Drake v. Davis

BISHOP, J. Respondent has moved “to terminate proceedings in the above entitled cause and to dismiss the same” on the ground that the appellant-defendants have not taken the first step requisite to the preparation of a record on appeal, and hence have failed to prosecute their appeals with diligence. We have concluded that the defendants are in default, without excuse, in the preparation of the record on appeal, and that in consequence an order should he made, not terminating proceedings, hut dismissing the appeals. When the new rules, governing appeals in civil cases from — 1001 — municipal courts, came into being, in September of 1945, several old practices went into oblivion. So nearly identical was the procedure in the municipal courts with that in the superior courts, and so closely are the new rules for the municipal courts modeled after the new rules which are applicable to appeals from the superior courts, that the following quotation from Averill v. Lincoln (1944), 24 Cal.2d 761, 763-764 [151 P.2d 119, 120], is apposite, reference within the brackets being to the rules that affect appeals from municipal courts: “The new rules constitute a fundamental departure from the old procedure in the following respects: (1) Fixed periods are specified for the performance of the various steps in preparing the record, and when the allotted time has elapsed the appellant is in default. [Rules 4-7.] (2) The trial court has authority to extend time for limited periods, and has no power to extend if the time has already expired. [Rule [17(b)].] (3) The appellate court alone has power to grant additional extensions of time and to relieve from default. [Rules [17(c)] and [22(b)].] As a result of these changes, the motion to terminate proceedings for a record has disappeared from our procedure.” Emphasis is given to the conclusion that the only court that can now give relief from default in the preparation of the record on appeal is the appellate, not the trial court, in Peebler v. Olds (1945), 26 Cal.2d 656, 659 [160 P.2d 545]. (See, also, Jarkieh v. Badagliacco (1945), 68 Cal.App.2d 426 [156 P.2d 969].) What is to be done in the event of a default from which the reviewing court grants no relief 9 In cases appealed from the superior court, “If the specified time and allowable extensions have elapsed, the appeal will be dismissed under rule 10(a) unless the appellate court grants relief.” (Averill v. Lincoln, supra, 24 Cal.2d 761, 764 [151 P.2d 119, 120].) But the rules governing appeals from municipal courts contain no counterpart of rule 10(a). However, the absence from the rules of a provision expressly authorizing superior courts to dismiss appeals where the appellants are hopelessly in default, does not mean that dismissals may not be ordered, for it is generally recognized that a court has an inherent right to dismiss a case pending before it when that is the proper disposition of the matter. Prior to the addition of section 583 of the Code of Civil Procedure in 1905, section 581 of that code furnished the — 1002 — only express provisions for the dismissals of eases because of any delay in bringing them to trial, and the provisions then made were limited to dismissals in the event summons had not been issued within a year, or, if issued, not served and returned within three years, of the commencement of the action. As was to be expected, someone arose to argue that the explicit statement of these grounds for a dismissal negatived the use of others. But in People ex rel. Stone v. Jeffords (1899), 126 Cal. 296, 298-301 [58 P. 704], after a review of several early cases, it was determined that the power to dismiss an action for lack of prosecution was inherent in the court and not limited by the provisions of section 581. This case has been frequently cited with approval. It and only a partial list of the others which might well have been included appear in Gray v. Times-Mirror Co. (1909), 11 Cal. App. 155, 160 [104 P. 481], following the introductory statement: “But that nisi prius courts possess inherent power to dismiss pending actions upon the ground that they have not been diligently prosecuted is a proposition repeatedly confirmed and well settled in this state.” (See, also, Craghill v. Ford (1932), 127 Cal.App. 661, 666 [16 P.2d 343].) That superior courts have an inherent power to dismiss, for lack of diligent prosecution, actions pending before them' on appeals from justices’ courts on questions of