jection in court below flatly denied witness had so testified.-Hill v. Harvey, 201 S. W. 535.

232(1) (Ark.) Recital in answer and testimony that improvement ordinances were passed on certain date, which was Sunday, held not to raise the question for review where objection was not made in petition, and court's attention was not specifically directed thereto.-Buxton v. City of Nashville, 201 S. W. 512.

263 (3) (Tex.Civ.App.) Assignment of error "the court erred in failing to give special charges," numbering them, was insufficient because it did not appear that appellant excepted to refusal of court to give such special charges as required by Rev. St. art. 2061.Shuler v. City of Austin, 201 S. W. 445.

266(2) (Mo.App.) Where defendant did not except to trial court's action in overruling his 232(2) (Tex.Civ.App.) In trespass to try exceptions to referee's report, on defendant's aptitle, where defendant offered a deed which repeal, Court of Appeals cannot notice any of ferred to a plat, and the plat, as an integral objections, but must accept report as establishpart of the deed, which was received without ing facts.-Eadie v. Johnston, 201 S. W. 601. objection, error could not be predicated on ad-273(8) (Ark.) Where only one of several mission of the plat, as being a written instru- requested instructions was erroneous, refusal ment not proven up by competent evidence. of correct instructions cannot be reviewed unMassingill v. Moody, 201 S. W. 265. der exceptions en grosse.-Moore v. Ellis, 201 S. W. 794.

232 (2) (Tex. Civ.App.) An appellate court cannot consider grounds of objection to evi-274(4) (Mo.App.) Where plaintiff failed to dence, not made when the evidence was offer- reserve any exceptions to the granting of a ed.-Farmers' State Guaranty Bank v. Pier- peremptory instruction, exceptions afterward son, 201 S. W. 424.

232 (2) (Tex.Civ.App.) Where only objection to question was that it called for conclusion, all other grounds were waived.-McAllen v. Wood, 201 S. W. 433.

233(1) (Mo.App.) Presence of counsel for defendant which did not appeal did not have effect to prevent appealing defendant from urging objection to oral instruction.-Bergfeld v. Dunham, 201 S. W. 640.

taken to the ruling on the motion to set aside the nonsuit cannot relate back to the ruling on the peremptory instruction so as to present anything for review.-St. John v. St. John Land & Timber Co., 201 S. W. 916.

(D) Motions for New Trial.

281(1) (Tex.Civ.App.) An assigned error not presented to the trial court in a motion for new trial, cannot be considered.-Shuler v. City of Austin, 201 S. W. 445.

233(1) (Tex.Civ.App.) While a formal bill 281(3) (Ark.) Kirby's Dig. §§ 449, 4480, of exceptions is not necessary, it is essential and 4485, providing summary proceedings to to show that objections to the general charge were made in writing, presented to opposing in their nature and must be strictly construed. recover money in hands of attorneys, are penal counsel and the court, before submission of the charge to the jury, and that the court did-Davies & Davies v. Patterson, 201 S. W. 504. actually overrule them.-Corpus Christi Street 292 (Ark.) Alleged error in failing to make & Interurban Ry. Co. v. Kjellberg, 201 S. W. a declaration of facts requested will not be reviewed when not made a ground of the motion for new trial.-Jonesboro, L. C. & E. R. Co. v. Davenport, 201 S. W. 1114.

1032.

237(2) (Tex.Civ.App.) Where bulk of a witness' opinion evidence as to value was received, before cross-examination showed that 298 (Mo.App.) Defendant appellant's objecit was inadmissible, a party desiring the extion to trial court's action in overruling excepclusion of such testimony must move therefor tions to referee's report, taken in motion for or he cannot complain.-Ft. Worth & D. C. new trial, must be founded on exception taken Ry. Co. v. Hapgood, 201 S. W. 1040. to ruling when made.-Eadie v. Johnston, 201 C242(5) (Mo.) Where evidence was admitted, S. W. 601. "subject to the objection" of plaintiff, who made no further effort to obtain a definite ruling, and there was no definite ruling, Supreme Court could not know whether court considered the evidence, and hence could not review its admission.--Kansas City Disinfecting & Mfg. Co. v. Bates County, 201 S. W. 92.

