V. PRESENTATION AND RESERVA- | so as to be reviewable on appeal, though no moTION IN LOWER COURT OF tion for directed verdict was made at the close of the evidence.-Id.

GROUNDS OF REVIEW.

(A) Issues and Questions in Lower Court.

169 (Wis.) Questions not brought up in court below cannot be entertained on appeal to Supreme Court.-In re Brandon's Estate, 160 N. W. 177.

171(1) (Minn.) Where a party tries cause on one theory, he cannot shift his ground and present it to appellate court on a different theory.-Victor Produce Co. v. Chicago & N. W. Ry. Co., 160 N. W. 201.

173(1) (Mich.) A question of defense not contained in the plea and notice filed is not open on writ of error.-City of Kalamazoo v. Perrin, 160 N. W. 653.

(C) Exceptions.

263(1) (Iowa) Where no exceptions were taken to the instructions, or any part thereof, the appealing party is precluded from raising for the first time on appeal a question as to their propriety.-Dow v. Incorporated Town of Nora Springs, 160 N. W. 897.

263(1) (S.D.) Where instructions are not excepted to with assignments of error, it will be conclusively presumed that the court correctly instructed the jury as to damages.-Schwitz v. Thomas, 160 N. W. 734.

(D) Motions for New Trial.

294(1) (Mich.) Where sufficiency of evidence is not questioned on motion for new trial, that question cannot be reviewed.-Salabrin v. Ann Arbor R. Co., 160 N. W. 552.

193(1) (S.D.) Where error assigned in the ruling on demurrer to the complaint was waiv-302(1) (Minn.) Where motion for new trial ed, and there was no other assignment in the is limited to grounds of insufficiency of evirecord as to sufficiency of the complaint, its dence and excessiveness of verdict, errors in sufficiency could not be challenged.-Schwitz v. admission of evidence and instructions cannot Thomas, 160 N. W. 734. be considered.-Harvey v. Morse, 160 N. W. 79.

193(9) (Iowa) A defendant who, after moving to strike an amended petition on another ground and asking for a continuance, went to trial on the issues thereby presented, cannot on appeal first question the sufficiency of the petition to state a cause of action.-Heiman v. Felder, 160 N. W. 234.

204(1) (Wis.) Error cannot be predicated upon the admission of a question and answer to which no objection was made.-Glasheen v. Wisconsin Traction, Light, Heat & Power Co., 160 N. W. 1055.

205 (Minn.) Error cannot be predicated on the exclusion of testimony where there was no offer of proof and the nature of the testimony did not appear.-American Multigraph Sales Co. v. Grant, 160 N. W. 676.

VI. PARTIES.

333 (Iowa) Where guardian of defendant's property was appointed on ground of incompetency to care for her business, and defendant appealed, and died pending the appeal, a motion to dismiss the appeal because of her death would be granted without prejudice.-Palmer v. Wolf, 160 N. W. 285.

VII. REQUISITES AND PROCEEDINGS FOR TRANSFER OF CAUSE. (A) Time of Taking Proceedings. 337 (2) (Mich.) Where a plea of abatement was filed in a case and later upon motion stricken from files, but no final judgment was entered, a writ of error will be dismissed.-Backus 213 (Iowa) In action for malicious prose- v. Trumbull Motor Car Co., 160 N. W. 546. cution, where plaintiff did not request instruc-339(6) (Minn.) After six months allowed by tion that finding of justice in search warrant proceedings was conclusive on question of probable cause, plaintiff cannot complain of error in submission of question to jury.-Krehbiel v. Henkle, 160 N. W. 211.

231(6) (Neb.) General objection to hypothetical question as to value as not containing proper elements on which to base opinion will not be considered unless attention of trial court was drawn to any omission, or the omission was of such importance that it must have been considered.-Daggett v. Drainage Dist. No. 1 of Richardson County, 160 N. W. 82.

law to appeal from judgment, no appeal lies from an order before judgment denying new trial.-Harcum v. Benson, 160 N. W. 80.

353 (Mich.) Under New Judicature Act, c. 50, § 6, where bill of exceptions was signed, and writ of error sued out, more than 10 days after bill was signed, without any fault of plaintiff in error, Supreme Court will extend the time as though extension had been granted upon proper showing.-Rasor v. Mott, 160 N.

