Sureties, see "Principal and Surety," §§ 3, 4. Trustees, see "Trusts," § 2.
Trustees in bankruptcy, see "Bankruptcy," § 4.
Particular causes or grounds of action. See "Bills and Notes," § 6; "Bonds," § 2; "Death," § 1; "False Imprisonment," & 1; "In- surance," §§ 13, 14; "Judgment," § 13; "Li- bel and Slander," § 3; "Malicious Prosecution," § 2; "Money Received"; "Negligence," § 4; "Nuisance," § 2; "Seduction," § 1; "Tax- ation," 5; "Trespass"; "Trover and Conver- sion," § 2.
Breach of contract, see "Contracts,"_§ 4; "Sales," § 5; "Vendor and Purchaser," § 7. Breach of covenant, see "Covenants," § 1. Breach of promise of marriage, see "Breach of Marriage Promise."
Breach of warranty, see "Sales," § 6.
Civil damages for sale of liquors, see "Intoxicat- ing Liquors," § 6.
Commission of broker, see "Brokers," § 3. Compensation of agent, see "Principal and Agent," § 2.
Compensation of attorney, see "Attorney and Client," § 2.
Compensation of physician, see "Physicians and Surgeons."
Conveyance in fraud of wife, see "Divorce," § 3. Discharge from employment, see "Master and Servant," § 1.
Distribution of estate of decedent, see "Execa- tors and Administrators," § 5.
Failure to deliver goods, see "Carriers," § 1. Fires set by locomotives, see "Railroads," § 7. Injuries to cattle, see "Railroads," § 6. Injuries to party wall, see "Party Walls." Levy on exempt property, see "Exemptions," § 3.
Malpractice, see "Physicians and Surgeons." Personal injuries, see "Bridges," § 1; "Master and Servant," § 8; "Municipal Corporations," § 11; "Railroads," §§ 4, 5. Price of goods, see "Sales," § 5.
Recovery of debt secured by mortgage, see "Mortgages," § 3.
Recovery of exchanged property, see "Exchange of Property." Recovery of mortgaged personalty, see "Chattel Mortgages," § 6.
Rent, see "Landlord and Tenant," § 7. Taking of or injury to property in exercise of power of eminent domain, see "Eminent Do- main," § 4.
Wasting water of artesian well, see "Waters and Water Courses," § 1.
Wrongful attachment, see "Attachment," § 7. Wrongful execution, see "Execution," § 3. Wrongful garnishment, see "Garnishment," § 4.
Particular forms of action.
Establishment of will, see "Wills," § 3. Foreclosure of mortgage, see "Mortgages" ¦ i Foreclosure of mortgage on exchanged property, see "Exchange of Property." Proceedings to procure liquor license, see "Ir- toxicating Liquors," § 1. Redemption, see "Mortgages,” § 8. Reformation of written instrument, see "Refer mation of Instruments." Removal of cloud on title, see "Quieting Tite" Rescission of contract for sale of realty, set "Vendor and Purchaser," § 3. Rescission of exchange of property, see "Er- Setting aside fraudulent conveyance, see “Frand change of Property.' ulent Conveyances," § 3. Setting aside will, see "Wills," § 3.
Particular proceedings in actions. See "Appearance"; "Continuance"; "Costs"; "Damages"; "Depositions"; "Dismissal and Nonsuit"; "Evidence"; "Execution"; “Jude ment"; "Judicial Sales"; "Jury"; "Limita- tion of Actions"; "Parties" "Pleading": "Process"; "Reference"; "Stipulations": "Trial."
Notice of action, see "Process," § 1. Offer of judgment, see "Judgment," § 1. Revival of judgment, see "Judgment." § 11. Verdict, see "Trial," § 11.
Particular remedies in or incident to actions. See "Attachment"; "Garnishment"; "Injune tion"; "Receivers"; "Tender."
Stay of proceedings, see "Appeal and Error" § 12.
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," § 2.
§ 1. Grounds and conditions precedent. Abstract questions of law cannot be made the subject of litigation.-State v. Broatch (Neb.) 1016.
able private nuisance may result from the op- A person, in mere anticipation that an action- erations of another, cannot maintain an action at law or in equity against such person in re- spect thereto. Priewe v. Fitzsimons & Con- nell Co. (Wis.) 317.
