INDEX.

ABATEMENT OF ACTION.

PROCEEDING AGAINST PUBLIC OFFICER-DEATH OF OFFICIAL.-In view of
the provisions of section 385 of the Code of Civil Procedure, a pro-
ceeding in mandamus against a city clerk and auditor in his official
capacity to enforce payment from the city of money intercepted
pursuant to section 710 of such code, does not abate upon the death
of such official, but may be prosecuted against his successor in office.
(Ott Hardware Co. v. Holmberg, 402.)

See Vendor and Vendee, 1.

ACCOMPLICES. See Criminal Law, 7.

ACCOUNTING. See Contracts, 14.

ACCOUNTS. See Contracts, 32; Trusts, 1.

ACCOUNT STATED.

1. ORAL ACKNOWLEDGMENT OF DEBT-RUNNING OF STATUTE OF LIMITA-
TIONS.-Where the acknowledgment of a debt is not in writing, the
statute begins to run against the account stated from the date of
the settlement, and an action must be brought within two years after
such settlement. (Craig v. Lee, 335.)

2. CORRESPONDENCE CONCERNING LEGAL SERVICES-INSUFFICIENT PROOF
OF ACCOUNT STATED.-A stated account for legal services is not shown
by the fact that in answer to letters inclosing bills for such letters,
the debtor made reply that he expected to receive some money at an
early date, and that when funds were available he would endeavor
to "adjust" the account. (Id.)

ADMISSIONS. See Innkeepers, 5; Pleading, 7.

AFFIDAVITS. See Injunction, 2.

AGENCY. See Corporations, 13, 14; Mortgages, 3; Parent and Child, 1.

ALTERATION OF INSTRUMENTS. See Promissory Notes, 7.

AMENDMENT. See Criminal Law, 8; Promissory Notes, 1.

(823)

APPEAL.

1. FINDINGS-REVIEW.-Where findings derive support from evidence which is not upon its face unbelievable, the facts found must be accepted by a reviewing court as having been proved. (Nelson v. Colton, 69.)

2. RULING ON DEMURRER.-The statute does not confer the right of appeal from a judgment or order sustaining or overruling a demurrer to a complaint. (City of Napa v. Maxwell, 103.)

3. RECORD PRESUMPTION.-On an appeal from an order setting aside an order opening a default, where only a typewritten transcript on appeal has been filed, it will be assumed that the appellants have printed in their briefs such portions of the record as they desire to call to the attention of the court, and the court will confine its statement of facts to the matters thus brought to its attention. (Perkins v. Edinburg, 116.)

4. ORDER VACATING ORDER OPENING DEFAULT-RECORD-PRESUMPTION. On an appeal from an order setting aside an order opening a default, where the record does not show the facts, the court will assume that they supported the ruling, since they may have been in dispute, or entirely favorable to the plaintiff. (Id.)

5. FAILURE TO FILE BRIEF OR APPEAR AT ORAL ARGUMENT-AFFIRMANCE OF JUDGMENT AND ORDER.-The judgment and order denying a new trial are affirmed on this appeal, no brief having been filed on behalf of appellants and no appearance made by them at the time set for oral argument. (Winkler v. Sierra Park Co., 119.) 6. RECORD AFFIRMANCE OF JUDGMENT.-An appeal from a judgment rendered on writ of certiorari must be affirmed where the only record on appeal is in the form of a typewritten transcript and no part of it is printed in the brief. (Anderson v. Recorder's Court, 123.)

7. RECORD-AFFIRMANCE OF JUDGMENT.-A judgment will be affirmed on appeal where there is on file only a typewritten transcript setting forth the judgment-roll in the action, and no points and authorities in support of the appeal are on file. (Solomon v. Justices' Court, 152.)

8. INSUFFICIENCY OF EVIDENCE-REVIEW-SPECIFICATIONS.-On an appeal from a judgment presented on the judgment-roll and a brief bill of exceptions, the insufficiency of the evidence to sustain the findings cannot be considered, where the bill of exceptions contains no assignment of error, either in general or particular terms. (Smith v. Meade, 173.)

