$655. On an appeal from an order sustaining a demurrer to the petition to vacate a decree of divorce, affidavits attached to the petition will not be stricken out.-Chaney v. Chaney (Wash.) 229. as a part of the record, it will not be stricken. | is to be determined in the light of all the evi-Storer v. Heitfeld (Idaho) 55. dence, and is not limited to the state of the evidence at the time of the nonsuit motion.Conner v. Seattle, R. & S. Ry. Co. (Wash.) 634. § 841. The rule that, on appeal in an equity case, the Supreme Court will determine whether the evidence preponderates against the findings, held applicable only in a case where there is a controversy as to the facts.-Weiss v. Hamilton (Mont.) 74. (K) Questions Presented for Review. § 671. The Supreme Court on appeal is bound by the record and the transcript, and can only sustain or reverse the case made therein. Konnerup v. Allen (Wash.) 639. $696. Where the case-made does not contain a statement that it contains all the evidence, an assignment of error requiring review of the evidence cannot be considered.-Insurance Co. of North America v. Gish, Brook & Co. (Okl.) 672; Springfield Fire & Marine Ins. Co. v. Same (Okl.) 673; London & L. Fire Ins. Co. v. Same, Id. 701. Where evidence intended to be covered by instructions is omitted from the abstract, the instructions will not be reviewed.-Greenlaw Lumber & Timber Co. v. Chambers (Colo.) 1091. 704. The court's failure to find on an affirmative defense cannot be reviewed in the absence of a bill of exceptions, or a statement of the case.-Rauer Law & Collection Co. v. Leffingwell (Cal. App.) 427. (L) Matters Not Apparent of Record. § 716. The dismissal of an appeal to the district court from the probate court held not justified on the ground of defects not appear ing in the record proper, within Wilson's Rev. & Ann. St. 1903, § 4606.-Stone v. Clogston (Okl.) 642. XII. BRIEFS. § 842. The ruling of the trial court on motion for a nonsuit presents a question of law. -Lewis v. Superior Court of Butte County (Cal. App.) 763. § 842. The question presented on a motion for nonsuit is one of law, and an adverse ruling thereon may be reviewed on appeal from the judgment for plaintiff or on appeal from an order denying a new trial.-State v. District Court of Second Judicial Dist. of Silver Bow County (Mont.) 721. § 842. Findings of fact and question of excessive damages raised by motion for new trial held not reviewable on appeal.-Vuilleumier v. Oregon Water Power & Ry. Co. (Or.) 706. § 843. Where the court found for plaintiff on two grounds, and the finding on one ground justified the judgment, the question whether the other ground was sufficient need not be considered on appeal.-Shultz v. Redondo Improvement Co. (Cal.) 118. § 856. Where an order granting a motion for a new trial is general, it must be sustained, if good, on any of the grounds upon which the motion was based.-Smith v. Hyer (Cal. App.) 787. § 856. Where motion for new trial, in which there are 10 distinct grounds, has been sustained, a decision will not be reversed, unless it cannot be justified under either of the 8773. Decree affirmed on appeal for appel- grounds.-Rowell v. Dosbaugh (Kan.) 691. lant's failure to file brief.-Smith v. Smith (Or.) 706. § 865. Defects in petition which could have been taken advantage of before judgment by general demurrer may be reviewed on error.XIII. DISMISSAL, WITHDRAWAL, OR International Harvester Co. of America v. Cameron (Okl.) 189. ABANDONMENT. § 865. If a judgment would have been arSpecial allowance of costs for attendance on rested on motion because the petition did not motion to dismiss, see Costs, § 247. § 781. A writ of error to review a judgment, enjoining acts in restraint of trade by members of a voluntary association to continue for a fixed period, will be dismissed where the association has ceased to exist.-Iron Silver Mining Co. v. Waldrum (Colo.) 860. § 781. Where a buyer sued for the price of goods claimed a breach of warranty and elected to repudiate the sale, and hold the goods subject to the seller's order, and pending their appeal from an adverse judgment, changed the character of the goods by manufacturing them. held, that the Supreme Court would dismiss the appeal on the ground that the subject-matter had ceased to exist.