posing party during trial as to what the pro-taining the assignments of error, the court may posed witnesses would testify to, the Supreme reverse the judgment without searching the recCourt cannot say that its refusal was an abuse ord to find some theory on which to sustain it. of discretion.-East Denver Municipal Irr. Dist.-Stitch v. Dansinger Bros., 154 P. 514; Ausv. Altura Farms Co., 154 P. 100. tin v. Campbell, Id.; Miles F. Bixler Co. v. Olmstead, Id. 517; Depenbrink v. Murphy, Id. 529; McClure v. Ingram, Id. 575; Lee v. Loftis, Id. 653; Metropolitan Life Ins. Co. v. Dunn, Id. 1153. 671 (Or.) Where there is no bill of exceptions in the case, the only matters before the Supreme Court are the pleadings and findings of the trial court.-Kay v. City of Portland, 154 P. 750. 690 (Or.) Upon exception to the trial court's ruling on evidence, so much of the testimony as will enable the appellate court to understand the question involved must be copied in the bill of exceptions.-McGilchrist v. Portland, E. & E. Ry. Co., 154 P. 419. 692 (Or.) Where the bill of exceptions did not disclose any answer to a question objected to, the appellate court cannot determine whether defendant was injured by the overruling of the objection.-Mowrey v. Bouton, 154 P. 897. Where the questions did not indicate the replies and the trial court was not informed what appellant expected to elicit, the sustaining of objections to questions is not reviewable.-Id. 695 (Mont.) The court cannot review on the merits the question of the sufficiency of the evidence to sustain findings of court below, where material evidence, consisting of exhibits which were admitted without objection, was omitted from the record.-Yellowstone Nat. Bank v. McCullough, 154 P. 919. 695 (Wyo.) Whether the establishment of a boundary line by the county surveyor was sufficient cannot be considered by the court on appeal, where the evidence was not brought up. -Pool v. Baker, 154 P. 328. ~701 (Or.) Upon exception to the giving of an instruction improper under any view of the case, the error will be reviewed, though no testimony is incorporated in the bill of exceptions.—McGilchrist v. Portland, E. & E. Ry. Co., 154 P. 419. 773 (Okl.) Under Supreme Court rule 7 (137 Pac. ix), failure of plaintiff in error to prosecute requires a dismissal.-Board of Com'rs of Garvin County v. Pyeatt, 154 P. 549; Hulsey V. Jackson, Id. 649; Kapp v. Croan, Id. 1133; English v. Levy, Id. 1156. 773 (Okl.) Where plaintiff in error fails to file brief, and the record itself shows no error, the cause will be affirmed.-Thompson v. Thompson, 154 P. 1146. 773 (Okl.) Where plaintiff in error fails to file brief under Supreme Court Rule 7 (137 Pac. ix), and the record shows that the appeal is without merit or for delay only, the judgment may be affirmed.-Shipman v. Porter, 154 P. 1185. XIII. DISMISSAL, WITHDRAWAL, OR ABANDONMENT. 780 (Or.) Where mechanics' liens in favor of several claimants were established, held that, as to one whose lien was admitted, the appeal should be dismissed; for he was not an adverse party, and was not necessary to consideration of assignments of error against others.-Johnson v. Paulson, 154 P. 685. 797 (Nev.) A motion to dismiss an appeal for noncompliance with Supreme Court rules 2 and 3 held not too late, though not filed until more than three terms had elapsed after appeal taken and record filed; Supreme Court rule 8 not applying.-Skaggs v. Bridgman, 154 P. 77. 803 (Or.) Dismissal of owner's appeal from judgment foreclosing mechanics' liens as to one lien claimant whose claim was admitted held, under L. O. L. §§ 425, 551, not to jeopardize the rights of other lien claimants.-Johnson v. Paulson, 154 P. 685. 706 (Colo.) Where the affidavits in support of a motion for a new trial were not preserved in the bill of exceptions, the Supreme Court could not consider them.-East Denver Municipal Irr. Dist. v. Altura Farms Co., 154 P. 100.803 (Wash.) The Supreme Court, dismiss (L) Matters Not Apparent of Record. 713 (Cal.App.) Under Code Civ. Proc. § 951, specifying the papers to be used on appeal from orders, an affidavit coming into the transcript under certificate describing it as part of the judgment roll, which it was not, nor a paper used in connection with the order from which the appeal was taken, the court could not take cognizance of its contents.