first time on appeal.-Angel v. City of Portageville, 151 S. W. 192.

§ 195 (Ky.) An objection to the filing of an amended answer cannot be raised on appeal, where there was no objection to its filing below nor exception taken to the order filing it. Madden v. Meehan, 151 S. W. 681.

$195 (Mo.App.) Failure to question in the trial court the validity of an amendment to a special tax bill or to its admission in evidence precludes a consideration of the question on appeal.-Granite Bituminous Paving Co. v. Parkview Realty & Improvement Co., 151 S. W. 486.

$198 (Mo.) Error in directions to commissioners appointed to ascertain the value of real estate in a widow's action for dower held not reviewable, where there was no objection below, either at the time of appointment and direction or when the report was approved.-Moran v. Stewart, 151 S. W. 439.

$201 (Ark.) An objection not made below to the court's statement as to the effect of plaintiff's affidavit in replevin could not be reviewed. -Jenkins v. Quick, 151 S. W. 1021.

§ 204 (Ky.) A defendant who did not object to the admission of improper testimony may not avail himself of the error on appeal.-Chesapeake & O. Ry. Co. v. Meyers, 151 S. W. 19. § 204 (Ky.) A party, who, on the cross-examination of a witness, brings out incompetent testimony, and who does not object or except to it nor move to exclude it, may not complain thereof on appeal.-Andonique v. Carmen, 151 S. W. 921.

§ 216 (Mo.App.) That decedent had incipient epilepsy cannot be relied on as an excuse to negative contributory negligence, where it was abandoned by not being mentioned in the instructions offered by plaintiff.-Brady v. City of St. Joseph, 151 S. W. 234.

§ 216 (Mo.App.) The defect in an instruction on the measure of damages arising from the omission to give the legal elements on which the jury must base a verdict is but a nondirection, and defendant failing to request an instruction on the subject may not complain.Madden v. Missouri Pac. Ry. Co., 151 S. W. 489.

§ 221 (Tex.Civ.App.) Objection that an injunction against a nuisance was too broad cannot be reviewed on appeal, where no steps were taken below to limit the scope of the decree, which conformed to the prayer for relief and the findings.-Nations v. Harris, 151 S. W. 334.

§ 232 (Ark.) Where an objection below to an instruction was properly overruled, an objection on other grounds cannot be urged on appeal. St. Louis, I. M. & S. Ry. Co. v. Williams, 151 S. W. 243.

§ 232 (Ark.) Objection to conclusion of physician from examination of X-ray pictures, when he was not an X-ray expert, held not to assign error from admission of testimony showing a controversy among the physicians as to plaintiff's injuries.—St. Louis, I. M. & S. R. Co. v. Brogan, 151 S. W. 699.

§ 232 (Mo.App.) An objection, first raised on appeal, that a petition does not state a cause of action does not present for review a merely defective statement of a cause of action.-Angel v. City of Portageville, 151 S. W. 192.

§ 242 (Tex.Civ.App.) The question of plaintiff, suing as administratrix, not having executed a bond as such, and so not having capacity to sue as such, required by Sayles' Ann. Civ. St. 1897, art. 1265, to be raised by plea verified by affidavit, is waived by defendant, where it failed to have it determined by the trial court and to assign error thereon.-Casey v. Texarkana & Ft. S. Ry. Co., 151 S. W. 856.

(C) Exceptions.

§ 253 (Tex. Civ.App.) Where the record fails

the question of the propriety of sustaining an exception thereto cannot be considered on appeal.-Walker v. Metropolitan St. Ry. Co., 151 S. W. 1142.

§ 260 (Mo.App.) A ruling admitting evidence not excepted to is not reviewable.-Byrd v. Vanderburgh, 151 S. W. 184.

§ 262 (Mo.App.) Where plaintiff did not except to the giving of a peremptory instruction for defendant, the nonsuit must be held a voluntary one.-Arnold v. Etna Life Ins. Co., 151 S. W. 190.

$265 (Mo.App.) Unless excepted to, the propriety of taking an application for separate maintenance under advisement and postponing its decision so that the parties may become reconciled cannot be reviewed.-Creasey v. Creasey, 151 S. W. 215.

