but it cannot, after unconditionally authorizing a contract granting the right to hold stock unconditionally, impose limitations upon that right by changing the contract, or authorizing it to be done, without the consent of all the stockholders. Such a contract, being wholly outside of the conditions and agreements required to obtain a corporate franchise, cannot be said to fall within the reserved power of the state to alter and amend the laws governing corporations.

In conclusion, we desire to state that, while the questions involved, in and of themselves, are of great importance to both the state and the citizen, the utility involved in settling them is of still greater importance. Both sides have, with much diligence and earnestness, fully presented all that can profitably be said upon either theory, and they have thus rendered us much assistance in determining the questions. The duty to adopt one or the other theory devolved upon us alone. We have adopted that which, in our judgment, seemed the most just and reasonable under all the circumstances, and in view of the state of the law upon the subject as we understand it. We feel thoroughly convinced that the conclusion reached is correct, and, entertaining this view, it could subserve no practical purpose to grant a rehearing of

the case.

The application, therefore, should be, and accordingly is, denied.

MCCARTY, C. J., and STRAUP, J., concur.

INDEX.

ADVERSE POSSESSION.

1. CHARACTER OF POSSESSION. Possession, to be adverse must not only be under claim of right, but hostile to and inconsistent with the possession or right of possession of the true owner. Inv. v. Fox, 301.

Salt Lake

2. SAME. Possession under a tax sale certificate is, during the period of redemption, an admission that the possession is subject to the owner's right of redemption, and is not adverse to the true owner. Ib.

ADMINISTRATORS.

1. ACCOUNTING-VOIDABLE APPOINTMENT. An administrator, whose appointment, though erroneous, was not made without jurisdiction, is entitled to credit for reasonable disbursements, costs, and expenses, including attorney's fees. Johnson v. Armstrong, 469. 2. APPOINTMENT-JURISDICTION. Revised Statutes 1898, section 3812, provides that relatives shall be entitled to letters of administration in the order therein prescribed. Section 3813 provides that, if none of the relatives accept, creditors shall be entitled to letters, and that if a dispute arises as to relationship between applicants, or if there is any other good and sufficient reason, the court may appoint any competent person. Section 3814 provides that letters of administration must be granted to any applicant, though it appears that there are other persons having better rights to letters, when such persons fail to appear within three months after decedent's death and claim issuance of letters to themselves. Held, that though, under the statute, a relative applying within three months would be entitled to preference over a creditor, yet the expiration of that period, or waiver of the right to administration by the relative, was not essential to jurisdiction to appoint a creditor; hence the appointment of the secretary of a creditor corporation, a relative applying within three months, on a hearing of both petitions, though erroneous, was not void. Ib.

3. COMPENSATION-VOIDABLE APPOINTMENT. An administrator, whose appointment though erroneous, was not made without jurisdiction, is entitled to reasonable compensation for services rendered by him during the time of his administration. Ib.

4. COMPENSATION-SUCCESSIVE ADMINISTRATIONS. Where an estate is administered by successive personal representatives, compensation should be apportioned among them according to the services rendered. Ib.

5. SAME. Under the statute declaring that an administrator shall be allowed commissions on the amount of the estate accounted for by him, there being but one aggregate sum to be allowed as commissions, which, in case of successive administrations, must be apportioned by the court, the allowance of commissions to the first of two successive administrators before the closing of the estate was premature. Ib.

APPEAL. See JUSTICES OF PEACE, 1-2.

1. AMOUNT IN CONTROVERSY. Laws 1903, page 48, chapter 52, authorizes appeals from final judgments in the district court rendered on appeals from city courts, except when the judgment of the district court does not exceed one hundred dollars, exclusive of costs. Held, that a judgment of nonsuit rendered against plaintiff on appeal from a city court, in an action in which plaintiff sought to recover two hundred dollars for services rendered, was not appealable. McCashland v. Keogh, 11.

2. ASSIGNMENT OF ERROR-NECESSITY. The direction of a verdict for defendant cannot be reviewed on appeal where the ruling is not assigned as error. Teakle v. San Pedro Co., 276.

3. SAME

NECESSITY-INSTRUCTIONS.

The refusal to give an instruction directing a verdict cannot be reviewed unless assigned as error. Kirk v. Salt Lake City, 143.

4. SAME SCOPE-REVIEW. An assignment of error that the decision is against law is sufficient to present the failure of the court to find on all the material issues for review on appeal. Imp. Co. v. Cleaveland, 1.

5. DISCRETION OF TRIAL COURT-DEFAULT JUDGMENT. Where defendant asked to have the default and judgment entered against him set aside, and the trial court refused, the mere fact that the appellate court thinks that this should have been done, is not in all cases the test for reversing the judgment, but it raises a serious doubt, and in such a case a reasonable doubt is always resolved in favor of granting a trial upon the merits where none has been had. Cutler v. Haycock, 354.

