review such a question, but whether it should do so or not de-
pends upon the facts and circumstances of the particular case.
Cappon v. O'Day,

486
2. Under sec. 2405m, Stats., the supreme court may grant relief to
an appellant if it appears that the real controversy has not been
fully tried or if it seems probable that justice has miscarried,
though the issue raised in that court was not raised by the plead-
ings or otherwise in the court below and there was no ruling or
exception which brings the question before the supreme court.
Dupont v. Jonet,
554

Same: Exceptions to findings: Bill of exceptions.

3. Exceptions to the trial court's findings were not filed until after
the time limited by sec. 2870, Stats.; but a copy thereof marked
"duplicate" is in the bill of exceptions and the trial court cer.
tified that the bill contained "the exceptions filed to the find-
ings." Held, that such exceptions must be deemed to have been
filed by leave under sec. 2831, Stats., and that they are suffi-
ciently incorporated in the bill of exceptions. Heins v. Thomp-
son & Flieth L. Co.

Same: Motions for new trial and to vacate judgment.

563

4. It appearing in this case that a motion for a new trial, made on
the day after judgment had been entered without notice, was
treated by the trial court as in effect a motion to vacate the
judgment, it is held that, under all the circumstances, it should
have that effect, so that on the appeal from the judgment the
questions raised are properly before the court. Galst v. Ameri-
can Ladder Co.
307

Undertaking on appeal: Duty of attorneys, when party cannot furnish.
5. Although a tort action is being prosecuted by plaintiff's attorneys
under a contract, made pursuant to secs. 2591a, 2591m, and
2591n, Stats., that their fees shall be contingent on the result
and that they shall have a lien on the cause of action and on the
damages recovered, and although said attorneys are able to fur-
nish the undertaking required by sec. 3052 on appeal, they are
not to be considered as in effect parties to the action, and so lia-
ble for costs or bound to furnish such undertaking, especially
in view of sec. 2590, which prohibits attorneys from becoming
sureties for their clients; and if the plaintiff is unable to fur-
nish the undertaking, he is entitled to a certificate of that fact
as provided in sec. 3052m, and the undertaking need not be
given. State ex rel. Malouf v. Merrill,
138

Printed case and briefs. See COSTS, 4, 5.

Review: Findings: Supplying omission.

6. The lack of a specific finding by the trial court of a fact shown by
uncontradicted evidence to exist will, when necessary, be sup-
plied by the supreme court on appeal. Laughnan v. Estate of
Laughnan,
348

Same: Questions of fact.

7. The decision of the circuit court that the evidence in a case does
not present a jury question must, on appeal, be regarded as
right unless the contrary clearly appears. Kuchler v. Milwau-
kee,
320

Affirmance and reversal: Material and immaterial errors. See As-

SAULT, 3. ATTORNEY AND CLIENT, 2.
AGES, 2. LIBEL AND SLANDER, 2, 3.
WITNESSES.

CRIMINAL LAW, 4. DAM.
MASTER AND SERVANT, 4.

8. An erroneous judgment will not be reversed when recovery is for
no more than a nominal amount. Barnard v. Cohen,
417

9. The erroneous admission of immaterial evidence will not work a
reversal of a judgment based on the verdict of a jury, where
that verdict would have been the same if such evidence had
been excluded. Russell T. Co. v. Kenfield-Lamoreaux Co. 136
Disposition of case: Directing judgment. See RAILROADS, 13. TAX-
ATION, 10.

Same: Failure to file case or brief: Double costs. See COSTS, 5.
Appeal from Milwaukee civil court.

10. Upon an appeal from the Milwaukee civil court the circuit court
should order a new trial only in case substantial justice cannot
otherwise be done. Thus, where plaintiff was entitled, upon the
evidence in the civil court, to recover $65 and no more, but had a
verdict and judgment in that court for a larger sum, the circuit
court should merely have reduced the recovery to $65, and
should not have ordered a new trial. Donovan v. Northwestern
School for Stammerers,

Appeal from county board. See Costs, 2.

APPEARANCE.

