INDEX.

NOTE. A star (*) indicates that the case referred to is annotated.

ABATEMENT AND RE-

VIVAL.

Revival of judgment, see Judgment, 13.
Death of party.

A person appeared in a case as administrator
of the appellee, filed an amended abstract, and
moved to strike out the evidence in the appel-
lants' abstract. The record did not disclose
the death of the appellee, or show that such
person had been appointed or qualified as ad-
ministrator. Held that, as he was a stranger
to the record, the motion must be denied, and
the amended abstract stricken from the files.
-Magarrell v. Magarrell, (Iowa,) 961.

Accord and Satisfaction.

See Payment.

ACCOUNT STATED.

Effect of.

1. In an action for the balance due on an ac-
count stated, a charge that an account stated

By executors, see Executors and Adminis-
trators, 10.

and against, see Municipal Corporations,
19-21.

For damages, see Nuisance, 8, 9.
On contracts, see Contracts, 8-10.
policies, see Insurance, 6, 7.

promissory notes, see Negotiable Instru-
ments, 6-8.

Particular forms of action, see Assault and
Battery; Assumpsit; Deceit; Divorce;
Ejectment; Injunction; Libel and Slan-
der; Malicious Prosecution; Malpractice;
Negligence; Nuisance; Quieting Title; Re-
plevin; Specific Performance; Trespass;
Trover and Conversion; Waste.

Adverse Possession.

See Ejectment, 2; Limitation of Actions, 2-4.

Affidavit.

Service by publication, see Writs, 24.
To vacate judgment, see Judgment, 19.

Agency.

is "a balance struck between the parties on a See Principal and Agent.
settlement; and, where a plaintiff is able to
show that the mutual dealings which have oc-
curred between two parties have been ad-
justed, settled, and a balance struck, the law

Amendment.

implies a promise to pay that balance," is of pleadings, see Pleading, 8, 9.
proper.-Watkins v. Ford, (Mich.) 300.

2. The rule of law that where an account is

15-19.

Animals.

APPEAL.

rendered and no objection taken, it is prima Stock-killing cases, ses Railroad Companies,
facie evidence of the correctness of such ac-
count, has no application where the claim is
the subject of a special contract, and in such
case it is error for the court in its charge to
the jury to ignore or suppress evidence of de-
fendants offered to rebut such presumption.
Valley Lumber Co. v. Smith, (Wis.) 412.

Accretion.

See Riparian Rights, 1.

Acknowledgment.

I. APPELLATE JURISDICTION.
II. REQUISITES.
III. PRACTICE.
IV. REVIEW.

V. DECISION.

See also, Certiorari; Error, Writ of; Excep
tions, Bill of; New Trial.

Allowance of demands, see Executors and
Administrators, 2-4.

In criminal cases, see Criminal Law, 20-22.

Of debt to toll limitation, see Limitation of Setting aside decree, see Divorce, 3.
Actions, 6.

Action.

See Abatement and Revival; Limitation of
Actions; Parties; Pleading; Venue in
Civil Cases; Writs.

v.37 N.w.-62

Vacating judgment, see Judgment, 18.

I. APPELLATE JURISDICTION.

Appealable judgments and orders.
1. Under Code Iowa, § 3164, providing that
an appeal may be taken to the supreme court
(977)

from an order which grants or refuses, con-
tinues or modifies, a provisional remedy, an
appeal lies from an order allowing temporary
alimony to be paid on certain dates, and giv-
ing execution therefor.-Blair v. Blair, (Iowa.)

385.

2. An order of the district court setting
aside a decree, and permitting a defendant to
plead to an answer filed by a co-defendant by
leave of court, but of which said defendant
had no notice, is not a final order. Spencer v.
Thistle, 13 Neb. 227, 13 N. W. Rep. 214, distin-
guished.-Cockle Separator Manuf'g Co. v.
Clark, (Neb.) 628.*

Jurisdictional amount.

III. PRACTICE.

Assignment of errors.

9. Where an assignment of error sets forth
that the court erred in admitting or excluding
evidence, or otherwise, such assignment must
specifically designate what evidence is claimed
to have been erroneously admitted or ex-
cluded, or what particular act of the court is
claimed as error.-Franz Falk Brewing Co. v.
Mielenz, (Dak.) 728.
Record.

10. In an action to quiet title, where all the
evidence material to a determination of the
case on its merits is shown to be before the

try the case de novo, because evidence, con-
sisting of county records, the contents of
which are in fact shown or abstracted, may
have been improperly preserved and certified
by the trial judge, and immaterial parts omit-
ted.-Buck v. Holt, (Iowa,) 377.

