treated as if an order of consolidation had been
made.-Bramell v. Adams (Mo.) 931; Same v.
Cole, Id.; Same v. Collins, Id.

§ 2. Nature and grounds of appellate
jurisdiction.

Objection first made in supreme court is too
late.-Forshee v. Willis (Tenn. Sup.) 703.

Where the error is not fundamental, it will
not be considered by the supreme court unless
assigned in the court of civil appeals.-San An-
tonio & A. P. Ry. Co. v. Gurley (Tex. Sup.)

-

Assignments of error held insufficient, as not
complaining of any proceeding of the trial
court, and as being mere arguments.-Spencer
v. Jones (Tex. Civ. App.) 29.

Where an issue raised by a portion of a plead-
ing was not submitted to the jury, no error
can be assigned to the court's overruling an ex-
ception thereto.-Caswell v. Hopson (Tex. Civ.
App.) 54.

3.

Decisions reviewable.

An order adjudging insufficient the response
of a railroad company to a rule to show cause
why it should not report a statement of net
earnings on certain business is not final.-Louis-
ville & N. R. Co. v. Schmidt (Ky.) 218.

Order granting new trial is not a final order.
--Mergenthal v. South Covington & C. Ry. Co.
(Ky.) 257.

An order directing the clerk to correct his
memorandum of appeal is final, and cannot be
reviewed on final hearing of the appeal.-Wor-
sham v. Lancaster (Ky.) 448.

Act March 14, 1898, increasing from $100 to
$200 the minimum amount of a judgment from
which an appeal may be taken to the court of
appeals, does not apply to an appeal granted in
the lower court before the act took effect.-Don-
aldson v. Security Trust & Safety-Vault Co.
(Ky.) 763.

Under Mill. & V. Code, § 3895, and Shan-
non's Code, § 4911, a decree in a proceeding in
the nature of ejectment awarding possession is
final, notwithstanding adjustment of taxes,
etc., is left open.-Rawley v. Burris (Tenn. Ch.
App.) 176.

An appeal will not lie from a judgment not
final. Therriault v. Compere (Tex. Civ. App.)

750.

§ 4. Right of review.

Error in overruling exceptions to a petition
on a note apparently barred is not ground for
reversing a judgment based on an amendment
setting up a written promise to pay the note.-
Clayton v. Watkins (Tex. Civ. App.) 810.

5. Presentation and reservation in
lower court of grounds of review.
It is too late to assign error for the first time
on appeal.-Anderson v. Thomas (Ind. T.) 301.
An assignment that the court erred in admit-
ting testimony over defendant's objection is
too general to be considered.-Purcell Mill &
Elevator Co. v. Kirkland (Ind. T.) 311.

Where the motion for a new trial which was
overruled is not preserved by the bill of ex-
ceptions, matters of exception not constituting
a part of the record proper will not be con-
sidered.-Reynolds v. Citizens' Ry. Co. (Mo.)

895.

Where the overruling of a motion for a new
trial is not excepted to, only the record proper
can be reviewed.-Abbott v. Gillum (Mo.) 1067.
The remedy for a failure of the court of
chancery appeals to find and report facts, and
to recite evidence to which exceptions were
taken, is an application to said court for a
more full and definite finding.-Kimbro v. Con-
tinental Ins. Co. (Tenn. Sup.) 413.

Where no exception was taken to a master's
report, an assignment of error as to charges
therein is not available. - Rogers v. Rogers
(Tenn. Sup.) 701.

In the absence of an exception to the denial
of a continuance, an assignment of error based
on it cannot be considered.-McGregor v. Skin-
ner (Tex. Civ. App.) 398.

Vendee cannot, on appeal, complain of error
in refusing to instruct on the question of the
vendor's fraud if no instruction on that issue
was requested.-Hurst v. McMullen (Tex. Civ.
App.) 666.

Objections to the admission of parol evidence
cannot be first raised on appeal. Alley V.
Bailey (Tex. Civ. App.) 821.

§ 6. Requisites and proceedings for
transfer of cause.

was

judgment rendered January 21, 1896,
An appeal granted January 21, 1898. from a
granted within two years next after the right
to appeal accrued.-Board of Councilmen of
City of Frankfort v. Bank of Kentucky (Ky.)
872; Same v. Farmers' Bank of Kentucky,
Id.

Where a bond required as a condition to the
granting of a writ of error is not given within
the time prescribed, the grant has no effect.-
Mauldin v. Southern Pac. Co. (Tex. Sup.) 964.

