Harris v. Barnhart

New Trial — Statement — Specifications of Insufficiency of Evidence — Appeal. — Specifications of insufficiency of the evidence to justify a verdict in a statement upon motion for a new trial must he disregarded upon appeal from an order refusing the new trial, where the evidence in support thereof is not to be found in the record.

Id.—Error Assigned upon Instructions — Insufficient Record upon Appeal. — Alleged error in instructions to the jury will not be considered, where the record upon appeal fails to set forth the testimony upon which they are predicated, and where it appears from the record that other instructions were given which are not embodied therein.

Id. —Presumption as to Additional Instruction. — It must be presumed upon appeal, where additional instructions were given which are not embodied in the record, that under such instructions, taken with those given and refused, the law of the case was properly presented to the jury.

Former Adjudication — Mortgage by Deed Absolute. — In an action to recover an excess of price received by defendant from the sale of property transferred by absolute deed from plaintiff to defendant, which it was alleged was given as security for indebtedness, a former judgment between the same parties in an action to set aside the deed, the gist of which was as to whether the conveyance was absolute or merely as security, is admissible in bar of the action after the time for appeal in the former action has elapsed.

Id. — Stay of Operation of Judgment — Effect of Motion for New Trial. — A motion for a new trial does not stay or suspend the operation of a final judgment in the cause, in the absence of an order of the court to that effect.

Id.—Effect of Appeal — Bar of Subsequent Action.—Where an appeal is pending, and until the time therefor has expired, a final judgment, unless satisfied, is not evidence in bar of recovery in another .action for the same cause.

Id.—Pendency of Action During Time for Appeal — Pleading — Abatement of Subsequent Action. —Until the time for an appeal has expired, if the judgment has not been sooner satisfied, the action is, under section 1049 of the Code of Civil Procedure, to he deemed as pending, and the proceedings therein are admissible under proper pleadings in abatement of a subsequent action for the same cause.

Id. —Lapse of Time for Appeal Pending Suit — Evidence of Former Judgment in Bar — Pleading—Supplemental Answer — Waiver. — Where the time for an appeal from a judgment has expired before the judgment is offered in evidence in bar of another action for the same cause, it is admissible in support of a plea in bar of the action, though such plea was made in the answer before the time for appeal had elapsed, where no objection, is made at the time of its offer in evidence upon the ground of the want of a supplemental answer pleading such judgment in bar, the defective plea in the answer being waived by the acquiescence and failure of the plaintiff to object thereto.