Review of proceedings of nonjudicial officers or bodies.

Railway commission, see Railroads, § 9.

I. NATURE AND FORM OF REMEDY. Review of criminal prosecutions, see Criminal Law, § 1010.

81. The right to appeal is purely statutory; and hence, where the Legislature has phrased the right so that in some instances it must be denied upon somewhat trifling considerations, whatever of technicality there is under the circumstances is in the law, not in its administration.-Puffer v. Welch (Wis.) 406.

(D) Finality of Determination.

$ 70. An order setting aside a judgment, fixing the time for filing pleadings, and setting the cause down for a new trial, under Code Civ. Proc., § 602, is not a final order, from which an appeal will lie.-Trimble & Blackman v. M. V. Corey & Son (Neb.) 907.

§ 83. A proceeding to revive an action as to a decedent is a special proceeding, and a final order granting or refusing a request is appealable under St. 1898, § 3069, subd. 2.-Voss v. Stoll (Wis.) 89.

(E) Nature, Scope, and Effect of Decision. § 93. The order discontinuing an action does not prevent a judgment from which an appeal might be taken, and is not appealable.-Puffer v. Welch (Wis.) 406.

§ 109. An order denying a motion for judgment notwithstanding the verdict is not appeal able.-Hostager v. Northwest Paper Co. (Minn.)

213.

§ 109. Plaintiff held entitled to appeal from an order granting a new trial and refusing to direct a judgment in his favor notwithstanding the verdict.-Westacott v. Handley (Minn.) 226.

IV. RIGHT OF REVIEW. Condemnation proceedings, see Eminent Domain, § 254.

§ 192. On appeal, it is too late to object to mere matters of form in pleading.-McGovern v. Milwaukee Motor Co. (Wis.) 269.

§ 204. The objection to a hypothetical question that it embraces facts of which there is no evidence cannot be first raised on appeal.Sisson v. Lampert (Mich.) 513.

$ 205. Exclusion of evidence will not be reviewed where no offer is made to prove a rele vant fact responsive to the question.-Metzger v. Royal Neighbors of America (Neb.) 913.

§ 209. A decree, based on a deed on which plaintiff relied, and which both parties treated as in evidence below, would not be reversed because of plaintiff's failure to formally offer the deed in evidence.-Maxwell v. McCall (Iowa) 760.

§ 221. Error in the decree in mortgage foreclosure proceedings in awarding interest at 6 per cent., where the mortgage and note only provided for 5 per cent., for which the petition also prayed, could be first raised and corrected on appeal.-Moore v. Crandall (Iowa) 812.

§ 242. A motion to consolidate certain actions never submitted or acted on should be treated as withdrawn.-State Sav. Bank v. Miller (Iowa) 873.

(C) Exceptions. Criminal prosecutions, see Criminal Law, § 1056.

§ 265. Under St. 1898, § 3070, finding of circuit court held conclusive in the absence of 1064.

fecting Right.

Suits for divorce, see Divorce, § 178.

§ 154. That the decree was marked "O. K." by defendant's attorney before it was recorded held not to estop defendant from questioning the correctness of any ruling of law made therein. Moore v. Crandall (Iowa) 812.

§ 154. Plaintiff's failure to appeal from a decree dismissing a suit in equity held not to preclude it from appealing from a prior order transferring a lawsuit relating to the same transaction against different parties to the equity calendar.-State Sav. Bank v. Miller (Iowa) 873.

V. PRESENTATION AND RESERVATION IN LOWER COURT OF GROUNDS OF REVIEW. Criminal prosecutions, see Criminal Law, §§ 1035–1056.

(A) Issues and Questions in Lower Court. § 169. Questions that the trial court was not asked to pass on cannot be considered on appeal. Luers v. Luers (Iowa) 603.

§ 273. Exception to a ruling which could not have been misunderstood by the court or counsel is sufficiently specific.-Sulkowski v. Zynda (Mich.) 536.

§ 274. Exception held insufficient to show whether it went to the sufficiency of evidence or to its competency.-Edmunds v. Inman (S. D.) 430.

§ 278. Counsel cannot give jurisdiction to pass upon a question not raised by proper exception below.-Edmunds v. Inman (S. D.) 430.

(D) Motions for New Trial.

§ 301. An order setting aside the verdict and awarding a new trial must stand or fall on the merits of the grounds assigned in the mo tion.-White v. Chicago & N. W. R. Co. (Iowa)

162.

VII. REQUISITES AND PROCEEDINGS FOR TRANSFER OF CAUSE. Appeals from justices' courts, see Justices of the Peace, §§ 160, 161.

Probate proceedings, see Wills, § 360.

