contract, while showing defendants as much liable in damages for negligent breach of contract as for violation of a trust, constitutes but one cause of action.-Id. 38(1) (Wash.) In corporation's action against its secretary upon a mutual, open, and current account, where corporation had advanced and charged sums of money to secretary to be used by him in his private business, there was but one cause of action growing out of dealings whereby the corporation furnished money and secretary made payments thereon including his_salary.-Connecticut Inv. Co. v. Yokom, 180 P. 926. ADVERSE POSSESSION. See Easements, 8, 32, 36; Ejectment, III. PLEADING, EVIDENCE, TRIAL, 115(1) (Mont.) In ejectment against defendant who had encroached on plaintiff's land in the erection of a coalshed, residence, and fence along the boundary line between them, evidence that defendant and her predecessors had maintained the fence, shed, and residence for more 38(3) (Colo.) Husband's right to wife's body than 13 years before the beginning of the acand his right to her mind unpolluted are two tion, warranted submission to the jury on the primary rights; interference with either con-issue of defendant's title by adverse possession. stituting right of action, and interference with Shinors v. Joslin, 180 P. 574. both, even though by one act, constituting two causes of action.-Sullivan v. Valiquette, 180 P. 91. 38 (4) (Colo.) Husband's complaint held to state two causes of action, for alienation of affections and for criminal conversation.-Sullivan v. Valiquette, 180 P. 91. 47 (Nev.) The averment of negligence in the first cause of action and fraudulent dealings in the second and subsequent causes held to amount to substantial allegations of breach of agreement, and not tort, and hence there was no misjoinder.-Walser v. Moran, 180 P. 492. Plaintiffs are entitled to such relief as they establish upon proper proof of alleged facts, and the prayer for judgment is not demurrable as asking relief upon both tort and contract.-Id. 50(3) (Wash.) Rem. Code 1915. § 296, providing that causes of action united must affect all the parties, does not authorize joinder of causes of action by two or more parties having separate grievances against the same party.-McAllister v. Wm. P. Harper & Son, 180 P. 412. IV. COMMENCEMENT, PROSECUTION, AND TERMINATION. 62 (Okl.) Where plaintiff and defendant agreed to furnish equal sums and purchase segregated coal lands of Choctaw and Chickasaw Nations from Department of Interior in name of defendant for their joint use, and agreed on division of land, and certificate was issued to defendant, plaintiff's action for specific performance was prematurely brought, as title did not pass under certificate, and as defendant was not entitled to patent until full compliance with terms of sale.-Mahar v. Ward, 180 P. 859. ADJOINING LANDOWNERS. See Boundaries; Municipal Corporations, 668. ADMINISTRATION. See Executors and Administrators. ADMIRALTY. See Criminal Law, 89. ADOPTION. See Bastards, 6, 13. ADULTERY. See Action, 38; Fornication; Husband and 4 (Wash.) Under Laws 1917, p. 341, providing that no prosecution for adultery shall be commenced except on complaint of the injured husband or wife, a prosecution thus begun cannot be discontinued or terminated upon motion of the injured spouse as prosecuting wit AFFIDAVITS. See Continuance, 47; Criminal Law, See Carriers, 208, 230; Criminal Law, 10 (N.M.) It is only when the evidence of ownership of animals depends upon a brand that a certified copy of the recorded brand is necessary to be introduced in evidence in prosecution for larceny.-State v. Meeks, 180 P. 295. 92 (N.M.) Code 1915, c. 41, describing and defining a legal fence and barring recovery of damages caused by trespassing animals to lands not inclosed by such a fence, does not bar recovery of damages and award of injunctive relief, where alleged trespass is shown to have been willful.-Frostenson v. Marshall, 180 P. 287. ANTI-TRUST LAW. See Monopolies, 29-31. APPEAL AND ERROR. See Certiorari; Costs, 238, 244, 251, 254, 260; Courts, 185, 207; Criminal Law, 1023-1202; Prohibition, 3; Railroads, On 5.2. For review of rulings in particular actions or proceedings, see also the various specific For cases in Dec.Dig. & Am. Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER I. NATURE AND FORM OF REMEDY. | contented himself by asking that such other be 2 (Cal.) Appeal from order, denying mo- brought in by plaintiff, as a party to the action, tion for new trial must be dismissed; notice he is not "aggrieved," and cannot complain of having been filed after amendment of 1915 an order granting his alleged principal's moto Code Civ. Proc. § 963.-Roberts v. Colyear, pellant, who was denied relief.-Patten & Davis tion for nonsuit, since it was plaintiff, not ap180 P. 937. Lumber Co. v. Inman, 180 P. 26. 2 (Cal.App.) Where notice of attempted appeal from order denying motion for new trial was filed after the amendment of 1915 to Code Civ. Proc. §963, the appeal attempted to be taken from the order must be dismissed.Hammond v. Hazard, 180 P. 46. 2 (Cal.App.) Where judgment was entered June 12, 1911, notices of intention to move for new trial filed September 8th and 11th following, and notices of appeal filed December 7th and 8th following, held that court on appeals from judgment could consider insufficiency of evidence to justify findings and judgment of trial court, though order denying motions for new trial was not entered until December 4, 1916, after amendments to Code Civ. Proc. §§ 956, 963.-Ford v. Freeman, 180 P. 545. 2 (Cal.App.) Notice of appeal from order denying motion for new trial having been filed after Code Civ. Proc. § 963, had been amended in 1915 (St. 1915, p. 209), the attempted appeal must be dismissed.-Dorris v. McKamy, 180 P. 645. 12 (Or.) Where plaintiff elected to proceed by review for correction of errors complained of, it barred his subsequent appeal for the correction of errors of law as well as on his issues of fact; L. O. L. § 605, making a writ of review and remedy of appeal concurrent but not cumulative, so that choice of one is a waiver of the other.-Cooper v. Bogue, 180 P. 103. (D) Finality of Determination. 78(3) (Wash.) Where trial court overruled demurrer to one of two causes of action and sustained demurrer to the other, and plaintiff elected to stand on the allegation thereof, and court entered an order dismissing with prejudice the second cause of action, the order was a final judgment as to the second cause of action from which an appeal could be taken.Whitehead v. Stringer, 180 P. 486. (E) Nature, Scope, and Effect of Decision. 110 (Cal.) An appeal from an order denying a motion for new trial is no longer allowed, and must be dismissed. Code Civ. Proc. 963, as amended by St. 1915, p. 209.-Marsh v. Lapp, 180 P. 533. 110 (Cal.App.) An attempted appeal from an order denying appellant's motion for a new trial, taken after Code Civ. Proc. § 963, was amended in 1915, must be dismissed, since appeals from such orders are no longer allowed under the statute.-Felsenthal v. Warring, 180 P. 67. 110 (Cal.App.) An appeal from an order denying a motion for new trial, taken after Code Civ. Proc. §963, had been amended in 1915, will be dismissed.-Runyon v. City of Los Angeles, 180 P. 837. (B) Estoppel, Waiver, or Agreements Af fecting Right. 161 (Kan.) In action under Code Civ. Proc. § 618 (Gen. St. 1915, § 7522), to quiet title based upon a void tax deed, when court adjudged defendant to be the owner, but allowed plaintiff a lien for taxes paid, defendant, without not accept benefits of that part of judgment and appealing from judgment in his favor, could question court's authority to allow lien on sole round that action was equitable.-Alison v. Harper, 180 P. 449. V. PRESENTATION AND RESERVA- (A) Issues and Questions in Lower Court. 169 (Kan.) Save as to original proceedings of which the Constitution gives the Supreme Court jurisdiction, such court is an appellate tribunal, and cannot review matters which have not been presented to the trial court.— Watson v. Watson, 180 P. 242. 173(2) (Cal.App.) In suit to quiet title, wherein issue of dedication to public use of strip of land in suit was not presented by defendant's pleadings or embraced in findings or in fact raised on record, question cannot be urged on appeal for first time.-Nilson v. Wahlstrom, 180 P. 358. 173 (10) (Colo.) Defendant in error cannot urge that laches does not apply to her claim, in that she was merely asserting a legal right, where she had at all times asserted, as plaintiff in the court below, that the action was properly in equity.-Valley View Consol. Gold Mining Co. v. Whitehead, 180 P. 737. 