W. 549.

355 (Minn.) Admission of due service of notice of appeal does not validate an appeal more than six months after judgment from an order made before judgment.-Harcum v. Benson, 160

231(9) (Mich.) Where counsel does not point out specifically the error in instructions of which he complains, it will not be considered.-N. W. 80. Detroit United Ry. v. City of Pontiac, 160 N. W. 751.

232(2) (Wis.) Where, in action for personal injuries, objection was sustained to a doctor's testimony and plaintiff then testified that the visit was for treatment and not to use him as a witness, and the doctor was recalled and testified, the objection to his testimony in the first place was of no avail as against his testimony when recalled.-Glasheen v. Wisconsin Traction, Light, Heat & Power Co., 160 N. W. 1055.

(D) Writ of Error, Citation, or Notice.

396 (Iowa) Under Code, § 4114, service of notice of appeal, and not filing of supersedeas bond, effects an appeal, so that where no notice was served, but supersedeas bond filed Supreme Court acquired no jurisdiction.-Maher v. Morrison, 160 N. W. 924.

413 (Iowa) No notice of appeal need be given any party to it except one who is interested in result and whose rights may be affected, save as the statute expressly requires such 237(5) (Iowa) Error in overruling defend- notice.-Ober v. Seegmiller, 160 N. W. 21. ant's motion to direct a verdict made at the 415 (Iowa) Defendant in execution was not close of plaintiff's testimony cannot be reviewed where the motion was not renewed at the close of all the evidence.-Heiman v. Felder, 160 N. W. 234.

The sufficiency of the evidence to sustain the verdict can be raised on motion for new trial,

a coparty with the garnishees in garnishment proceedings within Code, § 4111, requiring service on coparties where one alone appeals.Ober v. Seegmiller, 160 N. W. 21.

430(1) (Iowa) In garnishment proceedings, where original judgment defendant did not ex

IX. SUPERSEDEAS OR STAY OF PRO-760(2) (Iowa) Where there was an assign-

635(1) (Minn.) An appeal from an order
"sustaining the demurrer in favor of the plain-made in appellant's attorneys, motion for con-
tiff and against the defendants" will be dismiss-
ed, where the record discloses no such order.
Apelt v. Melin, 160 N. W. 486.

843(2) (Wis.) Where the amount chargeable 927(7) (S.D.) In servant's action for injury
to the garnishee exceeds the unsatisfied credi- when tramrail on which he stood to unload tram-
tors' claims, it is unnecessary to decide wheth- car broke, conflicting evidence as to whether he
er, under any circumstances, there should be a was negligent in not propping track, on ap-
pro rata distribution among the creditors.- peal from an order denying employers motion
Gazett v. Iola Co-op. Mercantile Co., 160 N. W. for a directed verdict, would be resolved in
170.
favor of servant.-Clinkscales v. Wisconsin
Granite Co., 160 N. W. 843.

843(4) (Iowa) Error in overruling a de-
murrer to the original petition is moot and will
not be considered where the petition was amend-
ed at the trial, and no demurrer thereafter filed.
-Heiman v. Felder, 160 N. W. 234.

930(2) (Iowa) The presumption is that the
jury observed the court's instructions.-Hanen
v. Lenander, 160 N. W. 18.

931(6) (Neb.) In a trial to the court there
853 (Iowa) Where erroneous instructions is a presumption that the court considered only
which were not objected to required proof of a the competent evidence in reaching its conclu-
fact as a prerequisite to recovery, verdict can- sion.-Crinkley v. Rogers, 160 N. W. 974.
not be sustained unless that fact was pleaded 933 (1) (S.D.) On appeal from order over-
and proved.-Heiman v. Felder, 160 N. W. 234.
854(2) (S.D.) An appellate court will not
reverse a correct judgment, though a wrong
reason be given therefor.-In re Yankton-Clay
County Drainage Ditch, 160 N. W. 732.

(C) Parties Entitled to Allege Error.
878(2) (Iowa) An appellee may have the Su-
preme Court determine whether any error was
committed against him if correcting such error
will make the judgment below a right judgment.
-Eisentrager v. Great Northern Ry. Co., 160 N.
W. 311.

