INDEX.

ACKNOWLEDGMENT. See Notary Public.

ADOPTION.

1. ADOPTION OF MINOR CHILDREN-JUDICIAL FUNCTIONS OF JUDGE-DE-
TERMINATION OF JURISDICTIONAL FACT-COLLATERAL ATTACK.-Al-
though the proceedings had for the adoption of minor children are not
judicial proceedings, and the order of the judge thereupon is not
the judgment of a court, yet the superior judge designated by the
code to hear and determine such proceedings exercises judicial func-
tions; and where his power to act depends upon jurisdictional facts
to be established by evidence his determination thereof cannot be
questioned in a collateral attack upon the order of adoption. (Es-
tate of Camp, 469.)

2. ABANDONMENT OF CHILDREN-RECITAL IN ORDER-CONCLUSIVENESS.
-Where the petition for the adoption of minor children alleged
that they had been abandoned by their parents, that fact is juris-
dictional, and a recital in the order of adoption that it had been
proved to the satisfaction of the judge is a determination thereof
which is conclusive in a collateral attack upon the order. (Id.)
3. ESTOPPEL OF ADOPTING FATHER AND CLAIMANTS UNDER HIM.-The
adopting father is estopped to question the fact of abandonment re-
cited in the petition and order, and the same is true of any person
or persons claiming under him. (Id.)

4. CONTEST FOR LETTERS OF ADMINISTRATION-ATTACK UPON ORDER BY
BROTHER OF ADOPTING FATHER.-Upon a contest for letters of ad-
ministration upon the estate of the adopting father between his
brother and the public administrator, where it appears that the
minor children adopted are sole heirs if the adoption is valid, and
the proceedings and order of adoption were placed in evidence, the
brother of the deceased, as a claimant under him, cannot be per-
mitted to attack the order by proof that the parents of the children
did not in fact abandon them. (Id.)

See Guardian and Ward, 2.

ADVERSE POSSESSION.

1. PRIVATE WAY OVER PATENTED LAND-PRESCRIPTIVE RIGHT OF PRE-
EMPTOR.-A prescriptive right to a private way over land held under

(707)

ADVERSE POSSESSION (Continued).

a Mexican grant, which has been confirmed and patented, may be acquired by the adverse user of the way for any continuous period of five years by a pre-emptor who has the right of possession, cultivation, and use of the pre-empted land, which is good as against all, regardless of the time of issuance of his patent. (Franz v. Mendonca, 205.)

2. PERMISSIVE USE.-A prescriptive right to a private way cannot be acquired if the user is not adverse, but with the permission of the owners of the land over which it is claimed. (Id.)

3. PRESUMPTION OF ADVERSE USER.-Where the user of the way is shown to have been continuous for the full period of limitation, unexplained, without anything in the evidence or in the circumstances of the case to indicate the contrary, it may be presumed that it was under claim of right and adverse to the owners of the land. (Id.)

4. QUESTION OF FACT-PROVINCE OF TRIAL COURT.-The question whether the user of a private way was permissive or adverse is one of fact, which it is the province of the trial court to determine, (Id.)

5. FINDING OF PERMISSIVE USE-INSUFFICIENCY

OF EVIDENCE

CONFLICT-NEW TRIAL-DUTY of Judge.-Where the trial judge is satisfied that a finding of permissive use is contrary to the weight of the evidence, it is his duty to grant a new trial, although the evidence may be conflicting. The rule as to conflict of evidence does not apply to the trial court. (Id.)

AGENCY.

See Banks, 3, 4; Husband and Wife, 3; Mechanics' Liens, 28, 29; Mortgage, 10.

AMENDMENT. See Execution, 1-3.

APPEAL.

1. DISTRIBUTION OF ESTATE-RECEIPT OF DISTRIBUTEES-DISCHARGE OF ADMINISTRATOR-APPEAL FROM DECREE-DISMISSAL.-After an estate has been distributed, and the distributees, who signed their consent to the distribution, have received and receipted for all of the property of the estate, and the administrator, upon filing their receipt as a voucher, has been discharged, an appeal taken by the distributees from the decree of distribution must be dismissed. (Estate of Shaver, 219.)

2. ACCEPTANCE OF FRUITS OF JUDGMENT-RIGHT OF APPEAL-ELECTION. The acceptance of the fruits of a judgment is inconsistent with the right of appeal therefrom; and an election to take one of them is a renunciation of the other. (Id.)

3. AFFIDAVITS AS TO MISAPPREHENSION AND MISINFORMATION OF APPELLANTS-REVIEW UPON MOTION TO DISMISS.-Affidavits of the appellants tending to show that their consent to the distribution and their acceptance of, and receipt for, the property distributed were

APPEAL (Continued).

induced under a misapprehension and misinformation of fact, however they might have been considered upon a motion to set aside the decree of distribution and upon an appeal from the order made upon such motion, cannot be considered upon a motion to dismiss an appeal from the decree. (Id.)

4. DEATH OF APPELLANT AFTER SUBMISSION-REVERSAL-NUNC PRO TUNC.-Where the appellant dies after the submission of the appeal and the judgment is reversed, the judgment of reversal will be entered nunc pro tunc as of a date prior to the death. Heaton, 109.)

(McPike v.

5. APPEAL FROM PART OF JUDGMENT NOT INCLUDED-MATTER STRICKEN FROM COMPLAINT-DISMISSAL.-An appeal purporting to be taken from a portion of a judgment refusing to grant certain relief, which refusal is not in terms included in the judgment, and appears from an order striking out an averment from the complaint, the matter of which thereafter formed no part of the record, the cause having been tried upon the issues presented by the remaining averments of the complaint, is not properly taken, and must be dismissed. (Bank of Visalia v. Curtis, 178.)

6. APPEAL FROM JUDGMENT-NOTICE-CERTAINTY.-Where there is but one judgment appearing in the record upon appeal, a notice of appeal "from said judgment made and entered in said action in favor of the defendants and against the plaintiff" is not ineffectual for uncertainty, in failing to give the date of the judgment or other identification thereof. (Jones v. Iverson, 101.)

7. APPEAL FROM JUDGMENT-LAPSE OF TIME-REVERSAL UPON FINDINGS.-An appeal from the judgment, taken more than six months after its entry, cannot be considered, and cannot authorize a judg ment to be entered for the appellant upon the findings, though the facts found might warrant such judgment if the appeal were taken in time. (McGorray v. Stockton Sav. etc. Soc., 321.)

8. ORDER DENYING NEW TRIAL-REVIEW UPON APPEAL-DECISION AGAINST LEGAL EFFECT OF EVIDENCE.-Upon a proper appeal from an order denying a new trial where the grounds of the motion are insufficiency of the evidence to justify the decision and that the decision is against law, the order will be reversed where the legal ef. fect of the evidence as a whole is against the decision, even though it be assumed that the findings made separately from those embodied in the conclusions of law are supported. (Id.)

9. AMBIGUOUS UNDERTAKING-DISMISSAL.-Where two appeals are taken, one from the judgment and another from an order denying a motion to set aside the judgment, a single undertaking given "in consideration of the premises and of such appeal," and conditioned that appellants will pay all damages awarded against them on "the appeal," is insufficient, by reason of its ambiguity, to support either