174 (Colo.) Where the defendant did not present the objection to the capacity of plaintiff, a foreign corporation, to sue, in due season by proper pleadings of the issue of fact of noncompliance with statute, defendant cannot be heard to raise the objection on review.-Watson v. Empire Cream Separator Co., 180 P. 685. (B) Objections and Motions, and Rulings Thereon. 193(9) (Wash.) Defendants, raising question of sufficiency of complaint for first time in Supreme Court, can take advantage only of ment, which show plaintiff had no cause of acthose defects which are incapable of amendtion.-Bishop v. T. Ryan Const. Co., 180 P. 126. 216(2) (Okl.) In action under hail insurance policy for damage to cotton crop, where general instructions limited recovery to damin absence of requested charge, to fail to inage from hail, it was not ground for reversal, struct jury not to allow for any damage caused by rabbits to growing crop.-St. Paul Fire & Marine Ins. Co. of St. Paul, Minn., v. Robison, 180 P. 702. 218(1) (Okl.) Where a verdict is not void, any objection going to a defect or irregularity which renders verdict merely voidable will not be considered when raised for the first time in Supreme Court.-St. Paul Fire & Marine Ins. Co. of St. Paul, Minn., v. Robison, 180 P. 702. 219(2) (N.M.) Unless the findings of fact are specifically excepted to, an appellant is in no position to question the sufficiency of the evidence to sustain such findings.-Frostenson v. Marshall, 180 P. 287. 230 (Cal.) Alleged error in the admission of testimony will not be considered on appeal, where not objected to in lower court at the time it was offered.-Campbell v. Genshlea, 180 P. 336. 231(2) (Cal.) Where pleadings alleged fraud in general terms and the parties go to trial without special objection to the allegation of the facts and circumstances constituting the fraud, such infirmity of the complaint may not be successfully urged on appeal.-Campbell v. Genshlea, 180 P. 336. 231(9) (Or.) Where it was objected that court's instruction included items of damage not sustained by evidence, objection is insufficient to obtain review, where it failed to specifically point out what the items were.-Northwest Door Co. v. Lewis Inv. Co., 180 P. 495. 232 (2) (Cal.App.) Objection to evidence that "the proper foundation had not been laid" fairly presented question of sufficiency of evidence as to expert qualification of witness.-Lemley v. Doak Gas Engine Co., 180 P. 671. ex covering judgment as well as order denying new trial, which is not an appealable order under Code Civ. Proc. § 963, the appeal will be considered as properly noticed; respondent not appearing to have been misled or prejudiced.Off v. Crump, 180 P. 360. 422 (Wash.) Where a party claiming a separable interest under a judgment filed notice of appeal from the entire judgment by all of the unsuccessful parties, on motion under Rem. Code 1915, § 1730-9, to require appellant to execute a supersedeas bond in the statutory amount in double the amount of the money judgments against all the unsuccessful parties as required by section 1722, the appellant will be permitted to amend his notice of appeal to specify with certainty that such appeal is taken by him alone from a part of a judgment in which he claims a separable interest.-Zittel v. Meyer, 180 P. 921. X. RECORD AND PROCEEDINGS not 232(2) (Utah) Where defendant's objection to question was based solely on the ground that the statute prohibited witness from testifying to matter inquired about, the contention that questions did not indicate answers pected, and that plaintiff should have stated what he expected to prove in order that court (A) Matters to be Shown by Record. might determine whether answers would be ma-499(3) (Cal.) The objection that parol terial and their exclusion prejudicial, cannot proof was introduced to alter terms of written be sustained.-Grieve v. Howard, 180 P. 423. agreements of the parties cannot be considered, 242(4) (Cal.) The admission of testimony where the record does not show that such obwill not be reviewed on appeal, where it does jection was made in the trial court.-McCombs not appear that lower court made ruling on v. Church, 180 P. 535. objection thereto.-Campbell v. Genshlea, 180 P. 336. (D) Motions for New Trial. 301 (Kan.) Where rejected evidence was not produced on a hearing of a motion for a new trial, it could not be considered under Code Civ. Proc. § 307 (Gen. St. 1915, § 7209), -Washington Nat. Bank v. Myers, 180 P. 268. 