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merit in this contention. If the facts were v. Rankin et al., supra, which was seemiugdifferent, then the question could be raised ly overlooked by the judge rendering the either by motion, or by objection to evidence i opinion.” It does not appear upon the face during the trial, but not by demurrer.

of the petition, even if the demurrer be held record fails to show that any motion for an sufficiently specific, that the plaintiff is unitemized bill was made, or that objections der any legal disability, such as infancy, were made or exceptions taken to the admis- want of authority, or any personal disability, sion of evidence on that ground, and, even to maintain the action. It is to these matif the facts alleged disclosed the two classes ters that a demurrer upon this ground is of items, still the question would not be prop- directed. Farrell v. Cook, 16 Neb. 483, 20 N. erly before us, and for that reason could W. 720, 49 Am. Rep. 721; Bliss, Code Pl. not be here considered.

: (2d Ed.) SS 407-109; Haskins v. Olcott, 13 The second ground of demurrer is that Ohio St. 210; Smith v. Sewing Machine Co., there is a defect in the party plaintiff. This, 26 Ohio St. 502; Dale et al. v. Thomas et al., as a statutory ground, goes to the nonjoinder 67 Ind. 570; Debolt v. Carter, 31 Ind. 355. of necessary parties as plaintiffs. Powers Our conclusion is that the demurrer was et al. v. Bumcratz, 12 Ohio St. 273, 293. All properly overruled on each and every ground. those whose interests are in common with The judgment will be affirmed those of plaintiff in the subject-matter of the Affirmed. suit should be joined as plaintiffs, unless upon a refusal to join as such they may upon POTTER, C. J., and BEARD, J., concur. appropriate averments be made defendants. A failure to do either, where the defect is apparent, would render a petition demurrable

(15 Wyo. 368) on this ground. The wording of the de

PARDEE V. KUSTER et al. murrer, together with the specification of the

(Supreme Court of Wyoming. Oct. 7, 1907.) particular defect and the argument of the

1. WRIT OF ERROR-EXCEPTIONS-REVIEW. counsel, indicate that the objection is rather Under Rev. St. 1899, $ 3744, providing that upon the ground that the action is not no exception shall be regarded unless it is prejubrought in the name of the real party in in

dicial to the substantial rights of the party terest. Having already held in another part excepting: an exception will not be considered

unless it is material to a substantial right. of this opinion that Burgess had an interest,

[Ed. Note.-For cases in point, see Cent. Dig. and that neither the state nor the county vol. 2, Appeal and Error, Š 612.] had any interest in the subject-matter of the 2. SAME. injunction suit, it follows that they were not A party failing to show by his petition a necessary parties to the action on the bond. cause of action in his favor against defendant

fails to show & substantial right, and his exThat the plaintiff has no capacity to sue is

ceptions will be disregarded. not, strictly speaking, a ground for demurrer

3. PLEADING ALLEGATIONS CONCLUSIVEunder our statute. The word “legal," as NESS. qualifying "capacity," is omitted by the A party is bound by the allegations of his pleader, and it is only when the plaintiff has petition.

[Ed. Note. For cases in point, see Cent. Dig. no legal capacity to sue that a demurrer will

vol. 39, Pleading, $S 81-86.) lie for that cause. Section 3535, Rev. St.

4. SAME-DEFECTS-AIDER BY VERDICT. The words "legal capacity to sue,"

A petition, affirmatively showing that no in the sense used in the statute, have a well

allegation of an existing fact can be brought defined meaning. They are directed to the into it by amendment, and thereby perfected so legal disabilities of the plaintiff, and the that it will support a judgment, can neither

be cured by answer, verdict, or judgment. facts showing such legal disabilities are inde

· [Ed. Yote.-For cases in point, see Cent. Dig. pendent of the cause of action. In Brown, vol. 39, Pleading, $8 1413, 1431.] Ex'r, et al. v. Critchell et al., 110 Ind. 31. 7

5. WRIT OF ERROR-REVIEW-II ARMLESS ERN. E. 888, it is said: "The want of legal

ROR-PLEADING. (apacity to sile, as it cause for demurrer, has

Where the judgment is for defendant, the reference to plaintiffs under legal disabilities, overruling, of his demurrer to the petition is and not to a case where the facts alleged

not available to him.

