INDEX.

INDEX.

ACCOUNTING. See Partnership; Trust, 1.

AGENCY. See Assignment, 4-7; Conversions, 1, 2; Corporations;
Warehouseman.

ALIMONY. See Divorce, 2-4.

APPEAL.

1. DISMISSAL-FAILURE TO FILE BRIEF-SUBSEQUENT FILING.-A
motion to dismiss an appeal for failure to file the appellant's brief
within the time limited therefor must be determined by the facts
existing when notice of the motion was given, and the right to a
dismissal cannot be affected by the subsequent filing and service
of the brief where no sufficient showing is given to excuse the
delay. (Santa Rosa Bank v. Striening, 515.)

DISTRICT COURTS OF APPEAL-JURISDICTION-TRANSFER TO SUPREME
COURT. An appeal involving the enforcement of a judgment for
more than two thousand dollars is not within the jurisdiction of
the district courts of appeal, and if taken thereto will be trans-
ferred to the supreme court, to which it should have been taken.
(Weldon v. Rogers, 388.)

ARGUMENT-REVIEW.-An appellate court will consider only the
assignments of error discussed in the appellant's brief, and will not
prosecute an independent inquiry to find out reasons for or against
the correctness of other rulings. (Humphrey v. Pope, 374.)

4. REVIEW CONFINED TO RECORD-RELATION OF DATE OF AFFIRM-
ANCE.-In determining the correctness of a judgment appealed
from, this court is limited to a consideration of the record thereof,
and error of the trial court cannot be predicated by reason of
any matter subsequent to its rendition. If the judgment is affirmed,
it is as of the date of its rendition. (People's Home Savings Bank
v. Sadler, 189.)

5. DEATH OF APPELLANT

6.

SUBSTITUTION OF EXECUTORS-IMPROPER
MOTION TO REMAND CAUSE.-Where the appellant has died pending
the appeal, a motion by his substituted executors to remand the
cause to the superior court upon the ground that the judgment is
incapable of enforcement for want of presentation of it as a claim
against the estate of the deceased appellant is improper and will
be denied. (Id.)

ENFORCEMENT OF JUDGMENT-PROVINCE OF COURT-PROBATE JURIS-
DICTION. The enforcement of the judgment or the right to with-

APPEAL (Continued).

hold it is primarily within the jurisdiction of the court in which it was rendered. Upon the death of the appellant the power of the court to enforce the judgment by execution against him terminated, and the respondent is remitted for its collection to the probate jurisdiction having charge of appellant's estate, and to that court the executors must present any defense they may have to its payment of the assets of that estate. (Id.)

7. INEFFECTUAL APPEAL FROM JUDGMENT DISMISSAL.-Where an attempted appeal from the judgment was not perfected until after the lapse of one year from the rendition of the judgment, it is ineffectual and must be dismissed. (Cox v. Odell, 682.)

8. APPEAL FROM NEW TRIAL ORDER-REVIEW-FINDINGS.-Upon appeal from an order denying a new trial only, the sufficiency of the findings to support the judgment cannot be considered, and the only inquiry as to the findings is whether they are supported by the evidence. (Burns v. Schoenfeld, 121.)

9. APPEAL FROM JUDGMENT EXPIRATION OF TIME-DISMISSAL-An appeal from a judgment taken more than six months after its entry must be dismissed. (Michaelson v. Fish, 116.)

10. MOTION TO DISMISS-LAW OF CASE-Where a motion to dismiss an appeal on the ground that the order appealed from was not appealable was denied, the order denying it is the law of the case, and a subsequent motion to dismiss the appeal on the same ground cannot be granted, but the appeal must be determined upon its merits. (Murphy v. Stelling, 95.)

11. JURISDICTION IN PROBATE MATTERS.-Appellate jurisdiction in probate proceedings is limited to such probate matters "as may be provided by law," and does not extend to any cases not enumerated in section 963 of the Code of Civil Procedure. (Estate of Bouyssou, 657.)

12. NON-APPEALABLE AND APPEALABLE ORDERS VACATING Refusal OF PROBATE VACATING APPOINTMENT OF ADMINISTRATOR.-An order vacating an order refusing probate of a will is non-appealable, and an appeal therefrom will be dismissed; but an order vacating the appointment of an administrator is appealable, and a motion to dismiss an appeal therefrom will be denied. (Id.)

13. ORDER SINGLE IN FORM-DISTINCT

PROCEEDINGS-DISTRIBUTIVE CONSTRUCTION.-An order single in form granting a "motion to vacate order refusing probate of will and appointing administrator,'' relates to wholly distinct proceedings, and is to be construed distributively, as containing separate non-appealable and appealable orders. (Id.)

14. ACTION FOR BROKERS' COMMISSIONS ON SALE OF REALTY-SUPPORT OF FINDINGS-CONFLICTING EVIDENCE.-In an action to recover brokers' commissions on the sale of real estate, where the court found, upon substantially conflicting evidence, that the property

APPEAL (Continued).

was sold, and that the sale resulted through the efforts of the plaintiffs, such finding will not be disturbed upon appeal. (Grunsky v. Field, 623.)

15. STIPULATION-SUBMISSION UPON RECORD OF FORMER JURY TRIALREPORTER'S NOTES-EXCEPTIONS NOT RESERVED OR REVIEWED.-A stipulation that the cause be submitted to the court for decision upon the record of a former trial before a jury as shown by the reporter's notes taken upon such former trial, without expressing any reservation of rulings and exceptions taken upon the former trial, does not require the trial court to review them; and in the absence of any showing that the trial court actually passed thereon, the appellant from its decision cannot have them reviewed in this court. (Id.)

16. DUTY OF APPELLANT-PRESUMPTIONS UPON APPEAL-INTENT OF STIPULATION-ABSENCE OF CONSENT OF COURT.-It is the duty of the appellant to show error affirmatively, and every intendment is in favor of the action of the trial court; and where it is not clearly apparent from the record that the parties and the court understood that the stipulation included exceptions formerly taken, it must be presumed that nothing of the kind was intended, and that the court did not consent thereto,-the parties being powerless to make up a new record based upon the former rulings without the consent of the court. (Id.)

17. ERROR REMOVED BY CONSENT ESTOPPEL OF APPELLANT.-He who consents to an act is not wronged by it; and acquiescence in error takes away the right of objecting to it. In the absence of au express agreement to that effect sanctioned by the trial court, the appellant will not be allowed to predicate error on a record to which he has consented. (Id.)

See Criminal Law, 9, 10, 87, 95; Eminent Domain, 9; Estates of
Deceased Persons, 3, 26-28, 34, 48, 49; Guardian and Ward, 2;
Judgment, 6, 8; Liens, 3; Mechanic's Lien, 2; New Trial,
1, 6, 7; Nuisance, 10; Pleading, 3.

ASSAULT. See Criminal Law, 7-10.

ASSIGNMENT.

1.

CHARTER OF VESSEL-CONTRACT FOR LUMBER-A contract to charter a vessel, and by the owners to furnish lumber for freight at a fixed price per thousand, is assignable without the consent of the owners. Although the assignor is not released by the assignment from the burden of the contract, the assignee takes all of the rights of the assignor thereunder. (Frese v. Moore, 587.)

2. CONSIDERATION OF ASSIGNMENT-OBLIGATION OF ASSIGNEE.-Where the assignee as a recharterer, in consideration of the assignment, agreed to pay a higher than the contract rate to the assignor, I Cal. App. 49.