on appeal by the alternative method, if such evidence is not printed in the brief.-Jones v. American Potash Co., 169 P. 397.

| 847(2) (Colo.) As the verdict in an action to foreclose a mechanic's lien is only advisory, error cannot be assigned on the giving or refusal of instructions.-Stewart v. Breckenridge, 169 P. 543.

758(3) (Cal.) Where a party presented typewritten transcript on appeal under Code Civ. Proc. 8953c, requiring necessary portions 854(2) (Colo.) If judgment can be sustainof record to be in the appeal record, but in brief ed for any reason, it should be, though one on made no attack on the findings or their suffi- which it was based was erroneous.-Korf v. ciency, and pointed out no error of law, and Itten, 169 P. 148. failed to indicate the relief sought by the ac-854(5) (Mont.) A new trial will not be tion, or the nature of the judgment, there was granted where plaintiff was properly nonsuitnothing for review.-Scott v. Hollywood Park ed although wrong reason was assigned thereCo., 169 P. 379. for.-Barry v. Badger, 169 P. 34.

773 (5) (Okl.) Where plaintiff in error files and serves briefs, and defendant does not, court will not search record to sustain judgment; but where brief filed reasonably sustains any assignment of prejudicial error, will reverse. Butte v. Routh, 169 P. 891.

773 (5) (Okl.) Where plaintiff in error has duly served and filed his brief, and defendant in error had filed no brief nor excused his failure, court need not search record to find theory on which to sustain judgment, but where authorities cited in brief filed sustain assignments of error, may reverse.-St. Louis & S. F. R. Co. v. Lowrance, 169 P. 1086.

854(5) (Wash.) Withdrawal of issue of malpractice from jury held to be tested by the instruction given and the evidence in the record irrespective of court's remark as to absence of testimony of doctors or dentists.-Inglis v. Morton, 169 P. 962.

(B) Interlocutory, Collateral, and Supplementary Proceedings and Questions.

870(5) (Cal.) Rulings on demurrer are reviewable on appeal from final judgment.-Harmon v. De Turk, 169 P. 680.

XIII. DISMISSAL, WITHDRAWAL, OR parties of separate appeal from order denying

ABANDONMENT.

781(1) (Okl.) Where it is made to appear that question involved in appeal has become moot, action may be dismissed.-Hamon v. State, 169 P. 894.

~~781(2) (Okl.) In action to remove cloud of purported forged deeds with judgment against the parties claiming thereunder, where on error part of the defendants admitted that deeds were forged, the issue between parties affected by judgment was abstract, and petition in error will be dismissed.-Bartlett v. Atkins, 169 P. 1076.

870(6) (Cal.App.) Although Code Civ. Proc. § 963, as amended August 8, 1915, deprives motion for new trial, section 956, amended on like date, made such order reviewable on appeal from the judgment.-White v. Hendley, 169 P. 710.

(C) Parties Entitled to Allege Error.

877 (3) (Okl.) Parties having no right or interest in and to matter in litigation are not entitled to review of adjudication of issues in trial court on ground that judgment is void as against one who was never a party and whose rights cannot be, affected by adjudication.-Bartlett v. Atkins, 169 P. 1078.

pedestrian on sidewalk which it was the city's 882(12) (Wash.) In action for injuries to duty to keep reasonably safe for ordinary travel, conflict in instructions arising by giving instructions requested by the city defining its duty as to portions of street not used for public traffic was, if error, harmless to the city.-Lund v. City of Seattle, 169 P. 820.

782 (Kan.) Supreme Court having no jurisdiction under Civ. Code, § 566 (Gen. St. 1915, 8 7470), where amount involved is less than $100, will dismiss appeal where district court had jurisdiction.-Ridgway v. Wetterhold, 169 P. 1159. 786 (Ariz.) Where, after an appeal was perfected, no subsequent steps were taken to prosecute the appeal to effect, the appeal will882(14) (Okl.) Where plaintiff in error inbe dismissed, as taken for delay.-Mounce v. Garrett, 169 P. 458.

XV. HEARING AND REHEARING.

818 (Kan.) Where litigant brings intermediate appealable order of district court to Supreme Court, he loses no rights by suggesting to district court advisability of continuing cause until Supreme Court has determined question presented by appeal.-Leslie v. Proctor & Gamble Mfg. Co., 169 P. 193.

