INDEX. ABATEMENT AND REVIVAL. See CRIMINAL LAW, 1. GARNISHMENT, 1. 1. A proceeding to revive an action as to a deceased party is a special proceeding, and a final order granting or refusing the request is appealable, but an intermediate order contemplating further judicial action in the matter is not. Voss v. Stoll, 267 2. A motion to revive an action as to a deceased party is addressed to the sound discretion of the court. Ibid. 3. When it is not reasonably necessary to revive an action as to a deceased party for the due protection of the one requesting the revival, the request should not be granted. Ibid. ABUSE OF DISCRETION. See ACTION, 3. APPEAL, 8. JUDGMENT, 7. PLEADING, 6. SPECIFIC PERFORMANCE, 1. ACCEPTANCE. See ARBITRATION AND AWARD, 6. CONTRACTS,. 2, 3. EMINENT DOMAIN, 2. MINES AND MINERALS, 1. SALES, 1. ACCIDENT INSURANCE. See INSURANCE, 17-20. ACCOMMODATION PAPER. See BILLS AND NOTES, 1-4. ACCOUNTING. See PARTNERSHIP. RECEIVERS. How entitled. See GARNISHMENT, 4. Grounds and conditions precedent. See INTOXICATING Liquors, 4. At law or in equity? See CORPORATIONS, 7. INJUNCTION, 1. 1. Objection to the joinder in one action of claims on several time checks, if not taken by demurrer or answer, is waived. Bayfield County Bank v. Duluth Log Co. 1 Abatement and revival. See ABATEMENT AND REVIVAL. CRIMINAL LAW, 1. GARNISHMENT, 1. Prosecution. 2. It is the duty of trial courts to discourage protraction of litigation and to refuse their aid to those who negligently or abusively fail to prosecute actions which they commence. Smith v. Carter, 181 3. A judgment of the circuit court dismissing an action for want of prosecution will be reversed only in a clear case of abuse of discretion. Ibid. Dismissal. See ARBITRATION AND AWARD, 3, 4. ADMINISTRATORS. See EXECUTORS AND ADMINISTRATORS. ADMISSIONS. See ARBITRATION AND AWARD, 4. EVIDENCE, 4. PART NERSHIP, 4. AGENCY. See PRINCIPAL AND AGENT. ALCOHOLIC LIQUORS. See INTOXICATING LIQUORS. ALIMONY. See DIVORCE. AMBIGUITIES. See ARBITRATION AND AWARD, 1. CONTRACTS, 7-12. HUSBAND AND WIFE, 3. INSURANCE, 1, 7. UTES, 3. RAILROADS, 15. STAT AMENDMENTS. See PLEADING, 5, 6. MUNICIPAL CORPORATIONS, 1-3. ANSWER. See ACTION, 1. ANTENUPTIAL CONTRACTS. See HUSBAND AND WIFE. APPEAL AND ERROR. Nature and grounds of appellate jurisdiction. See APPEAL, 3. Decisions reviewable: Appealable orders. See ABATEMENT AND REVIVAL, 1. 1. An order merely denying a motion for judgment notwithstanding the verdict is not appealable. Ripon H. Co. v. Haas, 65 2. An order discontinuing an action on plaintiff's motion, and denying defendant's motion for judgment on the merits, is not appealable under subd. 1, sec. 3069, Stats. (1898). Puffer v. Welch, 304 3. The right of appeal is purely statutory, and where the right is not given the court cannot entertain an appeal, even though a refusal to do so may seem to rest upon a technicality. Ibid. Right to review: Persons entitled. See EMINENT DOMAIN, 1. Presentation and reservation in lower court of grounds of review: Issues and questions in lower court. 4. Where the record shows that upon a trial by the court certain testimony was received de bene esse, and does not show that any part thereof which was claimed to be inadmissible was considered by the court, no error affirmatively appears. Donovan v. Hyde, Same: Exceptions. 41 5. A finding of fact by the circuit court to which no exception is taken is a verity on appeal. Kremer v. Arians, Notice of appeal. See GARNISHMENT, 3, 4. Assignments of error. See MASTER AND SERVANT, 25. Printed case and briefs. See COSTS. Review: Estoppel to allege error. See EMINENT DOMAIN, 2. 662 6. Plaintiff cannot complain of the admission of incompetent evidence offered by himself, which showed the nonliability of the defendant, although had such evidence been excluded the other evidence might have established his case. Lippert v. Joseph Schlitz B. Co. Same: Presumptions. 