§ 266 (Mo.) Error in the directions to commissioners appointed to ascertain the value of real estate in a widow's action for dower and damages was not reviewable, where no exceptions were saved to the court's approval of the report of the commissioners.-Moran v. Stewart, 151 S. W. 439.

§ 270 (Mo.App.) An order overruling a motion in arrest of judgment will not be reviewed, in the absence of an exception.-Angel v. City of Portageville, 151 S. W. 192.

§ 272 (Mo.) Parties in a civil case should immediately except to errors of the trial court prejudicing their rights, to enable the court to correct the same.-Moran v. Stewart, 151 S. W. 439.

§ 274 (Mo.) Exceptions to the overruling of objections to commissioners' report held insufficient to present for review error in the approval of the report.-Moran v. Stewart, 151 S. W. 439.

Plaintiff's failure to except to approval of the report of commissioners in dower proceedings held not cured by a motion, made four years later, to set aside such approval, nor by exceptions to the striking of such motion.—Id.

§ 274 (Mo.App.) Where plaintiff did not except to a peremptory instruction for defendant, but took "an involuntary nonsuit with leave to move to set aside," an exception to the overruling of such motion could not relate back to the ruling on the instruction; the nonsuit being in fact voluntary.-Arnold v. Etna Life Ins. Co., 151 S. W. 190.

(D) Motions for New Trial.

§ 297 (Mo.App.) An adverse ruling on a motion to affirm the justice's judgment cannot be reviewed in the absence of a motion for new trial or a rehearing.-Silberberg v. Gitenstein, 151 S. W. 983.

§ 301 (Mo.App.) The error in a judgment on a special tax bill declaring that it should draw 8 per cent, interest appears on the face of the record, and is reviewable, though not complained of in the motion for new trial.-Granite Bituminous Paving Co. v. Parkview Realty & Improvement Co., 151 S. W. 479.

$301 (Ark.) Objections to instructions and to the admission and exclusion of evidence are waived, where the party objecting fails to preserve exceptions to the rulings by assigning them as a ground in his motion for a new trial. -Thomas v. Jackson, 151 S. W. 521.

§ 305 (Mo.App.) Even where there has been a motion for new trial or a rehearing, the denial thereof is not open to review, unless there has been an exception to the ruling.-Silberberg v. Gitenstein, 151 S. W. 983.

VII. REQUISITES AND PROCEEDINGS
FOR TRANSFER OF CAUSE.
(B) Petition or Prayer, Allowance, and
Certificate or Affidavit.

§ 359 (Tenn.) Shannon's Code, 4889, author

cases enumerated therein as a matter of discretion, does not authorize him to allow an appeal from a decree overruling a plea in abatement to his jurisdiction; that not being one of the cases mentioned.-Employers' Indemnity Co. v. Willard, 151 S. W. 1029.

§ 361 (Tex.) A statement merely asking the Supreme Court to take jurisdiction, under Sayles' Ann. Civ. St. 1897, art. 941, subds. 5, 7, and 8, without pointing out the exact statutory grounds of jurisdiction, did not comply with the rules of the Supreme Court.-Edwards v. St. Louis Southwestern Ry. Co. of Texas, 151 S. W. 289.

(C) Payment of Fees or Costs, and Bonds or Other Securities.

§ 374 (Tex.Civ.App.) One bringing action in her individual capacity and as administratrix cannot appeal in her individual capacity without giving a bond, but under Sayles' Ann. Civ. St. 1897, art. 1408, does not have to give bond in her capacity as administratrix.-Casey v. Texarkana & Ft. S. Ry. Co., 151 S. W. 856.

(D) Writ of Error, Citation, or Notice. § 417 (Ark.) Under Kirby's Dig. § 1188, an appeal from an order vacating a default judgment and granting a new trial made in the term at which the judgment was rendered does not lie, unless the notice of appeal contains appellant's assent for judgment against him on the affirmance of the order.-McPherson v. Consolidated Casualty Co., 151 S. W. 283.