XVI. REVIEW.

terposes a demurrer to the evidence in behalf of its codefendants as well as for itself, and the demurrer is sustained as to its codefendants, it is in no position to complain.-National Bank of Commerce v. Fish, 169 P. 1105.

882 (20) (Kan.) Where defendant moves to confirm referee's findings of fact, and to set aside his conclusions of law, and court confirms both findings and conclusions, defendant_cannot question correctness of findings.-Home State Bank v. School Dist. No. 17, 169 P. 202.

(E) Presumptions.

907(1) (Cal.) Under Code Civ. Proc. § 583, requiring, in absence of stipulation, dismissal of suit where not prosecuted within five years, held, it would be presumed that there was stipulation where record showed nothing to contrary.-Richmond v. Julian Consol. Mining Co., 169 P. 356.

(A) Scope and Extent in General. 837(1) (Cal.App.) On review of an order for change of place of trial for local prejudice, only facts set forth in affidavits, and such other facts as were before court and had been made part of record, can be considered.-J. I. Case Threshing Mach. Co. v. Copren Bros., 169 P.907(2) (Cal.) In an appeal on the judgment roll alone, it is conclusively presumed that the evidence supports the findings.-Dixon v. Bartlett, 169 P. 236.

443.

843(3) (Cal.) Evidence which is part of main case presumably will be introduced in proper sequence on second trial.-Tower v. Humboldt Transit Co., 169 P. 227.

843(4) (Cal.) Where, had motion to strike been denied the complaint would nevertheless have been obnoxious on general demurrer interposed, it is unnecessary to consider alleged error in granting motion.-Fairchild v. Western Securities Corp., 169 P. 363.

907(2) (Cal.) Where no evidence is brought up by record, it will be assumed that findings are fully supported.-Harmon v. De Turk, 169 P. 680.

911(3) (Mont.) Where attack on judgment by default on constructive service is direct, by appeal, there are no presumptions in favor of jurisdiction; but jurisdictional facts must

appear on face of record.-English v. Jenks, | ing, is not subject to review in absence of 169 P. 727. abuse.-Funk v. Horrocks, 169 P. 805.

912 (Cal.App.) On appeal from order to 979(2) (Wash.) On grant of a second trial change place of trial from county of defend- for insufficiency of the evidence, on appeal the ants' residence on motion of plaintiff, a for- test is whether it is more probable that the eign corporation, court cannot presume that court is correct in its holding than is the vercitizens of county are incapable to administer dict of the jury.-McCabe v. Lindberg, 169 P. justice fairly between a foreign corporation 841. and citizens.-J. I. Case Threshing Mach. Co. v. 979(2) (Wash.) Action of trial court in Copren Bros., 169 P. 443. granting new trial, where it was necessary to pass upon weight and sufficiency of evidence, will not be interfered with where no abuse of discretion is shown.-Nelson v. Washington Water Power Co., 169 P. 896.

927(6) (Utah) Every presumption must be indulged on appeal in favor of correctness of judgment below, and, in absence of anything in record to contrary, Supreme Court must presume trial court properly directed judgment for defendant.-Hutchison v. Smart, 169 P. 166.

(G) Questions of Fact, Verdicts, and Findings.

987(1) (Utah) Supreme Court is not authorized by Constitution to inquire into or consider weight of evidence.-Pratt v. Utah Light & Traction Co., 169 P. 868.

930(2) (Idaho) Where instructions taken as a whole correctly state the law and are not inconsistent, but may be fairly harmonized, it will be assumed that jury gave due consideration to whole charge, and was not misled by any isolated portion thereof.-Brayman v. Rus-994(3) (Cal.App.) In view of Code Civ. Proc. 1963, subd. 11, providing that property sell & Pugh Lumber Co., 169 P. 932. found in one's possession is presumed to be his, credibility of witnesses appearing in support of third party claim in attachment was for the trial judge, and not reviewable.-Easterly v. Praul, 169 P. 396.

