be complained of on appeal, where a correct charge was not requested. Chicago, R. I. & G. Ry. Co. v. Linger, 156 S. W. 298.

8216 (Tex.Civ.App.) If an instruction in an action against a railroad for injuries at a railroad crossing was defective for not expressly submitting the issue of whether plaintiff was injured, defendant should have requested a special charge specifically submitting that issue, and, not having done so, cannot object on appeal. Missouri, K. & T. Ry. Co. of Texas v. Taylor, 156 S. W. 544.

8216 (Tex.Civ.App.) An instruction that the measure of damages for the loss of baggage, consisting of wearing apparel of the passenger, was such an amount as the jury should determine from the testimony to be the value of the trunk and the contents thereof, on the day of the loss, was correct as far as it went, and the carrier failing to request any amplification thereof by special_charge could not complain.-Missouri, K. & T. Ry. Co. of Texas v. Hailey, 156 S. W. 1119.

$219 (Tex.Civ.App.) Where the trial court's findings of fact were not objected to, they would be adopted by the Court of Civil Appeals, although such findings were not requested.-Wagner v. Geiselman, 156 S. W. 524.

§ 231 (Mo.App.) The impropriety of remarks in argument will not be considered on appeal where the objection thereto did not point out the specific statement complained of, or the specific ground of the objection.-Gentry v. Wabash R. Co., 156 S. W. 27.

8232 (Tex.Civ.App.) The admission of testimony which was admissible for the purpose of contradicting defendants' witnesses will not be held erroneous on appeal upon the ground that no predicate was laid; no such objection having been below.-Rice v. Taliaferro, 156 S. W. 242.

(D) Motions for New Trial.

§ 285 (Tex. Civ.App.) Fundamental error committed by sustaining a general demurrer to a sufficient complaint was reviewable on appeal, without a motion for a new trial.-Bailey v. Arnold, 156 S. W. 531.

§ 285 (Tex.Civ.App.) Any error in sustaining a demurrer to defendant's sole defense in an

§ 302 (Tex.Civ.App.) Assignment in motion for new trial held wholly inadequate to raise the issue of the insufficiency of the evidence upon the whole case to support the verdict for plaintiff.-Grand Temple and Tabernacle in State of Texas of Knights and Daughters of Tabor of International Order of Twelve v. Johnson, 156 S. W. 532.

302 (Tex. Civ.App.) Where, in an action on a note, defendant did not, in the motion for new trial, attempt to raise any issue as to the attorney's fees therein provided except that the note was not introduced in evidence, no other objection can be heard in the appellate court. -Peck v. Morgan, 156 S. W. 917.

VII.

REQUISITES AND PROCEEDINGS FOR TRANSFER OF CAUSE. (A) Time of Taking Proceedings. $356 (Tex.Civ.App.) Under Rev. Civ. St. 1911, art. 2079, providing that an appeal from interlocutory orders appointing receivers shall be taken within 20 days from the entry of such order, an appeal from an order appointing a receiver, which was entered April 21, 1912, will be dismissed where the appeal bond was not filed until June 21, 1912.-Moore v. Cobe, 156 S. W. 1142.

IX. SUPERSEDEAS OR STAY OF PRO

CEEDINGS.

§ 460 (Tex.Civ.App.) Execution may be issued upon a judgment, where no supersedeas bond is given, notwithstanding the perfecting of affidavit in lieu thereof, in accordance with Rev. an appeal by the filing of an appeal bond or Civ. St. 1911, arts. 2084, 2097, 2098, 2099, and 2100, providing for the perfection of appeals.Allen v. Kitchen, 156 S. W. 331.

§ 468 (Tex. Civ.App.) Where an appeal has been perfected by the giving of an appeal bond or making of a proper affidavit in lieu thereof, the supersedeas bond may be given at any time thereafter pending the appeal; but if no bond other than the supersedeas bond be given, in order for it to operate as an appeal bond, it must be filed within the time fixed for perfecting appeals.-Allen v. Kitchen, 156 S. W. 331.

IN RECORD.

$285 (Tex.Civ.App.) Under Rev. Civ. St. 1911, art. 2062, a motion for a new trial is not necessary to present for review alleged error in sustaining exceptions to a supplemental petition.-Cooper Grocery Co. v. Blume, 156 S. W.

