statutory time, where service of summons in error has not been had or waived or præcipe for same filed or general appearance_made within such time.-Brakel v. Scott, 155 P. 1124.

(E) Entry, Docketing, and Appearance.

435 (Colo.) The Supreme Court had jurisdiction over the persons of defendants in error who accepted service and entered their appearance.Greeley & Loveland Irr. Co. v. Huppe, 155 P. 386.

made a part of the statement of facts, they cannot be considered.-Pappas v. Dailey, 155 P. 1059.

537 (Ariz.) Under Civ. Code, 1913, par. 603, filing of statement of facts and transcript of the reporter's notes on July 29th, after motion for new trial had been overruled April 30th, without any stipulation or order of court for allowing additional time, held not part of the record.—Daze v. Ketchum, 155 P. 964. (C) Necessity of Bill of Exceptions, Case,

or Statement of Facts.

IX. SUPERSEDEAS OR STAY OF PRO- 662, 952, an appeal from an order granting a

CEEDINGS.

465(2) (Cal.App.) In lieu of having the amount of the undertaking given to stay execution pending appeal fixed by the court, the par: ties can stipulate as to what the amount shall be, the sureties being bound by the statements. -Hammond v. United States Fidelity & Guaranty Co., 155 P. 1023.

544(3) (Cal.) Under Code Civ. Proc. §§ 661, new trial after nonsuit will be heard as against the objection that appellant has prepared no bill of exceptions.-Flickinger v. Wrenn Inv. Co., 155 P. 627.

544(1) (Okl.) A motion to vacate a judgment copied into a transcript, constitutes no part of the record, and presents no question for review.-Grady County v. Schrock, 155 P. 882; Same v. Miller, Id. 883; Same v. Alexander, Id.

470 (Okl.) Rev. Laws 1910, § 5254, relating to undertakings as stay, requiring that the 544 (Wash.) Where appellant contended clerk indorse his approval on any undertaking that order appealed from was beyond court's taken by him under such section, is directory.- power to make and void on its face, bill of exLeach v. Altus State Bank, 155 P. 875. ceptions or statement of facts held unnecessary. 488 (Cal.) Although an appeal will stay theIn re West Waite St., Seattle, 155 P. 165. effect of a mandatory injunction, it will not stay the operation of a prohibitory injunction. -United Railroads of San Francisco v. Superior Court in and for City and County of San Francisco, 155 P. 463.

544(1) (Wash.) Without

a statement of facts, an assignment of error to the refusal of instructions, which relate to the proofs and failures of proof, cannot be considered.-Weld v. Wheeler, 155 P. 748.

Assignments of error to the denial of new trial and entering of judgment, the entire argument on which is based on the facts, cannot be considered, the statement of facts being stricken.

Under Civ. Code, § 3368, defining "preventative relief," and Code Civ. Proc. § 525, defining an "injunction," an injunction prohibiting excessive use of tracks of a street railroad by a municipal street railroad was essentially pro-Id. hibitive, and its operation not superseded by appeal.-Id.

(D) Contents, Making, and Settlement of Case or Statement of Facts.

X. RECORD AND PROCEEDINGS NOT 564 (Okl.) A case-made not served within IN RECORD.

(A) Matters to be Shown by Record.

500 (Okl.) A demurrer will be deemed waived, where the record does not show that it was called to the trial court's attention and ruled upon.-Blaine County Bank v. Noble, 155

P. 532.

502 (Okl.) Where the record fails to close that a motion for new trial was filed in the court below, errors occurring at the trial will not be reviewed on appeal.-McCann v. Rees, 155 P. 568.

three days after entry of judgment or order appealed from, or within an extension of time duly allowed, cannot be considered.-Powell v. First State Bank of Clinton, 155 P. 500.

564 (Okl.) Notice of the application and a showing of accident or misfortune which could not have reasonably been avoided are conditions precedent to the right to extend time for serving case-made under Rev. Laws 1910, § 5246. -Wylie v. Shutler, 155 P. 513. dis-564(5) (Okl.) Under Rev. Laws 1910, § 5246, to authorize extension of time for serving case-made after time allowed by law or former extension, notice must be given opposite party and showing made that failure to serve case in time was because of accident or misfortune which could not reasonably have been avoided. Colbert v. Higgambotham, 155 P. 1084. en-564 (Wash.) Where, because the parties were conducting in good faith negotiations for settlement, plaintiff failed to file statement of facts within time, held that, under Laws 1915, p. 303, § 8, the Supreme Court should allow plaintiff to file the statement thereafter on payment of expenses of opposing counsel.-State v.

