For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER ANTI-TRUST LAW. See Monopolies, 17. APPEAL AND ERROR. See Certiorari; Constitutional Law, 56; not be considered upon appeal, unless raised in some form in the trial court.-Cutler Co. v. Barber, 108 A. 400. 173(9) (Vt.) Where appellant did not during trial raise the question that the necessity been waived, the point will not be considered of demand and notice on a promissory note had on appeal.-Grapes v. Willoughby, 108 A. 421. (B) Objections and Motions, and Rulings Thereon. For review of rulings in particular actions or proceedings, see also the various specific top-181 (N.J.Sup.) Where a cause is submitted ics. on an agreed statement of facts and no objection or exceptions of any kind appear in the record, relieve counsel of the necessity of specifically Laws 1916, p. 109, the purpose of which is to submitting grounds of objection, has no application.-E. L. Downs Co. v. Owen Magnetic Car Co. of New Jersey, 108 A. 112. I. NATURE AND FORM OF REMEDY. 2 (N.J.) Act March 15, 1916 (P. L. P. 109), amending Practice Act 1912, 8, 25, to provide that when causes are submitted to court for hearing without a jury any error of court in giving final judgment shall be sub-185 (1) (Md.) If action of circuit court, in ject to change, modification, or reversal, without the grounds of objection having been specifically submitted to court, is constitutional. -Pannonia Building & Loan Ass'n v. West Side Trust Co. of Newark, 108 A. 240. II. NATURE AND GROUNDS OF AP. had no jurisdiction to grant the license, and PELLATE JURISDICTION. 22 (Vt.) Jurisdiction cannot be conferred upon the Supreme Court by waiver, consent, or agreement.-Essex Storage Electric Co. v. Victory Lumber Co., 108 A. 426. IV. RIGHT OF REVIEW. (A) Persons Entitled. granting agricultural association license to make and permit betting, pool selling, and bookmaking on the result of horse races, was prohibited by Declaration of Rights, art. 8, because not a judicial act, the circuit court the Court of Appeals can entertain an appeal from its action, having jurisdiction to review the circuit court acting without jurisdiction either on appeal, writ of error, or of its own motion, even though the question of jurisdiction was not raised below, as Code, art. 5, § 9, does not apply to such question.-Close v. Southern Maryland Agricultural Ass'n, 108 A. 209. 189(2) (Md.) Where no objection was made to a replevin bond in court below, an original motion to quash the bond will not be considered upon appeal, in view of Code Pub. Gen. Laws, vol. 1, art. 5, § 9, relating to necessity 150 (3) (Pa.) A dry trustee required to of raising questions in trial court.-Burrier v. convey on demand has no standing to appeal Cunningham Piano Co., 108 A. 492. from a decree of the court below in a dispute 193(1) (Me.) Where the case between the cestui que trustent as to the disposition of the estate. In re Behringer's Es tate. 108 A. 414. 150(3) (Pa.) A commissioner, appointed by the Supreme Court of New York to take testimony of witnesses residing in the city of Erie, to be read in evidence on the trial of a case pending before the court issuing the commission, not being a party in interest to the proceeding, is without right or standing to appeal from an order of the common pleas, refusing his petition to issue summons to compel the attendance of witnesses.-Petition of Force, 108 A. 622. tried on its merits, and the real issue between was fully parties was submitted, and no evidence offered by either party was objected to by reason of the form of declaration, and no claim of variance was set up until after verdict rendered, it is too late for defendant to take advantage of defects in the declaration which do not affect his substantial rights.-Kelsey v. Irving, 108 A. 100. 193 (2) (Md.) A question of misjonder will not be reviewed, in view of 3 Code, art. 5, § 9a, and article 75, § 91a, unless such point was distinctly raised below.-Rasst v. Morris, 108 A. 787. V. PRESENTATION AND RESERVA-193(5) (Conn.) In a proceeding to cancel TION IN LOWER COURT OF GROUNDS OF REVIEW. deed, objection that complaint contained no allegation that the plaintiff did not comprehend the legal consequences of her conveyance cannot be raised on appeal, where complaint was not demurred to, no motion in arrest of judgment was made, and no error assigned based on such defect in complaint.