-Nolte v. Nolte, 154 P. 873. 714 (Okl.) The Supreme Court will not consider a question first raised in plaintiffs in error's brief and evidenced by the clerk's signature to a statement in the brief.-Parker v. Hamilton, 154 P. 65. ing an appeal for want of jurisdiction, cannot affirm the judgment below.-Johnston v. Seattle Taxicab & Transfer Co., 154 P. 787. 807 (Okl.) Under Const. art. 2, § 6, where plaintiffs in error have taken all steps necessary under Rev. Laws 1910, c. 60, art. 25, to perfect an appeal, and the papers are in due form and duly filed, and the petition in error has been wrongfully dismissed, the order of dis missal will be set aside, and the cause reinstated and determined on its merits.-Garland v. Union Trust Co., 154 P. 676. XV. HEARING AND REHEARING. 832 (Nev.) A second application by the party for rehearing will not be entertained, except 715 (Kan.) Proceedings below could not be for clerical mistake or error apparent of record. brought upon the record by affidavits.-Stock--Ward v. Pittsburg Silver Peak Gold Mining ton Elevator & Shipping Ass'n v. Missouri Pac. Co., 154 P. 74. Ry. Co., 154 P. 1126. XI. ASSIGNMENT OF ERRORS. 719 (Utah) A finding not assigned as error is not presented for review.-Mountain Lake Mining Co. v. Midway Irr. Co., 154 P. 584. XII. BRIEFS. 768 (Wash.) The Supreme Court is not bound to consider only the questions presented in the briefs of the parties, but may make an independent investigation.--Smith Sand & Gravel Co. v. Corbin, 154 P. 150. 773 (Okl.) Where defendant in error fails to file brief or give excuse for his failure, and plaintiff in error files a brief reasonably sus 835 (Wash.) Rights of the parties under contract of conditional sale must be determined as of the time when judgment appealed from was entered, and though appellant, subsequent to the first hearing, filed its claim with buyer's receiver, it might, on rehearing, urge its right to the property.-Eilers Music House v. Ritner, 154 P. 787. XVI. REVIEW. (A) Scope and Extent in General. 840 (Wash.) Under Rem. & Bal. Code, § 399, subd. 8, the Supreme Court, on appeal from an order granting a new trial on the ground that evidence under one count of the complaint was improperly received because the court did not state a cause of action, was bound to rule on the sufficiency of the complaint.-Smith Sand & (D) Amendments, Additional Proofs, and Gravel Co. v. Corbin, 154 P. 150. Trial of Cause Anew. 843 (Okl.) Abstract or hypothetical ques-889 (Okl.) Where a suit to collect a note tions, from the determination of which no prac- taken over by the bank commissioners is brought tical relief can follow, except the awarding of in the commissioner's name, instead of in the costs, will not be considered.-Killough v. Ft. name of the state, and no one is prejudiced Supply Telephone & Telegraph Co., 154 P. 1192. thereby, the petition will be deemed amended on 854 (Colo.) Although the decision of the appeal.-Bailey v. Lankford, 154 P. 672. court below was based upon improper grounds, if it was correct, it will be affirmed on appeal. McGrew v. Lamb, 154 P. 91. 855 (Mont.) Where a question decisive of the case is presented by the record, the Supreme Court will determine it, though it did not appear to have been considered by the trial court. -Lepley v. City of Ft. Benton, 154 P. 710. 889 (Wash.) Under Rem. & Bal. Code, $$ 307, 1752, held that, where complaint, in suit by purchaser at execution sale to quiet title against debtor's wife, did not state facts to constitute a cause of action, the Supreme Court could not deem the pleadings amended to conform to the proofs.-Crandall v. Lee, 154 P. 190. 866 (Colo.) On appeal from a nonsuit in ac-891 (Nev.) The court on appeal from a judgtion for mandatory injunction compelling is- ment based on findings that land is mineral may suance of certificate of redemption for certain consider a patent since issued conclusive that lots, unless plaintiff had an interest in the lots the land is not mineral.