Under Rev. St. 1895, art. 1401, an order of
the district court judge made in vacation, per-
mitting an appeal in a cause tried by him with-
out filing a bond, confers no jurisdiction on
the appellate court.-Lambert v. Western Un-
ion Tel. Co. (Tex. Civ. App.) 476.

Request to affirm on certificate for failure
to record in time denied.-Anderson v. Waco
State Bank (Tex. Civ. App.) 552.

8 7. Record and proceedings not in rec-
ord.

Error in striking a plea can only be consider-
ed where the motion and pleading are brought
up by a bill of exceptions.-Halpern v. Spen-
cer (Ark.) 637.

The statement required by Civ. Code, § 739,
must show the date of the judgment appealed
from and the page of the record on which it
can be found.-Hall v. Tarvin (Ky.) 434.

In determining whether there should be an
affirmance as a delay case, the court cannot
consider the statement of counsel as to his in-
tention.-Louisville & N. R. Co. v. Schmidt
(Ky.) 583.

Where an exception is not preserved by the
bill of exceptions to the overruling of a motion
for a new trial, there is nothing to review ex-
cept the record proper.-Reynolds v. Citizens'
Ry. Co. (Mo.) 895.

Appellant's abstract must contain enough of
record to enable court to pass on alleged errors
without going to transcript.-Snoddy v. Jasper
County (Mo.) 906.

Excluded evidence may be brought into the
record by being included in the minutes, with
the rulings and exceptions thereon; but a
mere reference to the evidence in general terms
will not suffice.-Nance v. Chesney (Tenn. Sup.)
690.

Admissibility of excluded evidence cannot be
reviewed unless it be made a part of the record
by bill of exceptions.-Nance v. Chesney (Tenn.
Sup.) 690.

Where a statement of facts on appeal was
unnecessarily voluminous, held that, while the
presentation of the case made it unnecessary to
strike it out. the cost of copying it in the tran-
script should be adjudged against appellant.—

Louisiana Western Extension Ry. Co. v. Car-
stens (Tex. Civ. App.) 36.

Assignments of error relating to refusal to
give special instructions to admission of testi-
mony cannot be considered in absence of state-
ment of facts. Alvarado Water-Supply &
Light Co. v. Adoue (Tex. Civ. App.) 281.
Where the charge is copied into the agreed
statement, but it does not appear that the par-

ties intended to admit the recitals of the
charge, such recitals cannot be considered as
part of the agreed statement.-Missouri, K. &
T. Ry. Co. of Texas v. Fisher (Tex. Civ. App.)
284.

§ 9. Briefs.

Where no briefs are filed by appellant, as re-
quired by rule 10 of the court of appeals, the
appeal will be dismissed.-Waite v. Gulf, C. &
S. F. R. Co. (Ind. T.) 302.

Where appellant's brief does not show the
ground of objections to evidence, the court
will not search a voluminous record to find
lar (Tex. Civ. App.) 553.
the particular objections urged.-Godair v. Til-

The refusal to give special requests will not
be reviewed unless they are set out in the
brief.-First Nat. Bank v. Stephens (Tex. Civ.
App.) 832.

-

Failure to submit the issue of plaintiff's con-
tributory negligence does not prejudice him,

even where the court calls attention to defend-

ants' plea of that issue.-Boyd v. Cross (Tex.
Civ. App.) 478.

Affidavit of the clerk of court held insufficient
to show that statement of facts was filed at a
later date than that indorsed on it, and dated
back by order of judge.-Blount v. Lewis (Tex.
Civ. App.) 681.

Statement of facts shown by judge's certifi-
cate to have been filed after time allowed will
be stricken from record. Blount v. Lewis
(Tex. Civ. App.) 681.

-

Assignments of error in admission of evi-
dence cannot be considered in absence of state-
ment of facts.-Greer v. First Nat. Bank of
Marble Falls (Tex. Civ. App.) 1045.

§ 8. Assignment of errors.

The assignment as a ground for new trial
that the decision is against the law is too gen-
eral to be considered.-Hollingsworth v. War-
nock (Ky.) 770.

Assignment of error that verdict is against
the charge is superfluous, there being one that it
is against the evidence.-Chattanooga Electric
Ry. Co. v. Lawson (Tenn. Sup.) 489.

A judgment rendered on improper pleadings
is "error in law apparent on the face of the
record," which the court on appeal should con-
sider without an assignment of error, under
Rev. St. 1895, art. 1014.-Holloway Seed Co.
v. City Nat. Bank (Tex. Sup.) 95.

Instruction can be reviewed only as to partic-
ulars in respect to which error is assigned.—
Mixon v. Miles (Tex. Sup.) 966.