-Lieberum v. Nussenbaum, 108 A. 662. (A) Issues and Questions in Lower Court. 171 (Pa.) The Supreme Court will not consider a theory towards the trial different from the theory on which it was tried, as evidenced by the requests for findings, especially where such new theory, if followed, would de-193(9) (Conn.) It cannot be urged on apprive plaintiff of the right to place on record peal for first time that complaint for damages facts that would have been complete answer to caused by change of highway grade in conit had such position been assumed during trial. structing sidewalk did not state cause of action -Morrett v. Fire Ass'n of Philadelphia, 108 A. because not alleging inability to agree on dam171. ages nor that town selectmen neglected to ap173(9) (Pa.) In an action by nephew of a ply for appointment committee to assess damdecedent holding her note delivered after her ages and benefits as provided by Gen. St. 1918, death to set aside her conveyance of land in §§ 1437, 1440.-Tanner v. Town of Manchester, consideration of personal services, a judgment 108 A. 560. against the administrator in the nephew's action of assumpsit for services rendered, in which the grantee was permitted to intervene, was not res adjudicata where it was not so claimed in the bill in the lower court, and not brought on the record by amendment, so that it would not be considered on appeal.-Isett v. Maclay, 108 A. 610. 205 (Vt.) Where appellant's counsel stated that he understood his further offer of proof was excluded, the court acquiesced and allowed an exception, but no offer of evidence was actually made, held, that no question regarding the admissibility of the evidence was saved for review.-Davis v. Union Meeting House Soc., 108 A. 704. 173(9) (Vt.) To be conclusive, estoppel 207 (N.J.) Improper remarks of counsel must be pleaded where possible, and where it in summing up will not work a reversal, when cannot, it may be given in evidence, but will it appears that they were promptly withdrawn and that no request was made, either that counsel be rebuked by the court, or that the jury be instructed to disregard them.-Hahn v. Delaware, L. & W. R. Co., 108 A. 357. 209 (2) (Me.) Contention that the evidence does not show the cutting of 40 cords of hard wood as claimed in the account must be held waived, where not raised at nisi prius.-Kelsey v. Irving, 108 A. 100. 212 (Vt.) Where a motion for directed verdict was made at the close of plaintiff's case and it was not suggested that it was insufficient to raise certain questions, the Supreme Court will regard it as sufficient to raise such questions. Rice v. Bennington County Sav. Bank, 108 A. 708. 215(1) (Md.) Where no exception was taken to a prayer or instruction offered, there can be no reversal of the judgment for error therein.-Zipus v. United Rys. & Electric Co. of Baltimore City, 108 A. 884. 216(1) (Vt.) A party cannot complain of failure to instruct the jury as to the use to be made of certain evidence in the absence of a request to charge.-Smith v. Reynolds, 108 A. 697. that the plaintiff had offered no evidence legally sufficient under the pleadings to entitle the plaintiff to recover was not sufficient to raise the question of misjoinder or variance, in view of 3 Code, art. 5, § 9a, and article 75, § 91a.Rasst v. Morris, 108 A. 787. (C) Exceptions. 249 (Vt.) In chancery cases, if the case is tried before a master, questions as to the exclusion of evidence are not available unless saved by the exceptions to the duly filed report, in view of G. L. 1520, and if tried by a chancellor such questions are available on appeal as in cases tried by the court under G. L. 1511 and 1609.-Essex Storage Electric Co. v. Victory Lumber Co., 108 A. 426. 250 (Vt.) In chancery cases, if the case is tried before a master, questions as to the exclusion of evidence are not available unless saved by the exceptions to the duly filed report, in view of Gen. Laws, 1520, and if tried by a chancellor such questions are available on appeal as in cases tried by the court under Gen. Laws, 1511 and 1609.