(C) Exceptions.

260(1) (Tex. Civ.App.) Admission or rejection of evidence cannot be reviewed, in the absence of exception reserved thereto.-Miller v. P. W. Ezell Mercantile Co., 201 S. W. 734.

300 (Ky.) Where motion for new trial was not made until five days after verdict and judgment, Court of Appeals cannot consider evidence, and only question is whether pleadings authorize judgment in view of Civ. Code Prac. § 342.-Johnson v. Boggess, 201 S. W. 42.

301 (Tex. Civ.App.) In action to recover automobile, in alternative for purchase price, with foreclosure of lien, plaintiff having sued out writ of sequestration and car having been replevied later by defendant, failure of verdict and judgment for plaintiff against defendant and sureties on replevin bond to find value of car held error apparent on face of record re261 (Mo.App.) Where court sustained op- quiring reversal, though not raised in motion jections to remarks of plaintiff's counsel to the for new trial.-Reeves v. Avina, 201 S. W. 729. jury, defendant cannot complain that the court 301 (Tex.Civ.App.) An assignment of erdid not rebuke counsel, where no request so to do was made, and no exception was taken to the rulings on the objections.-Jackson County v. Enright, 201 S. W. 599.

ror raising an issue not raised in a motion for a new trial will not be considered.-Western Union Telegraph Co. v. Golden, 201 S. W. 1080.

302(2)(Tex.Civ.App.) Where a motion for 262 (2) (Mo.App.) Where plaintiff did not new trial has been filed, the party appealing is except to the granting of defendant's motion confined to the matters therein assigned, unfor a peremptory instruction and the record der Court of Civil Appeals rule 24 (142 S. W. recited he took an "involuntary" nonsuit which xii).-Boedefeld v. Johnson, 201 S. W. 1027. the court on motion refused to set aside, noth-302(5) (Mo.) An assignment of error in the ing is presented for review.-St. John v. St. John Land & Timber Co., 201 S. W. 916.

motion for a new trial that "the court refused proper declarations of law offered by the plaintiff" is not sufficient, even in a civil case to authorize review.-Kansas City Disinfecting & Mfg. Co. v. Bates County, 201 S. W. 92.

263 (3) (Tex. Civ.App.) In view of Vernon's Sayles' Ann. Civ. St. 1914, arts. 1970, 1971, and 1973, as to presentation of instructions to opposing counsel, exceptions to a refusal to give special charges, failing to show that they were submitted to opposing counsel, will not be con- 335 (Ky.) Where appeal is by filing statesidered. Sullivan v. Masterson, 201 S. W. 194.ment under Civ. Code Prac. § 739, and sey

VI. PARTIES.

eral parties who have recovered separate judg- | X.
ments are named as appellees in the single
statement, and only one tax of appeal is paid,
the one first named is appellee.-Matney v. Ed-
monds, 201 S. W. 465.

VII. REQUISITES AND PROCEEDINGS

FOR TRANSFER OF CAUSE.

(B) Petition or Prayer, Allowance, and Certificate or Affidavit.

359 (Ky.) Where appeal is prayed and granted from a judgment in its entirety, amount in controversy on the appeal as regards power of circuit court to grant appeal, is amount of judgment, and not of part superseded.-Calvert v. Wilder, 201 S. W. 449.

(C) Payment of Fees or Costs, and Bonds or Other Securities.

RECORD AND PROCEEDINGS NOT
IN RECORD.

(A) Matters to be Shown by Record,

493 (Tex. Civ.App.) On appeal from suit in county court to foreclose debt of $412.21 where legations in pleadings, the value at time of suit the transcript did not affirmatively show, by alof chattel which was subject of foreclosure, so as to show jurisdiction of lower court, Court of Civil Appeals had no jurisdiction.-Bush v. Campbell, 201 S. W. 1055.

