Page images
PDF
EPUB

ENCE, AND DISSOLUTION.

(B) Territorial Extent and Subdivisions, Annexation, Consolidation, and

§ 515. Under Ballinger's Ann. Codes & St. I. CREATION, ALTERATION, EXIST§ 5291 (Pierce's Code, § 871), the sheriff's announcement at a mortgage foreclosure sale that he would not take checks or anything of the kind held not unfair or preventive of competition.-Bartlett Estate Co. v. Fairhaven Land Co. (Wash.) 848.

544. A writ of assistance is the proper remedy to put a purchaser at foreclosure in possession.-Harding v. Harker (Idaho) 788.

(N) Fees and Costs.

§ 581. On foreclosure, held error to allow an attorney's fee and make it a charge against the property.-John Brickell Co. v. Sutro Sutro (Cal. App.) 948.

(0) Operation and Effect.

§ 587. Under Rev. Codes, § 4520, proceedings on foreclosure held conclusive against party holding an unrecorded conveyance from the mortgagor, or having an unrecorded lien on the property.-Harding v. Harker (Idaho) 788. $587. Under Rev. Codes, § 4520, judgment in foreclosure held to conclude persons holding unrecorded conveyances from the mortgagor, and also grantees of the grantee in unrecorded conveyances.-Harding v. Harker (Idaho) 788. § 588. Where an allegation that the claims of certain defendants to mortgaged premises were subject to plaintiff's mortgage was not denied, the decree and sale barred all liens and interests acquired subsequent, but not prior, to the mortgage.-Wardlow v. Middleton (Cal.) 738.

XI. REDEMPTION.

Laws applicable, see Venue, § 5. Venue of action to redeem, see Venue, § 5. § 611. Under Rev. Codes, §§ 5709, 5723, a mortgagor who alleges that a part of the mortgage is fraudulent and without consideration may sue to redeem by requiring the mortgagee to accept the amount admitted to be valid and due and to cancel the mortgage as a cloud on title.-State v. District Court of Second Judicial Dist. of Silver Bow County (Mont.) 554.

MOTIONS.

For particular purposes or relief. Continuance in civil actions, see Continuance. Continuance of criminal prosecution, see Criminal Law, § 603.

Direction of verdict in civil actions, see Trial,

$ 178.

Dismissal or nonsuit on trial, see Trial, §§ 159, 165.

New trial in civil actions, see New Trial, §§ 124-162.

New trial in criminal prosecutions, see Criminal Law, §§ 915-942.

Opening or setting aside default judgment, see
Judgment, §§ 143-161.

Presentation of objections for review, see Ap-
peal and Error, §§ 193-232.
Relating to pleadings, see Pleading, §§ 345–362.
Striking out evidence, see Trial, § 90.

Striking out matter from pleading, see Pleading, § 362.

Striking out pleading, see Pleading, § 354.

MUNICIPAL CORPORATIONS.

Division.

35. The validity of an act of annexation is not open to collateral attack, and cannot be questioned by any party other than the state. Gardner v. Benn (Kan.) 435.

[blocks in formation]

§ 96. A town ordinance held to have been passed on receiving requisite number of votes on the first reading.-Kaylor v. People (Colo.) 1079.

(B) Ordinances and By-Laws in General. Judicial notice of, see Evidence, § 32.

tacked as unconstitutional, it must clearly ap§ 111. When a municipal ordinance is atpear, in order that it can be declared invalid, been invaded or some privilege unfairly imthat some fundamental right of a person has paired or destroyed.-Ex parte San Chung (Cal. App.) 609.

§ 120. The court, in construing an ordinance, must presume that the words and phrases therein are used in their popular sense, but the inquiry is in what sense the words and phrases were intended to be used.-Savage-Scofield Co. v. City of Tacoma (Wash.) 1032.

