MANDAMUS AGAINST OFFICERS HAVING DISCRETION-see MANDAmus, 1.
LIABILITY OF SURETIES ON BONDS OF DE FACTO OFFICER-See SURETIES, 1.
ORDER APPEALABLE ONLY IN PART. Where, upon a rule to show cause why an
injunction should not issue, an order was made that defendants, in considera-
tion of their retaining control of the premises in controversy, should give a
bond to pay all damages that plaintiff might sustain; that in default thereof, a
receiver should be appointed; and that defendants might make improvements,
but not remove any improvements already made, nor commit waste: Held,
that if the order was appealable at all, it was only in so far as it placed an in-
junction upon defendants. Meadow Valley M. Co. v. Dodds, 261.
2. ORDER EMBRACING DISTINCT AND INDEPENDENT ORDERS. Where an order em-
braces matters really independent and distinct, the mere fact that they are so
embraced or made at the same time and written on the same paper, does not
make them one and the same order. Meadow Valley M. Co. v. Dodds, 261.
INTENDMENTS IN FAVOR OF COMPLAINT AFTER ORDER BASED UPON IT. The rule
that carries every legal intendment in favor of a complaint in case there has
been a judgment thereon after issue joined, equally applies in case of an order,
such as an injunction, made upon it after a full hearing. Meadow Valley M.
Co. v. Dodds, 261.
STATEMENT ON APPEAL FROM NEW TRIAL ORDER-See APPEAL, 2, 12.
"ORDERS" REQUIRING SEPARATE STATEMENTS ON APPEAL NOT NEW TRIAL
ORDERS-See APPEAL, 11.
PARTIES PLAINTIFF IN SUIT ON REPLEVIN BOND-DEMURRER FOR MISJOINDER.
An action on an undertaking given to the sheriff upon the return of property
replevied, (Practice Act, Sec. 104) should be brought in the name of the real
party in interest; and where the name of the sheriff was joined with his as
plaintiff: Held, that the complaint was clearly demurrable for misjoinder of
parties plaintiff. McBeth v. Van Sickle, 134.
PERSONS WITHOUT INTEREST NOT TO BE PLAINTIFFS. While the Practice Act
(Sec. 12) declares that all persons having an interest in the subject of an action,
and in obtaining the relief demanded, may be joined as plaintiffs, the converse
of the proposition is also true, that none can be united who have not such
interest. McBeth v. Van Sickle, 134.
3. WIFE NOT A PARTY TO ACTION TO RECOVER COMMON PROPERTY. In a suit
on a note given in the name of a wife, though in fact the common property of
herself and husband, she has no such interest as to make her a necessary
or proper party. Crow v. Van Sickle, 146.
RECEIVING PAYMENT IN TREASURY NOTES UNDER PROTEST. When a person enti-
tled to be paid in coin receives payment in treasury notes, though at the same
time protesting against payment in that kind of currency, he cannot retain such
notes at a value not assented to by the other party, nor recover the difference
in value between them and coin. Gilman v. Douglas County, 27.
PLEADING-AFFIRMATIVE MATTER IN ANSWER CONSIDERED DENIED.
practice in this State, all affirmative matter in an answer is taken as denied.
Cahill v. Hirschman, 57.
PLEADING-HUSBAND'S OWNERSHIP OF COMMON PROPERTY. In a complaint by a
husband to recover a chose in action given in the name of his wife, but belong-
ing to the community, it is sufficient for him, to show his right of action, to
allege either that he is the owner or that it is common property, and even both
allegations in the same complaint will not render it demurrable. Crow v. Van
Sickle, 146.
PLEADING CHARACTER OF CORPORATIONS DEFENDANT. In an action on a note
and mortgage, where a corporation was made a party defendant as having
some interest: Held, that it was not necessary to allege whether it was a for-
eign or domestic corporation, nor for what purpose it was incorporated. Crow
v. Van Sickle, 146.
SUFFICIENCY OF COMPLAINT FOR INJUNCTION TO STAY WASTE. Where a com-
plaint alleged that plaintiff was the owner and entitled to the possession of
lands, that there were improvements thereon, that defendants were in posses-
sion and threatened to destroy and would if not enjoined destroy such im-
provements, and that defendants were insolvent and unable to respond in
damages: Held, sufficient to support an order enjoining defendants from re-
moving the improvements or committing waste. Meadow Valley S. M. Co. v.
