Portland Cracker Co., Multnomah County v. (Or.). 155 Prichard v. Jacobs (Wash.). Portland Iron Works v. Willett (Or.)....1000 Prescott Nat. Bank v. Head (Ariz.). Prine v. Duncan (Cal. App.). Pullman Co., State v. (Kan.). Quinn, Elliott v. (Colo.). Quinn, Gehlert v. (Mont.).. Schmidt, Montgomery & Mullin Lumber Co. .1056 212 341 965 School Dist. No. 27 in Cassia County v. 922 Twin Falls (Idaho). 735 712 School Dist. No. 83, Jewell County, Men713 denhall v. (Kan.)... 773 920 Schriber v. Buckner (Okl.). 10 242 Schultz v. Lewis (Colo.).. ..1030 319 Schultz v. Simmons Fur Co. (Wash.). 917 Scofield, Boldenweck v. (Colo.). 634 Quinn, O'Brien v. (Mont.). Quinn, Riddle v. (Utah).. 166 Scriber, Boothe v. (Or.). 893 Scully v. Squire (Idaho). Ramirez, Ex parte (Ariz.). .... 607 Scott & Co., American Surety Co. of New Scurich, Wood, Curtis & Co. v. (Cal. App.) 7 ..1002 573 51 434 323 Seattle Electric Co., Albin v. (Wash.). 435 634 Seattle, Prosch v. (Wash.).. 920 Seerie v. Brewer (Colo.). 508 Seigmund v. Seigmund (Wash.), 913 973 Semonian, Henry Inv. Co. v. (Colo.). 682 187 Sexton, Lowenstein v. (Okl.). 410 245 Sexton v. National Life Ins. Co. (Colo.).. 929 Shamleffer, Crocker v. (Okl.). 58 106 470 Sheriff, Stevens v. (Kan.).. 799 648 Sherman, People's Home Sav. Bank v. .1031 (Cal. Sup.). 133 718 Sherman, State v. (Mont.) 981 893 Sherwood v. Stephens (Idaho). 345 ..... 50 Shively v. De Snell (Mont.). 749 Rio Grande Western R. Co., Edgar v. (Utah) Shively v. Harris (Cal. App.). 971 745 Shook, State v. (Kan.). 234 Rio Grande W. R. Co., Rogers v. (Utah)..1075 Short v. Frink (Cal. Sup.). 200 Shortridge, Ex parte (Cal. App.). 478 (Colo.) 75 Simmons Fur Co.. Schultz v. (Wash.) 917 Roberson v. People (Colo.). 79 Skeen v. Paine (Utah). 440 Roberson v. Wilmoth (Colo.). 95 Slover v. Bailey (Or.). 665 .... Robert Burgess & Son v. Alcorn (Kan.). 239 Small, State v. (Or.). .1110 129 Smith, Beatty v. (Kan.) 272 Robinson v. Muir (Cal. Sup.). 521 Smith, Butsch v. (Colo.). 61 Rogers v. Rio Grande W. R. Co. (Utah)..1075 Smith v. Pelton Water Wheel Co. (Cal. Rogers, Weldon v. (Cal. Sup.). .1062 Sup.) 932, 1135 Routt v. Dils (Colo.)..... 67 Smith v. Pelton Water Wheel Co. (Cal. 934 Smith, Plymouth Cordage Co. v. (Okl.)... 418 58 Smith, Reymert v. (Cal. App.). .1104 Smith, State v. (Mont.). Snider, Windsor v. (Kan.). Somers, Montgomery v. (Or.).. Southern Pac. Co., Douglas v. (Cal. Sup.).. 538 Southern Pac. Co., Marlow v. (Cal. Sup.).. 928 Spangler v. Vinson Land Co. (Kan.), 768 Spiesberger & Son Co., Payton v. (Colo.)... 605 Squire, Scully v. (Idaho). 573 Stahley Bros., Painter & Co. v. (Wyo.)... 375 Stang, Iralson v. (Okl.).... 446 St. Louis Jewelry Co. v. Baird (Kan.). 782 273 Salt Lake City, Felt v. (Utah). 402 Salt Lake City, Hempstead v. (Utah). 397 ... 395 564 .1130 Samson, Beaumont v. (Cal. App.). 839 Sanders, Bock v. (Wash.).. 597 San Diego Inv. Co. v. Cornell (Cal. Sup.)..1130 470 750 820 674 661 Taylor v. Brown (Or.).... 673 State v. Hardenburgh (Kan.). State v. Leavenworth (Kan.). State v. O'Brien (Mont.).. State v. Olympia Light & Power Co. (Wash.) State v. Pauwelyn (Mont.). .1133 Teakle v. San Pedro, L. A. & S. L. R. Co. 221 (Utah) 402 279 Teich v. Arms (Cal. App.). 962 1133 Teller v. Bay & River Dredging Co. (Cal. 237 Sup.) 942 763 Terreno Co. v. Cornell (Cal. Sup.). 267 Territory, Baldwin v. (Ariz.). .1130 .11:30 .1044 Territory, English v. (Ariz.). 601 860 Territory, Martin v. (Okl.).. 13 514 Thaxter, Hemenway v. (Cal. Sup.). 116 656 Thomas v. Kansas City Elevated R. Co. (Kan.) 816 S. Twitchell Co. v. First Nat. Bank (Okl.) 14 Van Vranken v. Granite County (Mont.).. 164 Vaughn, Fidelity Funding Co. v. (Okl.). . 34 Venner v. Denver Union Water Co. (Colo.) 623 Vickery v. Wilson (Colo.). 1024 499 Victor Land Co., Kieffer v. (Or.). 582 Vietzen v. Otis (Wash.).. 264 53 Vinson Land Co., Davis v. (Kan.). Vinson Land Co., Spangler v. (Kan.). Virdin. Bowman v. (Colo.). 766 768 506 939 Virginia Timber & Lumber Co. v. Glenwood Lumber Co. (Cal. App.). 48 Visher v. Wilbur (Cal. App.). Voight v. Edwards (Kan.). .1065 .1134 Page Page Weller v. Western State Bank of Wankomis (Okl.) 877 Wilkie, Atchison, T. & S. F. R. Co. v. (Kan.) 775 Willard, Lucile Dreyfus Min. Co. V. (Wash.) ..... ....1135 Wells, Fargo & Co. v. McCarthy (Cal. App.) 203 West v. Washington & C. R. R. R. (Or.).. 666 Western Irrigation Co., Chapman v. (Kan.) 284 Western State Bank of Waukomis, Weller Western Union Tel. Co. v. Olsson (Colo.).. 841 .1132 821 112 877 Willett, Portland Iron Works v. (Or.). ..1000 794 135 .1017 [Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this reporter.] Hoffman v. Habighorst (Or.) 89 P. 952. Portland Iron Works v. Willett (Or.) 89 P. 421. Multnomah County v. Willamette Towing Co. State v. Kelliher (Or.) 88 P. 867. (Or.) 89 P. 389. t THE PACIFIC REPORTER. VOLUME 90. (13 Idaho, 439) STATE. BARNARD. (Supreme Court of Idaho. May 20, 1907.) 