930(2) (Okl.) Where instructions correctly stated elements of damages, and did not permit consideration of other matters, it will not be presumed that jury considered matters_other than those submitted.-Ft. Smith & W. R. Co. v. Moore, 169 P. 904.

931(1) (Cal.) Presumption of payment from lapse of the time held not to avail against court's findings of nonpayment, based on evidence.-Savings Union Bank & Trust Co. v. Crowley, 169 P. 67.

995 (Kan.) Although records of railroad made before fire could have been known to have occurred, showing that no train was operated at or near where it occurred are entitled to great weight, Supreme Court cannot weigh their effect as against testimony that witnesses saw engine operating at that time.Smith v. Bush, 169 P. 217.

jury on findings that plaintiff was without fault, that insufficiency of guard rails on bridge required by Gen. St. 1915, § 722, was proximate cause of injury, and that township trustees had notice of defect, judgment against township could not be disturbed.-Holcomb v. Clifton Tp., Wilson County, 169 P. 211.

931(7) (Colo.) In action on building contract, it could not be assumed that court's conclusion rested on certificate of discharged archi-1001(1) (Kan.) In action for personal intect, where there was testimony on each point involved. Stewart v. Breckenridge, 169 P. 543. 934(1) (Cal.) All presumptions indulged in are in favor of the regularity of the judgment and proceedings upon which it is based; hence it devolves upon an appellant to affirmatively show the existence of the error upon which he1001(1) (Okl.) Where there is any evidence asks for a reversal.-Scott v. Hollywood Park Co., 169 P. 379.

934(2) (Cal.) Findings being waived, judgment for plaintiff imports that court found for him on all material issues.-Harmon v. De Turk, 169 P. 680.

reasonably tending to support the verdict, it
should not be disturbed.-American Nat. Bank
v. Stapleton, 169 P. 494.
some evi-

1001(1) (Okl.) Where there is
dence reasonably supporting the verdict. the
Supreme Court cannot disturb it.-Clark v.
Buff, 169 P. 619.
there is evidence
1001(1) (Okl.) Where
tending to support jury's finding, it will not be
disturbed.-Egan v. First Nat. Bank of Tulsa,
169 P. 621.

(F) Discretion of Lower Court. 956(2) (Okl.) Finding of trial court that good cause is shown for extending time for making and settling a case-made cannot be reviewed on appeal.-State Exch. Bank of Elk1001 (1) (Okl.) Where there is any compeCity v. National Bank of Commerce of St. tent evidence to support the verdict. it will not Louis, Mo., 169 P. 482. be disturbed.-Baker v. Dorsson, 169 P. 1071.

957(1) (Cal.) Discretion of trial court as to relieving defendant from default will be sustained, unless abused.-Lynn v. Knob Hill Improvement Co., 169 P. 1009.

957 (1) (Mont.) Order setting aside a default, made upon consent of counsel in open court, will not be reviewed.-State v. District Court of Eighteenth Judicial Dist. in and for Hill County, 169 P. 1181.

1001(1) (Okl.) If there is any evidence including any reasonable inference which the jury might have drawn reasonably tending to support the verdict, the Supreme Court will not reverse for insufficient evidence.-Allen v. Shepherd, 169 P. 1115.

1001(1) (Utah) Verdict on substantial evidence is conclusive.-Wrathall v. Miller, 169 P. 946.

977(3) (Cal.App.) Order granting new trial 1001(3) (Okl.) Where there is no compebeing largely in trial court's discretion will not tent evidence to sustain the verdict, the cause be reversed where based upon sharply conflict- will be reversed.-American Nat. Bank v. Staing evidence.-Mayer v. Goldman, 169 P. 412. pleton, 169 P. 494.

977(3) (Okl.) An order granting a new trial will be affirmed, unless trial court erred upon pure and unmixed question of law.-McBride v. O. K. Houck Piano Co., 169 P. 889.

1002 (Cal.App.) In action for death, verdict on conflicting evidence held conclusive, though only witness whose testimony supported the verdict was plaintiff's brother, and his testimony was contradicted by a number of other witnesses.-Marks v. Reissinger, 169 P. 243. on conflicting 1002 (Cal.App.) A verdict evidence will not be disturbed.-Burrell Southern California Canning Co., 169 P. 405. 1002 (Colo.) Findings on conflicting evi979(2) (Wash.) Discretion of court in dence should not be disturbed.-Korf v. Itten, granting new trial, where evidence is conflict-169 P. 148.