Issue as to right of administrator to prosecute
action as such cannot be first raised on appeal.
-Bull v. Jones (Tex. Civ. App.) 474.

Where assignment of error in sustaining gen-
eral and special demurrers is good only as to
general demurrer, it will not be considered.-
Marshall v. Atascosa County (Tex. Civ. App.)
680.

§ 10. Dismissal, withdrawal, or aban-
donment.

An appeal held not to have been abandoned.-
Cherry v. York (Tenn. Ch. App.) 184.

tion is not certified by the trial judge, as re-
Ex parte Wickson (Tex. Cr. App.) 365.
quired by statute, the appeal will be dismissed.

Where the record in a cause tried in vaca-

§ 11. Hearing and rehearing.

A stranger to the record has no right to be
heard without the consent of the parties.-Lou-
isville & N. R. Co. v. Commonwealth (Ky.) 210.

Petition for rehearing seeking to prove facts
not shown by supplied record (original file of
papers having been destroyed) should not be
granted on ground that solicitors believed un-
til after the trial such facts appeared in such
record.-Casey & Hedges Mfg. Co. v. Weather-
ly (Tenn. Sup.) 432.

There can be no rehearing of a judgment
refusing a writ of error.-Hines v. Morse (Tex.
Sup.) 516.

Under Rev. St. 1895, arts. 942, 1029, 1030,
and Sup. Ct. Rule 1 (31 S. W. v.), the supreme
court has no jurisdiction to grant a writ of
error to the court of civil appeals where the
petition for rehearing was not filed within 15
days after the decision.-McGhee v. Romatka
(Tex. Sup.) 520.

§ 12. Review-Scope and extent in gen-
eral.

Question of power of county judge to make
contract for county may be raised on appeal
without assignment of error. - Holtzclaw v.
Hamilton County (Tenn. Sup.) 421.

In reviewing order refusing to remove cause
because amount in controversy was not large
enough, entire record may be examined.-Build-
ing & Loan Ass'n of Dakota v. Cunningham
(Tex. Sup.) 714.

A party's remedy, where a court of civil ap-
peals makes erroneous findings of fact, held to
be by writ of error, and not mandamus.-Moore
v. Waco Bldg. Ass'n (Tex. Sup.) 716.

District and county court rule 101 (20 S. W.
xviii.) requires an assignment of cross error to
be filed in the trial court.-Patterson v. Seeton
(Tex. Civ. App.) 732.

An assignment that the court erred in its
charge, which fails to specifically point out the
error, will not be considered.-Therriault v.
Compere (Tex. Civ. App.) 750.

Excessive verdict cannot be reviewed in the
absence of assignment of error questioning the
amount.-Classen v. Elmendorf (Tex. Civ. Äpp.)

1023.

When answer to which demurrer is sustained
sets up statute which had been amended, but
makes no reference to amendment, appellate
court can consider only statute as set up in
the answer.-Germania Life Ins. Co. v. Peetz
(Tex. Civ. App.) 687.

One judgment debtor held not entitled to com-
plain of judgment against co-defendant who
failed to appeal.-Sanderson v. Railey (Tex.
Civ. App.) 667.

$ 14.

Presumptions.

Entire record not being filed, question raised
by plea in abatement cannot be determined.
Gunn v. Strong (Ky.) 339.

Where a judgment for the recovery of land
specifically describes it, it will be presumed
that the description was taken from an exhibit
referred to in the petition for a description, the
exhibit being absent from the record.-De Ha-
ven v. De Haven's Adm'r (Ky.) 597.

In the absence of the instructions and evi-
dence, the court will presume that they au-
thorized an order requiring plaintiff to reduce
his judgment on the penalty of a new trial.
Johnson's Adm'r v. Johnson (Ky.) 883.

It will be presumed on appeal that a deed
was properly delivered if on the trial no objec-
tion was made to its admission in evidence.
-Hurst v. McMullen (Tex. Civ. App.) 666.
$15.

Discretion of lower court.

A refusal to grant a continuance will be sus-
tained, unless the court has abused its discre-
tion.-Purcell Mill & Elevator Co. v. Kirkland
(Ind. T.) 311.

Submission of issue to the jury in chancery
being discretionary, error cannot be based there-
on.-Hall v. Harris (Mo.) 506.

A chancellor's action in setting aside an order
pro confesso, and permitting an answer, held not
reversible unless palpable injustice was done.-
Edwards v. Turner (Tenn. Ch. App.) 144;
Turner v. Edwards, Id.

Motion based on unavoidable absence of
counsel held to be addressed to court's discre-
tion, and not reviewable unless abused.-Hoef-
ling v. Courtney (Tex. Civ. App.) 686.
§ 16.

