(186 N.W.)

The defendant testified that, if he had | ant, especially during the period of the draft, Will charged up with six cows in February, to convey these premises to his son William 1919, he owned them, and that, if he had him Henry. He never did convey them, nor is charged with seven cows, he owned them, there any evidence of any negotiations leadand they were on the place. Upon the deathing up to or amounting to a contract between of William Henry the defendant took pos- father and son. That the father was presession of all the personal property.

After Sand was appointed administrator he made a demand upon the defendant for a performance of the alleged contract and the possession of the personal property, and the defendant refused to convey and denied that there was a contract. We shall not state the facts relating to the personal property, as we deem it not material upon the issue presented here.

disposed to make some such disposition of his property as is indicated by the statement in his account book seems to be established, but we find no evidence of record that he ever contracted to do so. There may have been some tacit understanding between them, but there is nothing that raises that understanding to the dignity of a contract.

[2] It is urged here that the court erred in dismissing the complaint as to the person[1] The question presented here is: Are al property. That there was a clear misthe findings of the court against the great joinder of actions in this case seems apparent. weight and clear preponderance of the evi-There was an action on behalf of the widow dence, for, if the facts are as found by the and the heir to compel specific performance. trial court, no right to specific performance A part of the cause of the action was the on behalf of the plaintiffs, or any of them, right of the administrator to recover the exists. We have set out the main facts relied value of the personal property of the deupon by the plaintiffs in this action to susceased. Under section 2602, Wis. Stats., all tain their contention. If it be conceded for sake of argument that the trial court was in persons having an interest in the subject of error (we do not so find) in holding that such manded may be joined as plaintiffs, but it is the action and in obtaining the relief depossession as William Henry Weinzirl had was under and by virtue of the lease made required by section 2647 that, while the between William Henry and his brothers plaintiff may bring in the same complaint with the father, Henry Weinzirl, neverthe- several causes of action, "the causes of acless the record is barren of any evidence tion so united must affect all the parties to which shows that the minds of the parties the action and not require different places of ever met upon the terms of a contract. He trial, and must be stated separately." This may have gone into possession under the does not authorize the joining of two sepaterms of the lease; himself and brothers rate independent causes of action between with the father simply taking over the prop-different parties, one of which is an action erty when the Rodewald lease expired. in equity to compel specific performance of There is nothing to show that he went into a contract, and the other an action for conpossession under the alleged contract. There version for the recovery of personal propis no evidence in the record which shows, erty. Midland Terra Cotta Co. v. Illinois or tends to show, the assent of William Surety Co., 163 Wis. 190, 157 N. W. 785; Henry to the claimed contract. The state- Tyre v. Krug, 159 Wis. 39, 149 N. W. 718. ments and admissions of the defendant indi- L. R. A. 1915C, 624. cate a willingness on the part of the defend- Judgment affirmed.

END OF CASES IN VOL. 186

INDEX-DIGEST

KEY NUMBER SYSTEM)

THIS IS A KEY-NUMBER INDEX

Supplements the Decennial Digests, the Key-Number Series and
Prior Reporter Volume Index-Digests

LIABILITY.

ADVERSE POSSESSION.

I. NATURE AND REQUISITES.
(F) Hostile Character of Possession.

41 (Iowa) Assignment of prior judgment.62(3), (S.D.) Possession of land by hus-
subsequently reversed, held not to affect right band held not adverse to children of wife.---
Hofteizer v. Prange, 963.
to maintain action.-Shuck v. Conway, 858.

ACCORD AND SATISFACTION.

See Compromise and Settlement.

11(2) (S.D.) If acceptance of part per-
formance as extinguishing obligation is within
statute, consideration is unnecessary.-Adams
v. Morehead, 830.

27 (Iowa) Whether receipt was full and
complete settlement for jury under all the evi-
dence.-Farr v. Mackie Motors Co., 52.

ACTION.

II. OPERATION AND EFFECT.

(A) Extent of Possession.

101 (Minn.) Possession of separate tract
of uninclosed farm land does not extend rights
to adjacent tract, in absence of color of title.-
Florance v. Goslin, 691.

Possession of uninclosed land limited to tract
actually occupied.-Id.

No limitation of possession to tract actually
occupied, where color of title and dominion over
larger tract.-Id.

AGENCY.

See Abatement and Revival; Dismissal and See Principal and Agent.

Nonsuit.

II. NATURE AND FORM.

ALIENATING AFFECTIONS.

ALIENS.

32 (S.D.) Taxpayers' proceeding to avoid See Husband and Wife, 325–335.
formation of consolidated district may be re-
garded as in nature of quo warranto, though in-
junction is also sought.-Hines v. Sumner, 116.
III. JOINDER, SPLITTING, CONSOLIDA-
TION, AND SEVERANCE.

