but goes to trial before the court, in an action to quiet title
where only legal titles are involved in a suit to establish the
right of possession to mining ground, and makes no objec-
tion on the ground that a jury trial was not had until the
case has reached the appellate court, it will be presumed that
a trial by jury was waived. Perego v. Dodge, 3.
2. Where a motion for new trial was made upon the minutes
of the court, and an affidavit filed along with the notice of
motion for new trial; and said minutes of the court, and
notice of intention, and affidavit upon motion were not em-
bodied in any bill of exceptions, or statement of the case,
held that neither the minutes, notice, nor affidavit were
properly in the record or before the court for review. Id.
3. Where the district court refused to dismiss an appeal from
a justice's court on account of failure to file in time, and
the record was silent as to whether or not the rules govern-
ing such appeals had been complied with, held that such
action of the district court would not be disturbed. Hynd-
man v. Stowe, 23.
4. Where a case is tried in a court of equity and findings
made upon the evidence by the court, such findings are con-
clusive upon the appellate court, unless they are so mani-
festly erroneous as to demonstrate some oversight or mistake
in the trial court. Dooly Block v. Rapid Transit Co., 31.
5. The verdict of a jury or the finding of a court, where there
is a conflict of the testimony, will not be set aside by the appel-
late court, unless the verdict or finding is manifestly against
right and justice. Smith v. Railway Co., 141.
6. Appeals are wholly statutory and are given only by virtue
of statutory law, and then such appeal is subject to all the
restrictions prescribed by the law. Benson v. Anderson, 154.
7. Where the statutes of Utah Territory require an undertak-
ing for an appeal, and that if the undertaking be not given
the appeal shall be dismissed, under section 1 of Act of
March 10, 1892, providing that any person may commence a
civil action without giving security or making a deposit fee
by taking an oath therein prescribed, an appellant is not
entitled to file such an affidavit for the purpose of taking
an appeal, and thereby be relieved from the necessity of giv-
ing an undertaking. Id.
8. The rule of the supreme court, made in pursuance of the
Poland Bill, provided that any party entitled by reason of a
personal interest to ask for or to oppose any judgment or
decree in the probate court, may appeal from the judgment
or decree adverse to his interest to the district court; held
that appellants, who had an interest in the estate, could
appeal from an order refusing to remove an administratrix
of the estate, and revoke the letters of administration.
Estate of Reese, 171.
9. Semble that on appeal from the probate court to the district
court, no bill of exceptions is necessary, but the record con-
sists of all the papers in the probate court having connec-
tion with the order appealed from, which papers continue
to be the judgment roll on appeal from the district court to
supreme court without being incorporated in any bill of ex-
ceptions, following Estate of Moulton, ante. Id.
10. The instructions given to the jury in the trial court should
be considered all together, and even although detached parts
of the instruction may appear to be erroneous, yet if the
charge, considered all together, correctly presents the law, it
will not be considered erroneous. Hamer v. National Bank,
215.
11. The findings of a referee which have been adopted by the
court will not be disturbed unless it is clearly manifest that
there was error or oversight. Hannaman v. Karrick, 237.
12. An order of the district court dismissing an appeal from a
justice's court, for failure to docket the same within thirty
days after receipt of the papers by the clerk of the district
court, will not be reversed on appeal unless a clear abuse of
judicial discretion be shown, and the fact that the attorneys
for appellant did not know of the rule, and that on the same
day the appeal was dismissed they appeared in court and
offered payment of the docket fees, is not a sufficient show-
ing. Henderson v. Higgins, 290.
13. Where the lower court has granted a new trial upon con-
flicting evidence, because the verdict is against the weight
of the evidence, in the absence of any showing that the
court has abused its discretion, such ruling will be affirmed.
Tousey v. Etzel, 330.
14. Under rules and 4 of the supreme court, a failure to file
the transcript on appeal, is cause for dismissing the appeal.
Bank v. Morgan, 369.
15. Under rule 8 of the supreme court, where the appellant
fails to file an abstract of the transcript as required by the
rules of the supreme court, the appeal will be dismissed.
Bonesteel v. Fairchild, 371.
16. Under rule 10 of the supreme court, where the appellant
fails to file his brief in accordance with the rule, the appeal
will be dismissed. Emerick v. Ogden, 372.
17. In this case the supreme court refused to settle the bill of
exceptions in a case where a contest having arisen over the
settlement in a lower court, the matter was brought into the
supreme court by an appeal and a motion made in the
supreme court to settle the record. Cache County v. Kiesel,
18. Where the evidence is conflicting, the verdict will not be
disturbed, unless it is so manifestly against the weight of
the evidence, as to show that the evidence is insufficient or
that the jury acted from prejudice or passion. Farr v.
