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(230 P.)

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ROUTE, a Corporation, Appellant.

(No. 18776.)

(Supreme Court of Washington. Dec. 9, 1924.) Damages 130(2) — $2,600 for sacro-iliac sprain held not excessive.

Verdict for $2,600 for sacro-iliac sprain held not excessive.

easily segregated, and no doubt were not allowS. A. KIDDER, Respondent, v. NATIONAL ed by the court. The decree will be affirmed. TIMBER & LUMBER CO., a Corporation, Appellant. (Supreme Court of Oregon. Nov. 25, 1924.) In Banc. Appeal from Circuit Court, Clackamas County; J. U. Campbell, Judge. O. A. DAHL, Respondent, v. NAVY YARD This was a suit to foreclose a logger's lien. The pleadings are in the usual form. The defense, in substance, is that, as to that portion of the work actually performed by plaintiff for defendant, plaintiff has been paid in full, and that the other work, for which a lien was claimed, was performed for another party, and for this work defendant was not liable. There was also a counterclaim in the sum of $217.79, which defendant claims was overpaid to plaintiff by reason of a mistake in the computation of the amount due him for the work which he actually performed. The amount claimed by plaintiff in his lien and in the complaint was $232.36, with interest at the rate of 6 per cent. per annum from November 3, 1922, the date of the completion of the alleged contract, until the filing of the complaint. The court fixed the amount of plaintiff's recovery at $194.86, with interest thereon from the date of filing the lien, and $75 attorney's fee. From a decree to the above effect defendant appeals. G. Evert Baker, of Portland, for appellant.

MCBRIDE, C. J. The testimony in this case is very conflicting, and we are disposed to accept the conclusions of the experienced and careful judge who heard the case, with the advantage of seeing the witnesses and noting their demeanor while on the stand, rather than to attempt to substitute our judgment formed from a perusal of the testimony in cold type. If the testimony of plaintiff and his witnesses is true, and we accept it as such, plaintiff is entitled to recover. It is contended that some nonlienable items not included in plaintiff's contract are included in the lien, such as the value of a dog chain and choker, and some labor in hauling slabs, amounting to about $29, but these are

Department 2. Appeal from Superior Court, King County; Tallman, Judge.

Bronson, Robinson & Jones, of Seattle, for appellant.

F. W. Moore, of Bremerton, and Tucker, Hyland & Elvidge, of Seattle, for respondent.

MACKINTOSH, J. The only matter serious

ly argued in this personal injury action is that the jury returned a verdict in an excessive amount. The testimony shows that the plaintiff suffered a sacro-iliac sprain, and the amount of compensation awarded him was $2,600. The medical men called to testify by the respective parties differed somewhat as to whether other infirmities of the respondent were or were not the result of this sprain. On this conflicting testimony the jury were at liberty to choose that which best satisfied their minds and consciences, and evidently determined that the initial injury occasioned the pain and suffering of which the respondent complains. While the verdict is apparently fully compensatory, it is not so large that we are at liberty to substitute our estimate of what the monetary recompense should be for that of the jury. The judgment is affirmed.

MAIN, C. J., and HOLCOMB, FULLERTON, and MITCHELL, JJ., concur.

END OF CASES IN VOL. 230

INDEX-DIGEST

KEY NUMBER SYSTEM

THIS IS A KEY-NUMBER INDEX

It Supplements the Decennial Digests, the Key-Number Series and Prior Re-
porter Volume Index-Digests

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ADOPTION.

21 (Wash.) Adopted child of intestate's
predeceased brother held entitled to inherit in-
testate's property as against intestate's first
cousins or their representatives.-In re Wad-
dell's Estate, 230 P. 822.

ADVERSE POSSESSION.

1. NATURE AND REQUISITES.
(F) Hostile Character of Possession.
63(5) (Kan.) Possession under executory
contract of purchase subordinate and not ad-
verse to rights of vendor or those holding un-
der him.-Immell v. Seaverns, 230 P. 69.

(G) Payment of Taxes.

92 (Cal.App.) Claimant having paid taxes,
payment thereof by another held immaterial.-
Pereira Farms Corporation v. Simas, 230 P.
976.

95 (Cal.App.) Evidence held to justify in-
ference that taxes were paid by plaintiff and
predecessors in interest.-Pereira Farms Cor-
poration v. Simas, 230 P. 976.

AGENCY.

62(4) (Idaho) Uncorroborated testimony
of mortgagor insufficient to overcome certificate
of acknowledgment.-Sneddon v. Birch, 230 P. See Principal and Agent.
29.

ACTION.

AGRICULTURE.

