INDEX. ACTION. NATURE CONTRACT OR TORT. A complaint concerning a seller's breach of duty held to state an action on contract and not in tort. H. L. Griffin Co. v. Howell, 357. ADULTERY. 1. MARRIAGE OF ACCUSED-SUFFICIENCY OF EVIDENCE. In a prosecution for adultery, evidence held to justify a finding that accused was a married man. State v. Greene, 389. 2. SAME EVIDENCE-ADMISSIONS. In a prosecution for adultery, where proof of the marriage of accused is essential, the fact may be proved by his admissions. State v. Greene, 389. 3. ELEMENTS-MARRIAGE OF PARTIES. Under Comp. Laws 1907, section 4210, certain evidence held to show accused guilty of adultery. State v. Greene, 389. 4. CORPUS DELICTI-SUFFICIENCY OF EVIDENCE. Evidence held to sufficiently show the corpus delicti. State v. Greene, 389. 5. VENUE-SUFFICIENCY OF EVIDENCE. Evidence held sufficient to show that the offense was committed in the county charged. State v. Greene, 389. APPEAL AND ERROR. 1. FINDING CONCLUSIVENESS-EQUITY CASES. Under the circumstances, held, that the Supreme Court could not pass upon the evidence and order findings of fact and conclusions of law in a suit to cancel a mortgage in which a cross-complaint for damages was filed, as it might ordinarily do in equity cases. Naylor v. Jensen, 310. 2. TIME TO APPEAL-PENDENCY OF MOTION FOR NEW TRIAL-REHEARING. Under the statute allowing appeals from final judgments of the district court, to be taken within six months, such judgments do not become final until the disposition of a motion for a new trial. Luke v. Coleman, 383. 3. SAME RENDITION OF JUDGMENT-MOTION FOR NEW TRIAL. An application for a rehearing of the determination of the district court of a motion for a new trial held not to suspend the running of the statute relating to time for appeal. Luke v. Coleman, 383. 4. ASSIGNMENTS OF ERROR-NECESSITY. Rulings on evidence are deemed waived unless assigned as error. Loftis v. Pacific Mut. Life Ins. Co. of California, 532. 5. SAME QUESTIONS REVIEWABLE. Unless error is assigned in the Supreme Court on appeal, there is nothing to review. Loftis v. Pacific Mut. Life Ins. Co. of California, 532. 6. HARMLESS ERROR-ERRONEOUS ADMISSION OF EVIDENCE. Error in admitting evidence held not prejudicial. Loftis v. Pacific Mut. Life Ins. Co. of California, 532. 7. SAME-ADMISSION OF EVIDENCE. In an action for damage to real estate by the jar, etc., of passing trains, error in failing to properly limit a question to a witness held harmless error. O'Neill v. San Pedro, L. A. & S. L. R. Co., 475. 8. SAME. In an action for damages to real estate by the jar, etc., of passing trains, admission of certain evidence held harmless error. O'Neill v. San Pedro, L. A. & S. L. R. Co., 475. 9. JUDGMENT ON REMAND-CONFORMITY. A judgment entered remand held to conform to the mandate of the appellate court. Rio Grande Western Ry. Co. v. Stringham, 113. 10. MOTION TO STRIKE-REVIEW. Where evidence is provisionally admitted to be shown material and competent by other evidence, and this is not done, held a motion to strike out is necessary to convict the court of error. Hydraulic Cement Block Co. v. Christensen, 525. 11. INSTRUCTIONS-NOT PREJUDICIAL. In an action by a brakeman against a railroad company for injuries from a fall from pilot, an instruction held not prejudicial to plaintiff. Bunker v. Union Pac. R. Co., 575. 12. TIME FOR APPEALING-NECESSITY OF NOTICE OF JUDGMENT. Rule as to necessity for giving notice of judgment in order to limit time for appeal, stated. State v. First Judicial District Court, 138. 13. SAME-WAIVER. Notice of judgment as basis for limitation of time for appealing held subject to waiver. State v. First Judicial Dist. Court, 138. 14. RULINGS REVIEWABLE. Under the facts, held, that the Supreme Court cannot on appeal from a judgment for defendant review action in not specially finding on a question of negligence, when the pleadings support the judgment on another theory. Larsen v. Oregon Short Line R. Co., 130. 15. REVIEW-PRESUMPTIONS FINDINGS. In the absence of objections to findings, they are presumed to have been sustained by the evidence. Larsen v. Oregon Short Line R. Co., 130. 16. SAME. In the absence of a request for additional findings, the findings made are presumed to be as broad as the evidence warranted. Larsen v. Oregon Short Line R. Co., 130. 17. SAME-FINDINGS OF FACT. Findings of fact by the trial court, which are sustained by the greater weight of the evidence, will not be disturbed on appeal. Halverson v. Walker, 264. APPEARANCE. 1. GENERAL APPEARANCE-FILING OF GENERAL DEMURRER TO COMPLAINT. Under Comp. Laws 1907, section 3334, held that the filing of a general demurrer to a complaint, is a general appearance, sufficient to confer jurisdiction over the person. Page v. Commercial Nat. Bank of Salt Lake City, 440. 2. SPECIAL APPEARANCE-EFFECT. Effect of a special appearance to vacate a default judgment in attachment, stated. H. L. Griffin Co. v. Howell, 357. 