331

1. Whether the appearance of a party for the purpose of making a
motion in an action is a general or a special appearance does
not necessarily depend upon the designation given it, but is to
be determined, in case of doubt or dispute, from the nature and
object of the appearance and the issues necessarily raised and
litigated thereby. Driscoll v. Tillman,

245
2. If an appearance is for the sole purpose of moving to vacate an
order or judgment for lack of jurisdiction because of no service
of process on the appearing party, the appearance is special,
whether so designated or not; but if he asks for relief which
can be granted only by a court having jurisdiction of his person,
the appearance will be held to be general though denominated
as special.
Ibid.
3. Where a party appeared for the sole purpose of having a judg-
ment vacated so far as it affected his property on the ground
that he was not served in the action, immaterial allegations in
his petition showing how he was damaged thereby should not
be held to make his appearance a general one, especially where
the issue claimed to be raised by such immaterial allegations
was not litigated and did not enter into the court's disposition
of the case.
Ibid.

APPLICATION OF PAYMENTS. See GUARANTY, 5. PAYMENT.
APPROPRIATIONS by county board. See COUNTIES, 9.

ARGUMENT OF COUNSEL. See CRIMINAL LAW, 4.

ASSAULT.

1. The use of firearms against members of a charivari party cannot
be justified except where personal violence is threatened and it
seems to be necessary for self-defense. Bruno v. State,

377

2. Upon a trial for assault with intent to do great bodily harm, a
statement of the trial judge in his instructions to the jury as to
the testimony of a witness who identified the defendant by his
voice, is held to have been entirely correct.
Ibid.
3. Although in such case the defendant denied the act charged, i. e.
the firing of a shotgun into a charivari party, it being possible
under the evidence that the jury might disbelieve his story and
find that he fired in lawful self-defense, the error, if any, in
submitting to the jury the question of self-defense was one fa-
vorable to defendant.

Ibid.

ASSESSMENTS paid to benefit society after death of insured: Recovery.

See INSURANCE, 7.

ASSIGNMENT.

Of claims or causes of action. See ATTORNEY AND CLIENT, 1, 2.

Of liquor license. See INTOXICATING Liquors, 8.

Of mortgage. See EXECUTORS, 1-3.

ASSUMPTION OF RISK. See MASTER AND SERVANT, 6, 11, 12, 17.
ATTESTATION.

See WILLS, 5, 6.

ATTORNEY AND CLIENT.

See APPEAL, 5. EXECUTORS, 1. FRAUD, 1.

Agreement between attorneys: Public policy: Assignment of claims.
1. An agreement between a firm of lawyers and another lawyer, pur-
suant to which the latter went around among the sufferers from
a flood and persuaded them to employ the firm to prosecute their
damage claims and to assign their claims to one person for the
purpose of facilitating the litigation, was against public policy,
and the courts will not assist said lawyer to recover anything
from the firm for his services in carrying out that agreement,
whether such services were rendered before or after the procur-
ing of the assignments. Ellis v. Frawley,
381
2. A judgment against the firm for the value of such services must
be reversed on appeal even though the objection that the agree-
ment was against public policy was first raised in the appellate
court.
Ibid.
Action for services: Counterclaim for fund received by attorney in
trust.

3. In an action by an attorney at law against a bonding company to
recover for services and disbursements, it is held that the un-
disputed evidence shows that plaintiff was retained by defend-
ant in the matters concerning its liability on a fidelity bond,
and that the jury's finding as to the amount which plaintiff
was entitled to recover is sustained by the evidence. Wheelan
v. United States F. & G. Co.
394

4. A claim having been made against defendant upon a fidelity bond
by which it had insured a city to the amount of $2,500 against
loss through larceny or embezzlement by one C., a city em-
ployee, defendant retained plaintiff, an attorney, in the matter,
but afterwards, against his advice, paid $2,500 to the city on
account of said claim. Thereafter, in a criminal action for
larceny and embezzlement, C., who was defended by plaintiff,
was acquitted. In this action to recover for services rendered
by plaintiff to defendant the latter counterclaimed for $2,500

on the ground that money to that amount had been sent by
relatives of C. to his wife and had been turned over to plaintiff
subject to a trust for the benefit of defendant, and that it was
to be used to pay any shortage in C.'s accounts with the city
and to discharge the liability of C. to defendant and the liabil-
ity of C.'s father upon an indemnity bond which he had given
to defendant. The jury found that the fund so received by
plaintiff was not sent to C.'s wife to be used solely for the pur-
poses thus alleged. Held, upon the evidence, that such finding
is not clearly wrong, and hence it must stand.
Ibid.
5. Although a certificate of deposit of the money so received by
C.'s wife was indorsed by her to plaintiff, and he deposited the
same, as attorney for the defendant, it appears that this was
done for the sole purpose of preventing garnishment of the
fund by C.'s creditors; and the undisputed evidence shows
that plaintiff did not receive it to hold as the attorney or agent
of the defendant, but was to use it for the benefit of C. in de-
fending the criminal action, to protect C.'s father against lia-
bility on his indemnity bond, and, so far as possible, to dis-
charge the liability of C. to the city if he should be found guilty
of larceny or embezzlement.
Ibid.