$ 120. The intention of an ordinance controls Tacoma (Wash.) 1032. its construction.-Savage-Scofield Co. v. City of

V. OFFICERS, AGENTS, AND EMPLOYÉS.

(A) Municipal Officers in General. Authority of mayor to appoint policemen, see Municipal Corporations, § 184.

§ 124. Under Const. art. 11, § 10, and Ballinger's Ann. Codes & St. § 740 (Pierce's Code, § 3733), the provision in a city charter for the recall of any elective officer held valid.-Hilzinger v. Gillman (Wash.) 471.

124. The provision in a city charter for the recall of any elective officer held not in conflict with Const. art. 5, § 3.-Hilzinger v. Gillman (Wash.) 471.

§ 132. Right of veterans to appointment to See Counties; Schools and School Districts, §§ office stated under Laws 1907, p. 541, c. 374, §

32-154.

Injunctions affecting, see Injunction, § 77. Ordinances relating to intoxicating liquors, see Intoxicating Liquors.

Street railroads, see Street Railroads. Water supply, see Waters and Water Courses, $$ 200, 209.

1.-Dever v. Platt (Kan.) 445.

132. For an applicant to office under the veteran's preference law (Laws 1907, p. 541, c. 374, § 1) to be "competent," he must possess every qualification essential to the prompt, efficient, and honest performance of the duties.Dever v. Platt (Kan.) 445.

155. The provision in Everett City Charter § 323. One suing to enjoin the contruction of for the summary removal of elective officers and a sewer system, on the ground that the city ofthe provision for the recall of any elective of- ficers in creating the sewer district acted fraudficer held not inconsistent.-Hilzinger v. Gill-ulently or unreasonably, has the burden of provman (Wash.) 471.

$159. Ballinger's Ann. Codes & St. § 4846 (Pierce's Code, § 272), held not to authorize an elector and taxpayer to intervene in a suit by a councilman of a city to enjoin the comptroller from certifying to the sufficiency of a petition for the recall of the councilman.-Hilzinger v. Gillman (Wash.) 471.

(B) Municipal

Departments and Officers
Thereof.

§ 184. Rev. Codes, § 2190, held not to give a mayor authority to appoint policemen in any manner other than provided by section 2186, requiring such appointment to be with the council's consent.-Moore v. Hupp (Idaho) 209.

§ 184. Rev. Codes, § 2186, authorizing a mayor to appoint policemen with the council's consent, held exclusive of any other method of appointment.-Moore v. Hupp (Idaho)'209.

VII. CONTRACTS IN GENERAL. $248. City council held to have ratified mayor's act in authorizing a person to select detectives to act for the city, and the expense thereby incurred became a city charge.-Moore v. Hupp (Idaho) 209.

IX. PUBLIC IMPROVEMENTS. (A) Power to Make Improvements Grant Aid Therefor.

§ 284. A proceeding for the construction of a sewer system held not void as conferring on the city engineer certain powers.-Hildreth v. City of Longmont (Colo.) 107.

(B) Preliminary Proceedings and Ordi

nances or Resolutions.

§ 293. The resolution relating to the construction of a sewer system held to sufficiently refer to the construction of subdrains.-Hildreth v. City of Longmont (Colo.) 107.

$294. The notice relating to the construction of a sewer system held to sufficiently refer to the_construction of subdrains.-Hildreth v. City of Longmont (Colo.) 107.

$297. A petition asking the city council to submit the proposition to construct a public improvement to a vote of the taxpayers is not an objection to the improvement which the petitioners are entitled to present.-Hildreth v. City of Longmont (Colo.) 107.

$297. Objections to the construction of a public improvement not filed within the time required by the notice required by Sess. Laws 1899, p. 393, c. 151, are not available.-Hildreth v. City of Longmont (Colo.) 107.

$297. Under Sess. Laws 1899, p. 393, c. 151. certain evidence as to objections to a proposed public improvement held inadmissible.-Hildreth v. City of Longmont (Colo.) 107.

§ 304. The ordinance relating to the construction of a sewer system held to sufficiently refer to the construction of subdrains.-Hildreth v. City of Longmont (Colo.) 107.

