INJUNCTION.
Venue, see Venue in Civil Cases, 1.
1. Civil Code Colo. § 144, gives to district courts and judges power to grant injunctions "pending proceedings in the supreme court on appeal or writ of error," with a view to relieving the supreme court from the duty of considering applications for such injunctions, of which it will only as sume jurisdiction when there exists some unusual or extraordinary reason therefor.-Johnson v. Young, (Colo.) 22 P. 769.
2. Where the evidence indicates that tres
passes are likely to be repeated, an injunction will be granted, to prevent a multiplicity of suits.Smithers v. Fitch, (Cal.) 22 P. 935.
3. Equity will not enjoin the breach of a contract of certain acrobats to appear exclusively at complainant's theater, where it does not appear that the exhibition involves special merit, skill, knowledge, or ability, so that the same services could not be easily obtained from others, nor be compensated in damages at law.-Cort v. Lassard, (Or.) 22 P. 1054.
4. Plaintiff alleged that he was engaged in the butchering business, and that defendant had constructed a building on the public road, wholly obstructing the road, which was plaintiff's only means of going to and from his slaughter-house, and that his business would be thus entirely destroyed, to his damage $5,000. He did not allege that defendant was not responsible for such sum, or that there would be any impediment to recovery of such sum by an action at law. Held, that he was not entitled to a preliminary injunction enjoining defendant from maintaining any obstruction on such road.-Gardner v. Stroever, (Čal.) 22 P. 483. 5. Though a right of way for a toll-road is a mere incorporeal hereditament, yet a complaint which shows that plaintiff is the owner of the right of way for a toll-road, and entitled to collect tolls thereon, and that defendant county interferes with his enjoyment of his property by depriving him of his tolls, presents a sufficient case for an injunction, under Code Civil Proc. Cal. $781, which provides that anything which is an obstruction to the free use of property may be enjoined.-Welch v. Plumas County, (Cal.) 22 P. 254. 6. A perpetual injunction will not be granted to restrain the officers of a city from issuing, selling, and delivering its bonds in aid of local improvements, when there is an express finding by the trial court that said bonds had been issued, sold, and delivered before service of a temporary restraining order issued at the commencement of the action.-City of Alma v. Loehr, (Kan.) 22 P. 424. Procedure.
7. In an action to enjoin defendant from destroying a levee alleged to have been built by plaintiff on land belonging to her, a finding that "said levee is upon the line dividing the lands of plaintiff and defendant, and is built partly upon the lands of each," is a sufficient finding that said levee was built upon land owned by plaintiff to sustain a judgment for her.-Belcher v. Murphy, 22 P. 264, 81
act to be done, and the court has no power, pending appeal, to punish for the omission to comply with such order.-Dewey v. Superior Court, (Cal.) 22 P. 333.
10. A notice of a motion to dissolve an injunc tion, given at the statutory time, though at a time when the court has no jurisdiction of the case, is sufficient where the court has jurisdiction when the motion is made.-Younglove v. Steinman, (Cal.) 22 P. 189.
11. Though a notice of a motion to dissolve an injunction states that the motion will be "based upon the papers, pleadings, and records in said cause, and upon affidavits hereafter to be filed, " the court may hear evidence outside of that mentioned in the notice, if necessary.-Younglove v. Steinman, (Cal.) 22 P. 189.
terpreting the terms of a contract of suretyship the 12. Civil Code Cal. § 2837, provides that in in
same rules are to be observed as in the case of other contracts. Section 1643 requires that a coning carried into effect, if it can be done without tract be interpreted so as to make it capable of beviolating the intention of the parties. Held, that as no undertaking can be required on final injunc tion, Code Civil Proc. providing only for undertasissue," in an undertaking given on the issuance of ings on preliminary injunctions, the words “shall injunction shall issue," must be construed under a preliminary injunction, conditioned "in case said tinued in force. "-Lambert v. Haskell, (Cal.) 22 P. these Code provisions as meaning "shall be con327.