1. CRIMINAL LAW-APPEAL FROM JUSTICE NOTICE-SUFFICIENCY. Where a defendant appeals from a judgment of conviction of a justice's court under section 8321, Rev. St. 1887, and files and serves a notice of appeal which gives the title of the court and cause and the date on which the judgment was entered, and states that the judgment was in favor of the state and against the defendant, and that he appeals from the judgment and the whole thereof, such notice of appeal sufficiently states the "character of the judgment" as required by the statute. 2 SAME-DISMISSAL. A failure to give notice of intention to appeal, as required by section 8321, Rev. St. 1887, is not of itself a sufficient ground for a dismissal of the appeal. 3. SAME-APPEALABLE Order or Judgment. Where the prosecuting attorney moves to dismiss an appeal from a justice's court in a criminal case, and the only order or judgment that has been made in the case is a minute entry, stating, "The motion filed herein by the county attorney to dismiss the action sustained and granted," such entry does not amount to an order or judgment from which an appeal will lie, and an appeal taken therefrom will be dismissed [Ed. Note. For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 2595.] (Syllabus by the Court.) Appeal from District Court, Cassia County; Lyttleton Price, Judge. J. L. Barnard was convicted of a misdemeanor, and appeals. Dismissed. Sweeley & Sweeley, for appellant. J. J. Guheen, Atty. Gen., Edwin Snow, and J. H. Peterson, for the State. AILSHIE, C. J. The defendant was convicted of a misdemeanor in a justice's court of Cassia county, and thereafter, and within the time prescribed by statute (section 8321, Rev. St. 1887), filed and served his notice of appeal, which, after giving the title of the court and cause, is as follows: "You will please take notice that the defendant in the above-entitled action hereby appeals to the district court of the Fourth judicial district in and for the county of Cassia, from the Judgment therein made and entered in the 90 P-1 said justice court on the 18th day of January, 1906, in favor of the said plaintiff and against the defendant and from the whole thereof. This appeal is taken on the question of both law and fact." He thereupon gave bond in the sum of $500, as provided by section 8324, Rev. St. 1887, whereupon he was released from custody and secured a stay of further proceedings. When the case was called in the district court, it was set for trial, and prior to the case being called for trial the county attorney moved to dismiss the ap peal, upon the grounds: "(1) That the defendant did not give notice of his intention to appeal either at the time of the trial or at the time of the rendition of the judgment; (2) that the notice of appeal does not set forth the character of the judgment appealed from." It appears that the justice of the peace had sent up a copy of his docket and minute entries and all the papers in the case, and that it did not appear from any. of the entries that the defendant had ever given notice of his intention to appeal, as provided for in section 8321, Rev. St. 1887. The defendant offered to show that as a matter of fact he did give such notice, although the minutes did not show it. The court refused to allow him to make such showing. He then moved to strike from the record and files all papers and files not required by section 8323, Rev. St. 1887, and that motion was granted. The court, at the same time, sustained the motion made by the county attorney to dismiss the appeal. The only order or judgment that appears to have ever been made in the district court, and the only judgment from which this appeal is taken, is found in the court minutes, and is as follows: "Certified copy of the justice's docket of Twin Falls precinct present in court ordered stricken from the files in this case by the court, and the motion filed herein by the county attorney to dismiss the action sustained and granted. Exceptions to the ruling of the court were taken by defendant's counsel, M. J. Sweeley." The defendant has appealed from this order or judgment, as it is called, to this court. The Attorney General has moved to dismiss the appeal for the reason that the rec ord fails to show that any appealable order was ever made or entered in the lower court. This motion is well taken, and the appeal must be dismissed. The case does not appear to have been finally disposed of by any proper judgment or order of the district court, and is clearly still pending in that court. There does not seem to have been any judgment entered from which the defendant could appeal. He has not been sentenced by the district court, no judgment has been entered against him, no final disposition of his case has been made, and he is still apparently at large. In the condition of the case, however, we think it proper to observe that the attempt to dismiss the appeal