a matter of relief and not of remedy, was 45(1) (Nev.) Two or more causes of action cannot be united in the same complaint, unless the joinder is authorized by the Practice Act. -Walser v. Moran, 173 P. 1149. Practice Act, § 97, specifying cases in which two or more causes can be joined in same complaint, is to be liberally construed, with a view to effect its object.-Id. may have in property described as a point in a certain lake is insufficient as color of title; parol evidence being necessary to identify the property.-Schmitz v. Klee, 173 P. 1026. 85(1) (Wash.) In the absence of proof of an adverse holding, it will be presumed that the holding was permissive, and that the possession was that of the owners.-Schmitz v. Klee, 173 P. 1026. An entry must be hostile, or it will be presumed permissive.-Id. III. PLEADING, EVIDENCE, TRIAL, 45(4) (Nev.) A complaint stating five causes of action, the first being for breach of employ-114(1) (Cal.App.) In an action between ment contract, the second and third being for grantees of a common grantor, in which defendshares of stock alleged to have been acquired by ants set up paramount title derived from redefendants in virtue of their contractual relamote owners by the common grantor after tionship with plaintiff, or for value thereof, and his deed to plaintiff, evidence held to show adfifth for a discovery and accounting from deverse possession by the common grantor and fendants of all their dealings with certain prop- plaintiff as his grantee, which barred the title erty of plaintiffs entrusted to them under an which the remote owners attempted to convey. executory contract, is not bad for misjoinder; Bond v. Aickley, 173 P. 483. all such causes of action arising out of contract and being authorized by Practice Act, § 97, subd. 1, permitting several causes of action to be united in same complaint, when arising out of contract, express or implied.-Walser v. Moran, 173 P. 1149. AFFIDAVITS. See Contempt, 54; Criminal Law, 211; AFTER-ACQUIRED PROPERTY. See Deeds, 116. AGENCY. 50(5) (Nev.) A complaint alleging that a defendant acquired a part of plaintiff's property under a contract as their attorney, and that a contract with another defendant, whereby latter was to receive a portion of plaintiffs' property, was void in its inception, because fraudulent, and praying for damages for defendants' failure See Principal and Agent. to protect such property from loss, is bad, because it does not state cause of action against both defendants; the defendants being jointly liable, if at all, and the complaint showing on its face that latter defendant had no interest in property, and hence no duty of protecting it from loss.-Walser v. Moran, 173 P. 1149. ADJOINING LANDOWNERS. See Boundaries. ADMINISTRATION. See Executors and Administrators. ADMISSIONS. See Evidence, 213-249; Pleading, 127. 129, 214. ADVERSE CLAIM. See Quieting Title. ADVERSE POSSESSION. See Forcible Entry and Detainer, 9. I. NATURE AND REQUISITES. (A) Acquisition of Rights by Prescription in General. 7(2) (Wash.) Government land cannot be acquired by adverse possession.-Schmitz v. Klee, 173 P. 1026. (C) Visible and Notorious Possession. 31 (Wash.) There must be some open assertion of hostile title, notice of which must be brought home to the owners of the land.— Schmitz v. Klee, 173 P. 1026. AGRICULTURE. (Or.) A statute such as L. O. L. § 7439, creating a lien for the clearing and improvement of land, etc., is remedial, and should be liberally construed in favor of those for whose benefit it was enacted.-Craig v. Crystal Realty Co., 173 P. 322. Under L. O. L. § 7439, plaintiff, plowing land and moving the earth so broken up into the low places, preparing the soil for cultivation, and making a ditch and clearing the land of sagebrush, was entitled to a lien.-Id. Although owner did not originally contract with plaintiff for, or consent to, his clearing of land, yet where by its agent it ratified and approved the work, it subjected the land to a lien, under L. O. L. § 7439.