verified complaint. that the same were his property. The defendant, as sheriff, denied the ownership by the plaintiff, and justified his possession under certain writs of attachment. He alleged that the said property had been taken from him by the plaintiff, after his levy, under a writ of replevin, and asked a return thereof to him, to be held subject to such attachment. On the trial the court, against defendant's objection, on the oral statement of plaintiff's counsel, that the defendant had not levied upon the hogs, permitted the plaintiff to strike out from the complaint all reference to the hogs, and struck out all allegations in regard to the same in defendant's answer. Held, that such action of the court was erroneous; for if the averments of the answer were true, the effect of the amendment would be to take the hogs from the defendant's possession and transfer them to the plaintiff without affording the former an opportunity to try the question of his right to their return. Howell v. Foster, Sheriff, etc. (Cal.), II, 743.

4. REFUSAL, DURING THE TRIAL, OF AN AMENDMENT TO AN ANSWER setting up a new defense is not error when the defendant fails to affirmatively show that he did not know of such defense before. Hallack v. Bresnahan (Wy.), II, 60.

See APPEAL, 12; DEPOSITIONS, 4; FINDINGS, 38; FRAUD, 9; REMOVAL OF CAUSES, 13; REPLEVIN, 1; SPECIFIC PERFORMANCE, 3; SUPPLEMENTARY PROCEEDINGS, 3; TENANTS IN COMMON, 3; VARIANCE, 1-3.

ANSWER.

See DISMISSAL OF ACTION; PLEADING AND PRACTICE.

APPEAL AND WRIT OF ERROR.

1. IN GENERAL.

2. WHO MAY HAVE.

3. THE RECORD AND PRACTICE,

4. THE HEARING.

5. THE RELIEF GRANTED.

6. DISMISSAL OF

1. IN GENERAL.

1. AN APPEAL WILL NOT LIE FROM A JUDGMENT OF THE DISTRICT COURT IN COMMONLAW ACTIONS or proceedings unless it is expressly allowed by statute. Van Camp v. Commissioners of Custer County (Idaho), II, 18.

2. AN APPEAL IS NOT THE COMMENCEMENT OF A NEW ACTION or proceeding, but a continuation of the same case, action, or proceeding, being only a transfer from one court, tribunal, or body to another for final trial and judgment. Id.

3. THE RIGHT TO APAEAL is statutory and unknown to the common law; it can not be extended to cases not within the statute. General Custer Mining Co. v. Van Camp (Idaho), II, 174.

4. THE BOARD OF COUNTY COMMISSIONERS AND THE BOARD OF EQUALIZATION, although composed of the same persons, are separate and distinct bodies, with different duties and powers. Id.

5. THE RIGHT OF APPEAL GIVEN BY STATUTE FROM ORDERS OF THE BOARD OF COMMISSIGNERS does not imply the right of appeal from orders of the board of equalization. Id. 6. AN APPEAL FROM AN ORDER OF THE BOARD OF COUNTY COMMISSIONERS declaring the result of an election for a county seat may be taken to the district court of said county, and when so taken, the action is commenced when the notice of appeal is filed with the clerk of the board of county commissioners. Rupert v. County Commissioners of Alturas County (Idaho), II, 15.

7. THE BOARD OF COUNTY COMMISSIONERS IS NOT A COURT; it has no judicial functions or power, and can not be vested therewith. Id.

8. MATTERS DECIDED BY THE DISTRICT COURT ON APPEAL FROM THE ORDERS OF THE BOARD OF COUNTY COMMISSIONERS can only be brought to the supreme court for review by writ of error. Id.

9. No APPEAL LIES FROM AN ORDER IN A CRIMINAL ACTION DISMISSING THE SAME for want of prosecution. Such attempted appeal may be either dismissed or stricken from the calendar. People v. Hollis (Cal.), II, 71.

10. NO APPEAL LIES, IN A PROSECUTION FOR MURDER, FROM AN ORDER DENYING A MOTION in arrest of judgment, or from a judgment entered upon a plea of former conviction. People v. Majors (Cal.), II, 287.

11. MOTION FOR NEW TRIAL-APPEAL FROM ORDER DENYING.-A motion for a new trial can not be made in a prosecution for murder after a verdict in favor of the people rendered upon a plea of former conviction, and consequently no appeal lies from an order denying the same. Id.