law and fact, has been recognized in the following cases: Pistolesi v. Superior Court (1915), 26 Cal.App. 403, 405 [147 P. 104] ; Long v. Superior Court (1916), 31 Cal.App. 34, 35 [159 P. 734] ; Easter v. Superior Court (1917), 34 Cal.App. 88, 90 [166 P. 852] ; Hochheimer & Co. v. Superior Court (1924), 65 Cal. App. 206, 208 [223 P. 564] ; Pacific Dry Goods Co. v. Superior Court (1935), 9 Cal.App.2d 707, 710, 711 [51 P.2d 180]. No doubt the silence of the cases with reference to the inherent power of the Supreme Court to dismiss appeals which have not been kept in step with the passing days, is due to the existence of express provisions in its rules providing for dismissals in such cases. Rule V has been on the books at least since 1892 (130 Cal. XXXVIII), and we find its predecessor in 4 Cal. XVI. Even so, in Moultrie v. Tarpio (1905), 147 Cal. 376, 378 [81 P. 1112], we find the court discussing facts showing that appellant had practically abandoned all proceedings looking to a prosecution of his appeal, by his failure to take any steps towards preparation of the record, — 1003 — and stating: “there can be no donbt of the inherent right of this court to dismiss an appeal under such circumstances.” Having concluded, therefore, that we have the power, upon proper occasion, to dismiss an appeal because of the failure of the appellant to proceed diligently with its prosecution, we note that, usually, two public policies come into conflict in determining in any case whether or not the occasion is a proper one for a dismissal. The first of the policies is set forth in Jarkieh v. Badagliaceo, supra, 68 Cal.App.2d 426, 431 [156 P.2d 969, 971], in these words: “There is, of course, a strong public policy in favor of hearing appeals on their merits and of not depriving a party of his right of appeal because of technical noncompliance where he is attempting to perfect his appeal in good faith.” The other public policy, which creates a problem when it comes into conflict with the first, grows out of the fact, phrased by Gladstone, that justice delayed is justice denied. As declared in O’Connell Gold Mines, Ltd. v. Baker (1943), 60 Cal.App.2d 777, 779 [141 P.2d 785] : “It is the policy of the law to require an appellant to exercise diligence in perfecting and prosecuting his appeal. Prompt disposition of appeals is in the interest of justice.” The problem in the present appeal is not a difficult one. It appears that judgment was rendered in plaintiff’s favor on December 7, 1945, in an action for unlawful detainer based upon the ground that the defendants were committing a nuisance. A motion to set aside the judgment was denied, and the defendants, on December 18, (possibly two days later), filed a notice of appeal from the judgment and from the subsequent order, and posted a $250 bond to stay execution. No action looking to the preparation of a record on appeal was taken until after the respondent served and filed her notice of motion in this court, March 11, 1946. The action then taken by the appellant was to file, in the trial court, a request for the clerk of that court to prepare a transcript containing copies of the complaint, of the judgment, and of some other papers. As appellant was over seventy days late in filing this request, and filed it without being relieved of his default, and he does not even yet make any pretense that he can suggest a reason which will excuse his default, the belated presence of the request, filed after the notice to dismiss was filed, will not bar the dismissal. It may — 1004 — be questioned whether, under the present rules, the filing of a request after default, without leave of this court, even if accomplished before the giving of the notice of a motion to dismiss, should serve to obstruct the granting of the motion, where no claim is made that an excuse exists for the tardy appearance of the request and that its late filing should be approved. But, in any event, where, as here, the filing comes after the notice of motion, it is too late to be of avail. “The right of the complaining party to a dismissal must be determined by the facts as they exist at the time the notice of motion is given, and it is not destroyed by the mere subsequent filing of the necessary document. [Citing cases.] ” (Murphy v. Krumm (1943), 21 Cal.2d 846, 849 [136 P.2d 8].) The motion to terminate the proceedings looking to the preparation of a record on appeal is denied, but the appeals are dismissed. Shaw, P. J., and