13. A preliminary injunction was first issued, and afterwards the court ordered the injunction dissolved, unless plaintiffs should give an undertak ing in a much larger sum, which was given. It recited the commencement of the suit, and was conditioned "in case said injunction shall issue," etc. The complaint in an action on the undertaking alleged the granting of the injunction and the making of the order requiring a further undertaking, and that in compliance with such order, "and in order to continue in force said injunction," the undertaking in suit was given. The answers denied that defendants caused the undertaking to be filled, and averred that plaintiffs in the injunction suit caused it to be filed, and further. averred that defendants had no knowledge of the "order and character" of the prior proceedings in the suit. Held, that if defendants executed the undertaking for the purpose mentioned, it is immaterial whether they or their principals caused it to be filed; also that, as the undertaking recited the pendency of the suit, defendants were bound to take notice of the order, and character of the proceedings therein; and therefore that the plead ings admitted that the undertaking was given to continue in force the injunction previously is sued, and defendants could not contend that the words "shall issue" in the undertaking referred to a final injunction in the suit.-Lambert v. Haskeli, (Cal.) 22 P. 327.
14. In an action against the sureties on an undertaking on a preliminary injunction, the com plaint alleged the pendency of the injunction suit, and the making of an order requiring an un dertaking conditioned that said sureties on said undertaking would pay to the said parties enjoined, all damages that they might sustain by reason of said injunction, if said court should finally decide that said A. and M. were not entitled to the same; said damages not to exceed $10,000. It then alleged that an undertaking had been given in compliance with said order, and annexed the undertak ing as an exhibit, making it a part of the pleading by reference. Held, that this was a sufficient showing of the terms of the contract of the sureties, and the condition on which their liability was to arise, and that it was not necessary to set forth the nature of the obligation.-Lambert v. Haskell, (Cal.) 22 P. 827.
15. The complaint also alleged that the business of the defendants in the injunction suit was the
removal of dead animals, and "trying out dead ani- mals, and selling the oil, bones, hides, and other products. It then alleged that an injunction was issued, which was annexed and referred to, "en- joining and restraining said plaintiff B. et al. from carrying on said business, as in said injunction particularly expressed." The injunction restrained defendants "from maintaining your certain order- boxes mentioned in the complaint, *** and from removing, or in any manner interfering with or disposing of, * any dead ✶✶✶ cattle, within the limits," etc. The undertaking was given "in order to continue in force said injunction restraining said plaintiff B. et al. from carrying on their said business." Held, that the complaint was not objectionable on general demurrer as failing to show the acts sought to be restrained, and whether the injunction restrained defendants from commis- sion of the acts referred to in the undertaking.- Lambert v. Haskell, (Cal.) 22 P. 327.
18. Plaintiff in an action on an injunction bond can recover for profits which he would have made had he not been prevented by the injunction from carrying on his business.-Lambert v. Haskell, 22 P. 327, 80 Cal. 611.
17. The sureties on an undertaking on a prelim- inary injunction are not liable for losses or counsel fees accruing after the final decree making the in- junction perpetual, as a preliminary injunction is merged and ceases to have effect when a decree for perpetual injunction is rendered, and Code Civil Proc. Cal. provides only for an undertaking on the preliminary injunction.-Lambert v. Haskell, (Cal.) 22 P. 327.
18. The sureties are not liable for loss of profits or counsel fees incurred or expended before the giving of the undertaking, nor for counsel fees ex- pended in defense of the suit, but only those ex- pended solely or principally in procuring a dissolu- tion of the injunction.-Lambert v. Haskell, (Cal.)
19. Where an order is made that an injunction issue on the filing of a bond, and the bond recites that it is given in consideration that the said writ of injunction may issue, but the injunction is is- sued and served before bond is given, the sureties on the bond are not liable.-Carter v. Mulrein, (Cal.) 22 P. 1086.