Questions of fact, verdicts, and
findings.
A verdict on conflicting evidence will not be
disturbed. Purcell Mill & Elevator Co. v.
Kirkland (Ind. T.) 311.

A finding, on a motion for a continuance,
that movant was lacking in diligence, will not
be disturbed, if there is any evidence to sus-
tain it.-Purcell Mill & Elevator Co. v. Kirk-
land (Ind. T.) 311.

The preponderance of the evidence showing
that plaintiff's judgment is for too much, it is
reversed.-Kremer v. Murphy (Ky.) 230.

The chancellor's findings of fact are not en-
titled to the weight of a verdict of a jury
Wooley's Ex'rs v. Greenwade's Heirs (Ky.)

335.

Where an issue of fact ordered to be tried

out of chancery is by consent submitted to the
court, its finding is entitled to the weight of
the verdict of a properly instructed jury, and
will not be set aside unless palpably against
the evidence.-Callis v. Garrett's Ex'rs (Ky.)
595.

Under Ky. St. § 4850, providing that the same
effect shall be given to the verdict of a jury
in a will case as in any other civil proceeding,
where the evidence as to manual capacity of
the testator is conflicting, a verdict rejecting
the will will not be disturbed. Lischy V.
Schrader (Ky.) 611.

Chancellor's findings of fact on conflicting ev-
idence will not be disturbed.-George v. Reams
(Ky.) 758.

A verdict found on conflicting evidence suffi-
cient to support a verdict for either party will
not be disturbed on appeal.-Sharpe v. Mc-
Creery (Ky.) 1075.

Rejection of evidence cannot be complained
of where the court states that in making its
findings it considered it as competent.-Kimbro
v. Continental Ins. Co. (Tenn. Sup.) 413.

Finding by court of chancery appeals that
transfer is fraudulent and void held conclu-
sive on supreme_court.-McQuade v. Williams
(Tenn. Sup.) 427.

Where incompetent evidence has been allow-
the judgment it must appear to have had no ef-
ed in favor of the prevailing party, to sustain
fect on the verdict prejudicial to the loser.-
Griffis v. Payne (Tex. Sup.) 973.

A judgment on conflicting evidence held not
reversible, though the preponderating evidence
favors appellant.-Houston & T. C. R. Co. v.
Laskowski (Tex. Civ. App.) 59.

A finding of court will be sustained if there
is evidence sufficient to sustain it, though the
weight of all the evidence is against it.-Koeh-
ler v. Cochran (Tex. Civ. App.) 394.

A verdict based on conflicting evidence will
not be disturbed.-Galveston, H. & S. A. Ry.
Co. v. Patterson (Tex. Civ. App.) 686.

A trial court's findings of fact will not be
disturbed where there is evidence in the record
to sustain them.-Abeel v. Tasker (Tex. Civ.
App.) 738.

Where the jury and court have agreed on
the sufficiency of evidence to support a find-
ing of fact, the finding will rarely be reversed.
-Therriault v. Compere (Tex. Civ. App.) 750.

An assignment of error that the court erred
in not holding that certain testimony showed
fraud held unavailable where the cause was
tried by a jury.-Hillboldt v. Waugh (Tex. Civ.
App.) 829.

Findings as to contributory negligence on
sufficient evidence cannot be disturbed.-San

Antonio & A. P. Ry. Co. v. Hammon (Tex.
Civ. App.) 1025.

When evidence is conflicting, and there is
sufficient to sustain verdict, it will not be dis-
turbed.-City Ry. Co. v. Thompson (Tex. Civ.
App.) 1038.

Finding as to whether there had been ratifi-
cation of agent's acts is conclusive, where there
is no statement of facts.-Greer v. First Nat.
Bank of Marble Falls (Tex. Civ. App.) 1045.

aside verdict as excessive, it must appear that
In order to authorize appellate court to set
jury was influenced by prejudice or passion.-
Galveston, H. & H. R. Co. v. Bohan (Tex. Civ.
App.) 1050.

§ 17.

Harmless error.

Admission of evidence of a new promise to
take a debt out of the statute of limitations is
harmless, where the debt is not barred.-Sparks
v. Childers (Ind. T.) 316.

To require the jury to find "willful" negli-
gence in order to give punitive damages is
harmless error.-Louisville & N. R. Čo. v.
Chism (Ky.) 251.

It is harmless error to sustain demurrer to
plea of contributory negligence where the evi-
dence shows that plaintiff was of such tender
years he could not be guilty of contributory
negligence.-South Covington & C. St. Ry. Co.
v. Herrklotz (Ky.) 265.