302(3) (Kan.) Improperly excluded evidence not produced in support of a motion for new trial cannot be availed of on appeal, in view of Code Civ. Proc. § 307 (Gen. St. 1915, § 7209).-Smith v. Hutchinson Box Board & Paper Co., 180 P. 983. VII. REQUISITES AND PROCEEDINGS (C) Necessity of Bill of Exceptions, Case, or Statement of Facts. 544(3) (Wash.) On appeal from a judgment subordinating claimant's mortgage to certain claims against the estate of a deceased person in an administration proceeding, that appellant has brought no bill of exceptions or statement of facts showing the proceedings on the final hearing does not necessitate a dismissal of the appeal, the proceedings in the administration being part of the record and properly brought up in the transcript from the clerk's certificate, such proceeding being thereby reviewable. In re Erickson's Estate, 180 P. 485. 544(3) (Wash.) An assignment that the court erred in refusing to enter findings of fact and conclusions of law proposed by the appellant and in entering the findings of fact and conclusions of law proposed by the respondent can be reviewed, in the absence of a bill of exceptions or statement of facts, only for errors appearing upon its face.-Kelly v. Schnatterly, 180 P. 887. sus-548 (1) (Wash.) Error in the exclusion of evidence can only be shown by a bill of exceptions or a statement of facts.-Kelly v. Schnatterly, 180 P. 887. (A) Time of Taking Proceedings. 356 (Nev.) Where appellant failed to file and serve her notice of appeal within six months after rendition of judgment, as required by St. 1913, c. 91 (Rev. Laws, § 5329), a motion for dismissal of the appeal must be tained. Clark v. Turner, 180 P. 908. 356 (Okl.) Where petition in error and case-made were not filed in Supreme Court within six months after the overruling of the final order appealed from as required by Sess. Laws 1910-11, c. 18, the appeal would be dismissed on motion of defendant in error.-Da-627 (2) (Utah) Under Comp. Laws 1917, §§ vis v. Revelle, 180 P. 958. (C) Payment of Fees or Costs, and Bonds or Other Securities. 374(2) (Colo.) Rev. St. 1908. § 7254, providing that on appeals prosecuted by an administrator, executor, or conservator no bond shall be required, does not apply to an administratrix who seeks a determination that she is the sole heir at law in her individual capacity. Redington v. Reddington, 180 P. 675. (H) Transmission, Filing, Printing, and Service of Copies. 6991, 6992, 7008, 7009, relating to procedure upon appeal, and Supreme Court Rules 2 and 3 (97 Pac. vii), requiring a transcript of the record to be filed within 30 days after perfecting of appeal, an appeal will be dismissed. where transcript was not filed until nearly 6 months after perfecting appeal.-Swetin v. Magleby, 180 P. 177. (I) Defects, Objections, Amendment, and Correction. 634 (Okl.) That the case-made had never been signed by the judge of the court, and that the attempted case-made and record had never been filed in the district court, and had never signed or attested by the clerk, are sufficient grounds for dismissing an appeal.-Oil Fields & S. F. Ry. Co. v. Wheeler, 180 P. 868. (D) Writ of Error, Citation, or Notice. 417(1) (Or.) Under L. O. L. § 550, subd. 1, a notice of appeal, giving name of court and parties, date of decree, and informing respond-been ent that appellant appeals from decree, is sufficient. Tucker v. Nuding, 180 P. 903. * 422 (Cal.App.) Notice of appeal, reciting 654 (Cal.App.) Contention by defendant that the appeal is taken "from an order and that it was understood and agreed in the court judgment entered herein * denying the below that the case and another case involving motion for a new trial and entering judgment the same subject-matter should be considered against defendant," is uncertain and ambigu- together, and that the evidence in both cases For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER ground for modifying or changing the record on appeal, where there is nothing in the record to show such an understanding, nor any contention that it was agreed that both records be considered on appeal.-Davidson v. Roffy, 180 P. $30. in a supplement thereto so much of the record as is necessary to enable the court intelligently to pass upon the questions presented, under Code Civ. Proc. § 953c.-Hammond v. Hazard, 180 P. 46. The alternative method of appeal, though permitting parties to file typewritten transcripts of the evidence, casts no burden upon appellate courts to examine the typewritten documents.