$ 456 (Ky.) Where an appeal in an action to restrain the cutting of timber involved difficult questions of law, an injunction dissolved in part by the trial court will be continued pending appeal.-Kentucky Coal & Timber Development Co. v. Carroll Hardwood Lumber Co., 151 S. W. 689.

X. RECORD AND PROCEEDINGS NOT IN RECORD.

(A) Matters to be Shown by Record. 499 (Mo.) The question whether the issues raised by a demurrer were concluded by an adverse ruling on motion to strike cannot be raised on appeal, where the record does not show that it was brought to the attention of the lower court.-Montgomery v. Gahagan, 151

S. W. 453.

$500 (Tex.Civ.App.) Where there is no judgment or record entry showing any ruling on an exception to the petition, such ruling cannot be reviewed on appeal, although preserved by a bill of exceptions.-St. Louis & S. F. R. Co. v. Cartwright, 151 S. W. 630.

§ 501 (Mo.App.) Where no exception to the overruling of a motion for new trial appears in the bill of exceptions, review is confined to the record proper.-Angel v. City of Portageville, 151 S. W. 192.

$ 501 (Mo.App.) A motion for judgment on the pleadings can only be reviewed, when there is an exception thereto duly preserved in a bill

of exceptions.-Hodson v. McAnerney, 151 S. W. 754.

§ 502 (Mo.App.) Unless an exception to the overruling of a motion for new trial appears of record in the bill of exceptions, all inquiry into the proceedings of the trial is closed to the appellate court; and it can only examine the record proper.-Murphy v. Lorwood Cooperage Co., 151 S. W. 191.

$ 511 (Mo.App.) Where the record proper does not show the filing of the bill of exceptions, the bill cannot be reviewed.-Hodson v. McAnerney, 151 S. W. 754.

(B) Scope and Contents of Record. $518 (Mo.) A motion to strike out pleadings if treated as a pure motion must appear in the bill of exceptions, or the ruling thereon is not reviewable.-Parkyne v. Churchill, 151 S. W.

446.

affirm the judgment of a justice cannot be re§ 532 (Mo.App.) The ruling on a motion to viewed, unless the motion and an exception to the ruling is preserved in the bill of exceptions. -Silberberg v. Gitenstein, 151 S. W. 983. (C) Necessity of Bill of Exceptions, Case, or Statement of Facts.

§ 544 (Mo.App.) Where there is no bill of exceptions, the court can only ascertain whether its interference.-Advance Thresher Co. the record proper discloses any legal cause for Speak, 151 S. W. 235.

V.

The record proper includes the verdict and judgment.-Id.

The rule that all matters contained in the record proper may be examined by an appellate court, though there is no bill of exceptions showing a motion in arrest, as modified, requires such a motion as to immaterial errors; but where the errors are material they will be examined on appeal without such motion, and, if fatal, will entitle appellant to a reversal.-Id.

$ 547 (Tex.Civ.App.) In the absence of a statement of facts, findings by the trial court cannot be reviewed.-Cofield v. Supreme Camp of American Woodmen, 151 S. W. 341.

§ 548 (Tenn.) A demurrer to the evidence need not be preserved by bill of exceptions to review a ruling thereon.-King v. Cox, 151 S. W. 58.

mission of testimony cannot be reviewed in the § 548 (Tex.Civ.App.) An objection to the adabsence of a bill of exceptions.-Gamble v. Martin, 151 S. W. 327.

of exceptions showing that testimony mentioned § 548 (Tex. Civ.App.) Where there is no bill in an assignment of error was excluded, the court's action cannot be reviewed.-Walker v. Metropolitan St. Ry. Co., 151 S. W. 1142.

§ 549 (Ky.) Where on appeal instructions given and refused, while copied in the record, were not made a part thereof by bill of exceptions, the reviewing court can only determine whether the pleadings support the verdict.-Madden v. Meehan, 151 S. W. 681.

in the absence of a statement of facts, conclu§ 554 (Tex.Civ.App.) The findings of fact are, sive.-Holloway v. Hall, 151 S. W. 895.