499(1) (Tex.Civ.App.) An assignment of error complaining of the argument will be overruled where the bill of exception states no reason for the objection to the argument, especially where it appears therefrom that the argument was entirely within the record and proper.San Antonio, U. & G. R. Co. v. Dawson, 201 S. W. 247.

373(1) (Tex.Civ.App.) Appeal from judg-499(3) (Tex.Civ.App.) That one may comment in lower court, where law requires bond plain on appeal of introduction of improper to be given, is not perfected until bond is filed, evidence, he must have objected to it at the time. under Vernon's Sayles' Ann. Civ. St. 1914, arts. and preserved the objection by bill of exceptions. 2099, 2101.-Lynch v. Bernhardt, 201 S. W. City of San Antonio v. Newnam, 201 S. W.

1051.

In action against sureties on guardian's bond, appeal bond was necessary to perfect appeal by sureties.-Id.

374(2) (Tex.Civ.App.) Vernon's Sayles' Ann. Civ. St. 1914, art. 2106, relieving executors and guardians from giving bonds on appeal taken in their fiduciary capacity, does not apply where guardian or administrator is personally aggrieved, and appeals in his own right. -Lynch v. Bernhardt, 201 S. W. 1051.

191.

~499(4) (Mo.) On appeal by defendant from order granting new trial for error in giving instruction requested by it, that appellant's bill of exceptions does not bring into record facts showing whether plaintiff objected to giving of such instruction is not ground for reversal, plaintiff having filed no bill of exceptions. (In Division 1; Blair and Graves, JJ., expressing no opinion.)--Owens v. Kansas City, C. C. & St. J. Ry. Co., 201 S. W. 548.

ex

500(3) (Tex.Civ.App.) The failure to clude testimony on motion will not be considered where the bill of exception does not affirmatively show that the court ruled on the motion. San Antonio, U. & G. R. Co. v. Dawson, 201

389(3) (Tex. Civ.App.) Proof of inability to pay costs required by Vernon's Sayles' Ann. Civ. St. 1914, art. 2098, to be made before court trying the case, must be made before the court, if in session, and it must affirmatively appear it was thus made to give jurisdiction.-S. W. 247. Horn v. Missouri, K. & T. Ry. Co. of Texas, 201 S. W. 1101.

(B) Scope and Contents of Record. Under Vernon's Sayles' Ann. Civ. St. 1914, 533 (1) (Mo.App.) A memorandum stateart. 2098, requiring proof of inability to payment as to a finding as to a disputed fact in an costs to be made before the court trying the equity case, based on evidence not brought up case, the judge has no power to hear proof aft- in the record, inserted by the trial judge when er adjournment for the term.-Id. signing the bill of exceptions, is no part of the record and cannot be considered for any purpose.-Hobson v. Lenox, 201 S. W. 964.

Hearing, while in session, proof of inability to give cost bond in trial court would not cure irregularity in perfecting appeal in hearing proof of inability to pay cost after court has adjourned.-Id.

(D) Writ of Error, Citation, or Notice.

407(1) (Tex. Civ.App.) Defect in sheriff's return of citation in error served upon defendant in error, if but amendable irregularity, does not deprive appellate court of jurisdiction__to determine cause.-Sypert v. Rogers Lumber Co., 201 S. W. 1102.

VIII. EFFECT OF TRANSFER OF
CAUSE OR PROCEEDINGS

THEREFOR.

544(1) (Tex.Civ.App.) In case tried before Acts 35th Leg. c. 177 (Vernon's Ann. Civ. St. Supp. 1918, art. 1974), as to effect of refusal to give special instructions, went into effect, where there are no bills of exception disclosing special charges were presented at time and in manner required, and refusal to give excepted to, as

(B) Jurisdiction Acquired by Appellate signments as to such charges must be overruled.

Court.

456 (Mo.) Where appeal was taken from partition proceedings involving title, the Supreme Court had jurisdiction to pass upon title.-Brown v. Simpson, 201 S. W. 898.

-Dixon v. Winters, 201 S. W. 1103.