§ 2. Nature and form.
Where a person sues in equity in good faith. and fails to establish facts entitling him to re- him to legal relief, the court may properly ex- lief in equity, but establishes facts entitling ercise its jurisdiction to settle the rights of the parties, regardless of the form of the action-
See "Ejectment"; "Replevin"; "Trespass," § 1. Gates v. Paul (Wis.) 55.
Particular forms of special relief. See "Creditors' Suit"; "Divorce"; "Injunction"; "Marshaling Assets and Securities"; "Parti- tion," § 1; "Quieting Title"; "Specific Per- formance.'
Abatement of nuisance, see "Nuisance," § 1. Alimony, see "Divorce," § 3.
Cancellation of written instrument, see "Can- cellation of Instruments."
Determination of adverse claims to real prop- erty, see "Quieting Title."
Determination of water rights, see "Waters and Water Courses," § 3.
Dissolution of partnership, see "Partnership," § 6.
Enforcement or foreclosure of lien, see "Me- chanics' Liens," § 3.
and severance. Where a husband and wife transferred certain property to defendant, who was to sell the same and pay them one-half the proceeds, Teld that the contract being a joint one, a joint action should have been brought thereon.-Blackburn v. Blackburn (Mich.) 24.
ACTION ON THE CASE.
See "Trespass," § 1.
Establishment and enforcement of right of ex- Of legacy, see "Wills," § 5
emption, see "Exemptions," § 3.
Establishment and enforcement of trust, see "Trusts," § 2.
Establishment of boundaries, see "Boundaries,"
See "Boundaries"; "Party Walls."
Of courts in general, see "Courts," § 2. Operation and effect of former adjudication, see "Judgment," §§ 8, 9.
Of loss within insurance policy, see "Insurance," § 10.
Of estate assigned for benefit of creditors, see "Assignments for Benefit of Creditors," § 1. Of estate of bankrupt, see "Bankruptcy," § 3. Of estate of decedent, see "Executors and Ad- ministrators."
Of estate of ward, see "Guardian and Ward," § 1.
Of property by receiver, see "Receivers," § 3.
Grants of land held adversely, see "Champerty and Maintenance."
§ 1. Nature and requisites.
A father's possession, use, and improvement of land conveyed to his son, after the convey- ance, held in subordination to the son's title, and not adverse.-Luckhart v. Luckhart (Iowa) 461.
Possession under a lease, even though such lease was intended only as additional security for a debt, was not adverse to the lessor.- Martin v. Martin (Iowa) 493.
Possession of mortgagors holding over after foreclosure held not adverse to the holder of the legal title.-Martin v. Martin (Iowa) 493.
Where by mistake one takes possession of the land of another, claiming it as his own, and con- tinues in open possession for 10 years or more, he acquires title by adverse possession, though the land was not inclosed.-Brownfield v. Bleek- man (Neb.) 714.
Under Laws 1891, p. 78, c. 24, § 1, failure of
As evidence, see "Criminal Law," § 10; "Evi- a person holding land under color of title to pay dence," § 5.
Judgment on, see "Judgment," § 1.
A deed of adoption held invalid under Revi- sion 1860, c. 107, §§ 2600, 2601, and Code. § 3446.-Hopkins v. Antrobus (Iowa) 251.
A decree of adoption, rendered by the pro- bate court under Rev. St. 1866, p. 536, c. 2, tit. 25, could be reversed or modified at the instance of any one having an appealable in- terest therein under the direct provisions of section 580, c. 1, tit. 16, p. 496.-Ferguson v. Herr (Neb.) 542.
A decree of a probate court, rendered under Rev. St. 1866, p. 536, c. 2, tit. 25, conferring an adopted child the full rights of inher- itance from his adopted parents, will not, after the death of the parents, in a collateral pro- ceeding, be held void for want of jurisdiction. -Ferguson v. Herr (Neb.) 542.
Where the decree in proceedings for adoption under Rev. St. 1866, p. 536, c. 2. tit. 25, fixing the status, becomes final by failure to prosecute error therefrom, it will be conclusive upon all persons interested.-Ferguson v. Herr (Neb.) 542.