-Earl v. Morrison, 154 entitling him to redemption, the nonsuit must P. 75. be affirmed and no other question need be con-895 (Wash.) In an action to rescind a sale sidered.-McGrew v. Lamb, 154 P. 91. of property on the ground of defendant's fraudulent representations, the Supreme Court on apSup- peal must try the cause de novo upon the facts (B) Interlocutory, Collateral, and plementary Proceedings and Questions. and the law, whether or not the grounds of the trial court's decision were correct or sufficient. no--Jarvis v. Ireland, 154 P. 455. 871 (Cal.App.) Recital, in defendant's tice of appeal from judgment for plaintiff, that it was taken from every interlocutory and intermediate order made in the case adverse to defendant, could not, under Code Civ. Proc. § 956, bring up for review the appealable order of the trial court vacating a prior judgment for defendant on plaintiff's motion, the time for direct appeal from which order had expired.Hughes v. Chung Sun Tung Co., 154 P. 299. 874 (Cal.App.) Overruling a demurrer to an amended complaint and denying a motion to strike out portions thereof cannot be considered on appeal from denial of a motion for new trial, -Tingey v. Callahan Const. Co., 154 P. 28. 874 (Idaho) On appeal from the appointment of a receiver and denial of a motion to set aside the appointment, the Supreme Court can only inquire into the merits of the action so far as the facts bear on the propriety of making such orders.-Keane v. Kibble, 154 P. 972. (C) Parties Entitled to Allege Error. 877 (Wash.) On appeal in an action under the federal Employers' Liability Act the defendant has no concern with the apportionment of the award, and cannot complain that the award was improperly apportioned by the beneficiaries. -Anest v. Columbia & P. S. R. Co., 154 P. 1100. 882 (Okl.) Where plaintiff in injunction filed a supplemental petition praying damages for acts out of which the injunction arose, held, that he could not object to the consideration of defendant's counterclaim for similar damages. Page v. Tryon, 154 P. 526. 882 (Okl.) The party at whose request an erroneous instruction has been given cannot predicate error thereon.-Pressley v. Incorporat ed Town of Sallisaw, 154 P. 660. 882 (Okl.) Where there is no evidence to sustain one of the several causes of action pleaded, but this phase is submitted on defendant's request, the error is invited, and defendant cannot complain thereof.-Summers v. Gates, 154 P. 1159. 882 (Wash.) In an action against a railroad company for death of an engineer, plaintiff's error in offering a report to federal inspectors in evidence contrary to Act Feb. 17, 1911, held no ground for reversal, where defendant in his opening argument said plaintiff had the report and could produce it if they desired.-Donaldson v. Great Northern Ry. Co., 154 P. 133. 882 (Wyo.) Where an interrogatory was submitted to the jury at defendant's request, it could not complain of error in the submission. Stockgrowers' Bank of Wheatland v. Gray, 154 P. 593. (E) Presumptions. 907 (Cal.) In a suit to foreclose, mechanic's liens, where the propriety of an allowance for specifications, which were not incorporated in extras to a materialman depended upon the the bill of exceptions, or elsewhere in the record, the finding of the court below must be sustained on presumption.-Roystone Co. v. Darling, 154 P. 15. 920 (Cal.App.) In the absence of an affirmative showing that the court abused its discretion in appointing a receiver pendente lite in an action for a copartnership accounting, it will be presumed that the court's action was regular, and that the order was made on a sufficient showing of facts, though the complaint itself did not set forth facts warranting the appointment.-Ulm v. Prather, 154 P. 611. 922 (Colo.) Even if order of an open venire could issue only in cases mentioned by Rev. St. 1908, § 3685, party objecting to such order would be bound to show affirmatively that the necessary conditions did not exist to overcome the presumption in favor of the regularity of the proceedings below.-East Denver Municipal Irr. Dist. v. Altura Farms Co., 154 P. 100. 926 (Cal.App.) Where court on motion to strike out a witness' testimony as to declarations stated that they would not be considered, it would be presumed on appeal that the court did as it said it would do.