« AnteriorContinuar »
which objection is made, as required by
rule of court, will waive the obejction.
Garrigue v. Keller (Ind.)
2. That there is evidence in the record
that a tenant permitted the premises to be
sold for taxes in violation of his covenant
through mistake does not require a rever-
sal of a judgment dismissing his bill for
equitable relief from a forfeiture claimed
on the ground, where there is no statement
of facts found, or of rulings made; since it
cannot be held to have been error to refuse
to give credence to such evidence. Gordon
v. Richardson (Mass.)
Of Insurance Company, see INSUR-
3. Sundays cannot be excluded in com-
puting the time for signing of bills of ex-
ception under Code Pub. Loc. Laws, art. 4.
§ 170, allowing it to be done "at any time
within thirty days" after verdict or finding
of fact. American Tobacco Co. v. Strick-
Sufficiency of Service to Warrant Per-
sonal Judgment for, against De-
fendant, see WRIT AND PROCESS.
Of Pleading; Error in Refusing to Per-
mit, see APPEAL AND ERROR, 10.
Of Affidavit, see APPEAL AND ERROR,
Assignments of error.
4. An assignment that the court erred
"in charging the jury as certified to in the
printed record," without pointing out the
error complained of, raises no question
which the appellate court is bound to re-
view. Chase V. Waterbury Sav.
Of Statute; Sufficiency of Caption, see
APPEAL AND ERROR.
Record in appellate court; generally.
1. Failure to set out instructions to
5. On appeal from an order overruling a
motion for new trial, appellant is entitled
to have the assignment and specification of
errors contained in his statement used on
the hearing of such motion examined and
considered by the appellate court, although
such order was not assigned as error on ap-
peal, since Id. Rev. Stat. 1887, § 4427, al-
lows an aggrieved party an exception, as a
matter of law, to an order denying his
motion for a new trial. Whitney v. Dewey
6. Where a motion for a new trial has
been made, and the statement used on such
motion contains an assignment and specifi-
cation of errors, and an appeal is taken
from the order denying the motion, and the
original brief of appellant contains
enumeration of errors relied on, but refers
to the transcript and discusses such errors.
and prior to the argument in the appellate
court a supplemental brief is filed by appel-
lant, making a specific enumeration of such
errors, the same will be regarded as a sub-
stantial compliance with the rules of court
requiring an assignment of errors; and the
case will be examined on the merits.
Necessity of exceptions.
7. In the absence of exception to the con-
duct of the prosecuting attorney in reading
the verdict of a coroner's jury in propound-
ing a question to a witness, the supreme
court will not set aside a verdict of guilty
in a murder case merely because the coro- | Grounds for reversal generally.
ner's verdict stated that the homicide for 15. A judgment will not be reversed be-
which accused was on trial was unjustified.
State v. Coleman (Mo.)
8. The exercise by the trial court of its
discretion as to the setting aside of a ver-
dict as being contrary to the clear weight
of the evidence will not ordinarily be re-
viewed on appeal. Hancock v. Western U.
Teleg. Co. (N. C.)
9. The question of the invalidity of an
information may be raised for the first
time in the appellate court. State v. Cole-
cause the sufficiency of an answer was
tested by what was called a motion to
strike, instead of by demurrer, although the
practice is improper, where the motion has
been treated by the parties as in effect a
Lumber Co. V.
Greene & W. Teleph. Co. (Iowa)
16. The admission of evidence of a con-
versation between the maker and payee of a
note as to the law by which it shall be gov-
erned, which took place in the absence of
the surety, is not reversible error upon com-
plaint of the surety, where the conversa-
tion merely corroborated the effect of the
contract itself, and there
dence to the contrary. Garrigue v. Keller
was no evi-
10. Refusal to grant leave to amend the
complaint so as to set up a new issue, after
the introduction of the evidence, is not re-
viewable on appeal. Allen v. North Des
Moines M. E. Church (Iowa)
11. Failure of the clerk to indorse the
word "Filed" upon an affidavit is a mere
irregularity which may be amended at any
time before or during trial, and objection
to it cannot be made for the first time on
appeal. State v. Coleman (Mo.)
Review of facts.
12. On an appeal to the Louisiana su-
preme court solely under the grant of juris-
diction to that court over suits involving
the constitutionality or legality of a fine or
penalty imposed by a municipal corporation,
the question whether the facts were suf-
ficient to justify the conviction of the ap-
pellant cannot be considered. Crowley v.
17. The excusing of a competent juror on
motion of the court itself is not ground of
error, if a fair and impartial jury was ob-
tained. Pittsburgh, C. C. & St. L. R. Co. v.
Dusen (C. C. App. 6th C.)
18. A verdict for damages will not be dis-
turbed on writ of error on the ground
that they were excessive, when the trial
court did not disturb it. Peirce v. Van
19. Failure to credit overdue premium
notes on a life insurance policy in entering
judgment thereon, as provided in the con-
Union C. L.
tract, is cause for reversal.