9. NOTICE-ACKNOWLEDGMENT OF SERVICE-WAIVER OF DEFECTS.-A notice of appeal signed by the attorney in fact for the appellant instead of by the attorney of record, is sufficient, where service of notice is acknowledged by respondent's attorney, such acknowledg

APPEAL (Continued).

ment being a waiver of objection that notice of substitution of attorney had not been served. (Bashore v. Lamberson, 233.)

10. AMENDMENTS TO PLEADING FAILURE TO OBJECT IN TRIAL COURT.Objection as to change of parties plaintiff, and that leave of court was not obtained to file amended complaints, cannot be raised for the first time on appeal. (Id.)

11. TYPEWRITTEN TRANSCRIPT SCOPE OF REVIEW.-Where the only record on appeal from a judgment consists of a typewritten transcript, the court need not go further than to those portions of the record which have been printed in the briefs, since it is presumed. that by their briefs counsel have submitted all portions of the record which they desire to call to the attention of the court. (Rattray v. Wickersheim Implement Co., 253.)

12. TYPEWRITTEN

AS TO RECORD.-On an

TRANSCRIPT-ASSUMPTION appeal from a judgment taken under the alternative method, where only a typewritten transcript is filed, the appellate court will assume that the parties have printed in their briefs such portions of the record as they desire to call to the attention of the court, and the court's statement of facts will be confined to matters thus brought to its attention. (Blochman etc. Bank v. Ketcham, 284.) 13. MODIFICATION OF JUDGMENTS-JURISDICTION OF DISTRICT COURT OF APPEAL. The district court of appeal, before its judgments become final or before the causes in which such judgments are rendered are transferred to the supreme court upon petition, has the right or jurisdiction to modify its judgments, or set them aside if for good reasons such a course is required. (People v. Para, 292.)

14. ALTERNATIVE METHOD REVIEW OF TYPEWRITTEN TRANSCRIPTS.In view of section 953c of the Code of Civil Procedure, which requires that the parties who present a cause on appeal by the alternative method shall print in their briefs such portions of the record as they desire to call to the attention of the court, where no portions of the record are printed in appellant's brief, and references are made to the pages of the typewritten transcripts only, appellate courts will not look to the typewritten transcripts for the purpose of determining whether ground exists for reversal of the judgment appealed from. (Barker Bros. v. Joos, 311.)

15. NEW TRIAL-ORDER DENYING MOTION-RIGHT OF APPEAL-EFFECT OF CODE AMENDMENT.-An appeal from an order denying a new trial in and of itself is of no avail, where the order was made subsequent to the date of the taking effect of the amendment of 1915 to section 963 of the Code of Civil Procedure, regardless of the fact that the motion for new trial was initiated prior to the adoption and operation of the amendment. (Nathan v. Porter, 356.) 16. REVIEW OF ORDER DENYING NEW TRIAL-APPEAL FROM JUDGMENT. Under section 956 of the Code of Civil Procedure, as amended in

APPEAL (Continued).

1915, an order denying a motion for a new trial may be reviewed on appeal from the judgment. (Id.)

17. RECORD ON MOTION FOR NEW TRIAL TRANSMISSION TO APPELLATE COURT PROCEDURE.-While it is true that the law as now written apparently provides no procedure for transmitting to the appellate court the record used as the basis for a motion for a new trial, in a case where an appeal from a judgment has been rightfully taken in advance of the hearing and determination of the motion, nevertheless, in the absence of such provision, it would be permissible, for the purpose of permitting the case to be disposed of on its merits rather than upon a technicality, to adopt any suitable procedure which, conformable to the spirit of the code, would achieve the desired result. (Id.)