-Wills v. E. K. Wood Lumber & Mill Co., 154 P. 613. 926 (Okl.) Where no objection is made to idence, in an action wherein a verified answer the introduction of an itemized account in ev has been filed, it will be presumed that the ac count was admitted by consent.-Walker v. West Pub. Co., 154 P. 1189. 928 (Idaho) Where the transcript fails to contain the instructions, it will be presumed that the jury were correctly instructed on all material issues.-McLeod v. Rogers, 154 P. 970. 931 (Cal.App.) In case of a finding on conflicting evidence, the appellate court must be controlled by that favorable thereto, there being no inherent improbability therein.-Ragan v. Ragan, 154 P. 479. 934 (Cal.) All intendments favor the judgment of the court below.-Hihn-Hammond Lumber Co. v. Elsom, 154 P. 12. 935 (Cal.App.) Where the order of the trial court setting aside its first judgment was made within the time prescribed by Code Civ. Proc. § 473, providing that the court may relieve from a judgment taken against a party through his mistake, inadvertence, surprise, or excusable neglect, in the absence of a record showing the basis of the court's action, such order will be presumed to be regular.-Hughes v. Chung Sun Tung Co., 154 P. 299. plaintiff in an action to recover for effecting a sale of defendant's property, it ought to be sustained.-Brutinel v. Nygren, 154 P. 1042. 1001 (Okl.) A judgment on a verdict sustained by no evidence will be reversed.-C. D. Osborne & Co. v. White, 154 P. 653. 935 (Cal.App.) On appeal from an order vacating a final decree from which no appeal was taken, it will be assumed that the trial court had before it facts sufficient to authorize the vacating order to the full extent that the order could legally be made under any circum-1001 (Or.) Where there is any evidence to stances.-Nolte v. Nolte, 154 P. 873. (F) Discretion of Lower Court. 959 (Or.) The allowance of an amendment to the petition is within the discretion of the trial court, and will not be disturbed, in the absence of a manifest abuse of sound judgment. -Kimball v. Horticultural Fire Relief of Oregon, 154 P. 578. 1001 (Okl.) A judgment on a verdict reasonably sustained by evidence will not be disturbed.-Apple v. French, 154 P. 659. support it, a verdict will not be disturbed.Sink v. Allen, 154 P. 415. 1001 (Wash.) A verdict supported by substantial evidence is conclusive on appeal.-Auwarter v. Kroll, 154 P. 438. 1002 (Colo.) Where proper issues are submitted under instructions to which no complaint is made, the evidence upon those issues being conflicting, the court on appeal cannot disturb the verdict.-Brotherhood of Locomotive Firemen & Enginemen v. McHenry, 154 P. 276. 960 (Okl.) The trial court's ruling on a motion to make more definite and certain will not be disturbed in the absence of an abuse of discretion.-Union Coal Co. v. Wooley, 154 P. 62.1002 (Idaho) Where in a suit to quiet title 960 (Wash.) The court on appeal will not to a homestead the evidence as to abandonment disturb the order of the lower court striking the is conflicting, the judgment will not be discross-complaint of one who, although not de- turbed.-Goldensmith v. Snowstorm Mining Co., faulted against, failed to answer until after trial 154 P. 968. below.-Painter v. Kennedy, 154 P. 161. 966 (Okl.) The refusal of a continuance for absence of counsel will not be disturbed in the absence of an abuse of discretion prejudicial to a litigant's substantial rights.-Jones v. Thompson, 154 P. 1139. 1002 (Okl.) A verdict reasonably supported by evidence will not be disturbed, though in direct conflict with all other evidence in the case. Chicago, R. I. & P. Ry. Co. v. Brown, 154 P. 1161. 1002 (Wash.) A verdict on conflicting evi970 (Ariz.) The court's discretion in allow dence will not be disturbed on appeal.-Donalding evidence of agent's acts before proof of son v. Great Northern Ry. Co., 154 P. 133. agency will not be disturbed.-Brutinel v. Ny-1003 (Kan.) A verdict supported by evigren, 154 P. 1042. dence will not be disturbed on the weight of evidence.