Kincaid, J., concurred. — 1005 — INDEX [References are to pages where headnotes appear. Figures in brackets refer to headnote numbers.] ABATEMENT Death of Party—Contract for Benefit of Third Person, 87 [7] Pleadings—Construction, 798 [15] Waiver1, 798 [14] ABOBTION Evidence—Corroboration, 528 [2], [4] ACCOUNTS Action for Accounting—Appeal, 241 [6] Evidence, 972 [3] Sufficiency, 466 [1] Powers and Duties of Court, 241 [3] ACTIONS Conditions Precedent—Arbitration, 807 [7] Joinder—Single Cause of Action, 828 [5] Causes Which May Be Joined—Consistency, 990 [1] ADOPTION Effect of Order—Inheritance—Through Adopted Child, 291 [1], [2] ADVEBSE POSSESSION Burden of Proof, 382 [2] Prescriptive Title to Easement, 910 [3] Elements, 382 [3] Owner’s Knowledge, 310 [16] Evidence—Sufficiency, 910- [1], [4] User—License or Permission, 311 [17] AGENCY Authority Delegation, 815 [5], [6] Signing of Agent’s Name, 815 [1] Evidence—Sufficiency, 378 [2] Ostensible Authority—Evidence—Sufficiency, 377 [1] Necessity for Writing, 816 [7] Batifieation—Effect, 816 [10] Betroaetive Operation, 816 [9] Belation Between Principal and Third Person—Imputation of Agent’s Knowledge, 159 [5] ( 1005 ) — 1006 — ALTERATION OF INSTRUMENTS Altered Instrument as Evidence, 241 [4] Explaining Alteration, 752 [2] APPEAL Briefs—Pointing Out Errors—Errors as to Instructions, 569 [2] Requisites—Statement of Pacts, 261 [1] Determination—Modification—Amount of Recovery, 480 [1] Disposition—Modification, 718 [1] Harmless and Reversible Error—Admission of Evidence—Pacts Otherwise Established, 580 [3] Argument of Counsel—Refusal to Hear Argument, 139 [5] Continuance, 466 [3] Directing Verdict, 278 [6] Exclusion of Evidence, 159 [6], 467 [4] Failure to Find, 160 [7] Failure to Find on Material Issues, 739 [1] Findings—Nonconformity to Pleadings, 143 [2] Misconduct of Judge, 569 [1] Withdrawing Issues from Jury, 278 [5] Judgments and Orders Appealable—Final Judgment—Further Orders Necessary, 847 [1], [2], 907 [2] Law of Case—Similarity of Evidence, 277 [1] Sufficiency of Evidence, 263 [2], 277 [3] Moot Questions, 302 [4] Objections, 496 [15], 816 [13] Adherence to Theory, 522 [2] Evidence—General Objection, 1 [1] Exclusion of Evidence, 61 [3] Presumptions—Execution, 667 [1], 668 [3] Orders on Motion for New Trial, 177 [5], 641 [1] Questions of Law and Fact Consideration of Evidence—Inferences, 853 [2] Resolving Conflicts, 241 [2] Extent of Power of Court, 588 [3] Findings on Conflicting Evidence, 580 [2] Findings on Evidence Subject to Different Inferences, 272 [6], 854 [3] Sufficiency of Evidence to Support Findings, 139 [2] Where Evidence on One Side Consists of Presumption, 401 [2] Record—Necessity for Record Other Than Judgment Roll—Matters Reviewable, 284 [1] Opinion of Trial Judge, 889 [2] Review as Affected by Contents—Sufficiency of Evidence, 481 [4] Rehearing—Grounds—New Points, 829 [9] Remittitur—Decision as Law of Case, 536 [2], 537 [5] Duties of Trial Court—Compliance, 536 [1], 537 [3] Rendition of Judgment Directed, 537 [4] — 1007 — APPEAL—Continued Reversal—Directing Entry of Judgment—Limitations, 50 [5] Directing Further Proceedings in Trial Court, 537 [7] New Trial as to Certain Issues, 537 [6] Review—Incompetent Evidence, 910 [2] Supersedeas—Bond, 816 [11] Effect, 668 [6] Taking and Perfecting Appeal, 816 [12] Time to Appeal—Extension of Time—By Motion for New Trial, 585 [3] By Motion to Vacate Judgment, 585 [1], [2] APPEARANCE General Appearance—Operation and Effect, 301 [1] ARBITRATION Authority of Arbitration, 728 [1] Award—Compliance and Coextensiveness With Submission, 728 [2] ARREST In Civil Cases—When Authorized, 453 [2] ASSAULT Civil Cases—Evidence—Sufficiency, 545 [1] Defenses, 765 [8] Evidence—Sufficiency, 764 [4] ASSIGNMENTS Evidence—Sufficiency, 740 [6] ASSOCIATIONS Actions by and Against—Parties, 797 [7] Status, 797 [9] ATTACHMENT Discharge—Complaint as Affidavit, 806 [2] Hearing and Determination, 806 [3] Nature of Motion, 806 [1] What Operates to Dissolve Attachments—Sufficiency of Complaint, 806 [5], [6] Proceedings to Procure—Compliance With Statute, 807 [11] When Available—Actions Ex Delicto, 807 [8] Actions for Breach of Contract for' Direct Payment of Money, 806 [4], 807 [9] Actions on Contract—Security Valueless, 807 [10] — 1008 — AUTOMOBILES Appeal Conclusiveness of Findings—Contributory Negligence—Persons Crossing Streets, 295 [4] Harmless and Reversible Error—Instructions, 178 [6] Last Clear Chance, 429 [12] Conduct of Operator—Care