45(1) (Neb.) Petition for rescission and
return of purchase price stated but one cause.
-Phelps v. Shuck, 313.

46 (Wis.) Statutes held not to authorize
joinder of suit for specific performance with
claim for converting personal property.-Wein-
zirl v. Weinzirl, 1021.

60 (Iowa) Plaintiff properly required to
separate causes of action for negligence and
breach of contract against different defendants.
-Waters v. Sioux City, 451.

IV. COMMENCEMENT, PROSECUTION,
AND TERMINATION.

69 (Mirn.) That obligation may grow out of
pending equity suit is no ground for stay of
action on note, where answer does not allege
plaintiff's insolvency.-Naftalin
Holding Co., 128.

V. La Salle

ADJOINING LANDOWNERS.

See Boundaries.

ADMINISTRATION.

See Executors and Administrators.

ADMIRALTY.

See Shipping.

186 N.W.-65

(1025)

APPEAL AND ERROR.

request for specific instruction.-Maguire v.
Wm. Grettenberg Grain Co., 644.

See Courts, 204-207; Criminal Law,
1023-1189; Exceptions, Bill of.

For review of rulings in particular actions or gins v. Chicago, M. & St. P. Ry. Co., 856.
proceedings, see also the various specific

ics.

216(2) (Iowa) Incomplete instruction must
be met by request for fuller instruction.-Rig-
top-216(2) (Minn.) Instruction held not basis
for reversal in absence of request to modify or
amplify.-Carlson v. Kroeger, 705.

1. NATURE AND FORM OF REMEDY.

14(2) (Minn.) Defeated defendant after re-
mand held entitled to review decision on appeal.
-Ricker v. J. L. Owens Co., 702.

III. DECISIONS REVIEWABLE.
(D) Finality of Determination.
70(3) (Iowa) Denial of motion to strike
amended petition is not appealable.-Goode v.
Adams Express Co., 68.

78(3) (Iowa) Right of appeal from ruling
on demurrer depends on election to stand
thereon.-Hansen v. Independent School Dist.
of Le Mars, 922.

(E) Nature, Scope, and Effect of Decision.
106 (Iowa) Ruling on motion for continu-
ance not appealable order.-Cavanagh v. O'Con-
.nor, 907.

106 (Wis.) Ruling on change of venue not
appealable.-Brust v. First Nat. Bank, 214.
Incorporating statutory requirement for new
trial does not make venue order appealable.
-Id.

V. PRESENTATION

230 (Minn.) Failure to instruct on burden
of proof held not ground for new trial in ab-
sence of timely request.-Rennie v. Skellett Co.,
130.

231 (9) (Iowa) Blanket objection to in-
struction as not clear and concise too general.
-Maguire v. Wm. Grettenberg Grain Co., 644.
237 (5) (lowa) Propriety of refusal of di-
rected verdict will not be considered, in ab-
sence of motion therefor.-Coleman v. Iowa Ry.
& Light Co., 642.

237(5) (Minn.) Directed verdict cannot be
granted on appeal where not moved for below.
Flesher v. St. Paul Apartment House Co.,

232.

238 (2) (Minn.) One not moving for direct-
ed verdict cannot claim error for refusal of
judgment notwithstanding verdict.-Spangen-
berg v. Christian, 700.

242 (2) (Iowa) No complaint in absence of
ruling on motion.-Henry v. Henry, 639.

242(4) (Iowa) No complaint in absence of
ruling on objections to evidence.-Henry v. Hen-
ry, 639.
(C) Exceptions.

263(1) (Iowa) Instruction not reviewed in
AND RESERVATION absence of exception.-Remington v. Machamer,

IN LOWER COURT OF GROUNDS
OF REVIEW.

32.

instruction

263(1) (lowa) No complaint of charge in
(A) Issues and Questions in Lower Court. absence of proper exceptions.-Granby v. Fried-
169 (Iowa) New issue cannot be tendered man, 628.
on appeal.-Security Sav. Bank v. Capp, 927.273(5) (Iowa) Objection to
171 (1) (Iowa) Judgment not reversed on will not be considered, where exceptions were
theory other than that on which case was tried. not sufficiently specific.-Kiple v. Incorporated
Town of Clermont, 889.
-Pace v. Zellmer, 420.
273(6) (Iowa) Exception to instruction in-

on

171(1) (lowa) Trial finding, correct
theory pursued by parties, must stand.-Se- sufficient.-Remington v. Machamer, 32.
curity Sav. Bank v. Capp, 927.

having assumed
171 (3) (Neb.) Parties
pleadings to raise issue, cannot complain of
insufficiency of pleadings to raise issue for first
time on appeal.--Auld v. Walker, 1008.

