INDEX.

ABATEMENT.

1. Where the uncontradicted evidence shows the pendency of another ac-
tion involving the same issues, it is not error to exclude the summons
and complaint in such action. Ochsenreiter v. G. C. Bagley El. Co. 91.
2. It is immaterial, in an action for conversion, that another action is pend-
ing between plaintiffs and other defendants involving the same issues.
Id.

ABUTTING PROPERTY OWNERS.

See Municipal Corporations.

ACCORD AND SATISFACTION.

1. Under Comp. Laws, § 3491, providing that "an obligation is extinguished
by a release therefrom given to the debtor by the creditor upon a new con-
sideration," parol evidence is competent to show that one of the makers
of an unsecured note gave a new note, secured by a mortgage, for one-
half the amount of the old, and that the new note was received by payee,
under an express agreement, in full satisfaction of all claims against the
maker on the old note. Bank v. Guthrie 517.

2. The holder of a note having accepted a deed from the maker in full satis-
faction thereof, there is no longer a liability of the guarantor thereon
which will support his note thereafter given to said holder. Rudolph
v. Hewitt, 646.

ACKNOWLEDGMENT.
See Conveyances.

1. In view of Comp. Laws, § 5307, providing that an instrument in writing,
which is acknowledged or proved, and duly recorded, is admissible as
evidence without further proof, a notary's certificate of acknowledgment
to a recorded mortgage is prima facie evidence of every necessary recit-
al, and his uncontradicted testimony in relation thereto is entitled to
full credit, and hence an unimpugned certificate of acknowledgment,
established by the notary's evidence, gave to a mortage the full force of
the mortgagor's signature thereto, though it is conceded that she "did
not take hold of the pen," and did not "ask any one to sign her name"
when it was done by the notary. Northwestern L. & B. Co. v. Jona-
sen, 566.

ACTIONS.

To Quiet Title. See Real Property.

1. Under Comp. Laws, § 4870, providing that every action shall be prosecut-
ed in the name of the real party in interest, an action for breach of a
sheriff's bond, payable to the county, must be brought in the name of
the party in interest, and not in name of the county for use of such
party. Hollister v. Hubbard, 461.

2. Where a purchaser sued to recover back the price because the vendor
had ousted him, a judgment of dismissal, with costs, rendered on the
ground that the purchaser had not rescinded, does not bar a new ac-
tion. Taylor v. Neys, 605.

ALTERATION.

1. An apparent alteration in an execution will be presumed to have been in-
nocently made before issuance of the writ. McDonald v Fuller, 355.

AMENDMENTS.

See Judgment 6, 7, 8. Pleadings.

APPEALS.

See New Trial.

1. Laws 1897, Chap. 55, amending Comp. Laws, Sec. 5213, so as to prohibit ap-
peals from circuit to supreme court in actions for the recovery of money
where the amount recovered is $75 or less, or for the recovery of per-
sonal property of that value or less, and not including in its provisions
certain county courts having concurrent jurisdiction with the circuit
courts, violates Const. Art. 5, Sec. 34, requiring that the laws relative
to courts shall be general and of uniform operation throughout the
state. McClain v. Williams, 60

2. A rehearing upon questions not discussed by counsel in their briefs or
presented by assignments of error will be permitted where the circum-
stances are exceptional, and the question is raised for the first time in
the court. State v. Sexton, 105.

3. On appeal from a judgment in certiorari, only such errors can be review-
ed as appear on the judgment roll, which by Comp. Laws, ? 5516, con-
sists of the judgment, writ, and return. Van Den Bos v. Board, 190.

4. Where an order dismissing an appeal from a justice court recites that
the motion to dismiss was regularly brought on for hearing, and there
is nothing in the record on appeal from such order that contradicts such
recital, it will be presumed that notice was given, if required. Erpen-
bach v. Railroad, 201.

5. A bond on appeal from a justice court is requisite to give the appellate
court jurisdiction, and cannot be waived by agreement of parties." Id.

6. When a case is submitted on the abstract of appellant, and neither party
makes an argument or files a brief, it will be presumed that the appeal
is abandoned. Giles v. Hawkeye Gold Min. Co. 222.