$318. One appearing and presenting his objections to the construction of a public improvement, without questioning the sufficiency of the notice required by Sess. Laws 1899, p. 393, c. 151, held not entitled to complain that the requisite notice was not given.-Hildreth v. City of Longmont (Colo.) 107.

§ 323. The power vested in city officers by Sess. Laws 1899, p. 393, c. 151, to create a sanitary sewer district, is discretionary, and the judgment of the officers is conclusive.-Hildreth v. City of Longmont (Colo.) 107.

ing that the officers acted arbitrarily or in bad faith.-Hildreth v. City of Longmont (Colo.) 107.

§ 323. The city authorities must in determining the natural drainage for a sewerage system exercise judgment and discretion, and the courts. will not interfere_except in extreme cases.-Hildreth v. City of Longmont (Colo.) 107.

(E) Assessments for Benefits, and Special Taxes. Effect on assessment under subsequent ordinance of judgment enjoining collection of assessment under prior ordinance, see Judgment, § 714.

§ 410. The act of the city engineer in directing the construction of more subdrains than was provided for in the contract for the construction of a sewer system with subdrains to protect the system held not to render the whole proceeding invalid.-Hildreth v. City of Longmont (Colo.)

107.

§ 417. A city providing for the construction of a sewer system may provide for the construction of subdrains to protect the system during construction, and assess the cost on the property in the assessment district.-Hildreth v. City of Longmont (Colo.) 107.

§ 439. Generally, only such benefits are to be assessed as it is reasonably apparent the property will receive from a public improvement other than the general benefit to the community.Hildreth v. City of Longmont (Colo.) 107.

§ 440. The word "transferred," as used in Gen. St. 1901, § 740, relating to assessments Kansas City (Kan.) 531. for sewers and drains, defined.-Shepherd v.

§ 443. In constructing local public improvements and levying special assessments against the property therefor, the statute must be substantially followed.-Hildreth v. City of Longmont (Colo.) 107.

§ 444. Under Laws 1907, pp. 648, 663, c. 241, §§ 40, 58, a city assessment roll for street improvements held void for irregularity.-Coats Shingle Co. v. City of Hoquiam (Wash.) 141.

§ 460. The inclusion of illegal items in an assessment for a public improvement does not render the entire assessment void, where the illegal charges may be segregated from the legal. -Hildreth v. City of Longmont (Colo.) 107.

§ 468. Sess. Laws 1899, p. 393, c. 151, relating to the construction of public improvements, and prescribing a general method by which to apportion on the property of a district the cost thereof, held not invalid.-Hildreth v. City of Longmont (Colo.) 107.

§ 468. The method of assessing the cost of a sewer system as provided by Sess. Laws 1899, p. 400, c. 151, § 13, held not invalid.-Hildreth v. City of Longmont (Colo.) 107.

§ 474. The omission of property which should have been assessed to pay the cost of a public improvement held not to render the assessment void.-Hildreth v. City of Longmont (Colo.) 107. § 513. One complaining of a special assessment for the construction of a public improve ment held not entitled to complain that the period prescribed by Sess. Laws 1899, p. 413, c. 151, § 45, did not give him time to institute a suit to modify or annul the assessment against his property.-Hildreth v. City of Longmont (Colo.) 107.

513. The Legislature may prescribe the time within which actions to annul assessments made against property for local public improve

ments shall be commenced.-Hildreth v. City of I § 578. A purchase by the city attorney at a Longmont (Colo.) 107. sale foreclosing a special assessment lien held void at the suit of the owner.-Roger v. Whitham (Wash.) 628.

§ 513. The rule apportioning the cost of a sewer system according to the area of the district, as authorized by Sess. Laws 1899, p. 393, c. 151, providing for a public improvement according to area, is prima facie valid.-Hildreth v. City of Longmont (Colo.) 107.