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

§ 560 (Tex.Civ.App.) A statement of facts covering 59 pages, a large part of which consisted entirely of questions and answers, held a violation of district court rules 72-78 (142 S. W. xxii) and Acts 32d Leg. c. 119, § 6, and was therefore subject to a motion to strike.Albrecht v. Lignoski, 151 S. W. 886.

§ 564 (Tex.Civ.App.) Under Acts 32d Leg. c. 119, § 7, a statement filed more than 30 days after adjournment of court without any order having been entered authorizing the same

to be so filed cannot be considered.-Cofield v. Supreme Camp of American Woodmen, 151 S. W. 341.

(E) Abstracts of Record.

§ 581 (Mo.) Matters in the bill of exceptions will not be reviewed, unless it is shown in the abstract of the record proper that a bill of exceptions was actually filed, as well as signed.-Langstaff v. City of Webster Groves, 151 S. W. 456.

Matters required to be presented in a motion for a new trial will not be reviewed, unless it appears from the abstract of the record entry of the court that such motion was filed and passed on.-Id.

§ 584 (Mo.) An abstract which commingles the record proper and matters of exceptions, so that it cannot be determined whether a motion for new trial was preserved in a bill of exceptions, and which under the caption "abstract of record" contains pleadings and the judgment, is fatally defective, and leaves for review only the record proper.-Parkyne v. Churchill, 151 S. W. 446.

$ 597 (Ky.) Under Civ. Code Prac. § 737, and court rule 27 (149 S. W. viii), relating to transcripts on appeal, the entire deposition of a witness, or the entire pleading, must be brought up, where any part of it is brought up.-Dockins v. Dukes, 151 S. W. 679.

$597 (Ky.) On an application to review an order continuing or refusing to continue an injunction pending appeal, the party applying for review must bring to the appellate court a transcript of that part of the record appertaining to the injunction.-Kentucky Coal & Timber Development Co. v. Carroll Hardwood Lumber Co., 151 S. W. 689.

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

$ 621 (Tex.Civ.App.) A transcript upon writ of error cannot be filed after the filing of a motion to affirm on certificate; the appeal having been perfected upon the filing of an appeal bond.-Pitts v. Kane, 151 S. W. 336.

§ 621 (Tex. Civ.App.) An appeal from an order granting a temporary injunction cannot be considered, where the transcript was not filed in the Court of Civil Appeals within 15 days from the entry of record.-Jaynes v. Burch, 151 S. W. 596.

by the trial court's record.-Continental Lumber & Tie Co. v. Wilroy, 151 S. W. 840.

§ 695 (Mo.) Where the testimony of a surveyor who made a survey is meaningless without a plat to which he referred, and the plat is not in the record, the sufficiency of his testimony to support the finding will not be considered.-Strother v. Barrow, 151 S. W. 960.

XI. ASSIGNMENT OF ERRORS.

$719 (Tex.) In Rev. Civ. St. 1911, arts. 1607, 1612, requiring that errors at law not "apparent on the face of the record" be presented by timely assignments of error, the phrase quoted refers to such manifest error as when removed destroys the foundation of the judgment.-Oar v. Davis, 151 S. W. 794.

Refusal of Court of Civil Appeals to reverse or reform judgment in partition so as to allow life estate to a defendant who had made no claim for same held not an error of law apparent on the face of the record to which no timely assignment of error would be essential. -Id.

$719 (Tex.Civ.App.) The error in allowing an amendment to a pleading is not error apparent of record which must be considered without assignment of error, where the amendment is only made to appear by motion to correct the record.-Gordon v. State, 151 S. W. 867.

$719 (Tex.Civ.App.) Under Rule 24 for the Courts of Civil Appeals (142 S. W. xii), requiring assignments of error to distinctly specify the grounds of error, an objection to an instruction as to the degree of care due from the defendant carrier toward plaintiff cannot be reviewed in the absence of an assignment thereon; such error not being fundamental.Walker v. Metropolitan St. Ry. Co., 151 S. W. 1142.

§ 728 (Tex. Civ.App.) Error in overruling objections to questions cannot be held prejudicial, where appellant's brief and assignments of error do not show what answers were made.Western Union Telegraph Co. v. Vance, 151 S. W. 904.

