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.
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.
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.
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
cept to judgment against garnishees, and did not appeal, garnishees' appeal will not be dis- missed for their failure to serve notice on original judgment defendant, who could not be affected by appeal.-Ober v. Seegmiller, 160 N. W. 21.
shall be required in any case at law or in equity, and under Supreme Court rule 53 (128 N. W. xi) as to briefs, requiring appellant to set out "the errors relied on for reversal," no precise form is prescribed.-Redfield v. Boston Piano & Music Co., 160 N. W. 934.
IX. SUPERSEDEAS OR STAY OF PRO-760(2) (Iowa) Where there was an assign-
ment of error on rulings excluding testimony "as set forth on pages 18 and 19 of the ab- stract," which pages in fact contained ten rul- ings in which objections were sustained, and no brief point with reference to any of these was found in appellant's brief, and in argument no particular ruling was referred to, error was not sufficiently pointed out.-Redfield v. Boston Piano & Music Co., 160 N. W. 934.
773(4) (Minn.) Where, after certain exten- sions, appeal was set for hearing January 1, 1917, and it was agreed that appellant should November 1st and December 15th, changes were serve brief by November 1, 1916, and between tinuance will be denied and order appealed from affirmed.-Crescent Creamery Co. v. Massachu setts Bonding & Ins. Co., 160 N. W. 663.
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.
648 (Minn.) Where, after the case had been settled and certified, there was a motion on
affidavits to add testimony not appearing in the notes of the official stenographer the refusal of such motion is not error.-Skar v. McKen- ney, 160 N. W. 247.
656(2) (Mich.) Although record on appeal to Supreme Court is matter duly certified and can- not be amended by stipulation of counsel, ad- mission of counsel contained in such stipulation may be considered as answering argument which he makes.-Rabior v. Kelley, 160 N. W. 392.
(K) Questions Presented for Review. 675 (Iowa) Supreme Court could not inter- fere with action of trial court in denying motion for Change of venue where evidence on which trial court acted was not before it. Neddermeyer v. Crawford County, 160 N. W. 330.
692(1) (N.D.) A party must offer to prove facts sought to be elicited from his witness, be- fore he can assign error upon an objection sus- tained to a question, the competency of which is not apparent.-Farmer v. Holmes, 160 N. W. 143.
692(3) (Minn.) Where hospital clinical rec- ord excluded from evidence is not returned to the Supreme Court and its materiality is not shown, no reversible error is shown.-Manning v. Chicago Great Western R. Co., 160 N. W. 787.
758(1) (Iowa) Under Const. art. 5, § 4, de- claring that in action at law, the Supreme Court shall constitute a court for the correc-
tion of errors, etc., the Supreme Court has power to exact that errors shall be pointed out in some way, that it may know what cor- rection it is called on to make.-Redfield v. Boston Piano & Music Co., 160 N. W. 934.
758(3) (Iowa) On appeal manner of pre- senting error in admission of evidence held not a compliance with rules of court.-Krehbiel v. Henkle, 160 N. W. 211.
758(3) (Iowa) Under Code Supp. 1913, $
832(4) (Iowa) Where the appellate court affirmed judgment, removing appellant as ad- ministrator and appointing his successor the grounds that the widow was the sole heir, and the estate had been settled, appellant can- not object for the first time on rehearing that there were heirs other than widow.-In re Bag- nola, 160 N. W. 228.
835(1) (Wis.) An incorrect statement of facts in an opinion will be corrected on rehear- ing.-Sutter v. Milwaukee Board of Fire Under- writers, 160 N. W. 1034.
XVI. REVIEW.
(A) Scope and Extent in General.
837(4) (Iowa) The Supreme Court can con- sider defendant's waiver of error in ruling on his motion by his answer, though plaintiff makes no point upon the waiver.-Heiman v. Felder, 160 N. W. 234.
843(2) (Iowa) Where decree in action to quiet title ordered defendant to remove hedge before surrendering land to plaintiff, held, that plaintiff's offer to relieve defendant of the obli- gation left defendant no ground of complaint.- Farley v. Neff, 160 N. W. 245.
843 (2) (Mich.) Assignments of error based upon the theory that a minor rescinded a con- tract will not be considered, where the jury found that the other party first rescinded it.- Jackson v. Haverford Cycle Co., 160 N. W. 578.
843(2) (Minn.) In action against carrier for damages to a shipment of eggs, where the court adopted the correct rule for damages, the question whether the consignee improperly re- jected the shipment was immaterial.-Victor Produce Co. v. Western Transit Co., 160 N. W.
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.
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
could determine whether justice required review. -Clark v. Berrien Circuit Judge, 160 N. W. 409.
(G) Questions of Fact, Verdicts, and Find-
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.
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.
1004(1) (Neb.) In action for false imprison- ment, jury's finding as to damages will not be disturbed unless clearly unsupported by evidence. -Van Dorn v. Kimball, 160 N. W. 953.