-Id. 12 (Or.) Under L. O. L § 7440, notice of lien for clearing and improving land filed within 60 days after the final completion of omitted work was sufficient.-Craig v. Crystal Realty Co., 173 P. 322. 15 (Or.) Under the liberal interpretation to be given to statutes creating a lien, such as L. O. L. § 7439, a substantial compliance with its requirements is essential to validity of notice of lien, and in a suit for its foreclosure the complaint must bring plaintiff within its purview.-Craig v. Crystal Realty Co., 173 P. 999 In suit under L. O. L. § 7439, to foreclose lien for clearing and improving land, evidence held to show that the work done by plaintiff was performed at the request of the owner of the land or by the person in the lawful possession thereof.-Id. AIDER BY VERDICT. See Pleading, 433. ALIBI. (F) Hostile Character of Possession. 71(1) (Wash.) To operate as color of title, an instrument must purport to convey title to the grantee or his privies, and must describe and purport to convey the land in controversy, See Criminal Law, 333. without aid by parol evidence.-Schmitz Klee, 173 P. 1026. V. 80(2) (Wash.) An instrument granting ALIENATION. merely whatever interest and title the grantor See Indians, 15; Perpetuities. III. DECISIONS REVIEWABLE. (D) Finality of Determination. 70(4) (Wash.) Order denying motion, made before entry of judgment, to re-open case for further testimony, is not appealable.-Kahn v. Kahn, 173 P. 747. 82 (2) (Or.) Where, pending appeal, but before hearing, a decree is vacated and a new decree entered, the latter supersedes the former as the final decree, and is the only one from which an appeal will lie.-Oregon-Washington R. & Nav. Co. v. School Dist. No. 25 of Morrow County, 173 P. 261. 82(3) (Okl.) An order vacating a judgment under Rev. Laws 1910, §§ 5267, 5268, is an interlocutory order, and not a final order from which an appeal will lie.-Gilliam v. Kali-Inla Coal Co., 173 P. 69. 154(2) (Okl.) Defendant seeking review of overruling of demurrer to petition must elect to stand on the demurrer, and at once bring the case to Supreme Court for his right to appeal directly from the order sustaining the demurrer, without awaiting final judgment, is lost by answer.-Simmons v. Chestnut-Gibbons Grocery Co., 173 P. 217. 158(1) (Cal.App.) Where judgment went for plaintiff and defendant appealed, questions became moot where defendant paid the judgment.Hurt v. Bauer, 173 P. 601. TION IN LOWER COURT OF GROUNDS OF REVIEW. 3 (Wyo.) Petitioner, not being a party to V. PRESENTATION AND RESERVAthe cause and asking to appear only as amicus curiæ, is not entitled to file petition for rehear ing, at least not without consent of parties. Burns v. State, 173 P. 785. 100(3) (Or.) Where complaint for trespass alleged usefulness of plaintiff's property for grazing, and that, if overstocked, the grass roots are killed out, and the land permanently injured, and that the trespass so injured the land, there was sufficient foundation for testimony of value of land before and after the trespass.-Boyd v. Grove, 173 P. 310. 100(4) (Or.) In action for damages to grass by trespass of sheep, it was pertinent to prove that the supply of feed was limited.-Boyd v. Grove, 173 P. 310. 100(8) (Or.) Where plaintiff alleged trespass by 700 of defendant's sheep, and defendants denied, except that 80 sheep got away from the herder, and trespassed, but were immediately removed, plaintiff was entitled to at least nominal damages; the trespass being admitted.-Boyd v. Grove, 173 P. 310. ANSWER. See Pleading, 85-129, 290. APPEAL AND ERROR. See Abatement and Revival, 69; Certiorari; Costs, 224, 260; Courts, 251; Criminal Law, 1017-1195; Estoppel, 68; Justices of the Peace, 139-163. For review of rulings in particular actions or proceedings, see also the various specific topics. (A) Issues and Questions in Lower Court, 169 (Kan.) On appeal the Supreme Court's jurisdiction is exclusively appellate, for the determination of errors alleged to have been committed in the trial courts, and error cannot be predicated on matters not presented to the trial court; and to uphold constitutionality of Code Civ. Proc. $ 580 (Gen. St. 1915, § 7484), allowing taking of further testimony in trial court, such interpretation must be given as would not confound appellate with original jurisdiction.