-Konnerup v. Allen (Wash.) 639. XV. HEARING AND REHEARING. § 834. A motion for rehearing only suspends the judgment of the Supreme Court, which becomes final on the handing down of the opinion. -Zeuske v. Zeuske (Or.) 249. XVI. REVIEW. (A) Scope and Extent in General. § 837. Where defendant, at the close of plaintiff's evidence, moved for nonsuit, which being denied, it voluntarily proceeded with the trial, and introduced evidence, upon appeal, the sufficiency of the evidence to warrant the verdict state a cause of action, it may be reversed there- § 867. On an appeal from an order granting or denying a new trial, the sufficiency of a pleading cannot be considered.-Stewart v. Stewart (Cal.) 955. (C) Parties Entitled to Allege Error. § 878. Respondent cannot have adverse rulings reviewed on appellant's appeal, but must take a cross-appeal.-Winningham v. Philbrick (Wash.) 144. § 882. Where, on defendant's motion, an action was referred to a master to determine the damages as if defendant were condemning a right to permanently flood the land, defendant held to have waived special defenses pleaded inconsistent with the issues to be tried, at his request.-Gaskill v. Washington Water Power Co. (Idaho) 51. of error he has himself made or induced the $ 882. A party will not be heard to complain. court to make.-Gaskill v. Washington Water Power Co. (Idaho) 51. (D) Amendments, Additional Proofs, and Trial of Cause Anew. On appeal from justice's court, see Justices of the Peace, § 171. $889. Where evidence tending to show negligence was admitted without objection, the complaint will be treated on appeal as having | tion.-Mitchell v. California & O. C. S. S. Co. been amended so as to admit such evidence. (Cal.) 590. O'Brien v. Corra-Rock Island Mining Co. (Mont.) 724. § 889. Pleadings will be presumed to have been amended to conform to the proof, where no objection was taken to defective allegations, and evidence pro and con was introduced without objection.-Kaufman v. Boismier (Okl.) 326. § 889. Where evidence showing title in defendant by adverse possession was erroneously admitted because not pleaded, the Supreme Court on appeal could not treat the answer as amended to conform to such proof.-Brown v. Haley (Wash.) 478. § 889. The complaint must be deemed amended to conform to stipulated facts.-O'Connor v. Enos (Wash.) 1039. § 977. The erroneous granting of a new trial, involving solely a question of law, will be reversed on appeal.-Farmers' & Merchants' Nat. Bank of Hobart v. School Dist. No. 56 (Okl.) 641. 977. Under Comp. Laws 1907, § 3133, in the absence of an abuse of discretion, the denial of a motion for a new trial will not be disturbed on review.-Lancino v. Smith (Utah) 914. § 977. An order granting defendant a new trial will not be set aside on appeal in the absence of an abuse of discretion.-Winningham v. Philbrick (Wash.) 144. § 979. Remarks of the trial judge in passing upon a motion for new trial in condemna$895. The misconduct of the trial judge try- tion proceedings on the ground that the daming a case without a jury, resulting from his ages were excessive held to indicate an exercise using language addressed to counsel for the of discretion not reviewable in absence of abuse. defeated party, not warranted by the circum--Columbia & C. R. Boom & Rafting Co. v. stances, is not ground for a new trial in a Hutchinson (Wash.) 636. case triable de novo in the appellate court.Hillman v. Stanley (Wash.) 816. (E) Presumptions. § 909. Where a witness called to prove the law of fixtures of a foreign country did not testify to any statute or judicial decision on the subject, but merely gave his opinion upon the general law, based upon facts not in the record, the Supreme Court will presume that the foreign law on the subject is the same as the law of this state.-Gasaway v. Thomas (Wash.) 168. § 931. Where a court adopted a jury's findings in an equity case on questions of fact, it will be presumed that due weight was given to all the competent evidence.-People's Gas Co. v. Fletcher (Kan.) 34. § 934. In the absence of the evidence, it will be held to support the judgment.-Treis v. Berlin Dye Works & Laundry Co. (Cal. App.) 275. § 934. Where no objection was made to the portion of a decree foreclosing a mortgage directing the method of sale, it must be presumed that the court tried out that question and decided that such method of sale was most advantageous.