Dodds, 261.
INTENDMENTS IN FAVOR OF COMPLAINT AFTER JUDGMENT. After a verdict or de-
cision in a District Court upon issue joined, the complaint will be supported
by every legal intendment, if there be nothing material in the record to pre-
vent it. Meadow Valley S. M. Co. v. Dodds, 261.
PLEADING OF ESTOPPEL IN PAIS. In pleading facts to show an estoppel in
pais, it is necessary to set forth every essential element of such an estoppel;
and among other things, that the party relying on it was influenced in his con-
duct by the acts or silence of the other. Sharon v. Minnock, 377.
DEFENSE PLEADED PRESUMED TO BE INSISTED ON-see BANKRUPTCY, 1.
MISJOINDER OF PARTIES PLAINTIFF IN SUIT ON REPLEVIN BOND-see PARTIES, 1.
NO LEGAL JUDGMENT ON VERDICT IRRESPONSIVE TO PLEADINGS-see VERDICT, 2.
POSSESSION OF LAND AS NOTICE OF TRUST IN IT-ESTOPPEL. Where Armstrong
being the owner of land, deeded it to Howard by conveyance absolute on its
face, but with an understanding that Howard was to hold one-half the land in
trust for him; and after recording the conveyance, Armstrong remained in
possession of the land: Held, that he was estopped from relying on his con-
tinuance in possession as notice of the trust. Fair v. Howard, 304.
OFFICER'S RIGHT OF POSSESSION OF PROPERTY ATTACHED
CHANGE OF POSSESSION ON SALE-See SALE, 1, 2, 3, 4.
POSSESSION OF WATER RIGHTS-see WATER Rights, 3.
1. RIGHT Under Law other than LAW SPECIALLY RELIED ON. Where a plaintiff
attempted to construct a flume for mining purposes over certain public land, and
being prevented by the person in possession, brought an injunction suit to pre-
vent such person's further resistance: Held, that though plaintiff claimed the
right of way to construct his flume under the State law, he was not by such
claim prevented from relying also upon the act of congress giving such
right, the facts pleaded being sufficient to bring him within the act. Hobart v.
Ford, 77.
CONVENIENCE OF WITNESSES. Where a suit to recover money was brought in
Storey County, against a resident of White Pine County, and defendant moved
on the ground of his residence to change the place of trial to White Pine
County: Held, that he had an absolute right, under the Practice Act, (Sec.
20) to the change, and that counter affidavits to retain the case on account of
the convenience of witnesses constituted no defense and could not be con-
sidered. Williams v. Keller, 141.
ADMISSION OF ADVERSE ALLEGATIONS RIGHTS OF PARTIES NOT ADMITTING.
A party to the record may admit any adverse allegation and thus dispense with
proof of it; though if the admission be not of a conceded fact, any other party,
other than the one originally making the allegation, may make proof in oppo-
sition. Dorn v. O'Neale, 155.
FORECLOSURE OF MECHANICS' LIEN-RIGHTS OF INTERVENORS. Where in a suit
to foreclose a mechanics' lien, certain lien claimants intervened, and defendants
answered and demurred to their interventions; Held, that the court acquired
jurisdiction of the subject matter, and the parties, and the whole thereof; and
that the plaintiff could not, by a dismissal of the suit, prevent an adjudication
as to the rights of the intervenors. Elliott v. Ivers, 287.
STATEMENT OF COUNSEL TO SHOW RELEVANCY OF TESTIMONY. Where a defend-
ant asked a witness a question which, under the pleadings, appeared directed to
proof of irrelevant matter; and upon objection made on that ground, counsel
stated the character of his defense; and it appeared that the proposed defense
was admissible, and the question one the answer to which might tend to sup-
port it: Held, that the proposed testimony was relevant, and the exclusion of
the question error. State v. Rhoades, 352.
