UNLESS NOTICE OF APPEAL IS FILED WITHIN ONE YEAR from the date of the rendition of the judgment appealed from, the appeal will not be entertained by the supreme court.

APPEAL FROM ORDER DENYING NEW TRIAL CAN NOT BE SUSTAINED when the order from which the appeal is taken is not brought before this court in the record.

APPEAL from a judgment of the district court for the third judicial district, county of Yavapai, and from an order denying the plaintiff's motion for a new trial. The judgment appealed from was rendered on the twenty-first day of November, 1873, and the notice of appeal was given on the tenth day of December, 1874. The other facts are stated in the opinion.

Murat Masterson and Farley & Pomroy, for the appellant. John A. Rush, for the respondents.

By Court, FRENCH, C. J.:

The appeal from the judgment in this case can not be entertained, for the reason that the notice of appeal, the first step toward perfecting an appeal, was not filed until more than one year had elapsed after the rendition of the judgment appealed from.

The appeal from the order denying a new trial can not be sustained, because the order from which the appeal is taken is not brought before us in the record. The order appealed from should form the basis of the transcript on appeal. Comp. Laws, 437, secs. 344, 345, 348.

But if the order appealed from were in the record, it would be of no avail in this case. It fully appears from the record, and the arguments in this case, that there was a defect in the testimony; that plaintiff, who appears to have had a good cause of action, continuously failed, both on the trial and on his motion for a new trial, to make his case. On the trial failing for defects of testimony, and on his motion for a new trial utterly failing to make any legal showing why a new trial should be granted, the judgment and order must be affirmed, and it has been so ordered.

• JAMES M. SANDFORD v. ANDREW L. MOELLER.

OBJECTION THAT SPECIAL ISSUES SUBMITTED TO JURY did not cover all the issues in the case can not be taken for the first time in the supreme court. UNLESS STATUTORY Requirements Relating to Statement on APPEAL ARE COMPLIED WITH, such statement will not be noticed on appeal, and the right to present such statement will be deemed to have been waived.

APPEAL from a judgment of the district court for the third judicial district, county of Yavapai, rendered in favor of the defendant, and from an order denying the plaintiff a new trial. The other facts are stated in the opinion.

Masterson, Howard, Southworth, and Goodwin, for the appellant.

Hargrave and Rush & Wells, for the respondent.

By Court, FRENCH, C. J.:

The jury in this case find on the special issues submitted to them: "1. That the plaintiff was not in prior possession by himself, or through his grantors, of the premises, or any part thereof, described in the complaint, on and before the months of February and March, 1868; 2. That the whole of the land in controversy was included in the military reservation known as Fort Whipple on the twenty-seventh day of April 1870."

Although the special issues submitted to the jury do not appear to have covered all the issues in the case, plaintiff made no objection to these issues as framed, or to the submission of the case to the jury on them, so far as the transcript discloses. It is alleged as one of the assignments of error, that the special issues submitted to the jury did not cover all the issues in the case. But this assignment was made for the first time in making up the record long after the trial of the case, and even here it is not alleged that plaintiff ever objected to the submission of the case to the jury on these special issues. The finding of the jury on these issues is decisive of the case; especially is the first one so decisive. We can not reach this verdict to disturb it on the record before us. The transcript contains a voluminous statement, in which many errors are alleged but not shown, and a large mass of redundant and irrelevant matter. The statutory provisions in regard to statement on appeal are found in sections 340 and 341, and the sections immediately following page 346 of the compiled laws. None of these statutory provisions have been complied with. It does not appear very clearly when the judgment was entered. But the decision was made on the twenty-fifth day of May, and the judgment was filed on the same day; the statement was served on the twenty-third of June following. This was not within the twenty days, and the three hundred and forty-first section prescribes the penalty, "he shall be deemed to have waived his right thereto."

We can therefore only consider the judgment roll, which showing no error on its face, the judgment must be affirmed, and it has been so ordered.

WILLIAM COLE v. CURTIS C. BEAN AND MARY M. BEAN, HIS WIFE.

JUDGMENT AND DECREE MUST BE REVERSED, UNLESS SUSTAINED BY THE PLEADINGS in the case.

DECREE DECLARING DEED TO BE A MORTGAGE IS NOT SUSTAINED by a complaint which asks that such deed be canceled and held for naught, on the ground that the grantor therein named was, at the time of its execution, incapacitated from making the deed, and that the execution of the same was procured by fraud and conspiracy.

APPEAL from the district court of the third judicial district, Yavapai county. The opinion states the case.

Masterson, Howard, and Farley & Pomroy, for the appellants.

1. The chief principle which addresses itself to the objections in this case, and upon which the appellants principally rely, is, that the allegata and the probatu must agree; that the findings must be based upon the issues as made, and that the decree should be supported by the complaint. It will hardly be required of us to produce authorities to support the proposition relative to the allegata and probata agreeing; and that the findings and decree must be consistent with and based upon the issues as made and as they appear in the pleadings. We submit, however, the following: 1 Greenl. Ev., sec. 51 et seq., and cases cited; Green v. Covillaud, 10 Cal. 332, and cases cited; Green v. Palmer, 15 Id. 411; Morenhout v. Barron, 42 Id. 605.

2. The appellants claim that the court below erred against these propositions:

a. When, against objections, it permitted the question to be asked of the witness C. C. Bean, tending to elicit evidence of a trust, as found on page 76 of transcript, line 2107.

b. When it admitted the testimony of D. C. Moreland (against objection), tending to show a trust as given on page 101, line 2820, of transcript.

c. When it admitted the testimony of Robert Groom (against objection), tending to show a trust as given on page 103, line 2861, of transcript.

d. When it found that the deed was not regarded as an absolute conveyance by either plaintiff or defendant at the time of its execution, nor at the time said defendant Mary M. Bean received it. But that said deed was given and received by both plaintiff and defendants for the purpose of protecting plaintiff from wasting his said interest in said. Peck and Occident mines; and for the purpose of preventing plaintiff from deeding any portion of said Peck and Occident mines to persons objectionable to said partnership while plaintiff was so incapacitated by reason of said drunken debauch; and for the further purpose of securing to said partnership any sum which might be due to said partnership by said plaintiff at the time of making said deed. See transcript, page 122, line 3390.

e. When it found that the plaintiff was no longer in danger of wasting and squandering his property by reason of said incapacity induced by said drunken debauch; nor of conveying his interest in said Peck and Occident mines to objectionable persons by reason thereof. See transcript, page 122, line 3410.

f. When it found that there was a partnership known as the Peck Mining Company, of which said partnership plaintiff was a member. See transcript, page 122, line 3389.

g. When it found that said deed was a mortgage to secure to the Peck Mining Company any indebtness by Cole to said company at the date of said deed. See transcript, page 120, line 3347.

3. The respondent, we presume, will doubtless admit the proposition first stated by us, but will contend that the court was justified in the findings under the seventh allegation of the complaint. We propose to confine ourselves to the seventh allegation first, and then to the whole pleadings.

The seventh allegation is as follows: "7. Plaintiff further alleges that he is informed and believes, and so charges the fact to be, that said defendant Curtis C. Bean, for the purpose of inducing plaintiff to make said conveyance, represented to plaintiff that he, the plaintiff, by reason of said intoxication and drunkenness, was incapable of looking after his own interest; that the said defendant Curtis C. Bean was the friend of plaintiff, and advised the plaintiff to make the said conveyance to enable him, defendant Curtis C.