Toward Persons Crossing Streets, 178 [7] Emergency Vehicles, 621 [1] Contributory Negligence, 621 [3], [4] Persons Crossing Between Crosswalks, 178 [8] Evidence—Sufficiency—Contributory Negligence—Persons Crossing Street, 295 [1], [3] Last Clear Chance, 428 [6] Persons Walking on Highway, 401 [1] Findings—Consistency, 284 [3], 285 [5], [6] Instructions, 177 [4] Last Clear Chance, 428 [10] Intersections—Highways and Roadways, 177 [1] Unmarked Crosswalks, 177 [2] New Trial—Insufficiency of Evidence, 278 [7] Offenses—Evidence—Driving Vehicle Without Owner’s Consent, 346 [3] Instructions—Driving Vehicle Without Owner's Consent, 345 [1], [2] Persons Liable—Lender—Permission to Use Car, 277 [2], 278 [4] Possession by Employee—Implied Permission, 271 [5] Inference of Permission, 271 [2] Province of Court and Jury—Contributory Negligence, 621 [5] Nonsuit, 621[ 2] Sales—Evidence—Sufficiency, 990 [2] BAIL Right to Bail, 192 [1] BAILMENTS Evidence—Sufficiency, 125 [2] Liabilities of Parties—Negligence, 125 [3] BANKRUPTCY Actions—Presumptions—Acts of Referee, 881 [3] Discharge—Constructive Notice, 882 [4], [5] Fraud, 881 [2] Schedules—Creditors’ Addresses, 881 [1] BANKS Trust Companies—Statutory Provisions, 94 [6] — 1009 — BRIBERY Asking or Receiving Bribes, 770 [7] Evidence, 769 [1], 771 [11] Other Offenses, 770 [3] Prior Conduct, 769 [2] Subsequent Conduct, 770 [5] Sufficiency, 770 [6] BROKERS Compensation—Dual Agency, 739 [2] Persons Liable—Purchaser, 605 [1] BURGLARY Evidence—Other Offenses, 948 [6] • Sufficiency, 825 [1] Testimony of Accomplices, 913 [1] CARRIERS Evidence—Negligence, 67 [1] Instructions Contributory Negligence, 642 [8] Duty of Carrier, 642 [9] Res Ipsa Loquitur, 67 [3], 68 [4], 641 [4] Unavoidable Accident, 642 [7] Negligence in Operation—Movements of Vehicle, 641 [3] Presumption of Negligence, 67 [2], 641 [2] Questions for Court and Jury, 68 [6] CONSPIRACY Civil—When Action Will Lie, 828 [3] CONSTITUTIONAL LAW Constitutionality of Statutes—Avoidance of Unnecessary Decisions, 94 [8] Duty to Uphold, 653 [1] Effect of Incidental Advantage to Individuals, 653 [2] Raising Constitutional Questions—Waiver, 94 [7] Due Process—Hearing—Nature, 416 [2] Police Power—Objects, 653 [3] Safety, 653 [6] CONTEMPT Affidavits—Sufficiency, 194 [1] Certiorari—Presumptions, 204 [13] Disobedience of Court Order—Violation, 453 [3] Evidence—Sufficiency, 194 [2], 195 [3] — 1010 — CONTEMPT—Continued Misconduct of Attorneys—Argument of Objections, 203 [5] Improper Questions, 203 [1], 204 [10], 205 [14] Manner of Asking Questions, 205 [15] Mistake of Law, 204 [7] Offering Improper Evidence, 204 [9] Order—Recitals, 203 [3], [4], 204 [8] CONTINUANCE Discretion of Court, 466 [2] CONTRACTS Actions Evidence—Action on Contract to FurUisli Equipment, 481 [2] Proof by Defendant—Defenses, 481 [3] Sufficiency, 971 [1] Certainty, 103 [1] Compensation—Persons Liable—Purchaser, 606 [3] Consent—Expressed Intention, 512 [10] Consideration—Adequacy of Amount, 104 [3] Benefit to Promisor—Payment, 103 [2] Contract for Benefit of Third Person-—Rescission, 86 [4] Right to Enforce, 86 [5], 87 [10], 606 [2] Interpretation—Construction by Parties, 512 [3] Construction in Favor of Validity, 512 [6] Construction of Entire Contract, 512 [5] Functions of Trial and Appellate Courts, 86 [2] Implied Covenants—Good Faith, 104 [4] Language of Instrument, 512 [2] Law as Part of Contract, 746 [2] Surrounding Circumstances, 512 [4] Time—Reasonable Time Implied, 87 [6] Modification—Contract in Writing, 378 [3] • Mutuality of Obligation, 104 [5], [6] Performance and Breach—Excuses for Nonperformance, 481 [5] Pleading, 119 [1] Rescission—Option—Consideration, 104 [8] Validity, 104 [7] CORPORATIONS Power of Legislature—Rights of Stockholders, 746 [3] Reorganization—Rights of Dissenting Members, 746 [1] COSTS On Appeal 718 [2] COVENANTS Conditions—Construction—Conditions Subsequent, 919 [8] — 1011 — CRIMINAL LAW Appeal Appealable Judgments and Orders—Order Granting Probation, 764 [3] Sentence, 764 [2] Verdict, 764 [1] Briefs—Pointing Out Errors, 947 [1], [2] Harmless and Reversible Error—Admission of Evidence—Pacts Otherwise Shown, 770 [4] Argument and Misconduct of Prosecuting Attorney, 631 [9], 771 [12] - Cure by Admonitory Instruction, 391 [4] Cure by Retraction, 391 [3] Burden of Showing Prejudice, 948 [7] Circumstantial Evidence, 772 [13] Failure to Instruct, 185 [7], 676 [4] Instructions, 44 [2] Alibi, 439 [1] Inapplicable or Immaterial Instructions, 935 [9] Order of