[Ed. Note. For cases in point, see Cent. Dig. show that the plaintiff has no right to sue

vol. 3, Appeal and Error, $ 4105.) in that particular case. In such case the

6. SAME-BURDEX OF SUOWING ERROR. assignment should be that the complaint does

Under Rev. St. 1899, $ 3741, declaring that not state facts sufficient to constitute a cause no exception shall be regarded unless it is of action.” It was so held in Weidner v. material, and section 4219, providing that a Rankin et al., 26 Ohio St. 522, and Bucking- | judgment may be reversed or modified for errors

appearing on the record, a plaintiff in error has ham v. Buckingham, 36 Ohio St. 69. It is

the burden of showing prejudicial error on the said in Strais et al. v. Newberger et al., 6 record. Ohio N. P. CO, S S. & C. P. Dec. So, that "a (Ed. Note.-For cases in point. see Cent. Dig. dictum in Saxton v. Seiberling, 48 Ohio St. vol. 3, Appeal and Error, $$ 3670, 1947.) .5.3929 X. E. 179, tends somewhat in a ; 7. SAME-RECORD-PLEADIXüs. opposite direction, but it was unnecessary

Under Laws 19981, p. 5, c. 3, § 1, provid

ing that plaintiff in error shall 'file with his to a determination of the case, and is incon

petition an application for an order directing sistent with the decision in Weidner et al. the clerk of the district court to transmit to

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the Supreme Court all original papers, etc., the absence of averment or want of allegation plcadings may constitute a part of the record of an existing fact.

of an existing fact. The execution of the of the case. [Ed. Note.-For cases in point, see Cent. Dig. for which it was executed, are alleged, and,

deed, its terms, the time and the purpose vol. 3, Appeal and Error, $2342.]

taken in connection with the other allega8. SAVE-CROSS-ERRORS-NECESSITY.

Where no affirmative relief is sought, de- tions, clearly set forth the claim of the plainfendant in error may, without assigning cross

tiff. She was bound by the allegations of error, show that the statement of the facts as

her petition, and nowhere, either in the recset forth in the petition constitutes no cause

ord or by suggestion in the argument, does of action, and that errors in the admission of evidence were harmless.

it appear, nor are we able to discover, that

any amendment could be made. The defect On petition for rehearing. Denied.

goes to the question as to whether she has For former opinion, see 89 Pac. 572.

any cause of action, or right to recover, upon

a full and complete statement of all the facts. SCOTT, J. The plaintiff in error has filed The error is fundamental, in that it affirmaher petition for a rebearing, upon the ground tively appears that no allegation of an exthat the defendants in error tiled no cross isting fact can be brought into the petition assigninent of error to the overruling of their by way of amendment, and thereby perfect demurrer to the petition. It is urged that, it so that it would support a judgment in her in the absence of such cross-assignment, the favor. The error is not in failing to plead question of the sufficiency of the petition was all the facts, but rested in an attempt to not before the court. Taking that view, she

Taking that view, she predicate a right of recovery upon a complete subinitted no oral argument thereon, nor did statement of facts when no such right exists. she refer to this question in her brief. The It is not the defective statement of a cause defendants in error called this court's atten of action, but a showing of no cause of action to the question and devoted a consider tion. Such a petition can neither be cured able part of their brief to its discussion. by answer, verdict, or judgment. Gittings v.

The case is analogous to Fell v. Muller, 78 Baker, 2 Ohio St. 21. This case is distinInd. 507, in which it was said: “The real | guishable from the Indiana cases (Anderson, question for discussion in this case is: Did