(A) Time of Taking Proceedings. $337. An appeal from a district court prior to the entry of final judgment or a final order of record is premature.-Anderson v. Carlson (Neb.) 145.

§ 339. An appeal from an order denying a new trial, made after judgment, taken with an appeal from the judgment, need not be taken within 60 days after entry of the order and notice to the opposite party.-Peters v. Lohr (S. D.) 853.

§ 345. Where an appeal was taken more than six months after judgment, but less than that time after the order overruling the motion for new trial, the order only is subject to review. -Cox v. American Express Co. (Iowa) 202.

§ 353. The time fixed by Pub. Acts 1907, No. 340, § 2, for taking an appeal, may be extended by the trial court under $ 6.-Klotz v. Lenawee Circuit Judge (Mich.) 551.

§ 353. A showing held sufficient to justify an order extending the time of taking an ap peal.-Klotz v. Lenawee Circuit Judge (Mich.)

551.

$488. A preliminary injunction, which is dissolved on the coming in of defendant's answer, on motion, or on final hearing, is not revived by an appeal from the decree of dissolution.-Hulan v. Murfin (Mich.) 574.

X. RECORD AND PROCEEDINGS NOT IN RECORD.

Review of proceedings of justices' courts, see Justices of the Peace, § 164.

(A) Matters to be Shown by Record. $502. The Supreme Court will not reverse a judgment supported by the pleadings, if the record does not exhibit the motion for a new trial.-Greer v. Grosse (Neb.) 907.

(C) Necessity of Bill of Exceptions, Case, Making and filing of bill of exceptions, see Exceptions, Bill of.

or Statement of Facts.

ries held to be evidence which must be made § 548. Answers of garnishee to interrogatoof record by bill of exceptions, in order to be considered on appeal.-Dolan V. Sammons (Iowa) SSO.

(H) Transmission, Filing, Printing, and Service of Copies.

§ 627. A dismissal of an appeal held warranted for lack of diligence of appellant in perfecting the same.-Stewart v. Raper (Neb.) 472.

$ 628. Where a party is prevented from having his appeal docketed within the statutory period through the neglect of the proper officer to prepare the transcript, the law will not permit him to be thereby deprived of his appeal.-Stewart v. Raper (Neb.) 472.

(I) Defects, Objections, Amendment, and Correction.

§ 635. Where the record merely showed that the district court sustained a motion to dismiss an appeal from the county court, there was no final order for review.-Stewart v. Raper (Neb.) 472.

(J) Conclusiveness and Effect, Impeaching and Contradicting.

§ 664. The abstracts of the parties conflicting, the Supreme Court is required to examine the original bill of exceptions.-Davis v. Davis (S. D.) 715.

§ 665. Evidence not having been made matter of record, appellee's claim by amended abstract asserting that there was none as to certain matter must be taken as true.-Dolan v. Sammons (Iowa) 880.

§ 670. It is not the province of the Supreme Court to determine the state of the trial record on affidavits and countera ffidavits.-Maxwell v. McCall (Iowa) 760.

(K) Questions Presented for Review.

§ 468. Since appellate courts have power to amend the original bond to stay proceedings pending appeal, or to require a new one, the Supreme Court may permit the filing of such a bond nunc pro tunc.-Coeling V. Barnard (Mich.) 533.

$468. Where appellee files no affidavit denying the averments of appellant's petition for leave to file nunc pro tunc a bond staying proceedings, such averments may be presumed to be true.-Coeling v. Barnard (Mich.) 533.

§ 690. Assignments of error, based on objections to evidence not shown by the abstract, cannot be considered.-Edson v. Poppe (S. D.)

441.

§ 695. In an action against a carrier under the Reciprocal Demurrage Law (Laws 1907, p. 25, c. 23 [Rev. Laws Supp. 1909, $$ 2023-1 to 2023-131), for failure to furnish cars, a finding on the question whether defendant could have furnished cars on account of a freight congestion, being a question of fact, cannot be reviewed, in the absence of a transcript of the evidence.-Hardwick Farmers' Elevator Co. v. Chicago, R. I. & P. Ry. Co. (Minn.) 819; Gray v. Minneapolis & St. L. R. Co. (Minn.) 1100.

8695. Assignment of error on the denial of a directed verdict cannot be considered where the evidence is not in the abstract.-Edson v. Poppe (S. D.) 441.

(L) Matters Not Apparent of Record. § 712. A party, failing to incorporate by proper bill of exceptions prejudicial matter not otherwise appearing, may not complain of such matter on appeal.-Gregory v. Chicago, R. I. & P. R. Co. (Iowa) 797.

8 714. In considering facts, the Supreme Court is confined to those appearing in the abstract.-Morrow v. Smith (Iowa) 316.

