ment of adultery without defining the of- | APPEAL AND ERROR. Appellate jurisdiction generally. For certified questions, see Cases Certified. AFFIDAVITS. AIR. Time for objection that warrant for search of premises was not sup. ported by affidavit, see Appeal and Error, 13. On motion for new trial, see New Trial, 4. Judicial notice by appellate court, see Necessity of, to review objection to As to bill of review, see Review. 1. An order of the district court which confirms an order of the county court in an ancillary administration, refusing to grant a petition filed by the principal administrator under the direction of the principal court for the sale of real estate in the state of the ancillary administration, and the transmission of the proceeds there Easement of, see Easements, 2; Taxes, of to such principal court for the payment 3. ALIENS. Administration of estates of, see Diplomatic and Consular Officers; Executors and Administrators, la. ALLOWANCE. Of claim against decedent's estate, see of the debts there provided, is a final order affecting a substantial right made in a special proceeding, and is appealable as such under § 7225, Rev. Codes of N. Dak. 1905. Dow v. Lillie, L.R.A.1915D, 754, 144 N. W. 1082, 26 N. D. 512. 2. An appeal may be had from a decision of the probate court refusing to appoint an administrator and grant letters of administration of the estate of a nonresident intestate, where the decision is based upon the ground that such intestate left no propForeign minister, see Diplomatic and erty in the state to be administered. Re Consular Officers. AMBASSADORS. AMBIGUITY. In demand for autopsy by insurance company, see Insurance, 18. AMENDMENT. Miller, L.R.A.1915D, 856, 136 Pac. 255, 90 3. A criminal proceeding originating in an inferior court is within the provision of a constituional provision that the appellate division in any department may allow an appeal upon any question which, in its opin Of writ of mandamus, see Mandamus, 5. ion ought to be reviewed by the court of Of pleading, see Pleading, 2. AMUSEMENTS. See Bathing Resorts. ANCILLARY ADMINISTRATION. appeals. People on Complaint of Pugliese v. Ekerold, L.R.A.1915D, 223, 105 N. E. 670, 211 N. Y. 386. Transfer of cause. 4. A receiver who brings an action to establish a claim in the court from which he received his appointment cannot appeal See Executors and Administrators, 4, from an adverse decision without permis6, 9, 10. ANIMALS. Injury to, through failure to maintain A railroad company is liable for juries to a pedestrian walking on the side walk in a village, caused by his being run over by a wild Texas cow which had escaped from one of its cars in a collision resulting from the railroad company's negligence, while such cow was being driven to the stockyard by persons employed by the railway company for that purpose. Hartman v. Atchison, T. & S. F. R. Co. L.R.A.1915D, 563, 146 Pac. 335, 94 Kan. 184. ANSWERS. of the district court confirming an order 5. In case of an appeal from an order of the county court in an ancillary adminisin-tration, refusing to grant a petition filed by the principal administrator under the direction of the principal court for the sale of real estate in the state of the ancillary administration, and the transmission of the proceeds thereof to such principal court for the payment of debts there provided, where the trial in the district court is had upon a stipulation of facts and depositions which are included in the certified record on appeal from the county to the district court, and no oral evidence is taken in the latter court, no statement of the case is necessary, and the supreme court can take (Annotated) In contempt proceeding, see Contempt, into consideration the evidence as presented 6. by the depositions and the stipulations. 7. Objection to language used by counsel in argument cannot be considered on appeal if made for the first time on motion for new trial. Ross v. Kohler, L.R.A.1915D, 621, 174 S. W. 36, Ky. Interlocutory matters; orders, etc., not appealed from. 8. Appeal by plaintiff from a judgment refusing a new trial after verdict for nominal damages upon a new trial granted upon the setting aside of a verdict in his favor, brings before the appellate court the order granting the new trial, if both bills of exception are in the record. Ross v. Kohler, L.R.A.1915D, 621, 174 S. W. 36, Ky. Discretionary matters. 9. The allowance of amendments rests largely within the sound discretion of the trial court. French v. State Farmers' Hail Ins. Co. L.R.A.1915D, 766, 151 N. W. 7, 29 N. D. 426. 