979(2) (Okl.) In replevin to recover possession of piano sold to plaintiff, held, on the evidence, that order granting plaintiff new trial because verdict and judgment were contrary to evidence was not error.-McBride v. O. K. Houck Piano Co., 169 P. 889.

V.

1002 (Idaho) A verdict on conflicting evidence will not be disturbed.-Brown v. Hardin, 169 P. 293.

1002 (Okl.) Where the evidence is conflicting, a verdict will not be disturbed, if there is any evidence reasonably tending to support it. -Proctor v. Capps, 169 P. 894.

1003 (Or.) The verdict of a jury forecloses debate about the weight of the evidence.-Rothchild Bros. v. Kennedy, 169 P. 102.

1004(2) (Wash.) Verdict for damages for conversion found on conflicting evidence will not be held excessive, where there was nothing indicating that jury was actuated by passion or prejudice.-Kimball v. Betts, 169 P. 849.

1008(1) (Or.) In a suit to foreclose a lien on an automobile for repairs, the findings of the trial court, who had an opportunity to hear the witnesses and to observe their demeanor, should be given great weight.-Pierce Arrow Sales Co. v. Irwin, 169 P. 129.

provide misconduct could be established by one' juror.-Foley v. Hornung, 169 P. 705.

1024 (5) (Utah) Amount of reasonable attorney's fees in partition suit held a question of fact, and where evidence was conflicting and supported the court's finding, it would not be disturbed.-Murray v. Hays, 169 P. 264.

(H) Harmless Error.

1028 (Okl.) Where the right of the plaintiff to recover upon the undisputed facts is so apparent that the errors assigned, if sustained, could not have resulted in a miscarriage of justice, the judgment will be affirmed.-Smith v. Sutton, 169 P. 886.

1033 (5) (Cal.App.) Where there was ample evidence to warrant finding that death was due to cerebral meningitis, caused by assault upon him, instruction authorizing recovery if the meningitis concurred with pneumonia to cause the death, held not prejudicial to defendant.-Marks v. Reissinger, 169 P. 243.

a

1009(1) (Colo.) Whether there should be deductions from price under building contract 1033(5) (Kan.) As against defendant, for substitution in the kind of door locks, and there is no error in giving an instruction which in the lumber used in porch columns, held a properly states his defense, although there is question for the trial court in suit to foreclose not sufficient evidence to justify it.-Bruce v. lien.-Stewart' v. Breckenridge, 169 P. 543. Hayes, 169 P. 199.

1009(3) (Or.) The findings of the lower court on conflicting evidence in suit for specific performance of a contract are entitled to great respect.-Tucker v. Kirkpatrick, 169 P. 117.

1010(1) (Nev.) Finding of court, supported by substantial evidence, will not be disturbed, where no passion or prejudice of trial court is indicated. De Remer v. Anderson, 169 P. 737.

1010(1) (Utah) Findings of trial court supported by substantial evidence will not be disturbed on appeal. Love v. St. Joseph Stock

Yards Co., 169 P. 951.

1011(1) (Cal.) A finding upon conflicting evidence cannot be interfered with on appeal. -Levey v. Henderson, 169 P. 673.

1011(1) (Cal.) Where there is clear and substantial evidence to support a finding by the court, the Supreme Court cannot interfere because the evidence is conflicting.-Wolf v. Gall, 169 P. 1017.

1033 (9) (Cal.) An appellant cannot complain that a judgment against him is for less than the other party was entitled to.-Payne v. Commercial Nat. Bank of Los Angeles, 169 P. 1007.

1039 (4) (Cal.) Where judgment against vendor, for purchaser, included no other relief than recovery of purchase money paid and purchase money because complaint failed to damages, it cannot be held erroneous as to allege, so far as it attempted to declare for specific performance, that contract was just and reasonable, etc.-Lynn v. Knob Hill Improvement Co., 169 P. 1009.