The exclusion of a question cannot be held prejudicial to appellant where the assignment of error does not show what witness' answer would have been.-Id.

$732 (Tex.Civ.App.) An assignment of error that the court erred in denying a new trial for reasons in the bill of exceptions, based on errors in the charge, cannot be considered, because not specifying the grounds of error relied on, as required by Rev. St. 1895, art. 1018, and

§ 635 (Tex.Civ.App.) An appeal from a refusal to retax costs will be dismissed, where the record contains nothing to show jurisdiction to entertain the appeal.-Smith v. Jordan, 151 S. W. 1177.

§ 639 (Mo.) Where the abstract is proper as to the pleadings and judgment, the appeal will not be dismissed because of defects in the abstract.-Parkyne v. Churchill, 151 S. W. 446. $655 (Tex.Civ.App.) The district court has jurisdiction to correct on motion the record on appeal by striking therefrom conclusions of fact and law not signed and filed within the time allowed by law.-Houston Oil Co. of Texas v. Powell, 151 S. W. 887.

(K) Questions Presented for Review. § 671 (Ky.) Where on appeal the record does not contain the evidence, the reviewing court can only determine whether the pleadings support the verdict.-Madden v. Meehan, 151 S. W. 681.

§ 671 (Tex.Civ.App.) In determining whether an application for a continuance was properly overruled, the appellate court can only consider

Houston & T. C. R. Co., 151 S. W. 838.

$742 (Tex.Civ.App.) An assignment of error, not followed by a statement, will not be considered.-International Order of Twelve Knights & Daughters of Tabor v. Wilson, 151 S. W. 320.

§ 742 (Tex.Civ.App.) A reviewing court under rules for the Courts of Civil Appeals (rule No. 32 [142 S. W. xiii]), relating to briefs, need not consider an assignment of error containing three separate and distinct propositions of law.-Ft. Worth & D. C. Ry. Co. v. Wininger, 151 S. W. 586.

§ 742 (Tex.Civ.App.) An assignment of error followed by a proposition which merely refers to propositions found under other assignments of error, in violation of court rules 30, 33 (142 S. W. xii), will not be considered.-Sullivan v. Houston & T. C. R. Co., 151 S. W. 835. Where the proposition subjoined to an assignment of error complaining of a paragraph of the charge for failing to instruct on matters raised by the evidence does not disclose the evidence, the assignment cannot be considered, in view of court rule 31 (142 S. W. xiii).—Id.

Where the propositions following an assignment of error complaining of the giving of a

alleged errors, and the subjoined statements do not disclose error, the assignment will not be considered.-Id.

$742 (Tex.Civ.App.) Appellee's brief, in submitting four "counterpropositions to all of appellant's assignments" of error, violated the Court of Civil Appeals rule.-Ft. Worth & D. C. Ry. Co. v. Southern Kansas Ry. Co., 151 S. W. 850.

§ 742 (Tex.Civ.App.) Where assignments of error are submitted as propositions, and as such they are multifarious, they will not be considered on appeal.-Chambers v. Wyatt, 151 S. W. 864.

$ 742 (Tex.Civ.App.) Rulings on evidence will not be reviewed where appellant's brief fails to disclose the grounds of objection made at the trial.-Lee v. Simmons, 151 S. W. 868.

§ 742 (Tex.Civ.App.) Where an assignment of error only raised the question that there was no evidence to support the verdict, a proposition, if intended to attack the verdict as against the preponderance of the evidence, was not germane to the assignment.-Thompson Bros. Lumber Co. v. Longini, 151 S. W. 888.

§ 742 (Tex.Civ.App.) Error in admitting evidence cannot be reviewed, where there is no showing in the assignments of error that witness gave the objectionable testimony, except certain statements from the motion for a new trial.-Western Union Telegraph Co. v. Vance, 151 S. W. 904.

The office of a proposition is to specifically present the question of law intended to be covered by the assignment, and the appellate court cannot consider any question not suggested by a proposition if the assignment is not relied on as such, nor need appellee answer such questions.-Id.