etc., Ass'n v. Thompson, 88 Ind. 403; Farmthe appellant's complaint state a cause of er's Bank v. Orr, 25 Ind. App. 71, 89)1 cited action in their favor against the appellee? by plaintiff in error in support of her petiIf it did not state a valid or sufficient cause tion. In those cases the defect did not conof action against the appellee, and we think sist in the absence of any cause of action, but it did not, then it is clear that the appellants did consist in the omission of a material were not harmed by any of the rulings of averment in the allegations of an existing the trial court adverse to them, and the judg cause of action. The theory of those cases ment below must be affirmed.” In that case is that, by failing to demur or to assign crossthere was no assignment of cross-error, and error, the pleading was treated by the parthe decision turned on the provisions of the ties as being complete, and it was presumed Civil Code of that state to the effect that no that evidence was submitted and heard and judgment shall be reversed by reason of any | findings made upon issues necessary to superror or defect in the proceedings which does port a judgment, even though there may not affect the substantial rights of the ad have been an absence of averment of some verse party. Section 3744, Rev. St. Wyo. material fact. Sections 471, 720, Elliott App. 1899, is as follows: "No exception shall be Proc. regarded unless it is material and prejudicial The defendants in error asked no affirmato the substantial rights of the party ex tire relief. They had obtained a judgment cepting.” In order that the exception may in the court below with which they were be considered, it must be material to a sub- satisfied. They sought neither to vacate nor stantial right. It is just as essential to show | modify it, and did not assign the ruling on a substantial riglit either by the pleadings the demurrer as error prejudicial to them or or the record as it is to preserve the excep at all. The finding and judgment being in tion.

A failure to do either would furnish their favor, the overruling of the demurrer no basis for a review of an alleged error. was not available to them. Blessing v. Blair, That there is no substantial right upon the 45 Ind. 516; Rogers v. State, 99 Ind. 218; whole case may appear from the allegations Reddick v. Keesling, 129 Ind. 12S, 28 V. E. of the petition, though, where there has been 316; Allen v. Berndt, 133 Ind. 355, 32 N. E a trial, it is not generally so, and in most 1127; Thrash v. Starbuck, 145 Ind. 673, 44 N. cases that question involves an examination E. 543; Levi v. Allen, 15 Ind. Apr. 38, 43 N. of the entire record. If the party complain- E. 571. Nor was the decision based upon the ing shows by his petition that no valid cause exception to such ruling. The presumption of action exists in his favor against the de- of the correctness of the judgment was necesfendant, then he has failed to show a sub- sarily against the contention of the plaintiff stantial right, and in such case any and all in error, and the burden was on her, not of his exceptions should be disregarded be only to show error upon the record (section cause harmless. It will be observed that the 4249, Rev. St. 1899), but that the error competition was not defective by reason of the plained of was material and prejudicial to

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her substantial rights (section 37H, Rev. St. devises to B., and over to C., the latter, upon 1899). In this jurisdiction il defendant in the accrual of his right, takes all of the error has always been accorded the right, property which B. Soulil have taken under without assigning cross-error, to direct our the will. By the codicil ise testator subattention to different parts of the record pre stituted Reinsberg as devises in case of his sented for review to show that an alleged son's death. It was evidently the intention ('rror was not prejudicial. All parts of the of the testator to provide ihat the devise of record so presented are accessible to the de his property as contained in his will should fendant in error for that purpose. When the not lapse, and, as relating back and showing complete record is before the court, as it the extent of that devise, the language used was in this case, the justice of the rule is

in the codicil is material. It is from the apparent. It is not within the power of the context of the will and the codicil thereto plaintiff in error to open the record at cer

that this question inust be determined. It tain places to sustain his contention, and

will be noticed that the codicil does not close the balance to the defendant in error. | merely confirm the former devise, and say The entire record was in the court for the that, in the event of the death of the pribenefit of the parties and the court.

The

mary devisee, then the property devised to pleadings constituted a part of the record of the latter shall go to Reinsberg; but it goes the case. Section 1, c. 3, p. ), Sp. Law's 1901. further and designates the property devised If the erroneous admission of evidence may over. It says that in that event all the real be shown to be without prejudice by con

and personal property owned by testator at sulting other parts of the bill, we see no rea

the time of his death shall go to Reinsberg, son why it could not also be shown by con

his heirs and assigns forever, unconditionalsulting the pleadings, for the latter are as

ly and without reserve. It is unreasonable, much a part of the record as is the bill. The in the face of this language, wbich discloses materiality of the evidence is determined by the evident purpose of testator to prevent a the issues, and, when the petition atfirmative

lapse of the previous devise to his son, to ly shows the nonexistence of any legal cause