-Swandt v. Ballentine, 173 P. 926. ~171(1) (Okl.) Where a party tries his case upon one theory in the trial court, he will not be permitted to change in the Supreme Court and prevail upon another theory and issue.Hughes v. Kano, 173 P. 447. 173(9) (Colo.) A question of estoppel not considered on the trial and not involved in the pleadings will not be considered by the appellate court. Baldwin v. Scott, 173 P. 716. 177 (Okl.) Litigants desiring to take advantage of Rev. Laws 1910, § 1557, disqualifying county attorneys from practice in civil cases, must do so at or during the trial, and not wait until after adverse verdict and then first urge 173 P. 648. the objection on appeal.-Alexander v. Smith, (B) Objections and Motions, and Rulings Thereon. 187(3) (Utah) Where no objection is made below that all parties in interest are not made parties to the action, objection is waived.—Progress Co. v. Salt Lake City, 173 P. 705. 204(2) (Cal.App.) In action for death of a passenger in an automobile struck by defendant's train at a crossing, an assignment of error that the absence of gates or barriers at the crossing was not evidence of negligence because defendant, not being the owner of the track in question, was not obliged to maintain barriers at the crossing, will not be considered in the absence of objection below to such evidence.-Alloggi v. Southern Pac. Co., 173 P. 1117. VII. REQUISITES AND PROCEEDINGS (A) Time of Taking Proceedings. 206(1) (Mont.) The rule that offer of proof, disclosing what witness would have testified to, must be made, to preserve for review ruling sustaining objection to question, does not apply, where question indicates evidence sought, or where effect of ruling is to exclude all evidence on given subject, under mistaken notion that it is not within issues.-Eby v. City of Lewistown, 173 P. 1163. 215(1) (Colo.) Instructions to which no ob-339(1) (Kan.) Appeal from motion for jection was made or exception reserved in lower judgment on the pleadings must be taken withcourt will not be reviewed.-Baldwin v. Scott, in six months allowed by Code Civ. Proc. § 572 (Gen. St. 1915, § 7476).-Smith v. Lundy, 173 P. 275. 173 P. 716. 275. 237(6) (Kan.) In action for actual and exemplary damages for colliding with plaintiff's 345(1) (Kan.) Filing of motion for new team, joining an action for malicious prosecu- trial court does not extend time provided by trial and its pendency for several months in tion in causing plaintiff's arrest, under Gen. St. 1915, § 3460, held, that defendant requesting Code Civ. Proc. § 572 (Gen. St. 1915, § 7476), no findings showing on which cause of action for taking of appeal which only seeks review of the verdict was based, made no affirmative show-question of law.-Smith v. Lundy, 173 P. 275. ing of error.-Flynn v. Hollenback, 173 P. 925.347(1) (Cal.) Where judgment was not entered until December 18th, notice of entry serv ed December 7th on attorneys for appellant was premature and ineffectual, and appellant, under statutes regulating appeals in effect prior to 1915, had six months from actual entry of judgment in which to appeal.-North American Dredging Co. of Nevada v. Outer Harbor Dock & Wharf Co., 173 P. 756. (C) Exceptions. 248 (Wash.) A ruling of the court to which no exception was taken cannot be reviewed on appeal.-Perry v. London Assur. Corporation of London, 173 P. 721. 257 (Utah) In the absence of a record showing a timely demand for a jury trial and a refusal and exception, the right to jury trial will be held to have been waived.-Utah State Building & Loan Ass'n v. Perkins, 173 P. 950. 263(1) (Okl.) Instructions will not be examined by Supreme Court unless properly excepted to in the trial court.-Spencer v. Lambert, 173 P. 1035. 265(3) (Wash.) Where findings were commingled with recitals of decree, no exceptions to findings were necessary in view of Rem. Code 1915, § 382, providing it shall not be necessary to except to any ruling or decision which is embodied in written judgment.