172(1)(Wis.) Claim for salary not raised
in trial court cannot be used as a ground for
reversal.-Becker v. Green County, 584.

(D) Motions for New Trial.
301 (Neb.) Error in instruction must be in-
cluded in motion for new trial.-First State
Bank of Whitman v. Ingrum, 334.

VII. REQUISITES AND PROCEEDINGS
FOR TRANSFER OF CAUSE.

173(4) (Iowa) Client held not entitled on (C) Payment of Fees or Costs, and Bonds
or Other Securities.
appeal to insist that amount of attorney's fee
should have been submitted to arbitration.-My-385 (2) (S.D.) Appellant is not required to
sign appeal bond.-Palmer v. Baker, 951.
erly v. Lowery, 881.
175 (Iowa) Issues voluntarily litigated 394(2) (N.D.) Single undertaking to cov-
er two appeals held sufficient.-Kennelly
treated as properly before Supreme Court on
Northern Pac. Ry. Co., 548.
appeal.-Elson v. Sullivan, 769.

175 (Neb.) Issues framed in trial court
binding on appeal.-Foster v. City of Lincoln,
317.

(B) Objections and Motions, and Rulings

Thereon.

V.

(D) Writ of Error, Citation, or Notice.
418 (Iowa) Notice of appeal from interloc-
utory ruling should specify ruling.-Goode v.
Adams Express Co., 68.

IX. SUPERSEDEAS OR STAY OF PRO-
CEEDINGS.

458 (3) (Mich.) Mandatory injunction stay-
should ed pending appeal.-Schwartz v. Driscoll, 522.

184 (Iowa) Objection that
have been tried at law must be made below.-
Wilson v. Mid-West State Bank, 891.

X. RECORD AND PROCEEDINGS

RECORD.

NOT IN

(A) Matters to be Shown by Record.

204(1) (Neb.) To be available, erroneous
admission of evidence must be objected or ex-
cepted to below.-Ryne v. Liebers Farm Equip-500 (3) (Iowa) Record showing no rulings

ment Co.. 358.

209 (2) (Wis.) Question of failure of trus-
tee in bankruptcy to show assets of estate were
insufficient to meet liabilities cannot be first
raised on appeal.-Fernhaber v. Cream City
Cartage Co., 175.

216(1) (Minn.) Error cannot be assigned
for failure to instruct in absence of request.-
Spangenberg v. Christian, 700.

216(2) (lowa) Party may not complain of
failure to instruct specifically in the absence of

except entry of judgment, no basis for con-
sideration of question of burden of proof.-
lowa City Produce Co. v. Bell-Jones Co., 445.

501 (4) (Iowa) Complaint of instructions
does not require reversal, in absence of excep-
tions thereto.-Welpton v. Marshall, 854.

(B) Scope and Contents of Record.
516 (Neb.) Evidence on motion to correct
journal entry, not preserved in bill of excep

For cases in Dec.Dig. & Am,Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER
tions, will not be considered.-Amos v. Eichen-803 (Iowa) Dismissal of appeal leaves de-
berger, 330.
cree to stand, except as challenged by cross-
appeal.-Blankenhorn v. Edgar, 893.

(C) Necessity of Bill of Exceptions, Case,
or Statement of Facts.

vey, 323.

XV. HEARING AND REHEARING.

544(3) (Neb.) In absence of bill of excep-833 (3) (Iowa) Notice of intention to peti-
tions, court may only consider sufficiency of tion for rehearing must be served within 30
pleadings to sustain judgment.-Reigle v. Ca- days.-Arends v. Frerichs, 457.
Time not extended for service of notice of
544 (3) (N.D.) In the absence of a settled intention to petition for rehearing after ex-
case, the Supreme Court may determine wheth-piration of 30 days.-Id.
er the conclusions are warranted by the find-833 (5) (S.D.) Supreme Court on petition
ings and review the judgment roll.-Ryan v. for rehearing will withdraw former opinion af-
Bremseth, 818.
firming judgment, and reverse judgment where
of opinion that evidence does not sustain judg-
ment.-Lynn v. Schirber, 570.

555 (Mich.) On the dismissal of a bill of
exceptions, the writ need not be dismissed.-
Miley v. Grand Traverse Cireuit Judge, 398.

(E) Abstracts of Record.

581 (6) (Iowa) Complaint of instructions
does not require reversal where not set out in
abstract.-Welpton v. Marshall, 854.

590 (Iowa) Amended abstract presumed
to be correct if not denied.-Kubli v. First Nat.
Bank, 421.

(1)

Defects, Objections, Amendment, and
Correction.
639(1) (Iowa) Defect in record disregard-
ed if not material.-Kubli v. First Nat. Bank,
421.

