Abatement. See APPEARANCE.
In an action for balance due upon an account the defense
presented was that of payment. The testimony was con-
flicting. This question of fact was decided by the jury in
favor of defendant, upon evidence which was held sufficient
to sustain the verdict. The judgment, therefore, was not
molested. Colton & Co. v. Shaffer......
1. In case stated, Held, That no action could be maintained
upon appeal bond, for the reason that there was no judgment
rendered in the county court; that the attempted appeal
was void and the appeal bond a nullity. Brounty v. Lan-
iels.........
2. Against defendants residing in different counties; sum-
mons; dismissal of action; jurisdiction. Cobbey v. Wright.. 250
Action Quia Timet.
Plaintiff instituted action to quiet his title to certain real
estate, to which defendants claimed title through a line of
conveyances originating in a sheriff's deed and on exe
cutions against plaintiff. The deel to defendants from
their grantor, by error in description, included a part of
plaintiff's land not included in the sheriff's deed. Held,
That plaintiff was entitled to a decree quieting his title
to that part not conveyed by the sheriff.
2. Under facts stated, Held, That plaintiff could not main-
tain an action to quiet his title against subsequent pur-
chasers of the real estate for value, upon the ground of
fraud and conspiracy on the part of his attorney with the
attorneys for the execution plaintiffs, without proving that
the defendants had knowledge of such alleged fraud prior
to their purchase of their land and the payment therefor,
even though they held title by deed which did not con-
tain the usual covenants of warranty. Id.............
1. The building of a few rods of fence, the cutting of a few
brush, or plowing of a few furrows upon land will not
constitute such acts of possession as to entitle a party to
maintain forcible entry and detainer against a tenant who
has been in possession for more than one year under a
written lease from one who claimed adversely to the
plaintiff. Galligher v. Connell...................................
2. In case stated, Held, That judgment against plaintiff's
interrupted the continuity of adverse possession.
v. Patrick.........
3. Duplicate receipt of receiver of United States land office
is sufficient color of title under which party may hold ad-
verse possession. Id.........................
4. Where a party entering land has complied with the law
in all respects to entitle him to a patent therefor, he is the
owner of such land, and until the patent issues the title is
held by the United States merely as trustee for his use,
and the statute of limitations will run against the party
entering the land, or his grantee, in favor of one holding
adversely, from the date of such entry. Id.................... 835
1. In case stated, Held, That defenses set up were not incon-
sistent. Stubendorf v. Hoffman............................
2. Where it is sought to enjoin a judgment upon the ground
that plaintiff has a defense to the action, and it would be
inequitable and unjust to enforce the judgment, the facts
constituting the alleged defense must be pleaded, and it is
not sufficient to merely allege that plaintiff had such a
defense. C., B. & Q. R. R. Co. v. Manning................
1. In case stated, Held, That no action could be maintained
upon appeal bond, for the reason that there was no judg-
ment rendered in the county court; that the attempted
appeal was void and the appeal bond a nullity. Brounty
v. Daniels...........................
From judgment of justice of the peace; neglect of appel-
lant to file transcript in district court; appellee may file
transcript, docket cause, and obtain judgment in his favor,
and in so doing is not limited to "the same term " at which
appellant first became in default. Wilson v. Wilson......... 455
3. Under sections 1008 and 1011 of the code as it existed in
1886, appellant had thirty days from rendition of judg-
ment in which to file transcript in district court, and until
the second day of the next term of district court, after
the thirty days. Johnson v. Van Cleve.......
4. Where a transcript is filed by either party on or before the
thirtieth day, or on or before the second day of the first
term of the district court occurring after such thirtieth day
after the rendition of the judgment, the court will thereby
acquire jurisdiction of the case. Id.........
A defendant in an action not legally served with process,
but against whom a judgment by default has been entered,
may appear specially and pray the court to set aside such
judgment of default, and upon such default being opened,
enter a plea in abatement to the jurisdiction of the court,
without being held to have made a general appearance in
the action. Cobbey v. Wright........
1. Of contract in case stated. Daugherty v. Gouff............. 105
2. Of chose in action; evidence of assignee. Grimes v. Can-
nell.........
Where defendant denies the truth of the allegations in
affidavit for attachment, and an inquiry is made thereon
by the district court upon affidavits filed by both parties,
and in which there is a conflict, a reviewing court will not
reverse the decision of the district court upon the facts,
unless the decision was clearly wrong. In such case the
same rule must be applied as would be had there been a
trial. Johnson & Co. v. Steele..........
2. Where a sheriff has levied certain attachments upon
goods of a debtor, the aggregate amount of the attach-
ments being about $3,517, and the goods were taken from
him in an action of replevin, and on the trial of the latter
action a verdict was returned in his favor in the sum of
$4,000, Held, That the value of the interest of the sheriff
in the goods was the amount of the attachments, with in-
terest thereon, and costs, and that the court had authority
to require him to remit the excess. State v. Kinkaid....... 641
Attorneys.
1. Alleged fraud and conspiracy in cases stated. Lavender
v. Holmes
New trial on ground of neglect of attorney; discretion
of court. Bernstien v. Brown......
3. Where an attorney enters into a contract with a client to
prosecute an action to final judgment for a stipulated sum,
and such attorney employs a second one to assist him in
the case, the client will not be liable for fees for such sec-
ond attorney, unless he in some manner requests his em-
ployment or retention in the case. Sedgwick v. Bliss........ 617
4. In case stated, Held, That client was
attorneys employed to assist in the case.
5. Fees not recoverable in action of tort.
der.
liable for fees of
Id.................. 617
Winkler v. Roe-
Arguments of counsel in criminal cases.
Discretion of county board in examination and payment
of claim for services of attorney in defending indigent
prisoner. County of Boone v. Armstrong...........
Auditor of Public Accounts.
It is not the duty of the auditor of state to register or certify
bonds issued by virtue of such election, and a writ of man-
damus will not issue to require him to do so. State v. Bab-
cock............
1. Will not be dismissed upon the ground that it was not
presented to trial judge for his settlement and allowance
within ten days from its return to the party seeking allow-
ance of bill by opposite party, unless it shall appear that
bill was not presented to such judge within fifteen days,
or such additional time, not exceeding forty days from
the adjournment of the court sine die, as might have been
allowed by the court, and twenty days additional, making,
in a case of full extension of the time allowed for the
completion of the bill, sixty days in all. Sherwin v. O'Con-
2. Objections to matters of form, by which it is sought to
quash the bill, must be made within a reasonable time
after bill is filed in appellate court; and where not made
for more than a year after filing of transcript, and after
case is set for trial and plaintiff has prepared and printed
briefs on the main issue, such objections will be deemed to
be waived. Yates v. Kinney..........
1. In case stated, Held, That no action could be maintained
upon appeal bond, for the reason that there was no judg
ment rendered in the county court; that the attempted
appeal was void and the appeal bond a nullity. Brounty
v. Daniels.......................
2. A coroner, sheriff, or constable having served an order of
replevin of personal property, under the provisions of
chapter 11, of title 30, of the civil code, is not bound to
receive or accept as sufficient an undertaking as provided
for by section 1037 of said code, unless the same is exe-
cuted by one or more sufficient sureties who are residents
of the county in which the action is pending. State v.
Wait........
|