APPEAL (Continued). party aggrieved by a judgment is given the election of appealing directly within sixty days from the entry of the judgment, or, if he desires to move either for a new trial or to vacate the judg ment in the trial court, he may do so. If he does so within the sixty days allowed for an appeal, the time within which he may appeal is extended automatically until thirty days after the determination of the new trial proceedings, but no such extension of time is made in the statute because of the pendency of proceedings to vacate the judgment on the ground that the conclusions of law are not supported by the findings. (Id.) 21. TIME TO MOVE FOR NEW TRIAL.-The losing party is not required to move for a new trial until he receives notice of the entry of judgment unless he waives such notice; but he is not required to wait until he receives the notice of entry, but may give notice of his intention to move for a new trial at any time after judgment. Of his own motion, therefore, he may extend the time within which to appeal by serving notice of motion for a new trial at any time within the sixty-day limitation for appeal, even though he has not received notice of the entry of judgment. (Id.) 22. EXPIRATION OF APPEAL PERIOD PRIVILEGE OF APPEALING TERMINATED.-lf, at the expiration of the sixty-day period within which an appeal might have been taken, no notice of intention to move for a new trial has been given, the time to appeal from the judgment elapses, and the privilege of appealing from the judgment or of having a new trial order reviewed on appeal terminates. (Id.) 23. LIMITATION OF TIME TO APPEAL-CONSTITUTIONAL LAW-PROVINCE OF LEGISLATURE.-Section 939 of the Code of Civil Procedure, as thus construed to limit the right of appeal to the sixty-day period if new trial proceedings are not instituted within that period, is not unconstitutional as in violation of section 1 of article XIV of the constitution of the United States. The matters of motions for new trial and appeal are entirely within the control of the legislature. It might altogether abolish the right to move for a new trial, as it has abolished the privilege of appealing from an order made upon a motion for a new trial. (Id.) 24. FAILURE TO APPEAL WITHIN TIME-FINALITY OF JUDGMENT— RES ADJUDICATA-JURISDICTION.-When the party aggrieved fails within sixty days after the entry of judgment either to appeal or to commence proceedings for a new trial, the judgment becomes final for all purposes at the expiration of the sixty-day period. The matters determined are res adjudicata; and an appeal from such a judgment is not within the provisions of the statute, and vests no jurisdiction in the appellate court. (Id.) APPEAL (Continued). 25. RIGHTS OF PARTIES ASCERTAINED MODIFICATION OF JUDGMENT.— Where, on appeal, it conclusively appears that the rights of the parties have been fully ascertained, and that the trial court simply erred by the entering of an erroneous judgment, it is the duty of the appellate court to modify the judgment so as to finally settle the controversy, and render another trial unnecessary. (Burke v. Norton, 705.) 26. CONFLICTING EVIDENCE-FINDING APPEAL.-Where there is a con flict in the evidence on a given issue and there is any evidence, though scant, in support of the finding of the trial court, such finding is not subject to review by the appellate court. (Pacific Mfg. Co. v. Rasmussen, 742.) 27. ORDER DENYING NEW TRIAL NOT APPEALABLE. Since the amend ment of 1915 to section 963 of the Code of Civil Procedure, an See Agency, 7; Contracts, 25, 42; Criminal Law, 18, 19, 41, 44, ARGUMENT. See Criminal Law, 46. ARREST. See Criminal Law, 9. ASSAULT. See Criminal Law, 48. ASSESSMENTS. See Reclamation Districts, 1-7, 12; Street Law, 12, 14-19, 21; Taxation, 1, 2. ASSUMPSIT. WITHHOLDING OF MONEY DUE ANOTHER-REMEDY.-Where one person has money which he has admitted belongs to another, and which he has promised to pay, assumpsit is the proper remedy to recover the same. (Hoffman, Inc., v. Bernstein F. Prod., 12.) ATTORNEY AT LAW. See Criminal Law, 75. ATTORNEY'S FEES. See Guaranty, 3; Statute of Limitations, 2, 3. AUTOMOBILES. See Municipal Corporations, 1; Negligence, 1; New Trial, 3. BANKS AND BANKING. LIABILITY OF STOCKHOLDERS TO CREDITORS ENFORCEMENT BY SUPERINTENDENT OF BANKS-BANKING ACT UNCONSTITUTIONAL-The pro BANKS AND BANKING (Continued). vision of the Bank Act purporting to authorize the state superintendent of banks, in his official capacity, to enforce the constitutional liability of stockholders to creditors is void as being obnoxious to the provisions of section 24, article IV, of the constitution, which provides that every act shall embrace but one subject, which shall be expressed in its title. (Williams v. Carver, 382.) BREACH. See Contracts, 23. BRIDGES. See Negligence, 46-48; Waters and Watercourses. BROKER'S COMMISSIONS. 1. TERMINATION OF CONTRACT OF EMPLOYMENT EVIDENCE.-In this action by a real estate broker against a land owner to recover commissions for procuring a purchaser for land under a written contract of agency, the correspondence introduced in evidence failed to show a revocation or cancellation of the contract of employment. (U. S. Farm Land Co. v. Darter, 292.) 