X. POLICE POWER AND REGULA-
TIONS.

(A) Delegation, Extent, and Exercise of
Power.

§ 513. It is presumed that the cost of a public improvement assessed to the abutting prop-ordinance pursuant to the police power, it will erty by some designated rule will not exceed the benefits unless the contrary appears.-Hildreth v. City of Longmont (Colo.) 107.

§ 513. Where the law provides that objections to a special assessment for a public improvement shall be made in the first instance to the city authorities, a party failing to do so may not anneal to equity for relief.-Hildreth v. City of Longmont (Colo.) 107.

§ 594. Where a legislative body passes an ordinance pursuant to the police power, it will be presumed that it was guided by a rational and conscientious regard for the rights of the individual as well as of the community.-Ex parte San Chung (Cal. App.) 609.

§ 597. Sacramento City Ordinance No. 824, § 3, regulating the location of laundries, held a proper exercise of police power in the preservation of the public health.-Ex parte San Chung (Cal. App.) 609.

(B) Violations and Enforcement of Regu

§ 513. Where one suing to set aside an assessment for a public improvement alleges in the complaint the total amount of the illegal items charged in the assessment, the complaint, to state a cause of action, must allege a pay-Laws ment or tender of so much of the taxes as are due and payable.-Hildreth v. City of Longmont (Colo.) 107.

§ 513. Where the alleged illegal part of an assessment is susceptible of reasonable ascertainment, the property owner may not sue to annul the alleged illegal part unless he first pays or tenders the legal tax.-Hildreth v. City of Longmont (Colo.) 107.

§ 513. The fact that frauds perpetrated in the construction of a public improvement were only discovered a short time prior to the bringing of an action to annul an assessment therefor did not excuse the failure of the complaining taxpayer from beginning his action to annul the assessment on other grounds.-Hildreth v. City of Longmont (Colo.) 107.

§ 513. The time within which to sue to annul an assessment for a public improvement based on objections presented as authorized by Sess. Laws 1899, pp. 403, 404, c. 151, §§ 21, 22, held fixed by section 45.-Hildreth v. City of Longmont (Colo.) 107.

§ 513. Sess. Laws 1899, p. 413, c. 151, § 45, held to bar an action to annul an assessment for a public improvement brought nearly 13 months after the passage of the assessment ordinance.Hildreth v. City of Longmont (Colo.) 107.

§ 513. A complaint, by abutting property owners to enjoin a municipality from certifying an assessment roll for street improvements to the county treasurer, held sufficiently certain.Coats Shingle Co. v. City of Hoquiam (Wash.)

141.

§ 515. Laws 1903, p. 207, c. 122, § 129, held to relate to property which would have been liable for special assessment had no infirmity existed therein, which infirmity this section was enacted to cure.-Shepherd v. Kansas City (Kan.) 531.

§ 523. An ordinance providing for the rebate of special assessments held to relate only to the case where the owner at the time the assessment was paid was the owner at the time of the payment into the treasury of the money to be rebated. Savage-Scofield Co. v. City of Tacoma (Wash.) 1032.

(F) Enforcement of Assessments and Spe

cial Taxes.

§ 578. Where the city attorney purchased at a foreclosure sale for nonpayment of a special assessment, and violated his duty to the city or to the owner, the sale might be avoided at the suit of the party injured.-Roger v. Whitham (Wash.) 628.

lations.

Laws 1905, p. 46, c. 5) § 48, the recorder has § 636. Under Roseburg City Charter (Sp. power to try persons charged with violation of city ordinances independent of any ordinance providing for procedure in such court.-Abraham v. City of Roseburg (Or.) 401.

§ 636. Under Roseburg City Charter (Sp. Laws 1905, p. 46, c. 5) § 48, the recorder has authority to try persons charged with the violation of a city ordinance.-Abraham v. City of Roseburg (Or.) 401.

mitted till his fine is paid held proper, though
$ 643. Judgment that defendant stand com-
fine is secured by approved appeal bond.-Davis
v. People (Colo.) 879.