Proof, 825 [3] Remarks of Judge, 234 [5], [6], 771 [12] Requiring Accused to Stand for Identification, 676 [6] Witnesses—Limiting Cross-examination, 771 [10] Questions of Law and Pact—Credibility of Witnesses, 154 [1], [2], 233 [2] Testimony Inherently Improbable, 488 [2], 933 [2], 949 [8] Who May Hrge Errors—Errors Consented to, 825 [2] Appealable Orders—Order Denying Motion to Set Aside Indictment, 894 [3] Argument of Counsel—Comment on Failure of Defendant to Testify, 675 [1] Conduct of Counsel—Asking Improper Questions, 685 [2], [3], [5] Questions on Cross-examination, 681 [2] Respecting Defendant’s Counsel, 685 [4] Conduct of Court or Judge—Examination of Witness, 681 [3] Opinion on Credibility of Witnesses, 681 [4] Regulation of Examination of Witnesses, 935 [8] Toward Counsel, 685 [6] Defenses—Entrapment, 15 [4], [5] Evidence—Accomplices, 528 [3], 913 [2] At Preliminary Examination—Diligence to Locate Witness— Discretion, 947 [3], 948 [4] Confessions—Prior Inducements, 82 [1] Review, 44 [3] Declarations and Conduct Respecting Accusation, 913 [3] Other Crimes—Exceptions, 948 [5] Sufficiency—Identity, 949 [9] 0 — 1012 — CRIMINAL LAW—Continued Instructions—Alibi, 676 [5] Circumstantial Evidence, 58 [2] Construction as a Whole, 185 [8] Failure of Defendant to Testify, 675 [2], [3] Witnesses—Credibility, 44 [1] Interpreters, 697 [6] Interrogating Jury as to Newspaper Influence, 630 [4] Judgment—Determination of Degree, 697 [7] Discretion of Court, 58 [1] Probation—Conditions, 765 [9] Discretion of Court, 392 [5] Who May Be Placed on Probation, 392 [6] Writ of Error Coram Nobis, 894 [5] Grounds, 352 [1], 532 [2], 533 [4], 894 [6], 895 [8] Office of the Writ, 533 [5] Proceedings, 352 [2], 894 [7] Sufficiency of Affidavit, 532 [1] Time for Application—Diligence, 895 [9] When Issued, 533 [3] New Trial—Affidavits on Motion Based on Newly Discovered Evidence, 765 [6], [7] Discretion—Cumulativeness of Evidence, 488 [3] Order of Proof—Rebuttal, 630 [5], 770 [8] Principals—Victim—One Who Furnishes Instrument, 528 [1] Province of Court and Jury, 765 [5] Accomplices, 528 [5] Comment on Evidence, 477 [4] Limitations on Power, 233 [3] Manner of Making Comment, 233 [4] Statement of Evidence, 477 [3] DAMAGES Compensatory Damages—Interest, 513 [14] Mitigation—Duty of Injured Party, 127 [12] Evidence—Sufficiency—Loss of Property, 127 [11] Excessive—Appeal—Conflicting Evidence, 349 [3] Detention of Property, 495 [6] Injuries to Nervous System, 68 [7] Exemplary Damages—Detention of Property, 495 [8] Review on Appeal, 495 [9] Measure of Damages—Determination of Value, 867 [3] Injuries to Person—Pain and Suffering, 203 [2] DECEDENTS’ ESTATE Accounting—Laches, 589 [6] Jurisdiction—Title of Estate, 589 [7] Rights of Representative—Decedents’ Business—Accounting, 241 [5] — 1013 — DEEDS Evidence—Deeds as Evidence, 309 [7] Interpretation—Favor of Grantee, 918 [4] Operation—Exceptions and Reservations—Effect, 159 [2] To Stranger, 159 [1] DELINQUENT CHILDREN Contributing to Delinquency—Evidence—Admissibility, 630 [6], [7] Burden of Proof, 629 [2] Sufficiency, 629 [1] Indictment or Information, 629 [3] Instructions, 630 [8] DISMISSAL Delay in Trial—Exception to Rule, 226 [1] Purpose of Statutory Amendment, 227 [3] Questions Relating to Parties—Lack of Capacity to Sue, 798 [13] Upon Failure of Proof—Appeal—Consideration of Evidence, 720 [2] DIVORCE Appeal—Determination—Effect on Payments Made, 330 [5] Causes for Denying Divorce—Lapse of Time, 602 [2] Custody of Children—Findings, 61 [2] Disposition of Community Property, 473 [6], 715 [1] Evidence—Corroboration, 601 [1] Judgment—Interlocutory Decree—Property Rights, 330 [4], 715 [3] Public Policy—State as Quasi Party, 331 [2] Support of Children, 715 [2] Temporary Alimony and Counsel Fees—Circumstances Affecting Right to Allowance, 473 [5] Evidence—Sufficiency, 473 [4] Hearing, 453 [4] Modification of Order, 301 [2], 302 [3] Security, 453 [1] EASEMENTS Extent of User, 383 [6] EQUITY Relief—Disposition of Entire Controversy, 143 [3], 458 [4], [6] ESCROWS Escrow Instructions—Effect, 7 [4] — 1014 — ESTOPPEL Burden of Proof, 972 [6] By Deed, 309 [8] Equitable Estoppel—Elements of Estoppel in Relation to Titles, 159 [3], [4] Necessity for Pleading and Proof, 972 [4] Sufficiency of Allegations, 972 [5] EVIDENCE Best and Secondary Evidence—Instruments Lost or Out of State, 61 [4] Extrinsic Evidence, 144 [4], 378 [4] Application of Rule to- Particular Instruments, 144 [8] Consideration for Instrument, 