See Abatement and Revival; Dismissal and 7 (Cal.App.) Fertilizer act inapplicable to
Nonsuit.

1. GROUNDS AND CONDITIONS PRE-
CEDENT.

6 (Kan.) Court may make declaration of
right only because it could grant consequential
relief if prayed for.-State v. Board of Com'rs
of Wyandotte County, 230 P. 531.

III. JOINDER, SPLITTING, CONSOLIDA-
TION, AND SEVERANCE.

44 (Colo.) Causes of action in partition
petition held not joinable.-Thomas v. Mahin,
230 P. 793.

57(1) (Wash.) Suit by remainderman to
quiet title to property, usable for comfort and
support of life tenant, should be consolidated
with probate proceedings, on estate of life
tenant.-Porter v. Wheeler, 230 P. 640.

ADJOINING LANDOWNERS.

See Boundaries; Party Walls.

ADMINISTRATION.

See Executors and Administrators.

sale of manure.-Blumer v. Rauer, 230 P. 964.

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V. PRESENTATION AND RESERVATION
IN LOWER COURT OF GROUNDS
OF REVIEW.

(A) Issues and Questions in Lower Court.
169 (N.M.) Generally, propositions of law
not presented below cannot be decided on ap-
peal.-Candelaria v. Gutierrez, 230 P. 436.
Three exceptions to general doctrine that
propositions of law not presented to trial court
cannot be decided on appeal stated.-Id.

171(1) (Okl.) Supreme Court will not try
case on theory different from that followed be-
low. Harrison v. Cummings, 230 P. 702.

below. Southwestern Supply Co. v. Hood Tire
Co., 230 P. 237.

236 (2) (Okl.) Objections to sufficiency of
pleadings to sustain judgment waived where
not attacked below by demurrer or motion for
judgment.-Beam v. Farmers' & Merchants'
Bank, 230 P. 881.

237 (2) (Or.) Supreme Court could not
consider alleged error in admission of evidence
where not objected to nor ruled on.-Hostetler
v. Eccles, 230 P. 549.

237 (3) (N.M.) In absence of motion to
withdraw evidence from jury and request to so
instruct, point not available on appeal.-Cande-
laria v. Gutierrez, 230 P. 436.

238(4) (Mont.) Where decree of foreclos-
ure of mortgage failed to except paramount
lien from provision barring claims of all defend-
ants, correction of error should have been asked
in trial court.-Bohan v. Harris, 230 P. 586.
242 (2) (N.M.) Motion to strike portion of
complaint, not called to attention of trial court
for ruling, unavailable.-Candelaria v. Gutier-
rez, 230 P. 436.

242(4) (Or.) Supreme Court could not
consider alleged error in admission of evidence
where not objected to nor ruled on.-Hostetler
v. Eccles, 230 P. 549.

(C) Exceptions.

171(1) (Okl.) Decree, fixing boundaries in
suit to reform deed, not disturbed, where all 263(1) (N.M.) No error can be assigned
rights protected and adjudicated.-Robbins v.
for erroneous instruction, where no exception
Warren, 230 P. 929.
saved.-Candelaria v. Gutierrez, 230 P. 436.
264 (Or.) No exception necessary to re-
view verdict wrong on its face.-Fenlason v.
Pacific Fruit Package Co., 230 P. 547.

answer

171 (3) (Okl.) Judgment on
filed
out of time, regarded by parties as forming
basis of relief granted, will not be set aside.
Muegge v. Muegge, 230 P. 482.

Theory voluntarily adopted in trial court can-
not be changed on appeal.-Id.

(D) Motions for New Trial.
294 (2) (Okl.) To review judgment vacat-
ing former judgment, motion for new trial nec-
essary.-Brady v. Sampson, 230 P. 248.

173(9) (Wash.) Estoppel cannot be urged
on appeal, unless pleaded or raised in lower
court.-Young v. American Can Co., 230 P.296 (Colo.) Motion for new trial not con-

147.

(B) Objections and Motions, and Rulings
Thereon.

192(1) (Okl.) Objections to sufficiency of
pleadings and evidence to sustain judgment
waived where not attacked below.-Beam v.
Farmers' & Merchants' Bank, 230 P. 881.

204(1) (Or.) Supreme Court could not
consider alleged error in admission of evidence
where not objected to nor ruled on.-Hostetler
v. Eccles, 230 P. 549.

210 (Okl.) Objections to sufficiency of evi-
dence, to sustain judgment waived where not
attacked below by demurrer or motion for
judgment.-Beam v. Farmers' & Merchants'
Bank, 230 P. 881.