-Moss v. Rubison, 173 P. 625. 272(2) (Okl.) This court will not review an instruction given on trial of a cause, unless the instruction is excepted to at the time it is given. -Firebaugh v. Du Bois, 173 P. 1126. (D) Motions for New Trial. 356 (Idaho) An appeal from an order denying a new trial will be dismissed, upon motion, for lack of diligence by appellant, where more than a year has elapsed between the date of judgment and the hearing of the motion for a new trial, in the absence of a sufficient excuse for the delay.-Livingstone v. Aberdeen-Springfield Canal Co., 173 P. 1086. 356 (Kan.) A ruling sustaining a demurrer cannot be reviewed unless an appeal is taken within six months thereafter, as required by Civ. Code, § 572 (Gen. St. 1915, § 7476).-Fairbanks, Morse & Co. v. Simmons, 173 P. 277. (B) Petition or Prayer, Allowance, and Certificate or Affidavit. 359 (Idaho) Where the statutes give an appeal from an inferior court to the district court, such appeal may be taken as matter of right, and the inferior court has no discretion as to granting or refusing it.-Hanson v. Weniger, 173 P. 1085. 284 (Kan.) No motion for new trial is necessary before taking appeal from trial court's (C) Payment of Fees or Costs. and Bonds ruling on mere question of law.-Smith v. Lundy, 173 P. 275. 285 (Kan.) Motion for judgment on the pleadings invokes judgment on questions of law upon pleaded and conceded facts, and judgment thereon is equivalent to ruling on demurrer, and is a ruling on merits of action or defense within Code Civ. Proc. § 565 (Gen. St. 1915, 7469), and its correctness is purely question of law. Smith v. Lundy, 173 P. 275. or Other Securities. 376 (Wash.) In corporation in solvency proceedings, on appeal from an order fixing priority as between claimants, the receiver is not an adverse party, and where he is made obligee in appeal bond, the appeal will be dismissed.Salvino v. Taylor Mill Co., 173 P. 433. 387(3) (Cal.App.) Where notice of appeal was filed before expiration of statutory period, an undertaking filed five days thereafter was 300 (Colo.) Defendants' failure to comply within time.-Linn v. Peirsol, 173 P. 763. with Code Civ. Proc. § 237, and rule 8 (161390 (Wash.) Rem. Code, § 1734, does not Pac. vii), requiring motion for new trial, or authorize amendment where one who is not an order dispensing therewith, within five days adverse party is made obligee in bond.-Salvino after judgment, is fatal to their right of review, v. Taylor Mill Co., 173 P. 433. and filing, nearly six weeks after entry of judg ment, of application dispensing with motion, 392 (Idaho) Under Rev. Codes, § 4809, any would not cure omission; judgment having been insufficiency or defect in an undertaking on apentered with knowledge of defendants, although peal is waived unless respondent within 20 days in their absence, and they having been notified, after filing of undertaking file and serve a noof entry on following day.-Keenan v. Colorado tice specifically pointing out the defects, and Farm Lands Co., 173 P. 1140. 302(1) (Kan.) Under Code Civ. Proc. 305 (Gen. St. 1915, § 7205), motion for a new trial (even if necessary or proper) held to be sufficient in form to call attention to alleged error in sustaining a demurrer to plaintiff's evi none not so pointed out may be urged against 8ment Co. v. Chriswell, 173 P. 326. undertaking.--Clear Lake Power & Improve 395 (N.M.) Under Laws 1917, c. 43, § 15, an appeal or writ of error abates where no cost bond is filed within the time required by 395 (N.M.) Under Laws 1917, c. 43, § 15, [ment of facts, exhibits made by statute and an appeal or writ of error abates where no certificate of trial judge a part thereof were cost bill is filed within the time required by also stricken.-Id. statute.-Burles v. Roberts, 173 P. 1035. VIII. EFFECT OF TRANSFER OF THEREFOR. (A) Powers and Proceedings of Lower Court. 439 (Or.) The court does not lose its jurisdiction to vacate a decree and render a new one because an appeal from the decree has been perfected, prior to the hearing on the appeal.Oregon-Washington R. & Nav. Co. v. School Dist. No. 25 of Morrow County, 173 P. 261. (D) Contents, Making, and Settlement of Case or Statement of Facts. 