XI. USE AND REGULATION OF PUB-
XI. USE AND REGULATION OF PUB-
LIC PLACES, PROPERTY,
AND WORKS.

(A) Streets and Other Public Ways.
§ 646. Laws 1907, p. 466, c. 295, § 1, amend-
ing Gen. St. 1901, § 6031, held to indicate a
legislative purpose to withdraw cities of the
first and second class from the operation of the
section amended.-Heath v. City of Iola (Kan.)
32.

not to indicate a change in the legislative policy § 646. Laws 1909, p. 499, c. 198, § 8, held to include cities of the first and second class within Gen. St. 1901, § 6031, making cities of 600 inhabitants a road district.-Heath v. City of Iola (Kan.) 32.

§ 672. Where a statute granting express power was repealed, general grants of power would not be readily construed as conferring the same right by implication.-Heath v. City of Iola (Kan.) 32.

$705. A driver of a team must look out for pedestrians crossing streets at places other than cross walks.-Seifert v. Schaible (Kan.) 529.

[blocks in formation]

(C) Defects or Obstructions in Streets and Other Public Ways.

§ 763. A city must keep its streets in a reasonably safe condition for travel.-Dunkin v. City of Hoquiam (Wash.) 149.

§ 771. A city held not liable for injuries by slipperiness of sidewalk.-Wilson v. City of Idaho Falls (Idaho) 1057.

§ 803. A traveler on a street at night held required to use greater care than a traveler by day; and, in determining the question of his negligence, the jury may consider his health and soundness.-Dunkin v. City of Hoquiam (Wash.)

149.

§ 808. Comp. Laws, § 271, held to require abutting owners to guard excavations made in streets for their benefit and to render them liable for injuries to travelers from a failure so to do.-Anderson v. Feutsch (Nev.) 99.

§ 816. In an action for injuries to a bicycle rider on a defective street, the question whether plaintiff was drawing a pension for total disability at the time of the accident held properly excluded.-Dunkin v. City of Hoquiam (Wash.)

149.

§ 816. The complaint in an action for injuries to a traveler on a defective street need not allege the particular city officer whose neglect caused the injury.-Dunkin v. City of Hoquiam (Wash.) 149.

§ 819. In an action against a city for inju

ries caused by a slippery sidewalk, evidence held insufficient to show negligence of city.-Wilson v. City of Idaho Falls (Idaho) 1057.

I. RIGHTS OF PUBLIC. Condemnation of rights for construction of dam, Failure to obtain consent of Secretary of War, compensation, see Eminent Domain, § 134. to bridge stream as affecting right of railroad company to condemn right of way, see Eminent Domain, § 169.

II. LANDS UNDER WATER.

Conveyance of tide lands as interference with
Right to jury trial in suit to restrain interfer-
interstate commerce, see Commerce, § 48.
ence with tide lands, see Jury, § 14.

§ 37. In an action by the owner of tide lands under a deed absolute in form, which provided for a reversion to the state if the lands were used for any purpose other than the cultivation of oysters, to enjoin defendant from trespassing thereon, the state's deed was admissible without proof of compliance by plaintiff with its conditions.-Palmer v. Peterson (Wash.) 179.

does not substantially impair the public's inter§ 37. A conveyance by the state of tide lands est in the navigable waters of the state, and is valid.-Palmer v. Peterson (Wash.) 179.

III. RIPARIAN AND LITTORAL
RIGHTS.

Condemnation of rights for construction of
dam, compensation, see Eminent Domain, §
134.

NEGATIVE PREGNANT.

§ 821. Whether a bicycle rider injured by an obstruction on a street was guilty of contribu- See Pleading, § 126. tory negligence held for the jury.-Dunkin v. City of Hoquiam (Wash.) 149.

NEGATIVE TESTIMONY.

§ 821. Whether a city was negligent in per- See Evidence, § 586.
mitting an obstruction on a street held for the
jury.-Dunkin v. City of Hoquiam (Wash.) 149.

