to entitle plaintiff to a recovery, the burden of proof was upon him to show, by a preponderance of the evidence, that both defendant and Berkner Bros. were so advised and consented to the double agency, and that this consent must be clearly proved. This instruction was given as a part of defendant's theory of the case, which was thus fairly submitted to the jury upon the evidence before them, and their finding must be regarded as conclusive in this court. The trial court at the same time also submitted to the jury, in a correct statement of the rule of law, the question of plaintiff's right to recover commissions as a "middleman." It is apparent, therefore, that the finding of the jury is conclusive against appellant upon either theory of the case, unless the court committed reversible error in the reception or rejection of evidence.

[10] In our opinion the court was in error in receiving in evidence the written memorandum made by plaintiff of the listing of the property "in corroboration of plaintiff's other evidence." It could be regarded only as a self-serving declaration. We are also of opinion the court was in error in sustaining plaintiff's objections to questions on cross-examination of plaintiff's witnesses. In the view we take of the case, however, it is unnecessary to refer to or specify the particular rulings.

A careful examination of the entire record shows that the defendant, upon the witness stand, admitted every item mentioned in the written memorandum improperly received by the court, and that every fact sought to be elicited by defendant's counsel upon cross-examination of plaintiff's witnesses was fully testified to by the same witnesses in the course of the trial. We are of opinion, therefore, that these rulings, while erroneous, could not have been prejudicial to defendant's rights, and ought not to be held to constitute reversible error.

[11, 12] Erroneous exclusion of evidence on cross-examination is cured by the admission of evidence on direct examination tending to prove the same facts. Dewey v. Komar, 21 S. D. 117, 110 N. W. 90; Buchanan v. Randall, 21 S. D. 44, 109 N. W. 513. The same rule applies in criminal cases. State v. Smith, 18 S. D.

341, 100 N. W. 740. The erroneous exclusion of evidence cannot be successfully complained of when not prejudicial. State, use of Hart-Parr Co., v. Robb-Lawrence Co., 17 N. D. 257, 115 N. W. 846, 16 L. R. A. (N. S.) 227.

The judgment and order of the trial court are affirmed.

McGILL v. SOUTH DAKOTA CENT. RY. CO.

The provision of Laws 1907, c. 218, for the recovery of double damages for the loss of live stock killed or injured by railroads, is valid.

Where an action against a railroad company for killing an animal was not tried on any issue of negligence, and there was no assignment based on any ruling on such an issue, and the findings that the animal was injured by the company's engine, and that the injury was not caused by any act of plaintiff or his agent were undisputed, and there was no finding that the company was not negligent, a judgment for plaintiff was authorized, under Code Civ. Proc. § 784, authorizing judgment by confession, and it would not be disturbed on appeal on the ground that under the evidence the company was not negligent.

(Opinion filed, February 29, 1912.)

Appeal from Circuit Court, Codington County. Hon. C. X. SEWARD, Judge.

Action by W. B. McGill against the South Dakota Central Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Joe Kirby, for appellant. Sherin & Sherin, for respondent.

WHITING, J. This action, based upon chapter 218, Laws of 1907, was brought to recover double the amount of damages which plaintiff claimed he had suffered through the killing of one of his cows by one of defendant's engines. No question is raised as to sufficiency of pleading. The action was tried to the court without a jury, and the court made and entered findings of fact herein in substance as follows: That the plaintiff was a farmer residing in Hamlin county, and the defendant a railway corporation operating a railroad; that the cow belonging to plaintiff wandered upon defendant's track, and was struck by an engine and injured, so that it had to be killed, which injury was not caused

by any act of plaintiff or his agent; that the cow was of the value of $45; that a notice such as is provided for by said chapter 218, Laws 1907, notifying defendant of the injury and loss suffered by plaintiff, was served on defendant; that defendant did not, within the 60 days thereafter, pay the damage, or offer in writing to pay the same, or any damage; that defendant did not have its right of way fenced at or near the point where the accident occurred, and such accident did not occur at a railway crossing, but at a place where defendant had the right to fence its right of way. other finding of fact seems to have been asked for. The court found that plaintiff was entitled to recover double damages, and rendered judgment in his behalf in the sum of $90. Motion for new trial was made and denied, and defendant appealed to this court.