As defense to crime, see Homicide, 18-20.
complaint alleged that such property was wrong. fully withheld by the insolvent from the schedule of assets; and that defendant wrongfully came into possession of and retained the same, though the plaintiff, as assignee, was entitled to it, and refused to deliver possession to plaintiff upon demand. Held, that the complaint was sufficient without any allegation of fraud, the action not being based upon fraud.-Cady v. Leonard, (Cal.) 22 P. 694. 3. It appeared from the evidence in such action that defendant was the mother of the insolvent, and that the evening before the filing of the peti- tion of insolvency he "turned over" to her certain property "needed for his family," including that in controversy. Held, that the evidence did not tend to show a fraudulent transfer, but that there was no transfer at all, and such evidence is competent to prove the allegations of the complaint, that the insolvent was the owner of the property and de- fendant was not.-Cady v. Leonard, (Cal.) 22 P. 694. Discharge.
4. An application by an insolvent for a dis- charge from his debts was opposed by certain cred itors on the ground of a fraudulent preference of one creditor to the extent of $1,000. The insolvent denied having paid him anything but $500, which he alleged was paid in good faith, on a debt which he had owed him, and introduced in evidence, and rested on, the pleadings in the proceeding adjudg ing him to be an insolvent. The petition therein alleged that the insolvent, by making a payment of $1,000 to a creditor, had committed an act of in- solvency, but did not allege fraud; and the an- swer denied having made a payment of $1,000, or any greater sum than $500, to such creditor, and was supported by affidavit, as required by the In- solvent Act Cal. § 49, that respondent had not done, suffered, or been privy to anything specified in the act as ground for withholding or invalidating his discharge. Held, that a direction of a verdict against the insolvent was unwarranted, as the burden of proving such fraud as would bar the in- solvent's discharge was on the contestants.-In re Harris, (Cal.) 22 P. 867.
5. The affidavit made by the insolvent in the proceedings to adjudge him insolvent is admissible to show compliance with the insolvent act.-In re Harris, (Cal.) 22 P. 867.
6. Under section 48, which authorizes the in solvent to apply for a discharge at any time after the expiration of three months from the adjudica- tion of insolvency, his discharge will not be de- layed by the failure of an assignee to qualify,
See, also, Assignment for Benefit of Creditors; where the creditors failed to appear at the time Bankruptcy.
1. In an action to recover property under in- solvent act Cal. 1880, § 55, providing that any prop- erty transferred by an insolvent within one month before the filing of his petition, with intent to pre- fer any creditor, to a person who had reasonable cause to believe the debtor to be insolvent, and that his intent was to prevent the property from going to his assignee, may be recovered, it appeared that the insolvent had collected money for defendant, and tortiously converted it; that he had notified defendant that his property would probably be at- tached the next day; that he turned over to de- fendant two days before the filing of his petition as an insolvent, and on a Sunday, the property in controversy in part payment of his debt; and that defendant received the property without making such an inspection and trial as he would have made under ordinary circumstances. Defendant testi- fied that he took the property without design to defraud the other creditors of insolvent. The court found that defendant had acquired the property without any reason to believe that insolvent was unable to pay his debts, and without intent to evade any provision of the act. Held, that the finding was not supported by the evidence.-Godfrey v. Miller, (Cal.) 22 P. 290.
designated by the court for choosing one.-In re Harris, (Cal.) 22 P. 867.
7. As the answers denied all the allegations of fraud, it was proper to refuse to instruct that the insolvent, under the pleadings, had admitted that when he was insolvent, and in contemplation thereof, he paid a certain creditor $500; and that if he did so to prevent the money from reaching the assignee, or from being distributed under the insolvent act, he is not entitled to a discharge.- In re Harris, (Cal.) 22 P. 867.
S. The rights of a creditor are not affected by the discharge in insolvency of his debtor, where neither the creditor himself nor his debt was with- in the jurisdiction of the court in which the pro- ceedings in insolvency were had.-Stone v. Ham- mell, (Cal.) 22 P. 203.
9. The discharge in insolvency of a debtor does not affect the rights of his surety on a note who subsequently contributes to the payment thereof. -Stone v. Hammell, (Cal.) 22 P. 203.
