PARTITION.
See Co-TENANCY.
PARTNERSHIP AGREEMENT REDUCED TO WRITING, BUT NOT EXECUTED by the partners, is not evidence of the terms and conditions of the partner- ship. Tweed v. Lowe, 488.
See PLEADING AND PRACTICE, 15, 24.
1. CERTIFICATE OF PROBABLE CAUSE SHOULD NOT BE GIVEN BY COURT, where the facts in the case show no reasonable cause for making the seizure. United States v. Bichard & Co., 31.
2. OBJECTION THAT NOTE SUED ON WAS INSUFFICIENTLY STAMPED can not be raised for the first time in the supreme court. Irvine v. Lopez, 81.
3. CLERK HAS NO POWER TO ENTER JUDGMENT BY DEFAULT AFTER ANSWER has been filed, although such answer may be informal or insufficient. Any answer filed in the cause suspends the clerk's power to declare the de- fendant's default and to enter judgment, and its value as a pleading can be determined by the court only. Porter v. Bichard, 87. 4. JUDGMENT BY DEFAULT ENTERED BY CLERK AFTER ANSWER FILED should be set aside by the court. Id.
5. VERIFICATION OF ANSWER DOES NOT IMPAIR ITS EFFECT as a pleading, although it is made in a case where the law does not require the answer to be verified. Id.
6. OBJECTIONS, WHAT THE RECORD MUST SHOW IN REFERENCE TO.-Where a party objecting is overruled and he appeals, he must show by the record: 1. What the question was and what answer was given to it, or what the evidence was which was introduced against his objection. 2. He must set out enough of the evidence to illustrate the point of his objection, and to raise the presumption that he may have been injured; but where error is shown, injury will be presumed, unless the contrary clearly ap- pcars. 3. He must show what kind of an objection was made, and, to avail him in the supreme court, he must show that the objection, as made, was good. Rush v. French, 99.
7. ID.—Where the party objecting is sustained and the other side appeals, the appellant must show by the record: 1. What question he asked, and what evidence he sought to introduce. 2. Sufficient of the other evi- dence to illustrate the admissibility of that offered. 3. That the evi- dence so offered was excluded. 4. That there is reasonable ground to presume that he may have been injured by such exclusion. Id.
8. SUPREME COURT WILL CONSIDER ONLY SUCH GROUNDS OF OBJECTION as
were urged in the court below. Such objection must be specific, not general. It is error to sustain a general objection, unless it is impossible that the evidence offered can be material in any view of the case, and this impossibility must be apparent. Id.
9. OBJECTION THAT TESTIMONY OFFERED IS IRRELEVANT, INADMISSIBLE, OR INCOMPETENT, without specifying wherein or how, or why it is irrele- vant, inadmissible, or incompetent, will not be considered in the supreme court as raising any issue, if the testimony could, under any possible circumstances, have been relevant, admissible, or competent. Id.
10. IT IS NOT ERROR TO REFUSE INSTRUCTION HAVING NO RELEVANCY to any question involved in the issue. Whether or not it is error to give such an instruction depends upon whether it is calculated to mislead the jury or not. Id.
11. WHERE ERROR IS SHOWN, INJURY IS PRESUMED, unless the contrary plainly appears. Id.
12. LEGAL TERMS MUST NOT BE USED IN INSTRUCTIONS WITHOUT EXPLA- NATION. Id.
13. TO INSTRUCT JURY THAT THERE MUST BE PREPONDERANCE OF EVIDENCE in favor of a party to entitle him to a verdict is not error. Shivers, 161.
14. EXCEPTION MUST REFER TO SOME PORTION OF THE EVIDENCE in a case, in order to be of any avail to the party who makes it. Id.
15. WHERE TWO PERSONS DOING BUSINESS AS PARTNERS AGREE IN WRITING that, in case of the death of either of them, the survivor shall settle the business of the partnership, and after paying the just debts of the part- nership and of the deceased, shall have all the remaining property of every kind for his sole use and benefit, without any process of law what- soever, accounting only to the creditors of the partnership and of the deceased partner, a complaint filed, after the death of one of the parties, in the district court by the survivor, setting up the agreement and asking that the administrator of the deceased party be required to turn over to him all the property in his possession belonging to the estate of the de- ceased, and offering, on the part of the plaintiff, to perform all the terms and conditions of the agreement, is not demurrable on the ground that it does not state facts sufficient to constitute a cause of action. Eldred v. Warner, 175.
16. APPEAL DOES NOT LIE TO SUPREME COURT FROM JUDGMENT of a district court rendered by it on an appeal from a justice's court, when the amount of the judgment does not exceed two hundred dollars. Grounds v. Ralph, 227.