511(3) (Okl.) An order made at chambers and purporting to extend the time to make and serve a case-made held ineffective, where the case-made failed to show that the order was tered in the court's journal pursuant to Rev. Laws, § 5317, or section 5324.-Midland Savings & Loan Co. v. Miller, 155 P. 864.

(B) Scope and Contents of Record.

Superior Court for Okanogan County, 155 P.

145.

567(1) (Okl.) In the absence of a waiver, a case-made signed and settled before the expiration of the time granted for suggesting amendments is a nullity.-Deep Red Oil Co. v. Shortridge, 155 P. 873.

518(5) (Wash.) Where the complaint alleged a sale of goods, but did not set out an itemized account, which was later included in a bill of particulars, the court on appeal, on bill of exceptions containing only the pleadings and instructions, could not consider the bill of particulars, since it is not a part of the complaint and is not traversed by the answer.-567(1) (Okl.) In the absence of a waiver by Nilson v. Ebey Land Co., 155 P. 1036. defendant in error, a case-made duly signed and settled before the expiration of the time granted for suggestion of amendments is a nullity.Deep Red Oil Co. v. Owen, 155 P. 874.

528(4) (Wash.) Where a motion for new trial is accompanied by affidavits, and on appeal from an order allowing new trial they are not

574 (Okl.) The court stenographer's certificate that the evidence in the case-made is a correct and complete transcript of all evidence offered is not sufficient.-Powell v. First State Bank of Clinton, 155 P. 500.

| 663 (Okl.) Where the case-made shows that material evidence necessary to a proper determination of the case has been omitted from it, the appeal should be dismissed, though the trial judge's certificate recites that the case-made contains all the evidence.-Powell v. First State Bank of Clinton, 155 P. 500.

(G) Authentication and Certification. 612 (Cal.) A party expecting to appeal under Code Civ. Proc. § 941a, must see to it that the official reporter is present at the trial, in order that a transcript of the evidence and proceedings may be furnished, otherwise the judge may refuse to sign.-Bush v. Allen, 155 P. 456.

(K) Questions Presented for Review.

671(3) (Ariz.) Where the evidence of trial is not before the Supreme Court because the statement of facts was not filed in time, its review is limited to the pleading, the general and special verdicts, and the judgment of the court. -Daze v. Ketchum, 155 P. 964.

612 (Okl.) Errors assigned on the record will not be reviewed in the absence of a cer-671 (Cal.) Where the transcript under the tificate of the clerk showing that the same is a full, true, and correct transcript of the record. Threadgill v. City of Coalgate, 155 P. 241.

(H) Transmission, Filing, Printing, and Service of Copies.

623 (Or.) Where an appeal was perfected on October 4th, a transcript filed on October 28th following was filed within 30 days after the appeal was perfected, as prescribed by L. O. L. § 554, as amended by Laws 1913, p. 618.Cauldwell v. Bingham & Shelley Co., 155 P.

190.

628 (Or.) A respondent who formally consented to delay in filing on appeal the printed abstract of record cannot complain of the failure to file the same within the statutory period. Cauldwell v. Bingham & Shelley Co.,

155 P. 190.

628 (Or.) Where, through an honest mistake in calculating the time, appellant failed to file an abstract of the record within 20 days after transcript was filed, as required by court rule 6 (56 Or. 616, 117 Pac. ix), the appeal will not be dismissed; the hearing not being delayed.Flynn v. Davidson, 155 P. 197.

(I) Defects, Objections, Amendment, and Correction.

635 (Okl.) Where the case-made fails to show that the trial court ruled on the motion for new trial, the petition in error will be dismissed.-Powell v. First State Bank of Clinton, 155 P. 500.

clerk's signature alone is in the record on appeal under Code Civ. Proc. § 941a et seq., the court may consider only the judgment roll.Bush v. Allen, 155 P. 456.