XIII. FISCAL MANAGEMENT, PUB-
LIC DEBT, SECURITIES, AND
TAXATION.

(D) Taxes and Other Revenue, and Ap-
plication Thereof.

$979. An owner of land cannot enjoin the collection of taxes levied by a city on the ground that the property taxed was illegally annexed to the city.-Gardner v. Benn (Kan.) 435.

§ 982. Existence of an ordinance pursuant to which a tax deed for city taxes purports to be executed, or its pertinency to a subject within the taxing power of the city, held not to be presumed (Pol. Code, § 3786: Municipal Incorporation Act [St. 1905, p. 89, c. 90] § 871). -Metteer v. Smith (Cal.) 735.

(E) Rights and Remedies of Taxpayers.

$995. Resident taxpayer held the real party in interest, and entitled to sue to enjoin payment of an illegal claim by the city, though he has acted on behalf of a citizens' league. Moore v. Hupp (Idaho) 209.

[blocks in formation]

NEGLIGENCE.

By particular classes of persons.
See Carriers, §§ 132, 134, 147-164, 295-321;
Municipal Corporations, §§ 724-821; Rail-
roads, §§ 259-411.

Employers, see Master and Servant, §§ 92-295.
Condition or use of particular species of prop-
erty, works, machinery, or other
instrumentalities.

See Explosives; Railroads, §§ 259-411; Street
Railroads, §§ 85, 98.
Firearms, see Weapons, § 18.
Production, supply, and use of gas, see Gas.

III. CONTRIBUTORY NEGLIGENCE. Of person injured by negligent use of weapons, see Weapons, § 18.

Of person injured by operation of railroad, see
Of person injured by operation of street rail-
Railroads, 383.
Of person injured on street, see Municipal Cor-
road, see Street Railroads, § 98.
porations, § 803.

Of person injured through negligent use of
weapon, see Weapons, § 18.

Of servant, see Master and Servant, §§ 234, 236, 289.

(B) Children and Others Under Disability. § 88. One's own duty to care for his safety is to be measured by his condition as to sobriety.-Bennett v. Seattle Electric Co. (Wash.)

825.

IV. ACTIONS.

(A) Right of Action, Parties, Preliminary Proceedings, and Pleading.

§ 113. Where contributory negligence appears on the face of the complaint, it is a ques

tion of law and may be taken advantage of by be denied, where on the evidence the findings demurrer.-Goure v. Storey (Idaho) 794.

[blocks in formation]

$138. An instruction held to sufficiently define the burden of proof.-Hale v. Crown Columbia Pulp & Paper Co. (Wash.) 480.

§ 141. Children of tender age are not held to the same accountability as persons of full age, but must exercise such care as persons of their age and intelligence ordinarily exercise. Seifert v. Schaible (Kan.) 529.

§ 142. In an action for negligence, defendant held entitled to judgment on the findings notwithstanding the general verdict.-Colwell v. Parker (Kan.) 524.

NEGOTIABLE INSTRUMENTS.

See Bills and Notes; Bonds; § 84.

NEWLY DISCOVERED EVIDENCE. Ground for new trial in civil actions, see Criminal Law, §§ 938, 942; New Trial, §§ 99-104.

NEW PROMISE.

must have been adverse to the moving party.Hoover v. Wasson (Cal. App.) 945.

(F) Verdict or Findings Contrary to Law

or Evidence.

70. A general verdict and special findings of fact, unsupported by any evidence, should be set aside.-King v. Western Union Telegraph Co. (Kan.) 449.

defense was that they were gratuitous, a verdict § 75. Where, in an action for services, the of $1 on conflicting evidence should be set aside as too small.-Miller v. Miller (Kan.) 544.

§ 76. A new trial was properly granted, where plaintiff was only entitled to recover $452 and the verdict was for $4,000.-Winningham v. Philbrick (Wash.) 144.