882(14) (Iowa) Plaintiff cannot complain
of submission of questions as to which he re-
quested an instruction that jury might consider
them.-Krehbiel v. Henkle, 160 N. W. 211.

asked

ruling motion for new trial on ground of insuf-
ficiency of evidence to sustain verdict for plain-
tiff, appellate court will assume his evidence
to be undisputed and will give it the most favor-
able construction it will bear, and the benefit of
all reasonable inferences therefrom.-Clinkscales
v. Wisconsin Granite Co., 160 N. W. 843.

(F) Discretion of Lower Court.
959(3) (Iowa) Supreme Court is justified
in refusing to reverse on the ground of surprise
an order sustaining an amended petition filed
after the evidence was received, where there
was evidence relevant to the amendment.-Hei-
man v. Felder, 160 N. W. 234.

977(3) (Iowa) An order, granting a new trial
being an exercise of judicial discretion, the order
will not be reversed on the ground that a retrial
could not result otherwise than did the first trial,
unless such result appears so certain as to en-
able the court to say that the order for new trial
was an abuse of discretion.-McDonald v. Mu-
tual Life Ins. Co., 160 N. W. 289.

882(14) (Mich.) Where the court
counsel whether there was any question of fact
for the jury, whereupon defendant's counsel
said that the questions were wholly for the
court, defendant could not complain of decision
by court even if a question of fact was involv-
ed.-Kyselka v. Northern Assur. Co. of Mich-985 (Mich.) Under Comp. Laws, § 674,
igan, 160 N. W. 559.
though applicant for dilatory appeal is without
default, refusal to allow appeal will not be re-

(D) Amendments, Additional Proofs, and viewed, since the lower court in its discretion

Trial of Cause Anew.

could determine whether justice required review.
-Clark v. Berrien Circuit Judge, 160 N. W. 409.

(G) Questions of Fact, Verdicts, and Find-

ings.

893(2) (Iowa) Action commenced at law by
corporate creditors against stockholder to re-
cover amount due and unpaid on his stock held
an action at law, and to be presented as such
on appeal.-Johnson v. Morgan, 160 N. W. 2.992 (Wis.) Where it did not appear that
ruling that plaintiff was out of state at time
893(2) (Iowa) Where a suit asking an ac-
counting against plaintiff's alleged real estate of trial in circuit court so as to render his evi-
agent was filed and tried on the equity side with-dence taken at trial in justice court admissible
out objection, it is triable de novo in the Su- under St. 1915, § 4141a, was clearly wrong, it
preme Court.-King-Yessler Real Estate Co. v. 160 N. W. 168.
cannot be disturbed.-Lambrecht v. Holsaple,
Messer, 160 N. W. 298.

(E) Presumptions.

907(3) (S.D.) In the absence of statement of
the case, containing exceptions to evidence re-
ceived, or specifying the particulars in which
it is insufficient to justify the verdict, with
proper assignments of error, the Supreme Court
will assume that the verdict is sustained by
competent evidence received without objection.
-Schwitz v. Thomas, 160 N. W. 734.

995 (Iowa) In determining the sufficiency
of evidence to sustain a verdict, the Supreme
Court does not weigh the evidence, but merely
decides whether there was an extreme departure
Felder, 160 N. W. 234.
from proper consideration thereof.-Heiman v.

1001(1) (Wis.) Where the decision of court
was apparently grounded on conviction that a
contract placing a minor child with foster par-
ents to be treated as their own did not clearly
show that child should have right of inheritance,
unless clearly wrong judgment must be affirmed.
Winke v. Olson, 160 N. W. 164.

916(1) (Iowa) Where a judgment in an ac
tion in which causes were improperly joined
was set aside and plaintiff filed a second peti-
tion in a separate action covering part of the 1002 (Mich.) The court is not inclined to
goods involved, but both actions were tried to- disturb a verdict on pure fact questions on con-
gether, it will be presumed, where the record flicting evidence.-Vincent v. Heenan, 160 N.
does not show the contract, that any misjoinder W. 563.

in the original petition was met by the separa-1002 (Mich.) Where conflicting testimony
tion and separate docketing of the actions.- has been introduced on an issue the only ques-
Gray Bros. v. Otto, 160 N. W. 293.

tion for Supreme Court is whether there is
any, evidence tending to sustain it.-Cox v.
Railway Conductors' Co-operative Protective
Ass'n, 160 N. W. 608.