7. A question decided in a case on appeal becomes the law of the case.
Cranmer v. Kohn, 245.

8. An objection that the jury took a memorandum of a calculation of the
amount of the recovery made by the judge to their room will not be con-

sidered, unless the record affirmatively shows that such record was so
taken. Id.

9. Under a notice of intention to move for a new trial because of excessive
damages, insufficiency of evidence, and errors in law, the objection that
the court permitted the jury to take improper papers to their room can-
not be considered, since that is an irregularity, and hence a distinct
ground for new trial, under Comp. Laws, 2 5088. Id.

10. Under said section, the objection that the verdict was returned in the
absence of the stenographer, sheriff, and defendant, and after the court
had adjourned until, the following day, cannot be considered under
such notice. Id.

11. An appeal taken from a judgment, and from an order denying a new
trial which was never entered, will be disregarded, so far as it relates to
the order. McCormick v. Woulph.

12. An appeal from a judgment alone presents only errors of law occurring at
the trial, including the direction of a verdict on the undisputed evi-
dence. Id.

13. Under Comp. Laws. § 5090, Subd 4, providing that, when the motion for
a new trial is made upon the minutes of the court, the specification of
errors relied on must be made in the notice of intention, it is unneces-
sary that such specification be set out in the bill of exceptions. Rea-
gan v. McKibben, 270

14. A notice of intention to move for a new trial, which contains specifica-
tions of errors sufficient to call the attention of the trial court to the
particular errors of law relied on, and which presents substantially all
the questions discussed, is a sufficient statement thereof. Id.

15. The findings of the trial court will be reversed only when against the
clear preponderance of the evidence. Id.

16. The justification of the sureties on an undertaking on appeal will be
deemed sufficient, where, on being excepted to, they appeared before a
justice of the peace in pursuance of notice to respondent, and filed a
new undertaking, which was approved by such justice. Dunn v. Bank,

305.

17. The evidence may be reviewed on appeal, without a motion for a new
trial, for the purpose of determining alleged error in directing a ver-
dict. Id.

18. After judgment against defendant in a justice's court, he filed an under-
taking that contained all the requirements of an appeal bond, under
Comp. Laws, 6133, together with additional requirements of the section
for a stay of proceedings. Held, that the undertaking was effectual as
an appeal boud, the additional matter being rejected as surplusage.
Aultman Miller & Co. v. Nelson, 338.

19. Comp. Laws, § 5325, as amended by Laws 1893, Chap. 70, providing that
when notice of motion is necessary it must be served six days before the
time appointed for the hearing, does not preclude the supreme court
from requiring, by rule, more than six days' notice of motion in that
court. Smith v. Hawley, 399,

20. Where appellant appears, and objects to the hearing of a motion to dis-
miss the appeal, on grounds in addition to that of insufficient notice, he
thereby waives the question of notice. Id.

21. The fact that an appeal was taken before the judgment or order appealed
from was entered may be shown, on a motion to dismiss the appeal, by
affidavit, or by the certificate of the clerk of the court, though outside of
the record. Id.

22. Where a bill of exceptions is settled for the purpose of making the
record on appeal show exhibits referred to in the findings, but not an-
nexed thereto, and not for use on a motion for a new trial, objection
thereto, for lack of statements as to objections, exceptions, errors of
law, or insufficiency of evidence, is untenable. Clark v. Darlington, 418.
23. Where the evidence is not returned on appeal, it is presumed that it sat-
isfied the court that land which was the subject of the action had be-
come generally known by the description used, though it had never
been legally platted, and that such description was sufficient; the court
having found the land, as so described, liable for taxes paid thereon.
Id.

24. Appeal does not lie from an order or judgment till it is actually entered;
and there is no authority for directing entry thereof nunc pro tunc, after
the appeal is taken, to render the appeal effectual, under Comp. Laws,
5235. Martin v. Smith, 437.

25. Under Comp. Laws, § 5216, providing that appeal must be taken "within
two years after the judgment shall be perfected, by filing the judgment
roll,” appeal cannot be taken from judgment before such filing. Id.

26. Application to amend abstract on appeal to show order denying a new trial,
entered after the taking of the appeal, by direction of the court that it
be entered nunc pro tunc as of a date prior to the taking of the appeal,
will be denied, as such order cannot be reviewed on such appeal. Bank
v. Oliver, 444.