10. A discharge in insolvency, granted by a state court, will not bar an action on a judgment rendered in another state, where the judgment creditor is a resident of such other state, and was not a party to the insolvency proceedings.-Bean v. Loryea, (Cal.) 22 P. 513.
11. Though insolvency act Cal. § 53, makes the certificate of discharge prima facie evidence of the regularity of such discharge, one who seeks to avoid a debt on the ground of a discharge in in-
solvency is still bound to show that the debt is one which was affected thereby.-Herrlich v. McDon- ald, 22 P. 299, 80 Cal. 472.
12. A complaint alleged that defendant was a dealer in mining stocks; that plaintiff employed her to purchase mining stock, and gave her a certain sum to be used for that purpose; that defendant purchased stock worth that sum, and collected the dividends thereon; and that plaintiff demanded the stock and dividends, but defendant refused to de- liver them. The court found that defendant had sold the stock at a profit, for the amount of which judgment was rendered. Held, that the debt was created "while acting in a fiduciary capacity," and under insolvency act, § 52, was not affected by a discharge in insolvency.-Herrlich v. McDonald, (Cal.) 22 P. 299.
13. On a motion to discharge an execution be- cause of defendant's discharge in insolvency, it ap- peared that the findings in the action in which the judgment on which the execution issued was ren- dered, were made and filed in 1881, but that the judgment was not recorded until 1886. Held, that defendant had had no opportunity to set up as a defense a discharge in insolvency, obtained be- tween these dates, and hence it could not be held that she had waived her right to assert it on the motion to discharge the execution.-Herrlich v. McDonald, (Cal.) 22 P. 299.
14. A discharge in insolvency is not a bar to an action on a contract for hiring for a certain length of time, for money which became due thereon after defendants were declared insolvent, as under In- solvency Act Cal. 1880, c. 87, § 42, only such sums as were due at the time they were declared insolvent could be proved, and would be affected by the dis- charge.-Mooney v. Detrick, (Cal.) 22 P. 1111.
cover, as against the company, for the loss.-Bur- lington Ins. Co. v. Gibbons, (Kan.) 22 P. 1010. Action on policy.
3. A complaint, in an action on a life insurance policy, which contains neither an allegation of non-payment of the policy, nor one from which the non-payment can be implied, is fatally defective. -Richards v. Travelers' Ins. Co., (Cal.) 22 P. 939.
4. In an action on an insurance policy, it ap peared by plaintiff's calculation that his less amounted to more than $4,000. One of his witnesses placed the loss at $3,000. Plaintiff's clerk testified that he usually had a stock worth $5,000; and anoth- er witness testified that three weeks before the fire it was worth $5,000, but that during that time large amounts of goods had been sold, and little purchased. Witnesses for defendant put the value of the stock at much less than $1,000. Held, that a finding of $4,000 loss was supported by the evi- dence.-Case v. Manufacturers' Fire & Marine Ins. Co., (Cal.) 22 P. 1083.
Mutual benefit insurance.
5. In an action by the beneficiary, on a certifi- cate of mutual benefit insurance, the court found that at the time when the certificate was issued to decedent he had become a member of the associa- tion, and had complied with all its requirements; that members could only know of the levy of an assessment by notice served on them; that dece- dent, on the day he was notified of his suspension for non-payment of a delinquent assessment, of which he had had no notice, paid the same, and all prior assessments due, and a subsequent one which had not yet become delinquent; that thereafter, when all assessments had been paid, and accepted 15. An order discharging an insolvent will be by the association, decedent gave notice of the vacated where, after the time for hearing the peti- substitution of plaintiff for the original beneficia- tion for discharge has been set, it is ordered, under Ty, in the regular manner; that only one meeting having taken place since decedent's suspension, at a stipulation filed, that the matter go off the calen- which no action was taken in reference thereto, he dar, to be reinstated and set for hearing on stipula-was not reinstated into full membership until tion or on notice by petitioner, and thereafter, on a shortly after this notice and shortly before his day subsequent to that originally set, petitioner, death. Held, that there was a sufficient finding without notice or stipulation, procures the order of that decedent was a "member in good standing" discharge. In re Wölfe, (Cal.) 22 P. 974. at the time of his notice.-Millard v. Supreme Council, (Cal.) 22 P. 864.
