A Treatise on New Trial and Appellate Practice: Presenting and Illustrating the Laws and Rules of Practice in Proceedings Subsequent to Decisions by Trial Courts, Including Final Disposition in Appellate Court, with Special Reference to the Code and Statutes of California, Idaho, Montana, Nevada, North Dakota, Oregon, South Dakota, Utah, Washington, Wyoming, and the Territories of Arizona and New Mexico, Том 1

Thomas Carl Spelling

Bancroft-Whitney, 1903 - 1754 страници

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345	xli

241	xlvii

242	lxi

243	lxiii

SUBSTANTIVE ELEMENTS OF THE PROCEEDING	1

FINDINGS OF FACT AND CONCLUSIONS OF	7

CHAPTER	24

CHAPTER	28

Question may be presented as well on appeal from order on motion for new trial as on appeal from the judgment	592

The findings should be sufficiently definite and certain as not to require an investigation on review to determine what issucs are decided	593

594 Finding upon an immaterial issue not required	594

Ultimate rather than probative facts should be found	595

Findings must be within the issues when compared with the pleadings	596

CHAPTER 17	597

Findings should not set forth the evidence	598

599 The mere misplacement of a finding of fact among the con clusions of law does not affect its character as a finding	599

JURISDICTION	32

CHAPTER	36

With reference to the time and place of holding courts	38

With reference to the disqualification of judges	39

With reference to the order of trial	40

Order of arguments	41

Irregularities in administering oaths and omitting oaths	42

43 Irregularity in judge absenting himself during trial	43

Irregularity in complying with request of jury for further	44

IRREGULARITY IN THE PROCEEDINGS OF THE COURT JURY	45

CHAPTER 23	46

CHAPTER	47

RELIEF AGAINST JUDGMENTS AND DECREES BY SUIT IN EQUITY	54

WAS PREVENTED FROM HAVING A FAIR TRIAL	56

structions or irregularly advising jury 45 Irregularity in failing to send out all or part of instructions or other papers with jury 46 Misconduct of judg...	58

97 Suppressing and concealing evidence	97

Knowingly introducing false testimony	98

Misleading party to his prejudice	99

Fraud practiced in matter of presenting points and authorities	100

Of duty of counsel to call matter to courts attention	101

Counsel must except to improper conduct	102

How far considered	103

CHAPTER 5	104

Statutory provisions	105

66 Of the offenses within constitutional guaranty	113

Statutory definitions of bias	114

CHAPTER 6	139

Amendment usually permitted upon sustaining demurrer Proper practice 107 Large discretion conceded to trial court but not unlimited 108 SameCa...	177

CHAPTER 8	208

TRANSCRIPT	223

CHAPTER 9	240

Oral communications from outside sourcesFrom parties and counsel 165 Oral communications from outside sourcesFrom others than partiesWhen h...	241

Distinctions and definitions	275

174 Disclosing secrets of juryroom	295

CHAPTER 10	307

CHAPTER 11	340

SameDuty of party to examine and crossexamine witnesses having the opportunity	358

SameDuty to acquire knowledge of objects and transactions brought to attention of party 216 SameDuty to apply for continuance	359

SameForgetfulness of party or counsel no excuse	360

Same Specific facts claimed to constitute diligence must be shown	362

Exceptions to and relaxation of rule requiring diligence 220 New evidence must be material to an issue involving the merits of the case	366

Sufficient if material as to amount of recovery	373

It must appear that new evidence is competent 225 Rule that newly discovered evidence does not warrant a new trial if merely cumulativeLittle or no...	374

Must not be merely effective to impeach witnesses	383

No objection to corroborative evidence as such 229 Affidavits of party and counsel	385

Affidavits of witnesses	387

CHAPTER 12	389

CHAPTER 13	397

General view of subjectStatutory provisionsSimilarity	423

CHAPTER 45	426

Record must show affirmatively ground for new trial	430

436 Exceptions before refereeHow shown	436

254 Verdicts against	439

Proper place for specificationMust form part of statement or bill of exceptions	440