The decree by the probate judge on the adop- tion of a child under Rev. St. 1866, p. 536, c. 2, tit. 25, has the force of a judgment, being subject to collateral attack only for want of jurisdiction.-Ferguson v. Herr (Neb.) 542. The statute prescribing the procedure in adop- tion should be liberally construed.-Ferguson v. Herr (Neb.) 542.
taxes for any year during the year for which the tax was levied held not fatal to a title by adverse possession.-Murphy v. Redeker (S. D.) 697.
One in possession of land held to have ac- Rev. St. quired title by adverse possession. 1898, 88 4210, 4211; Id. § 4212, subd. 3.-Pit- man v. Hill (Wis.) 40.
makes his claim in good faith is immaterial as Whether one in possession of land adversely against the holder of the title.-Pitman v. Hill (Wis.) 40.
Assignment of certificate of entry in terms conveying the land held a sufficient written in- strument on which to found adverse possession, under Rev. St. 1898, § 4211.-Pitman v. Hil (Wis.) 40.
Husband's adverse possession of land held referable to the wife's ostensible legal title.- Hatch v. Munden (Wis.) 332.
Adverse possession under a written instru- ment which purports to convey the land satisfies the statutory requirement, however invalid the instrument may be.-Hatch v. Munden (Wis.) 332.
§ 2. Operation and effect.
Where plaintiff and his grantor had acquired title to a line established by an agreed line fence, plaintiff was entitled to accretions to the land so claimed.-English v. Craford (Iowa) 276.
Rev. St. 1898, §§ 4211. 4212, 4215, confers on parties occupying land adversely complete legal title, though in form they only bar a suit to question such title.-Hatch v. Munden (Wis.) 332.
§ 3. Pleading, evidence, trial, and re- view.
Facts held to show that husband occupied land adversely as representative of his wife, plaintiff's predecessor in title, and not as ad- ministrator for decedent's predecessor in title. -Hatch v. Munden (Wis.) 332.
ADVERTISEMENT.
Publication of process, see "Process," § 1.
See "Depositions."
For continuance, see "Continuance."
For publication of process, see "Process," § 1. For sale of land for unpaid taxes, see "Taxa- tion," § 6.
A petition under 3 Comp. Laws, § 9234 et seq., which is verified in a foreign state, and
closure for the satisfaction of his lien-Das v. Council Bluffs Sav. Bank (Neb.) 983; Brom v. Same, Id.
A junior lienholder cannot complain that u agister adopted other than the statutory meas to foreclose his lien, where he is not injud thereby.-Dale v. Council Bluffs Sav. Bank (Neb.) 983; Brown v. Same, Id.
The question whether a bailor had consented to the method adopted by an agister to forecke his lien is for the jury.-Dale v. Council Blas Sav. Bank (Neb.) 983; Brown v. Same, Id.
ANNULMENT.
Of will, see "Wills," § 3.
APPEAL AND ERROR.
See "Certiorari"; "Exceptions, Bill of""; "New Trial."
Review of proceedings of justices of the peace. see "Justices of the Peace," § 3.
Review in particular civil actions.
See "Partition," § 1.
For breach of contract by purchaser, see "Sales," § 5.
Review in special proceedings.
See "Habeas Corpus," § 2.
Accounting by executor or administrator, see "Executors and Administrators," § 8. Accounting by guardian, see "Guardian and Ward," 3.
Of claims against municipality, see "Municipal Adoption proceedings, see "Adoption." Corporations," § 13.
Of geographical or political divisions, see "Coun: ties," § 1; "Municipal Corporations," § 1; "Schools and School Districts," § 1.
ALTERATION OF INSTRUMENTS.
See "Reformation of Instruments."
Evidence examined, and held to show that a mortgage had not been altered after execution and delivery.-Conkling v. Levie (Neb.) 987.
A note, made a part of an application for live stock insurance, and subsequently detached, without maker's knowledge or consent, held void in hands of bona fide purchaser.-Rocheford v. McGee (S. D.) 695.
AMENDMENT.
Of judgment, see "Judgment," § 3.
Of pleading, see "Pleading," § 3.
Of statutes, see "Statutes," § 4.
Allowance of claims against estate, see "Execu tors and Administrators," § 4.
Assessment of taxes, see "Taxation," § 4. Condemnation proceedings, see "Eminent De- Grant of liquor license, see "Intoxicating Liq- main," § 3.