544(3) (Mo.) Where there is no bill of exceptions, only the record proper is before the court.-Tracy v. Tracy, 201 S. W. 902.

Where a case, there being no bill of exceptions must be decided upon the record proper,

IX. SUPERSEDEAS OR STAY OF PRO- which does not indicate any errors of the

CEEDINGS.

488(1) (Ark.) Where the chancery court entered a decree dismissing the complaint, and dissolving a temporary injunction, an appeal does not continue in force the injunction unless plaintiffs obtain an order of trial court continuing the injunction until appeal is perfected and a similar order in the appellate court after the appeal is lodged therein.-Mewes v. Home Bank of De Witt, 201 S. W. 1106.

trial court the judgment must be affirmed.-Id.

(E) Abstracts of Record.

580 (Ark.) The duty devolves on a crossappellant to abstract the case sufficiently to show that the lower court was wrong.-Terry v. Klein, 201 S. W. 801.

581 (3) (Mo.) An abstract of record which does not show as a part of the record proper that any bill of exceptions was filed in the trial

court is fatally defective.-Tracy v. Tracy, 201 S. W. 902.

581(8) (Mo.App.) Where neither appellant's original abstract of record proper nor short form transcript showed that his motion for a new trial was filed during the term in which the verdict was rendered, nothing but record proper is before Court of Appeals.-Mason v. Hutchison, 201 S. W. 593.

590 (Mo..App.) Appellant's amended abstract, tending to show that his motion for new trial was filed same term at which verdict was rendered, cannot be considered by Court of Appeals when filed after submission of case.-Mason v. Hutchison, 201 S. W. 593.

592 (1) (Mo.) Where a city sued to recover a fine for violation of an ordinance, and the defendant appealed to the Supreme Court without printing an abstract of record, as required by rules 12, 13, and 14 (186 S. W. vii, viii), the appeal must be dismissed.-City of St. Louis v. Vaughn, 201 S. W. 524.

(H) Transmission, Filing, Printing, and Service of Copies.

whether he was sufficiently informed upon the matters to express an opinion is insufficient to show error in the admission of that testimony, for the trial judge might have satisfied himself that the witness was qualified.-Southern Pac. Co. v. Stephens, 201 S. W. 1076.

690 (7) (Mo.) Error does not appear in trial court's refusal to allow interrogation of expert witness as to conditions he would consider in forming opinion as to distance within which hypothetical stop of street car could be made, where appellate court is not informed as to character of interrogation desired to be propounded, nor of facts designed to be elicited thereby.-Hill v. Harvey, 201 S. W. 535.

690 (7) (Tex. Civ.App.) Where answer to question is not shown in assignment of error, and statement of facts for bill of exceptions, to which reference is made, contains certain testimony of the witness, but does not show the question complained of, no error is presented.-McAllen v. Wood, 201 S. W. 433.

692(1) (Ky.) Refusal to allow defendant to read book entries is not reviewable; the record containing no avowal as to what he would thereby have proved.--Riglesberger v. Katterjohn, 201 S. W. 459.

633 (Mo.App.) Where the appellant served a paper called an "Abstract of Evidence," and after filing it changed the name to “Abstract of Bill of Exceptions," and the abstract as changed was never served on the respondents, the appeal would be dismissed for noncompliance with rule 15 (169 S. W. xiii), requiring service of abstract.-Larkin v. Minard, 201 S. W. 566.692(1) (Tex.Civ.App.) An assignment of er

(1) Defects, Objections, Amendment, and Correction.

692 (1) (Mo.App.) Where memorandum is not shown in abstract of record, Court of Appeals cannot pass on question whether trial court erred in excluding it.-Estes v. Hartford Fire Ins. Co., 201 S. W. 563.

ror complaining of the sustaining of an objection to a question will be overruled where the bill of exception does not show what answer the witness would have made.-San Antonio, U. & R. Co. v. Dawson, 201 S. W. 247.