See Criminal Law, 25-30; Trial, 6-12.
INSURANCE.
See, also, Marine Insurance. Conditions of policy.
1. A clause in a policy that, "in case of differ- ences touching any loss or damage after proof thereof has been received in due form, the matter shall, at the written request of either party, be submitted to impartial appraisers, whose award in writing shall be binding on the parties, providing for the number of appraisers or the mode of their selection, is too vague to give the company a right to demand arbitration, and the insured's refusal of such demand does not deprive him of the right to sue on the policy, or to prove the full amount of his loss, even though it is more than stated by him in the proofs.-Case v. Manu- facturers' Fire & Marine Ins. Co., (Cal.) 22 P. 1053.
2. A fire insurance policy was procured through a local insurance agent, who did not sign the policy, and whose name was indorsed thereon only as a "solicitor," and who had no authority from his The company, except as a "soliciting agent." house was to be occupied by the "owner or tenant, and in the policy was a provision that, if the prop- erty became vacant, unless the consent of the sec- retary was indorsed on the policy, it should be void. The property became vacant, without the consent of any agent of the company except the solicitor, who gave his oral consent that it might remain va- cant for 30 days. While thus vacant it was totally destroyed by fire. Held, that the assured cannot re-
6. Such facts are a sufficient finding as to the denials of the answer regarding the several sus pensions of decedent, as there was no allegation that he was suspended at any other time, or for any other reason than delinquency in paying his assessments.-Millard v. Supreme Council, (Cal.) 22 P. S64.
7. Such findings of fact, together with a find- ing that at the time of his death decedent was a member in good standing and had complied with all requirements of the association and of his cer- tificate, are sufficient to avoid an objection that there was no finding on that issue, though the lat- ter finding was classed under "conclusions of law." -Millard v. Supreme Council, (Cal.) 22 P. 864.
8. The beneficiary was not required to furnish proof of death by the certificate or by laws, the former merely requiring "satisfactory evidence of the death of said companion," and proof of death was required to be furnished to the supreme coun- cil only by the council of which decedent was a member. Held, that a finding of satisfactory proof of death by the beneficiary was immaterial, and had been waived by defendant in denying all liability on the certificate.-Millard v. Supreme Council, (Cal.) 22 P. 864.
9. Where a member of a mutual benefit associa tion was suspended for non-payment of an assess- ment, but the association afterwards received and retained the amounts of all assessments due, it waived any right of forfeiture it may have had.— Millard v. Supreme Council, (Cal.) 22 P. 864.
10. An application for a membership in a mutual insurance company, made a part of the certificate of membership, stated that it "must be signed by the applicant, or the certificate, if issued, will be An application was made by a husband void. " for the wife, at her direction, and was signed by him with the knowledge and consent of the agent of the company. The action of the husband was
afterwards approved by the wife. Held, that the signature to the application became in law the sig- nature of the wife, and is binding upon the insur-Right to relief. ance company. Somers v. Kansas Protective Union, (Kan.) 22 P. 702.
11. Where both the general laws of the state and the by-laws of an incorporated society give it the right to repeal, alter, or amend its by-laws, it is not a breach of contract for such society to amend a by-law which provides that, in case of sickness, a member shall be entitled to receive $10 per week, by limiting such allowance to a certain number of weeks thereafter, though a member be sick at the time of such amendment.-Stohr v. San Francisco Musical Fund Soc., (Cal.) 22 P 1125.