1157.

§ 294 (Tex.Civ.App.) The sufficiency of the evidence to support the verdict cannot be raised upon appeal, unless it has been presented to the court below in a motion for a new trial.-Grand Temple and Tabernacle in State of Texas of Knights and Daughters of Tabor of International Order of Twelve v. Johnson, 156 S. W. 532.

§ 301 (Ky.) An objection that the court in an action of trover did not leave to the jury the question whether interest should be allowed cannot be reviewed where such objection was not urged as a ground for new trial.-Hoskins v. Paddock, 156 S. W. 387.

$ 301 (Ky.) The impropriety of instructions cannot be reviewed on appeal where not complained of in the motion for new trial.-Mann Bros. v. City of Henderson, 156 S. W. 1063.

$ 302 (Ark.) A ground, in a motion for new trial, that the court erred in admitting evidence over defendant's objection, as shown by defendant's exceptions in the record, is too general to call the court's attention to any particular error complained of.-Western Union Telegraph Co. v. Duke, 156 S. W. 452.

(A) Matters to be Shown by Record. $511 (Mo.App.) The record proper must show that the bill of exceptions was duly filed or it cannot be considered, and it is not sufficient that the bill states that it was filed.-Donnovant v. Rinn, 156 S. W. 64.

with directions to quiet M.'s title to land in con$514 (Ky.) Where a judgment was reversed, troversy, and an appeal was taken from a subsequent judgment on the ground that it did not embrace the land "in controversy," or at least part of it, but the old record was not filed with the new, and there was nothing to show what "land was in controversy" on the former appeal, the present appeal will be dismissed, under Court of Appeals rule 7 (154 S. W. viii).— Martin v. Bates, 156 S. W. 1057.

(B) Scope and Contents of Record. § 522 (Tex.) Parties have the right to have all evidence which was submitted in a trial to the court embodied in a statement of facts or bill of exceptions.-Reed v. Robertson, 156 S. W. 196.

§ 527 (Tex.Civ.App.) The attempt of the trial judge to file findings of fact and conclusions of law after the time prescribed by Rev. Civ. St. 1911, art. 2075, does not make the findings and conclusions a part of the record on appeal.Emery v. Barfield, 156 S. W. 311.

§ 527 (Tex.Civ.App.) Where the trial court in overruling a motion for a new trial made additional findings, such findings were not a part of

the record and could not be considered for any purpose.-Wagner v. Geiselman, 156 S. W. 524. (C) Necessity of Bill of Exceptions, Case, or Statement of Facts.

§ 547 (Tex. Civ.App.) A plea of privilege is in reality only a motion for a change of venue, and consequently, under the direct provisions of district court rule 55 (142 S. W. xxi), the error in overruling such a plea cannot be considered unless a bill of exceptions is taken thereto and properly presented.-Levy v. Lupton, 156 S. W. 362.

§ 548 (Tex.Civ.App.) In the absence of a statement of facts, it cannot be said that there was error in admitting evidence of reputation of plaintiff in a suit to reinstate a liquor license annulled by the comptroller, or if there was error that it did, with reasonable certainty, inflict substantial injury on defendant.-Lane v. Hewgley, 156 S. W. 911.

In the absence of a statement of facts, the

A copy of the bill of exceptions taken to the admission of certain evidence held sufficient as a statement under the court rule.-Id.

§ 742 (Tex.Civ.App.) An assignment of error complaining that evidence was not authorized under the pleading will not be considered, where the statement failed to disclose the pleading on that subject.-El Paso & Southwestern Co. v. Hall, 156 S. W. 356.

An assignment of error complaining of the court's findings of fact, attacking the same on several grounds, cannot be considered as a proposition, because multifarious; and consequently the appellate court can consider only the propositions submitted thereunder.-Id.

§ 742 (Tex.Civ.App.) An assignment complaining of the admission of evidence held to be overruled, where the bill and the statement under the assignment failed to show that any such evidence was admitted.-Snyder Ice, Light & Power Co. v. Bowron, 156 S. W. 550.