671 (Kan.) Where a complete transcript has not been made and filed under Code Civ. Proc. § 574 (Gen. St. 1909, § 6169), and counsel have not agreed that the record contains all the evidence on a particular issue, no questions arising on the evidence can be considered.-Capital City Vitrified Brick & Paving Co. v. Concordia Lumber Co., 155 P. 38.

671 (Okl.) Where an examination of the evidence is essential to a review of the errors assigned, they cannot be reviewed on a transcript of the record.-Fields v. Fields, 155 P. 245. In a suit to set aside deeds, held, that the assignments of error complaining of certain findings and of denial of plaintiffs' motion for new trial could not be determined, except by an examination of the evidence, and therefore were not presented for review on a transcript of the record.-Id.

692(3) (Or.) Under L. O. L. § 171, where bill of exceptions does not disclose expected answers of witnesses, Supreme Court cannot determine whether they would have been favorable to plaintiff.-Stricker v. Portland Ry., Light & Power Co., 155 P. 1195.

696 (Okl.) Where the record does not show that it contains all the evidence, questions arising on the evidence cannot be reviewed.-Powell v. First State Bank of Clinton, 155 P. 500.

696 (Okl.) Where the case-made does not recite that it contains all the evidence, errors occurring at the trial and requiring an examination of the evidence cannot be considered. af--McCann v. Rees, 155 P. 568.

635 (Okl.) Where it is necessary to examine evidence, and the face of the record shows that all the evidence has not been brought up, the appeal may be dismissed or judgment firmed.-McKone v. Hogan, 155 P. 560.

653 (3) (Okl.) The Supreme Court cannot amend a case-made or regard it as amended.Grayson v. Damme, 155 P. 1159.

On timely motion to correct a case-made, the Supreme Court will not sustain a motion to dismiss without giving plaintiff in error opportunity to correct the case-made.-Id.

motion to strike a statement of facts does not

706 (Okl.) Where no verdict, findings, or conclusions at law are shown by the case-made. and result of the trial cannot be determined therefrom, errors assigned on the denial of a new trial will not be reviewed.-Phillips v. Oliver, 155 P. 586.

(L) Matters Not Apparent of Record. 655(3) (Wash.) That the names of certain his personal affidavit supplement the record of 714(6) (Kan.) The trial court should not by appellants were omitted from the caption of a what transpired before him.-Emery v. Beninvalidate the order thereon as to such appel-nett, 155 P. 1075. lants, when they knew of the hearing and coun-716 (Wash.) Where a number of statutory sel represented them thereat.-Milwaukee Land Co. v. Burk, 155 P. 577.

Where a petition for rehearing of an order striking a statement of facts from the record on appeal was denied, such order was thereafter subject to review on the hearing of appeal.-Id.

not

(J) Conclusiveness and Effect, Impeaching and Contradicting.

662(2) (Or.) A recital in an order for new trial of continuance of the hearing to the next term is conclusive that the continuance was had as required by L. O. L. § 175, as amended by Laws 1911, p. 152.-Sanders v. Taber, 155 1194.

grounds were presented to the trial judge in moving for a new trial, and the record on appeal from his order allowing the new trial fails to show on which ground it was allowed, the court cannot interfere.-Pappas v. Dailey, 155 P. 1059.

XI. ASSIGNMENT OF ERRORS.

719 (Okl.) Errors during the trial cannot be considered, unless a motion for new trial complaining thereof has been made and ruled on, and exceptions saved, and error assigned to the ruling.-Vandenberg v. Winne, 155 P. 245. .719(7) (Or.) Under Supreme Court rule 12 (56 Or. 621, 117 Pac. ix) error in instruction

732 (Or.) Assignment of error that the court erred in denying defendant's motion for new trial held too indefinite to be considered.-781(4) (Okl.) Where the time over which a Dundas v. Grand View Land Co., 155 P. 365.

847 (Or.) Cases in equity on appeal are determined from an inspection of the transcript of evidence.-Leon v. Leon, 155 P. 189.

854 (Cal.) Though the trial court granted a new trial on an erroneous ground, yet if the new trial was properly granted, its action will not be disturbed on appeal.-Steil v. Sun Ins. Office of London, 155 P. 72.