-Essex Storage Electric Co. v. Victory Lumber Co., 108 A. 426. 260(1) (R.I.) Refusal of requested instructions upon matters fully covered by and more clearly set forth in other instructions is not error.-McCoart v. Rhode Island Co., 108 A. 585. 219(2) (N.J.) Act March 15, 1916 (P. L. p. 109), amending Practice Act 1912, § 25, to are submitted to provide that when causes court for hearing without a jury any error in giving final judgment shall be subject to change, modification, or reversal, without the 261 (Md.) Where, after argument, counsel grounds of objection having been specifically for defendant, in hearing of jury, asked that submitted to court, permits a review of any the case be reopened, in that defendant had errors at law in trial judge's findings, if speci- discovered several witnesses, and it would be a fied in grounds of appeal filed and served un- great injustice to defendant if he were denied der rule 139 of Supreme Court (1913).-Pan- the privilege of putting the witnesses on the nonia Building & Loan Ass'n v. West Side stand, and the court refused the request of counsel, the court, on appeal from a judgment Trust Co. of Newark, 108 A. 240. in favor of defendant, cannot review the matter, where plaintiff did not note an exception to the conduct of the attorney or action of the court, or do anything which called upon the court to do more than it did.-Leland v. Empire Engineering Co., 108 A. 570. 219(2) (N.J.Sup.) Where a cause is submitted upon an agreed statement of facts, showing a trial without a jury and a judgment for plaintiff, based on written conclusions, to which no objection was made, and it does not appear that objection was taken during the trial, nor request for findings or conclusions, the judgment will be affirmed.-E. L. Downs Co. v. Owen Magnetic Car Co. of New Jersey, 108 A. 112. 261 (N.J.) The refusal of the court to interpose, where otherwise the right of a party would be prejudiced by improper remarks of counsel in addressing the jury and an exception to such refusal, lays the basis for a valid error. Smith v. Brunswick assignment of Laundry Co., 108 A. 184. 237(2) (Md.) Where evidence that property not involved in the action had been stolen from defendant warehouseman was received before objection was made, and, on inquiry be-265(1) (Vt.) Where plaintiff excepted to ing made regarding the object of the testi- the chancellor's rulings on admissibility of evimony, the court announced it would be admit- dence, and the record does not show that exted subject to exception, but no motion was ceptions were taken to the findings because thereafter made to exclude it, the question of such rulings, the matter is 'not before the whether such evidence was admissible was not Supreme Court, in view of G. L. 1520, relatproperly saved for review.-Leckie v. Clemens, ing to review of exceptions, and it is not necessary to decide whether such statute was 108 A. 684. changed by the subsequent passage of section 1511, P. S. 1253, where there was not compliance with either statute.-Cutler Co. v. Barber, 108 A. 400. 237 (2) (R.I.) A party takes nothing by objecting to an unobjectionable question and excepting to an irrelevant and prejudicial answer where he does not except to the refusal to strike out the answer, if there was such refusal, or move to take the case from the jury. -Messler v. Williamsburg City Fire Ins. Co., 108 A. 832. 237 (3) (R.I.) A party takes nothing by objecting to an unobjectionable question and excepting to an irrelevant and prejudicia answer where he does not except to the refusal to strike out the answer, if there was such refusal, or move to take the case from the jury. -Messler v. Williamsburg City Fire Ins. Co., 108 A. S32. 273(3) (Vt.) Where at the close of evidence defendant moved for judgment, but stated no grounds of motion, under an exception to its overruling he cannot rely on the claim of want of certain evidence, which claim was not made below.-Stevens v. Bowker, 108 A. 347. 