§ 742 (Tex.Civ.App.) An assignment of error

(E) Abstracts of Record. 8581 (Mo.App.) The record proper must show that motions for new trial and in arrest of judgment were filed and it is not sufficient that the bill of exceptions states that they were filed. -Donnovant v. Rinn, 156 S. W. 64.

$581 (Mo.App.) The abstract of the record proper should at least set forth the substance of the pleadings, judgments, motions, and or ders, and, when necessary, the same must be set out in full, but this rule has no reference to matters specifically covered by court rule 32 (155 S. W. xxiii), and the exception to rule 15 (132 S. W. vi).-Comstock v. Tegarden Packing Co., 156 S. W. 815.

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

§ 655 (Tex.Civ.App.) Where the statement of facts is stricken for failure to comply with Supreme Court rules 72 and 78, assignments of error relating to the admission of evidence and the court's charge cannot be reviewed.-McWilliams v. Ft. Stockton Irrigated Lands Co., 156 S. W. 556.

(K) Questions Presented for Review.

§ 690 (Tex.Civ.App.) An assignment of error complaining of the admission of evidence will be overruled where the bill of exceptions does not show that the evidence was admitted.-Missouri, K. & T. Ry. Co. of Texas v. Rogers, 156 S. W. 364.

§ 703 (Tex.Civ.App.) Where the record does not indicate whether or not a charge was given, no indorsement signed by the trial judge appearing, an assignment complaining of its refusal cannot be considered on appeal.-HughesBuie Co. v. Mendoza, 156 S. W. 328.

XI. ASSIGNMENT OF ERRORS. § 732 (Tex.Civ.App.) An assignment of error that the court erred in refusing a new trial because the verdict was excessive under the undisputed evidence is too general to justify consideration on appeal.-Peacock v. Coltrane, 156 S. W. 1087.

$742 (Tex.Civ.App.) An assignment of error submitted as a proposition, which recited error in permitting plaintiff to testify over objection to the market value of property before and after it was injured when plaintiff had testified that he did not know the market value in that vicinity, held sufficient as a proposition and to sufficiently point out the part of the proceeding on which error was complained pursuant to Court of Civil Appeals rules 24 and 25 (142 S. W. xii).-Houston Belt & Terminal Ry. Co. v Vogel, 156 S. W. 261.

be considered, where it is not followed by an intelligible statement, and one which indicates what effect the testimony had on any issue in the case.-Holt v. Guerguin, 156 S. W. 581.

An assignment of error will be overruled, where the statement under it is so imperfect that no information can be obtained from it. - Id.

§ 742 (Tex.Civ.App.) An assignment of error not followed by a proposition and a statement will not be reviewed.-Konz v. Henson, 156 S. W. 593.

will be overruled; it being apparent that nei8742 (Tex.Civ.App.) An assignment of error ther the proposition nor the statement thereunder has any connection with the assignment.Lane v. Hewgley, 156 S. W. 911.

§ 742 (Tex.Civ.App.) Where the statement under an assignment of error does not clearly show the matter referred to, the assignment cannot be considered.-Peck v. Morgan, 156 S.

W. 917.

Assignments of error not followed by statements will not be considered.-Id.

§ 742 (Tex.Civ.App.) An assignment of error, not followed by a statement tending to sustain or throw any light on the_contentions of appellant, will be overruled.-Daugherty v. Wiles, 156 S. W. 1089.

An assignment of error not followed by statements will not be considered; mere references to other assignments or to the record for statements being insufficient.-Id.

$742 (Tex.Civ.App.) Assignments of error which are not propositions in themselves, and are not followed by propositions, will not be considered.-Texas & P. Ry. Co. v. Villafuerte, 156 S. W. 1155.

$743 (Tex.Civ.App.) Assignments of error which make no reference to the pages of the record will not be considered. Chicago, R. I. & G. Ry. Co. v. Scott, 156 S. W. 294.

$743 (Tex.Civ.App.) Where the assignments of error, complaining of the denial of a continuance, does not point out the paragraph of the motion for new trial wherein the error was complained of, the assignments do not comply with Court of Civil Appeals rules 24, 25, 31 (142 S. W. xii, xiii), and the assignments will not be considered.-Texas Midland R. R. v. Cummins, 156 S. W. 542.