2. PROCURING OF PURCHASER-PERFORMANCE OF SERVICES SUBSEQUENT INSOLVENCY OF PURCHASER.-The services of a real estate broker are fully performed and his commission fully earned when he has procured a purchaser ready and willing to enter into a valid contract of sale upon the terms fixed by the owner. The subsequent insolvency of the purchaser so procured by the broker after the sale of the property has been completed cannot defeat the recovery of the broker's commissions. (Id.) 3. SALE AT LOWER PRICE-RIGHT TO COMMISSIONS.-When a principal makes a sale to a purchaser found by the broker, having availed himself of the broker's services, he is liable for commissions, though the sale is made at a lower price than originally proposed by him to the broker. (Id.) 4. DISSATISFACTION WITH PURCHASER-DUTY OF LAND OWNER.If the land owner is dissatisfied with the purchasers secured by the broker, he should notify the broker to that effect or decline to enter into the contract of sale, but where he accepts them as worthy of confidence, without being misled in any respect by the broker, he is bound to pay for said services. (Id.) BUILDING CONTRACTS. ORNAMENTAL PLASTERING-WATERPROOFING CONSTRUCTION OF CON TRACT.- BUILDING CONTRACTS (Continued). head of "Ornamental Plastering," in the absence of evidence that waterproofing is not a process customarily included in the work of ornamental plastering. (Schmohl v. John Simpson & Co., 61.) CHARTERS. See Offices and Officers; Street Law, 3-6. CHECKS. See Criminal Law, 1. COLLATERAL ATTACK. See Reclamation Districts, 11. COLLUSION. See Divorce, 14-16. COMMON LAW. See Pleading, 2. COMMUNITY PROPERTY. See Estates of Deceased Persons, 8. COMPENSATION. See Mechanics' Liens, 4; Offices and Officers; Public Officers, 1, 8-12. CONDITIONS. See Criminal Law, 23; Deeds, 2; Sales, 3, 5. CONFISCATION. See Street Law, 19. CONSIDERATION. See Contracts, 49; Vendor and Vendee, 3. CONSPIRACY. See Criminal Law, 32, 33. CONSTITUTIONAL LAW. 1. DUE PROCESS CLAUSE-PURPOSE AND SCOPE.-The purpose of the constitutional guaranty that property shall not be taken without due process of law is to exclude arbitrary power from every branch of the government. It is a restraint upon the legislative, executive, and judicial departments. (Hutchinson Co. v. Coughlin, 664.) 2. DEFINITION OF DUE PROCESS OF LAW.-While it is impossible to define with precision "due process of law," it is the exact equivalent of the law of the land as used in the Magna Carta, and, broadly speaking, it means that before a man's life or liberty or property may be taken by the state, he must be given notice of the proceedings which may terminate in the taking, and be given an opportunity to be heard in his own defense. It means further that the notice shall be a real and reasonable one, and the hearing, such as ordinarily or at least reasonably, is given in similar cases. (Beck v. Ransome-Crummey Co., 674.) 3. SUFFICIENCY OF COMPLIANCE WITH STATUTE. The law of the land does not necessarily mean simply statutory law, for no state can make everything due process of law, which by its own legislation it declares to be such. On the other hand, if the statute re CONSTITUTIONAL LAW (Continued). quires as the initial step in the process of depriving a man of his See Appeal, 23; Banks and Banking; Criminal Law, 35-38; CONSTRUCTION. See Appeal, 14; Contracts, 10, 12, 27, 37; Criminal Law, 43; Wills, 1, 2. CONTINUANCES. See Divorce 9. CONTRACTS. 1. ACTION FOR DAMAGES FOR REPUDIATION-EVIDENCE-CONTRACT NOT CONSUMMATED.-In this action for damages for the alleged repudiation of a contract for the sale of twelve carloads of crude glycerine, the letters and telegrams passing between the defendant and certain middlemen, acting as brokers for the purpose of purchasing the product in question for the use and benefit of the plaintiff did not amount to a completed agreement for the sale of said product, and the defendant was within its rights in withdrawing from the negotiation before the parties arrived at and consummated a final and binding contract in the premises. (Marx & Rawolle v. Standard Soap Co., 32.) 2. PERFORMANCE TO SATISFACTION OF PROMISE-REFUSAL TO ACCEPTGOOD FAITH.-When a contract requires certain work to be done to the satisfaction of the person contracting for it, and the work is of a kind that involves fancy, taste, sensibility or judgment, and no benefit passes under the contract unless the work be accepted, the promisee's refusal to pay for the work cannot be called in question, provided only that his refusal is in good faith and not from mere caprice. In cases of that character, the question is not whether the one complaining of the work ought to be satisfied, but solely as to the good faith of the dissatisfaction alleged. (Bruner v. Hagyi, 97.) 3. PERFORMANCE OF WORK GOING INTO BUILDING RETENTION OF BENEFITS-MEASURE OF SATISFACTION.-Where the work contracted for goes into a building, the fruits of the labor of the contractor being retained by the owner, a stipulation in the contract to perform to the satisfaction of the owner calls for only such performance as is satisfactory to a reasonable person. It is sufficient if the contractor completes. his work in accordance with the contract in such a manner that the owner, as a reasonable man, ought to be satisfied with it. (Id.) |