-Bartlett Estate Co. v. Fairhaven Land Co. (Wash.) 848. § 939. In the absence of anything to the contrary, it will be presumed that a document appearing in the record is the one identified in the bill of exceptions.-Storer v. Heitfeld (Idaho) 55. (F) Discretion of Lower Court. § 959. The allowance of amendments to pleadings, being within the sound discretion of the trial court, will not be disturbed on appeal unless it affirmatively appears that prejudice has resulted therefrom.-Alcorn v. Dennis (Okl.) 1012. § 966. The trial court's ruling on a motion for a continuance will not be disturbed, except for an abuse of its discretion.-Storer v. Heitfeld (Idaho) 55. § 966. The denial of a motion for a continuance for the absence of evidence will not be disturbed in the absence of an abuse of the court's discretion.-Lancino v. Smith (Utah) 914. 970. The admission of testimony not strictly in rebuttal is within the discretion of the trial court, and not reviewable, unless discretion was abused.-Greenlaw Lumber & Timber Co. v. Chambers (Colo.) 1091. § 977. Refusal of the court to relieve against a default in the preparation and settlement of a statement on motion for a new trial will not be reversed in the absence of abuse of discre § 981. The granting or refusing of a new trial on the ground of newly discovered evidence is so far within the discretion of a trial court that its decision will not be disturbed unless there is a clear abuse of discretion.-Smith v. Hyer (Cal. App.) 787. § 982. Action on a motion to vacate findings of fact, conclusions of law, and judgment will not be reviewed in the absence of a showing of an abuse of discretion.-Lindsay v. Scott (Wash.) 462. (G) Questions of Fact, Verdicts, and Findings. § 987. The appellate court will not consider questions only involving the weight of evidence. -Knott v. Patnott (Cal. App.) 260. § 987. Where the only question for review would require the court to weigh the evidence, the judgment below will be affirmed.-Carr v. Maxwell Trading Co. (Okl.) 333. § 1001. That the appellate court would have reached a different conclusion from that of the jury on a question of fact does not, authorize a reversal.-Bennett v. Seattle Electric Co. (Wash.) 825. 1002. A judgment on conflicting evidence will not be set aside if supported by any substantial evidence.-Eaves v. Sheppard (Idaho) 407; Wiggins v. Pradere (Nev.) 1024; Kaufman v. Boismier (Okl.) 326. § 1004. A verdict on conflicting evidence will not be reversed on appeal as excessive.-Van Dyke v. Seattle Electric Co. (Wash.) 137. § 1008. The credibility of testimony is a question exclusively for the trial court in a case submitted to it for determination without a jury.-In re Noyes' Estate (Mont.) 1013. § 1010. A finding supported by any substantial evidence is conclusive on appeal.-In re Coburn (Cal. App.) 924. § 1011. A finding on conflicting evidence will not be disturbed.-Fagan v. Lentz (Cal.) 951; Paine v. Ward (Cal. App.) 132; In re Coburn, Id. 924; Alcorn v. Dennis (Okl.) 1012; Courtney v. Bridal Veil Box Factory (Or.) 896; Catlin v. Sheldon (Wash.) 828. § 1024. Where, on motion to vacate a default, the evidence substantially conflicts as to a fact on which defendant claimed to have relied in failing to appear and defend, the decision below is conclusive.-Cole v. Roebling Const. Co. (Cal.) 255. (H) Harmless Error. $ 1027. Where the ultimate conclusion on the merits must always be the same, technical errors in rulings on evidence are harmless.Allen v. Swadley (Colo.) 1097. $1031. Effect of the admission of erroneous evidence as reversible error, stated.-Madsen v. Utah Light & Ry. Co. (Utah) 799. evidence sustained a finding that defendant was not negligent.-Madsen v. Utah Light & Ry. Co. (Utah) 799. $1053. Error in admitting evidence in an action to recover property transferred to a re$ 1039. Refusal to require plaintiff's peti-ligious order held cured by instructions.-Mahtion to be made more definite will not be dis- ler v. Beishline (Colo.) 874. turbed, where defendant was not prejudiced thereby.-Chicago, R. I. & P. Ry. Co. v. Logan, Snow & Co. (Okl.) 343. 1041. The allowance of an amendment to the answer after trial, but before judgment, held not to have injured plaintiff.