273(4). (Vt.) The exception going only to the reading to the jury of that part of the record of witness' conviction admitted in evidence, which covered the sentence, that is as far as the reviewing court's consideration will go.238(3) (Conn.) In a proceeding to cancel Underwood v. Cray, 108 A. 513. deed, objection that complaint contained no 273(5) (Pa.) A charge to which only a genallegation that the plaintiff did not compre-eral exception is taken cannot be complained of, hend the legal consequences of her conveyance except for fundamental error.-Mackowski v. cannot be raised on appeal, where complaint Philadelphia Rapid Transit Co., 108 A. 168.. was not demurred to, no motion in arrest of 273(5) (Pa.) An appellant whose sole exerror assigned ception to charge was a general one asked and judgment was made, and no based on such defect in complaint.-Lieberum granted after the jury retired, may assign for review only material matters "so inadequateV. Nussenbaum, 108 A. 662. ly presented as to be calculated to mislead the jury," or "actual errors of law," as the Su 241 (Md.) A prayer of defendant seeking to take the case from the jury on the ground For cases in Dec.Dig. & Am,Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER preme Court will not review matters not called, to attention of trial judge, unless the alleged errors are basic and fundamental.-Groner v. Supreme Tent of Knights of Maccabees of the World, 108 A. 437. Instructions as to presumption of death from absence considered, and held not fundamentally erroneous so as to be reviewable on general exception to charge.-Id. VII. REQUISITES AND PROCEEDINGS 499 (4) (Md.) Under Code, art. 5, § 9 (Court of Appeals rule No. 4), no instruction shall be deemed to be defective because of a question of law having been thereby submitted to the jury, unless it appears from the record that an objection thereto for such defect was taken at the trial.-Rasst v. Morris, 108 A. 787. 500(3) (Conn.) Assignments of error on alleged rulings on reception of testimony will not be considered, where nothing in the record warrants the assumption that such rulings were made.-Fresenius v. Levy, 108 A. 540. exception was saved to admitting certain testimony, no question is reserved.-Underwood v. Cray, 108 A. 513. (C) Necessity of Bill of Exceptions, Case, 338(2) (R.I.)_Under Gen. Laws 1909, c. 294,501 (3) (Vt.) The record not showing that § 1, c. 298, § 17, a party taking exceptions in the superior court has seven full days following verdict or notice of decision within which he may file in the office of the clerk of the superior court notice of his intention to prosecute bill of exceptions to the Supreme Court, and. proceedings to prosecute exceptions are to be commenced before decision or verdict ripens into judgment, which may be entered at the end of the seventh day, but not before.-Way v. Superior Court, 108 A. 696. 339(5) (Conn.) An appeal filed August 30, 1919, from an order made July 3, 1919, modifying a judgment rendered December 8, 1916, was properly and seasonably taken.-Harrison v. Harrison, 108 A. 800. or Statement of Facts. 544(3) (Conn.) On an appeal from an order modifying a divorce decree, no finding was necessary under Gen. St. 1918, §§ 5823, 5824, as all the facts involved were apparent upon the record.-Harrison v. Harrison, 108 A. 800. (E) Abstracts of Record. 589 (Pa.) Assignments of error may be dismissed where they are not included in the statement of questions involved.-Compton v. Hoffman, 108 A. 626. (H) Transmission, Filing, Printing, and Service of Coples. 351(1) (R.I.) Under Gen. Laws 1909, c. 294, § 1. c. 298, § 17, a party taking exceptions in the superior court has seven full days following verdict or notice of decision within which he may file in the office of the clerk of 631 (Vt.) An order of the trial court directthe superior court notice of his intention to ing that certain motions, affidavits, etc., referprosecute bill of exceptions to the Supreme red to in the exceptions, need not be printed Court, and proceedings to prosecute exceptions provided copies are furnished the Supreme Court on hearing, does not relieve the exceptare to be commenced before decision or verdict ripens into judgment, which may be en- ing party from compliance with the rules of tered at the end of the seventh day, but not the Supreme Court.-Stevens v. Bowker, 108 A. 347. before.-Way v. Superior Court, 108 A. 696. (B) Petition or Prayer, Allowance, and Certificate or Affidavit. 