867 (Cal.) Where the order granting a new trial stated that it was denied so far as the sufficiency of the evidence was concerned, that ground is excluded from consideration on appeal, but the appellate court may review any other ground, though new trial was denied on such ground.-Steil v. Sun Ins. Office of London, 155 P. 72.

867(1) (Cal.App.) The appellate court is limited, in its review of the action of the lower court on appeal from the order denying a new trial, to the grounds on which the new trial was asked. Bloxham v. Tehama County Telephone Co., 155 P. 654.

ror invited by the plaintiff, availing it nothing on appeal.-Čity of Rainier v. Masters, 155 P. 1197.

(D) Amendments, Additional Proofs, and Trial of Cause Anew.

893(2) (Wash.) An equity case is tried de novo on appeal.-Evans v. Goist, 155 P. 780.

898 (Okl.) In an equity case, the Supreme Court may consider the entire record, including documentary evidence improperly excluded, and may affirm the case if the judgment is supported by the weight of evidence including that wrongfully excluded.-Scott v. Cover, 155 P. 889.

898 (Wash.) In an equity case, evidence improperly admitted in the trial court will be disregarded.-Evans v. Goist, 155 P. 780.

(E) Presumptions.

907(1) (Cal.App.) In the absence of any record of the evidence taken at the trial, it must be presumed that the trial court's findings were justified by the proofs.-Miller v. Kraus, 155 P. 834.

867(3) (Cal.App.) The sufficiency of the pleadings to support the judgment cannot be considered on appeal from an order denying a new trial. Bloxham v. Tehama County Tele-907 (Nev.) Where the executors of an esphone Co., 155 P. 654. tate had made two reports before their final report, each of which was proved and settled by the court, and there was no evidence in the record that the estate could have been settled sooner with advantage, the court would not presume such to have been the fact.-In re Hartung's Estate, 155 P. 353.

867(4) (Cal.App.) The sufficiency of the findings of fact to sustain the conclusions of law cannot be considered on appeal from an order denying a new trial.-Bloxham v. Tehama County Telephone Co., 155 P. 654.

brought up, the admission of evidence will, under the rule that every intendment is in favor of the regularity of the procedure in the lower court, be presumed justified by reason of the admission of other evidence.-Barlow v. Barnes, 155 P. 457.

(B) Interlocutory, Collateral, and Supple-926 (Cal.) Where all the evidence was not mentary Proceedings and Questions. 870 (Idaho) All orders or decisions not final or specifically made appealable by statute, if duly preserved for review, will be reviewed on appeal from a final judgment or an order granting new trial.-Weiser Irr. Dist. v. Middle Valley Irrigating Ditch Co., 155 P. 484.

873(2) (Kan.) Rulings cannot be reviewed in an appeal perfected before they were made.Wichita Acetylene Mfg. Co. v. Haughton, 155 P. 1078.

927 (Utah) Where a nonsuit has been granted on plaintiff's evidence, the reviewing court should construe the evidence, including that which has been modified by witnesses on cross-examination, most favorably to plaintiff.

873 (Or.) As a general rule, an order setting-Jeppsen v. Jensen, 155 P. 429. aside a default is of an intermediate character, and not appealable, though it may be reviewed on appeal from the final judgment or decree. Flynn v. Davidson, 155 P. 197.

874 (Idaho) All orders or decisions not final or specifically made appealable by statute, if duly preserved for review, will be reviewed on appeal from a final judgment or an order granting new trial.-Weiser Irr. Dist. v. Middle Valley Irrigating Ditch Co., 155 P. 484.

(C) Parties Entitled to Allege Error.

evi

931(6) (Idaho) Where documentary dence has been admitted on a condition with which the party introducing it has not complied, it will be presumed, in the absence of a contrary showing, that the court, sitting without a jury, disregarded such evidence, and that therefore its admission was not prejudicial.— Darry v. Cox, 155 P. 660.

934 (Cal.) A judgment of nonsuit, in a suit by a purchaser of land to recover a payment made, no reasons for it appearing in the record, will be presumed to have been based upon plaintiff's failure to prove breach or rescission of the contract.-McGibbon v. Schmidt, 155 P. 460.