-Christian v. Union Traction Co., 154 P. 970 (Okl.) The trial court's finding that proof of loss of a written contract authorizes the admission of secondary evidence as to its contents will not be disturbed, unless clearly erroneous and injurious to the complaining party. -Marker v. Gillam, 154 P. 351. 971 (Okl.) Questioning of a witness by the trial judge will not require a reversal in the absence of an abuse of discretion.-St. Louis & S. F. Ry. Co. v. Clampitt, 154 P. 40. 974 (Mont.) Error cannot be predicated in the action of a court of equity in submitting issues to a jury.-Yellowstone Nat. Bank v. McCullough, 154 P. 919. 977 (Wash.) Action of court in overruling motion for new trial in personal injury case for developments in plaintiff's condition after rendition of judgment will not be reviewed in absence of abuse of discretion.-Welch v. Petley, 154 P. 145. 271. 1003 (Wash.) Where there is testimony to inquire into the preponderance of the evidence. sustain the verdict, the appellate court will not -Skoug v. Downs, 154 P. 126. 1004 (Colo.) Where the Supreme Court can find nothing in the record indicating that the jury acted from passion or prejudice, it is not justified in disturbing the verdict on the ground that it is excessive.-East Denver Municipal Irr. Dist. v. Altura Farms Co., 154 P. 100. 1005 (Kan.) A special finding supported by evidence, approved by the trial court, and not attempted to be set aside by motion, will not be disturbed, though against much of the evidence. Christian v. Union Traction Co., 154 P. 271. 1005 (Okl.) A verdict, reasonably sustained by the evidence and approved by the trial court, new trial having been denied, will not be disturbed in the absence of error in the instructions.-Marker v. Gillam, 154 P. 351. 978 (Wyo.) Where the appellate court cannot say from the record that the ruling of the trial court on defendant's motion for new trial on account of the alleged misconduct of plain-1005 (Wash.) Although the trial judge durtiff's agent with a juror abused its discretion or erred in denying the motion, the ruling will not be disturbed.-Stockgrowers' Bank of Wheatland v. Gray, 154 P. 593. 981 (Idaho) The denial of a new trial sought under Rev. Codes, § 4439, subd. 4, for newly discovered evidence, will not be disturbed, in the absence of an abuse of discretion.-Stolz v. Scott, 154 P. 982. (G) Questions of Fact, Verdicts, and Findings. ing the progress of the case indicated that certain testimony was improbable and incredible, and that if the jury found otherwise he would be impelled to set the verdict aside, his conclusion on rendition of the verdict that the verdict was proper was conclusive upon the court on appeal.-Payzant v. Caudill, 154 P. 170. 1008 (Kan.) Where, in an action for breach of a contract to exchange realty, the court finds that plaintiff, and not defendant, breached the contract, a judgment for defendant on cross-petition for damages will not be disturbed as ineq997 (Wash.) Where there is testimony to uitable, or because plaintiff made a bad bargain. sustain the verdict, the appellate court will not-Stramel v. Hawes, 154 P. 232. interfere with the refusal to direct a verdict.1009 (Okl.) A finding in equity that the etc.-Skoug v. Downes, 154 P. 126. fraud for which relief is sought has not been established, will not be disturbed, unless clearly against the evidence.-Jones v. Thompson, 154 P. 1139. 1001 (Ariz.) A verdict supported by evidence will not be disturbed on appeal.-Crane v. Franklin, 154 P. 1036. 1001 (Ariz.) Where there was evidence rea-1009 (Or.) While the judge in an equity sonably tending to support a judgment for case tries the facts, his conclusion thereon is not final, since the trial on appeal is de novo.Molalla Electric Co. v. Wheeler, 154 P. 686. Where, in an equity suit, the trial judge personally examines the locus in quo in order properly to apply the testimony to the issues, his findings of fact and decree are entitled to careful consideration.-Id. The decree and findings of the judge in an equity suit are not of the same force on appeal as those of the judge without a jury in a law action, which will not be disturbed if there is any evidence to support them.