10. It is not such an abuse of discretion on the part of the trial court to refuse to admit evidence in rebuttal which, under the pleadings, is part of plaintiff's case in chief, for the nonintroduction of which in proper order no adequate excuse is offered so as to require a reversal. Bain v. Fort Smith Light & Traction Co. L.R.A.1915D, 1021, 172 S. W. 843, Ark. 11. The action of the trial court in setting aside a verdict and granting a new trial for error of law, which is not in fact error, is error. Ross v. Kohler, L.R.A. 1915D, 621, 174 S. W. 36, - Ky. 12. No abuse of discretion which will require a reversal on appeal in refusing to set aside a verdict for bias of a juror is shown by the fact that the court acts upon a statement in his affidavit that he used his influence to reduce the punishment fixed by the jury, in preference to affidavits by friends of the accused that the juror told them that accused should be given the limit. Brannon v. Com. L.R.A.1915D, 569, 172 S. W. 703, 162 Ky. 350. Questions not raised below. 13. The objection that a warrant for search of premises for intoxicating liquors was not supported by affidavit as required by statute cannot be raised for the first time on appeal from a conviction for wrongful possession of the liquors found. Frogg v. Com. L.R.A.1915D, 330, 173 S. W. 383, Ky. 14. The objection that there is a misjoinder of causes of action, or that a cause is of equitable, and not of legal, cognizance, cannot be raised for the first time on appeal. French v. State Farmers' Hail Ins. Co. L.R.A.1915D, 766, 151 N. W. 7, 29 N. D. 426. 15. Failure of an indictment for arson to describe the dwelling or identify the person alleged to have been in it is not, in the absence of demurrer, available on appeal. People v. Grutz, L.R.A.1915D, 229, 105 N. E. 843, 212 N. Y. 72. 16. The variance caused by proof without objection, of money paid employees in addition to that paid the directors themselves, in an action to compel directors of a corporation to account for money paid themselves, may be disregarded. Godley v. Crandall & Godley Co. L.R.A.1915D, 632, 105 N. E. 818, 212 N. Y. 121. Errors waived or cured below. 17. A new trial cannot be awarded upon appeal where the unsuccessful party after verdict moved for judgment notwithstanding the verdict, but did not move in the alternative for a new trial, as he was entitled to do under the statute, since by resting solely upon his motion for judg ment, he waived all errors, which would be ground only for a new trial. Northwestern Marble & Tile Co. v. Williams, L.R.A.1915D, 1077, 151 N. W. 419, 128 Minn. 514. Review of facts. Instances of excessive amounts of damages, see Damages, 4. 18. The amount allowed by a jury as compensatory damages for false imprisonment approved by the trial judge is not reviewable on appeal. Cook v. Highland Hospital, L.R.A.1915D, 611, 84 S. E. 352, N. C. 19. That the evidence would have warranted a larger award of damages than was allowed by the trial court is no reason for the appellate court disturbing the judgment. Berg v. Yakima Valley Canal Co. L.R.A. 1915D, 292, 145 Pac. 619, Wash. Grounds for reversal. 20. Refusal to admit in evidence an affidavit, the truth of which has been admitted, to prevent a continuance, is not error where it is directed at the credibility of a state's witness who has not been introduced. Lawson v. Com. L.R.A.1915D, 972, 169 S. W. 587, 160 Ky. 180. 21. In an action against a corporate owner of an office building to hold it liable for injury to a passenger on the elevator through a structural defect, there is no error in admitting evidence of the original owner of the building that he had conveyed it to the corporation of which he and his wife were the principal stockholders. Dibbert v. Metropolitan Invest. Co. L.R.A. 1915D, 305, 147 N. W. 3, 158 Wis. 69. 22. No reversible error can be predicated on a ruling permitting plaintiff to call the claim auditor of a defendant corporation for cross-examination under the statute. where plaintiff did not seek to avoid his testimony, and the form of the questions would have been proper had he been called as plaintiff's witness. Johnson v. Bankers' Mut. Casualty Ins. Co. L.R.A.1915D, 1199, 151 N. W. 413, 129 Minn. 18. 23. An instruction that in order for probable cause for an arrest to exist, the facts must be such as would justify an ordinarily cautious person in entertaining specially for the purpose of pleading in abatement, or moving that the action be dismissed, if no personal service of process is shown. Koontz v. Baltimore & O. R. Co. L.R.A.1915D, 838, 107 N. E. 973, 220 Mass. 285. APPOINTMENT. a belief in another's guilt, and that whether 24. It is error to assume the existence of an injury in instructing the jury in an action to recover damages for personal injuries due to another's negligence. Salmi v. Columbia & N. R. R. Co. L.R.A.1915D, 834, 146 Pac. 819, Or. -. - 26. Where, from the conceded facts, it appears that the parties to an action have no title to the subject-matter of the litigation, hence no right to maintain an action | or to recover aflirmative relief by cross petition, and where the only judgment recovered against them, except an adverse adjudication of the title, is vacated on appeal, error in the trial court forcing them to trial on the day that the issues of fact were joined is without prejudice, and furnishes no ground for reversal. Whelan v. Adams, L.R.A.1915D, 551, 145 Pac. 1158, Okla. Judgment. 