Opinion of the Court-Ailshie, Presiding J.
told the defendant that he had the money to pay the debt and that he was ready and willing to do so.
The judgment will be modified to this extent, and the cause is hereby remanded, with direction to the trial court to modify the judgment so as to require the costs incurred in the trial. court to be paid by the plaintiff, respondent in this court. Costs of appeal awarded in favor of respondent.
1. Under the provisions of sec. 4043, Rev. Codes, title to land
by adverse possession cannot be established under the provisions of
the Revised Statutes unless it shall be shown that the land has been
occupied and claimed for a period of five years continuously, and
the party or persons, their predecessors and grantors, have paid all
taxes, state, county and municipal, which have been levied and
assessed upon said land according to law. (Northern Pac. Ry. Co.
v. Pyle, 3.)
2. Held, that the evidence is sufficient to show that the respond-
ents paid all taxes that had been assessed against the land in dis-
pute according to law, from 1902 to 1907. (Northern Pac. Ry. Co.
3. The pendency of a homestead contest in the land department
of the United States does not suspend the running of the statute of
limitations. (Northern Pac. Ry. Co. v. Pyle, 3.)
1. The title to a case on appeal as the same appears upon the title
page of the transcript, together with the respective names of ap-
pellant and respondent, considered and held to be a sufficient com-
pliance with the rules of the court to entitle the case to a hearing.
(Johnston v. Bronson, 449.)
2. Where the appeal from the judgment is not taken within one
year and is dismissed, and the appellant has appealed from an order
denying a motion for a new trial, and the record on appeal contains
no certificate showing the papers, records and files that were used
and considered by the trial judge on the hearing of the motion, and a
motion is made to dismiss the appeal on the ground that the record
does not contain the judgment-roll, held, that the appellate court is
unable to determine from the record whether or not the judgment-
roll was used on the hearing in the lower court or what papers were
used on the hearing in the lower court, and is consequently unable
to tell what papers and files and records should be contained in the
transcript, as provided for in sec. 4443, Rev. Codes, and that the
appeal should accordingly be dismissed. (Johnston v. Bronson,
449.)
APPEAL AND ERROR (Continued).
3. Where one of several defendants takes an appeal and the
attorneys for such defendant sign a notice of appeal as "attorneys
for defendants," and it appears throughout the record that there
was a great number of defendants in the case and that they were
represented by various attorneys, and that the attorneys who pros-
ecuted the appeal were attorneys for only one defendant and the
notice of appeal was not served on the other defendants, who did
not in fact appeal, held, that the appeal was only prosecuted on be-
half of the one defendant, and that the notice of appeal has not
been served on the adverse parties, and that the appeal should be
dismissed. (Johnston v. Bronson, 449.)
4. A minute order denying the relief prayed for in the complaint
is not a judgment from which an appeal can be taken under see.
4807, Rev. Codes. (Bissing v. Bissing, 777.)
5. An order entered on the minutes denying the relief prayed
for is no part of the judgment-roll and can be brought before the
supreme court only by incorporation in a bill of exceptions. (Biss-
ing v. Bissing, 777.)
6. In a default case the judgment-roll under the express provi-
sions of sec. 4456, Rev. Codes, subd. 1, should contain the summons
with the affidavit of proof of service, and the complaint with a
memorandum indorsed thereon that the default of the defendant
in not answering was entered, and a copy of the judgment. (Biss-
ing v. Bissing, 777.)
7. Where an appeal is taken from the judgment on the judgment-
roll alone, and where the defendant has answered (subd. 2 of sec.
4456, Rev. Codes, as amended by Sess. Laws 1909, p. 76), the judg-
ment-roll consists of the pleadings, a copy of the verdict of the jury
or the findings of the court or referee, a copy of any order made on
demurrer or relating to a change of parties, and a copy of the judg-
ment. Bills of exception are not made a part of the judgment-roll.
(Haas v. Teters, 182.)
8. Under the provisions of sec. 4818, Rev. Codes, on an appeal
from a final judgment the appellant is required to furnish the court
with a copy of the notice of appeal, of the judgment-roll and of any
bill of exceptions or statement in the case upon which the appellant
relies; hence a bill of exceptions found in the transcript is properly
there when appellant relies on it upon his appeal. (Haas v. Teters,
182.)
9. Held, that no reversible error appears on the face of the tran-
script. (Haas v. Teters, 182.)
10. An objection that the complaint does not state facts sufficient
to constitute a cause of action cannot be reviewed upon an appeal
from an order denying a motion for a new trial. (Citing Naylor v.
APPEAL AND ERROR (Continued).
Lewiston etc. Ry. Co., 14 Ida. 789, 96 Pac. 573.) (Maw v. Coast
Lumber Co., 396.)
11. Secs. 4225 and 4226, Rev. Codes, empower the district court
to afford relief to a defendant who, during the trial or at the con-
clusion thereof, contends that he has been misled by the allegations
of the complaint, and such relief should be sought in that forum. If
the lower court denies such relief, an exception may be duly saved,
and the defendant will then be in a position to present the matter
on appeal. The question cannot be raised for the first time on
appeal. (Citing West v. Johnson, 15 Ida. 681, 99 Pac. 709, and
Crowley v. Croesus Gold etc. Co., 12 Ida. 530, 86 Pac. 536.) (Maw
v. Coast Lumber Co., 396.)
12. The fact that the trial court gives a wrong reason for strik-
ing out certain evidence is not a reason for reversal of the case.
(Valentine v. Rosenhaupt, 130.)
13. Where only documentary evidence is before the court below,
and it renders its decision upon such evidence alone, this court will
make an original examination of the evidence as contained in the
record, and will exercise its judgment and discretion, the same as
if the case were being presented to it in the first instance. (Par-
sons v. Wrble, 619.)
Undertaking-Money Deposit-Check.
14. Where a justice of the peace receives and accepts a certified
check in place and stead of a money deposit on an appeal from
such court to the district court, and no effort has been made to
cash the check and no contention is made that the bank is insolvent
or that the check could not be cashed, held, that the deposit of the
check with the officer was a substantial compliance with the statute,
sec. 4778, which authorizes a money deposit in place and stead of
an undertaking on appeal, and held, further, that it was an error
on the part of the trial court to dismiss an appeal under such
circumstances. (Smith v. Field, 558.)
Technical Errors not Affecting Substantial Rights.
15. Under the provisions of sec. 4231, Rev. Codes, where technical
errors or defects in the proceedings or trial occur which do not affect
the substantial rights of the parties, the judgment must not be re-
versed by reason of such errors or defects. (Rowley v. Stack-Gibbs
Lumber Co., 107.)
16. Held, that no substantial rights of the appellant have been
affected by the technical errors that appear in the record. (Rowley
v. Stack-Gibbs Lumber Co., 107.)
17. Secs. 4 and 4231, Rev. Codes, command that the statutes of
this state should be liberally construed with a view to effect their
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