3. Plaintiff claimed $150 damages, and recov-court, on appeal, the court will not refuse to
ered a verdict for $135.63. He afterwards
filed an amended petition claiming only $99.99
damages, and remitted all of the amount re-
covered in excess of that sum, and judgment
for that amount was entered against defend-
ant. Held, that an appeal by defendant
should be dismissed, under Code Iowa, § 3173,
which provides that no appeal shall be taken
in any cause in which the amount in contro-
versy, as shown by the pleadings, does not ex-
ceed $100. REED, J., dissenting.—Wilson v.
Hawkeye Ins. Co., (Iowa,) 162.

11. Where, on appeal, in which the amount in
controversy is less than $100, the certificate of
the trial judge fails to state that the questions
of law certified were involved in the cause,
the appeal will be dismissed.- Ball v. Van
Riper, (Iowa,) 120.

4. Where the sum of principal and interest 12. On appeal from an order of dismissal of
claimed in a petition exceeds $100, an appeal an action at law on the evidence given, evi-
is authorized under Iowa practice, without a dence offered but not received need not be
certificate from the district court as to ques- made a part of the record, to enable the su-
tions of law to be determined.-Koltze v. Mes-preme court to consider the judgment of dis-
senbrink, (Iowa,) 179.
missal.-State v. Chamberlin, (Iowa,) 326.

Appeals from inferior courts.

5. The action of a justice of the peace in al-
lowing, after the evidence is all in, and the
cause submitted to him, an amended declara-
tion to be filed, setting out an assignment of
the debt sued on from a former partnership to
the present plaintiffs, cannot be reviewed on
special appeal.-Webster v. Williams, (Mich.)
62.

6. In an action before a justice of the peace,
the admission of evidence showing that the
debt declared on as accruing to plaintiffs ac-
crued to a former partnership composed of
plaintiffs and another cannot be reviewed on
special appeal.-Id.

II. REQUISITES.

Time of taking.

7. Where a decree filed by the judge in va-
cation recites that it was rendered on a given
day, and the abstract, on appeal, sets out the
decree, and by the certificate of the clerk at
the end it appears to have been filed some
days after the date given in the decree, and
after the notices of appeal were served, the
decree as recorded must stand, uncontradicted
by the record of the clerk, and the appeal is
not prematurely taken.-Buck v. Holt, (Iowa,)

877.

Bond.

8. Where an appeal was granted on the 224
of July, and the bond is indorsed as filed on
that date, and the order granting the appeal
recites the bond as filed and approved that
day, it is no ground for objection that by a
clerical error the bond is indorsed as approved
on the 23d.-King v. Gridley, (Mich.) 50.

13. Where no objection is made to the sum-
such summons should be omitted from the
mons, or to the return of the officer thereon,
transcript; so with journal entries not in-
volved in the case, and the costs of such im-
material matter, if the proper motion is made,
will be taxed to the party at fault.-Winkler
v. Roeder, (Neb.) 607.

14. Affidavits made by plaintiff's attorney,
of alleged misconduct of defendant's attorney
in addressing the jury, are insufficient to make
such misconduct a matter of record. -Hall v.
Carter, (Iowa,) 956.

dence is not all preserved by bill of excep-
15. An appellee, who alleges that the evi-
tions, and who sets out, in an amended ab-
stract, portions of the evidence alleged to be
omitted in appellant's abstract, will not be
permitted to say that the evidence is not all
before the supreme court.-Conners v. Bur-
lington, C. R. & N. Ry. Co., (Iowa,) 966.
Appeals from inferior courts.

16. Under Code Dak. §§ 1008, 1011, providing
that an appellant has 30 days from the rendi-
tion of the judgment in a justice's court, in
which to file his transcript in the district
court, and until the second day of the next
term of the district court after the 30 days,
the district court has jurisdiction where judg-
ment was rendered February 15; the term of
court held March 11; the next regular term in
September, and the transcript filed April 1.—
Johnson v. Van Cleve, (Neb.) 320.

