An appeal does not lie to the overruling of a demurrer. Foster v. Lindley (Ind. App.) 367. An appeal lies from municipal court of Boston to superior court.-Clarke v. Bacall (Mass.) 614.

An application by the attorney general for the examination of witnesses before the bringing of an action, under Laws 1897, c. 383, is not a special proceeding, and an order of the appellate division, affirming an order vacating an order for such examination, is not appealable to the court of appeals, both for this reason and because the original order is discretionary.-In re Attorney General (N. Y.) 57.

An order of a general term, affirming or reversing an order granting or denying a temporary injunction, cannot be reviewed by the court of appeals, unless it appears from the record that the element of discretion was exclud

ed.-Schneider v. City of Rochester (N. Y.) 291. An order upon an application for a mandamus, under section 114 of the election law, is appealable to the court of appeals.-People v. Board of Canvassers of Richmond County (N. Y.) 425.

§ 2. Right of review.

Where a bill on foreclosure alleges release of certain of the lots from mortgage, and the defendants claim interest in the premises, any defendant can assign error on order of sale of one of the released lots.-Domestic Building Ass'n v. Nelson (Ill.) 194.

Counsel in divorce held entitled to writ of error to review judgment reversing decree ordering defendant to pay attorney's fees.-Anderson v. Steger (Ill.) 665.

Where grantee pendente lite is not allowed to be made a party, the grantor may appeal, though he has conveyed his interest.-Moore v. Jenks (Ill.) 698.

Where there is no objection to the form or scope of a decree, and no motion is made to corviewed on appeal.-Heal v. Niagara Oil Co. rect or modify it, such question will not be re(Ind. Sup.) 482.

order to be available on appeal.-Sievers v. Objections to evidence must be specific in Peters Box & Lumber Co. (Ind. Sup.) 877.

Under Burns' Rev. St. 1894, § 555, where, before the closing argument, and without objection, special interrogatories were filed, error, if any, is waived.-Bachman v. Cooper (Ind. App.) 394.

Where a party did not move for a finding as to the amount due on each of the items of the account sued on, he cannot complain on appeal of its failure to so find.-Thomas' Estate v. Snyder (Ind. App.) 398.

findings of fact admits the latter to be true.Exceptions to the conclusions of law on special Indiana, I. & I. Ry. Co. v. Doremeyer (Ind. App.) 497.

question not properly for their consideration, if Though a trial judge submits to the jury a no exception is taken, there is no reversible error.-Woolsey v. Trustees of Village of Ellenville (N. Y.) 270.

A general exception to "the conclusions of law found" by the court on a trial without a jury, there being several such conclusions, is insufficient to raise any question for review.-Drake v. New York Iron Mine (N. Y.) 785.

The court of appeals will answer a question certified to it by an appellate division only as far as such question actually arose and was passed upon by the appellate division.-Schenck v. Barnes (N. Y.) 967.

Where a nonjoinder of parties is pointed out for the first time on appeal, and the only party interested has been omitted, the decree will be reversed.-Knopf v. First Nat. Bank (Ill.) 660.

An objection that a bill was prematurely filed, or that a party had a complete remedy at law, cannot be first raised on appeal.-Hazle v. Bondy (Ill.) 671.

The question of variance between the declaration and the proof cannot be urged on appeal, unless raised in the trial court.-Chicago & A. R. Co. v. Clausen (Ill.) 680.

A motion to direct a verdict for defendant, filed at the close of plaintiff's case, is not available on appeal, where it is not renewed at the close of all the evidence.-Chicago & A. R. Co. v. Clausen (III.) 680.

Evidence not objected to on the trial cannot be reviewed on appeal.-Shepard v. Mills (Ill.) 709.

Where the court sustained an objection to remarks of counsel in argument, and no further ruling was asked on the subject, it cannot be urged on appeal that the remarks should have been ruled out.-Illinois Cent. R. Co. v. Beebe (III.) 1019.

In action by creditor in his own behalf and that of other creditors against stockholders, it is not necessary to make all the other creditors parties.-Herrick v. Wardwell (Ohio) 903.

§ 5. Requisites and proceedings transfer of cause.

for

Where no appeal bond is filed in term, nor time fixed for filing it, it is not a term-time appeal, within Laws 1895, p. 179.-Michigan Mut. Life Ins. Co. v. Frankel (Ind. Sup.) 304.