-Id. gar-757(1) (Cal.App.) Where appellant by the alternative method and on the clerk's transcript alone neither prints any of the record in the brief, nor designates in any way the parts of the transcript upon which the alleged statement of facts is based, the Appellate Court will not consider the brief.-Whiting-Mead Commercial Co. v. Richards, 180 P. 633. (K) Questions Presented for Review. 684(3) (Wash.) Where error is assigned upon proceedings for discharge of writ of nishment and the record merely shows that a motion to dismiss a garnishment was argued, submitted, and denied, there is an insufficient showing for a review, if the order be otherwise reviewable.-Tomanovich v. Casey, 180 P. 919. 695 (2) (Cal.App.) When exceptions are taken to a nonsuit or to a directed verdict, all the evidence necessarily becomes a part of the case, and it cannot be determined on ap; peal that the ruling was erroneous, unless all the evidence is in the record.--Runyon v. City of Los Angeles, 180 P. 837. 705 (Cal.App.) Where appellant from order settling the account of the receiver in his wife's divorce suit as to certain items fails to bring up the evidence concerning them, the appellate court cannot review the action of the trial court thereon.-Scarpa v. Scarpa, 180 P. 637. 757(1) (Cal.App.) Where a brief to which is appended a résumé of the evidence of certain witnesses contains conclusions of fact to support which no reference is made, either to the transcript or the appendix to the brief, and the brief contains nothing clearly informing the court what the issues were, and sets out only one of the findings, the court will not examine a 400-page transcript in search of error upon which to base a reversal.-Patterson v. Almond City Land & Development Co., 180 P. 823. 707(2) (Or.) Court's refusal to exclude land 757 (3) (Cal.App.) Under Code Civ. Proc. within proposed irrigation district from pro- 953c, a resolution terminating plaintiff's emposed district cannot be reviewed on appeal, inployment, on appeal from a judgment for plainabsence of the evidence upon such question. William Hanley Co. v. Harney Valley Irr. Dist. No. 1, 180 P. 724. tiff's salary, will not be considered unless | brought to the attention of the court by printing in the brief.-Forrington v. San Luis Obispo County, 180 P. 42. XI. ASSIGNMENT OF ERRORS. 762 (Cal.App.) On appeal, contention of an 719(4) (Utah) Where an answer contain-appellant as to what was necessary for the deing a plea of justification was not entirely fendants to plead and for the court to find will lacking in substance, and no assignment of er- not be disregarded by the appellate court, beror was filed regarding it, that portion of the cause made for the first time in appellant's answer cannot be reviewed upon appeal.-Lar-closing brief, if made in response to a claim of sen v. Ryan, 180 P. 178. defendants in their brief.-Davidson v. Roffy, 180 P. 830. 728(2) (Wash.) Assignments of error referring to rejection or admission of evidence, without specifying or identifying such evidence, do not comply with court rule 8, subd. 2 (132 Pac. xii), requiring each error to be clearly pointed out.-Connecticut Inv. Co. v. Yokom, 180 P. 926. 733 (Or.) Assignment that court erred in rendering judgment for plaintiff is merely formal, and need not be considered.-Northwest Door Co. v. Lewis Inv. Co., 180 P. 495. 747 (2) (Utah) Respondent's contention that a finding was unsupported by evidence cannot be reviewed, where no cross-assignment was filed.-Larsen v. Ryan, 180 P. 178. XII. BRIEFS. 757(1) (Cal.) Where an appeal is taken under the alternative method, and defendant does not print in his briefs, in accordance with the statutory provisions, such portions of the record as he relies upon, his appeal deserves no consideration. Code Civ. Proc. § 953c.-Marsh v. Lapp, 180 P. 533. 757(1) (Cal.App.) Where appeal is taken by reporter's transcript, appellant must comply with Code Civ. Proc. § 953c. requiring parties appealing on the typewritten record to print in their brief or in appendix thereto such portions of the record as they desire to call to the attention of the court.-Bublitz v. Reeves, 180 P. 28. 757(1) (Cal.App.) Permission given to appellant to file a typewritten transcript in lieu of a printed bill of exceptions casts no burden on the appellate courts to examine the typewritten documents, as enough should, under Code Civ. Proc. § 953c, be printed in the brief to illustrate the points.