Peterson v. Widule, 157 Wis. 641.

eases are generally brought into the family by the husband rather than by the wife. The legislature was justified in so deciding.

It is probable that in an action by a doctor under thirty years of age but otherwise qualified, or by an applicant for a license who held a certificate from such physician as is last described, that portion of the statute in question which requires the applicant for a marriage license to present to the licensing officer the certificate of a physician "at least thirty years of age" would be held invalid under the rule of Smith v. Texas, 233 U. S. 630, 34 Sup. Ct. 681. But the relator is in no position to raise this question, and the last mentioned part of the act is clearly severable from the remainder and cannot be said to be either an inducement to the enactment in question or an essential part thereof without which the legislature would in all probability not have enacted the remainder of the statute. I find no ground for holding that part of the statute here involved unconstitutional.

BARNES, J. (concurring). I concur in the result, but do not agree with all that is said in the opinion.

INDEX.

ABANDONMENT. See BROKERS.

ABATEMENT AND REVIVAL.

See DIVORCE, 7.

A claim for an accounting in favor of one beneficially interested in a trust for the receipt of the rents and profits of real estate, is one which survives the death of the beneficiary. Estate of Hemphill, 331

ABUSE OF DISCRETION. See NEW TRIAL, 5. PLEADING, 10.

ABUTTING OWNERS.

See MUNICIPAL CORPORATIONS, 13-15, 19, 20.

ACCEPTANCE. See MUNICIPAL CORPORATIONS, 3, 4, 6.

ACCORD AND SATISFACTION. See ARBITRATION AND AWARD, 1.

ACCOUNTING. See APPEAL, 14, 15. ARBITRATION AND AWARD. EXECUTORS AND ADMINISTRATORS, 3, 4. TRUSTS AND TRUSTEES.

ACTION.

By whom may be brought-Who may maintain. See DEEDS, 3. TAXATION, 4.

Independent action. See DIVORCE, 6, 7.

At law or in equity? See NUISANCES, 1. PLEADING, 5–7.

Joinder of causes of action. See NUISANCES, 2. PLEADING, 2-8.
Bar to action. See ADVERSE POSSESSION, 1. JUDGMENT, 2.
TION, 3.

ADOPTED CHILD. See WILLS, 1-3.

SEDUC

ADVERSE PARTY. See APPEAL, 4. DIVORCE, 1. INSTRUCTIONS TO JURY, 2.

ADVERSE POSSESSION.

Statutes construed: Evidence.

1. Under sec. 4207, Stats., a continuous disseisin of the true owner for twenty years bars his right of action to recover real property or the possession thereof; and neither sec. 4212 nor sec. 4214 purports to enumerate all the conditions which constitute adverse possession. Zellmer v. Martin, 341

2. Evidence held sufficient to sustain a finding of title in defendant acquired by twenty years' adverse possession. Ibid.

3. Adverse possession must be exclusive of the true owner, but not necessarily exclusive at all times of temporary entries upon the lands by third persons not under claim of title; and in this case defendant's continuity of possession was not interrupted by occasional trespasses by the cattle of other persons straying in from the highway, nor even by such occasional and unintentional trespasses by cattle of the plaintiff. Ibid.

Presumptions: Abandonment of lease.

4. Evidence held to sustain a finding by the jury that a lessee of land had abandoned all claim to the property before creditors entered thereon, and to rebut any presumption that they held under an assignment of the lease or were tenants of the lessor. Illinois Steel Co. v. Budzisz, 16

5. The continuous occupancy of the premises by said creditors and
their successors for more than twenty years before the com-
mencement of an action by the true owner, raised a presump-
tion that their possession was adverse.
Ibid.

AFFIDAVITS. See APPEAL, 16. NEW TRIAL, 1. PLEADING, 10.

AGGRAVATION OF DAMAGES. See BREACH OF PROMISE OF MARRIAGE, 2, 3.

ALIENATION. See HUSBAND AND WIFE, 8-13.

AMBIGUITIES. See DEEDS, 1. HUSBAND AND WIFE.

AMENDMENT.

Of charter. See CORPORATIONS, 1, 6-15.

Of pleading. See PLEADING, 10.

ANSWER. See HUSBAND AND WIFE, 10. PARTIES, 2.
ANTENUPTIAL CONTRACTS. See HUSBAND AND WIFE, 1-5.

APPEAL AND ERROR.

Decisions reviewable: Appealable orders.

1. There can be no appeal to the supreme court except as authorized
by statute. Wildes v. Franke,
189
2. An order of the circuit court affirming an order of the civil court
of Milwaukee county vacating a judgment of the latter court
immediately after its entry, is not appealable under sec. 3069,
Stats. 1913.
Ibid.