12. Act Cal. April 2, 1866, relating to the incorpo- ration of mutual insurance companies, provides (sections 8 and 9) that no company organized under the act shall transact business until it shall have obtained a guaranty fund of at least $250,000, which shall consist of the notes of solvent parties, paya- ble to the company as prescribed by its directors, for the better security of the company's dealers, and shall be assets, liable for all its debts, next after the assets arising from premiums and other sources, ex- clusive of the capital stock, until the profits, to- gether with the capital stock, shall equal the ag- gregate of the original guaranty fund, and the capital stock.. Section 17 provides that each stock- holder shall be personally liable for the debts of the company in the proportion which the stock owned by him bears to the whole amount. Held, that the claims of the stockholders of an insolvent company, organized under the act, for moneys paid by them as stockholders on matured policies, are payable out of the general assets, and not out of such guaranty fund.-In re California Mut. Life Ins. Co., (Cal.) 22 P. 869.
On purchase money.
1. There being conflicting evidence as to whether tender of the purchase price was made at the proper time, the allowance of interest to the vendors to the time of the trial should not be dis- turbed, especially where the vendees have been in possession, and had the use of the property. Brandt v. Clark, (Cal.) 22 P. 863.
1. When, after the filing of a complaint in in- terpleader, one of the defendants alleges that a greater sum is due than plaintiff admits, where- upon plaintiff amends his complaint to make the allegation as to the amount agree with defendants' answer, there is no controversy as to the amount due, and plaintiff is entitled to relief.—Orient Ins. Co. v. Reed, (Cal.) 22 P 484.
2. Though plaintiff had previously denied the right of one of the defendants to the fund in ques- tion in an action brought by said defendant as as- signee of the money against him, he can neverthe- less maintain an action of interpleader, as it is only when plaintiff denies one of the defendants' claims in the action of interpleader itself that he can have no relief.-Orient Ins. Co. v. Reed, (Cal.) 22 P. 484. Pleading.
3. It is not essential that plaintiff, in a bill for interpleader, should offer to pay the costs of a previous action brought against him by one of the defendants as assignee of the fund in question.- Orient Ins. Co. v. Reed, (Cal.) 22 P. 484.
INTOXICATING LIQUORS. Illegal sales-Prosecution.
1. A complaint which charges defendant with having sold whisky in M. City, in quantities pro- hibited by a city ordinance, but which fails to charge that defendant sold the whisky without having first obtained a license as required by the ordinance, does not state facts sufficient to consti- tute an offense.-Cunningham v. Berry, (Or.) 22 P. 115.
2. In a prosecution for the illegal sale of liquors, one may testify to the location of a building where the liquors were sold, and the name it is known by, although he may not know of his own knowledge that it was occupied by defendant, and does not know personally of the crime which the defendant is charged with having committed therein.-State v. Druitt, (Kan.) 22 P. 697.
other state to a point in Kansas are subject to the 3. Intoxicating liquors transported from an laws of Kansas relating to their sale to the same extent as are other intoxicating liquors already rightfully in the state, and cannot be sold at the place of destination, in the original packages or other form, except as the laws of the state pre- scribe. The police power of the state, so exer- cised, does not infringe on the power delegated to State v. Fulker, (Kan.) 22 P. 1020. congress to regulate commerce between the states.
IRRIGATION.
Lien for, see Liens. Appropriation of water.
2. Plaintiff and defendant entered into an agree ment by which plaintiff examined and purchased second-hand machinery, defendant furnishing all funds, and, after repairs were made, both par ties used their efforts to sell it, after which de fendant was reimbursed for all advances, and the profits evenly divided. Plaintiff, being advised that the contract was a partnership, gave notice of dis- solution. He was then indebted to defendant. De- fendant continued to make sales and collections. and, when plaintiff sued for an accounting, was in debted to plaintiff. After the action was brought several years elapsed before a receiver was appoint- ed, and defendant still continued the sales and col- lections. While the contract was in force the par- ties agreed that interest at 14 per cent. per month should be charged on all balances. Defendant used the money collected in his business, but there was no finding as to his profits. Held, that the agree- ment as to interest ended when the business con- tract ended, and that defendant should be charged with the profits of the fund held in trust by him for plaintiff, or with interest computed as follows: Interest should be allowed on the amount due the defendant from the time of notice of dissolution to the commencement of the suit at the legal rate, and also on the sums collected by defendant during that time, and a balance struck, and on such bal- ance, beginning at that date, it should be com- pounded annually at the legal rates; also interest of causes, see Action, 1, 2. on the sums collected by defendant from time to time, at like rates, to the next annual rest,-the amount of these sums forming a new principal; and this rate should be allowed to the time of the first decree in the action, and only simple interest there- after.-Faulkner v. Hendy, (Cal.) 22 P. 401.