-Reed v. Reed, 180 P. 43. 757 (1) (Cal.App.) Where appeal was taken under the alternative method. it is incumLent upon appellants to print in their briefs or 766 (Cal.App.) Where defendant and appellant alleges error in the granting of a codefendant's motion for nonsuit, and the record is vided in Code Civ. Proc. § 953a, the fact alone presented in accordance with the method prothat appellant omits to print in his brief any portion of the record showing, as required by section 953c, that the court erred in granting vis Lumber Co. v. Inman, 180 P. 26. the motion, justified affirmance.-Patten & Da 766 (Okl.) Where brief of a party on cross-appeal seeking to reverse judgment below does not contain pleadings, summary of evidence, and the judgment, together with such statements from record as are necessary to full understanding of questions presented, as required by rule 26 (165 Pac. ix), appeal will be dismissed.-Alliance Trust Co. v. Jackson, 180 P. 249. 768 (Cal.) The Supreme Court cannot consider statements of fact in the briefs not sustained by the record in reaching its decision.Randall v. Allen, 180 P. 941. 773(2) (Or.) Where no brief was filed by appellant within 20 days after service of copy of abstract, as required by rule 8 (173 Pac. viii), and no reason is advanced for the delay, appeal will be dismissed on motion of appellee.-Currin v. Crown-Willamette Paper Co., 180 P. 106. XIII. DISMISSAL, WITHDRAWAL, OR ABANDONMENT. 781(5) (Colo.) Writ of error to review judgment of dismissal of proceeding in mandamus to compel issuance of certificate of election to relator will be dismissed, where term of office for which relator was elected has expired.-People v. McMahon, 180 P. 85. 781(5) (Colo.) A writ of error to review an order of court that an executor deliver to his coexecutor the management of the estate and pay him certain items of credit will be dis missed, where it appears that such coexecutor has resigned.-Wolfe v. Bauer, 180 P. 86. 801 (1) (Okl.) Where a motion to dismiss an appeal appears to have been served upon counsel for the plaintiff in error, and where no response was filed, it would be assumed that it correctly stated the condition of the record. Oil Fields & S. F. Ry. Co. v. Wheeler, 180 P. 868. granting of a restraining order or temporary injunction.-Hicks v. Sage, 180 P. 780. 854 (1) (Nev.) The rule of law that a judgment which is right will not be reversed merely because a wrong reason is given may not be applied to uphold a judgment not sustained by sufficient evidence.-Richards v. Vermilyea, 180 P. 121. 854(3) (Okl.) On assignment of error in striking from answer three contracts between parties, and allegations as to contracts, question was whether the striking was error, and not whether court was right in theory on which it made its order.-Missouri, K. & T. Ry. Co. v. Williamson, 180 P. 961. 803 (Colo.) Dismissal of a writ of error by the Supreme Court operates as an affirmance of the judgment sought to be reviewed, unless dismissed without prejudice, and, the same proceeding later brought by the same parties and involving the same subject-matter is barred, having formerly been adjudicated.-864 (N.M.) An appellant cannot predicate Whipple v. Wessels, 180 P. 309. XV. HEARING AND REHEARING. error upon court's refusal to make findings, or exceptions filed to findings made, after the trial court has lost jurisdiction of case within Laws 1917, c. 15.-Frostenson v. Marshall, 180 P. 287. 832(1) (Wash.) Where appellate court based its ruling upon the facts as found in appel-867 (2) (Wash.) On appeal from order lant's brief and would have made same ruling granting new trial because evidence was inupon statement of facts, appellant was not sufficient to justify the verdict, the Supreme prejudiced because, by some misprision, state- Court will not review the questions whether ment of fact was not in the files when files were the trial court erred in withdrawing from the handed to justice who wrote opinion, and is consideration of the jury the fact that defendnot entitled to a rehearing by reason thereof. ant's contract with a county to build a drainage -Armstrong v. Burkett, 180 P. 873. ditch and dam (which ditch overflowed and destroyed plaintiff's crops) had not been completed within the time limited, and the fact that defendant's agent had misrepresented the time of completion.