-Id. 1010 (Okl.) A finding that the sheriff's turn of personal service was true will not be disturbed, when reasonably supported by evidence.-Jones v. Jones, 154 P. 1136. (H) Harmless Error. 1026 (Wyo.) The Supreme Court can only reverse for prejudicial error appearing upon the record.-Stockgrowers' Bank of Wheatland v. Gray, 154 P. 593. 1027 (Okl.) That the court erroneously left to the jury the interpretation of a contract did not require a reversal, where the jury correctly interpreted it.-Chenault v. Mauer Mercantile Co., 154 P. 507. 1039 (Cal.App.) Any error of the vendor of re-realty, suing the assignee of the buyer and others in ejectment, in joining a claim for a money judgment for the balance due on the contract of sale, was harmless, where he waived Richvale Land Co., 154 P. 608. any claim for such money judgment.-Sweet v. 1010 (Or.) Under L. O. L. § 159, findings on the facts in action tried without a jury held to have the same conclusiveness as a verdict, and not to be disturbed if sustained by evidence. -Doolittle v. Pacific Coast Safe & Vault Works, 154 P. 753. 1041 (Mont.) Permission to plaintiff to amend his complaint by merely interlining words held harmless error.-Doichinoff v. Chicago, M. & St. P. Ry. Co., 154 P. 924. evi-1046 (Okl.) A remark made by the judge relative to liability of a defendant held to require a reversal, where it was calculated to mislead the jury and the verdict conclusively showed that it was affected thereby.-Pressley v. Incorporated Town of Sallisaw, 154 P. 650. 1010 (Wash.) Finding supported by dence, mainly oral, could not be disturbed, where no material question was presented other than questions of fact.-Winter v. Eberhardt, 154 P. 139. 1010 (Wash.) In an action for breach of warranty of the value of bank stock sold, where all the witnesses testified to defendant's war ranting in general, and the plaintiff testified consistently to the stock being warranted as worth $235 a share, a finding explicitly for plaintiff as to warranty in such express sum will not be disturbed.-Peterson v. Brewer, P. 788. 1047 (Okl.) In a case submitted to the jury dence will not require a reversal in the absence for an advisory verdict, error in rulings on eviof a clear abuse of discretion depriving the objecting party of some substantial right.-Parker v. Hamilton, 154 P. 65. 1541048 (Mont.) Informalities in impeaching a witness by showing that he had detailed the events of the injuries to plaintiff's intestate and failed to mention warning were not ground for reversal, where the matter of warning was immaterial, since that referred only to contributory negligence, which was admitted by the complaint, based upon the theory of last clear chance.-Doichinoff v. Chicago, M. & St. P. Ry. Co., 154 P. 924. 1011 (Cal.) Where the last clear chance doctrine was relied on, and the evidence as to whether the car could have been stopped after deceased's peril was discovered conflicted, held on the evidence, that the question whether her negligence was the proximate cause of the injury was a fact for determination by the trial court, and not for determination as matter of law by the court on appeal.-Tucker v. United roads of San Francisco, 154 P. 835. Rail-1050 (Cal.App.) Errors in receiving testimony cannot be deemed prejudicial to defendant, when,, disregarding the incompetent matter, enough remains in the record to sustain the cause of action alleged.-Tingey v. Callahan Const. Co., 154 P. 28. 1011 (Cal.App.) A finding of the court on conflicting evidence will not be disturbed on appeal.-National Lumber Co. v. Kennedy, 154 P. 25. 1011 (Cal.App.) Findings of fact made on conflicting evidence cannot be questioned.Stroud v. Fairbanks, 154 P. 282. 1011 (Cal.App.) A finding of the trial court on substantial conflicting evidence will not be disturbed on appeal.-Hughes v. Chung Sun Tung Co., 154 P. 299. 1011 (Nev.) Testimony in action to foreclose mechanic's lien as to posting notice disclaiming liability for work and materials furnished held to be in such conflict that judgment below would not be disturbed.-Gaston v. Avansino, 154 P. 85. 