ABBREVIATIONS.
See Contracts, 5.
ABUSE OF PROCESS
See Process, 7, 8.
1. ACTION-RIGHT OF, BY ONE IN POSSESSION, FOR IN- JURY TO PROPERTY.-One having the possession of property may maintain an action against a wrongdoer for an injury thereto, which cannot be defeated by showing the title to be in some one else than the plaintiff. (Sheridan Gas etc. Co. v. Pearson, 402.)
2. ACTIONS-TORT-VENUE.-For the purpose of redress, it is immaterial where a tort is committed, and, the wrong being per- sonal, the action is transitory and may be brought in the jurisdic- tion where the wrongdoer may be found. (Meyers v. Chicago etc. Ry. Co., 579.)
ACTIONS FOR WRONGFUL DEATH-VENUE.-An action may be brought in the courts of one state for a wrongful act or omission occurring in another state by which death is caused, if the statute of the latter state gives a cause of action for such wrong. (Meyers v. Chicago etc. Ry. Co., 579.)
4. ACTION - WHEN DEEMED COMMENCED.-An against a foreign corporation must be regarded as commenced within one year after the cause thereof accrued, if within that time a com- plaint is filed and a summons issued in good faith, though it is not served within the year, and the complaint does not state that the defendant is a foreign corporation nor disclose the names of its agents on whom process can be served. (Georgia Home Ins. Co. v. Holmes, 611.)
1. CONSTITUTIONAL LAW.-MARITIME LAWS CANNOT BE CONTROLLED BY THE CONSTITUTION AND STATUTES OF A STATE in opposition to an enactment by Congress. (Loughin v. McCaulley, 872.)
2. VESSELS-PRACTICE IN THE STATE COURTS.-If the owners of a vessel are sued in a state court for a liability alleged to have resulted from their negligence in the operation of a vessel. they should be permitted to show the value of such vessel and their respective ownerships therein, and the jury should be instructed to find the value of the vessel and the proportion of the ownership of the defendants, to the end that none of them should be held answer- able beyond the value of his interest. (Loughin v. McCaulley, 872.)
3. VESSELS-THE STATE COURTS ARE CONTROLLED BY THE ACTS OF CONGRESS LIMITING THE LIABILITY OF
OWNERS OF VESSELS.-If such were not the case, it would be the duty of the state court, upon bringing an action therein seeking to enforce an alleged cause of action against the owner of a vessel, to decline to exercise jurisdiction thereof, if, by so doing, it would im- pose or enforce a liability forbidden by an act of Congress. (Lou- ghin v. McCaulley, 872.)
4. DEATH OF HUMAN BEING-LIABILITY OF OWNERS OF VESSELS FOR.-The acts of Congress limiting the liability of the owners of vessels to their shares or interests therein apply to liabil- ities for causing the death of a human being through the negligent operation of such vessel. (Loughin v. McCaulley, 872.)
5. SHIPPING-LIEN ENFORCEMENT IN ADMIRALTY-JUR- ISDICTION.-If a shipowner has a lien upon goods enforceable in the admiralty courts, the owner thereof cannot recover them by replevin in the state courts. (Warehouse etc. Supply Co. v. Gal- vin, 57.)
6. SHIPPING-LIEN FOR FREIGHT-ADMIRALTY JURIS- DICTION.-If a shipper fails to furnish or deliver to the vessel the full amount of goods which he has contracted to furnish or deliver, the lien of the vessel upon the goods so furnished or delivered is enforceable in admiralty, whether the action is treated as one to recover freight or to recover damages for the nonperformance of a contract. (Warehouse etc. Supply Co. v. Galvin, 57.)
ADMISSIONS.
See Agency, 1.
1. CHILDREN-ADOPTION OF.-The consent of the parents of & child is not necessary to its valid adoption by another, where the statute upon the subject is silent respecting the assent of the natural parents. (Clarkson v. Hatton, 635.)
2. AN ADOPTED CHILD IS, IN A LEGAL SENSE, THE CHILD BOTH of its natural and of its adopting parents, and is entitled to inherit from each as their child. (Clarkson v. Hatton, 635.)
3. AN ADOPTED CHILD IS NOT A BODILY HEIR.-Hence a conveyance to A. B. and his bodily heirs cannot, upon the death of A. B., vest any estate in his adopted child. (Clarkson v. Hatton, 635.)
1. ADVERSE POSSESSION BY PARENT AGAINST CHILD.— Possession of land acquired by a father under a conveyance made to his infant child, and delivered to him, can never be the founda- tion of, nor ripen into, a prescriptive title in his favor. (Parker v. Salmons, 291.)
2. ADVERSE POSSESSION BY PARENT AGAINST CHILD.- Possession of land acquired by a father, under a conveyance to his infant child, delivered to him, and continued long after such child reaches majority, does not ripen into a title by prescription in his favor, without any conveyance to him, or holding other than by virtue of his original entry. (Parker v. Salmons, 291.)