362(1) (Conn.) An assignment of error that the verdict should be set aside because an atmosphere of prejudice and partiality enveloped the trial, which is not among the grounds of appeal, is not before the Supreme Court of Errors.-Kearns v. Widman, 108 A. 661. (1) Defects, Objections, Amendment, and Correction. 641 (Me.) Lack of proper certification of printed copies of stenographer's transcript by clerk of county where case was tried did not deprive law court of jurisdiction, being merely a clerical defect.-Reed v. Reed, 108 A. 103. (K) Questions Presented for Review. 362 (2) (N.J.) One ground of an appeal should contain but one distinct proposition.-671(1) (R.I.) Matters not presented in the Bair v. Lehigh & H. R. Ry. Co., 108 A. 253. transcript sufficiently full for review cannot be The only proper ground of appeal in the passed upon.-McCoart v. Rhode Island Co., 108 A. 585. Court of Errors and Appeals from a judgment of the Supreme Court, when that tribunal has sat as a court of review, is that the Supreme Court erred in giving judgment for the successful, instead of the unsuccessful party, or that it so erred for one or more of the grounds of appeal filed in that court and brought up with the record.-Id. VIII. EFFECT OF TRANSFER OF THEREFOR. (A) Powers and Proceedings Court. of Lower a proceeding to locate 673 (2) (Vt.) In and fix boundary of lands described by metes and bounds, a contention that boundary land described as belonging to P. was the same land the record fails to show such fact, or to show as now owned by C. cannot be sustained, where who P. was, or what land he owned, if any. -Cutler Co. v. Barber, 108 A. 400. 688(2) (R.I.) Where it cannot be said that a statement attributed to defendant's counsel that plaintiff's claim was fraudulent was not justified from defendant's viewpoint, and the transcript does not show such words nor that they were called to the court's attention with 437 (Vt.) When a bill of exceptions is al- request for instructions to disregard them, the lowed and filed, the judgment of the court is matter cannot be passed upon intelligently.not vacated, but remains valid until reversed or McCoart v. Rhode Island Co., 108 A. 585. annulled.-Essex Storage Electric Co. v. Vic-690(1) (Conn.) Under Supreme Court Rule tory Lumber Co., 108 A. 426. X. RECORD AND PROCEEDINGS NOT (A) Matters to be Shown by Record. 17. § 2 (26 Atl. xv), where error is claimed to rulings on evidence, the finding should state in each instance the question, objection, exception, and answer.-Tanner v., Town of Manchester, 108 A. 560. 690(5) (Conn.) Exception to admission of question on cross-examination cannot be sustained where record does not inform court of scope of direct examination nor state what answer was made.-Tanner v. Town of Manchester, 108 A. 560. 692 (1) (Md.) Complaint cannot be made of the overruling of an objection to a question, where the answer to the question is not in the record. Rasst v. Morris, 108 A. 787. tion a license to make and permit betting, pool selling, and bookmaking on the result of 694 (1) (Vt.) The chancellor's report of horse races on its grounds pursuant to Code plaintiff's exceptions, stating that, "The re- (vol. 3) art. 27, §§ 218-221, held not open to porter's transcript of the evidence is referred dismissal as involving only a moot question to, and may be a part hereof, and shall be after expiration of the time for which the licontrolling, but need not be printed," leaves cense was issued.-Close v. Southern Marythe use of the transcript limited to the ex- land Agricultural Ass'n, 108 A. 209. amination of questions raised during the hear-781(4) (Pa.) Where registration ing on the merits, so it does not include exceptions to the findings which require review of the evidence.-Cutler Co. v. Barber, 108 A. 400. 694(2) (Vt.) In the absence of evidence before the Supreme Court, defendant cannot rely on the claim of want of certain evidence in support of his motion for judgment at the close of the evidence.-Stevens v. Bowker, 108 A. 347. 704(2) (Vt.) Where the evidence is not before the Supreme Court, defendant's exception to the refusal of the trial court to find in accordance with certain requests presents nothing for review.