1050 (Cal.App.) Where a stock purchase contract provided that payment to the seller's agent, a bank, would be sufficient, held, in an action on a check given to the bank and payable to it or bearer, that the admission of evidence of the bank's delivery of the check to the seller, if erroneous for immateriality, was harmless error.-Bank of Bakersfield v. Conner, 154 P. 869. 1050 (Kan.) In a shipper's action for cost of repairing cars to receive grain, held, that the admission in evidence of "Santa Fé Cooperage Circular, No. 1," was not prejudicial, though immaterial.-Rock Milling & Elevator Co. v. Atchison, T. & S. F. Ry. Co., 154 P. 254. 1011 (Wash.) A finding of the trial court on conflicting evidence, where it had the witnesses before it, will not be disturbed. In re Connol-1050 (Kan.) Error cannot be predicated on ly's Estate, 154 P. 155. the admission of incompetent testimony not shown to have improperly affected the result.Ogallah Elevator Co. v. Harrison, 154 P. 1016. 1050 (Wyo.) Admission of evidence as to a conversation between plaintiff's husband and a vice president of the bank, in which the latter guaranteed not to damage plaintiff's wall, held harmless.-Stockgrowers' Bank of Wheatland v. Gray, 154 P. 593. 1051 (Okl.) Admission of an incompetent letter relating to a warranty held harmless, where the sale contract containing the warranty was already in evidence.-Gutenberg Mach, Co. v. Husonian Pub. Co., 154 P. 346. 1058 (Wash.) Error in the court's refusal to allow a witness to testify as to who was the real owner of corporate stock is harmless where he detailed the facts concerning the ownership. -Auwarter v. Kroll, 154 P. 438. 1060 (Wash.) A defendant held not preju- | diced by plaintiff objecting to counsel of another further participating in the case, where a nonsuit as to the other party was then entered.Jensen v. Schlenz, 154 P. 159. 1060 (Wash.) In an action on an employers' indemnity policy assigned by the assured, where plaintiff, under the undisputed testimony, was entitled to an instructed verdict for $5,000, the amount of the policy, for which sum the jury returned verdict, the judgment cannot be reversed for misconduct of plaintiff's counsel.Davies v. Maryland Casualty Co., 154 P. 1116. 1062 (Kan.) The refusal to submit two of ten special questions which were requested held not prejudicial, where they were substantial repetitions, and the answers to those submitted clearly indicated that answers to those refused would not have benefited the complaining party. Christian v. Union Traction Co., 154 P. 271. 1064 (Cal.) In an action for deceit by the purchaser of citrus nurseries for the vendor's misrepresentation as to the number of budded trees, an instruction that, if the purchaser had the means to ascertain the truth of the representations and failed to do so, he could not recover, held prejudicially erroneous.-Teague v. Hall, 154 P. 851. 1066 (Wash.) An instruction that, when an employé is ordered or permitted to do dangerous work, he should be warned, if erroneous in the use of the word "permitted," held harmless, where the issue was whether he was "ordered,' and there was no contention that he was merely permitted as a volunteer to crank the machine. Godley v. Gowen, 154 P. 141. 1066 (Wash.) Instructing, in an action for falling into a manhole, that there was no evidence to warrant a finding of fault in construction, is not prejudicial as to defendants, charged only with negligence in the manner of its maintenance.-Jensen v. Schlenz, 154 P. 159. Instructing that the jury might allow plaintiff, among other things, for "depreciation in earning capacity, if any," when there was no evidence thereof, but to the contrary, held harmless.-Id. tions on one of two allegations of negligence 1067 (Kan.) Refusal of defendant's instrucwhich was ignored in the instructions given in which the jury were told that, to recover, plaintiff must sustain the other allegation, held not material error.-Christian v. Union Traction Co., 154 P. 271. 1068 (Or.) Errors in instructions on the measure of damages are harmless where plaintiff, who was shot while hunting, recovered no damages. Gibson v. Payne, 154 P. 422. 1070 (Wash.) Error in returning a verdict for $100 for an item as to which the instructions limited the recovery to $40 was cured where the verdict was reduced more than $100. -Godley v. Gowen, 154 P. 141. 