-Brace v. Pederson, 180 P. 917. XVI. REVIEW. (A) Scope and Extent in General. 837 (2) (Cal.App.) Documentary evidence before the appellate court on an appeal cannot be considered on a subsequent appeal, where such evidence is not contained in the record on the subsequent appeal.-Beckett v. Stuart, 180 P. 348. Where there was verdict for plaintiff, but the court granted defendant new trial for insufficiency of the evidence, there being no judgment against defendant, he cannot claim in the Supreme Court on plaintiff's appeal from the ap-order granting new trial that the trial court erred in refusing to grant his motions for nonsuit and for judgment notwithstanding the verdict.-Id. 840(4) (Cal.) Defendant cannot urge on peal that his demurrer to the first amended complaint on the ground of uncertainty was improperly overruled, where the record shows a second amended complaint was filed, since only the pleadings upon which the issues were joined may be attacked on appeal.-Marsh v. Lapp, 180 P. 533. 842 (4) (Cal.App.) Question of contributory negligence of plaintiff injured by being run into by defendant's automobile while crossing a street being a matter on which under the evidence reasonable minds might differ, the findings of trial court will not be disturbed.-Off v. Crump, 180 P. 360. (D) Amendments, Additional Proofs, and Trial of Cause Anew. 893(2) (Wash.) Action to enjoin interference with water rights being of equitable cognizance court on appeal will determine case de novo.-Pate v. Peterson, 180 P. 894. (E) Presumptions. 900 (Cal.App.) Every reasonable presumption must be indulged in to support the ruling of the court below.-Ilamer v. Ellis, 180 P. 30. 901 (Wash.) Error is never presumed, but must be shown affirmatively.-Kelly v. Schnat 843(1) (Utah) Respondent's contention that position taken by appellant in the trial court and that assumed by him in the court on appeal are inconsistent, that appellant in effect in-terly, 180 P. 887. vited the ruling of the trial court of which he907 (4) (Cal.App.) On appeal every intendnow complains, is a moot question, and need not be determined, in view of the fact that a new trial must be granted.-Grieve v. Howard, 180 P. 423. 843(2) (Cal.) Where finding that appellant, petitioning for letters of administration, was not a child of deceased, and therefore has no interest in estate, must stand, it is unnecessary to consider other issues, appellant not being interested in condition of estate or amount of property subject to administration. -In re Palomares' Estate, 180 P. 936. 843 (2) (Cal.App.) The notice required to be given the opposite party by Code Civ. Proc. $527, in proceeding for injunction pendente lite, having been waived, as it may be, in view of Civ. Code, § 3513, it is unnecessary for the court on appeal to determine what power the lower court possessed under Code Civ. Proc. § 532, to dissolve or modify without a hearing on the merits an injunction granted without notice.-Walberg v. Underwood, 180 P. 55. 843 (2) (Kan.) On appeal from final judgment granting permanent injunction against sale of land under order of probate court to pay debts of a decedent whose estate is being administered, it is not material to inquire ment must be indulged in favor of the regularity of the lower court's procedure; and, in the absence of part of the evidence, it will be presumed that, if all the evidence was in the record, it would support a state of facts sufficient to uphold the judgment.-Runyon v. City of Los Angeles, 180 P. 837. Where on appeal from judgment based on a directed verdict appellant has not all evidence in record, it will be presumed that any errors in admission or rejection of evidence were cured by evidence not brought up.-Id. 926(5) (Cal.) Where no ruling upon objection to admission of testimony is shown by the record, it will be presumed that the objec tion was withdrawn.-Campbell v. Genshlea, 180 P. 336. 928 (2) (Cal.App.) Where contrary is not shown, the appellate court may assume proper instructions were given.-Abrahams v. Hammel, 180 P. 41. 930(1) (Wash.) Defendant appellants' challenge to the sufficiency of plaintiff's evidence carries a waiver of defendants' evidence.Cramer v. Cramer, 180 P. 915. 930(2) (Cal.App.) In a servant's personal injury action where the jury were instructed, |