634 (Tex. Civ.App.) Where the files were lost, and appellant made no attempt to substi-G. tute records under Vernon's Sayles' Ann. Civ. St. 1914, arts. 2157-2163, and his bills and assignments showed no error, he was not entitled to remand for new trial "to permit intelligent consideration by the Court of Civil Appeals."Massingill v. Moody, 201 S. W. 265.

643(4) (Tex.Civ.App.) Under Court Rule 11 (142 S. W. xi), requiring certiorari to perfect the record to be made as required by rule 8 (142 S. W. xi), which requires motion relating to informalities to be filed within 30 days after filing the transcript, where transcript was filed in July, motion for certiorari to perfect the record made on November 17th was too late.Bonnett-Brown Sales Service Co. v. Denison Morning Gazette, 201 S. W. 1044.

643 (5) (Mo.App.) Objections that motion for new trial is embodied in record proper and not in bill of exceptions, and that there is no record showing that bill of exceptions had been filed, cannot be considered if not filed within 10 days, as required by court rule 33 (169 S. W. xix).-Leritz v. Brock, 201 S. W. 609.

660 (1) (Tex.Civ.App.) Under rule 57 (142 S. W. xvi), as to bringing up original papers, an order of the trial court is prerequisite to incorporation of such papers in the record on appeal.-Bonnett-Brown Sales Service Co. v. Denison Morning Gazette, 201 S. W. 1044.

(K) Questions Presented for Review. ~690 (4) (Mo.App.) Where an exhibit alleged to have been erroneously admitted was not set out in the abstract of record, the court on appeal could not review its admission.-Jones v. Jones, 201 S. W. 557.

state

the 694 (2) (Tex. Civ.App.) Where ment merely sets out the petition, without the evidence, under a proposition that court erred in not directing verdict, the assignment will not be considered.-Texas & N. O. R. Co. v. Jones, 201 S. W. 1085.

695(1) (Mo.App.) On appeal in equity, court can only review the evidence when all the evidence is before it.-Hobson v. Lenox, 201 S. W. 964.

697 (3) (Ark.) In an action on a promissory note, a bill of exceptions on appeal held sufficient to carry the inference that it contained all the evidence.-Abbott v. Kennedy, 201 S. W. 830.

702(1) (Ark.) Assignments of error regarding giving of instructions cannot be considered unless all instructions are set out in abstract, unless instruction complained of contains incurable defects.-Morris v. Raymond, 201 S. W. 116.

(L) Matters Not Apparent of Record.

713(3) (Mo.) Recitals in a bill of exceptions of matters which are required to appear in the record proper are not sufficient.-Tracy v. Tracy, 201 S. W. 902.

XI. ASSIGNMENT OF ERRORS.

719(4) (Tex.Civ.App.) While the suggestion that a pleading is not good as against a general demurrer raises a question of fundamental error, the rule does not apply to objections raised by special exception.-Western Union Telegraph Co. v. Golden, 201 S. W. 1080.

690 (4) (Mo.App.) Where abstract, on ap-719(8) (Tex.Civ.App.) If appellant's contenpeal in equity case involving damages from filling up alley, omitted plats and photographs showing locus in quo, appellate court would be warranted in not considering testimony at all. --Leritz v. Brock, 201 S. W. 609.

tion that there is no basis in pleadings for judgment be correct, judgment should be reversed without formal assignment in that regard.— Summergill v. Jemison, 201 S. W. 216.

722(1) (Tex.Civ.App.) Assignments of error, ←690(6) (Tex.Civ.App.) A bill of exceptions failing to show that they are predicated on any which did not affirmatively show that a witness bill of exceptions or that any exception was giving opinion evidence was examined as totaken to the ruling complained of, will not be

considered.-Sullivan v. Masterson, 201 S. W. | tion, is multifarious.-Western Union Telegraph Co. v. Golden, 201 S. W. 1080.

725 (2) (Tex.Civ.App.) An assignment which presents error in overruling defendant's 742(2) (Tex.Civ.App.) An assignment condemurrer, both general and special, to the pe- sisting of entire motion for new trial, not subtition is too general to require consideration.-mitted as a proposition in itself, nor followed Western Union Telegraph Co. v. Golden, 201 by one, with no appended statement of facts, S. W. 1080. but containing eight distinct alleged errors, cumulatively violates Court of Civil Appeals rules 25-31 (142 S. W. xii, xiii), and cannot be considered.-Boedefeld v. Johnson, 201 S. W. 1027.