Under Rev. St. 1894, § 652, notice of appeal in vacation must be served on appellee.-O'Mara v. Wabash R. Co. (Ind. Sup.) 821.

An appeal is void where prosecuted against a party who died after judgment and before appeal.-Doble v. Browne (Ind. App.) 38.

Application for notice to administrator of an appellee dying pendente lite, made more than a year after the appeal, will be denied.-Clapp v. Allen (Ind. App.) 587.

When the appellate division gives leave to appeal to the court of appeals under Code Civ. Proc. § 191, subd. 2, it need not formulate the question for review.-Young v. Fox (N. Y.) 279. Six months within which error can be brought, under Rev. St. § 6723, begin to run from the date of the judgment sought to be re

$$ 6, 7. Record and proceedings not in record-Matters to be shown by

record.

The bill of exceptions must show that an objection urged on appeal was presented to the trial court.-Chicago & A. R. Co. v. Clausen (Ill.) 680.

A party seeking reversal of judgment must bring a perfect record.-Center School Tp. of Marion County v. State (Ind. App.) 591. § 8.

Contents of record.

Under Burns' Rev. St. 1894, § 662, an order directing certain motions and rulings to be inserted in the record does not make them a part of the record, where they are not set out in the order. Close v. Pittsburgh, C., C. & St. L. Ry. Co. (Ind. Sup.) 560.

Where the record shows that longhand manuscript of evidence was not filed until after bill of exceptions had been approved and signed, the evidence is not in the record.-Broden v. Thorpe Block Saving & Loan Ass'n (Ind. App.) 403. § 9. Necessity of bill of exceptions

or case.

A bill of particulars will not be considered on appeal, unless made a part of the record by bill of exceptions.-Star Brewing Co. v. Farnsworth (Ill.) 228.

Where error is assigned in the failure to instruct as to a material issue, and the evidence is not preserved, it is sufficient to bring up the assignment for review if the bill of exceptions sets out that evidence was offered pro and con. -Costly v. McGowan (Ill.) 1047.

Where the record does not show that the bill of exceptions was filed with the clerk or in open court, the appellate court will not review any question depending on the evidence.Lowery v. Downey (Ind. Sup.) 79.

Exceptions to report of receiver cannot be considered when not a part of the record by bill of exceptions.-Chicago & S. E. Ry. Co. v. Cason (Ind. Sup.) 569.

Where a bill of exceptions does not contain all the evidence, questions arising on motion for new trial cannot be considered.-Clapp v. Allen (Ind. App.) 587.

An exception to a group of findings of fact made by the court upon a trial without a jury, unsupported by a case containing the evidence, is worthless.-Drake v. New York Iron Mine (N. Y.) 785. § 10.

Contents.

Bill of exceptions stating the agreed "facts" in a case as all the "facts" considered in the judgment held sufficient to show that all the "evidence" was included.-Gates v. Haw (Ind. Sup.) 299.

A bill of exceptions apparently filed before being signed by the trial judge is not a part of the record.-Drew v. Incorporated Town of Geneva (Ind. Sup.) 871.

Failure to file longhand manuscript before the bill of exceptions and its incorporation therein cannot be supplied by agreement of parties.John Church Co. v. Spurrier (Ind. App.) 93.

The longhand manuscript must be filed before the bill of exceptions and its incorporation therein.-John Church Co. v. Spurrier (Ind. App.) 93. A longhand manuscript, with certificate of judge, held to sufficiently show that it contained all the evidence.-Pitman v. Marquardt (Ind. App.) 894.

Failure to seal bill of exceptions held not a fatal defect.-Starin v. Kraft (Ill.) 1059.

Where bill of exceptions was not signed until after it was filed, the objection that it was not part of the record held not obviated by indorsement on the back by the judge which was not contained in the bill.-Chicago & S. E. Ry. Co. v. Cason (Ind. Sup.) 569.

Affidavits that portions of the record are lost cannot be considered on appeal.-Center School Tp. of Marion County v. State (Ind. App.) 591.

An amended complaint lost from the files should be substituted and brought into the record by certiorari.-Center School Tp. of Marion County v. State (Ind. App.) 591.

A motion to amend a declaration, made in the supreme judicial court on a hearing on exceptions, cannot be considered.-Locke v. Kennedy (Mass.) 531.

Questions of fact raised by the refusal to give an instruction will not be considered where such instruction was one of a series.-Hartford Deposit Co. v. Sollitt (Ill.) 178.