925(2) (Mich.) Where the trial judge in his
opinion stated that certain things were not only
conceded but claimed by both parties, and such
statement was not expressly denied, it would,
on writ of error, be presumed that such was
the case, and no question on such matter would
be reviewed.-City of Kalamazoo v. Perrin, 1601002 (Neb.) A verdict on conflicting evi-
N. W. 653.
dence will not be disturbed unless clearly wrong.

1002 (Minn.) A verdict on conflicting evi-
dence will not be disturbed.-Skar v. McKenney,
160 N. W. 247.

-Shapiro v. Omaha & C. B. St. Ry. Co., 160|1024(2) (Mich.) The determination of a mo-
N. W. 886.
tion to set aside the return of a writ of garnish-
1004(1) (Minn.) Where plaintiff demanded ment, based on the files and affidavits, will not
judgment for $3,500 as compensation for pro- be disturbed on appeal if supported by evidence.
curing purchaser of lease, the fact the jury re--Lyon v. Baldwin, 160 N. W. 428.
turned verdict for $51.25 more than sum de-
manded with interest did not show passion and
prejudice of jury.-Morrow v. Tourtellotte, 1601027 (Mich.) The Supreme Court cannot
N. W. 665.

abandoned and court read answer to jury and
1031(6) (N.D.) Where defenses pleaded were
referred thereto, the error will not be presumed
prejudicial where instructions as whole showed
that abandoned defenses were not in case.-El-
1005(3) (Mich.) An appellate court will not liott Supply Co. v. Green, 160 N. W. 1002.
disturb a verdict on conflicting evidence, par-1033 (5) (Iowa) A defendant cannot com-
ticularly where approved by the trial court.
Mink v. Grand Rapids, G. H. & M. Ry. Co.,
160 N. W. 535.

1011(1) (Mich.) On motion to quash writ
of attachment and proceedings thereunder, ac-1043(7) (Mich.) Error in refusing to grant
companied by affidavit traversing plaintiff's af- adjournment which defendant claimed for sur-
fidavit as ground for attachment, turning upon prise by amendment to declaration held harm-
controlling issue of fact raised by conflicting less.-Michigan Mut. Home Ins. Co. v. Pere
evidence, trial court's conclusions or inferred Marquette Ry. Co., 160 N. W. 599.
findings might not be disturbed.-Feldman v.1046(1) (Iowa) Where the only allegation
Preston, 160 N. W. 655.

which he was injured prior to the accident, and prejudicial.-Seabury v. Detroit United Ry.,
how he started it, was not prejudicial to defend- 160 N. W. 570.
ant.-Snowden v. Detroit & M. Ry. Co., 160 N.
W. 414.

1060(1) (Wis.) In action for injuries to
pedestrian struck by wagon colliding with
street car, comment by counsel for street rail-
road company on the fact that the coal company
was represented by an insurance company held
not prejudicial. in view of instructions.-Ertel
v. Milwaukee Electric Ry. & Light Co., 160 N.
W. 263.

1050(4) (Iowa) Admission of a copy of a
letter, the original of which was alleged to be
in the custody of a third person in another
jurisdiction, even if it was not shown to be a
duplicate of the original, was not prejudicial
where, on motion for new trial, such third per-
son made affidavit that he had, before trial, 1061(4) (Iowa) If a motion for directed ver-
delivered the original to the adverse party.- dict was rightly sustained on any ground pre-
Fisher & Ball v. Carter, 160 N. W. 15.
sented, error in sustaining other grounds is
harmless.-Eisentrager v. Great Northern Ry.
Co., 160 N. W. 311.

1051(4) (Wis.) In action to recover earnest
money and part payment for realty, evidence of
circumstances of the making of written contract, 1064(4) (Wis.) That the court in charging
and treatment of it by parties thereafter, held the jury on burden of proof inserted the word
harmless when it was unambiguous.-Carlock v. "contributory" before the word "negligence," so
Johnson, 160 N. W. 1053.
that it read, "Was the defendant guilty of con-
1053(3) (Iowa) In action against county for tributory negligence?" was not prejudicial, where
damages from relocation of highway, in view the jury had the correct written instructions
of charge, error in overruling motion to strike with them.-Christl v. Hauert, 160 N. W. 1061.
testimony resting on consideration of better-1066 (Iowa) In action for price of merchan-
ments made by change in location held harmless. dise, where defendant alleged rescission for
-Neddermeyer v. Crawford County, 160 N. breach of several warranties and record shows
W. 330.
that if jury believed testimony as to breach of
1053(3) (Mich.) Asking defendant's claim one warranty, they must necessarily believe that
agent whether he had been authorized to settle other warranties were made and breached, error
the case was not reversible error, where the of court in charging that defendant must estab-
court immediately instructed the jury to disre-lish breach of all the warranties in order to
gard it.-Norris v. Detroit United Ry., 160 N. Fred S. Todd Shoe Co. v. Pierce Shoe Co., 160
establish his right to rescind was harmless.-
W. 574.