Probate proceedings, see "Wills," § 3.
Review of criminal prosecutions. See "Criminal Law," § 26.
For violation of city ordinance, see "Municipal Corporations," § 10.
1. Nature and form of remedy.
On appeal in equity, the ruling of the dis- trict court on a motion to strike an answer can- not be considered.-Danforth v. Fowler (Neb.) 637.
§ 2. Nature and grounds of appellate jurisdiction.
Question presented by an appeal held to be ab- stract, and not entitled to consideration.-Pel- lett v. Fisher (Iowa) 469.
§ 3. Decisions reviewable.
Where defendant moved for judgment not-
On appeal or writ of error, see "Appeal and withstanding the findings, or for new trial, an Error," 25.
AMOUNT IN CONTROVERSY Jurisdictional amount, see "Justices of the Peace," § 1.
ANCILLARY ADMINISTRATION. See "Executors and Administrators," § 9.
Injuries from operation of railroads, see "Rail- roads," § 6.
An agister may adopt, with the consent of his bailor, other means than a statutory fore-
appeal from the order denying both motions is in effect from an order denying a new trial.- Noble v. Great Northern Ry. Co. (Minn.) 434.
An order discharging an order to show cause why a party should not be punished in civil con- tempt proceedings is appealable.-Deppe v. Cil- ley (Minn.) 679.
An order setting aside a judgment, fixing the time for filing pleadings, and setting the cause down for a new trial, under Code Civ. Proc. § 602, is not a final order from which appeal will lie.-Rose v. Dempster Mill Mfg. Co. (Neb.) 964.
A judgment of the district court on appeal from the county court, which leaves nothing further to be done in that court, is a final or der, within Code Civ. Proc. § 582, and appeala- ble.-Ribble v. Furmin (Neb.) 967.
Under Comp. Laws, §§ 4828, 5236, an order aade by a judge outside his own circuit held n order at chambers, and not appealable.- Custer County Bank v. W. H. Walling Mercan- ile Co. (S. D.) 582.
An order refusing to change the place of trial is not appealable under Rev. St. 1898, § 3069. -Waukesha County Agricultural Soc. v. Wis- consin Cent. Ry. Co. (Wis.) 289.
4. Right of review.
Where one appellant made disclaimer, and the three remaining appellants, as to whom the court dismissed the action, were not in- juriously affected by the judgment, the appeal will be dismissed.-Cornish & Co. v. West (Minn.) 1082.
Where defendant is sued in the county court and appears, he can appeal from a judgment against him, though he introduces no evidence. -Creighton v. Chicago, R. I. & P. R. Co. (Neb.)
The payment by a garnishee of a judgment against him in the municipal court does not affect defendant's right to appeal to the cir- cuit court.-Eastlund v. Armstrong (Wis.) 301. The fact that defendant allowed a garnishee to pay a judgment entered against him in the municipal court without protest did not con- stitute a waiver of his right to appeal to the circuit court.-Eastlund v. Armstrong (Wis.) 301.
Though a defense is ineffectually pleaded, yet if plaintiff replied thereto without objection, and the matter is treated as properly in issue, the defect cannot be first objected to on appeal.- Standley v. Clay, Robinson & Co. (Neb.) 140.
Affidavits on motion to amend the reporter's notes of the evidence cannot be considered on appeal, in the absence of a ruling thereon.- Modern Brotherhood of America v. Cummings (Neb.) 144.
A petition, when assailed for the first time on appeal, will be liberally construed.-First Nat. Bank v. Tompkins (Neb.) 717.
The Supreme Court will not order a verdict to be corrected, by substituting affirmative in place of negative answers to certain questions, and that judgment be entered on the corrected verdict, where no request for such action was made to the trial court.-Small v. McGovern (Wis.) 651.
To authorize review of rulings on motions and other matters of procedure, complaining § 5. Presentation and reservation in party must except, file a motion for a new trial, lower court of grounds of review and present the questions by a petition in error. -Issues and questions in lower-Danforth v. Fowler (Neb.) 637.
Where the constitutionality of a law is at- tacked, additional objections and arguments against the validity of the law to those ad- vanced in the court below may be urged on appeal.-Fitch v. Board of Auditors of Claims Against Manitou County (Mich.) 952; Kane v. Same, Id.