564(4) (Wash.) Where appellant's statement of facts was stricken for want of proper notice to respondent of application for extension of time in which to file it, and question has been twice reviewed, Supreme Court will not review again, and grant application to reinstate. Messick v. National Council of Knights and Ladies of Security, 173 P. 940. (F) Making, Form, and Requisites of Transcript or Return. IX. SUPERSEDEAS OR STAY OF PRO-607(2) (Idaho) The statute requiring the CEEDINGS. 485(2) (Or.) Where appeal has been per fected, and stay bond, required by L. O. L. S 553, filed, the execution theretofore issued does not' become functus officio, and the judgment creditor is not compelled to take out a new execution upon giving the counter bond.--Gearin v. Fleckenstein, 173 P. 569. filing of a præcipe within five days after the filing of notice of appeal is directory, and not mandatory, and the time of filing the præcipe may be considered in connection with the question of diligence in taking the appeal.-Clear Lake Power & Improvement Co. v. Chriswell, 173 P. 326. (G) Authentication and Certification. X. RECORD AND PROCEEDINGS NOT 612(5) (Wash.) On appeal, motion supported IN RECORD. (A) Matters to be Shown by Record. 500(2) (Cal.App.) Where order made on demurrer does not appear in transcript, demurrer must be held to have been waived in view of Code Civ. Proc. § 670.-Watson v. Anderson, 173 P. 394. 501(4) (Wash.) Where the record does not show that exceptions taken to instructions were called to the court's attention, they cannot be considered on appeal.-Hill v. Arthur, 173 P. 1092. 501(4) (Wash.) Where statement of facts and record do not disclose any exception to fusal to instruct, Supreme Court cannot consider assignment of error upon such refusal.Fitzgerald v. City of Centralia, 173 P. 631. by affidavit presenting issues of fact cannot be considered, except upon a properly certified record showing all evidence in the cause, at least upon that portion of judgment appealed from.-Kahn v. Kahn, 173 P. 747. Certificate of judge that matters embodied in a certain affidavit are matters occurring in the cause and are a "portion" of the record, which was introduced, together with a motion to reopen for further testimony, prior to signing of finding of fact, is insufficient to authorize a review of matters of fact, not purporting to be complete record.-Id. 613(2) (Or.) A bill of exceptions setting re-instructions with exceptions thereto, exhibits out the instructions, exceptions thereto, refused not physically attached to the bill, but certified in trial judge's certificate to contain a complete transcript of the evidence, is sufficient for consideration of rulings on motions for nonsuit and directed verdict.-Malloy v. MarshallWells Hardware Co., 173 P. 267. (H) Transmission, Filing, Printing, and Service of Copies. 510 (Or.) The contention that the state court lost its jurisdiction on defendant's filing petition and bond for removal to the federal court, even if otherwise well taken, cannot be sustained, where the bill of exceptions shows no evidence of such filing, although the petition and bond alleged to have been filed were at-621(1) (Idaho) Party desiring to procure retached to answer as exhibits.-Malloy v. Mar-porter's transcript of evidence for use on apshall-Wells Hardware Co., 173 P. 267. peal must use due diligence to procure it, and must procure an order for such transcript within a reasonable time from the taking of the appeal.-Clear Lake Power & Improvement Co. v. Chriswell, 173 P. 326. 511(2) (Cal.) Bill of exceptions, though not served in time, will be considered, where plaintiff was relieved of default, under Code Civ. Proc. § 473, and there was no abuse of discretion in granting such relief.-Jones v. Title Guarantee & Trust Co., 173 P. 586. (B) Scope and Contents of Record. 