877 (2) (Cal.) A tenant in common, who did not join in conveyances by his cotenants, and whose share was unaffected, cannot complain of errors, on partition, with relation to the convey-934(4) (Wash.) Where judgment roll alone ance of such special tracts; his rights not being was before the court, held that judgment would affected, and it being immaterial whether con- be presumed to follow stipulation recited in veyances carried a fee or an easement.-East judgment.-Puget Sound Bridge & Dredging Co. Shore Co. v. Richmond Belt Ry., 155 P. 999. v. Guardian Casualty & Guaranty Co., 155 P. 771.

A tenant in common cannot, where an action for partition was not delayed, complain of the opening of the case and admission of proof of conveyances of special locations, made after suit was begun and which were not mentioned in any pleading on file.-Id.

882(19) (Cal.App.) In an action for breach of contract to purchase gloves where a wrong measure of damages was adopted on defendant's contention, the error was invited and defendant cannot complain on appeal.-Merrill v. Kohlberg, 155 P. 824.

882 (3) (Or.) Where a city suing its contractor to recover general damages on a partly completed contract did not offer to prove one branch of the case, error, if any, in the refusal to consider that phase of the contention, was er

936 (Okl.) The action of the trial court in taxing under Rev. St. 1910, § 1006, attorney fees to unsuccessful defendants, who pray judgment for double the amount of alleged usury, will not be disturbed, unless it clearly appears that injustice has been done.-Kelly v. Brown, 155 P. 590.

936 (1) (Wash.) Under Rem. & Bal. Code, § 484, authorizing the imposition of not to exceed $10 beside witness fees, as a condition for granting postponement of trial, in the absence of itemization of the expenses and of proper objection, it must be assumed that the court was within its discretion in making an allowance of $30 as a condition for a third continuance.Casady v. Anderson, 155 P. 1067.

155 PACIFIC REPORTER

(F) Discretion of Lower Court.

966 (Okl.) The denial of a continuance will not be disturbed in the absence of a clear abuse of discretion.-Comanche Mercantile Co. Waymire, 155 P. 542.

V.

1210

Portland Ry., Light & Power Co., 155 P. 375. preme Court will not disturb it.-Johnson v.

1001 (1) (Wash.) Where the plaintiff's evidence under oath conclusively showed that there was an assault and battery and that version thereon was conclusive in the absence of misdiwas accepted by the jury, its verdict rendered rection by the court.-Casady v. Anderson, 155 P. 1067. ab-1002 (Cal.App.) The determination of the jury on a question of fact, when there is a substantial conflict in the evidence, cannot be reviewed by the court on appeal.-Torrey v. Shea,

966(1) (Okl.) Before Supreme Court will disturb ruling on motion for continuance, it must affirmatively appear that there was abuse of discretion.-Elliott v. Coggswell, 155 P. 1146. 969 (Cal.App.) Proceeding to trial in sence of defendant or his attorney, if within the discretion of the trial court, held an abuse of such discretion.-McMunn v. Lehrke, 155 P.

473.

969 (Okl.) Under Rev. Laws 1910, §§ 4791, 5031, the denial of the right to first introduce evidence or to open and close the argument will not require a reversal, in the absence of a clear abuse of discretion prejudicial to the complaining party.-Congdon v. McAlester Carriage & Wagon Factory, 155 P. 597.

971 (Okl.) The ruling on the qualifications of expert witnesses as to value of automobiles will not be disturbed, in the absence of an abuse of discretion.-International Harvester Co. w. Lawyer, 155 P. 617.

155 P. 820.

1002 (Okl.) The Supreme Court will not review conflicting evidence to ascertain where the weight lies.-Pool v. Burger Bros., 155 P. 1144.

verdict under appropriate instructions and on 1002 (Or.) In employé's action for injuries, conflicting testimony held to settle the facts.Dickerson v. Eastern & Western Lumber Co., 155 P. 175.

1002 (Utah) A verdict on conflicting evidence is conclusive.-McFarlane v. Winters, 155 P. 437.

977 (Cal.) The granting of a new trial can-flicting, and that for the defendant is altogether 1002 (Wash.) Where the evidence is connot be disturbed on appeal in the absence of an by interested persons, and for plaintiff is parabuse of discretion.-McEwen v. Occidental Life tially by disinterested persons, the court on apIns. Co., 155 P. 86. 155 P. 1043. peal will not disturb the judgment in favor of plaintiff.-Kennedy v. Meilicke Calculator Co.,

977 (Okl.) The granting of a new trial will not be disturbed unless it appears beyond all reasonable doubt that the court erred as to some

pure, simple, and unmixed question of law, but for which new trial would not have been granted.-Brown v. Goulding, 155 P. 559.