27. It cannot be said as matter of law that one claiming the estate of a deceased person upon evidence of declarations as to pedigree, but failing to establish the relationship of declarant to the family, cannot do so on another hearing, so as to justify a dismissal of the petition without new trial. Aalholm v. People, L.R.A.1915D, 215, 105 N. E. 647, 211 N. Y. 406. 28. Matters considered in an original motion for a new trial, and there determined by the trial court and subsequently affirmed by the supreme court, will not again be considered in a subsequent attempt to set aside the verdict. Frank v. State, L.R.A.1915D, 817, 83 S. E. 645, 142 Ga. 741. 29. The grounds for a petition for rehearing of an appeal should be brief and concise, and made separate from the argument. Reiff v. Portland. L.R.A.1915D, 772, 141 Pac. 167, 142 Pac. 827, 71 Or. 421. APPEARANCE. No judgment can be entered against a foreign corporation which has appeared Of personal representative, see Executors and Administrators, 1, la. APPORTIONMENT. Of local improvement assessments, see Easements as, see Easements, 1. ARCHITECT. Right to mechanics' lien, see Mechanics' ARREST. Civil liability for making, see False ASSUMPSIT. 1. No return of unearned premium upon a bond insuring the fidelity of a public officer for a yearly premium can be had, although he dies in the middle of the year; at least, where duties involving the principal hazard have all been performed before his death. Crouch v. Southern Surety Co. L.R.A.1915D, 966, 174 S. W. 1116, 131 Tenn. 260. 2. The United States cannot recover money paid by the Secretary of the Treasury to a bona fide holder for value, guilty of no negligence contributory to the fraud, upon a draft upon him bearing the forged signature of an officer having the right to As to garnishment, see Garnishment. Limitation of time of action against sheriff for failure to return attachment, see Limitation of Actions, 2. A statute giving foreign corporations which comply with the local laws all the rights and privileges of like domestic corporations, and subjecting them to the laws of the state applicable to like domestic corporations, does not exempt them from the operation of the statute authorizing an attachment in actions against defendants not residing in the state. Jennings v. Idaho R. L. & P. Co. L.R.A.1915D, 115, 146 Pac. 101, 26 Idaho, 703. ATTORNEYS. (Annotated) Liability of municipality for attorneys' fees, see Municipal Corporations, 2. District and prosecuting attorneys, see District and Prosecuting Attorneys. Slander by, see Libel and Slander, 3. Disbarment. Inherent power of court to disbar, see Admissibility of evidence, see Evidence, Sufficiency of proof, see Evidence, 46. 1. The obligation which attorneys assume when they are admitted to the bar is not simply to be obedient to the Constitution and laws, but to maintain at all times the respect due the courts of justice and judicial officers and this obligation includes abstaining out of court from insulting language and offensive conduct toward the judges personally for their judicial acts. State Bar Commission ex rel. Williams v. Sullivan, L.R.A.1915D, 1218, 131 Pac. 703, 35 Okla. 745. 2. An attorney may criticize the courts so long as his criticisms are made in good faith and in respectful language, but the printing and publication of a pamphlet falsely, purposely, and maliciously attacking the integrity of the courts and judges thereof, designed to wilfully, purposely, and maliciously misrepresent the courts and the judges thereof, and bring them into disrepute and lessen the respect due them, violates his duties and obligations as an attorney and counselor at law, for which he may be disbarred. State Bar Commission ex rel. Williams v. Sullivan, L.R.A.1915D, 1218, 131 Pac. 703, 35 Okla. 745. 3. Special notice to an attorney is not necessary before the rendition of a judgment disbarring him. State Bar Commission ex rel. Williams v. Sullivan, L.R.A. 1915D, 1218, 131 Pac. 703, 35 Okla. 745. 4. Proceedings to disbar an attorney cannot be defeated because the committee presenting the charges had no authority to do so from any other person or body. State Bar Commission ex rel. Williams v. Sullivan, L.R.A.1915D, 1218, 131 Pac. 703, 35 Okla. 745. 5. In disbarment proceedings instituted by the state bar commission by the order and direction of the supreme court, no verification of the specification of charges is necessary under § 267, Comp. Laws 1909 of Oklahoma. State Bar Commission ex rel. Williams v. Sullivan, L.R.A.1915D, 1218, 131 Pac. 703, 35 Okla. 745. 6. The sufficiency of the verification of the specification of charges in disbarment proceedings must be determined by an inspection of it, and evidence cannot be taken for the purpose of showing that the affiant State Bar Commission ex rel. Williams v. had no personal knowledge as to the charges. Sullivan, L.R.A.1915D, 1218, 131 Pac. 703, 35 Okla. 745. 