516 (N.M.) The record on appeal must show all of the record of the trial court necessary for a consideration of the questions presented for review, and this duty devolves upon the appellant or plaintiff in error.-Baca v. Catron, 173 P. 862. 520(1) (Okl.) Motions presented to trial court, the rulings thereon, and exceptions thereto, are not a part of the record proper and can only be preserved and presented for review on appeal to Supreme Court by incorporating the same by bill of exceptions or casemade.-Upperman v. Coon, 173 P. 522. (C) Necessity of Bill of Exceptions, Case, or Statement of Facts. 555 (Wash.) Statement of facts having been heretofore stricken by court on appeal such court cannot inquire into merits of trial court's decree. In re Eichler's Estate, 173 P. 435. 627(2) (Idaho) Where transcript has not been filed in Supreme Court within time limited by rules, or an extension thereof, the appeal will be dismissed, upon motion, in absence of sufficient showing of diligence.-Worthman v. Shane, 173 P. 750. (I) Defects, Objections, Amendment, and Correction. 635(1) (Or.) Under the drainage district law providing for appeal from county court to circuit court as in an equity case, and L. O. L. § 556, providing for trial anew on appeal from a decree, appeal from circuit court dismissing appeal from county court overruling objections to assessment will be dismissed, record not containing original petition, notice, or evidence.-Seaweard v. Malheur Drainage Dist., 173 P. 462. (J) Conclusiveness and Effect, Impeaching and Contradicting. 664(1) (Okl.) Motion to dismiss appeal because movant was a defendant below and was By an order of court on appeal striking state-not made a party to appeal would be denied where record did not show that he filed a demurrer below, though journal entry erroneously recited that he was a demurring defendant.Reinhart & Donovan Co. v. Board of Com'rs of Choctaw County, 173 P. 848. XVI. REVIEW. (A) Scope and Extent in General. 842(1) (Kan.) The allowance to be made on a survey for magnetic variation is a question of fact to be determined from the evidence by the trier of the facts.-McKee v. Rowley, 173 P. 284. (K) Questions Presented for Review. 671(1) (Okl.) The Supreme Court on appeal may properly consider only those questions be-843(1) (Cal.) On appeal from judgment and fore it upon the record or case made.-Ameri- also from order refusing to set judgment aside. can Surety Co. v. Williams, 173 P. 1132. it is unnecessary to consider latter appeal, ~671(3) (Utah) In the absence of bill of exsince matters presented thereon arise upon apceptions containing the evidence, assignment of peal from judgment.-J. F. Lucey Co. v. Meerror that the court's findings are not support- Mullen, 173 P. 1000 ed by the evidence cannot be reviewed, the presumption being that findings are in strict conformity with evidence.--Henriod v. East Tintic Development Co., 173 P. 134. XI. ASSIGNMENT OF ERRORS. 719(10) (Okl.) Trial errors, not appearing upon the record proper, cannot be considered by the Supreme Court, unless the overruling of a motion for a new trial is assigned as error. Faunce & Spinney v. Sam Daube & Co., 173 P. 70. 731(5) (Utah) Court on appeal will not review evidence, where there is no compliance with Comp. Laws 1907, § 3284, and rule 26 (97 Pac. x), requiring particulars wherein evidence is insufficient to be specified.-Holt v. Great Eastern Casualty Co., 173 P. 1168. 843 (2) (Wash.) On appeal from order correctly granting new trial on ground that instruction was erroneous, it is unnecessary for appellate court to consider other grounds of motion.-Parkhurst v. Elliott, 173 P. 731. 854(2) (Okl.) Where a cause is reversed and remanded, with instructions to proceed according to Supreme Court's opinion, and trial court renders judgment fairly conforming to opinion and mandate, it will not be disturbed on appeal because trial court gave erroneous reason for its action.-Nance v. Fouts, 173 P. 1038. 