Effect of inserting notice in statement or bill	441

Authentication	442

Duty of court to settleNot merely to sign	443

Proposal of skeleton statement permissible	444

CHAPTER 14	445

Extensive powers of trial courts over engrossment and amend ment	446

Engrossment	447

Service	448

Extension of timeBy stipulation	449

Extension of timeBy order of court	450

Relief on motion from failure to serve or obtain extension	451

Proposal of amendments herein of waiver of service	452

Bringing on settlementNotice of time and place of settle ment	453

Proceedings before judge or referee at settlementAppearance and nonappearance of parties	454

Proceedings before judge or referee at settlementWaiver of neglect	455

Proceedings before judge or referee at settlementObjections excuses and explanationsHow made to appear	456

Mandate to compel settlement	457

Proving exceptions before supreme court	458

Effect of statutory changes	459

Incorporation of affidavits and exhibits in bills of exceptions	460

Connected use of affidavits statements bills of exceptions and other files and records	461

Jurisdiction of supreme court conferred and limited by	462

CHAPTER 15	469

294 Error resulting from production and nonproduction of docu mentary evidence 295 Error in case of joint parties in admission or rejection of evi...	470

Jurisdiction in action of claim and deliveryHow value tested	475

General viewStatutory provisions	479

Rule that appeal lies only from final judgmentWhat con stitutes	480

Policy of law in requiring final judgment for purposes of appeal	481

482 As to what constitutes finality for purposes of appealInter locutory decrees distinguished	482

483 Appeal lies though further order pertaining to enforcement	483

necessary 484 How finality affected by order granting new trial as to some and denying it as to others	484

485 Whether entry essential to finalityRendition and entry dis tinguished	485

Right of party with respect to entry of judgment	486

Essentials of judgment	487

Judgments distinguished from orders	488

Appeals lie from certain interlocutory decrees	489

Appeal lies from void judgment	490

Appeal lies from vague and informal judgment	491

Appeal lies from default judgment	492

Appeal lies from part of judgment	493

Judgments entered pursuant to mandate of appellate court not appealable	494

Rule that consent judgments not appealableException	495

What constitutes an order for purposes of appeal	496

497 Appeals from orders authorized by statute	497

Appeal only allowable from original orderExceptions	498

Orders on motion for relief from a proceeding	499

Same subjectException as to certain orders to vacate judg	500

Same subjectApplication of rule to opinion as to market value	501

Same subjectWith reference to change of condition by lapse of time 285 Same subjectWith reference to questions impeaching partys own witness 2...	502

Same subjectApplication herein of the doctrine of waiver	503

Exception to ruleWhen general objection sufficient	504

Effect of postponing objection and taking under advisement 290 Error in ruling on offer to make proofEvidence not actually offered	510

Offer of evidence en masse proper practice	511

Deposition not to be segregated and read in parts 293 Error cannot be predicated on form of questions	515

MENT	517

Statutory provisionsGeneral rule as to parties applicable	522

Suggestion of test for determining who proper parties appel lant	523

Joinder on appeal a subject of but little importance	524

Further as to meaning of party aggrieved	525

Same subjectParties holding fiduciary relation	526

Further as to meaning of party aggrievedRule when judg ment shows no interest	527

Right of party recovering judgment to appeal	528

Transfer of interest as affecting right of appeal	529

Appeals by persons not original parties to action	530

Parties respondent CHAPTER 29	531

CHAPTER 16	532

The court must not give contradictory or inconsistent instruc tions 325 Construction of instructions 326 Exemptions and harmless invasions 327 The...	533