That jury errs in its judgment of the amount of plaintiff's damages is not such conclusive evidence of prejudice as to admit of no other conclusion.-İd.
justly reverse a case because of the exclusion of testimony, unless able to say that the testi- mony, if received, might have changed the result. -Horowitz v. Blay, 160 N. W. 438.
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.
1008(1) (Neb.) In action at law tried before judge, his findings and judgment are entitled to same weight as verdict.-State Bank of Omaha v. Huffman, 160 N. W. 115.
1008(1) (Wis.) The Supreme Court will sus- tain the judgment below, unless upon the whole record trial court was clearly wrong.-Smigiel v. Great Northern Ry. Co., 160 N. W. 1057.
1010(1) (Mich.) The court's finding of fact, in trial without jury, that work was done by plaintiff at direction of defendant's agent, will be sustained, where there is clear evidence sup- porting it, in view of circuit court rule 26 and Judicature Act, § 15.-Oudersluys v. Carstens, 160 N. W. 1011.
1011(1) (Iowa) In an action to foreclose a mechanic's lien for the price of a furnace, the defense being breach of warranty and the case being tried to the court, conflicting evidence held to warrant affirmance of judgment for plaintiff.-Garberson v. Sherbon, 160 N. W. 1. 1011(1) (Iowa) The finding of the trial court on conflicting evidence is conclusive.-Doughty v. Law, 160 N. W. 226.
plain of an instruction erroneously submitting a measure of damages more favorable to him than that to which he was entitled.-Hanen v. Lenander, 160 N. W. 18.
1033(9) (Iowa) That jury, in finding for plaintiff in action for price of merchandise, allowed defendant more than was claimed in his counterclaim was not error of which he could complain on appeal.-Fred S. Todd Shoe Co. v. Pierce Shoe Co., 160 N. W. 827.
1039(1) (S.D.) Where because of defects in the record and the absence of objection and ex- ception, the case stands as though sufficient evi- dence was received without objection, and the court had properly instructed the jury, defects in pleadings are not ground for reversal.- Schwitz v. Thomas, 160 N. W. 734.
1041(2) (Iowa) A petition held not to allege facts making defendant plaintiff's agent, so that error in permitting trial amendment charging agency was prejudicial.-Heiman v. Felder, 160 N. W. 234.
1042(5) (Neb.) Where the pleadings present- ed for the jury question of meaning of written instrument, and jury correctly determined that question, judgment will not be reversed for a refusal to strike such averments.-Felthauser v. Greeble, 160 N. W. 983.
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.
1011(1) (Minn.) A finding on conflicting evidence must be upheld.-American Multigraph Sales Co. v. Grant, 160 N. W. 676.
1011(1) (Neb.) In action by holder of note against indorsers, finding on conflicting evi- dence in favor of one defendant as against the other, will not be disturbed.-State Bank of Omaha v. Huffman, 160 N. W. 115.
Where action at law is submitted on conflict- ing evidence, whether one indorser signed note as accommodation, judgment on sufficient evi- Idence will not be reversed, even if there was sufficient evidence to sustain finding for oppo- site party.-Id.
1011(1) (Wis.) The finding of the trial court on conflicting evidence will not be disturbed, unless plainly wrong.-Ficks v. Purcell, 160 N. W. 1058.
1012(1) (Mich.) On exceptions to findings of court, under Judicature Act, c. 18, § 15, on ground that they are against weight of evi- dence, decision will not be disturbed, unless findings are against overwhelming weight of evidence. Simmer v. Cutter's Estate, 160 N. W. 605.
1012(1) (Wis.) Though the rule that findings of fact will not be disturbed unless contrary to fair preponderance of evidence applies to findings by the court, such findings should not be classi- fied with jury findings.-Krahn v. Goodrich, 160
claimed to support a transfer to equity is with- drawn after a motion to transfer has been over- ruled, the court will not disregard the rule of harmless error and reverse because there would be prejudicial error if an allegation which was abandoned had been retained.-Mitchell v. Beck, 160 N. W. 232.
1046(5) (Mich.) On trial of necessity of lo- cation of street railway tracks, giving of in- struction requested by street railway that its cars had the same right on the streets as au- tomobiles with comment that the court could not
see its applicability, but that the jury might, was not reversible error.-Detroit Unit- ed Ry. v. City of Pontiac, 160 N. W. 751.
1048(6) (Iowa) Where a witness testified how rock were piled on a highway, and that he supposed they were to be used for building a culvert, it was not prejudicial to exclude the cross-examination whether the rock were piled where they naturally would be piled for building a culvert.-Dow v. Incorporated Town of Nora Springs, 160 N. W. 897.
1048(6) (Mich.) Any error in allowing cross- examination of plaintiff's witness held harmless; his answers not being favorable to defendant.- Connor v. McRae, 160 N. W. 479.
Allowing plaintiff to be asked on cross-examin- ation if he had any sinister motive was not prej- udicial; "No" being his answer.-Id.
1050(1) (Mich.) Evidence as to how plain-
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.
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.
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.
(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.
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-
(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-
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