79. A new trial will not be granted because of the insufficiency of the evidence to sustain a finding that is immaterial and could not have affected the judgment.-Fagan v. Lentz (Cal.) 951.

(H) Newly Discovered Evidence.

99. The determination of the effect of cu

mulative newly discovered evidence is peculiar!y within the province of the trial court; and, if in its opinion newly discovered evidence was such as, had it been considered in the first instance, would have changed the result, a new

Within statute of limitations, see Limitation of trial should have been granted.-Smith v. Hyer Actions, §§ 142-164.

NEWSPAPERS.

(Cal. App.) 787.

§ 100. An affidavit contradicting testimony by plaintiff based on a theory of which defendants were not informed by the pleadings or otherwise held newly discovered evidence for

Publication of notices in insolvency proceed- which a new trial should have been granted.ings, see Insolvency, § 22.

NEW TRIAL.

Costs, see Costs, §§ 232-264.

In criminal prosecutions, see Criminal Law, §§ 915-942.

Motion for new trial preliminary to appeal in proceedings to set aside homestead, see Homestead, § 150.

Necessity of motion for purpose of review, see Appeal and Error, §§ 281-301; Criminal Law; § 1063.

Practice in territorial courts, see Courts, § 435.
Remand by appellate court for new trial, see
Appeal and Error, §§ 1198-1202.
Review of discretionary rulings on motion for.
see Appeal and Error, §§ 977-981; Criminal
Law, 1156.

II. GROUNDS.

(A) Errors and Irregularities in General. $26. Defendant held not entitled to complain for the first time on motion for a new trial that he had been deprived of the right of trial by jury.-Alcorn v. Dennis (Okl.) 1012.

(C) Rulings and Instructions at Trial. § 38. In an action wherein a motion for nonsuit was granted before plaintiff's own testimony was concluded, held, that a new trial should have been granted in view of plaintiff's ex parte showing.-Roach v. Rutter (Mont.) 555.

(E) Irregularities or Defects in Verdict or Findings.

§ 60. After return of a general verdict and special findings and discharge of the jury without motion for more specific answers, a motion for new trial because the findings are irreconcilable should be overruled.-Western Union Telegraph Co. v. Brower (Kan.) 497.

§ 64. A new trial on the ground of the failure of the court to find on a material issue may

Lowell v. Hessey (Colo.) 870.

§ 104. Newly discovered evidence held not cumulative, and it was error to refuse a new trial.-Dent v. Simpson (Kan.) 542.

III. PROCEEDINGS TO PROCURE NEW TRIAL.

124. The statute does not require a formal motion for a new trial.-Storer v. Heitfeld (Idaho) 55.

§ 131. In proceedings to settle a statement on motion for a new trial under Code Civ. Proc. § 1054, as amended by Act June 3, 1906 (St. Ex. Sess. 1906, p. 9, c. 6), defendant held entitled to relief for delay under Code Civ. Proc. § 473.-Mitchell v. California & O. C. S. S. Co. (Cal.) 590.

§ 153. Under Rev. Codes, § 4441, and subdivision 1 of the same section, held improper to file affidavits where the notice of intention to move for a new trial does not state that the motion will be based thereon.-Storer v. Heitfeld (Idaho) 55.

§ 153. Affidavits upon which it is stated that a motion for a new trial will be based must be filed within 10 days after service of notice of intent to move therefor.-Storer v. Heitfeld (Idaho) 55.

154. Mere failure to present oral argument on a motion for a new trial is not a waiver of the motion. In re Carithers' Estate (Cal.) 127. § 162. A new trial will not be granted because of the allowance of excessive damages if the amount can be determined and segregated from the verdict.-Chicago, R. I. & P. Ry. Co. v. Wehrman (Okl.) 328.

trial conditionally became absolute on plain§ 162. An order granting defendant a new tiff's failure to perform the condition within the time fixed.-Winningham v. Philbrick (Wash.) 144.

« PreviousContinue »