(K) Questions Presented for Review.
688(1) (Iowa) Record held not to entitle
defendant to review of refusal to reopen the
case. Welpton v. Marshall, 854.

835(2) (Iowa) Party may not depart from
theory on which his case was tried.-Scott v.
Habinck, 41.

XVI. REVIEW.

(A) Scope and Extent in General.
840 (2) (S.D.) Where record does not show
whether leave of court was granted to bring
action, Supreme Court should not inquire into
question. Hines v. Sumner, 116.

843(2) (Iowa) Right to relief not claimed
by plaintiff need not be considered.-Zaiser v.
Consolidated Independent School Dist. of Mon-
damin, Harrison County, 66.

843 (2) (Minn.) Whether servant's contrib-
utory negligence can be asserted by third per-
son sued by master to recover compensation
paid does not arise where sole cause was third
party's negligence.-Thornton Bros. Co. v.
Northern States Power Co., 863.

692(1)(Neb.) To predicate error on rul-843 (2) (N.D.) Whether answer submitted
ing refusing to permit witness to testify, rec- counterclaim arising after action begun held
ord must show offer to prove facts sought.- unnecessary to determine on appeal.-State
Bank of Bowman v. Nelson, 766.
Cox v. Kee, 974.
695(2) (Iowa) Abstract need not present850(1) (Neb.) In absence of special find-
evidence in literal entirety.-Kubli v. First Nat. ings, court may only consider sufficiency of
pleadings to sustain judgment.-Reigle v. Ca-
Bank, 421.
vey, 323.

XI. ASSIGNMENT OF ERRORS.

863 (Iowa) On appeal from grant of tem-
porary injunction plaintiff may object to con-
730(1) (Iowa) Assignments of error to in-sideration of anything else.-Van Horn v. City
structions held too general.-Spiker v. City of of Des Moines, 193.
Ottumwa, 465.

732 (Iowa) General assignment to denial
of new trial insufficient.-Hanson v. Jeffries,

419.

733 (Neb.) Assignment of errors not suffi-
ciently specific cannot be considered.-Sellers
v. Johnson, 989.

867(1) (Minn.) Refusal to grant new trial
for newly discovered evidence properly alleged
on appeal from its denial.-Ricker v. J. L.
Owens Co., 702.

(B) Interlocutory, Collateral, and Supple-
mentary Proceedings and Questions.

736 (S.D.) Each error to be separately as-870 (2) (Iowa) Ruling on motion for con-
signed.-Hofteizer v. Prange, 963.
tinuance reviewable.-Cavanagh v. O'Connor,
907.

XII. BRIEFS.

(C) Parties Entitled to Allege Error.
878 (6) (Iowa) Party cannot complain of an
adjudication from which he did not appeal.-
Scott v. Habinck, 41.

760 (2) (Neb.) Assignment not pointing out
pages in abstract or bill of exceptions where
the challenged ruling may be found insufficient.
-Edwards v. Hastings Distributing Co., 980.
766 (S.D.) Court will not dismiss because 880 (3) (Wis.) Appellant held not concerned
appellants' brief contains no assignment of er- with disposition of case as to fellow defendant.
ror, where there is no question as to error com--Kausch v. Chicago, Milwaukee Electric Ry.
plained of.-Western Surety Co. v. Schroeder,

780(1) (Iowa) Appeal not dismissed be-
cause attorney who assumed to act for appel-
lant in taking appeal had not been admitted.
Elson v. Sullivan, 769.

781(1) (Iowa) Questions not determined
merely to settle rights to costs.-McGovern v.
McGovern, 60.

Questions rendered moot by evidence subse-
quent to decree not determined.-Id.

781 (2) (lowa) Will disposing of land in
controversy renders case moot, though will was
not in evidence below.-MeGovern v. McGovern,
60:

799 (Iowa) Motion to dismiss appeal may
be based on facts outside record shown by af-
fidavit.-McGovern v. McGovern, 60.

Co., 257.

882(12) (lowa) No complaint of invited er-
ror on instruction.-Remington v. Machamer,
32.

882(18) (Minn.) Defendant cannot com-
plain that false issue tendered was so charac-
terized by court.-Naftalin v. La Salle Holding
Co., 128.

(D) Amendments, Additional Proofs, and

Trial of Cause Anew.

893(2) (Iowa) Questions of fact in suit to
cancel deed determined de novo.-Sutherland
State Bank v. Furgason, 200.

895(1) (Mich.) On trial de novo on appeal
from decree, court must be governed by rec-
ord.-Zimmerman v. Feldman, 495.

895(2) (Neb.) Supreme Court will consid-
er trial court's findings in determining which
witnesses are most worthy of belief.-Dold v.
Munsor, 353.