado (Neb.) 629. new trial or petition in error will not be re-
viewed.-Engel v. Dado (Neb.) 629. Instructions not excepted to will not be re-
To review proceedings on error, a motion for new trial must be filed.-Lau v. Lindsay (Neb.) 642.
Where no motion for a new trial is filed, and the case is brought up on error, the judgment of the lower court will be affirmed, if sustained by the pleadings.-Lau v. Lindsay (Neb.) 642.
Where evidence is received without objection, no question as to its admissibility can arise.- Malone v. Garver (Neb.) 726.
tain, counsel should tender an instruction free on review; otherwise, the error will be deemed from defect, in order to lay basis for complaint waived.-City of South Omaha v. Meyers (Neb.) 743.
Where an instruction is incomplete or uncer-
Where evidence to establish facts not in issue has been admitted without objection, a party cannot, on appeal, complain of such evidence.- President, etc., of Insurance Co. of North Amer- ica v. Buckstaff (Neb.) 755.
Where a note has been sustained in part, the maker of it, who has taken no exceptions, cannot complain of error in overruling the oth- er part.--Curran v. Hagerman (Neb.) 1003.
To authorize a review of errors occurring at a trial a motion for a new trial is essential in equity as well as in law cases.-Curran v. Hag- erman (Neb.) 1003.
The objection that there was a misjoinder of parties plaintiff cannot be raised for the first time on appeal.-Thompson v. Rush (Neb.) 1060.
Where a trial court submitted a question to the jury after denying a motion to direct a verdict, and thereafter rendered judgment for defendant, an appeal therefrom will be treated as though the motion to direct had been sus- tained, and hence no motion for a new trial
was necessary.-Lovejoy v. Campbell (S. D.) 24. An objection to the form of a question can- not be made for the first time on appeal.-Hed- lun v. Holy Terror Min. Co. (S. D.) 31.
The words "et al." following the names of parties to a petition in error held not a suffi- cient designation of any persons not expressly named in the petition.-Brabham v. Custer County (Neb.) 989.
6. Requisites and proceedings for transfer of cause.
Though the appeal permitted by Code 1897, § 4101, par. 3, from an order sustaining a demurrer with leave to amend, was not taken within six months, an appeal within six months of a subsequent order dismissing the petition was timely. -Farmers' & Merchants' State Bank v. School Tp. of Rock Creek (Iowa) 676. The time for perfecting an appeal in equitable actions begins to run at the date on which the final decree is entered of record.-Ha!! Moore (Neb.) 294.
7. Effect of transfer of cause or pro- ceedings therefor.
By the perfecting of an appeal in equity the parties are placed in the same situation as at the commencement of the suit.-Riley Bros. Co. v. Melia (Neb.) 913.
§ 8. Supersedeas or stay of proceedings. The perfecting of an appeal from decree in equity, and filing and approval of a superse deas bond, suspend such decree.-Riley Bros. Co. v. Melia (Neb.) 913.
9. Record and proceedings not in rec- ord.
Where the evidence is not in the record, it will be presumed that the use of a word in an instruction objected to was justified by the evidence.-Meyer v. Standard Tel. Co. (Iowa)
Where the record does not show that the judge was asked to give his reasons for re- fusing a new trial, or that any exceptions were taken, a new trial will not be ordered.-Gillett v. Burns (Mich.) 104.
On appeal from a judgment, where there is no bill of exceptions or settled case, the only ques- tion to be reviewed is whether the findings or the verdict sustains the judgment.-Peach v. Reed (Minn.) 229.
Where the court ordered judgment in plain- tiff's favor for the amount of general and spe- cial verdicts, the order will be presumed to be justified by the proceedings, in the absence of a settled case or bill of exceptions.-Eklund v. Martin (Minn.) 406.
Where the trial court has found certain ulti- mate facts, but has added thereto the state- ment that, but for certain conditions, it would have reached a different conclusion, to give value to such qualified inference the facts to support the same should be embraced in the bill of exceptions, and the findings should also contain the essential facts, or they will be dis-
In equitable actions, where duly certified transcripts of the record in two or more cases are included under one cover and filed in due time, jurisdiction attaches over each case.-Hall v. Moore (Neb.) 294.
Error must affirmatively appear, and in the absence of a bill of exceptions the presumption is that the judgment is sustained by sufficient evidence.-Spargur V. Prentiss (Neb.) 300; Prentiss v. Spargur, Id.
The original files and papers in a proceeding are not a transcript within Code Civ. Proc. 586.-Brabham v. Custer County (Neb.) 989.
Affidavits for continuance must be embodied
in the bill of exceptions to be reviewed.-Kin- ney v. Bittinger (Neb.) 1005.
Exclusion of records of a corporation, offered in evidence, held not reviewable on appeal, in the absence of a showing of the nature of the evidence.-Hunt v. Northwestern Mortg. Trust Co. (S. D.) 23.
Where the appeal record did not show the ground on which evidence admissible against one defendant was objected to by the other, its admission will not be reviewed.-Lovejoy v. Campbell (S. D.) 24.
It will be presumed on appeal that the find- ings are supported by the evidence.-Reder v. Bellemore (S. D.) 1065.
of summons, that a copy of the complaint was Recital in an order for service by publication annexed to the affidavit, held conclusive on appeal.-Allen v. Richardson (S. D.) 1075.
Affidavits accompanying the record on appeal of mandamus proceeding held not open to con- sideration.-State v. Wolski (Wis.) 360.
Order of circuit court, affirming one of the county court denying application for construc- tion of a will, on the ground of a former construction, is not reviewable, in the absence of a bill of exceptions.-In re Eckhart's Estate (Wis.) 363; Gollusch v. Heidemann, Id.
10. Assignment of errors.
Assignments of error, because the special findings are inconsistent with the general ver- dict, and because plaintiff was guilty of con- tributory negligence, held insufficient.-Copeland v. Ferris (Iowa) 699.
Under Code, § 4136, assignments that the court erred in overruling a motion for judg- ment and for a new trial, etc., held insufficient. -Copeland v. Ferris (Iowa) 699.
An assignment of error complaining of in- structions which relate to two independent mat- ters held insufficient.-Copeland v. Ferris (Iowa) 699.
Whether an instruction correctly stated the measure of damages cannot be reviewed under an assignment of error relating solely to the sufficiency of the evidence to warrant the in- struction. Meyer v. Standard Tel. Co. (Iowa) 720.
Where the errors assigned are required to be raised by a motion for new trial, and the ac- tion of the court upon that motion is not as- signed as error, the judgment will be affirmed. German Mut. Fire Ins. Co. v. Paliner (Neb.) 624.
An assignment that the court erred in giving an instruction identified, without stating the grounds on which error is based, is insufficient. -Hedlun v. Holy Terror Min. Co. (S. D.) 31. § 11. Briefs.
Error in refusing instructions must be spe- cifically pointed out.-Trompen v. Yates (Neb.) 647.
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