-Stevens v. Bowker, 108 A. 347. —706(5) (R.I.) Where new trial is asked on ground that verdict for defendant in personal injury action is contrary to law and evidence, denial thereof cannot be reviewed, where testimony of eight physicians as to injury received is omitted from transcript, since jury may have found from their testimony that there was no injury which caused them to disbelieve testimony as to accident.-McCoart v. Rhode Island Co., 108 A. 585. XI. ASSIGNMENT OF ERRORS. 719(4) (Conn.) In a proceeding to cancel deed, objection that complaint contained no al legation that the plaintiff did not comprehend the legal consequences of her conveyance cannot be raised on appeal, where complaint was not demurred to, no motion in arrest of judgment was made, and no error assigned based on such defect in complaint.-Lieberum v. Nussenbaum, 108 A. 662. commis sioners were enjoined from striking off names on voter's list, and they appealed, the appeal cannot be heard, after expiration of injunction and after list had ceased to be valid, on ground that appeal concerns power of commissioners to strike names from list and is of public interest.-Winston v. Ladner, 108 A. 22. 792 (Vt.) It cannot be complained that motion to dismiss an appeal should have been denied, because not seasonably filed and because it did not point out specifically the grounds relied upon, where it appears that the order appealed from was not appealable; as it was the duty of the court to dismiss the cause at any stage when it discovered that it did not have jurisdiction, whether moved by a party or not.-Fillmore v. Morgan's Estate, 108 A. 840. XV. HEARING AND REHEARING. 832(1) (Vt.) It is a general rule that failure to present a case fully, or to give sufficient attention to the argument on a former hearing, does not in a court of last resort afford ground for rehearing.-Rice v. Bennington County Sav. Bank, 108 A. 708. 832(4) (Vt.) The Supreme Court will not grant a rehearing for the purpose of permitting a party to raise questions not presented at the former hearing.-Rice v. Bennington County Sav. Bank, 108 A. 708. XVI. REVIEW. (A) Scope and Extent in General, 837(5) (Md.) Where prayers granted by court, directing verdict for defendant, do not refer to the pleadings, appellate court will determine correctness of instructions entirely by consideration of the evidence.-Carr v. United Rys. & Electric Co. of Baltimore, 108 A. 872. 728(2) (Pa.) An assignment of error in permitting a physician to testify regarding plaintiff's injury must be disregarded where his testimony is not printed in the assignment, as re837 (10) (Vt.) Contention that provision quired by Supreme Court rule 25.-Mackowski relating to loss by fire contained in lease is a v. Philadelphia Rapid Transit Co., 108 A. 168. bar to plaintiff's right of recovery will not be 748(1) (Pa.) An appeal will be quashed considered by Supreme Court, the provision where each assignment of error violates the not having been before the lower court berules of the Supreme Court, the first because cause lease was not in evidence.-W. H. Hobbs it refers to the sustaining of four separate & Son v. Grand Trunk Ry. Co., 108 A. 199. exceptions, and does not quote any of them,837 (10) (Vt.) In construing a deed as to and where none of them are quoted in the boundaries, where it refers to a right of way other assignments, and the others violate the without showing its location or width, deeds rules because they allege error of the court not in evidence, which are referred to by deeds below in not doing certain things, without setthat are in evidence, cannot be considered, and ting forth how or in what way it was asked a reference in the findings to deeds in chain to do them. In re Behringer's Estate, 108 A. of title referred to as a part of the findings includes only those in evidence, and does not bring into the Supreme Court, or permit the parties to bring in, deeds not offered in the court below to locate the right of way.-Cutler Co. v. Barber, 108 A. 400. 414. 754(1) (Pa.) An appeal from a decree of distribution by the orphans' court, complaining of the allowance of certain claims, will be dismissed, where the final decree has not been assigned as error, as on that account the de-843(2) (N.H.) Where plaintiff sued to recree cannot be disturbed. In re Keefer's Estate, 108 A. 525. XII. BRIEFS. 