An objection in a personal injury case that evidence is incompetent as "measuring degrees of care" will not cover a contention on appeal that the matter inquired about was not a sub- ject of expert testimony.-Hamilton v. Men- dota Coal & Mining Co. (Iowa) 282.
An objection that certain evidence is inadmis- sible, because the matter is not one of "custom will not cover the contention on ap- peal that it was not a subject for expert tes- timony.-Hamilton v. Mendota Coal & Mining Co. (Iowa) 282.
Defendant, in an action for seduction, held not entitled to attack on appeal the sufficiency of the averment in the petition as to plaintiff's pre- vious chastity.-Lampman v. Bruning (Iowa) 562.
The objection that testimony in an ejectment suit showed that defendants' holding was sev- eral, while the complaint charged it to be joint, can be raised by assignment of error to a charge directing a verdict for plaintiff.-Towns- end v. Kreigh (Mich.) 732.
Objection to hypothetical question, not spe- cifically made at trial, held not available on appeal.-N. & M. Friedman Co. v. Atlas Assur. Co. (Mich.) 757.
No formal offer to prove is required to obtain a review of a ruling excluding the answer to a question, where it clearly indicates what the party expected to prove.-Williams v. Fuller (Neb.) 118.
Error cannot be predicated on the overruling of an objection to testimony, where no excep- tion is taken.-Waterhouse v. Jos. Schlitz Brew- ing Co. (S. D.) 587.
An order granting a continuance on condi- tion, etc., held not reviewable in the absence of an exception. Rev. St. 1898, § 2872.-In re McMahon's Estate (Wis.) 351; Appeal of Mc- Mahon, Id.
§ 8. Motions for new trial. motion for a new trial is not necessary to en- Under express provisions of Code, § 4106, a title a party to appeal. - Independent School Dist. of Centerville v. Swearngin (Iowa) 206.
Where a verdict is in favor of several defend- ants on distinct defenses, and a joint motion for new trial is overruled, the court on appeal is only required to ascertain the fact that the verdict is good as to any one defendant.- Lydick v. Gill (Neb.) 109.
A petition for a new trial is not necessary to obtain a review of the judgment entered on an appeal from an order granting a liquor license. -Bennett v. Otto (Neb.) 807.
Where no motion for a new trial is filed, rulings on evidence will not be reviewed.- Saling v. Saling's Estate (Neb.) 963. § 9. Parties.
Where plaintiff obtained judgment, and after his death a petition in error was filed, and his attorneys filed a written statement, waiving the issuance of summons and entering the voluntary appearance of such plaintiff, held that the court acquired no jurisdiction.-Ritchey v. Seeley (Neb.) 972.
Where two defendants join in an action for new trial, and file a joint petition in error, the judgment will be affirmed, unless the record discloses error prejudicial to both.-Anderson v. Hall (Neb.) 981.
10. Requisites and proceedings transfer of cause.
A notice of appeal that "intervener in the above cause has appealed the same" held sufli- ciently specific.-Augustine v. McDowell (Iowa) 918.
Where, on appeal from the probate court, no bond is furnished where one is required, the ap- peal will be dismissed.-Rhea v. Brown (Neb.) 716.
On appeal from the probate court, the district court has jurisdiction after the transcript is filed to determine whether or not a bond was neces- sary.-Rhea v. Brown (Neb.) 716.
An appeal from a judgment held properly tak- en, if the judgment has been entered when the appeal is taken, and time for appeal has not been cut off by statutory notice of entry of judgment and the lapse of one year after such entry.-Prescott v. Brooks (N. D.) 88.
§ 11. Effect of transfer of cause or pro- ceedings therefor.
On appeal from a judgment of the district court, that court loses all jurisdiction over the parties and over the subject-matter.-Dunton v. McCook (Iowa) 942; Blake & Co. v. Same, Id.
In appeals in probate proceedings, under Comp. St. 1901, c. 20, §§ 42-48, the district court ge- quires jurisdiction on the filing of a transcript.- Rhea v. Brown (Neb.) 716.