Form and requisites of notice	534

Signature to noticeHerein as to authority of attorney	535

On whom notice to be served	536

Meaning of adverse party as used in statutes	537

Further as to adverse partyFailure to appearFictitious parties	538

Purpose and meaning ofRelation to stay bond	544

An undertaking must be filed unless waived	545

Time for filingRelation to service and filing noticeExten sion of time	546

Deposit in lieu of undertaking	547

Undertaking required for each appealExceptions	548

Form and essential parts	549

As to what constitutes sufficient execution	550

Undertaking by surety companies	551

Dispensing with undertaking by stipulationWaiverEstop	552

Statutes dispensing with undertaking	553

Relief in appellate court from defects and omissions	554

The stay of execution a proceeding collateral to and independ ent of the appeal	555

Undertaking on appeal and stay bond distinguishedCases in which undertaking effects a stay	556

Stay of enforcement upon appeals from orders	557

Time for filing stay bond not limitedRelief with respect to in appellate court	558

Powers of lower court suspended after appeal taken	559

Failure to give the bond leaves lower court without power to stay execution	560

Effect of appeal upon injunctions	561

Effect of appeal upon order on motion to set aside judgment	562

Stay of waste in connection with possessory actionsFore closure suits	563

Where various forms of relief given by same decree	564

Effect of appeal upon lien of judgment	565

566 Effect of appeal upon attachment lien	566

Statutory changes	567

Effect of changingConsequences of failure of sureties to un dertaking to justify	568

569 Of the notice of justificationPower of court to shorten time	569

Of the proceeding to justify	570

With new sureties new undertaking necessary	571

Waiver of justification	572

No justification by surety company required	573

Stay pending proceeding to justify	574

Power of superior court with respect to undertakings in jus tices courts	575

Statutory provisions and their effect	576

The judgmentroll and other papers	577

Notice of appeal as part of recordProof of service	578

579 Statutory changes	579

General and special verdicts distinguished	580

Inconsistency between general and special verdict	581

Verdicts in equity cases	582

Correction of verdict by the court	583

Verdict must be within the issues	584

585 Uncertain informal and defective verdictsAmendment	585

Waiver	586

Comparison of trial by court alone and trial by court and jury	587

Statutory provisions and changesSystems of express and of implied findings distinguished	588

When findings implied under present system	589

Presumption of waiver of findings	590

591 Findings must respond to and dispose of the issues	591

600 How facts to be stated	600

Findings must not be contradictory	601

When findings of probative facts disregarded	602

Construction of findings	603

Agreed statement in lieu of findings	604

Findings by referee	605

Findings must be filed in proper time	606

Power of court over findings in case of mistake misappre hension	607

Power of court to amend findings	608

No findings required to support orders	609

Variance by proof contradicting negative allegations	610

Variance resulting from nonjoinder	611

Important function of bills of exceptions as part of the record	612

Methods of preparation and usesRelation to statement on appealStatutory changes	613

Method of settling bills at the trial	614

Further as to bills settled at the trial	615

Further as to bills settled after the trialPreparation and uses	616

Either the one or the other method must be pursued	617

How plaintiffs evidence considered on motion	618

Specifications	619

Same rules apply whether trial by court or jury	620

Of the judgment to which defendant entitled	621

How error in ruling cured or waived	622

Statutory changes	623

Exception to ruling on motion	624

DIVISION 2	625

Use of bills of exceptions for purposes of identification	626

The statutory designation of essential record on appeal	627

When additional bill of exceptions necessary	628

Statement and bill of exceptions compared	629

Identification of affidavits where motion for new trial made	631

General office of transcript	633

Printing transcripts	634

635 Arranging and indexing the transcript	635

AuthenticationBy stipulation	636

AuthenticationBy the clerk	637

What the transcript must contain	638

639 Shortening the transcript by abbreviation omission abridg ment and order of supreme court	639

640 Each appeal to be heard on its own transcript	640

Transcripts cannot be pieced out by reference to transcripts on file in other appeals	641