757(3) (Vt.) Where appellant claims that the chancellor should have made a requested finding of fact but does not call attention to any evidence supporting his claim, the transcript will not be searched to ascertain whether the chancellor should have complied with the request but it will be assumed that the request was properly denied.-Davis v. Union Meeting House Soc., 108 A. 704. XIII. DISMISSAL, WITHDRAWAL, OR ABANDONMENT. cover installment due on logging contract, and action was tried on that theory, appellate court will not determine what measure of damages, if any, would be applicable to subsequent action by plaintiff for defendant's entire repudiation of contract, notwithstanding defendant asserted that it had repudiated contract before action for installment, and so there could be no recovery thereof.-George W. Blanchard & Son Co. v. American Realty Co., 108 A. 291. 843 (2) (R.I.) Exceptions to refusal of continuance to procure witnesses need not be considered, where the case must be reversed on other grounds, thus affording opportunity to secure such witnesses at new trial.-Stuckey v. Rhode Island Co., 108 A. 581. 781(4) (Md.) Appeal from an order of the 843(3) (Pa.) An assignment of error in percircuit court granting an agricultural associa-mitting a physician to testify as to plaintiff's in For cases in Dec.Dig. & Am. Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER jury must be disregarded, where there is a ver- judgment for return of the property, and not in dict for defendant, rendering the matter unim- the alternative for the property or its value. portant.-Mackowski V. Philadelphia Rapid-Burrier v. Cunningham Piano Co., 108 A. 492. Transit Co., 108 A. 168. ~846(6) (Vt.) Claim of plaintiff on exceptions that negligence of defendant city in care of shade tree was the proximate cause of plaintiff's injury in walking on a sidewalk is not available, there being no finding that neglect to properly care for the tree was the proximate cause, but it being expressly found that it was caused by want of sufficient repair of the walk, and no exception having been taken to failure to find that defendant was guilty of shortage of duty in the care of the tree.-Latulippe v. City of Burlington, 108 A. 425. 854 (5) (Conn.) Under Gen. St. 1918, 88 5793, 5794, neither the motion for a nonsuit nor the motion to set aside the judgment as of nonsuit need specify particular reasons; the single question, where no other rulings are involved, being whether for any reason plaintiff has failed to make out a prima facie case. -Lewis v. Scoville, 108 A. 501. 858 (N.J.) On appeal from a district court, only its determination or direction in point of law, or on the admission or rejection of evidence, was open in the Supreme Court, which could not affirm defendant's liability and reverse judgment as to damages unless there was legal error as to the rule of damages.-Oppicci v. Erie R. Co., 108 A. 759. ~882(5) (Pa.) The appellant in ejectment cannot complain that the lower court disposed of the case on the pleadings, where the record shows that there was no issue of fact, and that appellant was the first to treat the case as one of law and moved for judgment on the pleadings under Act June 7, 1915 (P. L. 887).-Glenn v. Stewart, 108 A. 599. (E) Presumptions. 901 (Me.) One excepting to the rulings of the presiding justice must show affirmatively that there was error in the rulings, and that he is aggrieved thereby.-Googins v. Skillings, 108 A. 50. 907(1) (Vt.) Appellate court will not assume a fact not shown by the record to reverse a case.-Brown v. Bristol Last Block Co., 108 A. 922. 907 (2) (Md.) Where the record does not contain the facts or evidence heard by the lower court, there is a presumption in favor of the correctness of the court's finding thereon.Wilson v. Martin's Estate, 108 A. 797. 907(2) (Vt.) In absence of evidence from the record, it must be assumed that findings are supported by the evidence.