-Green v. Gavin (Cal. App.) 761. § 1042. In an action for injuries to a traveler on a defective street, the refusal to strike from the complaint the averment of damages in excess of the sum specified in the claim filed, as required by Laws 1907, p. 644. c. 241, $36, held not reversible.-Dunkin v. City of Hoquiam (Wash.) 149. § 1043. Where the findings of the trial court would have been the same if an absent witness had been present and had testified, the refusal to grant a continuance on the ground of the absence of witness would not be disturbed.Reclamation Dist. No. 70 v. Sherman (Cal. App.) 277. § 1017. Expression of opinion by witness that he did the best he could under the circumstances held not prejudicial; the facts being stated upon which his opinion was based. Western Union Telegraph Co. v. Brower (Kan.) 497. § 1048. That an hypothetical question permitted a witness to assume a recollection of all of the matters testified to by another held not such an irregularity as to call for a reversal.City of Los Angeles v. Hunter (Cal.) 755. § 1053. Error in admitting testimony held not cured by an instruction.-Swank v. Elwert (Or.) 901. § 1056. In a suit to enjoin the construction of a sewer system, the error in rejecting evidence held not prejudicial in view of the evidence establishing the fact that the system would connect with a natural drainage as required by Sess. Laws 1899, pp. 400, 401, c. 151, § 13.Hildreth v. City of Longmont (Colo.) 107. § 1056. In an action for ejection from defendant's train because the time limit contained in the coupon ticket. held by plaintiff which was purchased for him by another had expired, error in excluding defendant's evidence that the ticket was sold at a reduced rate held harmless.-Brian v. Oregon Short Line R. Co. (Mont.) 489. not prejudicial, is not ground for reversal.§ 1056. Improper rejection of evidence, if Funk v. Hendricks (Okl.) 352. § 1057. Any error in exclusion of evidence of plaintiff's failure to comply with a custom was harmless; he having admitted making an agreement going as far as the custom.-Rudd v. Byrnes (Cal.) 957. § 1057. In view of plaintiff's testimony as to the facts, held, exclusion of evidence of his declarations that his injury resulted from his own fault was harmless.-Rudd v. Byrnes (Cal.) 957. 943. $ 1058. The error in excluding testimony of a disinterested witness to prove a fact testified to by a stockholder of the party calling the witness is prejudicial.-Washington Gold Min. & Mill. Co. v. O'Laughlin (Colo.) 1092. § 1050. In a suit to enjoin the construction $ 1057. Exclusion of evidence held harmless. of a sewer system, the error in admitting evi-Frisbie v. Rosenberg Bros. & Co. (Cal. App.) dence held not prejudicial in view of the evidence establishing the fact that the system would connect with a natural drainage as required by Sess. Laws 1899, pp. 400, 401, c. 151, § 13.-Hildreth v. City of Longmont (Colo.) 107. § 1050. The admission of improper evidence over the objection of a party is harmless, where the same evidence was introduced at another time without objection.-Mahler v. Beishline (Colo.) 874. § 1050. Improper admission of evidence, if not prejudicial, is not ground for reversal.Funk v. Hendricks (Okl.) 352. § 1050. In an action for a personal injury, the admission of certain evidence held not prejudicial error.-Dunkin v. City of v. City of Hoquiam (Wash.) 149. § 1051. Error in admission of evidence held harmless in view of other evidence and what was required to be proved.-Metteer v. Smith (Cal.) 735. $1051. Admission of evidence held not prejudicial.-Menardi v. Wacker (Nev.) 287. § 1051. Any error in admitting evidence was not reversible, where the fact sought to be established thereby was shown by competent evidence not excepted to.-Dennis v. Gary (Wash.) 172. § 1052. Under Comp. Laws 1907, § 3285, held, that a judgment for defendant in a personal injury case will not be reversed for the erroneous admission of privileged communications from plaintiff to his physician, where the § 1061. A nonsuit is prejudicial error where the evidence as to damages is sufficient to go to the jury. Baldwin Star Coal Co. v. Quinn (Colo.) 1101. § 1061. Where defendant's evidence cured defects in the evidence of plaintiff, the denial of a nonsuit at the close of plaintiff's evidence was not prejudicial.