[3. Whether such order of the civil court was appealable to the cir-
cuit court, not determined.]
Ibid.
4. An order of the circuit court affirming an order of the Milwaukee
civil court suppressing an examination of the defendant under
sec. 4096, Stats., until after the service and filing of the com-
plaint, is not appealable. Baumgarten v. Matchette,
230

5. A motion made by defendant, after a judgment by default, to set
aside the service of the summons and all subsequent proceed-
ings on the ground that the service was void, is in effect a
summary application made after judgment to vacate it for
want of jurisdiction, and an order denying such motion is ap-
pealable under sub. 2, sec. 3069, Stats. Rix v. Sprague C. M.
Co.
572

Persons entitled to appeal. See APPEAL, 14, 15.

Parties: Joinder in appeal.

6. Separate appeals should not be taken by parties who are united
in interest so that they constitute really but one party, unless
their interests can be better protected thereby. Yates v. Yates,

Assignment of errors. See TRIAL, 3, 4.

219

Dismissal. See EXECUTORS AND ADMINISTRATORS, 4.
Review: Affirmance and reversal: Material and immaterial errors.
See APPEAL, 13. ASSAULT AND BATTERY. BREACH OF PROMISE
OF MARRIAGE. COURTS, 6. DIVORCE, 1. EVIDENCE, 3. FALSE
PRETENSES, 2. HUSBAND AND WIFE, 12, 13. INSTRUCTIONS TO
JURY, 2-5, 7. MASTER AND SERVANT, 11, 14, 23, 31. NEGLIGENCE, 5.
RAILROADS, 14. SALES, 1. STREET RAILWAYS, 3. TRESPASS.
TRIAL. WILLS, 3.

7. Where certain of the findings in a special verdict are sufficient to
support the judgment, alleged errors relating to other findings
are immaterial. Athanasiou v. Garton Toy Co.
280

8. Defendant's negligence being conceded, the fact that the court
answered the question relating thereto in the special verdict
did not constitute error on the ground that such answer indi-
cated to the jury that they should find plaintiff not guilty of
contributory negligence.
Ibid.
9. Defining correctly, in the charge, a word used in a question of
the special verdict, so as to inform the jury of the true mean-
ing of such question, is not error even though it informs the
jury of the effect of their answer to the question.
Ibid.
10. Where an instruction as to a material issue places upon a party
a greater burden of proof than the law requires, and the answer
is unfavorable to such party, the error is prejudicial. Heine-
man v. Old Nat. Bank,
289
11. Denial of a jury trial was not prejudicial error in a case where
the rights of the parties rest on undisputed evidence and were
for determination upon the record by the court. Thomas v.
Citizens Nat. Bank,
635

Determination and disposition of cause: Discretionary powers.
12. Where, on appeal to the supreme court, it appears that "the real
controversy has not been fully tried" or that justice has mis-
carried, that court may, under sec. 2405m, Stats., give relief
regardless of the failure to take proper exceptions or frame
proper pleadings, and may direct such procedure in the trial
court as shall be deemed necessary to accomplish the ends of
justice. Knudson v. George,
520

Same: Mandate on reversal. See DAMAGES, 6.

13. In an action against L. and D. for personal injuries, the special
verdict exonerated L. but found D. silty of negligence. Be-
cause of a supposed error in the charge respecting the liabil-
ity of L., an order granting a new trial was made upon plaint-
iff's motion and also, in form, upon the motion of D., but in
fact all questions raised by D. were decided against him. Upon
an appeal by L., D. appeared as a respondent. It appearing
that the charge was correct, the order for a new trial is re-
versed and judgment on the verdict directed in favor of L.
against plaintiff and in favor of plaintiff against D.
Lederer,

Appeal from Milwaukee civil court. See APPEAL, 3.

Smith v.
479

Appeal from county court. See EXECUTORS AND ADMINISTRATORS, 4.
14. H., one of the executors of a will, was also one of the residuary
legatees. His co-executor alone prepared and filed what pur-
ported to be the final account of the executors. The residuary
legatees filed objections to and contested the allowance of cer-
tain items, and from the judgment allowing them H. appealed
as executor. Held, that he was not precluded from appealing
in that capacity on the ground that as executor he had asserted
the correctness of the account and had objected to it only as
residuary legatee. His intention being manifest, the formal
objections filed by him as such legatee might, if necessary, be
treated as having been made by him as executor also. Will of
Hyde,
462
15. One executor may, without the consent or participation of his
co-executor, appeal from an order or judgment of the county
court which in his judgment does injustice to a residuary
legatee.
Ibid.