say that such previous devise was less in its of action, there can be no issues of fact and scope than the devise over. The language of no right of recovery. Henre the admission

the codicil as a whole shows that the testaor rejection of any evidence would be harm

tor must in confirining the provisions of his less to the plaintiff. She had no standing in

will have intended his confirmation of the court, and is therefore not in a köition to devise to his son to be equally as broad as allege or urge prejudicial error. Whe'll 10 al

the devise over to Reinsberg. If title to the firmative relief is sought, the defendant in property described in the deed vested in error is not precluded from showing from the petitioner, then no contingent interest thererecord the nonprejudicial character of the er

in vested at the same time in Reinsberg upror complained of, and we hold that this on the death of the testator. The latter's rule is sufficiently broad to enable him, with title was to accrue and vest upon a continout assigning cross-error, to urge that a full gency disassociated with and antagonistic to and complete statement of the facts as ap

the idea of the ownership of the property pears in the petition in this case constitutes ever having passed to plaintiff in error. The an affirmative showing of no cause of action title by devise to the property in controor right of recovery in the plaintiff, and that

versy never vested in Reinsberg, nor could it would not for that reason support a judg

it, except upon the hypothesis that the tesinent in her favor. It should be remembered tator contemplated, and by his codicil conthat what is here stated and what we said

firmed and ratified by itself, the document in the opinion filed is directed and applies to

which was executed on May 18, 1903. This the kind of a petition involved in this case,

intention of the testator is apparent and and we here express no opinion as to one

clearly appears from the codicil. It is not which is defective merely by reason of the

a case of latent ambiguity calling for parol absence of averment.

testimony, nor is it so contended, and the The plaintiff in error has presented a

question was one of construction to be debrief upon her contention as to the construc termined and ascertained from the words tion which should be placed upon the docell and language used by the testator nu these ments construed together as the last will of documents. Sections 936, 1023, cols. 1048, the testator. We discussed the question in the 1135, vol. 19 Cent. Dig. The later codicil opinion filed, and, after considering the au operated as a complete revocation of the thorities cited in her brief, we find nothing

former devise of the same property to the in conflict with that opinion. We are still plaintiff in error, regardless of whether the of the opinion that the reference in the codi- | testamentary deed be construed as a codicil cil is not merely by date, but by other words or treated as a will by itself. 1 Jarman on which clearly indicate that it was the locu Wills, 171, 173; Rood on Wills, $ 336, and ment executed on May 18, 1903, by itself, (ases cited in support of the text; 1 Redfield which was within the contemplation of the on Wills, 350, 351, and cases there cited. tesiator. McLeod P. McXabb, App. Cas. It does not appear that the conclusions (1891). It may be conceded that when A. reached in the opinion tiled are in any wise

erroneous, or that any new questions are not easy to see how his jeopardy was increaspresented by the petitioner.

ed by the failure to sound the whistle or ring Rehearing denied.

the bell; but, if we concede that there was

sufficient evidence of negligence on the part POTTER, C. J., and BEARD, J., concur. of the appellant to carry the case to the jury,

yet we think the evidence discloses a clear

case of contributory negligence on the part (47 Wash. 301)

of the respondent, under the rulings of this DAVIS V. COEUR D'ALEXE & S. RI. CO., i court. Ile saw the approaching cars a block Limited.

or less away. he did not stop until the cars (Supreme Court of Washington. Oct. 10, 1907.) | passed, he did not increase his own speed to

avoid a collision, nor did he pay the slightSTREET RAILROADS — IXJU'RY TO PERSONS

est attention to the movement of the cars. In DRIVING ACROSS TRACK – CONTRIBUTORY NEGLIGENCE.

Criss . Seattle Electric Co., 38 Wash. 320, Where the driver of a wagon saw electric : 80 Pac. 525, the plaintiff saw a street car cars approaching a block away on the street approaching at about the same distance, and he was about to cross, and did not wait until they passed, nor pay the slightest attention to proceeded to drive his team across the track their movement, he was guilty of contributory , in about the same manner. In Coats T. negligence, burring recovery for injury received Seattle Electric Company, 39 Wash. 386, 81 in collision with the cars.

