INDEX

ACCEPTANCE OF OFFER. See CONTRACT, 3.

ACCOUNTING. See JUDGMENT, 2.

ACTION. See BREACH OF PROMISE, 6; ELECTION OF REMEDY, 1, 2; EXECUTOR AND
ADMINISTRATOR, 6; JUDGMENT, 1, 10, 17; LIBEL AND SLANDER, 2; Ma-
LICIOUS PROSECUTION, 2, 3; NUISANCE; SET-OFF AND COUNTERCLAIM,
1, 2; TORT, 3.

TITLE OF ACTION.

It was a technical error only to entitle the action "Joseph C. Richardson, as
guardian
plaintiff," when the title should have been "Mar-
garet Buckley, an incompetent person, by Joseph C. Richardson, her
guardian." The error may be disregarded or the court below may order
an amendment.

-Richardson v. Kotek, 361, 362.

ADULTERY. See CRIMINAL LAW, 1, 19-21; INDICTMENT AND INFORMATION, 2.

ADVERSE CLAIM. See NEWSPAPER, 2.

OMISSION TO PUBLISH NOTICE OF LIS PENDENS.

1. In an action under section 5817, G. S. 1894, to determine adverse claims to
real property, in which the heirs of a record owner of the land were
made defendants under the designation of "unknown persons" claiming
an interest in the land, it is held, that the failure to publish the notice
of lis pendens as required by section 5818, G. S. 1894, was as to the
unknown defendants fatal to the jurisdiction of the court, and as to
their rights in the property that the judgment rendered in the action
was void.

-Jenson v. Anderson, 199.

2. The failure to publish the notice of lis pendens was not cured by the pub-
lication in connection with the summons of a notice of no personal
claim, which notice did not by itself contain all the information required
by statute to be set forth in the notice of lis pendens.
-Jenson v. Anderson, 200.

535

ADVERSE POSSESSION.

PAYMENT OF TAXES AS EVIDENCE OF.

1. The rule that the payment of taxes by the person claiming title to land by adverse possession is strong evidence in support of his claim of adverse occupancy applies with less force when the land is assessed under a description which includes land with reference to which such person is under legal duty to pay the taxes as actual owner. -Curtiss & Yale Co. v. City of Minneapolis, 344.

2. Where a tract of land is assessed by a particular description, over which extends a public highway, the highway is never excepted from the tax assessment, and it would not do in such a case to hold that the payment of the tax was evidence of an intention to claim title to the highway, to the exclusion of the rights of the public.

-Curtiss & Yale Co. v. City of Minneapolis, 350.

ADVERTISEMENT. See ATTORNEY AND CLIENT, 5, 6, 8, 11.
ADVICE OF COUNSEL. See MALICIOUS PROSECUTION, 7, 8.
AFFIDAVIT. See FRAUDULENT CONVEYANCE, 3; Judgment, 4.

AMENDMENT. See APPEAL and Error, 20.

APPEAL AND ERROR. See JUDGMENT, 9.

DISMISSAL OF APPEAL.

1. A respondent is not entitled to have an appeal dismissed on the ground that the court was without jurisdiction to render the decision appealed from.

-State ex rel. v. George, 59.

CHANGE OF THEORY.

See MANDAMUS.

REVIEW.

2. Whether, on a motion for judgment notwithstanding the verdict, defendant may raise the point that the complaint does not state a cause of action, and may raise the same point on appeal from the judgment, was not decided.

-Bertram v. Bemidji Brewing Co. 78.

QUESTION NOT REVIEWABLE BECAUSE OF PARTIAL RECORD.

3. A ruling of the trial court excluding a document from evidence cannot be reviewed when the document is not in the record and there is no other testimony to show its materiality.

-Schall v. Northland Motor Car Co. 214.

APPEAL AND ERROR-Continued.

SAME BECAUSE NOT PRESENTED TO TRIAL COURT.