-State v. District Court of Second Judicial Dist. of Silver Bow County (Mont.) 721. § 1064. The giving of an incomplete instruction is not ground for reversal, where it neither misled the jury nor prejudiced the rights of the complaining party.-Kaufman v. Boismier (Okl.) 326. § 1067. In an action by a servant for an injury received at an unprotected knot saw, the failure to give an instruction that a certificate of inspection was prima facie evidence that machinery was in a reasonably safe condition held not to be prejudicial error.-Benner v. Wallace Lumber & Mfg. Co. (Wash.) 145. § 1070. Though a special issue has been given to the jury, a failure to answer it is not prejudicial, if the answer would be inconsistent with the general verdict.-Pigeon v. W. P. Fuller & Co. (Cal.) 976. § 1071. In an action based on a grant to plaintiff for services as an attorney, held, that error in construing a decree as a bar to his claim under such grant was not harmless.Cooley v. Miller & Lux (Cal.) 981. § 1074. Under Code Civ. Proc. § 475, an erroneous judgment, vacating an order void and ineffective on its face, will not be reversed.Baird v. Justice's Court of Riverside Tp. (Cal. App.) 259. § 1074. An error in a notice of appeal in calling a petition an amended petition held harmless.-Chaney v. Chaney (Wash.) 229. (1) Error Waived in Appellate Court. § 1078. Alleged errors in rulings on evidence not argued by counsel, will not be considered. -Pigeon v. W P. Fuller & Co. (Cal.) 976. § 1078. Assignments of error which are not argued in appellant's brief will be considered as waived.-Brian v. Oregon Short Line R. Co. (Mont.) 489. (K) Subsequent Appeals. § 1097. Though a decision by the Court of Appeals is the law of the case for the trial court on a subsequent trial, it is not so for the Supreme Court on a subsequent appeal. Baldwin Star Coal Co. v. Quinn (Colo.) 1101. § 1099. A decision of the Supreme Court on a former appeal as to the effect of a trust deed is binding upon the appellate court on a subsequent appeal of the case to it.-MacLeod v. Moran (Cal. App.) 932. to confirmation of sale will also be reversed on appeal.-McLaughlin v. Nettleton (Okl.) 663. ings under a judgment in compliance with Wil§ 1176. Where an order to suspend proceedson's Rev. & Ann. St. 1903, § 4765, was denied, and an appeal was prosecuted from a refusal to vacate the judgment, and such refusal was reversed, the order denying suspension of the proceedings will also be reversed.McLaughlin v. Nettleton (Okl.) 663. (F) Mandate and Proceedings in Lower Court. § 1198. Judgment entered on remand held according to the mandate of the appellate court. -Bartlett Estate Co. v. Fairhaven Land Co. (Wash.) 846. § 1202. Where the Supreme Court reverses a case without any specific direction as to retrial or dismissal, the district court held vested with a legal discretion to either dismiss or order a retrial consistent with the order of the Supreme Court.-State v. District Court of Second Judicial Dist. of Silver Bow County (Mont.) 721. (G) Jurisdiction and Proceedings of Ap- Of water rights in general, see Waters and Of water rights in public lands, see Waters and APPROVAL. § 1175. The Supreme Court in determining whether the cause should be dismissed after adjudging that a nonsuit should have been granted ought not to be influenced by the fact that defendant appealed from an order denying Of legislative bills, see Statutes, §§ 26-352. a new trial.-State v. District Court of Second Judicial Dist. of Silver Bow County (Mont.) 721. ARGUMENT OF COUNSEL. In civil actions, see Trial, § 120. ARRAIGNMENT. § 1175. Where plaintiff's evidence shows affirmatively and conclusively that he has no cause of action, the court on appeal will finally dispose of the case, but, where the defect in the case consists of an omission to prove an allegation which may or may not be susceptible See Criminal Law, §§ 263-292. of proof, no general rule governs.-State v. District Court of Second Judicial Dist. of Silver Bow County (Mont.) 721. 1175. Where parties have had one fair opportunity to try the issue between them as shown by the record incorporating, as authorized by Rev. Codes, §§ 6792, 7118, the exceptions of both parties, the court on_appeal will determine the litigation.