Facts shown by the record considered, and held, that there was no question affecting the judgment presented for decision.-Union Ins. Co. v. Crosby (Ill.) 200.

Error in refusing to admit document cannot be reviewed where the contents are not shown. Leon v. Goldsmith (Ill.) 676.

Rulings striking out pleadings cannot be reviewed on appeal, where the record does not affirmatively show by the bill of exceptions what the pleadings were.-State v. Crowe (Ind. Sup.)

471.

Motion to modify judgment held not reviewable, in absence of the evidence.-Chicago & S. E. Ry. Co. v. Cason (Ind. Sup.) 569.

An assignment of error in the overruling of separate demurrers to the several paragraphs of a complaint is unavailable, unless all paragraphs are bad.-Louisville, N. A. & C. Ry. Co. v. Heck (Ind. Sup.) 988.

Where the evidence is not in the record, reasons for a new trial founded on the evidence will not be considered.-Kessler v. Citizens' St. R. Co. (Ind. App.) 891.

Error in the instructions cannot be considered

where they are not in the record.-Kessler v. Citizens' St. R. Co. (Ind. App.) 891.

An exception to the refusal of a trial court to find conclusions requested by the excepting party, such requests not being contained in the record, raises no question for review.-Drake v. New York Iron Mine (N. Y.) 785.

A question certified to the court of appeals by an appellate division as arising upon an appeal will not be decided by the former court if no facts are disclosed in the record which show that it arose in the case.-Hearst v. Shea (N.

$ 14.

eral.

Objections to order referring cause and to re port will be disregarded where without substantial merits.-Abbott v. Stone (Ill.) 328.

counsel may be considered on appeal in arriv The entire record, evidence, and briefs of ing at the true theory of the complaint, to determine whether it states a cause of action.—

Small (Ind. Sup.) 476.

Where a husband and wife unite in an assignment of error, the assignment will be good as to both if it is good as to the wife.-Magel v. Milligan (Ind. Sup.) 564.

Error cannot be assigned to ruling on an issue of law not shown by the record.-Wintrode v. Renbarger (Ind. Sup.) 570.

Where the giving of "instructions 3 and 4" is assigned as error, the assignment fails if one of the instructions is correct.-Cincinnati, H. & I. R. Co. v. Cregor (Ind. Sup.) 760.

Rulings of trial court not being available to all parties complaining, they cannot jointly assign such as error.-Hatfield v. Cummings (Ind. Sup.) 817.

An assignment of error in the overruling of demurrers to the several paragraphs of a complaint held unavailable where the demurrers were not in the record.-Louisville, N. A. & C. Ry. Co. v. Heck (Ind. Sup.) 988.

Amendment of assignment of error as to material matter after expiration of time for appeal will not be allowed.-Doble v. Browne (Ind. App.) 38.

§ 16. Dismissal.

Where a transcript is in substantial conformity with the statute, the appeal will not be dismissed because it was not certified to be a true, perfect, and complete copy of record.-Hazle v. Bondy (I.) 671.

Where one of two parties to judgment is not made co-appellant, a motion to dismiss will be entertained after submission and filing briefs.Michigan Mut. Life Ins. Co. v. Frankel (Ind. Sup.) 304.

Where a party to the judgment appealed from is not made a party appellee in the assignment of errors, the appeal will be dismissed.-National Home Building & Loan Ass'n v. Huntsinger (Ind. Sup.) 381.

Where an invalid notice was served in a vacation appeal, and no steps taken within 90 days to bring appellee into court, the appeal will be dismissed.-O'Mara v. Wabash R. Co. (Ind. Sup.) 821.

An appeal dismissed because of delay in presenting the bill of exceptions and filing the transcript.-Wiesman v. Green (Ind. App.) 46.

An original judgment having been reversed on appeal, a petition in error for reversal of an order dismissing a petition for a new trial of the cause in which judgment was rendered will be dismissed.-Durfee v. MacNeil (Ohio) 909.

17. Rehearing.

A rehearing cannot be granted to correct errors in the record of the lower court.-Smith v. Goetz (Ind. App.) 397.

A motion for rehearing held insufficient, under rule 36 of the appellate court, because not specifying causes therefor.-Louisville, N. A. & C. Ry. Co. v. Carmon (Ind. App.) 893.

An appellate court will not review questions unnecessary to the decision of the case.-Carmel Natural Gas & Improvement Co. v. Small (Ind. Sup.) 476.