729 (Tex.Civ.App.) Assignment of error "because court erred in instructing verdict contrary to law," held to violate Rev. St. art. 1612, requiring distinct specification of errors, and rules for preparing cause and briefs (142742(5) (Tex.Civ.App.) An assignment of erS. W. xii).-Shuler v. City of Austin, 201 S. W. 445.

736 (Tex.Civ.App.) In view of Rev. St. 1911, art. 1612, as amended by Acts 33d Leg. c. 136 (Vernon's Sayles' Ann. Civ. St. 1914, art. 1612), making an assignment of error sufficient if it directs the court to the error complained of,750(4) (Tenn.) An assignment to the effect an assignment, though multifarious, which so directs the court, is sufficient.-Crawford v. El Paso Land Improvement Co., 201 S. W. 233.

ment that there was no evidence to support the 736 (Tex.Civ.App.) Assignment of error verdict.-Southern Ry. Co. v. Lewis & Adcock wherein complaint is made of two separate and Co., 201 S. W. 131. independent rulings of court is bad for multifariousness.-Lynch v. Bernhardt, 201 S. W.

not consider any assignment of error in the brief subsequent to the first where there is the next number after one.-Western Union Tel: egraph Co. v. Golden, 201 S. W. 1080.

766 (Tex.Civ.App.) The Court of Civil Appeals now considers all questions upon their merits in the absence of disregard of statutory provisions or flagrant or inexcusable disregard of the rules of briefing.-Crawford v. El Paso Land Improvement Co., 201 S. W. 233.

the question is raised or not.-Werner v. Needham, 201 S. W. 213.

846 (2) (Mo.) When prima facie case is made by plaintiffs, and no instructions are asked or given, appellate court will not review evidence to determine its sufficiency to overthrow plaintiffs' case.-Davis v. Dawson, 201 S. W. 524.

853 (Mo.) A contractor alleging breach of contract on part of owner of building suing in quantum meruit for materials furnished and asking and securing instructions limiting his recovery to the contract price is bound thereby.Bradley Heating Co. v. Thomas H. Sayman Realty & Investment Co., 201 S. W. 864.

771 (Tex.Civ.App.) Failure to comply with Rev. St. 1911, art. 2115, as to time of filing brief, held not excused by custom among the attorneys of the place to waive it and the effects under rule 39 (142 S. W. xiii) of noncompliance. -Missouri, K. & T. Ry. Co. of Texas v. Jeffer-854(6) (Mo.App.) Where on motion for new son, 201 S. W. 211.

773(2) (Tex. Civ.App.) Appeal will be dismissed under rule 39 (142 S. W. xiii), appellant's brief being filed only four days before time for submission instead of according to Rev. St. 1911, art. 2115, and noncompliance not being excused.-Missouri, K. & T. Ry. Co. of Texas v. Jefferson, 201 S. W. 211.

trial the court sets aside a verdict without stating reasons therefor, his action will be affirmed if any of the grounds stated in the motion are sufficient.-Frisbie v. Scott, 201 S. W. 561. (C) Parties Entitled to Allege Error. 879 (Tex.Civ.App.) Where no objection was made by intervener or any one else to judgment bond and made no motion for new trial, but filed a brief styling himself appellant, he has no standing in Court of Civil Appeals.-Binder v. Millikin, 201 S. W. 239.

XIII. DISMISSAL, WITHDRAWAL, OR in his favor and he is not included in appeal

ABANDONMENT.

781(1) (Ark.) The court will not decide questions which have ceased to be an issue by reason of facts having intervened, rendering their decisions of no practical application, though a dismissal will leave the costs of the litigation on the appellant. Henry Quellmalz Lumber & Mfg. Co. v. Day, 201 S. W. 125.