§ 12. Supersedeas or stay of proceedings. A purchaser at an execution sale held in Ne- braska, whose sale had been confirmed by the court, became immediately entitled to a sher- iff's deed, notwithstanding the filing of a super- sedeas bond by the execution debtor, under sec- tion 590, p. 498. Rev. St. Neb.-Hendryx v. Evans (Iowa) 853.
The order confirming an execution sale con- tinues in full force, notwithstanding an appeal therefrom, until reversed.-Hendryx v. Evans (Iowa) 853.
§ 13. Record and proceedings not in rec- ord-Matters to be shown by rec-
Necessity of bill of exceptions, case, or statement of facts. A bill of exceptions is unnecessary to review an error apparent on the face of the record. Herman v. Beck (Neb.) 512. § 16.
Abstracts of record. Under Code 1897, § 4118, and Sup. Ct. Rule 22, held, that abstract and amended abstract would, under the facts, be deemed to contain all the evidence.-Shobek v. National Cracker Co. (Iowa) 930.
Under Code 1897, § 4118, where a transcript of the certificate of the trial judge shows that proper steps were taken to preserve the evi- dence, it will be presumed that it was pre- served as required by Code 1897, § 3052.-Bur- get v. Incorporated Town of Greenfield (Iowa) 933.
Where error is claimed in permitting ar amendment during trial, the fact of such amend ment must be shown by the record.-Pratt 1. Smith (Neb.) 104.
An objection that an instruction was give in the absence of counsel cannot be considered where the record did not show such absence- Modern Brotherhood of America v. Cummings (Neb.) 144.
Where the evidence on which the court acted in overruling a motion is not preserved in a b of exceptions, the ruling will not be disturbed --Cox v. Crow (Neb.) 524.
Unless there is a bill of exceptions contai:- ing all the evidence, the findings of fact w not be reviewed.-Emery v. Hanna (Neb.) 973. § 18. Matters not apparent of rec-
A judgment will not be reversed, except for prejudicial error affirmatively appearing.-Mod- ern Brotherhood of America v. Cummings (Neb.) 144.
Contention of appellant that trial judge's man- ner prejudicially impressed the jury held T available.-Klipstein v. Raschein (Wis.) 63.
Record held not such as to permit review of order denying injunction pendente lite.- Ellis v. City of Ashland (Wis.) 292. § 19. Assignment of errors.
motion to dismiss an appeal because error was Where a cause was tried as a suit in equity, a not assigned will be denied.-Luke v. Koenen (Iowa) 278.
rors in rulings on evidence will not be reviewed. A general assignment to several alleged er -Halley v. Tichenor (Iowa) 472.
Assignments of error in sustaining objections to questions held too indefinite to be considered. -In re Harvey's Will (Iowa) 559; Junkin v. Harvey, Id.
In view of Code, § 4136. an assignment of Co. v. Lamm Bros. (Iowa) 839. error held not sufficiently specific.-Reeves &
An assignment that "the court erred in giv- ing the instructions," naming them, "and each of them," is too indefinite and uncertain.-Pow- ers v. Benson (Iowa) 929.
An assignment that the court erred in re- fusing to read and in reading instructions asked and refused held insufficient, under Code, { 4136.-Border v. Isherwood (Iowa) 1128.
A judgment will not be reversed for errors which are required to be assigned on a motion for a new trial, unless it is alleged and shown by the record that the court erred in overruling the motion.-Coxe Bros. & Co. v. Omaha Coal, Coke & Lime Co. (Neb.) 519.
Where defendant calls attention to a defect in the petition in error in failing to allege that the court erred in overruling a motion for new trial, the judgment will not be reversed.-Coxe Bros. & Co. v. Omaha Coal, Coke & Lime Co. (Neb.) 519.
Alleged errors in instructions, which are not specifically pointed out, cannot be considered.- Cox v. Crow (Neb.) 524.
The Supreme Court is not bound to examine questions in the briefs not stating specifically what is complained of.-Hackney v. Raymond Bros. Clarke Co. (Neb.) 822.
Where no abstract or briefs are filed, the ap- peal will be dismissed.-Russell v. Deadwood Development Co. (S. D.) 693.
§ 21. Hearing and rehearing.
Order of a circuit court consolidating two ap peals from the county court did not prejudice any rights of the complaining party.-In re Olson's Estate (S. D.) 421.
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