216(1) (Okl.) Failure to direct attention
of court to omission in instructions precludes
making failure available as reversible error.-
Chisholm v. Blanton, 230 P. 683.

dition precedent to review of ruling on motion
for judgment notwithstanding verdict.-Fincher
v. Edwin M. Bosworth & Co., 230 P. 596.

300 (Okl.) Motion for new trial filed more
than three days after rendition of judgment
cannot be considered on appeal.-Woodyard v.
Burdett, 230 P. 903.

302(1) (Kan.) Chief purpose of motion for
new trial stated.-Brick v. National Fire Ins.
Co. of Hartford, Conn., 230 P. 309.

Trial errors not specifically pointed out in
motion or on presentation of motion for new
trial generally considered waived.-Id.

VI. PARTIES.

327 (7) (Colo.) Defendant held necessary
party to proceeding in error.-Burke v. Boul-
der Milling & Elevator Co., 230 P. 398.

329 (N.M.) Parties omitted from appeal or
writ of error cannot be joined after time within
which appeal or writ may be prosecuted.-Clark
v. Rosenwald, 230 P. 378.

216(1) (Okl.) Counsel must request addi-
tional instructions to make omissions therein 336 (2) (Colo.) Rather than dismiss writ
reversible error.-Gourley v. Oklahoma City, of error because of omission to name neces-
230 P. 923.
sary party, Supreme Court will grant applica-
tion to amend so as to bring in necessary par-
ty.-Burke v. Boulder Milling & Elevator Co.,
230 P. 398.

218(2) (Kan.) Interested party, failing to
request appropriate in lieu of unresponsive an-
swer to special interrogatory, cannot complain
that requirement not made.-Grubb v. Sargent,
230 P. 1043.

221 (N.M.) Remoteness of damages must
be properly raised below to be reviewable on
appeal.-Candelaria v. Gutierrez, 230 P. 436.
221 (Or.) Appellant could not complain for
first time on appeal of alleged error in measure
of damages for conversion of crops.-Hostetler
v. Eccles, 230 P. 549.

VII. REQUISITES AND PROCEEDINGS
FOR TRANSFER OF CAUSE,
(A) Time of Taking Proceedings.
356 (Okl.) Appellate court acquires no ju-
risdiction of appeal not commenced within
statutory period.-Gelabert v. State, 230 P.
230.

230 (N.M.) Errors assigned in motion for
new trial for first time unavailable, where not (B) Petition or Prayer, Allowance, and
saved during trial.-Candelaria v. Gutierrez.
230 P. 436.

233(2) (Okl.) Error in permitting question
concerning document erroneously admitted may

Certificate or Affidavit.

361 (2) (Colo.) Filing transcript and as-
signment of error sufficient application for writ
of error in Supreme Court.-Diebold v. Die-

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

X. RECORD AND PROCEEDINGS NOT IN 766 (Okl.) Appeal dismissed for failure of

RECORD.

plaintiff in error's brief to set forth specifica-
tions of error, argument, and authorities.-
Rourke v. Gerlach-Barklow Co., 230 P. 901.

(A) Matters to be Shown by Record.
494 (Okl.) Mere record recital that mo-
tion or demurrer overruled or sustained insuffi-773(1) (Idaho) Where neither side submits
cient to support assignment of error.-Jackson
v. Fennimore, 230 P. 689.

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brief and only respondent appears, Supreme
Court may dismiss cause, which results in
affirmance, or render judgment on merits.-
Honnold v. Starkweather, 230 P. 40.

XIII. DISMISSAL, WITHDRAWAL, OR

ABANDONMENT.

781(1) (Okl.) Appeal dismissed, where
questions have become moot.-Garrett v. Lash-
er, 230 P. 720.

783 (2) (Okl.) Appeal from order setting
aside former judgment where no motion for
Sampson, 230 P. 248.
new trial filed should be dismissed.-Brady v.

544(1) (Cal.) Finding of nothing due held
to support judgment for defendant and not re-
viewable on appeal on judgment roll.-Peak v.790 (2) (Wash.) Action to enjoin tenant's
Republic Truck Sales Corporation, 230 P. 948. removal of house purchased from mortgagor
544(1) (Mont.) Respondent's cross assign- dismissed on appeal as presenting moot ques-
ments of error not considered, where neither tion.-Naylor v. Morrow, 230 P. 143.
bill of exceptions nor statement was before 807 (Or.) Appeal dismissed by court on
court. Thompson v. Twodot Fertilizer Co., motion without notice must be reinstated.-
230 P. 588.
Western Grain Co. v. Beaver Land-Stock Co.,
230 P. 103.
XVI. REVIEW.

(A) Scope and Extent in General.