17. WHERE APPEAL IS FROM JUDGMENT ONLY, the judgment roll is the only thing that can be considered by this court, no matter how many other papers the clerk may choose to embody in the transcript. And if no error appear in the judgment roll, the appeal will be dismissed. Id. 18. COMPLAINT IN ACTION TO ENFORCE CONTRACT OF MARRIED WOMAN need not allege that she is of the age of twenty-one years or upwards. If the defendant is under that age, she may plead that fact as a matter of defense, but a failure to aver in the complaint that she is of that age is not ground for a general demurrer. Miller v. Fisher, 232.
19. COMPLAINT MERELY ALLEGING THAT DEFENDANT USED PERSONAL PROP- ERTY of the plaintiff with the latter's permission, and that such use is reasonably worth a sum claimed, does not state facts sufficient to con- stitute a cause of action, and a general demurrer thereto is properly sus tained. Davis v. Breon, 240.
20. PARTIES TO ACTION CAN NOT STIPULATE WHAT THE LAW IS that is to govern their case; nor can they stipulate what the action of a law-making body was in a given case, and from the stipulation thus made ask the court to determine whether a general law is or is not in force. Graves v. Alsap, 274.
21. FILING OF ANSWER WILL NOT BE PERMITTED AFTER DEFAULT, unless the defendant satisfies the court, in some way, that there is reasonable ground to presume that he has a valid defense to the action. United States v. Barnard, 319.
22. IT IS NOT ERROR FOR COURT TO INSTRUCT JURY upon their returning into court and asking for further instructions, although defendant's counsel is not at the time present, provided the defendant himself is present. Torque v. Carrillo, 336.
23. VERDICT OF JURY MAY BE RECEIVED IN ABSENCE OF COUNSEL for the defendant.
24. IN ACTION AGAINST SURVIVOR OF TWO MAKERS OF PROMISSORY NOTE,
after evidence that a partnership existed between them has been intro- duced, it is not error for the court to instruct the jury that if they believe that the defendant had been notified that such note was out, signed by himself and the deceased, and that when called on to pay the note he did not deny the authority of the deceased to make it, but on the con- trary, promised to pay the same, then the defendant is liable on the note. Murphy v. Whitlow, 340.
25. WHERE PARTY INTRODUCES TESTIMONY, HE CAN NOT AFTERWARDS OBJECT TO IT on the ground that it is irrelevant. Nor can he object to the court's instructing the jury in reference to it, for if it is really irrelevant, there is all the more reason why the court should comment upon it so far as to prevent the jury from being misled by it. Id.
26. MANNER IN WHICH JUdge DelivereD HIS CHARGE TO THE JURY will not be considered on appeal to this court, unless it was made a ground of the motion for a new trial, and was supported by affidavit. Id.
27. UNLESS NOTICE OF APPEAL IS FILED WITHIN ONE YEAR from the date of the rendition of the judgment appealed from, the appeal will not be en- tertained by the supreme court. Fleury v. Jackson, 361.
28. APPEAL FROM ORDER DENYING NEW TRIAL CAN NOT BE SUSTAINED when the order from which the appeal is taken is not brought before this court in the record. Id.
29. OBJECTION THAT SPECIAL ISSUES SUBMITTED TO JURY did not cover all the issues in the case can not be taken for the first time in the supreme court. Sandford v. Moeller, 362.
30. UNLESS STATUTORY REQUIREMENTS RELATING TO STATEMENT ON APPEAL ARE COMPLIED WITH, such statement will not be noticed on appeal, and the right to present such statement will be deemed to have been waived. Id.
31. BILL OF EXCEPTIONS MUST ACCOMPANY THE TRANSCRIPT in all cases of appeal. Territory v. Selden, 381.
32. APPEALS FROM JUSTICE'S COURT TO DISTRICT COURT MUST BE PERFECTED within thirty days from the rendition of the judgment. The provisions of the statute providing for such appeals are mandatory. Zeckendorf v. Zeckendorf, 401.
33. MERE NON-APPEARANCE OF FINDINGS OF FACT IN THE RECORD ON AP- PEAL is not sufficient to show that error was committed at the trial. Lount v. Lount, 422.
34. ERROR WILL NOT BE PRESUMED, but must be affirmatively shown. Id. 35. APPELLATE COURT WILL NOT DISTURB FINDINGS OF FACT BY TRIAL COURT, where there is substantial evidence to sustain them, unless errors of law
have occurred, requiring a reversal. Tombstone Mill and Mining Co. v. Way-up Mining Co., 426.