-Cutler Co. v. Barber, 108 A. 400. On appeal from the district court, the Su-920 (6) (Md.) On appeal, in the absence preme Court's holding that the evidence was of the rule of the lower court from the record, too uncertain and inadequate on which to base it will be assumed that the lower court acted verdict for plaintiff treated the case as if it in accordance with its rule in permitting a were before the court on a rule to show cause, deposition to be taken pending the trial.-Rasst instead of a statutory appeal, and was beyond V. Morris, 108 A. 787. the court's power.-Id. 858 (Vt.) An appeal in chancery partakes of the nature both of an appeal in its full and legal sense, and of a writ of error, but is unlike the former in bringing before the Supreme court questions of law only, and unlike the latter in bringing up for review the whole_case.Essex Storage Electric Co. v. Victory Lumber Co., 108 A. 426. a 920 (6) (Vt.) The question of residence of party whose deposition was taken is open to investigation by the trial court as a preliminary question of fact. and the Supreme Court, in support of the ruling below, might be required to assume that the fact of nonresidence was found against the defendants, appellants, were it not that the transcript does not show that the question was considered or passed on below. Streeter's Dependents v. Hunter, defendant's counsel, 863 (Pa.) On an appeal from an order grant-108 A. 394. ing a preliminary injunction, the merits of the case will not be examined into, except to the925(3) (Md.) Where extent necessary to determine the propriety of after argument, requested in hearing of jury the injunction at the stage of the proceeding. -Winston v. Ladner, 108 A. 22. 863 (Pa.) The established practice of the appellate court on an appeal from the award or refusal of a preliminary injunction, is to decline to consider the merits of the case, and when it appears that there was apparently sufficient ground for the lower court's action, the status quo will not be disturbed, but will be continued to final hearing.-Beetem v. Carlisle Light, Heat & Power Co., 108 A. 349. 863 (Pa.) Where there was apparently sufficient ground for action of court below in granting a preliminary injunction, the Supreme Court, on appeal therefrom, will not consider the merits of the case or disturb the status quo which will be continued to final hearing.-City Ice Co. v. Easton Merchants' Ice Co., 108 A. 593. (B) Interlocutory, Collateral, and Supplementary Proceedings and Questions. 876 (Conn.) On appeal from an order modifying a judgment, the review was limited to such order where the time for appealing from the judgment and an earlier order deny ing a motion to modify had expired.-Harrison v. Harrison, 108 A. 800. that case be reopened, in that two eyewitnesses had been discovered, and it would prove an injustice to defendant if he were denied the privilege of putting the witnesses on the stand, it cannot be assumed on appeal that the defendthen have the witnesses in court.-Leland v. ant was acting in bad faith, although he did not Empire Engineering Co., 108 A. 570. 927(7) (Md.) Appellate court, in passing on action of trial court in directing verdict for defendant, must assume the truth of the facts shown by plaintiff's testimony.-Carr v. United Rys. & Electric Co. of Baltimore, 108 A. 872. 927 (7) (Pa.) In reviewing question whether defendant was entitled to binding instructions in his favor, the evidence favorable to plaintiff and every reasonable inference therefrom must be taken as true, and every unfavorable allegation and inference must be rejected. Snyder v. McGill, 108 A. 410. 933 (1) (Conn.) On review of refusal of trial court to set aside verdict for plaintiff, the evidence will be viewed in the light most favorable to plaintiff's contentions of fact.-Cahill v. Royal Ins. Co., 108 A. 544. 939 (Vt.) Where the transcript which is made the bill of exceptions discloses the ground of a ruling sustaining an objection to evidence, it will be presumed that it shows the full scope and point of the exception.-Niebyski v. Welcome, 108 A. 341. (C) Parties Entitled to Allege Error. 877(4) (Md.) Where defendant's appeal in a replevin case presents no reversible error, and plaintiff did not appeal, the judgment will be affirmed, although plaintiff was entitled to a to (F) Discretion of Lower Court. 969 (N.J.) Discretion of court in refusing withdraw a juror for improper remarks by |