18. APPEAL FROM JUDGMENT RECORD-REVIEW OF ERRORS OCCURRING DURING TRIAL.-Where the bill of exceptions used on the hearing of a motion for a new trial, duly authenticated by the trial judge, is included in the transcript which, by stipulation of counsel, constitutes the record on appeal from the judgment, and the judgment has been rightfully appealed from which involves a review of the merits of the motion for a new trial, the appellate court may upon such record discuss and decide an error of law occurring at the trial urged as prejudicial and sufficient to warrant a reversal. (Id.) 19. NEW TRIAL-ORDER DENYING RIGHT TO NOMINAL DAMAGES-FAILURE TO LEAVE TO JURY-INSUFFICIENT GROUND FOR REVERSAL.-An order denying a new trial in an action wherein plaintiff is entitled to nominal damages, will not be reversed for the mere failure to leave such question to the jury. (Holmes v. Snow Mountain W. & P.

Co., 394.)

20. JUDGMENT-RECORD-PRINTING IN BRIEFS.-Where on an appeal . from a judgment the only record consists of a typewritten transcript, and no part of the record is printed in the briefs, except the findings of fact and conclusions of law in the brief of respondents, and the facts found are sufficient to support the judgment, the judgment must be affirmed, since it will be presumed that counsel have presented in their briefs all portions of the record which they desired to call to the attention of the appellate court. (Anderson v. Wilcox, 430.)

21. STAY OF REMITTITUR APPLICATION FOR CERTIORARI TO UNITED STATES SUPREME COURT-INHERENT POWER OF STATE APPELLATE COURT. The district court of appeal has inherent power to grant an application for a stay of the issuance and transmission of a remittitur in order to permit the applicant, before execution of the judgment, to apply to the supreme court of United States for a writ of certiorari on a question involving jurisdiction. (Reynolds v. Clemens Horst Co., 529.)

APPEAL (Continued).

22. ALTERNATIVE METHOD PRINTING OF RECORD IN APPELLANT'S BRIEF

INSUFFICIENT GROUND FOR DISMISSAL.-An appeal from a judgment will not be dismissed on the ground that the appellant has not complied with that portion of section 953c of the Code of Civil Procedure to the effect that, in filing briefs on an appeal the parties must print in their briefs, or in a supplement appended thereto, such portions of the record as they desire to call to the attention of the appellate court, since the omission may be provided by stipulation of parties or in other briefs. (Verdier v. Stoll, 573.) 23. FRIVOLOUS APPEAL-PENALTY.-Where an appeal is not taken in good faith, but for the purposes of delay, the court should exercise its power of imposing a penalty upon the appellant for an abuse of the right of appeal. (Union M. Co. v. Chicago Bond etc. Co., 585.) 24. ALTERNATIVE METHOD PRINTING OF RECORD IN BRIEFS.-Where an appeal is taken under the alternative method, the parties must print in their briefs such portions of the record as they desire to call to the attention of the appellate court, and references to the transcript are not sufficient. (Borba v. De Mello, 601.)

25. ORDER ON DEMURRER-RECORD-WAIVER.-On appeal from a judgment, where the order made on demurrer to the complaint does not appear in the transcript, the demurrer must be held to have been waived. (Watson v. Anderson, 778.)

26. CRIMINAL LAW-APPEAL-PRESUMPTIONS.-On an appeal in a crim. inal action, the presumptions are in favor of the regularity of the proceedings in the trial court, and where no argument is made, and the court's attention is not called to any ground for interfering with the judgment, the judgment will be affirmed. (People v. Taylor, 762.)

See Attorney at Law, 2; Criminal Law, 6, 11, 21, 48, 60, 61;
Divorce, 2, 4; Election Law, 3; Evidence, 2; Pleading, 4.

APPRAISEMENT. See Contracts, 10.

ARBITRATION. See Contracts, 8.

ARREST. See Criminal Law, 55-57; Police Officers, 2.

ASSIGNMENTS.

1. CLAIM FOR RENT-SUFFICIENCY OF EVIDENCE.-In an action on an assigned claim for rent due under a lease, the assignment of the claim to the plaintiff by the assignors, who were partners, is sufficiently proven by the testimony of one of the partners that before the commencement of the action he assigned in writing on the back of the lease all of the claims of himself and his partner to all of