The appellate court may look to a special verdict to determine whether a ruling on demurrer was prejudicial.-Beasley v. Phillips (Ind. App.) 488.

Where a ruling on demurrer was harmless, it is not ground for reversal.-Beasley v. Phillips (Ind. App.) 488.

An instruction favorable to the losing party cannot be complained of by him, though it may be erroneous.-Pennsylvania Co. v. McCaffrey (Ill.) 713.

A party is estopped from complaining of instructions on appeal, where he asked similar instructions in his own behalf, which were giv en.-Illinois Cent. R. Co. v. Beebe (III.) 1019.

Where defendants in partition asked that their conflicting claims should not be settled in the decree, but in another suit pending, they are estopped from complaining on appeal that the decree did not adjudicate such claims.-Warren v. Sheldon (Ill.) 1065.

Where a party makes no objection to a special verdict, he cannot on appeal object to it.Kessler v. Citizens' St. R. Co. (Ind. App.) 891. $ 20. Trial of cause anew.

Prac. Act, § 87, authorizing the appellate court to finally determine causes, etc., held not to authorize assessment of damages by it and entry of judgment therefor, since it would infringe right to trial by jury.-City of Spring Valley v. Spring Valley Coal Co. (Ill.) 1067. § 21.

Presumptions.

It will be presumed that the lower court, in confirming a special assessment found correctly as to the legality and sufficiency of the ordinance for which the assessment was levied.— Michael v. City of Mattoon (Ill.) 155.

In the absence of a bill of exceptions, it was presumed that a finding of jurisdictional facts recited in the judgment was supported by the evidence.-Larson v. City of Chicago (Ill.) 179.

of default without notice, the record being siJudgment cannot be disturbed on the ground lent as to notice.-Domestic Building Ass'n v. Nelson (Ill.) 194.

Where evidence is not preserved, held, that facts recited in decree are presumed to be found on sufficient evidence.-Knickerbocker v. McKindley Coal & Mining Co. (Ill.) 330.

Instructions based on evidence given or refused in accordance with the judgment of the trial court affirmed by the appellate court must. on appeal to supreme court, be considered as properly given or refused.-Metropolitan Bank of Minneapolis v. Northern Fuel Co. (Ill.) 1062.

Where the judgment of the trial court is affirmed in the appellate court, every material fact necessary to sustain it must be treated in the supreme court as conclusively found in its favor.-Metropolitan Bank of Minneapolis v. Northern Fuel Co. (Ill.) 1062.

Where error is alleged, it must be shown.Hassler v. Hefele (Ind. Sup.) 361.

Where a court of general jurisdiction issued

a writ of attachment and ordered sale of land attached, the validity of the act will be presumed, where the contrary is not shown.-Runner v. Scott (Ind. Sup.) 479.

In collateral attack of a judgment in attachment, where the contrary does not appear it will be presumed that the record showed that some one of the findings existed authorizing the judgment.-Runner v. Scott (Ind. Sup.) 479.

The presumption is that the lower court did not err, in the absence of a showing. Close V. Pittsburgh, C., C. & St. L. Ry. Co. (Ind. Sup.) 560.

Judgment of the trial court will not be reversed unless error is affirmatively shown by the record.-M. Rumley Co. v. Moore (Ind. Sup.) 574.

In the absence of any showing in regard to the appointment of a court reporter, the action of the court will be presumed regular.-Pitman v. Marquardt (Ind. App.) 894.

Where record shows improper remarks by counsel, but does not show whether the court reproved the attorney, or directed the jury to disregard them, and the evidence is not presented, it will be presumed that the court did its duty, and the evidence sustained the verdict. Warder, Bushnell & Glessner Co. v. Jacobs (Ohio) 97.

Error must affirmatively appear on the face of the record to justify reversal.-Warder, Bushnell & Glessner Co. v. Jacobs (Ohio) 97.

22. - Discretion of lower court. The discretion of the trial court in refusing to exclude the jury during an offer of proof will not be disturbed on appeal, except in clear cases of abuse. Sievers v. Peters Box & Lumber Co. (Ind. Sup.) 877.

An order overruling a motion for a new trial is within the discretion of the trial court, and not a subject for an exception.-Fox v. City of Chelsea (Mass.) 622.

A ruling on a motion to dismiss a bill without prejudice held not reversible unless manifestly wrong.-Hollingsworth & Vose Co. v. Foxborough Water-Supply Dist. (Mass.) 1037. $ 23.