36. DEFENDANT IN DEMURRING TO COMPLAINT FOR FAILURE TO STATE FACTS SUFFICIENT to constitute a cause of action, and specifying in his demurrer certain grounds of insufficiency, can only rely upon the defects specified. It is otherwise if the demurrer is general, and without specification. Lopez de Lopez v. Central Arizona Mining Co., 464.
37. CAUSES OF ACTION, STATEMENT OF.-In an action on several bills of ex- change, all bearing the same date, payable to the same party, due at the same time, the better practice is for the complaint to contain a separate statement on each bill. If, however, the complaint contains but a single statement, an order overruling a demurrer thereto will not be disturbed. Dawson v. Lail, 490.
38. COSTS OF PROTEST OF INLAND BILL.-The allowance of costs for the pro- test of inland bills of exchange is not reviewable on appeal, when no motion to retax costs was made in the lower court. Id.
39. JUDGMENT FOR PLAINTIFF ON THE PLEADINGS can not be rendered when the answer denies any of the material allegations of the complaint, or sets up new matter constituting a defense. Miles v. McCallan, 491. 40. FINDINGS SHOULD BE CONFINED TO CONTESTED FACTS and determined from the evidence. Findings as to facts admitted by the pleadings are unnecessary. Id.
41. ADMINISTRATOR MAY MAINTAIN POSSESSORY ACTION to recover real es- tate of his intestate, to the possession of which the law gives him the right, without alleging in his complaint any possession or right of pos- session in the intestate. Oury v. Duffield, 509.
42. ERROR MUST BE AFFIRMATIVELY SHOWN in order to justify an appellate court in reversing a judgment. Federico v. Hancock, 511.
43. APPELLATE COURT CAN NOT DETERMINE WHETHER FINDING IS SUSTAINED by the evidence or not, where the record on appeal contains none of the evidence. Id.
44. FINDINGS ARE CONCLUSIVE AS TO THE FACTS, when no motion for a new trial has been made.
45. PARTY ALLEGING ERROR MUST POINT OUT SPECIFICALLY in what the error consists, and wherein it occurred. A general allegation of error is never sufficient. Id.
46. EXCEPTIONS MUST BE TAKEN AT TRIAL IN COURT BELOW, or they can not be regarded by the supreme court. Id.
See CRIMINAL LAW; EJECTMENT, 2; EQUITY; HABEAS CORPUS; JUDGMENTS; NEGLIGENCE, 1, 2.
POSSESSORY RIGHTS.
See EJECTMENT, 1; PUBLIC LANDS, 1.
PRESUMPTION IN FAVOR OF REGULARITY OF ORDER OF COURT does not arise in a case where the order is made in a matter over which the court has no jurisdiction. Territory v. Mix, 52.
See ADMINISTRATORS; COMMUNITY PROPERTY; CRIMINAL LAW, 7; PLEADING AND PRACTICE, 11, 21, 34.
PROBABLE CAUSE.
See PLEADING AND PRACTICE, 1.
1. No APPEAL LIES FROM PROBATE COURT DIRECTLY TO SUPREME COURT. All appeals from the probate court must be taken to the district court. Estate of Roddick, 411.
2. DISTRICT COURTS HAVE NO POWER TO APPOINT ADMINISTRATORS of estates of deceased persons. In probate matters their jurisdiction is purely ap- pellate. The power to appoint administrators belongs exclusively to the probate courts. Territory v. Mix, 52.
1. ESSENTIAL LEGAL REQUISITES OF POSSESSORY RIGHT TO PUBLIC LANDS in Arizona, are the intention of the settler to permanently occupy and im- prove them for his home, and the manifestation of that intention, as early as practicable, by such improvements and badges of ownership as make it known to others. And any settlement, cultivation, or improve- ment, in pursuance of this intention, is sufficient to secure this right to the occupant, and to enable him to maintain ejectment against any one who disturbs him therein. Davis v. Simmons, 25.
2. FACT THAT TRACT OF LAND CLAIMED BY SETTLER IS ONE MILE LONG, and only one fourth of a mile in width, does not invalidate his claim, or jus- tify another in appropriating any portion of it. Id.
3. OFFER OF CLAIMANT OF LAND TO BUY HIS PEACE is not, if rejected, the surrender of any legal advantage, or the admission of an adverse claim. Id.
See CRIMINAL LAW, 14, 15.
See ESTATES OF DECEASED PERSONS.
RECORDING.
See MINING CLAIMS, 8.
RENTS AND PROFITS OF WIFE'S SEPARATE PROPERTY are her separate property, and if she invests them in the purchase of other property, the property so purchased will be separate property, under her sole and exclusive control. Charauleau v. Woffenden, 243.
STATEMENT ON APPEAL. See PLEADING AND PRACTICE, 30.
STATUTE OF LIMITATIONS.
See ADVERSE POSSESSION,
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