Filing and serving transcripts	642

Objections to transcript	643

Changing conclusions of	644

Surplusage in the transcript CHAPTER 39	645

Grounds for mostly jurisdictionalGeneral view of the sub ject	646

Want of jurisdiction of subject of appeal	647

Want of jurisdiction of parties	648

649 Failure to file or serve transcript	649

650 Defectiveness of transcript as ground for dismissal	650

Dismissal for failure to serve transcript	651

Loss of interest by appellant as groundWaiver of right to appeal	652

Dismissal of appeal prematurely taken	653

Failure of appellant to file points and authorities	654

Filing the notice 540 When notice may be served 541 How notice served	655

656 Who may move for dismissal	656

Motion to dismissHow made	657

Requisites of notice of intentionGenerally	658

Relief from default on ground of mistake inadvertence etc in response to motion to dismiss	659

Same Statement of movants intention	660

Same subjectConstruction of stipulations	661

Same Must designate grounds relied upon	662

Hearing and disposal of motionAppearance need not be lim ited	663

Hearing and disposal of motionWhen and to what extent record consulted	664

SameMust designate papers to be used on motion	665

Hearing and disposal of motionWhat considered outside transcript Form of presenting same	666

Hearing and disposal of motionUse of affidavits	667

SameMust be properly signed	668

SameShould contain address 372 Service and filing of noticeHerein of improper joinder	669

670 Limitation of discussion and illustration	670

Review limited by the record	671

Limiting review by stipulation or waiver	672

Court may consider matters not alluded to in argument	673

Objection to sufficiency of noticeHow and where to be made	674

Restriction of motion to particular issues	675

Limitation by consent	676

Limitation by estoppel equivalent to consent	677

Waiver of notice of intention or of the motionWaiver of defects	678

Amendment of notice	679

Modification of general rule in certain states	680

When no substantial conflict sufficiency or insufficiency of evidence is a proper question for review	681

No review of facts where decision is an inference from cir cumstances	682

Limitation by concession to discretion of trial court	683

CHAPTER 19	684

Conditional ordersPower of court to make 405 Conditional ordersEffect of performance and nonperformance of conditions 406 Rules of evidence ...	685

Further as to presumptions on appeal and their rebuttal	686

Presumptions in cases of statements and bills of exceptions	687

Limitation by rule that matter complained of must affect a party entitled to take an appeal and actually appealing	688

Limitation by rule that judgment or order not disturbed by immaterial or nonprejudicial matter	689

Scope of investigation in cases of judgment by default	690

Limitation by law of the case	691

Limitation resulting from doctrine of stare decisis	692

No limitation by reasoning of lower court	693

Scope of inquiry and decision cannot be enlarged by statute	694

Abortive legislative attempts to control herein	695

Oral argument	696

Points and authorities cannot be dispensed with	697

Duty of respondent to answer points	698

699 Appellant should make all his points in his opening brief	699

Points should not be reserved for petition for rehearing	700

Improper matter in briefsHow dealt with	701

Moot questions not decided	702

Form of rendering decisions	703

Succession of interest after appeal taken	704

Death of party before appeal takenBefore service of notice of motion for new trial	705