N. W. 827.

1053(6) (Mich.) In a suit to recover alleged 1068(4) (Mich.) In an action for injury re-
preferential payments, defendant cannot com-
plain that record of bankruptcy proceedings was
read before jury where court charged that cer-
tain matters were determined by record and
that it should not be considered by jury other
wise than as directed.-Johnson v. Gratiot
County State Bank, 160 N. W. 544.

1056(1) (Minn.) In parent's action for loss
of services, exclusion of testimony given in mi
nor son's action for injuries, by witness since
deceased, held prejudicial.-Palon
Northern Ry. Co., 160 N. W. 670.

V. Great

1056(4) (Wis.) In action by owner of build-
ing against contractor therefor and surety, ex-
clusion of surety's evidence as to conversation
between owner's president and the contractor
regarding extras, held not prejudicial to surety.
-Lloyd Inv. Co. v. Illinois Surety Co., 160 N.
W. 58.

~1057(1) (Wis.) In action by pedestrian in-
jured by wagon struck by street car, exclusion
of testimony of wagon driver that he thought
he could pass in safety was harmless, where
his entire testimony indicated that he thought
he could pass the tracks in safety.-Ertel v. Mil-
waukee Electric Ry. & Light Co., 160 N. W.
263.

sulting in compound fracture of the right knee-
cap, where the attending physician testified
that plaintiff would be a cripple for life, and the
jury awarded only $1,500 damages, a charge
on sympathy to be exercised by the jury cannot
be deemed prejudicial.-Pool v. Montague Tp.,
160 N. W. 549.

1068 (5) (Mich.) Refusal of an instruction
that a trespass was of a certain nature was
harmless; the jury having so found.-Connor v.
McRae, 160 N. W. 479.

ly

(1) Error Waived in Appellate Court.

1075 (Mich.) Where, upon a point previous-
argued by counsel, appellant's counsel an-
nounces in his reply brief there is no disagree-
sidered.-Detroit United Ry. v. City of Pon-
ment between them, such point will not be con-
tiac, 160 N. W. 751.

1078(1) (Iowa) Failure of appellant to
plains is a waiver of any point no matter how
clearly advise the court of what errors he com-
well taken it might have been if properly pre-
sented.-In re Bagnola, 160 N. W. 228.

(J) Decisions of Intermediate Courts.

1082(2) (Wis.) On appeal from a judgment
of circuit court reversing judgment of county
court and allowing a legatee interest, the par-
ties, charged with such interest, could not be
heard for the first time to challenge jurisdiction
of county_court.-In re Brandon's Estate, 160
N. W. 177.

(K) Subsequent Appeals.

1058(2) (Iowa) Where a town permitted 1099(1) (Mich.) The question of a person's
rock to be piled in the highway in such way as authority to bind a party is not debatable, hav-
to frighten horses, even if it was material wheth- ing been determined on a prior appeal.-John-
er after the accident the county used the rock
son v. Federal Union Surety Co., 160 N. W.
in building a culvert, exclusion of such testi- 548.
mony was nonprejudicial, where the witness aft-
erwards testified practically to the same effect.
Dow v. Incorporated Town of Nora Springs,
160 N. W. 897.

1060(1) (Mich.) In action against street
railway for personal injury, closing argument
of plaintiff's counsel in effect testifying to jury
that railway employés were not worthy of
credence, in view of conflicting evidence, held

XVII. DETERMINATION AND DISPO-

SITION OF CAUSE.

(A) Decision in General.
1106(2) (N.D.) Under Comp. Laws 1913,
7846, relating to trial de novo in Supreme
Court, a new trial will be ordered when the
Supreme Court deems it necessary to the ac-