854(6) (Cal.App.) Where reason given by trial court for granting a new trial is erroneous, and motion is based on several grounds. the reviewing court is not concluded by the reason so given, but may examine the record When appellant contends there is no evidence, to determine if the new trial should have been assignment is sufficient because of manifest in- granted on any other ground set forth except ability to specify particulars; but, where ap-as to the sufficiency of the evidence, where pellant concedes there is some evidence, partic- conflicting.-Valentine v. Hayes, 173 P. 410. ulars wherein it is insufficient must be specified. -Id. XII. BRIEFS. 757(1) (Cal.App.) On appeal by the alternative method, part of record not printed in the brief, as required by Code Civ. Proc. § 953c, will not be considered.-Pitt v. Pensinger, 173 P. 598. 773(5) (Okl.) Where defendant in error files no brief and offers no excuse for his failure to do so, and brief of plaintiff in error reasonably sustains assignment of error, court will not search record for grounds on which to sustain judgment, but will reverse.-Farmers' Bank & Trust Co. v. Shetler, 173 P. 1126. XIII. DISMISSAL, WITHDRAWAL, 854(6) (Cal.App.) Where court granted motion for new trial, without specifying reasons, if there is any good reason contained in the notice, the order will not be disturbed.-Della Mora v. Favilla, 173 P. 770. (B) Interlocutory, Collateral, and Supplementary Proceedings and Questions. 870 (5) (Okl.) After overruling of demurrer to petition, defendant may answer, and when case is tried on original petition, and brought up by defendant, the ruling will be reviewed.-Simmons v. Chestnut-Gibbons Grocery Co., 173 P. 217. 873(1) (Utah) Erroneous ruling on matter to be incorporated in bill of exceptions cannot affect the judgment unless it is vulnerable on other grounds.-Henriod v. East Tintic Development Co., 173 P. 134. ex-873(3) (Cal.App.) Although appeal from judgment was taken more than 60 days after entry thereof, where case is one where statute abolishing appeal from orders denying new trial went into effect while motion for new trial was pending and undecided, action of court in denying motions for nonsuit and directed verdict is reviewable.-Linn v. Peirsol, 173 P. 763. 781(4) (Kan.) Court will not consider merits of appeal from judgment of forcible detention against a tenant after lease has pired: and that tenant, during litigation, had given bond to pay double value of use, damages, etc.. does not give him a continuing right to decision on merits.-Geinger v. Krein, 173 P. 298. 781(6) (Or.) In mandamus to compel reinstatement of plaintiff in municipal employ, even so late as when the cause reaches the Supreme Court on appeal, the fact of plaintiff's voluntary reinstatement may be made to appear, and the court in such case will refuse to proceed further. -Dryden v. Daly, 173 P. 667. 790 (3) (Or.) Since no more can be done on appeal than to vacate the decree appealed from and render another, where such has been done by the trial court pending the appeal, there is want of actual controversy only an academic question remaining, and the appeal must be dismissed. Oregon-Washington R. & Nav. Co. v. School Dist. No. 25 of Morrow County, 173 P. 261. XV. HEARING AND REHEARING. on the pleadings and error was not prosecuted, 876 (Okl.) Where court rendered judgment thereon in an appeal from an order overruling error could not be subsequently predicated a motion to vacate the judgment.-Dawson v. Kroning, 173 P. 521. (C) Parties Entitled to Allege Error. 877(2) (Utah) In a suit by a power company to enjoin appropriation of water from a stream by a city and others, plaintiff could not complain that an apportionment of water was erroneous as including that which flowed from certain springs, where such water was seepage to which plaintiff had no right.-Progress Co. v. Salt Lake City, 173 P. 705. 835(2) (Kan.) Oral representations neither pleaded nor found to have been relied upon 882(3) (Colo.) A party by whose consent a as to the size of lots would not entitle purchas-case is tried on a certain theory may not thereer, on rehearing, to urge his claim of reliance after complain that it was not the correct one.— thereon.-Fitzpatrick v. Crowley, 173 P. 300. Reno v. Reno & Juchem Ditch Co., 173 P. 877. |