No

[1] The assignments in no manner question the sufficiency of the evidence to support the findings of fact, and raise no question whatsoever, save such as go to the constitutionality of that part of said chapter 218, Laws of 1907; which provides for the recovery of double damages. The assignments thus raise no question, save such as have been determined against defendant's contention by several recent decisions of this court (Jensen v. South Dakota Central R. Co., 25 S. D. 506, 127 N. W. 650; Lidel v. South Dakota Central R. Co., 25 S. D. 462, 127 N. W. 657; Bekker v. White River Valley R. Co., 28 S. D., 132 N. W. 797), and therefore need no further consideration at this time.

[2] After appellant and respondent had filed their briefs in this court, the decision in Bekker v. White River Valley R. Co., supra, was handed down. In that case it was held that the part of chapter 218, Laws of 1907, purporting to change the then existing law relating to the question of negligence in actions against railroad companies for the killing of stock, was unconstitutional. After such decision had been published, appellant herein sought to file in this court a brief urging a reversal of the judgment upon the ground that, under the evidence offered at the trial, it appeared that the defendant was not guilty of any negligence. Respondent resists the filing of such brief, claiming that it touches

no question raised by assignments herein. Such brief can avail appellant nothing, because it is apparent from the record that the cause was not tried upon any issue of negligence, because there is no assignment based upon any ruling touching the question of negligence, because the findings of fact stand undisputed, and that finding, wherein the court found that the cow was injured by defendant's engine and such injury was not caused by any act of plaintiff or his agent, was, under section 784, Revised Code of Civil Procedure, sufficient to support the judgment, there being no finding that defendant was not negligent.

The judgment and order denying a new trial are affirmed.

LA PENOTIERE v. KELLAR.

Appellant may be relieved from a failure to file and serve his abstract and brief on the appeal within thirty days after service of notice of appeal, where he was prevented from doing so by a series of misfortunes overtaking and practically overwhelming his attorney.

Code Civ. Proc. § 445, provides that, to render an appeal effectual for any purpose, an undertaking must be executed on the part of the appellant by at least two sureties, and section 461 declares that when a party shall, in good faith, give notice of appeal and shall omit, through mistake or accident, to do any other act to perfect the appeal or make it effectual, including the giving of a proper undertaking for costs and damages, the court, from which the appeal is taken or the presiding judge thereof or the Supreme Court or any one of the justices; may permit an amendment, or the proper act to be done, including the giving of an undertaking in such terms as may be just. Held that, where an appellant failed to serve an undertaking in time, such omission could be waived by respondent without an application by appellant for relief under section 461, and was waived by respondent's acceptance thereof, which acceptance was effectual to confer appellate jurisdiction.

'(Opinion filed, January 17, 1912.)

Appeal from Circuit Court, Fall River County. Hon. LEVI MCGEE, Judge.

Action by Emma M. La Penotiere against Chambers Kellar. Judgment for defendant, and plaintiff appeals. On order to show cause why the appeal should not be dismissed. Order dismissed.

Elmer R. Juckett, for appellant. Martin & Mason, Eastman & Dudley, and C. E. De Land, for respondent.

WHITING, J. This case comes before the court upon an order to show cause why the appeal herein should not be dismissed, and respondent urges two reasons for such dismissal.

[1] One reason urged is because appellant failed to serve and file his abstract and brief upon the appeal within 30 days after service of notice of appeal; there being a rule of this court requiring such service within such time, unless, through stipulation or order, such time has been extended. There is, however, another rule of this court under which, for good cause shown, this court may relieve an appellant from his default in this respect. Without setting forth the facts shown by the affidavits submitted, we will state that it clearly appears to this court that, owing to a series of misfortunes overtaking and practically overwhelming his attorney, there existed ample reason why appellant should be relieved from such default, especially as it appears that such abstract and brief were served and filed within a very few days after the expiration of the 30-day limit.

[2] Respondent urges as another reason for dismissal that this court has never acquired jurisdiction owing to the fact that the undertaking upon appeal was not served until a few days after the service of the notice of appeal. Respondent relies upon the decision of this court in the case of Aldrich v. Public Opinion Pub. Co., 27 S. D. 589, 132 N. W. 278. In the Aldrich Case no undertaking was ever served, and the appellant took no step to be relieved from his default until after the expiration of the statutory period during which he was entitled to appeal such case.

In the present case the undertaking was served and service thereof accepted by respondent well within the period within which the case could be appealed. A careful reading of the Aldrich Case will show that the order which may be granted, by either the circuit or the Supreme Court, under section 461 of the Code of Civil Procedure, does not in itself confer jurisdiction upon the appellate court; but that the effect of such an order is merely to relieve the appellant from his default in not serving his undertaking, together with the notice of appeal, and to allow the service thereof after such notice has been served. It is the service