1039(13) (Kan.) In action for obstruction of access to property, based on but one ground, error in permitting proof of another ground and in instructions and findings thereon was harmless, where jury separated the amounts allowed on account of each.-Griffith v. Atchison, T. & S. F. Ry. Co., 169 P. 546.

1011(1) (Cal.) Finding on conflicting evi-1040(11) (Kan.) In replevin of steam dence, as to location at a prior time, of a creek channel is not reviewable.-Haack v. San Fernando Mission Land Co., 169 P. 1021.

1011(1) (Idaho) Where action is tried to the court, and evidence is conflicting findings will not be disturbed on appeal.-Hemphill v. Moy, 169 P. 288.

1011(1) (Kan.) Finding of fact as to value of chattel property based upon conflicting evidence cannot be disturbed.-Emerson-Brantingham Implement Co. v. Willhite, 169 P. 549.

1012(1) (Ariz.) Appellate court is not permitted to look behind findings of trial court, when it is matter of weighing evidence, or pertaining to credibility of witnesses.-Hunt v. Campbell, 169 P. 596.

1012(1) (Okl.) Where fraud is relied upon, and trial court finds that no fraud has been shown, finding will not be disturbed unless clearly against the weight of the evidence.Limerick v. Jefferson Life Ins. Co., 169 P. 1080.

1012(2) (Utah) Regardless of where the preponderance of the evidence lies, the Supreme Court cannot interfere where there is any substantial evidence to support a finding of fact by the trial court.-Goan v. Ogden, L. & I. Ry. Co., 169 P. 949.

en

gine, overruling of demurrer to parts of answer to petition held not prejudicial.-Emerson-Brantingham Implement Co. v. Willhite,' 169 P. 549.

1046(5) (Or.) Court's remark that agreement was executed, where this was in dispute, held reversible error and not cured by general instruction to disregard remarks without expressly withdrawing such remark.-Richey v. Robertson, 169 P. 99.

1048(1) (Cal.App.) Where an objection to questions asked on rebuttal that had been answered on the direct should be sustained, where they are mere repetitions they are not prejudicial.-Foley v. Hornung, 169 P. 705.

1050(1) (Cal.) In action for injuries when plaintiff's buggy was struck by automobile, admission of testimony as to his intent to move the buggy held harmless error.-Collins v. Marsh, 169 P. 389.

for breach of contract to furnish servant with 1050(1) (Or.) In action against employer medical attendance, admission of certain testimony of servant's wife, if erroneous, held harmless.-Crites v. Willamette Valley Lumber Co.. 169 P. 339.

1051(6) (Cal.App.) Error in permitting secondary evidence of contents of check held 1015(5) (Cal.App.) Where, on motion for harmless, where counsel stipulated that it new trial, affidavits of some jurors would show should be considered only to fix the date when that verdict was arrived at by chance, and af- the check was returned, which was shown by fidavits by others denied such, the finding of other evidence.-Bailey v. Moshier, 169 P. 913. the court sustaining the verdict will not be dis-1053(3) (Kan.) In action for damages for turbed, though Code Civ. Proc. § 657, subd. 2, obstruction of access to property, any error in

1060(3) (Okl.) Error in refusing to sustain objection to improper argument will not 1099 (6) (Wash.) Determination on former require a reversal, unless it has probably re-appeal that complaint alleged cause of action sulted in a miscarriage of justice or a violation against constable's surety for act by virtue of of a constitutional or statutory right.-Hooker his office held the law of the case.-Greenius v. Moore, 169 P. 976. v. Wilson, 169 P. 1097.

filing of a petition for rehearing.-Ehrig v Adams, 169 P. 645.

1219 (Okl.) Generally Supreme Court will not recall its regularly issued mandate and judgment entered thereon in lower court, in absence of fraud, accident, or inadvertence, though in a proper case it may recall its mandate after term at which it was issued has expired.-Ehrig v. Adams, 169 P. 645.

XVIII. LIABILITIES ON BONDS AND
UNDERTAKINGS.

1230 (Okl.) After expiration of time for an appeal, and after judgment has become final and unpaid, action will lie on statutory supersedeas bonds conditioned to pay judgment, even though appeal has not been executed or fails for want of prosecution.-Powell v. Edwards, 169 P. 617.