3. ACTS CONSTITUTING. Under Comp. Laws 1907, section 3745, an appeal from justice or municipal courts to a district court held to constitute a general appearance. H. L. Griffin Co. v. Howell, 357. ATTACHMENT. 1. BASIS. An attachment rests on the affidavit therefor and not the complaint. H. L. Griffin Co. v. Howell, 357. 2. JURISDICTION OF RES-BASIS. The court's control over the res in attachment arises from seizure of the property under the writ. H. L. Griffin Co. v. Howell, 357. 3. NATURE OF PROCEEDING. An attachment against personalty is in the nature of a proceeding in rem and of an action in personam. H. L. Griffin Co. v. Howell, 357. 4. JUDGMENT-NATURE. Personal judgment held proper against defendant in attachment, regardless of the attachment. H. L. Griffin Co. v. Howell, 357. 5. SAME JURISDICTION OF DEFENDANT. Nature of attachment where defendant is not served and does not appear, stated. H. L. Griffin Co. v. Howell, 357. 6. DISSOLUTION-EFFECT. Dissolution of an attachment on defendant's special appearance does not divest the court of jurisdiction to further proceed. H. L. Griffin Co. v. Howell, 357. ATTORNEY'S FEE. See "BILLS AND NOTES." BILLS AND NOTES. 1. CONSIDERATION-SUFFICIENCY. A note executed by the cashier to plaintiff bank held supported by a consideration, moving to defendant from the president of the bank. Utah Nat. Bank of Salt Lake City v. Nelson, 169. 2. SAME-ACTION-PLEADING. Under Comp. Laws 1907, section 1576, in an action on a note, it is not necessary for plaintiff to allege or prove a consideration, to make out a prima facie case. Utah Nat. Bank of Salt Lake City v. Nelson, 169. 3. ACTIONS SUFFICIENCY OF EVIDENCE. In an action against the cashier of plaintiff bank on his note, which, with a sum advance by the president, was deposited in a bank to make up a defalcation, evidence held to show that such officer did not regard the amount advanced as a loan to the bank, to be returned regardless of whether the money stolen should be otherwise replaced. Utah Nat. Bank of Salt Lake City v. Nelson, 169. 4. SAME GOOD FAITH OF MAKER. In an action on a note executed by defendant, the cashier of plaintiff bank, under an arrange ment with the president by which each contributed a certain sum to make up a defalcation, evidence held to show that defendant executed the note in good faith with an intention to pay. Utah Nat. Bank of Salt Lake City v. Nelson, 169. 5. ATTORNEY'S FEE-PROOF OF PAYMENT-NECESSITY. The attor ney's fee stipulated for in a note will be assumed to be reasonable, in absence of a contrary showing, and allowed without proof that it was charged and paid or agreed to be paid; Comp. Laws 1907, sections 3504, 3505, not applying. Utah Nat. Bank of Salt Lake City v. Nelson, 169. 6. FINDINGS GENERAL FINDINGS-SUFFICIENCY. In an action on a note unless defendant affirmatively alleges want of consideration, a finding of consideration need not be made. Utah Nat. Bank of Salt Lake City v. Nelson, 169. a 7. SAME. A general finding that a note sued on was executed for valuable consideration held to negative the affirmative allegation of want of consideration and to be sufficient. Utah Nat. Bank of Salt Lake City v. Nelson, 169. 8. CONSIDERATION. A note held supported by a sufficient consideration so as to authorize an action thereon as stated. Utah Nat. Bank of Salt Lake City v. Nelson, 169. 9. SAME CONTRIBUTION TO COMMON UNDERSTANDING. A note held supported by a sufficient consideration under the rule making mutual promises to contribute toward a common undertaking a sufficient consideration for each of them. Utah Nat. Bank of Salt Lake City v. Nelson, 169. 10. SAME-FORBEARANCE-EXERCISE OF LEGAL RIGHT. An arrangement between defendant bank cashier and the other officers held a compromise of any claim the bank had against defendant for money defaulted, so as to be a sufficient consideration for a note executed by defendant to the bank to make up such defalcation. Utah Nat. Bank of Salt Lake City v. Nelson, 169. 11. BONA FIDE HOLDERS-BURDEN OF PROOF. Under Comp. Laws 1907, section 1611, the burden held on the indorser suing on a note to show that he acquired title as a holder in due course as defined in section 1604. Leavitt v. Thurston, 351. 12. SAME. Plaintiff suing on a note must show that he was a holder in due course by a preponderance of all the evidence. Leavitt v. Thurston, 351. 13. SAME-JURY QUESTION. Whether one suing on a note took it for value and without notice of fraud in its inception held under the evidence a jury question. Leavitt v. Thurston, 351. 14. SAME EFFECT OF ENDORSEMENT. Under Comp. Laws 1907, section 1590, an indorsement without recourse held not evidence against the indorsee's holding in good faith. Leavitt v. Thurston, 351. 15. CONSIDERATION-PRESUMPTION. Where a note is negotiable, it is presumed to be based upon a good and valid consideration. Niles v. United States Ozocerite Co., 367. |