7. Failure of the court to order the filing of charges for disbarment of an attorney is not available to accused after the court has taken jurisdiction and tried the case. State Bar Commission ex rel. Wil liams v. Sullivan, L.R.A.1915D, 1218, 131 Pac. 703, 35 Okla. 745. 8. Proceedings against an attorney for criminal libel upon the court does not prevent his disbarment for the same offense. State Bar Commission ex rel. Williams v. Sullivan, L.R.A.1915D, 1218, 131 Pac. 703, 35 Okla. 745. In general, see Carriers, 7. BAILMENT. tomobile upon the street of a city does not | BAGGAGE. 2. The fact that an automobile is not registered as required by law does not prevent a recovery by the owner of damages for injury suffered through another's negligence. Armstead v. Lounsberry, L.R.A. 1915D, 628, 151 N. W. 542, 129 Minn. 34. Negligence in use of. New trial in action for injury, see New 3. The law of the road does not apply in case of an automobile turning around in the street. Armstead v. Lounsberry, L.R.A.1915D, 628, 151 N. W. 542, 129 Minn. 34. 4. An automobile in good condition is not such a dangerous instrument that one letting it for hire must test the competency and skill of a customer before intrusting him with it, under penalty of liability for injuries done by the hirer's negligence. Neubrand v. Kraft, L.R.A.1915D, 691, 151 N. W. 455, Iowa, (Annotated) 5. The keeper of a motor car livery is not liable for injury done by a car through the negligence of one to whom he let it with knowledge that the hirer had no acquaintance with the operation of that make of cars. Neubrand v. Kraft, L.R.A.1915D, 691, 151 N. W. 455, Iowa, 6. Evidence that the driver of an automobile on a public street, who, when he saw another automobile in front of him headed in the same direction commence to turn in the street,-practically the whole width of the street being required to make the turn,-instead of stopping his car and avoiding a collision, as he could have done, increased his speed and attempted to pass ahead of the turning car before it should reach the left curb, is sufficient to charge the driver with negligence. Armstead v. Lounsberry, L.R.A.1915D, 628, 151 N. W. 542, 129 Minn. 34. 7. A city ordinance requiring the driver of an automobile to look to the rear before turning is complied with when one riding with him looks and then directs him to go ahead. Armstead V. Lounsberry, L.R.A. 1915D, 628, 151 N. W. 542, 129 Minn. 34. Contributory negligence. 8. Violation of a statute fixing under penalty a speed limit for automobiles on a highway does not deprive one of the defense of contributory negligence on the part of one injured by collision with the automobile, unless his conduct is such under all the circumstances as to amount to gross negligence. Ludke v. Burck, L.R.A.1915D, 968, 152 N. W. 190, 160 Wis. 440. (Annotated) As to warehousemen, see Warehouse BANKS. men. Refusal of cashier to answer questions Fraud in securing subscription to stock, Usury in bank transaction, see Usury, Deposits generally. 1. The proceeds of a draft which, with bank in whose favor it is drawn, and by it a bill of lading attached, is delivered to the collection, and immediate credit given to forwarded to a correspondent bank for the drawer of the draft while in the hands of the correspondent bank, are to be regarded as belonging to the payee named in the draft, as against a creditor of the degarnishment after the account, as increased positor who attempts to reach them by by the deposit, has been overdrawn; and this is true notwithstanding the practice of the first-named bank to charge its depositors with the interest on such items from the time of giving credit until the back their amount in the event of nonpayproceeds are actually received and to charge ment; and notwithstanding that a serial number is placed on said draft by the original bank in sending it out for collection, and that a witness testifies to a general practice of bankers to place such numbers upon items received for collection, but not upon those accepted as cash. Scott v. W. H. McIntyre Co. L.R.A.1915D, 139, 144 Pac. 1002, 93 Kan. 508. Payment of checks; forgeries. 2. A bank which pays upon the checks of the wife alone a man's money deposited to the joint account of himself and wife is liable to him therefor except so far as he may have ratified the checks or received the benefit of them. Gish Bkg. Co. v. Leachman, L.R.A.1915D, 920, 174 S. W. 492, Ky. (Annotated) 3. A bank which pays a check upon itself, the signature of drawer and indorser upon which are forged, cannot recover the amount paid from the bank which originally cashed the check, although it indorsed thereon "all prior indorsements guaranteed." State Bank v. Cumberland Sav. & T. Co. L.R.A.1915D, 1138, 85 S. E. 5, 168 N. C. 605. 4. A bank depositor whose clerk has charge of the account is negligent in comparing only the vouchers returned to him when his account is balanced from time to time without looking at the check list or Stipulation as to, in insurance policy, the balance in the pass book, so that, in case checks have been forged by his clerk, and AUTOPSY. see Insurance, 16-19. L.R.A.1915D. |