Civil Code Cal. § 1415, provides "that a per- son desiring to appropriate water must post a no- tice * Section 1419 provides "that a failure to comply at the point of intended diversion. " with such rules deprives the claimant of the right claimant who complies therewith." Held, that a to the use of the water as against a subsequent statute gives a right to continue the diversion as diversion of water without compliance with the against a subsequent pre-emptioner of the land through which the water flows who has also not complied with the statute.-De Necochea v. Cur- tis, 22 P. 198, 80 Cal. 397.
In bastardy proceedings, see Bastardy. ejectment, see Ejectment, 13.
1. Strangers to a judgment by confession are not concluded by its date, nor by its recitals. They may, upon a complaint setting forth specific aver- ments of fraud, introduce oral, as well as docu- mentary and record, evidence to impeach such judgment.-Schuster v. Rader, (Colo.) 22 P. 505. By default.
2. Under Sess. Laws Colo. 1885, which provide that, in case no copy of the complaint is served with the summons, it is "optional with the defendant to either answer the complaint on or before the sec- ond Monday after service of summons upon him, or cause notice of his appearance to be given, and demand a copy thereof," the defendant having adopted the latter course, it is error to en- ter judgment by default against him until such copy has in fact been furnished him, and the legal time thereafter for answering has expired.-Gwil- lim v. First Nat. Bank, (Colo.) 22 P. 458.
Rendition and entry.
3. When the petition and præcipe were filed, a summons was issued by the clerk, on which he failed to indorse the amount for which judgment would be taken if defendant did not answer. On the following day plaintiff caused a summons, properly indorsed, to be issued and served. No answer or demurrer having been filed, plaintiff moved for judgment, when defendant objected be- cause the amount claimed was not indorsed on the original summons. Held, that judgment was prop- erly entered.-Simpson v. Rice, Friedman & Mark- well Co., (Kan.) 22 P. 1019.
4. An interlocutory decree, reciting that it was made by agreement of parties, and the report of a referee, not filed until April 21st, were, by order of court, filed nunc pro tunc as of March 13th and March 20th, their respective dates. Held, that such proceedings were valid, in the absence of fraud.-Richardson v. Loupe, (Cal.) 22 P. 227. Res adjudicata.
concluded by the judgment in B.'s favor from maintaining proceedings to establish a lien against the property in the hands of B.'s grantees.-Irish v. Foulks, (Kan.) 22 P. 315.
8. Where it has been determined, in a suit be- tween plaintiff and defendant's grantor, that a judgment, under which the latter has purchased the land in question, was valid, the question is res adjudicata in a suit between plaintiff and defend- ants.-Peterson v. Weissbein, (Cal.) 22 P. 56.
9. A judgment in an action against a city, qui- eting plaintiff's title to land, bars a recovery in ejectment by the city against the grantees of said plaintiff; the city having no other title than that held by it before the judgment. Following San Francisco v. Holladay, 17 P. 942.-City and County of San Francisco v. Itsell, (Cal.) 22 P. 74. Lien.
10. Where the maker of a note transfers land as
security to a surety on the note, and then sells it to a third person, who, in consideration therefor, pays the note, a deed of the land executed there after to such third person by the surety, on an or der given by the maker of the note at the time of such payment, relates back to the time of the pay ment, and takes precedence over a judgment ren dered in the mean time against the maker of the note.-Grigsby v. Schwarz, (Cal.) 22 P. 1041. Pleading.
11. In pleading a judgment it is unnecessary, after alleging the giving and entry of the judg ment, to allege further that said judgment was in full force, and not appealed from.-Carter v. Paige, (Cal.) 22 P. 188.