6. EXAMINATION OF WITNESSES. In an action against a city for damages caused plaintiff's property by change in a street grade, defendant was not prejudiced by the action of the court in permitting expert witnesses all of whom were qualified to testify in respect to the value to state the amount of the depreciation in the market value of the property, instead of stating the value before and after the street improvement was made. Hempstead v. S. L. C., 262.

7. DECISIONS APPEALABLE. An appeal lies only from a judgment, and not from an order denying or granting a new trial. Everet v. Jones, 489.

8. FINDINGS OF FACT-FAILURE TO FIND DISPOSITION OF CAUSE. Where, in an action at law, it is determined on appeal that the court has failed to find on all the material issues raised by the pleadings, the judgment will be reversed and a new trial granted. Imp. Co. v. Cleaveland, 1.

9. CONCLUSIVENESS. Findings of fact by the trial court in an equity case are conclusive, unless clearly contrary to the evidence. Jones v. Mining Co., 440.

10. SUFFICIENCY OF EVIDENCE. Findings of fact of referee on conflicting evidence are conclusive on appeal notwithstanding inconsistencies in the testimony of the witnesses of one party; this going only to the weight of evidence and credibility of the witnesses. Eureka Hill M. Co. v. Bullion Beck, 236.

11. HARMLESS ERROR-ADMISSION OF EVIDENCE-CURE BY INSTRUC TIONS. Where, in an action against a city for damages caused plaintiff's property by change in a street grade, the court instructed the jury as to the true measure of damages, and told them to disregard the rental value as a separate item, the admission of evidence of the rental value of the premises was harmless Hempstead v. S. L. C., 262.

error.

12. SAME. Where, in an action against a city for damages caused plaintiff's property by change in a street grade, plaintiff contended that his dwelling house was rendered unfit for a residence by reason of the raise of the street and sidewalk in front and on the side of the dwelling, the admission of evidence respecting the estimated value of the house and other improvements was not prejudicial to defendant; the court permitting such evidence only to show the actual diminution of the market value of the property, and instructing the jury that such diminution was the only test to be adopted by them.

Ib.

13. SAME. Allowing a witness to state a conclusion, all the facts being in evidence, and the conclusion being self-evident, is harmless. Farnsworth v. U. P. Coal Co., 112.

14. INSTRUCTIONS. Where, in an action against a railway company for the death of a traveler at a railway crossing, there was evidence authorizing substantial damages under the instructions of the court if the company was liable, and the jury found under the evidence in favor of the company, the refusal to charge that if the jury found for plaintiff they might take into consideration the probable value of the life of the traveler as judged from his earning capacity and from the number of the years he was expected, to live was not prejudicial. Rogers v. R. G. W., 367.

15. SAME. Where an instruction offered by defendant covered no issue in the case, a modification of it, making it neither better nor worse, was harmless error. Kimball v. Salt Lake, 253.

16. JURISDICTION-DETERMINATION.

The Supreme Court is bound to take notice of a jurisdictional defect precluding it from determining an appeal whether the question was raised by the parties or not. McCashland v. Keogh, 11.

17. PREJUDICE-EXCLUSION OF EVIDENCE. Plaintiff was not prejudiced by the exclusion of evidence to prove a fact already shown by other witnesses. Teakle v. San Pedro Co., 276.

18. SAME-RULINGS ON DEMURRER. Where a complaint to remove a city councilman alleging the receipt of illegal fees and willful neglect of official duty was demurred to as uniting two distinct causes of action, but the court withdrew the question of willful neglect of official duty from the jury, defendant was not prejudiced by the overruling of the demurrer. Skeen v. Paine, 295.

19. RECORD REVIEW. Where the bill of exceptions is eliminated from the record on appeal, the court can only determine whether the judgment is supported by the pleadings, findings of fact, and conclusions of law. Bryant v. Kunkel, 377.

20. REVIEW-PRESUMPTIONS.

In the absence of a showing to the contrary, it must be presumed, on appeal from an order requiring an attorney to account to his client for notes and moneys received, that the order was properly made. Everett v. Jones, 489.

21. RECORD-REVIEW OF EVIDENCE. Where the evidence is not all in the record, its sufficiency cannot be reviewed Kirk v. S. L. C.,

143.

22. SAME PREJUDICE-STATUTES. Under Revised Statutes 1898, section 4975, providing that the court, on appeal, must give judg ment without regard to technical errors or defects not affecting the substantial rights of the parties, judgment will not be reversed for error which resulted in no prejudice to the appellant. Worthen v. Peruv. M. Co., 8.

23. SAME.

Where defendant made no claim to any part of a mining claim within the boundaries thereof not included within an alleged conflicting area, it was not prejudiced by a judgment quieting plaintiff's title to the ground within the lines of the claim outside the conflicting area. Ib.

24. QUESTIONS Reviewable—IMMATERIAL QUESTIONS. Where the jury rendered a verdict supported by the evidence, necessitating affirmance, the question urged by respondent whether the court should not have directed a verdict in favor of the successful party was immaterial. Rogers v. R. G. W., 367.

25. TECHNICAL ERRORS. Where there is no invasion by the court of the province of the jury and no misdirection as to the law, and both parties have been given full opportunity to develop