453 7. If necessary to support the verdict, it will be presumed on appeal that the jury were satisfied of the existence of a fact properly before them for determination. Winkler v. Power & M. M. Co. 244 Same: Findings, when disturbed. 8. In a will contest an award of costs against the contestant in the circuit court will not be disturbed on appeal unless there was an abuse of discretion. Donovan v. Hyde, 41 9. Where, under sec. 2858m, Stats. (Laws of 1907, ch. 346), a controverted matter of fact not submitted to the jury in the special verdict is deemed to have been determined by the trial court in conformity with its judgment, such determination will not be disturbed if the evidence is conflicting. Smith v. Reed, 483 10. A verdict reasonably supported by credible evidence and approved by the trial judge will not be disturbed on writ of error merely because there is much in the evidence to discredit it. Sedlack v. State, 589 Same: Opinion of trial judge: Weight. 11. Upon appeal, on the question whether the verdict is supported by the evidence, the opinion of the trial judge, who refused to disturb the verdict, is entitled to weight. Fisher v. Waupaca E. L. & R. Co. Same: Questions considered. See TRIAL, 25. 515 12. Objection to mere matters of form in pleading cannot be made for the first time on appeal. McGovern v. Milwaukee M. Co. 309 Affirmance and reversal: Material and immaterial errors. See AcTION, 3. APPEAL, 4, 8-10. BREACH OF MARRIAGE PROMISE, 2, 5. CONTINUANCE. CORPORATIONS, 10. CRIMINAL LAW, 1. EXECU TORS AND ADMINISTRATORS, 2. INSTRUCTIONS TO JURY, 3, 5-7, 9, 10. JUDGMENT, 7. MASTER AND SERVANT, 8, 9, 13, 24, 25. NEGLIGENCE, 11, 13. NEW TRIAL. PLEADING, 5, 6. RAILROADS, 5. SIGNATURES, 4. SPECIFIC PERFORMANCE, 1. STREET RAILWAYS, 4-6. TRIAL, 6-10, 13. WITNESSES, 1, 2. 13. Immaterial errors and inconsequential defects have been and will be disregarded by this court both in civil and criminal cases, under sec. 2829, Stats. (1898), and under sec. 3072m, Stats. (Laws of 1909, ch. 192). Hack v. State, 346 14. Refusal of the trial court to change the jury's answer to a question in a special verdict will not be held error if there was any credible evidence to support such answer. Smith v. Reed, 483 15. Failure, in charging the jury, to define proximate cause is not error where no specific instruction relating thereto was requested. Fisher v. Waupaca E. L. & R. Co. 515 16. Admission in evidence of the franchise under which a street railway company was operated was not error prejudicial to the company, even if such franchise was admitted in the answer. Ibid. 17. Error in admitting evidence is cured by a direction to the jury to disregard it, unless it appears that notwithstanding such direc tion the appellant was prejudiced by the error. Reversal for insufficient findings: Mandate. Hanson v. 550 18. In an action tried by the court in which there are no findings of fact upon the controverted issues and the record does not support the judgment for defendant but shows an incomplete trial and many things necessary of explanation to enable the court to do justice between the parties, the judgment will be reversed and the cause remanded for a new trial. Young v. Miner, 501 Costs. See Costs. APPEALABLE ORDERS. See ABATEMENT AND REVIVAL, 1. APPEAL, 1–3. APPEARANCE. Appearance by a defendant specially for the purpose only of moving that the service of summons be set aside and the action dismissed with costs, does not constitute a general appearance. Milwaukee E. Co. v. Feuchtwanger, APPLIANCES. See MASTER AND SERVANT, 3-11. PHONES. 266 TELEGRAPHS AND TELE APPOINTMENT to office. See CONSTITUTIONAL LAW, 3. APPROVAL. See SALES, 1, 2. ARBITRATION AND AWARD. Submission: Scope and effect. 