Succession in office	706

Effect of bankruptcy proceedings pending appeal	707

708 Stipulations in supreme court	708

Suspending rules of court by stipulation	709

Motions to strike	710

Generally as to power over judgments and orders appealed from	711

Power exercised in great variety of forms	712

Modification in various forms	713

Where judgment final in favor of appellant ordered	714

Same subjectEvidence not made the basis of order for judg ment	715

and heard on the minutes	716

Effect of reversal of judgment upon other proceedings in same	717

case 718 Conflicting orders in same caseConstruction of same	718

Effect of direction of appellate court upon power of lower court	719

Restitution on reversal	720

Frivolous appealsDamages	721

Damages upon dismissal of appeal	722

Costs on appeal	723

Belongs to inherent powers of courtConstitutional and stat utory provisions	725

Rehearing and hearing in bank distinguished	726

Proceedings for and upon rehearing and hearing in bank	727

Rehearings after decision in original proceeding	728

Motions to amend and to correct mistakes in the record	729

Disqualification of justices	731

Reargument on account of equal division of court	732

Court cannot substitute its opinion for verdict of jury	733

Effect of adjournment of term upon power of court to decide motion	734

Provisions governing civil cases generally applicable	735

Constitutional and statutory provisions	736

Appeals may be taken by either side	737

Of the record on appeal	738

Provisions limiting time for presenting bill of exceptions held to be merely directory	739

Presumptions arising upon the record	740

741 Presumption of injury from error	741

Disposal of the appeal	742

Effect of reversal on appeal by defendant	743

Scope and limits of jurisdiction	744

How takenEffect of appeal	745

Statement where appeal on question of law alone	746

Record on appealWhat constitutesHow transmitted	747

Security to respondentEffect of failure to provide	748

749 Disposal of appeal in superior court	749

Supervisory power of supreme court	750

751 Proceedings subsequent to final order in superior court	751

Knowledge of court how made available on motion	752

Disqualification of jurors as witnesses at hearing	753

The jurisdiction purely equitable and the suit an indirect at tack upon the judgment	754

Party seeking the relief must show diligenceHerein of laches	755

When a meritorious cause of action or defense must be shown	756

Must appear that party seeking relief would be benefited by a reexamination	757

Must offer to do equity	758

Rule that no relief granted upon grounds available in original suit	759

Remedy by motion or otherwise in court where action tried as	760

Concurrent remedies by motion and suit in equity further con sidered	761

410 Of the production of evidence at hearing	762

Fraud as ground for relief	763

Further as to meaning of extrinsic fraud	764

411 Of hearing before judge other than that trying the case	765

Mistake as ground for relief	766

Several new trials in same case	767

CHAPTER 20	768

Relief against void judgments 770 Further as to relief where no jurisdiction of the person	770

Relief granted for matters occurring after judgment	771

Bills of review	772

Parties to the action	773

Allegations must be specific	774

CHAPTER 21	778

or order appealed from	782

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18 Wash 21 Wash 26 Mont abuse of discretion affidavit alleged amendment appears application Ariz attorney Bank Brown California cause of action challenge City Civil Procedure Code of Civil Colo common law complaint constitutional counsel County criminal decision defendant defendant's disqualification effect entitled error Estate evidence figures refer filed granted ground held Idaho improper Iowa irregularity Johnson Jones judge judgment jurisdiction juror jury trial juryroom justice matter ment Minn misconduct motion N. Y. Supp opinion party Penal Code plaintiff pleadings prejudice proceeding proper prosecution provisions question reason refer to pages refusing rendered reversal rule sealed verdict separation showing Smith Southern Pac statute statutory sufficient Superior Court supreme court sworn Tenn testimony Thompson tion trial by jury trial court Utah verdict voir dire waived waiver witness

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Заглавие	A Treatise on New Trial and Appellate Practice: Presenting and Illustrating the Laws and Rules of Practice in Proceedings Subsequent to Decisions by Trial Courts, Including Final Disposition in Appellate Court, with Special Reference to the Code and Statutes of California, Idaho, Montana ..., Том 1 A Treatise on New Trial and Appellate Practice: Presenting and Illustrating the Laws and Rules of Practice in Proceedings Subsequent to Decisions by Trial Courts, Including Final Disposition in Appellate Court, with Special Reference to the Code and Statutes of California, Idaho, Montana, Nevada, North Dakota, Oregon, South Dakota, Utah, Washington, Wyoming, and the Territories of Arizona and New Mexico, Thomas Carl Spelling
Автор	Thomas Carl Spelling
Издател	Bancroft-Whitney, 1903
Брой страници	1754 страници

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