-State v. District Court of Second Judicial Dist. of Silver Bow County (Mont.) 721. § 1176. Where a judgment of foreclosure was reversed, an order overruling objections See Bail. ARREST. I. IN CIVIL ACTIONS. § 22. Jurisdiction to order arrest in a civil action, under Code Civ. Proc. § 481, held to depend upon the sufficiency of the affidavit, and not conferred by facts established at some subsequent stage of the proceedings.-Lay v. Superior Court of Los Angeles County (Cal. App.) 775. § 27. An affidavit for an order of arrest in a civil action held insufficient under Code Civ. Proc. § 481.-Lay v. Superior Court of Los Angeles County (Cal. App.) 775. $28. An affidavit held insufficient to give jurisdiction under Code Civ. Proc. § 481, to make an order of arrest in a civil action.-Peterson v. Nesbitt (Cal. App.) 135. ARTESIAN WELLS. As nuisances, see Nuisance, §§ 72, 73. ASSAULT AND BATTERY. ASSIGNMENTS. Fraud as to creditors, see Fraudulent Convey ances. Of certificates of execution sale, as revocation of agency to collect judgment, see Principal and Agent, § 36. Transfers of particular species of property, rights, or instruments. See Bonds, & 84; Mortgages, § 235. Leases, see Landlord and Tenant, §§ 76, 802. Assault with intent to kill, see Homicide, §§ 99, Seat in stock exchange, see Exchanges, §§ 7, 14. 338. I. CIVIL LIABILITY. (A) Acts Constituting Assault or Battery and Liability Therefor. § 2. An "assault" is an intentional infringement on the absolute right of personal security. -William Small & Co. v. Lonergan (Kan.) 27. § 9. That defendants in making a violent assault on a woman did so because she was preventing them from going over a public highway over her land, which she had previously taken possession of and closed, would be no excuse for their acts.-Neilsen v. Hovander (Wash.) 172. (B) Actions. $24. Defendants in an action for assault and battery cannot show under a general denial that they were justified in making the assault because plaintiff was preventing them from going over a public highway.-Neilsen v. Hovander (Wash.) 172. § 38. Damages for mental suffering may be recovered in an action for assault, though no battery or bodily injury was inflicted.-William Small & Co. v. Lonergan (Kan.) 27. $40. In an action for assault, a verdict for $2,500 held excessive and reduced to $1.000.William Small & Co. v. Lonergan (Kan.) 27. § 40. A verdict for $1,000 reduced to $750 for an assault on a woman held not excessive. Neilsen v. Hovander (Wash.) 172. II. CRIMINAL RESPONSIBILITY. (B) Prosecution and Punishment. III. RIGHTS AND LIABILITIES OF PARTIES. Rights acquired by assignment of seat in stock exchange, see Exchanges, § 7. IV. ACTIONS. Action by assignee of seat in stock exchange, see Exchanges, § 14. ASSIGNMENTS FOR BENEFIT OF CREDITORS. See Insolvency, § 82. ASSISTANCE, WRIT OF. Recovery of possession by purchaser on foreclosure of mortgage, see Mortgages, § 544. ASSOCIATIONS. See Building and Loan Associations; Exchanges. § 20. The petition, showing the action is brought by an association of individuals as an entirety, but in their own names, held to show capacity to sue.-McLaughlin v. Wall (Kan.) 33. members who have withdrawn, but wrongfully § 20. The petition by an association against keep its property, held not required to make formal allegation of demand.-McLaughlin v. Wall (Kan.) 33. ASSUMPSIT, ACTION OF. Distinctions as to punishment for assault with See Work and Labor. ASSENT. Of wife to testamentary disposition of property by husband, see Wills, § 11. ASSUMPTION. Of risk by employé, see Master and Servant, §§ 209-221, 285, 295. ASYLUMS. To conditions in passenger ticket, see Carriers, For insane persons, see Insane Persons, § 49. § 259. To sale of liquor to minor, burden of proof, see Intoxicating Liquors, § 224. ASSESSMENT. Of compenastion for property taken for public use, see Eminent Domain, §§ 169-262. Of damages, see Damages, §§ 199-206. Of expenses of public improvements, see Drains, $$ 73-90; Municipal Corporations, §§ 410523, 578. Of tax, see Taxation, §§ 316-493. ASSIGNMENT OF ERRORS. See Criminal Law, § 1129. ATTACHMENT. See Execution. I. NATURE AND GROUNDS. § 24. Defendant's failure to use and pay for a livery rig, which she contracted for with plaintiff, would not support an attachment on the ground of a debt for an article the price of which should have been paid at the time of delivery.-Kilpatrick v. Inman (Colo.) 1080. $ 32. Failure to accept and use a livery rig as agreed held a mere breach of contract which |