§ 742 (Tex.Civ.App.) Assignments of error submitted as propositions, without disclosing the point, as required by Courts of Civil Ap peals Rule 30 (142 S. W. xiii), will not be Crow, 151 S. W.

considered.-Anderson

1080.

V.

So far as the propositions under an assignment of error to the giving of an instruction state objections not embraced in the assignment of error, they will not be considered. Id. Assignments of error cannot be considered when the only statement under them is, "See statement under 15th assignment of error," if that statement refers to a question in no way relating to the questions presented by the particular assignments.-Id.

$750 (Tex.Civ.App.) An assignment of error that the verdict was against the preponderance of the evidence did not present the question whether it was excessive.-Freeman v. Morales,

151 S. W. 644.

$750 (Tex.Civ.App.) An assignment of error that the petition does not authorize the judgment does not raise the question of the sufficiency of service of process.-First Bank of Springtown v. Hill, 151 S. W. 652.

$750 (Tex.Civ.App.) Assignment of error that cause of action was barred by limitations, and there being no evidence to the contrary, the verdict and judgment was against the preponderance of the evidence, held to raise only the question whether the undisputed evidence showed that the cause was barred.-Thompson Bros. Lumber Co. v. Longini, 151 S. W. 888.

§ 750 (Tex.Civ.App.) An assignment of error in refusing a requested charge does not present

$756 (Tex.Civ.App.) A brief containing 221⁄2 pages of double-spaced typewritten matter on paper of letter size, which, if single-spaced, would not have contained over 12 pages of letter size. held not to violate Act April 8, 1909 (Laws 31st Leg. [1st Called Sess.] c. 6), or rule 37, as amended October 12, 1912 (see Amendment of Rules, 149 S. W. x), providing that briefs, if written, shall not exceed 15 pages.-Powell v. Stephens, 151 S. W. 333.

$757 (Tex.Civ.App.) Assignments of error complaining of the refusal of special charges will not be considered where the charges are not copied in appellant's brief, nor reference made to the page of the record where they can be found.-Armstrong Packing Co. v. Clem, 151 S. W. 576.

§ 759 (Tex.Civ.App.) It is a valid objection to the consideration of an assignment of error that only part of it is copied in the brief.Knox v. Robbins, 151 S. W. 1134.

fails to file brief, and no fundamental error $773 (Tex.Civ.App.) Where plaintiff in error v. Dozier, 151 S. W. 656. appears, the judgment will be affirmed.-Moon

§ 773 (Tex.Civ.App.) The court may dismiss ing into the record where appellant's brief is an appeal for want of prosecution without looknot filed in time, and there is no agreement waiving the statutory requirement.-Gordon v. State, 151 S. W. 867.

XIII. DISMISSAL, WITHDRAWAL, OR

ABANDONMENT.

§ 777 (Mo.) Where parties file a stipulation reciting that the case has been fully settled, and that an order of dismissal at the will be dismissed.-Mathis v. Wabash R. Co., cost of appellant may be entered, the appeal 151 S. W. 421.

§ 781 (Ky.) Where a wife appealed from the judgment in her action for divorce, and, pending her appeal, the defendant died, leaving the widow with rights in his estate on renouncing the provisions of the will, so that only a moot question was presented, the appeal will be dismissed.-Barger v. Barger, 151 S. W. 406.

§ 807 (Tex.Civ.App.) Where a suit was dismissed because the court did not know of stipulation to continue from term to term until both parties were ready for trial, the court in its discretion could reinstate the Southern Pac. Co. v. Higgins Oil & Fuel Co., 151 S. W. 1161.

case.

XV. HEARING AND REHEARING.

$835 (Mo.) Under Supreme Court rule No. 15 (73 S. W. vi), requiring that the briefs shall contain the points and authorities relied on, respondent cannot for the first time on rehearing assert that the order of the trial court granting it a new trial was correct because the damages were excessive.-Honea v. St. Louis, I. M. & S. Ry. Co., 151 S. W. 119.

§ 835 (Tex.Civ.App.) Under Court of Civil Appeals Rule 22 (142 S. W. xii), requiring the parties before submission to see that the record is properly prepared, one may not for purpose of rehearing have considered a certified copy of a judgment not shown by the transcript of