Pac. $30, the plaintiff saw a car approaching [Ed. Note.--For cases in point, see Cent. Dig.

from the rear, while driving along the track vol. 41, Street Railroads, S 210-216.)

of the railway company, and proceeded to Appeal from Superior Court, Spokane cross the track without giving further heed County; W. A. Huneke, Judge.

to the approaching car. In each case this Action by Phillip Davis against the Coeur court held that the contributory negligence d'Alene & Spokane Railway Company. From of the plaintiff barred a recovery. and even a judgment for plaintiff, defendant appeals. a greater lack of care and caution on the Reversed, with direction to dismiss.

part of the respondent is disclosed by this

record. Belden & Losey, for appellant. Samuel R. Stern, for respondent.

The judgment is therefore reversed, with

directions to dismiss the action. RUDKIN, J. This action was brought to

HADLEY, C. J.. and CROW, DUXBAR, recover damages for injuries to person and

ROOT, and MOUNT, JJ. property resulting from a collision between the electric cars operated by the defendant company and the plaintiff's express wagon at the intersection of Browne street and Main

(19 Okl. 55)

SPARKS 1. OKLAHOMA CONST. CO. avenue, in the city of Spokane. The plaintiff had judgment for the sum of $270.83, and (Supreme Court of Oklahoma. Sept. 4, 1907.) the defendant appeals.

1. BILLS AND NOTES - ACTION — PLEADING → The material facts are these: On the PUBLIC POLICY. morning of March 29, 1900, the respondent

A petition, praying for judgment upon a (ame out of the alley into Browne street near

promissory note, containing a provision showing

that it was executed in consideration of the Main avenue driving an express wagon load benefits arising to the maker by reason of the ed with empty bottles. As he proceeded construction of a railroad from a given place to along Browne street to its intersection with

another place named, by a time stated, and which

is made payable to a construction company, Main avenue, he saw the electric cars operat without naming the railroad to be built, or any ed by appellant coming towards him on Main railroad company as an interested party, does avenue, about a block distant. Without gir

not present such a question of public policy as ing further attention to the approaching cars.

to make such petition demurrable upon that

ground. he proceeded to cross Main avenue, and is

2. SAME-ANSWER-BURDEN OP PROOF. he did so the cars struck the rear of the

Where, in an action upon a promissory wagon, causing more or less damage to the note, which sets forth as the consideration vehicle and injury to the person of respond

thereof the construction of a railroad to a given ent, for which a recovery was sought in this

point by a given time, an answer is filed setting

up a distinct contract providing for the conaction. Two grounds of negligence were

vyance of real estate as the consideration for charged in the complaint: First, that the thi execution and delivery of said note, and cars were running at a speed of more than where the reply to such answer denios under 8 miles per hour, in violation of the ordinan

oath the execution and delivery of such con

tract. the burden of proving the execution and ces of the city of Spokane: and, second, fail

delivery thereof is upon 'the defendant, and a ure to sound the whistle or ring the bell. failure to prove the execution and delivery of The only testimony offered in support of

such contract precludes its being received in evi

dence, and is a failure of that ground of defense. the first ground of negligence was that of a

El. Vote.For cases in point, sre (ent. Dig. small boy 13 wears of age. who testifieul that

rol. 7. Bills and Notes, $S 10.3.3-1654.] the cars were running about "g, or 10 or 12

(Syllabus by the Court.) miles an hour, somewhere along there." Inasmuch as the respondent saw the approach Error from District Court. Woods County: ing cars and knew of their presence, it is before Justice J. L. Pancoast.

Action by the Oklahoma Construction In consideration of the execution and deCompany against J. W. Sparks. Judgment livery of a certain promissory note made by for plaintiff. Defendant brings error. Af J. W. Sparks and payable September 1, 1901, firmed.

to the Oklahoma Constructiou Company, or Snoddy & Son, for plaintiff in error. Dale order, and conditioned for the construction & Bierer, for defendant in error.