Where an assignment of error complained of the refusal to sustain a designated paragraph of the motion for new trial on the ground that the verdict is contrary to the law and the evidence, and the brief of appellant showed the pages of the transcript where the motion could

$743 (Tex.Civ.App.) Assignments of error which do not refer to that portion of the motion for a new trial in which the error is complained of, as required by Court of Civil Appeals Rule 25 (142 S. W. xii), will not be reviewed.-Konz v. Henson, 156 S. W. 593.

$743 (Tex.Civ.App.) An assignment of error which does not refer to the portion of the motion for new trial in which the error is complained of cannot be considered.-Peck v. Morgan, 156 S. W. 917.

$748 (Tex.Civ.App.) Assignments of error are not open to amendment in the appellate court, and hence cannot be cured by a supplemental brief.-Peck v. Morgan, 156 S. W. 917.

$750 (Tex.Civ.App.) The objection that an answer in the verdict is obscure may not be reached by assignment complaining of the instructions.-Daugherty v. Wiles, 156 S. W.

1089.

$757 (Tex.Civ.App.) Under rules for the Court of Civil Appeals (142 S. W. xii) 24 and 25, requiring assignments of error to refer to that portion of the motion for new trial in which the error is complained of, all assignments must be disregarded, where appellant's brief shows no motion for a new trial.-Allen v. Kitchen, 156 S. W. 331.

$759 (Tex.Civ.App.) Assignments of error which are not briefed according to the court rules are not entitled to consideration.-Kennedy v. Garrard, 156 S. W. 570.

& 760 (Tex.Civ.App.) Where the brief does not point out the paragraph of the motion for new trial, wherein the error was complained of, it does not comply with Court of Civil Appeals rules 24, 25, 31 (142 S. W. xii, xiii).—Texas Midland R. R. v. Cummins, 156 S. W. 542.

Where an assignment of error complained of the refusal to sustain a designated paragraph of the motion for new trial on the ground that the verdict is contrary to the law and the evidence, and the brief of appellant showed the pages of the transcript where the motion could be found, the assignment and brief substantially complied with Court of Civil Appeals rules 24, 25, 31 (142 S. W. xii, xiii).—Id.

§ 760 (Tex.Civ.App.) Assignments of error cannot be considered, where appellant's brief does not comply with Court of Civil Appeals rules 24 and 25 (142 S. W. xii), because of its failure to make any reference to statement of facts or transcript in any of the assignments.Youngberg v. First Nat. Bank, 156 S. W. 1139. $763 (Tex.Civ.App.) There is no authority for filing a supplemental brief after the original brief has been assailed for failure to comply with the rules, so as to correct the errors in the original.-Peck v. Morgan, 156 S. W. 917.

§ 773 (Tex.Civ.App.) Where appellant filed no brief below or on appeal, and appellee filed a brief, his request for affirmance will be granted, in the absence of fundamental error.-Ray v. Olcott, 156 S. W. 1123.

$773 (Tex.Civ.App.) Where appellants fail to file briefs, and appellees filed briefs and asked

XV. HEARING AND REHEARING. § 832 (Ky.) Where a judgment was reversed solely because the record did not show the appointment of a guardian ad litem for an infant defendant, respondents would be permitted to file an additional record showing such appointment and omission of the order by mistake of the clerk, and a rehearing would be granted and the judgment affirmed.-Wade v. Wade, 156 S. W. 873.

§ 833 (Tex. Civ.App.) Where it appears that a judgment is against the merits, all doubts will be resolved in favor of a rehearing.-Ben_C. Jones & Co. v. Gammel-Statesman Pub. Co., 156 S. W. 317.

XVI. REVIEW.

(A) Scope and Extent in General. § 837 (Tex.Civ.App.) The court on appeal, to determine whether a charge complained of was erroneous, must determine what issues involved were necessary to be passed on to enable the trial court to render a proper judgment.-Rosenthal v. Sun Co., 156 S. W. 513.