Ins. Co. v. Spinks (Ky.)
Remarks or conduct of court or coun-
See also supra, 2, 7.
13. A verdict in favor of plaintiff in an
action to recover for injury to a railroad
brakeman while coupling cars through the
alleged negligence of the engineer in fail-
ing to stop his engine as soon as the cars
came together, and hold it stationary until
signaled to move it again, will not be dis-
turbed where the evidence is conflicting, but
plaintiff's evidence that the engine was not
stopped is corroborated by undisputed evi-
dence tending to show that fact. Schus v.
Powers-Simpson Co. (Minn.)
20. The jury in a murder case cannot in-
fer that a verdict was rendered by a coro-
ner's jury, merely because the prosecuting
attorney asked a witness whether or not he,
as a member of such jury, did not render
such verdict, which question the witness
was not permitted to answer, so as to make
the conduct of the prosecuting attorney
State V. Coleman
ground for reversal.
887 21. A remark by the trial judge to coun-
14. A finding that there is no such dis-sel in the presence of the jury in a criminal
parity or difference between signatures on
case, indicating that in his opinion the
drafts presented to a savings bank and case is not one depending on circumstantial
that of the depositor on file as to create a evidence, and that he gives instructions on
doubt or misgiving concerning the genuine- that subject only in deference to the opin-
ness of the signatures in the mind of a ion of the higher court, is reversible error.
competent and reasonably careful bank of Beason v. State (Tex. Crim. App.) 193
ficer when presented by a person unknown
to him, and that, therefore, the bank is
not guilty of negligence in failing to make
a comparison, is a conclusion of law review-
able by the appellate court, and not a find-
ing of fact. Kelley v. Buffalo Sav. Bank
22. It is reversible error for the trial
judge to permit, without rebuke, the prose-
cuting attorney to state to the jury, in a
prosecution for burglary, that, if they do
not convict, we might as well tear down
the court houses; that, if defendant is not
guilty, there are too many courts for the
case to go through to permit his conviction; | ARBITRATION.
that the state has proved that defendant
stole the property by his plea of guilty,
which the judge would not have entered if
it was not true; so that the case is one of
direct, and not circumstantial, evidence, al-
though a 2x4 appellate court had held that
it was the latter.
23. Charging the jury as to the effect of
verbal statements of accused, when there is
no evidence that he made any, is not rever-
sible error, where the facts disclosed by the
record show that accused was not preju-
diced thereby. State v. Coleman (Mo.)
24. An instruction in an action for false
imprisonment permitting the damages to
be fixed by what the average man would
suffer under the circumstances is not re-
versible error, where there is nothing to
show that plaintiff suffered less than would
the average man, although the measure of
damages should actually have been what
plaintiff suffered. Mumford v. Starmont
25. A manifest clerical mistake in copy-
ing an instruction is not prejudicial error.
Pittsburgh, C. C. & St. L. R. Co. v. Mont-
26. Failure to give an instruction which
is not requested upon a matter to which the
attention of the court is not called is not
reversible error. State v. Coleman (Mo.)
Modification of judgment by appellate
27. The appellate court may correct a
judgment which erroneously imposes im-
prisonment in addition to a fine for a stat-
utory misdemeanor, by striking out the er-
roneous portion and affirming the judgment
as modified. Pressly v. State (Tenn.) 291
NOTES AND BRIEFS.
Appeal; reversal for improper remarks
of prosecuting attorney.
Failure to file assignments of error; suf-
ficiency of general assignments. 574
Appropriations to aid counties in the
construction of public roads are not forbid-
den by a constitutional provision that the
general assembly shall not have power to
involve the state in the construction of
works of internal improvement, nor to
grant any aid thereto, which shall involve
the faith or credit of the state, nor make
any appropriation therefor. Bonsal v. Yel-
Of Insurance Loss, see INSURANCE, 7.
Evidence of Humiliation by, see EVI-
Right of Officer to Kill while Making,
See also FALSE IMPRISONMENT.
1. The pardoning of a lawyer who has
been convicted of embezzling funds from
his client does not efface the moral turpi-
tude and want of professional honesty in-
volved in the crime, nor obliterate the stain
upon his moral character. People ex rel.
Deneen v. Gilmore (Ill.)
2. A license to practise law will be re-
voked which is secured by a fraudulent
concealment of the fact that the plaintiff
has recently been convicted of embezzling
funds from a client in another state,-es-
pecially if, since its issuance, the plaintiff
has been guilty of professional misconduct
evincing such lack of personal integrity and
professional honor as to establish that he is
unworthy to be allowed to hold it.
NOTES AND BRIEFS.