Griffith, 416.
19. Where the verdict does not appear to be excessive, the
quantum of damages fixed by the jury will not be disturbed.
Id.
20. Where a complaint is filed suing for conversion of goods
and the breaking up of plaintiff's business and injury to
plaintiff's credit, and defendants set up a counter-claim
founded on promissory notes, which indebtedness was cre-
ated by the purchase of defendants from plaintiffs of the
goods, whose conversion is sued for, and no objection is
made by either party to such issues, and the whole issue is
tried before the jury, it is too late to raise the question in
the appellate court, that plaintiffs waived the tort by not
objecting to the counter-claim. Wimmer v. Simon, 378.
21. Where the evidence as to the participation of one defend-
ant in the tort is conflicting, the verdict of the jury will
not be disturbed. Id.
22. A general exception to a charge as a whole will not avail
to review the charge, if any part of it is correct, and a failure
to except to the refusal of certain instructions to charge
requested, precludes error being assigned thereon, Smith, J.,
dissenting. People v. Berlin, 383.
23. Where it appears from the record that no exception was
taken either to the charge as given or to the refusal to give
instructions requested, no error can be assigned thereon.
Hadra v. Bank, 412.
24. Where the lower court, in dismissing an appeal from a jus-
tice's court under the rule requiring the papers on appeal
from the justice's court to be filed in the district court
within thirty days of their receipt, has passed upon the
question of excusable negligence in not filing, the decision
of the lower court will not be disturbed by this court on
appeal. Van Wagonen v. Barben, 481.
25. The appellate court will make a proper decree upon the
findings and evidence before it and direct its entry by the
lower court. Canal Co. v. Edwards, 477.
26. Even though the court is satisfied that a smaller amount of
damages would have been sufficient, yet where the amount
has been passed upon by the jury and by the court, the
verdict will not be disturbed on appeal. Naylor v. Salt Lake
City, 491.
27. Where no exception appears in the record to the refusal of
the court to permit cross-examination of certain witnesses by
each of three defendants, the ruling will not be considered
on appeal. Id.
ASSESSMENT.-See CORP., 9, 10, 11, 12.
ASSIGNMENT.-See ACTION, 1, 2, 3.
ASSIGNMENT FOR CREDITORS.
1. An assignment for the benefit of creditors made by a part-
nership, which assigns all the partnership property, and pre-
fers creditors of individual partners, who loaned morey to
the individual partners, knowing it was to go into the part-
nership business, and that both partners were, at the time
of so loaning, insolvent is fraudulent in fact.
Smith v.
Sipperly, 267.
2. An assignment for the benefit of creditors which contains
preferences which are made with a fraudulent intention and
which is fraudulent in fact, is wholly void, irrespective of
the fact, whether or not the assignee or beneficiaries knew
of the fraud or were party to the fraud. Id.
ASSIGNMENT FOR CREDITORS-Continued.
3. Where an assignment for the benefit of creditors is attacked
on the ground of fraud in fact, it is necessary to show that
the fraudulent acts complained of affected the assignment
in some way, by being participated in by the assignee. Pet-
tit v. Parsons, 223.
4. Where, in an assignment by partners for the benefit of
creditors, a brother of one of the partners, who is a bona fide
creditor of the partnership, is made one of the preferred
creditors, such preference is not itself fraudulent. Id.
5. Where it appeared that prior to the making of the deed of
assignment, partners made a bill of sale and chattel mort-
gages to certain of their creditors, but that neither the deed
of assignment nor the assignee had any connection with the
bill of sale and chattel mortgages claimed to be fraudulent,
and where the assignee actually took possession and held the
property under the deed of assignment, evidence of the bill
of sale and chattel mortgages was immaterial. Id.
Where it appears that the appellant forbade payment of his
own check, because indorsed by a person in a bank, who
was not cashier, but who had authority to sign the cashier's
name, and in consequence the check was protested, held
that no damages could be recovered therefor. Hadra v.
Bank, 412.
BILL OF EXCEPTIONS.-See APPEAL, 2, 9, 17.
Semble that after a bill of exceptions has been settled, signed
and certified by the court, it has no right to amend the same
by an ex parte order. American Publishing Co., v. Mayne
Co., 318.
CALLS.-See CORPORATIONS, 14.
CHANCERY JURISDICTION.-See EQUITY, 2.
CHATTEL MORTGAGE.-See MORTGAGES, 1.
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