3. ADVERSE POSSESSION BY PARENT AGAINST CHILD.- Possession of land acquired by a father under a conveyance to his infant child, delivered to him, and continued long after such child attains majority, under a concealment from the grantee of the ex- istence of such conveyance, together with the exercise of rights
of ownership by renting to the grantee a portion of the land while the latter has no knowledge of his title, does not sustain a claim of title by prescription so as to enable the father or his representa- tive to recover, against the grantee, possession taken by the latter after acquiring knowledge of the existence of his title under such conveyance. (Parker v. Salmons, 291.)
See Attachment, 6, 7; Notaries Public, 2, 3.
1. PRINCIPAL AND AGENT.-ADMISSIONS of an agent while he has the business in contest in hand are competent evidence against the principal. (Albert v. Mutual Life Ins. Co., 693.)
AGENCY-KNOWLEDGE OF AGENT AS KNOWLEDGE OF PRINCIPAL.-If an agent knows, or by ordinary care can ascer- tain, the purpose for which implements contracted to be furnished are to be used, his knowledge is the knowledge of his principal. (Neal v. Pender-Heyman etc. Co., 697.)
See Contracts, 12; Insurance, 59.
ANIMALS-BEES-RIGHT OF PROPERTY IN.-The mere finding of bees, in a bee tree, on another's land, gives the finder no right to them or to the tree. (State v. Repp, 463.)
1. APPELLATE PRACTICE.-ERROR NOT PREJUDICIAL cannot work a reversal of the judgment. (Farwell Co. v. Wolf, 22.) 2. APPEAL-ORDERS.-An order of the superior court overrul- ing a motion to dismiss an appeal from a justice's judgment is not appealable. (Durham Fertilizer Co. v. Marshburn, 708.)
3. APPEAL-WHAT CANNOT BE FIRST RAISED ON.-An objection to a departure from the cause of action stated in the com- plaint cannot be raised, for the first time, in the appellate court. (Mills v. Hart, 241.)
4. APPELLATE court refuses to permit the defendant to amend his answer, but nevertheless receives evidence upon all the issues tendered by the proposed amendment and gives such evidence full consideration, no injury can have resulted from such refusal. (Pacific R. M. Co. v. Bear Valley Irrigation Co., 158.)
5. APPEAL TESTING COMPLAINT FOR THE FIRST TIME ON.-The question as to the sufficiency of a complaint, which omits the statement of a material fact essential to a right of recovery, may be raised for the first time on appeal. (Metropolitan Life Ins. Co. v. McCormick, 392.)
6. APPEAL-WHAT STATEMENT BY COURT IS NOT RE- VERSIBLE ERROR.-If witnesses are absent when they are called to testify, during the trial of a cause, it is improper; but not re- versible error, for the court to remark, in the presence of the jury, "I do not feel disposed to keep this jury waiting at the expense of the county to suit the convenience of saloonkeepers and gentlemen of elegant leisure." (Frankfort v. Coleman, 412.)
EVIDENCE. THE VERDICT OF A JURY will not be disturbed on appeal, where the evidence is conflicting, if there is some evidence to support it, no matter what
the appellate tribunal may think about the preponderance of the evidence. (Frankfort v. Coleman, 412.)
8. APPEAL-REVIEW OF FINDING OF FACT-CONFLICT- ING EVIDENCE-DEPOSITIONS.-If there is any legal and com- petent evidence to support a finding of fact, it is a general rule that the judgment will not be disturbed, though the evidence is conflicting. The fact that some of the evidence is in the form of depositions does not make it the duty of the court to sift the evi- dence to determine on which side it preponderates, where the larger and more material part of the evidence is oral testimony, and the court cannot say that the finding is wrong. The general rule, at most, is modified only as to the depositions. (Lathrop v. Tracy, 229.) 9. APPEAL-QUESTIONING FACT DECLARED OR AD- MITTED.—An express statement or admission by a party in a plead- ing, as that a will left a life estate in certain real property to a per- son named, cannot be questioned by him on appeal. (Floete v. Brown, 434.)
RELIEF-WHEN DEFEND- ANT CANNOT CLAIM ON PLAINTIFF'S APPEAL.-Upon an ap- peal by the plaintiff from a denial of his request for a nunc pro tunc order requiring the clerk to record a former decree, the de- fendant can claim no affirmative relief by reason of a motion made by himself for leave to answer, where no ruling was made upon such motion, and he took no appeal. (Day v. Goodwin, 465.)
11. JUDGMENTS REFUSING TO DISMISS ACTIONS ARE NOT APPEALABLE.-The remedy is to note an exception to the refusal to grant the motion to dismiss and have it considered an appeal from the final judgment. (Cooper v. Wyman, 731.)