Attorneys; disbarment of, for conviction
of felony; in case of pardon of felony;
where misconduct does not relate to pro-
Sufficiency of Service to Authorize Per-
sonal Judgment for, against De-
fendant in Divorce Suit, see WRIT
Judicial Notice as to Speed of, see
Liability for, see CARRIERS, 6, 7.
are correctly stated. Loomis v. Wallblom
2. A trustee in bankruptcy has the option
to assume or to renounce the leases and
other executory contracts of the bankrupt,
as he may deem for the best interest of the
estate. Watson v. Merrill (C. C. App. 8th
1. A debt is properly scheduled in bank-
ruptcy proceedings, so as to give notice to
the creditor his assignor, where in the
schedule the name of the original creditor
and the nature and the amount of the debt
3. Rents which a bankrupt had agreed
to pay at times subsequent to the filing of
the petition in bankruptcy do not consti-
tute a provable claim under the bankruptcy
law of 1898, because they are not a "fixed
absolutely owing at the
time of the filing of the petition against
him," and because they do not constitute
an existing demand.
4. Damages for the breach of a contract
of the bankrupt to pay rents at times sub-
sequent to the filing of the petition in
bankruptcy are not a fixed liability,
absolutely owing, which may be proved in
bankruptcy proceedings under the law of
1. Requiring an automobile to carry a
number does not violate the constitutional
provision against unreasonable searches, or
compel the owner to testify against himself,
or deprive him of property without due
process of law. People V. Schneider
Discharge and its effect.
7. A full discharge of the individual
liability of one partner on a firm debt may
2. Power to require the registering and be had in bankruptcy proceedings concern-
numbering of automobiles is conferred upon ing that partner only. Loomis v. Wall-
the city council by charter authority to con-blom (Minn.)
trol, prescribe, and regulate the manner in
which the streets shall be used and en-
Effect of adjudication.
5. An adjudication of bankruptcy ab-
solves the bankrupt from no agreement,
terminates no contract, and discharges no
8. A discharge of individual liability on
a firm debt in bankruptcy proceedings con-
cerning one partner only is a good defense
in an action brought against both partners
to renew a judgment on a partnership debt,
NOTES AND BRIEFS.
Automobiles; ordinance requiring regis- the process in which action was served only
tering and numbering of.
on the partner who had been duly dis-
charged in bankruptcy proceedings, where
it appears that, many years before, the
parties dissolved the firm, and the firm, to
the actual knowledge of the judgment
creditor, made an assignment of all un-
exempt firm and individual property under
a state insolvency law, and that the claim
was properly scheduled, and notice thereof
duly given; and it does not affirmatively ap-
pear that any firm assets now exist.
6. An adjudication of bankruptcy in a
case in which there was no rent due at the
time of the filing of the petition in bank-
ruptcy does not constitute a breach at that
time of the covenants of the bankrupt in
his lease to pay rents accruing thereafter.
NOTES AND BRIEFS.
be good on account of the owner, unless the
book has been lost and notice in writing
Bankruptcy; effect of institution of pro- given to the bank, where a pass book is pre-
ceedings to dissolve all contracts of bank-sented by a person other than the depositor
rupt; right to prove claim for unaccrued to whom it belongs, together with a forged
719 check bearing a signature similar to that
Discharge of partnership liability in in- of the depositor, and there is nothing to
dividual bankruptcy proceedings:-(I.) | arouse the suspicion of the teller, or put
Scope; (II.) provability of partnership him upon inquiry, as a reasonably prudent
debts in individual proceedings: (a) in- man, as to the genuineness of the check,
troductory; (b) in general; (c) excep- and the bank in good faith pays the check.
tions: (1) absence of joint assets or solvent believing the person presenting it to be the
partners: (a) in general; (b) when part- depositor, it is not liable in a suit by the
nership assets have been assigned to bank depositor to recover the money so paid, not-
rupt; (2) fraudulent abstraction of part- withstanding another rule of the bank, that
nership funds by bankrupt; (3) right of depositors must always present their pass
petitioning joint creditor to prove; (III.) books
depositing or withdrawing
discharge of partnership liability in in- money, and that, "if not present personally,
dividual proceeding: (a) discharge of lia- an order properly signed and witnessed
bility by reason of provability of claim: must accompany the presentation of the
(1) in general; (2) the English doctrine; book in case of withdrawal."
(b) necessity of making firm or copart-
ners parties: (1) under bankruptcy law of
1867: (a) in general; (b) in absence of
joint assets; (2) under bankruptcy law of
1898: (a) in general; (b) in absence of
5. Failure of the officers of a savings
bank to make a physical comparison of the
signature on a draft presented with a de-
positor's bank book with his signature on
file will render it liable for paying out
money on a forged draft, in the absence of
some unusual and pertinent excuse which
will justify such failure. Kelley v. Buf-
falo Sav. Bank (N. Y.)