§ 842 (Tex.Civ.App.) Where it is doubtful whether a grantor intended to convey the premises or whether the deed was intended as a mere quitclaim, the question is one of fact, unthe finding of the trial court will be accepted on der the surrounding circumstances, on which appeal.-Texas & P. Ry. Co. v. El Paso & N. E. R. Co., 156 S. W. 561.

§ 854 (Ark.) The Supreme Court tries chancery cases de novo on the record and renders such decision as the chancellor should have renreaches a correct result, although based on unsound reasons.-Culberhouse v. Hawthorne, 156 S. W. 421.

dered and will therefore affirm a decree which

it granted a new trial being capable of two con§ 854 (Mo.App.) The court's statement of why structions, one giving three reasons therefor, the former, being adopted by both parties, will be other one reason, based on the other two, the adopted by the court on appeal.-Pouder v. Colvin, 156 S. W. 483.

(B) Interlocutory, Collateral, and Supplementary Proceedings and

Questions.

§ 870 (Mo. App.) Action of the court in setting aside an order for sale of attached goods may, under Rev. St. 1909, § 2038-as to right to review, on appeal from final judgment, of action of court before such judgment-be reviewed on appeal by plaintiff from denial of his motion for new trial because of such action made after final judgment in his favor sustaining_the_attachment.-Mitchell v. Greeley, 156 S. W. 754.

(C) Parties Entitled to Allege Error.

§ 877 (Mo.App.) A party cannot except to the refusal of instructions requested by the adverse party.-Rhea v. Missouri Pac. Ry. Co., 156 S. W. 4.

§ 877 (Tex.Civ.App.) A proponent of a will, contested on the ground of testamentary incapacity and undue influence, who is a defendant in a suit, consolidated with the will contest, to set aside a deed executed by testatrix and her husband, and to recover personal property, may not complain of the fact that one of the opposing parties disclaimed in open court as to all interest in the estate.-Holt v. Guerguin, 156 S. W. 581.

§ 880 (Tex.Civ.App.) Where plaintiff made no case against the defendant against whom a codefendant did not present a cross-action, the action of the court in recalling the jury after

verdict to render verdict for defendant was not prejudicial to codefendant.-Ferrell v. Millican, 156 S. W. 230.

§ 882 (Ark.) Appellants waived any objection to the form of a decree by specifically requesting the court to make it in that form.-Ellison v. Smith, 156 S. W. 417.

§ 882 (Ark.) Where a cause was improperly transferred to equity upon the motion of defendants, they cannot complain, having invited the error; and, it being shown that plaintiffs were entitled to recover, the cause need not be remanded for new trial.-Anders v. Roark, 156 S. W. 1018.

$ 882 (Ky.) A party asking an instruction substantially embodying the idea contained in an instruction given may not complain that the instruction given is erroneous, though the instruction given is not in the same form as the instruction asked.-McClintic Marshall Const. Co. v. Eckman, 156 S. W. 382.

A defendant, who asks an instruction authorizing a recovery for injuries to an employé from the ordinary negligence of a fellow employé of a superior degree, may not complain of an instruction erroneously so declaring the law, instead of authorizing a recovery only in case of gross negligence.-Id.

§ 882 (Mo.) A defendant cannot complain of errors in an instruction where its instructions proceeded on the same theory.-Tranbarger v. Chicago & A. R. Co., 156 S. W. 694.

§ 882 (Mo.App.) A party is bound by the position which he voluntarily assumes at the trial, and, if he treats the issue as being for the jury, he cannot afterwards complain that it is submitted to the jury; though it could have been passed upon by the court as a matter of law.-A. Graf Distilling Co. v. Wilson, 156 S. W. 23.

§ 882 (Mo.App.) Plaintiff cannot complain, on appeal, of instructions based on the same theory and which are the converse of instructions requested by himself.-Wallower v. Webb City, 156 S. W. 48.

§ 927 (Mo.App.) Where an issue in a case at law was submitted to the jury on proper instructions and defendant on appeal complains of the insufficiency of the evidence to warrant the submission to the jury, all the facts which the evidence tends to establish or which may be reasonably inferred therefrom must be taken as admitted and must be considered in the most favorable light to plaintiff.-Kendrick v. Harris, 156 S. W. 490.