17. An appeal from a judgment of a justice
of the peace on both law and fact brings the
case for a trial de novo upon the merits, irre-
spective of errors or irregularities occurring
in the course of the trial in the court below, or

in the judgment rendered therein, under Gen. | where there is nothing in the record to show
St. Minn. 1878, c. 65, § 117.-Welter v. Nokken, that the court based its conclusions solely
(Minn.) 947.
upon such proposition.-Reed v. Chicago, M.
& St. P. Ry. Co., (Wis.) 225.
Presumption as to evidence.

the party must make an offer to prove the fact | court below must be affirmed.-Hunter v. City
or facts sought to be elicited by the question. of Des Moines, (Iowa,) 163.
Following Masters v. Marsh, 19 Neb. 458, 27
Dismissal.
N. W. Rep. 438.-Hamilton v. Ross, (Neb.) 467.
Matters not apparent on record.
37. Defendant appealed from an order
lowing temporary alimony as being excessive.
His abstract did not purport to contain all the
evidence in regard to the circumstances of
the parties on which the order was made, and

46. Where the abstract on an equity appeal
states that the evidence was certified by the
al-reporter and judge before whom the case was
tried, but does not aver or show that it con-
tains all the evidence so certified, the case
cannot be tried de novo, but must be dis-
missed.-Names v. Names, (Iowa,) 163.

did not show that the evidence contained was

of record, or that it was given on the hearing.
Its correctness was denied by plaintiff. Held,
that such evidence must be stricken out, and
that the appellate court cannot determine the
question of excessiveness.-Blair v. Blair,
(Iowa,) 385.

38. Where defendant admitted plaintiff's
claim, and introduced no evidence in support
of a counter-claim pleaded, and the court di-
rected a verdict for plaintiff, a certificate, on
appeal, containing questions of law, will be
treated as containing matter not involved in
the case, and disregarded.-Parker v. Mi-
chaels, (Iowa,) 161.

47. Where the abstract on appeal does not
show that any appeal was taken, the court
cannot take cognizance of the case except to
dismiss it.-Id.
Modification of judgment.

48. Plaintiff obtained a verdict in the aggre-
gate as damages for the killing of two cows,
and the only error relied on was the charge of
the court as to the killing of one of the cows.
Held, that the judgment based on this ver-
dict cannot be reversed or modified, under
Code Dak. § 23, providing that the "supreme
court may reverse, affirm, or modify the judg-
ment appealed from in whole or in part, etc.,
-it not appearing of record how much of said
39. The appellate court will not consider ob-judgment was erroneously awarded.-Cady v.
jections based upon facts directly contradict- Chicago, M. & St. P. Ry. Co., (Dak.) 221.
ing statements in the record.-National Tube
Works Co. v. City of Chamberlain, (Dak.) 761. Proceedings below.

Harmless error.

40. The admission in evidence of statements
as to what was included in an award, made
by one of the arbitrators to a party to the sub-
mission, where the arbitrator is himself a wit-
ness, and testifies to the same facts, if erro-
neous, is not prejudicial.-Amos v. Buck,
(lowa,) 118.

41. Where the fact in issue is the ownership
of certain corn raised upon plaintiff's land,
the admission in evidence of the title deeds of
plaintiff for the land is harmless error.-Ham-
ilton v. Ross, (Neb.) 467.

Objections waived.

42. Defendant in an action to compel the de-
livery of shares of stock of a co-defendant
company, which have been sold by him to
plaintiff, by answering waives his objection
that the complaint does not state an equitable
cause of action.-Tanner v. Gregory, (Wis.)

830.

49. A new and additional finding of facts, on
a remittitur for judgment, etc., where no fur-
ther evidence is introduced on trial had, is
unauthorized.-Tipping v. Robbins, (Wis.)

427.

ARBITRATION AND
AWARD.

Action on award.

1. In an action on an award, where from the
evidence the jury must have understood that
only the matters submitted to arbitration
were referred to, an instruction that they
must find for defendant, if they find that the
award did not include all matters of difference
between the parties, is not erroneous.-Amos
v. Buck, (Iowa,) 118.

2. In an action on an award, where the de-
fense is that the award did not include all
matters of difference submitted to the arbi-
trators, an instruction which seems to leave
to the jury the question whether or not there
was a submission is not misleading, they hav-
ing been told that the execution of the agree-
ment to submit was admitted.-Id.

ASSAULT AND BATTERY.
Civil actions.

1. In an action for injuries received by plain-
tiff in a fight, it appeared that the fight had
been mutually agreed on between plaintiff
and defendants. Plaintiff testified that, some
moments after the close of the first struggle,
defendants again attacked him, at which time
he sustained the injuries. There was no evi-
dence showing a previous understanding
among defendants to renew the attack, while
it appeared that one of defendants was not
even present. Held, that the evidence was
not sufficient to go to the jury to show a com-

mon purpose by defendants to assault and
beat plaintiff.-Smith v. Simon, (Mich.) 548.
2. In a lease by plaintiff's husband of a sew-
ing-machine, there was a clause providing
that, in case of default, said defendant or its
agent might "take possession thereof; and for
that purpose, or to search for the same, may
enter any premises of mine, or to which I may
have access, using such force as may be nec-
essary." Held not to authorize an assault by
one of defendant's agents on plaintiff, and the
use of force to hold and restrain her while an-
other agent removed the machine from the
lessee's dwelling.- Fredericksen v. Singer
Manuf'g Co., (Minn.) 453.