6. INTIMATIONS OF COURT EXCLUDING EVIDENCE. Where a witness was called for
the purpose of proving a certain fact; and the court, in ruling out a question
in any way calculated to elicit testimony to establish it, informed counsel that
proof of such fact would not be admitted: Held, that the action of the
court was to be treated as a decision ruling out evidence of such fact, and that
it was unnecessary for counsel to persist in efforts to prove it. State v.
Rhoades, 352.
IRREGULARITIES OF PRACTICE NOT OBJECTED TO—see APPEAL, 4.
PRACTICE-DISMISSAL OF APPEAL-See APPEAL, 7.
RELIEF ON APPEAL FROM ORDER APPEALABLE ONLY IN PART-see APPEAL, 14.
CONTINUANCE WITHIN DISCRETION OF COURT-see CONTINUANCE, 1.
COSTS ON MOTIONS-see COSTS, 2.
PRACTICE ON APPEAL AS TO PRELIMINARY INJUNCTION-see INJUNCTION, 1.
ENFORCEMENT OF RULES OF COURT-See RULES OF COURT, 1.
ADDITIONS TO JUDGE's Certificate TO STATEMENT -See STATEMENT, 2.
TRANSFER OF ACTIONS TO UNITED STATES COURTS-see TRANSFER, 1.
PRACTICE AS TO CHANGE OF PLACE OF TRIAL- —see VENUE, 1, 3, 4, 5, 6.
PRACTICE ACT, SEC. 160-DEVELOPMENT OF MINES-EVIDENCE. There is nothing
in Sec. 160 of the Practice Act, which authorizes a delay of proceedings in min-
ing cases for the purpose of allowing developments to be made, to show that
it was intended to make actual developments the only or even the best evi-
dence admissible. Silver Mining Company v. Fall, 116.
SEC. 225-AUTHENTICATION OF STATEMENT ON NEW TRIAL-See APPEAL, 1.
SEC. 332-STATEMENT ON APPEAL FROM ORDER-see APPEAL, 11.
Sec. 330—Order Requiring BonD NOT APPEALABLE—see APPEAL, 13.
SEC. 478-COSTS WHERE RECOVERY LESS THAN $300-see Costs, 1.
SEC. 427 - ORAL RESULT OF EXAMINATION OF LONG ACCOUNTS
DENCE, 19.
SEC. 191-SPECIFICATION OF OBJECTIONS-see EXCEPTION, 2.
SEC. 210-SATISFACTION OF JUDGMENT-see JUDGMENT, 2.
SEC. 202-JUDGMENT IN GOLD COIN FOR DAMAGES-See JUDGMENT, 5.
SEC. 197 AS TO NOTICE OF DECISION AFFECTING TIME TO MOVE FOR NEW
SEC. 104-PARTIES TO ACTION ON REPLEVIN BOND-See PARTIES, 1.
SEC. 12-AS TO JOINDER OF PARTIES IN INTEREST-see PARTIES, 2.
SEC. 179-JUDGMENT IN REPLEVIN-See REPLEVIN, 2.
SECS. 226-227-RE-SALE BY SHERIFF See SHERIFF, 1.
SECS. 197 and 335-JUDGE'S CERTIFICATE TO STATEMENT-See STATEMENT, 1.
SEC. 29-SERVICE OF SUMMONS ON CALIFORNIA CORPORATION-See SUMMONS,
1, 2.
SEC. 20-CHANGE OF PLACE OF TRIAL- -see VENUE, 1.
SHOWING OF ALLEGED IMMATERIALITY OF ERROR IN CRIMINAL CASES MUST BE
CONCLUSIVE-see APPEAL, 18.
BANKRUPT PLEADING DISCHARGE PRESUMED TO INSIST ON DISCHARGE
BANKRUPTCY, 1.
PRESUMPTION OF AUTHORITY TO AFFIX SEAL TO DEED OF CORPORATION -see
CORPORATIONS, 5.
PRESUMPTIONS AS TO POWERS OF COUNTY COMMISSIONERS -see COUNTY COM-
MISSIONERS, 2.
NO PRESUMPTION OF LOADING OF PISTOL FROM ATTEMPTED USE-see DEADLY
WEAPON, 2.
PRESUMPTION OF CLAIM TO ENTIRE TRACT BY ENTRY UNDER DEED see
ENTRY, 1.
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