580 [1] Effect of Contractual Provisions Precluding Change of Terms, 378 [6] Judicial Notice—Commerce—Values, 866 [2] Denominational Schools, 653 [5] Giving Rides to Service Men, 204 [11] Meaning of Words, 204 [12] Opinions—Value—Qualifications of Witnesses, 752 [5] Rental Values, 495 [7] Value of Real Property—Effect of Conflict, 752 [4] Time of Appraisal, 753 [6] Res Gestae—Declarations After Transaction, 720 [1] Value of Property—Particular Sales, 753 [9] EXECUTIONS Issuance After Five Years—Discretion of Court, 668 [5] Successive Motions, 668 [2] Liens, 451 [1] Duration, 907 [3] Quashing—Proceedings, 668 [7] Redemption, 960 [3] FIRES Evidence—Sufficiency, 125 [1], [4], 126 [10] FIXTURES Landlord and Tenant—Effect of Agreement in Lease, 494 [4] Time of Removal—Extension of Lease, 494 [3] FRAUD Constructive Fraud—Confidential Relations, 144 [9] Election and Remedies, 828 [4] Pleading, 828 [1], [6], [7] Promise Made With Intent not to Perform, 144 [6] — 1015 — FRAUDS, STATUTE OP Agreements not to Be Performed Within a Year, 166 [2] Effect of Execution of Contract, 166 [1] Effect of Partial Performance, 166 [3], [4] GAMING Contracts—Recovery of Money Lost, 25 [1], [2] GUARDIAN AND WARD Guardians Ad Litem—Powers—Consent to Divorce, 330 [1], [3] HABEAS CORPUS Burden of Proof, 697 [1] Evidence, 697 [3], [5] Contradicting Record, 697 [4] Grounds for Relief, 192 [2] Errors, 698 [8] Judgment, 698 [9] Presumptions, 697 [2] Res Judicata, 894 [4] HOMESTEADS Appeal, 907 [1] Reaching Excess—Institution of Proceedings, 39 [1] Petition, 39 [2] HOMICIDE Appeal—Modification of Judgment, 852 [1] Evidence—Cause of Death, 20 [1] Intent, 20 [3] Malice, 20 [2] Manslaughter, 391 [1] Second Degree Murder1, 610 [1] Instructions—Refusal of Requests Covered by Instructions Given, 391 [2] HUSBAND AND WIPE Actions—Between Spouses, 437 [1] Property—Community and Separate—Commingling of Property, 472 [1] Determination of Character—Burden of Proof, 1 [2], 473 [2] Sufficiency of Evidence, 1 [3], 2 [4] Joint Tenancy, 473 [3] — 1016 — INDICTMENT AND INFORMATION Defects and Objections—Motion to Set Aside—Time for Motion, 894 [2] Waiver by Failure to Move to Set Aside, 894 [1] INDUSTRIAL LOAN COMPANIES Actions Against State—Construction of Statute, 415 [1] Parties, 416 [4] Power of State—Regulation, 416 [7] Recovery of Illegal Taxes Paid—Pleading, 416 [6] INJUNCTIONS Judgment—Necessity of Notice, 496 [14] INSURANCE Estoppel to Avoid Policy—False Answers in Application by Insurer's Agent, 457 [2], 458 [3] Evidence—Estoppel of Insurer, 457 [1] INTEREST Computation—Time From Which Interest Runs, 87 [9], [12] When Recoverable—Contracts, 87 [11] INTOXICATING LIQUORS Alcoholic Beverage Control Act, 994 [1] Evidence—-Presumptions, 994 [2] JOINT ADVENTURERS Accounting—Evidence—Sufficiency, 241 [1] Evidence—Sufficiency, 170 [1], [2] JUDGMENTS Amendment Nunc Pro Tunc—Limitations on Power, 76 [2], 77 [3] Power of Court, 76 [1] Declaratory Judgments—Nature of Action, 458 [5] Relief—Future Rights, 496 [12] Injunction, 495 [10], 496 [11] Res Judicata—Finality of Judgment, 446 [2] Judgment on the Merits, 668 [4] JURY Right to Jury Trial—Actions at Law, 943 [1] JUSTICES OF THE PEACE Appeal—Payment of Fees, 564 [1], [2], [3] — 1017 — LANDLORD AND TENANT Actions for Rent—Amount of Recovery, 50 [6] Judgment—Conformity to Findings, 50 [4] Actions for Wrongful Eviction—Damages, 866 [1], 867 [4] Agreements for Leases—Breach—Excuses, 49 [1] Construction, 49 [3] Holding Over—Creation of New Tenancy—Continuation of Lease, 494 [5] Leases—Interpretation, 494 [1], [2] Repairs—Covenants of Landlord, 49 [2] Unlawful Detainer—Damages, 349 [2] Evidence—Sufficiency—Waste, 349 [1] LARCENY Elements of Offense, 154 [3] Evidence—Admissibility—Conduct of Defendant, 154 [7] Sufficiency, 154 [4] Corpus Delicti, 154 [5] Intent, 155 [8] Showing of Mere Opportunity to Commit Crime, 154 [6] LEWDNESS Appeal—Questions of Fact—Instructions, 934 [7] Review of Evidence—-Inherent Improbability, 934 [5] Variance in Victim’s Testimony, 934 [4] Evidence—Sufficiency—Corroboration, 933 [1] Testimony of Complaining Witness, 934 [6] Testimony of Victim, 934 [3] LIMITATION OF ACTIONS Appeal—Harmless and Reversible Error—Pleading, 86 [1] Commencement of Period—Demand—Time for Making, 145 [12] Fraud—Discovery—Notice of Facts, 829 [8] Third Party Contracts, 86 [3], 87 [8] MANDAMUS Jurisdiction—District Courts of Appeal, 824 [1] MASTER AND SERVANT Contracts of Employment—Discharge of Employee, 512 [9] Employers’ Liability Act—Defenses, 30 [2] Employees Within Act, 368 [2] Injury to Railroad Employee, 30 [1] Instructions, 30 [3] Remedy as Exclusive, 367 [1] — 1018 — MONEY PAID Evidence—Sufficiency, 739 [5] MOTIONS Orders—Conclusiveness, 943 [4] MUNICIPAL COURTS Appeal—Record on Appeal, 1000 [1], [2] Preparation—Effect of Delay—Termination of Proceedings, 979 [1], 980 [3], [4], [6] Notice of Entry of Judgment or Order, 979 [2] Notice of Filing of Order Granting New Trial, 980 [5] Jurisdiction—Legality of Tax, 915 [1], [2], [3] NAMES Fictitious Names—Compliance with Requirement Pending Suit, 797 [11] Effect of Noneomplianee with Requirement, 976 [1], 797 [8], 798 [12] NEGLIGENCE Appeal Harmless and Reversible Error—Instructions, 68 [5], 427 [3] Questions of Law and Fact—Findings Supported by Substantial Evidence, 401 [3] Last Clear Chance, 427 [2] Evidence Res Ipsa Loquitur—Effect of Pleading, 126 [5], [6] Sufficiency of Evidence to Rebut Inference, 126 [7] Sufficiency—Last Clear Chance, 427 [4] Exercise of Care—Care Proportioned to Danger, 126 [8] Persons in Charge of Dangerous Instrumentalities, 126 [9] Instructions—Burden and Degree of Proof, 31 [5] Proximate Cause, 31 [6] Sudden Peril, 569 [3] Last Clear Chance—Ability to Avoid Injury, 427 [1] Ability to- Escape, 428 [7], [8] Defendant’s Knowledge of Danger, 428 [9], 429 [11] Defendant’s Knowledge of Plaintiff’s Situation, 428 [5] Proximate Cause—Concurrent Causes, 442 [2] Intervening Causes, 442 [1] Questions of Law and Fact—Contributory Negligence, 295 [2] NEGOTIABLE INSTRUMENTS Collateral and Contemporaneous Agreements, 739 [4] Evidence—Sufficiency—Filling Blanks, 589 [4], [5] Maturity, 739 [3] Presumptions and Burden of Proof—Filling Blanks, 588 [2] — 1019 — NEW TRIAL Error in Law—Discretion of Trial Court—Review, 642 [6] Harmless Error—Instructions, 641 [5] PARTIES Plaintiff—Real Party in Interest, 796 [4] Want of Capacity to Sue—Demurrer—Determination, 797 [10] PARTNERSHIP Liquidation—Subsequent Profits, 735 [1], [2] Trial—Questions of Law and Fact, 797 [6] PERJURY Evidence—Sufficiency, 184 [1] Indictment, 184 [4] Allegations as to Falsity and Knowledge, 184 [2], [3] Allegations as to Materiality, 185 [5] Instructions—Materiality, 185 [6] PLEADING Amendments, 446 [4] Effect as Superseding Pleading, 143 [1] Bill of Particulars, 971 [2] Complaint—Prayer—Equitable Relief, 496 [13] Conclusions, 838 [2] Demurrer to Complaint—Demurrer as Admission, 416 [5] Hearing, 828 [2] POISONS Offenses—Evidence, 488 [1], 685 [1], 686 [7], [8] PROCESS Service—Mode, 195 [4] PROHIBITION Appeal—Sufficiency of Evidence, 227 [2] Determination, 446 [1] Grounds for Relief—Errors and Irregularities, 943 [3] PUBLIC LANDS Disposal of Federal Public Domain—Homestead—Residence, 308 [2] Patents—Relation Back, 308 [1] — 1020 — QUIETING TITLE Appeal—Conclusiveness of Findings, 853 [1], 854 [4] Burden of Proof, 918 [5] Possession, 343 [3] Defenses—Limitation of Action, 343 [1], [2] Evidence—Title, 338 [1] Findings and Conclusions, 854 [7] Pleading—Complaint—Averment of Title, 919 [11] RAILROADS Property and Rights of Way Abandonment, 918 [2], [3] Portion of Road, 919 [9] Question of Fact, 919 [10] Estate Acquired, 918 [7] RATIONING Prosecution, 15 [1] Validity of Statute, 15 [2], [3] RECEIVING STOLEN GOODS Sufficiency of Evidence, 681 [1] RELEASE Evidence—Sufficiency—Fraud, 507 [1] ROBBERY Evidence—Sufficiency—Identity of Accused, 233 [1], 476 [1] Natuie of Property Taken, 863 [1], [3] Value of Property Taken, 863 [2] SCHOOLS Teachers Actions for Breach of Contract—Appeal, 513 [11] Damages—Interest, 513 [13] Contracts of Employment, 511 [1], 512 [7] Breach, 513 [12] Dismissal, 512 [8] Transportation of Pupils, 653 [4], 654 [7] SIGNATURE Adoption of Signature, 815 [4] How Attached, 815 [2] Mode of Affixing, 815 [3] Requisites, 816 [8] — 1021 — SPECIFIC PERFORMANCE Burden of Proof—Adequacy of Consideration, 753 [7] Certainty—Contracts Held Sufficiently Certain, 854 [6] Contract Involving Personal Services or Succession of Acts, 854 [5] Evidence—Adequacy of Consideration, 753 [8] Sufficiency—Adequacy of Consideration, 752 [3], 753 [10] STATUTES Construction—Reasonable Construction, 177 [3] Operation—Rule Against Retroactive Operation, 648 [1] STREET RAILWAYS Questions of Law and Fact—Contributory Negligence, 721 [5] Speed, 720 [3] Warnings and Signals, 720 [4] SUBDIVISIONS Definition, 901 [1] Notice of Intention to Sell, 901 [1] TAXATION Actions Affecting Tax Titles—Evidence—Unpaid Taxes, 339 [7] Proof