3. Where the commission of the assault is
sworn to by plaintiff, and denied by defend
ant, an instruction that, if the jury believe
plaintiff's statements to be true, consider-
ing defendant's denial and all the rest of the
testimony, the verdict should be for plaintiff,
when the charge also directs them to take into
consideration the reasonableness or unreason-
ableness of plaintiff's story, and to give it such
weight as they deem it entitled to, is proper,
and does not lay undue stress on plaintiff's
testimony.-Schenk v. Dunkelow, (Mich.) 886.
4. Where there is no evidence that injuries
received by plaintiff in a voluntary fight where
the result of excessive cruelty on the part of
defendant, the question of excessive cruelty
as affecting the rights of the parties should
not be given to the jury.-Smith v. Simon,
(Mich.) 548.

Evidence.

assignment for the benefit of creditors on Sun-
day, but the other partner executes and deliv-
ers it on a secular day, the fact of the signing
by one on Sunday does not invalidate the in-
strument.-Farwell v. Lindstrum, (Wis.) 437.
Construction and effect.

2. Where a deed of assignment purports to
convey all the real estate and property of the
assignor, and, for a more particular descrip-
tion, refers to a schedule annexed, but further
recites that the intent and purpose of the deed
are nevertheless to pass and convey any real
and personal property of such assignor, though
not enumerated in such schedule, the schedule
does not limit the operation of the deed, and
that the effect of the record of the deed is not
impaired by the omission to record the sched-
ule.-Strong v. Lynn, (Minn.) 448.

3. A debtor, having property in both Min-
nesota and Wisconsin, assigned all his prop-
erty to plaintiff for benefit of his creditors,
under Gen. Laws Minn. 1881, c. 148, relating
to estates of insolvents. Held, that such as-
signment was inoperative as to the property
in Wisconsin.-McClure v. Campbell, (Wis.)
343.*

Bond of assignee.

4. Under Rev. St. Wis. § 1695, which pro-
vides that the bond of an assignee for the
benefit of creditors shall be filed immediately
after execution, where the assignee files his
bond, but the sureties fail to qualify, and the
assignee afterwards perfects his bond with-
out unreasonable delay, the failure to comply
with the requirements of the statute in the
first instance does not invalidate the assign-
ment, no rights of third parties having inter-
vened.-Farwell v. Lindstrum, (Wis.) 437.

5. Defendant may show that he was travel
ing along a highway adjoining plaintiff's land,
which at that point was impassable; that
when he turned out on the adjacent land to
pursue his journey he was assaulted by plain-
tiff; and that while defending himself he com-
mitted the assault and battery complained of;
and a motion to strike an allegation of such See Judicial Sales.
facts out of defendant's answer should be de-
nied.-Irwin v. Yeagar, (Iowa,) 136.

6. In an action by a woman for an assault
and battery, accompanied with ravishment
that resulted in the birth of a child, plaintiff

Assistance, Writ of.

ASSOCIATIONS.

Driving park.

need not show that the assault was committed
The rules of a driving park association pro-
with such force and violence as to constitute vided that for violation of the rule relating to
the crime of rape, or to establish any fact in the gait of contesting horses in any heat the
her case by more than a preponderance of the judges might in their discretion exclude the
evidence.-Schenk v. Dunkelow, (Mich.) 886. offending horse from participation in the re-
7. In an action of trespass, brought by a maining heats. Held, that a decision allow-
woman for assault accompanied with ravishing a horse to proceed after having violated
ment, her sense of shame, and her fear of de-
fendant, if proved, should be taken into con-
sideration by the jury, for the purpose of re-
butting any unfavorable inferences arising
from her not making outcry at the time, and
her silence in regard to the matter afterwards.
-Id.

8. It is admissible to show the acts, conduct,
and appearance of plaintiff after the assault,
and before the birth of the child.-Id.
ASSIGNMENT FOR BENEFIT
OF CREDITORS.

Execution on Sunday.

1. Where one of two partners executes an

this rule would not be set aside, unless on
clear evidence of fraud on the part of owner
of the horse.-Porter v. Day, (Wis.) 259.

ASSUMPSIT.

Evidence, see Sale, 10.
When lies.

1. In an action against A. and F. to recover
money overpaid by mistake on the purchase
of land, it did not appear who owned the
land; the contract of sale and deed showed
that the sale was the joint act of both defend-
ants. There was evidence that F. was present
a portion of the time when the purchase money
was being paid, and directed it to be put in a