was clearly improper and abortive. The defendant had taken his appeal in substantial conformity with the provisions of the statute, and he was entitled to have the case either tried or dismissed. It may be that a dismissal of his appeal would have amounted to a dismissal of the action against him under the peculiar provisions of our statute governing such appeals. See sections 8320 to 8327, inclusive. On that, however, we are not called to express an opinion in this case. The record on appeal from the justice's court in a criminal case is not required to show that the defendant ever gave notice of his intention to appeal. That notice is evidently given for the benefit of the justice and the officer having the prisoner in charge, and after the case is transferred to the district court it is evidently not a ground for a dismissal of the appeal, even though such notice of intention had not been given. If it had been intended that notice of intention to appeal should be jurisdictional, the Legislature would undoubtedly have required that fact to appear in the record sent up on appeal. As for the other ground, that the notice of appeal did not set forth the "charac ter of the judgment," we think it is without merit. The only purpose of setting forth the character of the judgment appealed from is to identify the case, and the particular judgment from which the appeal is taken. That requirement is made for the particular benefit of the county attorney and the justice in whose court the judgment was entered. Where the notice contained the title of the court and the cause in which the judgment was entered, and specifies the date on which it was entered and that the same was in favor of the state and against the defendant, it was clearly sufficient to identify the judgment, unless it be that several judgments had been entered against the defendant on the same day. If more than one judgment had been entered against the defendant on the same date in the same court, then, of course, it would be necessary to more particularly identify the specific judgment from which the appeal was sought. The attempt to dismiss the appeal in this case in the district court was clearly error; but, since no judgment has been entered in the district court, there is apparently nothing to appeal from, and this appeal must be dismissed, and it is so ordered. SULLIVAN, J., concurs. (29 Nev. 306) PHENIX et ux. v. FRAMPTON. (No. 1,709.) (Supreme Court of Nevada. May 7, 1907.) INJUNCTION RESTRAINING ERECTION OF BUILDING DISSOLVING TEMPORARY ORDER. Where it is alleged by the complaint and admitted by the answer that defendant is erecting a building of a substantial, permanent character, and by the allegations of the complaint the title, possession, and right of possession of the land are in plaintiff, and by those of the answer they are in defendant, a temporary injunction against completion of the building is proper and will not be dissolved pending final determination of the action; but defendant will not be prohibited from entering. [Ed. Note. For cases in point, see Cent. Dig. vol. 27, Injunction, §§ 305, 358.] Appeal from District Court, Esmeralda County. Suit by George S. Phenix and wife against A. E. Frampton. From an order, defendant appeals. Modified. Chas. S. Wilson, Jas. K. Reddington, and Wm. B. Ogden, for appellant. Thompson, Morehouse & Thompson, for respondents. TALBOT, C. J. This is an appeal from an order refusing to dissolve a temporary injunction. In the complaint it is alleged that the plaintiffs are the owners and in possession of lots 1 and 2 in block 12 in Phenix's North addition to the town of Goldfield; that the same are a part of the Montezuma mining claim; that the defendant, disregarding the possession of the plaintiffs, on or about the 1st day of October, 1906, entered upon the premises and commenced to dig up and sink and excavate a cellar and to build and construct, and at the time of filing the complaint was building and constructing, a large and commodious dwelling house thereon of a permanent character, with the intention to occupy and possess the same without the consent of the plaintiffs, which improvements when completed would become in time an easement and affect the title and right of possession of the plaintiffs to the premises, and be the foundation of an adverse claim; that the defendant threatens to continue to dig up and disturb and excavate the soil, and to continue the erection of the building, and to dispossess the plaintiffs and set up an adverse title. Following the demand in the complaint, and upon the giving of an undertaking in the sum of $5,000, the district court made a temporary order restraining the defendant from entering upon the premises, and from digging or excavating on the land, and from building or constructing any dwelling house or other structure or fixture thereon, and from committing any act |