6. It having been established that plaintiff does not hold said
$2,500 fund for the purpose of discharging any liability of C.
to the defendant, and C. not being a party to this action, the
question whether C. had been guilty of larceny or embezzle-
ment of the city's funds so as to become liable to defendant is
not a proper issue to be determined on defendant's counter-
claim; and until such a liability has been legally established
defendant cannot assert a liability of C.'s father on the in-
demnity bond. Evidence offered by defendant to show that C.
was guilty of larceny or embezzlement was, therefore, properly
excluded in this action.

AUTHENTICATION of foreign judgment. See JUDGMENT, 11.

Ibid.

AUTOMOBILES.

Negligence: Injury to street-car passenger: Violation of ordinance
and statute.

1. A person crossing from the curb to enter the rear door of a street
car, which was open for the reception or discharge of passengers,
had assumed the position of a passenger within the meaning of
a city ordinance and sec. 1636-49, Stats., requiring the driver of
an automobile to stop when a street car is taking on or discharg-
ing passengers. Zimmermann v. Mednikoff,
333

2. The fact that the driver of an automobile violated the duty to
stop imposed upon him by ordinance and statute did not ab-
solve such passenger from his duty to exercise ordinary care for
his own safety.
Ibid.

3. A person who was struck by an automobile while crossing from
the curb and about to enter the rear door of a street car, which
was open to receive him as a passenger, had the right to pre-
sume that the driver of such automobile would comply with said
statute and ordinance, and hence was not guilty of contributory
negligence as a matter of law in attempting to enter the car as
he did, even though he had not looked in the direction from
which the automobile came.
Ibid.

4. It being undisputed that while the street car was at a full stop,
with its rear door open as an invitation to passengers, and while
plaintiff was in the act of approaching to enter, an automobile,
owned by one defendant and driven by the other as agent of the
owner, started from a point of rest and attempted, in violation
of the statute and ordinance, to pass the car, and in so doing
struck the plaintiff, the trial court properly found that plaint-
iff's injury was caused by defendants' negligence.
Ibid.
Same: Collision with vehicle.

5. In an action for injuries alleged to have been caused by defend-
ant's negligence in running his automobile into plaintiff's buggy,
a finding by the jury that plaintiff's buggy was moving away
from the traveled track, to the right, when struck by defendant's
automobile approaching from the rear is held to be sustained by.
the evidence. Hoppe v. Petersen,
200

BANKS AND BANKING.

See BILLS AND NOTES, 4. INDEMNITY.

1. The words "Correct, Attest" followed by the signatures of bank
directors, appended to a report transmitted to the commissioner
of banking as showing the condition of the bank, mean not only
that such directors bear witness but that they affirm the report
to be true. Eland State Bank v. Massachusetts B. & I. Co. 493
2. Public policy as well as private rights require that officers of
banks should be held to strict accountability in the discharge of
their official duties.
Ibid.

BENEFIT ASSOCIATIONS: Rights of beneficiaries: Change. See INSUR-
ANCE, 8-13.

Validity. See HUSBAND AND WIFE, 1. SUNDAY.

Same: Delivery: Conditional or absolute: Gifts.

1. A judgment holding valid a note given by a son to his father,
since deceased, is held to have been proper, notwithstanding the
verdict of a jury to the effect that at the time the note was given
the father made a gift to the son of the amount for which it was
given the evidence, so far as it tends to show a gift, being in
direct contradiction of the plain terms of the note itself, and
the undisputed testimony showing that the delivery of the note
was not conditional, but absolute. Estate of Winzenried, 63
2. There having been no attempt by the father to transfer the title
to the note, such as by indorsement and conditional delivery,
evidence of oral statements by the father subsequent to the
making of the note was not competent to contradict its terms.
Ibid.

Same: Consideration.

3. Where the payee in a note made by father and son accepted there-
for, after the father's death, a note of the widow (to whom the
estate of her husband had come), and thereby waived a claim
against said estate and also discharged the indebtedness of the