§ 927 (Mo.App.) In determining whether a demurrer to plaintiff's evidence was improperly overruled, the appellate court must view plaintiff's evidence in the light most favorable to him.-Strayer v. Quincy, O. & K. C. R. Co., 156 S. W. 732.

§ 927 (Mo.App.) In determining the propriety of a peremptory instruction to find for defendant, the testimony in plaintiff's behalf must be regarded as the facts of the case.-Kelley v. City of St. Joseph, 156 S. W. 804.

930 (Mo.App.) In determining the sufficiency of evidence to sustain a verdict for the plaintiff, the court must take the evidence most strongly in favor of the plaintiff.-Jackson v. Southwest Missouri R. Co., 156 S. W. 1005.

§ 931 (Mo.App.) In the absence of any declarations of law, the court on appeal must consider the case, tried by the court without a jury, on the evidence most favorable to the successful party. Meredith v. Pemberton, 156 S. W. 70.

§ 931 (Tex.Civ.App.) The appellate court will not presume that the court based his finding of damages on certain inadmissible evidence, where the admissible evidence would have authorized a finding for a much greater amount.-Garrett v. Grisham, 156 S. W. 505.

§ 934 (Mo.App.) Where there was evidence that an alleged secret rebate to a property owner by a public contractor was only a small discount for prompt payment and was open to all property owners, and no declarations of law were asked or given, it would be presumed, in support of a judgment for the contractor, that the court found in accordance with such evi

§ 888 (Ky.) In the case of ordinary appeals from courts of inferior jurisdiction to the circuit court, a plaintiff may not amend his pleadings so as to set up a new and independent cause of action.-Brown v. Beard, 156 S. W. 152.

Defendant, on appeal from an inferior court to the circuit court, may make all the defenses he has, and, where he fails to set up any defense and permits a default judgment, it is within the discretion of the circuit court on appeal to allow the filing of an answer, to change the defenses, or to permit new defenses, as if the case had been originally brought in that court.-Id.

§ 889 (Ark.) The court on appeal will in a proper case treat the pleadings as amended to conform to the evidence, but not unless the evidence is sufficient to properly present the issue necessitating the amendment.-Stephens v. Stephens, 156 S. W. 837.

The court on appeal from a decree canceling a deed executed by the grantor to his wife and infant child will not treat the pleadings as amended to conform to the proof of homestead, where the evidence of homestead, though showing it below the limit of value, also showed that the lands were not contiguous.-Id.

(E) Presumptions.

§ 927 (Ark.) In determining the correctness of an order directing a verdict for plaintiff, the Supreme Court must accept the view of the evidence which is most favorable to defendant. -Commercial Union Fire Ins. Co. v. King, 156 S. W. 445.

Forsee Inv. Co., 156 S. W. 66.

§ 934 (Mo.App.) The court, on appeal from a judgment for plaintiff, will confine its consideration of the conflicting evidence to its phase most favorable to plaintiff, in determining whether plaintiff failed to make a case for the jury.Rutledge v. Swinney, 156 S. W. 478.

§ 934 (Mo.App.) Under Rev. St. 1909, § 2887, providing that, unless possession follows the sale of chattels, it is void as against subsequent purchasers in good faith, where there was a finding that lumber on land was not a part of the realty purchased by plaintiffs, but of which they did not take immediate possession, and a judgment for defendant, held, that it would be presumed that the court found that the transaction was within the statute, and that defendant purchased from the seller in good faith and acquired title thereto.-Crow v. Abernathy, 156 S. W. 494.

§ 934 (Mo.App.) The evidence on a question of fact must be considered most favorably to plaintiff on defendant's appeal.-Alexander v. City of St. Joseph, 156 S. W. 729.

from a judgment for plaintiff will view the evi$934 (Tex.Civ.App.) The court on appeal ment when considering the sufficiency of the evidence in the light most favorable to the judgdence to support it.-Western Union Telegraph Co. v. Glenn, 156 S. W. 1116.

(F) Discretion of Lower Court.

§ 954 (Tex.Civ.App.) Where the trial court modified a temporary injunction at the request of defendants, such order cannot be disturbed on appeal because, at the time of the modification, defendants were in contempt and might have