of a certain line of railroad mentioned in the written condition to said promissory

note annexed, said Oklahoma Construction GILLETTE, J. This action was begun Company hereby certifies that said J. W. in the district court of Woods county June Sparks is entitled to receive a good and suf30, 1904, by defendant in error to recover ficient deed of conveyance to three lots in from the plaintiff in error upon two promis the town of Ames, Woods county, Oklahoma, sory notes aggregating the sum of $100, the conveying to said J. W. Sparks good title first of which is Exhibit A to the petition, to such lot free and clear of all lien or inand reads as follows: "No. 110. $23.00, cumbrance, the location of said lot in said Enid, 0. T., April 13, 1901. On or before town to be determined by lot or drawing September 1, 1901, for value received, I therefor, between all parties entitled therepromise to pay to the Oklahoma Construc to. And said Oklahoma Construction Comtion Company, or order, the sum of $25.00, pany hereby guarantee the due execution with interest from maturity at the rate of and delivery of such deed of conveyance ten per cent. per annum. This note is made upon the determination by lot as aforesaid, in consideration of the benefits accruing to and the payment of said promissory note. me from the construction and operation of The Oklahoma Construction Company, By T. a railroad from the town of Blackwell, 0. T., S. Chambers, Its Agent." A second contract to and into the town of located upon of like tenor and effect was executed and the quarter of section 32, in township | delivered May 31, 1901, for one lot. The 21 north, of range 9 W. I. M., and the erec answer further alleged that there was more tion of a depot and yard facilities thereat. than 1,000 lots in the town of Ames of the Now, if said railroad is built and in opera value of from $1 to $300, and that defendtion on or before the first day of August, ant had demanded before suit was brought 1901, this note shall be in full force and ef a deed conveying a lot in the town of Ames, fect; but, if said railroad is built as above which was refused. The defendant, for a provided, this note shall be null and void. further defense, declared the plaintiff to be And to secure the payment hereof I hereby the owner of the land platted as a town site, give and grant to the Oklahoma Construc and through its officers informed the defendtion Company, or its assigns, a lien upon an ant that, unless it could sell 400 lots in said undivided interest to one red and white cow, town site, no depot or yard facilities would 8 years old, now situated upon the southeast be located there, and the defendant, being quarter of section 34, town 21, range 9 W. desirous of having such depot and yard I. M., equal to

bushels of

J. facilities there, executed and delivered to the W. Sparks. In presence of C. C. Arel.” The plaintiff said notes, for which he was to resecond note for $75 was of like tenor and ceive four lots in consideration of his notes, effect, dated at Enid, Okl., May 6, 1901, and and which had never been tendered or offerdesignated the town of Hoyle, located upon ed to him, and conveyance of the same had the S. W. 14 of section 32, town 21 N., of been refused. In reply, the plaintiff denied range 9 W. I. M., as the point to which said the allegations of the defendant's answer road was to be built by August 1, 1.901. The which in any way denied the plaintiff's right answer, filed after a demurrer to the peti of recovery, and, for a further reply, denied tion had been overruled, was first a general the authority of T. S. Chambers, as agent denial of the allegations of the petition, ex of the plaintiff, to make and deliver on becept such allegations as were expressly ad half of the plaintiff the contract to convey mitted, but denied that the railroad was lots, and denied that Chambers was an agent built and in operation as required by the of the plaintiff, which denial was verified by terms of the note, and alleged that there was the president of the plaintiff. Upon the isno depot erected or yard facilities provided sue só framed the case was tried June 1, on said quarter section of land the 1st day of 190.). August, 1901. The defendant, further an The first assignment of error presented by swering, stated that the notes were based the brief of plaintiff in error is the overrulupon an illegal agreement and contract, in ing, by the trial court, of the demurrer to that, in addition to the location of the depot the petition and objections to the introducand yard facilities at the point mentioned, tion of testimony, citing, in support of such there was an agreement by which the plain contention, Enid Right of Way & Town Site tiff agreed to deliver to the defendant deeds Co. v. Lyle, 15 Okl. 318, 82 Pac. 810, MCconveying three lots in Ames, Woods coun Guffin v. Coyle & Guss, 16 Okl. 618, 85 Pac. ty, Okl., which were to be determined by 951, 96 Pac. 902, 6 L. R. A. (N. S.) 524, and lot or drawing therefor, which agreement | Piper v. Choctaw Northern Town Site & Imwas as follows: "Enid, 0. T., 4/26, 1901. provement Co., 16 Okl. 436, 85 Pac. 965.

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