12. APPEAL, WHERE PART ONLY OF RELIEF PRAYED FOR IS GRANTED.-If a court, in express words, grants a part of the relief prayed for, the effect of the judgment is to deny the other part of such relief, although there are no express words of denial. Hence, on appeal from the judgment rendered, the plaintiff may have considered his right to the relief denied. (Floete v. Brown, 434.)
13. APPEAL.-QUESTIONS OF JURISDICTION may be raised at any time and in any court where the case is pending. A motion to dismiss an appeal from a justice's judgment, based on want of proper service of process, may be made at any time in the superior court. (Durham Fertilizer Co. v. Marshburn, 708.)
14. APPEAL JURISDICTION.-If a justice of the peace has not obtained jurisdiction of a party by reason of the nonservice of pro- cess in a matter in which he has exclusive original jurisdiction, the superior court cannot, on appeal, obtain jurisdiction of such party by ordering a summons to issue to bring him before it. The superior court cannot create original jurisdiction on appeal. (Durham Fer- tilizer Co. v. Marshburn, 708.)
15. APPELLATE PROCEDURE.-IF A JOINT ASSIGNMENT OF ERROR is made by a husband and wife, it will be held good as to both if good as to the wife. (Magel v. Milligan, 382.)
16. APPELLATE PROCEDURE WHEN NOT CONTROLLED BY THE PROBATE PROCEDURE ACT.-Where the remedy sought by or against an estate is not provided by the probate pro- cedure act, but must be enforced under the Civil Code, an appeal is governed by such code. Therefore, where the proceeding is to ob- tain a writ of assistance to place a purchaser in possession, the ap- peal may be taken within the time allowed by the Civil Code. (Roach v. Clark, 353.)
17. APPELLATE PRACTICE.-The action of a trial court in re- fusing to set aside a verdict as against the weight of evidence will
not be reviewed unless so manifestly wrong as to amount to a clear abuse of judicial discretion, and this occurs ordinarily only when there has been practically no proper evidence which, if believed, would support the verdict. (Maitland v. Gilbert Paper Co., 137.)
18. APPELLATE PROCEDURE.-A BILL OF EXCEPTIONS settled for one purpose may be used for another. Hence, though it was presented and settled for the purpose of being used on a mo- tion to vacate a judgment, it constitutes a part of the record on ap- peal from such judgment, and may require its reversal, if thereby error, prejudicial to the appellant, is disclosed. (Foley v. Foley, 147.) 19. APPEAL-COMPLIANCE WITH RULES OF COURT.-Al- leged errors, based upon the admission or rejection of evidence, cannot be considered, though argued by counsel, where no assign- ment of error has been predicated thereon as required by a rule of the supreme court. (Lathrop v. Tracy, 229.)
APPEAL-ABSENCE OF EVIDENCE-FINDINGS COURT-PRESUMPTION.-It will be presumed, on appeal, where the record does not contain the evidence, that it was sufficient to sus- tain the findings of the court. (Hopkins v. Burr, 238.)
21. APPEAL ADMISSION OF EVIDENCE-WHAT IS NOT PREJUDICIAL ERROR.-In a statutory action by a wife against her husband for a failure to support her, the admission of a copy of a decree of a court of a sister state, though improperly attested, to establish the relationship of husband and wife between the parties, such decree showing that they were marriageable on a certain date, and that they were, on that date, married, is not prejudicial error, where there is other evidence which conclusively establishes the re- lationship. (Poole v. People, 245.)
22. APPEAL.-UNDER THE DOCTRINE OF THE "LAW OF THE CASE," the conclusions announced by an appellate court upon the review of a case are, on a second appeal, res judicata as to the points decided, unless a new and different state of facts has been established on the new trial. (Smith v. Smith, 251.) See Judgments, 16; Trial, 1.
1. ASSIGNMENTS.-A CAUSE OF ACTION FOR DAMAGES arising from a conspiracy to defraud, by purchasing and selling goods without paying for them, is not a cause for damages done to personal property, and hence is not assignable. (Farwell Co. v. Wolf, 22.)
2. AN ASSIGNEE OF A CONTRACT FOR THE PURCHASE OF LAND is not personally liable for the unpaid purchase price, though the contract of sale and purchase provides that its stipula- tions shall apply to, and bind, the heirs, executors, administrators, and assigns of the respective parties. The covenant on the part of the purchaser is personal, and hence the assignee cannot be charged with its performance. (Lisenby v. Newton, 203.)
3. ASSIGNMENT OF LEASE-NOTICE OF MECHANIC'S LIEN-PROTECTION OF ASSIGNEE.-If one takes a lease of a life estate without actual notice of a mechanic's lien for materials furnished, and assigns the lease for value, the lien of the leasehold interest, as to him, is prior to the mechanic's lien, and the assignee is protected, as the assignor would be, notwithstanding any actual knowledge the assignee may have had. (Floete v. Brown, 434.) See Corporations, 4; Executions, 11; Mortgage, 7, 8.
AM. ST. KEP., VOL. LXV.-58
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