§ 714. Where a stipulation of facts was used on a motion to strike allegations from the answer, which motion was granted, and it appears in the record, it may be considered on appeal, though not incorporated in a statement of case. -State v. Meyers (N. D.) 701.

§ 714. Where stipulated facts modifying the allegations of an alternative writ of mandamus are not brought into the record, they cannot be considered on appeal.-State v. Meyers (N. D.) 701.

XI. ASSIGNMENT OF ERRORS.

732. Where error in overruling a motion for a new trial is assigned, the record will be considered to determine whether the judgment is warranted by the pleadings.-Trenerry v. City of South Omaha (Neb.) 920.

§ 733. An assignment of error that the judgment should have been for plaintiff is too general to be considered.-Trenerry v. City of South Omaha (Neb.) 920.

§ 733. Assignment held insufficient to direct Supreme Court to the error complained of.-Edmunds v. Inman (S. D.) 430.

XII. BRIEFS.

Scandalous or insulting matter in brief on rehearing as contempt of court, see Contempt, § 6.

§ 767. That point was first raised by appellant by an amended brief filed before appellee's argument was served held not to preju dice the latter so as to require that the brief presenting the point be stricken.-Moore v. Crandall (Iowa) 812.

Divorce proceedings, see Divorce, § 184.
On certiorari, see Certiorari, §§ 64, 68.
Probate proceedings, see Wills, § 384.

(A) Scope and Extent in General. § 842. A finding held deemed a conclusion of law, and reviewable on appeal.-Blaha v. Borgman (Wis.) 1047.

(B) Interlocutory, Collateral, and Supplementary Proceedings and Questions.

$870. An order striking out most of defendant's answer embracing new matter, relevant and material, held an order "involving the merits, and necessarily affecting the judgment." within Rev. Codes 1905, § 7081, and reviewable on appeal from the judgment.-State v. Meyers (N. D.) 701.

§ 870. An appeal from a judgment of discontinuance, following an order discontinuing the order of discontinuance, both as regards an action, would bring up with it for review the grading of the discontinuance and a denial of a motion for judgment in defendant's favor on the merits.-Puffer v. Welch (Wis.) 406.

$ 874. On verdict for defendant and granting of new trial on refusal of plaintiff's motion for judgment notwithstanding the verdict, held, that plaintiff was entitled to appeal from the whole order.-Westacott v. Handley (Minn.) 226.

(C) Parties Entitled to Allege Error. $ 877. One having no interest in the premises on which a liquor nuisance has been maintained held not entitled to complain of so much of the decree enjoining the maintenance of the nuisance as makes the costs a lien on the premises.-Denmead v. Parker (Iowa) 780.

§ 880. In sequestration proceedings against a corporation brought under St. 1898, § 3216, in which a new judgment against the judgment debtor is erroneously entered, from which the debtor does not appeal, other appealing defendants cannot complain, not being prejudiced.McGovern v. Milwaukee Motor Co. (Wis.) 269.

§ 882. Where the court embodies a requested instruction in one given, the party requesting it cannot complain that it is erroneous.-Vorce v. Independent Telephone Co. (Neb.) 836.

ABANDONMENT.

Dismissal of appeals from justices' courts, see Justices of the Peace, § 166.

§ 780. On reversal of grant of license by excise board, held, that the board had no interest authorizing an appeal.-Brown V. England (Neb.) 463.

§ 781. The Supreme Court may on its own motion dismiss an appeal from an order granting a liquor license, where the term of the license has expired.-Heesch v. Snyder (Neb.) 466. § 793. Under rule No. 36 (91 N. W. xiii) an appeal from a whole divorce decree will be dismissed without prejudice, where appellant's right to an appeal from a part of the decree only is not determined.-Tuttle v. Tuttle (N. D.) 429.

XV. HEARING AND REHEARING. Scandalous or insulting matter in brief in rehearing as contempt of court, see Contempt, § 6.

XVI. REVIEW.

410.

§ 882. A party offering evidence cannot complain on appeal that it was improperly admitted. Stark v. Joseph Schlitz Brewing Co. (Wis.) 491.

(D) Amendments, Additional Proofs, and Trial of Cause Anew. Trial de novo on appeal in habeas corpus proceedings, see Habeas Corpus, § 113.

§ 894. Appellants held not entitled to a trial de novo on appeal, where it affirmatively ap pears from their abstract that all the evidence is not before the Supreme Court.-Maxwell v. McCall (Iowa) 760.

(E) Presumptions.

On appeal from justice's court, see Justices of
the Peace, § 183.
Review of criminal prosecutions, see Criminal
Law, 1144.

§ 901. The burden is on appellant to point out error in rulings below.-Luck v. Sovereign Camp, Woodmen of the World (Iowa) 184.