790(2) (Ark.) Appeal from judgment in replevin action for lumber claimed under attachment sale will be dismissed, where subsequent to judgment circuit court sustained exceptions to the report of the sale and set aside the sale.Henry Quellmalz Lumber & Mfg. Co. v. Day, 201 S. W. 125.

882(8) (Mo.) Where defendant permitted objection, failure to sustain its objection to a deposition by it to be read in evidence without proof of same facts by another witness did not

constitute reversible error, as he invited the error.-Reynolds v. Maryland Casualty Co., 201 S. W. 1128.

882(8) (Mo.App.) Where a party takes a deposition and examines a person as to a custom, and introduces the deposition in evidence, it cannot complain of introduction of other evidence concerning such matter.-Akeman v. Wabash Ry. Co., 201 S. W. 590.

790 (2) (Mo.App.) Vacation of judgment ipso facto destroys lien, so that court on ap-882(12) (Árk.) Appellants cannot complain peal will not consider propriety of order vacat- that instruction on undue influence was unauing record of satisfaction of judgment.-Warren thorized by evidence where they sought and obv. Order of Railway Conductors of America, tained instruction upon that issue.-Morris v. Raymond. 201 S. W. 116.

201 S. W. 368.

792 (Tex.Civ.App.) Appeal will be dismissed on the court's own motion, where absence of jurisdictional requirements appear on face of the record, though called to the court's attention by motion to dismiss, which need not be entertained. Horn v. Missouri, K. & T. Ry. Co. of Texas, 201 S. W. 1101.

883 (Mo.) Where party to suit for personal injury has assumed burden of proof which is unnecessary under pleadings and facts, other party, on appeal, after having enjoyed benefits of such assumption, cannot complain of error. -Miller v. Harpster, 201 S. W. 854.

Trial of Cause Anew.

797(2) (Tex.Civ.App.) Motion, under rule (D) Amendments, Additional Proofs, and 39 (142 S. W. xiii), to dismiss appeal for noncompliance with Rev. St. 1911, art. 2115, as to895(2) (Tenn.) The rule is that, on appeals time for filing brief, held not governed by rule 8 (142 S. W. xi) as to time for motions affecting formalities attending the filing of transcripts. Missouri, K. & T. Ry. Co. of Texas v. Jefferson, 201 S. W. 211.

799 (Ark.) Under Kirby's Dig. § 1227, evidence of facts outside the record, showing that the further right of prosecuting the appeal has ceased, may be received on motion to dismiss.Henry Quellmalz Lumber & Mfg. Co. v. Day, 201 S. W. 125.

XVI. REVIEW.

in chancery, trial de novo relates, not to technicalities of procedure, but to chancellor's decision on facts, which does not have same force as verdict or finding of fact by court of law sitting without a jury.-Brewer v. De Camp Glass Casket Co., 201 S. W. 145.

(E) Presumptions.

show that the trial court erred.-Hobson v. 901 (Mo.App.) It devolves on appellant to

Lenox, 201 S. W. 964.

907 (3) (Tex.Civ.App.) In absence of finding of facts or statement of facts, Court of Civil Appeals must presume trial court had sufficient facts before it whereon to render the judgment it did render.-Bailey v. Burkitt, 201 S. W. 725.

(A) Scope and Extent in General. 837 (5) (Mo.App.) The court on appeal is not required to look to plaintiff's instruction which had not been given when the ruling on demurrer to evidence was made, as the trial 918(3) (Tex.Civ.App.) Trial amendment of court cannot be convinced of error in overrul- petition, reciting that it was filed with leave of ing the demurrer because of error in instruc- court, will be presumed to have been filed upon tions. Bright v. St. Louis Vitrified & Fire proper leave.-Figueroa v. Madero, 201 S. W. Brick Co., 201 S. W. 641.

271.

840(2) (Tex.Civ.App.) It is the duty of ap-926(2) (Tex.Civ.App.) In support of trial pellate courts to pass upon the jurisdiction of court's ruling, it will, in absence of evidence the trial court to render the judgment, whether to contrary, be presumed that ordinance was