1. In ascertaining the scope of a submission to arbitration under an ambiguous agreement therefor, the negotiations between the parties and circumstances under which the agreement was made may be considered. Travelers Ins. Co. v. Pierce E. Co. 103 2. Where by an arbitration agreement the parties submit to an auditor the question of the amount due to one of them, involving matters of fact and of law, the jurisdiction of such arbitrator is as broad as that of a court, and his honest conclusion, even though erroneous, within that jurisdiction is as binding upon the parties. Ibid. 3. An agreement to submit to arbitration matters involved in a pending action ipso facto dismisses that action. Ibid. 4. A recital in an arbitration agreement that it is made in consideration of the dismissal of an action amounts to an admission of such dismissal. Ibid. Arbitrators. 5. That the arbitrator was an employee of one of the parties is not a legitimate objection to the award, where both parties knew that fact when they agreed upon him as arbitrator. Travelers Ins. Co. v. Pierce E. Co. 103 Proceedings. 6. Where by an arbitration agreement the amount due plaintiff is to be determined by plaintiff's auditor after inspecting and auditing defendant's books, the plaintiff by sending its auditor to examine the books accepts the agreement and becomes bound to do such acts as will give it full effect; and defendant cannot thereafter object that the agreement is unilateral and without consideration. Travelers Ins. Co. v. Pierce E. Co. 103 7. Where a party to an arbitration agreement was given full opportunity to be present before the arbitrator at all material times and availed himself of such opportunity, he cannot thereafter complain that the agreement failed to provide for notice of hearings and that no notice was in fact given to him or to the other party. Ibid. ARRAIGNMENT. See CRIMINAL LAW, 4. PARTIES, 2. ASSIGNMENTS OF ERROR. See MASTER AND SERVANT, 25. When an attaching creditor takes judgment upon an amended complaint including claims other than those secured by his attachment, he will be deemed to have waived his attachment and to have elected to accept merely the lien and rights resulting from the judgment, even where by reference to the pleadings it can be known definitely what amount of indebtedness secured by the attachment is included in the judgment. Beyer v. Dobeas, 89 ATTORNEY AND CLIENT. Retainer and authority: Stipulations. 1. The general retainer of an attorney in charge of litigation is sufficient to enable him in his honest judgment to control all matters of procedure in the action. Illinois S. Co. v. Warras, 119 2. A stipulation in ejectment that defendant might amend his answer, without costs, after his strict right to do so had expired, and that each party might at the trial prove any title acquired after the commencement of the action, without a discontinuance and without payment of costs, amounted to a mere waiver of the procedure required by sec. 3074, R. S. 1878, and a balancing of the claims for costs (which in this case were nearly equal in amount), and was within the power of the attorneys and binding upon the parties, irrespective of express consent or knowledge of the parties. Ibid. 3. A stipulation cannot be attacked by defendant as lacking mutuality because signed for plaintiff by attorneys other than, and who had not been substituted for, the attorney who signed the summons, where it appears that the attorneys signing had, with consent of the original attorney and with knowledge of defendant's attorney, full authority from plaintiff to conduct the litigation, and had acted as his attorneys; also that the stipulation had been treated as effective by both parties and had been acted upon by defendant to his own advantage. Ibid. 4. The discretion of the trial court to relieve parties from stipulations when improvident and induced by fraud, misunderstand |