27. A motion by respondent to file a supplemental abstract, denying that an
undertaking on appeal was served, four months after the case was sub-
mitted on the merits, will be denied. Mather v. Darst, 480.

28. Service of undertaking on appeal on the respondents is unnecessary, to
confer jurisdiction on the appellate court, under Comp. Laws, SS 5215,
5219, providing for service of notice of appeal, and that an undertaking
must be executed by the appellant. Id.

29. A motion to dismiss an appeal from a justice need not be in writing, but
it is sufficient if written notice of the grounds of the motion is given
to the appellant. Houser v. Nolting, 483.

30. The fact that appellee appeared generally, instead of specially, on a mo-
tion to dismiss an apppeal, did not confer general jurisdiction on the cir-
cuit court, if it was not asked to do more than dismiss the appeal. Id.
31. An order of the circuit court dismissing an appeal from a justice will not
be reversed on the ground that the notice of the motion to dismiss did
not specify the grounds of the motion, where the notice, as contained in
the record, shows that the dismissal was asked on the ground that no
notice of appeal was given. Id.

32. An original notice of appeal from a justice recited an appeal from a judg-
ment rendered May 27th, with costs, for a certain amount, and was
signed by defendant's attorney. The copy served on respondent's at-
torney recited a judgment rendered May 28, did not state the amount of
costs, and was unsigned. Held, that under Comp. Laws, § 6129, requir-
ing a copy of the notice as filed with the justice to be served on the ad-
verse party, the notice was insufficient to support the appeal. Id.

33. If a notice of appeal is left with a clerk in the office of respondent's at-
torney, the affidavit of notice indorsed on the notice must show that the
attorney was absent at the time of service. Id.

34. If a record, on appeal from a justice, was not transmitted to the circuit
court within 15 days, as required by the statute, and no excuse for the
delay is shown, the circuit court may dismiss the appeal. Haukland v.
Railroad, 493.

35. Under Comp. Laws, § 6136, providing that on motion by appellee, made
at any time, an appeal from a justice may be dismissed for failure to
transmit the record within 15 days, mere delay in moving to dismiss is
not a waiver of the right to a dismissal.

Id.

36. After a record on appeal from a justice was transmitted, and two days
before it was filed with the clerk of the circuit court, appellee gave no-
tice of hearing of a motion to dismiss the appeal, but the hearing was
continued by consent of parties. Six months thereafter another, mo-
tion to dismiss was filed. Held, that the appelle was not guilty of
laches defeating his right to a dimissal. Id.

37. On sustaining a motion to dismiss an appeal from a judgment for plaintiff
obtained before a justice, the circuit court should merely dismiss
the appeal, leaving the judgment of the justice remaining as if no ap-
peal had been taken, and not enter judgment for plaintiff. Id.

38. If a modification of a judgment on appeal does not affect the substantial
rights of the parties, the respondents may recover their costs. Id.

39. A motion by appellant to amend his abstract by adding thereto the notice
of appeal in full, showing that it was taken from the judgment and order
denying a motion for a new trial, is properly granted, where the ab-
stract states that the notice of appeal was duly served and filed, but fails
to state from what the appeal was taken. McFarland v. Schuler, 516.
40. Where attention is not called to an error in the amount of a judgment
until appellants brief is filed, respondent will not be taxed with costs on
a modification of the judgment. Mead v. Pettigrew, 629.

41. Under Comp. Laws, § 5085, providing that, if the judge refuse to allow an
exception in accordance with the facts, the exceptant may petition the
supreme court to prove it, etc, where no objection was made to a bill of
exceptions when settled by the judge, an application will not lie in the
first instance to the supreme court to settle on the ground that it is not
in accordance with the facts. Plano Mfg. Co. v. Person, 539.

42. The supreme court acquires jurisdiction of a criminal cause by the issuance
and service of the writ of error, and while Comp. Laws, $7512 requires
the service of a citation in all cases on the attorney of the adverse
party, and the rules of the court provide for its service, as also of
the abstract and briefs, on the attorney general, in cases where the state
Vol. 11, S. D.—42