1170(10) (Utah) Although trial court erred in not making findings upon all material issues, where it appears that no findings other than in support of judgment would have been permissi-1237 (Wash.) Where appellant moved for ble, judgment will be affirmed in view of Comp. dismissal of appeal so as to apply in lower court Laws 1907, §§ 3008, 3285.-Snyder v. Alleu, for new trial for newly discovered evidence, and 169 P. 945. respondent moved for dismissal and affirmance, he is entitled to judgment against surety on appellant's appeal and supersedeas bond.-Kawabe v. Continental Life Ins. Co., 169 P. 329.

1176(1) (Wash.) Misjoinder of causes under Rem. Code 1915, § 296, because of nonliability of certain defendants for an item of $3.85, held not injurious to defendant and of too trifling importance to prevent direction of judgment.-Cascade Lumber & Shingle Co. v. Wright, 169 P. 833.

1177(7) (Kan.) In action upon oral contract for hail insurance, where plaintiff failed to establish the amount of his loss, judgment in his favor will be reversed and cause remanded for trial of that issue.-Williams V. Home Ins. Co., 169 P. 545.

APPEARANCE.

3 (Cal.) A request by attorneys, in an action to annul a marriage, to allow defendant an extension of time in which to plead, which for equivalent to an appearance within Code Civ. all that appears was not authorized, was not Proc. § 1014.--Benson v. Benson, 169 P. 369. APPLIANCES.

1180(1) (Or.) Receiver appointed after notice and answer to a complaint alleging suffi- See Master and Servant, 278, 288. cient facts is not liable as a trespasser, though the trial court's action is reversed.-Henderson v. Tillamook Hotel Co., 169 P. 519.

(F) Mandate and Proceedings in Lower

Court.

APPLICATION.

See Trial,

252.

APPOINTMENT.

1198 (Kan.) Appeal by defendant from re- See Justices of the Peace, ~6. fusal of district court, after mandate from Supreme Court, to enjoin its enforcement, held

APPORTIONMENT.

without merit, and dismissed, at defendant's See Municipal Corporations, 469. cost.-Forbes v. Madden, 169 P. 211.

1202 (Wash.) Despite informal disposition

of case, held, that application for leave to file

APPRAISEMENT.

petition in lower court for new trial on ground See Taxation, 895.

of newly discovered evidence might be entertained. Kawabe v. Continental Life Ins. Co., 169 P. 329.

APPROPRIATION.

1202 (Wash.) Where upon reversing judg- See Eminent Domain,

ment non obstante veredicto it was said that, if the trial court believed that evidence was in

47.

ARBITRATION AND AWARD.

sufficient to sustain verdict, it could have grant- See Payment; Reference.
ed a new trial, in granting a new trial the
court did not abuse its discretion.-Washington
Trust Co. v. Keyes, 169 P. 870.

ARGUMENT OF COUNSEL.

1203(3) (Wash.) Where, after appeal, de- See Appeal and Error,

fendant was granted leave, appeal being dismissed and judgment affirmed, to file petition in trial court for new trial on ground of newly discovered evidence, he must proceed with due diligence, and at all events within time prescribed by Rem. Code 1915, §§ 464, 465.-Kawabe v. Continental Life Ins. Co., 169 P. 329.

1207(4) (Wash.) In suit in which defendant asked specific performance of contract for lease and for sale at expiration of lease, pro

1060; Criminal Law, 703-730; Trial, 109.

ARMY AND NAVY.

See Pensions.

ARREST.

See Bail; False Imprisonment.

ARREST OF JUDGMENT.

posed decree held in accordance with the di- See Criminal Law, 1125.

rections of the Supreme Court on former ap peals.-State v. Mackintosh, 169 P. 831.

tion,

ASSAULT AND BATTERY.

189; Master and Servant, 373.

I. CIVIL LIABILITY.

(G) Jurisdiction and Proceedings of Ap- See Homicide, 86; Indictment and Informapellate Court After Remand. 1218 (Okl.) Where judgment reversing and ordering a new trial was inadvertently based on a repealed act of Congress, and where case was not finally disposed of in lower court, it was proper to recall mandate and to permit

(B) Actions.

26 (Cal.App.) Where, in action for death from assault, defendant pleaded self-defense,