4. A contention that the judgment was in excess of the amount justified by
the complaint which was not presented to the trial court upon an appli-
cation to open a default judgment, and was not then considered, will not
be considered upon appeal to this court.

-Nicholls & Taylor v. Frederick Milling Co. 531.

RETURN ON APPEAL.

See CRIMINAL LAW, 14.

WHEN SUFFICIENT.

5. An order denying a motion made upon all the files and records in the
action will be affirmed, unless the record contains a settled case or bill
of exceptions, or a certificate of the trial judge that the record contains
all that was presented or considered on the motion, or a certificate of
the clerk of the court that the return contains all the files and records
in the case.

-Radel v. Radel, 299.

6. Where the court dismissed an action orally at the trial, and counsel for
plaintiff assented in open court to such disposal of the case, such assent
was a waiver of any error on the part of the court and prevented a sub-
sequent appeal so long as the record indicated his acquiescence.
-Kappa v. Levstik, 532.

ASSIGNMENT OF ERROR.

See APPEAL AND ERROR, 8-10, 12, 13; TRIAL, 8.

7. Where it is clear the trial judge considers a verdict sustained by the
evidence, but grants a new trial because of prejudicial error in the ad-
mission of testimony, it is the duty of the respondent to make clear to
the court the points relied upon to sustain a new trial, the appellant
being necessarily unable to point out the errors.

-Walsh v. Paine, 187.

CHARGE TO JURY.

8. Not having asked to have a question submitted to the jury, defendants
cannot complain on appeal that it was not submitted.

-County of Clay v. Olson, 440.

9. Action for injury to live stock. The shipment was intrastate under a ship-
ping contract limiting the value of the stock. The court made no refer-
ence to the limitation, its attention was not called to it, and recovery of
full damages was permitted. It is held that, the attention of the court
not having been called to the error or omission, there is no available

error.

-Robinson v. Great Northern Railway Co. 495.

APPEAL AND ERROR-Continued.

SAME REFUSAL TO GIVE INSTRUCTION.

10. Where no exception is taken below to the court's refusal to give a requested instruction to the jury, this court will not review such refusal. -Coppoletti v. Citizens Insurance Company of Missouri, 329.

SAME ASSUMPTION OF RISK.

11. An omission to give a complete definition of assumption of risk is no cause for reversal here, because the definition given was accurate as far as it went, the evidence presented no situation to which the omitted part was applicable, no suggestion of an omission or inaccuracy was made when the court at the end of the charge asked counsel if any had been made, and it seems the record does not raise the question of assumption of risk.

-Hagen v. Chicago, Rock Island & Pacific Railway Co. 110.

12. Defendant, having failed to call the court's attention at the time to the fact that its instruction upon assumption of risks was incorporated in its charge upon negligence, and having requested no further direction, was not in a position to complain.

-Kloppenburg v. Minneapolis, St. Paul & Sault Ste. Marie Railway
Co. 174.

SAME-BREACH OF PROMISE-PUNITIVE DAMAGES.

13. The damages that may be awarded in an action for breach of promise, where defendant pleads the unchastity of plaintiff in justification of the breach, are not by way of compensation to plaintiff for the damage suffered by her from the making of the defense, but are solely punitive or exemplary damages. As the complaint did not allege any malicious motive of defendant, and as there was no claim of the right to recover punitive damages, the instruction was error. The error was prejudicial.

-Hively v. Golnick, 499.

EVIDENCE IN CRIMINAL PROSECUTION.

See CRIMINAL Law, 12.

EVIDENCE OF PROBABLE CAUSE IN CIVIL ACTION.

See MALICIOUS PROSECUTION, 12.

VERDICT UNSUPPORTED BY EVIDENCE.

14. The rule is well established that, where there is no evidence reasonably tending to support a verdict, the duty of this court to say so is imperative, as is also the rule that a verdict that rests upon mere possibility, speculation and conjecture, will not be permitted to stand. The