554(2) (Okl.) Where errors assigned are
such as could only be presented by case-made
or bill of exceptions, appeal by transcript will
be dismissed.-Blumenfeld v. Anthis, 230 P. 228.
554(2) (Wash.) Appeal from order grant-837 (2) (Colo.) Records and briefs in other
ing motion for new trial for erroneous instruc- cases considered on request.-Ellis v. Moses,
tions dismissed, in absence of statement of 230 P. 802.
facts.-Fuller v. Friedman, 230 P. 155.

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

564 (3) (Okl.) District judge assigned out-
side district, cannot, after expiration of as-
signment, extend time to prepare and serve
case-made.-Boswell v. Ingram, 230 P. 909.

(I)

Defects, Objections, Amendment, and
Correction.

854 (2) (Wash.) Theory on which trial
-Nelson v. Nelson, 230 P. 819.
court arrived at correct conclusion immaterial.

(B) Interlocutory, Collateral, and Supple-
mentary Proceedings and Questions.
870 (5) (Okl.) Order striking amended pe-
tition as supplemental not appealable.-Adams
v. Webb, 230 P. 878.

(C) Parties Entitled to Allege Error.
648 (Cal.App.) Trial court properly or-878(1) (Cal.App.) Cause
dered correction of transcript to include in- which appellant recovered judgment not ap-
of action, on
structions proposed by parties, etc., inadvert- pealed from, not considered.-Equitable Life
ently omitted.-Dowd v. Superior Court of Cal-Assur. Soc. of U. S. v. Jacobson, 230 P. 200.
ifornia for City and County of San Francisco, 880 (2) (Okl.) Misjoinder of actions by de-
230 P. 961.

659(6) (Cal.App.) In view of findings no
need to order trial judge to certify to waiver.
-Covell v. Lee, 230 P. 208.

and principal on supersedeas bond for plain-
fendant, in quieting title suit against sureties
tiff's occupation of premises, may be raised only
660(1) (Cal.App.) On motion for direction 882(5) (Cai.) Plaintiff could not object to
by sureties.-Johnson v. Johnston, 230 P. 480.
to trial judge, instrument treated as judgment, defective answer caused by defective complaint.
as agreed by parties.-Covell v. Lee, 230 P.-Peak v. Republic Truck Sales Corporation,
208.
230 P. 948.

(K) Questions Presented for Review.
671(4) (Cal.App.) Failure to allow partner
for expenses not reviewable, where record does
not segregate expenses.-Ross v. Burr, 230 P.
986.
695(1) (Cal.App.) Record must disclose
evidence before appellate court can deter-
mine sufficiency of evidence to support finding.
-Ross v. Burr, 230 P. 986.

701 (1) (Okl.) Judgment on insufficiency of
cotton tickets will not be reversed, where no
objections on trial, and tickets or copies there-
of not in record.-Harley v. Damron, 230 P.
507.

XI. ASSIGNMENT OF 'ERRORS.
719(5) (Or.) Failure of assignments of
error to refer to claimed error in admission of
evidence precluded consideration of such error.
-Hostetler v. Eccles, 230 P. 549.

750(7) (Okl.) Scope of appellate review on
assignment that judgment is contrary to law,
stated.-Beam v. Farmers' & Merchants' Bank,
230 P. 881.

XII. BRIEFS.

757(4) (Okl.) Where complaining party
fails to set out separately in brief portion of
instructions objected to they will not be con-
sidered on appeal.-Brown v. Brown, 230 P.
853.

882(5) (Colo.) Where counsel insisted that
motion be treated as general demurrer, com-
plaint may not be made that it was so treated.
Anglo-American Mill Co. v. First Nat. Bank,
230 P. 118.

882 (7) (Utah) Answer to question wheth-
er infant received consideration for note held
sufficient, where incompleteness was due to
plaintiff's objection to answer.-Merchants'
Credit Bureau v. Kaoru Akiyama, 230 P. 1017.
882 (8) (Colo.) Admission of evidence not
ground for complaint, where same matter testi-
fied to by appellant's witnesses.-In re Foley's
Estate, 230 P. 618.

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

889 (2) (Wash.) Defects in pleading pre-
sumed cured by amendment.-Skibsaktieselska-
pet Bestum III v. Duke, 230 P. 650.

889 (3) (Okl.) Pleading deemed amended to
conform to proof, where variance not called to
trial court's attention.-Parsons v. Heenan,
230 P. 502.

(E) Presumptions.

907 (2) (Cal.) In absence of record, find-
ings taken as supported by evidence.-Kemp
v. Enemark, 230 P. 441.

907 (2) (Cal.) When appellate court must
conclude evidence sustains findings, and that

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