Opening and vacating.
12. Gen. St. Nev. § 8090, provides for relieving a party from judgments taken against him through his "mistake, inadvertence, surprise, or excusable neglect." On application to open a default judg. ment, it appeared that defendants procured the suit to be instituted against themselves. They em ployed one attorney for both sides, paid all fees, and managed the entire case for a time, withdrew a demurrer they had filed, and asked for and ob- tained 10 days to file an answer, but filed none, and, after allowing nearly a year to pass without further action, a default was entered against them. They alleged that the action was an amicable one, instituted for their benefit, on plaintiff's verbal agreement to convey to them on obtaining judg ment, and that plaintiff agreed not to take a de- fault judgment against them. Held, that this did not excuse their delay in filing an answer, and their negligence in having one attorney only to manage both sides of the case, and plaintiff's sub- sequent action in assigning the judgment to a third person was not ground for vacating the judgment.
5. Defendants, first mortgagees, brought an ac- tion to foreclose, and made plaintiff, a second mort- gagee, a party defendant. Pending suit, plaintiff bought the mortgagor's interest. After judgment, but before sale, a receiver was appointed, who col- lected the rents and profits until the sheriff's deed was given, defendants having purchased at the sale, when an account was had, and by order of court the amount of rents collected was applied in payment of a deficiency from proceeds of the sale. Defendants took possession and collected the rents pending an appeal from the judgment of foreclos- ure, which resulted in reversal. A new trial was had, a similar judgment rendered, and defendants-Haley v. Eureka County Bank, (Nev.) 22 P. 1098. again bought at sheriff's sale. On accounting be- fore the court on the second trial, defendants had their mortgage debt credited by the amount re- ceived from the receiver, and by the amount of all the rents they had collected up to that time. Held, that plaintiff could not maintain an action against them to recover the rents so collected on the ground that he was the owner during the time defendants collected them. Having been a party to the fore- closure proceedings, and having acquiesced in the accounting, he is bound by the judgment therein. -Wise v. Walker, (Cal.) 22 P. 293.
13. Gen. St. Nev § 2538. provides that an attor ney shall have authority "to bind his client in any of the steps of an action or proceeding, by his agreement filed with the clerk, or entered upon the minutes of the court, and not otherwise." District court rule 27 of Nevada provides that "no agree- mentor stipulation between the parties in a cause, or their attorneys, in respect to the proceedings therein, will be regarded unless the same shall be entered in the minutes in the form of an order, by consent, or unless the same shall be in writing Held, that evidence of an oral agreement by plain. tiff's attorney not to take any judgment against defendants was inadmissible on the application to set aside the default, as this would be in effect an enforcement of such agreement.-Haley v. Eureka County Bank, (Nev.) 22 P. 1098.
6. In an action for the diversion of a stream, a prior judgment restraining defendant from inter- fering with plaintiff's dam, or with "his turning out any of the waters from Kentucky ravine, after said water shall have reached plaintiff's dam, so long as the quantity shall not exceed 25 inches," 14. A judgment rendered in 1865 cannot be va- does not estop defendant from proving a prior ap-cated by motion in 1888, on the grounds of want of propriation by him above plaintiff's dam.-Wixson jurisdiction and payment of claim before suit, v. Devine, (Cal.) 22 P. 224. though Code Civil Proc. Cal. § 473, provides for such proceedings for certain causes within a limit- ed time.-People v. Goodhue, (Cal.) 22 P. 66.
7. In an action to foreclose a mechanic's lien in which B., the owner of the real estate, was made a party defendant, a lien was denied against the real estate of B. Afterwards an application by plain- tiff to set aside such judgment was denied as to B., and no further action was taken by plaintiff so far as B. was concerned. Held, that plaintiff was
15. A judgment rendered in 1873 cannot be ra cated on motion, in 1889, on the ground of want of jurisdiction of the parties. Following People v. Goodhue, 22 P. 66.-People v. Harrison, (Cal.) 2
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