979 (Utah) Where Supreme Court cannot say that trial court abused its discretion in refusing a new trial, it cannot interfere with verdict. Thomas v. Ogden Rapid Transit Co., 155 P. 436.

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

diet is against the evidence.-Collins v. Morris,
1003 (Kan.) The Supreme Court may re-
155 P. 51.
verse the judgment if it determines that the ver-

1003 (Okl.) A verdict supported by sufficient evidence will not be disturbed on the weight of evidence.--Kelly v. Brown, 155 P. 590.

1004 (Utah) Where the Supreme Court cannot say that there is no evidence to support the amount of recovery, or that the jury disregarded enced by passion or prejudice, it cannot interthe instructions or the evidence or were influfere with the verdict.-Thomas v. Ogden Rapid Transit Co., 155 P. 436.

999(1) (Cal.) For purpose of appeal the jury are to be considered as having accepted the testimony supporting the verdict.-Barrett v. Metropolitan Contracting Co., 155 P. 645. 1001 (Cal.App.) Judgment conveyance of land in which it was claimed setting aside grantor was not intended to have any interest will be sustained if founded on some substan-1005 (Kan.) A verdict on conflicting evitial evidence.-Hilborn v. Soale, 155 P. 130.

1001(1) (Cal.App.) Where the verdict was general in its terms and covered every issue in the case, it must be upheld if it finds support in the evidence adduced upon the whole case.Merrill v. Kohlberg, 155 P. 824.

1001 (Okl.) A verdict supported by evidence will not be disturbed on the weight of the evidence. First State Bank of Indiahoma v. nasco, 155 P. 261.

1004(1) (Wash.) Unless clearly erroneous. an award of damages by the jury will be upheld 155 P. 1063. on appeal.-Wesseler v. Great Northern Ry. Co.,

dence and approved by the trial court will not be disturbed.-Welliver v. Clark, 155 P. 4.

1008 (Okl.) Where defendants set up a plea of usury and alleged payment of usurious interest and prayed judgment under Rev. St. 1910, findings against defendants on such issues can§ 1006, for double the amount of usury so paid, not be disturbed.-Kelly v. Brown, 155 P. 590. Me-1008(1) (Okl.) The judgment in a case submitted to the court without a jury without obthe ground that it is excessive due to prejudice jection and exception is conclusive except on and passion.-Haizlip v. Whitfield, 155 P. 863. 1001(1) (Okl.) A judgment on a verdict rea-law action, and the case is tried by the court, 1008(2) (Wash.) Where jury is waived in a sonably sustained by any evidence will not be its findings are equivalent to a verdict and condisturbed on the weight of evidence.-Pool v. clusive, if there is any evidence to support Burger Bros., 155 P. 1144. them.-Kennedy v. Meilicke Calculator Co., 155 P. 1043.

1001 (Okl.) Jury findings reasonably supported will not be disturbed.-Oklahoma City Land & Development Co. v. Adams Engineering & Blue Printing Co., 155 P. 496.

1001(1) (Okl.) A verdict reasonably supported by evidence will not be disturbed on the weight of evidence, though the appellate court might not have reached the same conclusion.American Fidelity Co. of Montpelier, Vt., v. Echols, 155 P. 1160.

1001(1) (Okl.) A verdict reasonably supported by evidence will not be disturbed in the absence of prejudicial error of law.-Barry y. Kniseley, 155 P. 1168.

1009(3) (Idaho) The rule that a judgment sustained by evidence will not be disturbed for conflict in the evidence applies with equal force in actions at law and in suits in equity where the decision is based on oral evidence.-Darry v. Cox, 155 P. 660.

1009 (Okl.) A decree in equity will not be disturbed unless it is against the weight of evidence.-Chesnutt v. Hicks, 155 P. 545.

1001 (Or.) When a cause has been submit-1009(1) (Okl.) On appeal in equity, the ted to a jury under a proper charge and there court will examine and weigh the evidence, but is any evidence to support the verdict, the Su- will not disturb the judgment unless clearly