Questions of fact, verdicts, and findings.

The findings of the trial court on questions of fact on conflicting testimony will not be disturbed, unless clearly against the preponder ance of the evidence.-Burgett v. Osborne (Ill.) 206.

A finding of the appellate court on evidence is conclusive on the supreme court.-Wheeler & Wilson Mfg. Co. v. Barrett (Ill.) 325.

A jury's finding of negligence will not be reversed by the supreme court, where there is evidence tending to establish such negligence.Illinois Cent. R. Co. v. Cozby (Ill.) 1011.

In determining the sufficiency of the evidence to support a finding, only the evidence sustaining the action of the court can be considered.Boyd v. Radabaugh (Ind. Sup.) 301.

A finding on conflicting evidence will not be disturbed. Sheets v. Crum (Ind. Sup.) 380.

The rule that evidence will not be weighed on appeal applies both to actions at law and suits in equity.-Vansickle v. Shenk (Ind. Sup.) 381.

A finding on conflicting evidence will not be disturbed on appeal.-Teague v. Whaley (Ind. App.) 41.

Where there is some evidence to support a verdict, the appellate court will not disturb it.— Hamilton v. Henneman (Ind. App.) 43.

A judgment will not be reversed where there is some evidence to support it.-Fox v. Cox (Ind. App.) 92.

The appellate court will not weigh the evidence.-Heath v. Carter (Ind. App.) 318.

Where special findings are supported by some evidence, though the evidence on the whole is conflicting, the judgment of the court thereon, contrary to the general verdict, is conclusive.Bachman v. Cooper (Ind. App.) 394.

An appellate court will not weight conflicting evidence, to determine the correctness of the judgment.-Thomas' Estate v. Snyder (Ind. App.) 398.

A judgment based on special findings on conCent. Life Ins. Co. v. Hollowell (Ind. App.) 399. flicting evidence will not be reversed.-Union

Verdict on conflicting evidence will not be disturbed.-Perrin Nat. Bank v. Thompson (Ind. App.) 410.

A verdict on conflicting evidence is conclusive. -Masons' Union Life Ins. Ass'n v. Brockman (Ind. App.) 493.

A verdict will not be disturbed on the weight of the evidence.-Cooper v. Hocking Val. Nat. Bank (Ind. App.) 775.

Evidence cannot be considered to determine its preponderance.-City of Columbia City v. Langohr (Ind. App.) 831.

Where there is any evidence to establish the facts found by a jury, the appellate court cannot, on a bill of exceptions, pass on its weight. -Fox v. City of Chelsea (Mass.) 622.

§ 24.

Harmless error.

Where all the instructions were not calculated to mislead, that certain of them were erroneous held no ground for reversal.-Rock Island & P. Ry. Co. v. Krapp (Ill.) 663.

Decrees will not be reversed for erroneous rulings on evidence, unless different rulings might have induced different decrees.-Pfaff v. Cilsdorf (Ill.) 670.

An instruction which leaves the jury to construe the terms of a contract held harmless error.-Shepard v. Mills (Ill.) 709.

A case will not be reversed for objectionable instruction where no prejudice is shown.Siegle v. Rush (Ill.) 1008.

Admission of ordinance erroneously defining rule of negligence of street railway held harmless error, where instructions fully stated correct rule.-Rockford City Ry. Co. v. Blake (Ill.)

1070.

which was afterwards introduced, the error Where testimony was erroneously excluded, was harmless.-City of East Dubuque v. Burhyte (Ill.) 1077.

harmless error where the law was afterwards The giving of an erroneous instruction held correctly stated to the jury.-City of East Dubuque v. Burhyte (Ill.) 1077.

Where defendant in ejectment answers by a general denial and by special paragraphs, and facts found could be proved under general denial, error in overruling a demurrer to special paragraphs is harmless.-Watson v. Tindall (Ind. Sup.) 468.

Where plaintiff appeals, and the record shows that he has no cause of action, intervening errors must be considered harmless, and the judgment affirmed.-Carmel Natural Gas & Improvement Co. v. Small (Ind. Sup.) 476.

Overruling a demurrer to some of the paragraphs of a complaint held harmless.-Cincinnati, H. & I. R. Co. v. Cregor (Ind. Sup.) 760.

Where a judgment for defendant is clearly right, it will not be reversed on account of an