1064 (Cal.App.) In action for injuries to employé 20 years old, held that, though fact of minority should not have been presented in the instructions as affecting his responsibility, the jury could not have been materially influenced thereby.-Congdon v. California Drug & Chem-1071 (Idaho) Though part of the findings ical Co., 154 P. 1062. 1064 (Idaho) In an action on a fire insurance policy, held, that an erroneous instruction that in arriving at the loss the jury should "determine the same by ascertaining the cash value of the lumber in the millyard," instead of the cash value of the total amount destroyed, was harmless where, in view of the evidence, the jury could not have been prejudicially misled thereby.-Carroll v. Hartford Fire Ins. Co., 154 P. 985. are not fully supported by the agreed stipulation of facts, the case will not be reversed where the law applicable to the agreed statement supports the judgment.-McKune v. Continental Casualty Co., 154 P. 990. 1071 (Okl.) The making of a finding of fact on a matter on which all evidence was excluded held not to require a reversal where the other findings sustained the judgment and were supported by evidence.-Freeman v. State Board of Medical Examiners, 154 P. 56. 1064 (Kan.) That through a typographical1071 (Okl.) The trial court's finding that error the name of "plaintiff" was inserted in an instruction in place of "defendant" held not to require a reversal, where the jury could not have been misled thereby.-Rorschach v. Diven, 154 P. 268. proof of loss of a written contract authorizes the admission of secondary evidence as to its contents, will not be disturbed, unless clearly party.-Marker v. Gillam, 154 P. 351. erroneous and injurious to the complaining 1064 (Okl.) Giving of instruction which, as 1073 (Cal.App.) Where a judgment is eran abstract proposition, is erroneous, but, when roneous only in that it fails to include nominal applied to the evidence, has the same meaning damages, it will not be reversed, unless it be as it would have had if strictly correct, is harm-made to appear that such damages, if allowed, less. Gutenberg Mach. Co. v. Husonian Pub. would have carried costs.-Lund v. Lachman, Co., 154 P. 346. 1064 (Okl.) That the court misnamed an instruction to be on "implied warranty," instead of on tort, held harmless, where the instruction clearly sounded in tort and it was improbable that the jury were misled.-Summers v. Gates, 154 P. 1159. 154 P. 295. 1074 (Wyo.) If it was not prejudicial error for the trial court to allow amendment to the disturb the judgment on such ground.-Stockbill of exceptions, the Supreme Court cannot growers' Bank of Wheatland v. Gray, 154 P. 593. (K) Subsequent Appeals. 1066 (Ariz.) In an action to recover for selling defendant's drug business under employ-1097 (Wash.) A decision by the court on a ment by defendant's special agent, instruction former appeal constitutes the law of the case. that the issue was whether plaintiff had earned -Smith Sand & Gravel Co. v. Corbin, 154 P. 150. a commission according to the terms of his contract, ignoring the issue of the power of the special agent to employ plaintiff, held prejudicial to defendant.-Brutinel v. Nygren, 154 P. 1042. XVII. DETERMINATION AND DISPOSITION OF CAUSE. (A) Decision in General. 1066 (Utah) Where servant's complaint al-1106 (Okl.) Under Rev. Laws, § 5243, where leged spinal injuries, but defendant's evidence on appeal a direct issue of fact is raised by a together with plaintiff's disclosed rib fractures, and defendant failed to request a charge excluding its consideration, but excepted to a charge including that issue, and failed to assail the verdict finding it negligent, the error, if any, in submitting that issue, was harmless. -Woodward v. Daly-West Mining Co., 154 P. 782. motion to dismiss, plaintiff in error alleging that he did not intend to take time to plead and that the journal entry giving such time was entered in his absence without his consent, and defendant in error denying these statements, and the record not showing the true conditions, the case will be remanded to the trial judge to find the facts.-Campbell v. Thornburgh, 154 P. 574. |