of Title—Admissibility of Tax Deed, 339 [2] Reimbursement of Purchaser for Payments Made, 339 [5] By- State—Insurance Companies—Deductions, 548 [4], [5] Curative Legislation—Application and Effect, 839 [6], [7] Defects Cured, 839 [5] Distinctions—Taxes and Special Assessments, 548 [1], [2] Levy—Failure to Object—Waiver, 838 [4] Remedies of Taxpayer—Statutory Contest—Matters Determinable, 838 [3] Pleading, 838 [1] Sale for Delinquent Taxes—Prerequisites, 339 [4], [6j Statutes—Validity—Due Process, 416 [3] Tax Deeds—Conclusiveness of Recitals, 339 [3] TRIAL Direction of Verdict—Condition of Evidence Authorizing, 917 [1], 918 [6] Findings—Conclusiveness, 889 [1] Immaterial Issues, 467 [5] Issues Unsupported by Evidence, 343 [4] Finding Ultimate Facts, 61 [1] Inconsistency With Probative Facts, 284 [2], 285 [4] Introduction of Evidence—Offer of Proof, 467 [6] Order of Proof—Discretion of Court, 753 [11], 754 [12] Questions for Court and Jury, 943 [8] — 1022 — TRUSTS Accounting—Proceedings—Gonclusiveness, 93 [1], [2], [3], 94 [4], [5] Actions Evidence, 871 [2], [3], 889 [5] Parties—Joinder of Beneficiaries, 796 [2] Pleading, 796 [3] Amendment, 446 [3] Constructive Trusts—Agreements as to Purchase of Property, 522 [3] Breach of Oral Agreement by Grantee, 144 [5] Effect of Statute of Frauds, 523 [8] Evidence—Degree of Proof, 144 [7] Review, 889 [4] Establishment—Actions-—Nature, 523 [9] Findings, 959 [1] Surplusage, 139 [3] Judgment, 960 [2] Laches, 145 [10] Limitations—Period, 145 [11] When Statute Commences to Run, 145 [13] Pleading—Issues, Proof and Variance, 523 [4] Liability of Trustee—Arising Out of Sale or Conveyance, 871 [1], [4] Massachusetts Trusts—Liability of Creators—Control of Business, 797 [5] Resulting Trusts—Evidence—Sufficiency, 139 [1], 522 [1], 523 [5], 889 [3] Furnishing Consideration for Purchase, 523 [6] Time of Payment, 523 [7] When Trust Arises, 139 [4] UNIVERSITIES AND COLLEGES Statutory Provisions—Tenure of State College Teachers, 648 [2] USAGES AND CUSTOMS Effect, 31 [4] VENDOR AND PURCHASER Abandonment—Evidence—Sufficiency, 752 [1] ■ Actions—Appeal—Harmless and Reversible Error, 573 [2] Evidence—Sufficiency, 7 [5], 573 [1] Contract—Preliminary Agreements and Negotiations, 7 [3] Forfeiture and Termination of Purchaser’s Interest—Default of Vendee, 378 [5] Validity of Provision, 6 [2] Recovery by Purchaser of Payments—Default of Purchaser, 6 [1] — 1023 — WAR War Powers—Price Control—Violation of Ceiling Price, 990 [3], [4], 991 [5] WATERS Ditches and Easements—Actions—Judgment, 406 [3] Changes—Fixed Locations, 406 [4] Construction and Effect of Grant, 405 [1], Creation, 692 [2] Loss of Easements—Nonuser, 405 [2] Prescription, 382 [1], [4], [5] Rights Under Congressional Acts, 308 [3], [4], [5], 309 [6], 310 [12] Flood Control Districts—Taxation, 548 [3] Injunction—Acts Enjoinable, 692 [1] Prescriptive Rights—Burden of Proof, 310 [14] Elements, 310 [13] Proof, 310 [15] Procedure—Judgments—Conformity to Findings, 263 [1], 692 [3] Transfer of Rights—Estoppel—Acquiescence in Use, 311 [18] Evidence, 309 [9], [10], [11] WILLS Estate and Interest Passing—Insurance Money, 967 [2] Rights and Obligations of Devisees and Legatees Election, 967 [1] Construing Will and Life Insurance Policies Together, 968 [5] Manifestation of Intent to Require Election, 967 [3] Presumption of Testator’s Intention, 967 [4] WITNESSES Determination of Credibility—False in Part, 271 [4] Interest, 271 [3] Impeachment—Contradiction by Cross-examination, 204 [6] Conviction of Crime—Proof of Conviction, 476 [2] Inconsistent Statements—Cross-examination, 771 [9] Privileged Communications—Husband and Wife, 588 [1] Self-crimination—Waiver, 58 [3] WORKMEN’S COMPENSATION Burden of Proof, 555 [3], [6] Certiorari—Review of Findings—Cause of Injury or Disability, 555 [7], 556 [9] Findings Supported by Substantial Evidence, 362 [2] Compensable Injuries, 555 [1] Preexisting Disease, 555 [2] Aggravation of Preexisting Disease or Condition, 555 [5] Proximate Cause, 555 [4] — 1024 — WORKMEN’S COMPENSATION—Continued Continuing Jurisdiction—Determination, 249 [8] Hearing—Due Process, 249 [7] Statute Governing, 249 [6] Time When Power May he Exercised, 249 [3] When Power May he Exercised, 249 [5] Error in Decision, 248 [2], 249 [4] Evidence—Injury in Course of Employment, 361 [1] Sufficiency—Cause of Injury) 556 [8] Excluded Employments—Interstate Commerce, 368 [3] Hearing—Reference, 556 [10] Time to Make Claim—Payment as Extending Period, 248 [1]