12. STRIKING COMPLAINT FROM FILES-AMENDMENT-APPEAL.--An order striking a complaint from the files, and overruling a motion to allow it to be amended, is not a final judgment. Such order is not appealable. Owen (a lunatic), by his Committee, v. McCormick (Mont.), IV, 479.

13. AN ORDER STRIKING OUT AN ANSWER IS NOT APPEALABLE.-Beach v. Hodgdon (Cal.), IV, 610.

14. ORDER MADE AFTER REVERSAL OF JUDGMENT NOT APPEALABLE.-An order made in an action after the judgment therein has been reversed in the supreme court, is not appealable as a special order made after final judgment. The effect of such reversal is to place the parties in the lower court in the same position as if the case had never been tried. Sharp v. Miller (Cal.), IV, 384.

15. ORDER APPOINTING RECEIVER-APPEAL DOES NOT LIE FROM.-No appeal lies from an order of the district court appointing a receiver, although such order may command the defendants to refrain from any and all interference with the receiver in the discharge of his duties as such. Stebbins v. Savage et al. (Mont.), IV, 477.

16. SHERIFF APPEALS BY, FROM ORDER APPOINTING RECEIVER.-A sheriff, who has taken possession of property assigned for the benefit of creditors, under attachment issued in favor of one creditor, can not appeal from an order made at the instance of another creditor of the assignor, which requires him to deliver such property to a receiver. If an appeal lies from such order, the proper parties to take the same are the creditors interested. Id.

17. No APPEAL LIES BY AN EXECUTOR, AS SUCH, FROM A DECREE SETTLING and distributing an estate. Estate of Marrey (Cal.), III, 49.

18. AN ORDER DENYING A MOTION TO SET ASIDE A FINAL ORDER OF CONDEMNATION, in an action for the condemnation of land, is not appealable. California Southern R. R. Co., v. Southern Pacific R. R. Co. (Cal.), III, 52.

19. SETTING ASIDE JUDGMENT-APPEAL FROM ORDER.-The effect of an appeal from an order setting aside a judgment is not to revive the judgment. The judgment no longer exists, so far as the assertion of any rights under it is concerned, until it shall be brought into force again by a reversal of the order setting it aside. Estate of Crozier, deceased (Cal.), III, 157.

20. No APPEAL LIES TO THE SUPREME COURT FROM AN ORDER OF THE DISTRICT JUDGE requiring the county assessor of Esmeralda county to file in the district court a statement of taxes, as required by section 6 of the act of March 1, 1SS3, although such order was made by the court instead of by the judge. Lyon Co. v. Esmeralda Co. (Nev.), I, 395.

21. No APPEAL LIES TO THE SUPREME COURT FROM AN ORDER OF THE DISTRICT COURT setting aside a previous order vacating a judgment. The effect of such order is not to revive or reinstate the judgment. Owen v. Going (Col.), I, 352.

22. THE SUPREME COURT HAS NO JURISDICTION OF AN APPEAL FROM A JUDGMENT of the superior court affirming a judgment of the police court adjudging the defendant guilty of a misdemeanor, and imposing on it a fine of fifty dollars. People etc. v. Meiggs Wharf Company (Cal.), II, 287.

23. APPEAL FROM JUSTICE'S COURT-JURISDICTION OF.-The supreme court has no jurisdiction of an appeal from a judgment of the superior court, affirming a judgment of the justice's court, in an action brought to recover one huudred and eighty dollars, with interest and costs. -Hackley v. Craig (Cal.), II, 375.

24. AN APPEAL LIES TO THE SUPREME COURT from a judgment of the superior court granting or denying an application for a writ of mandamus; and an undertaking in the sum of three hundred dollars, executed and conditioned according to the provisions of section 941 of the code of civil procedure, stays the execution of such judgment pending the appeal. Palache v. Hunt (Cal.), I, 485.

25. APPEAL FROM AN ORDER SETTING APART A HOMESTEAD TO A WIDOW, out of the estate of her deceased husband, must be taken within sixty days after such order was made. Estate of Burton (Cal.), I, 254.

26. APPEAL FROM AN ORDER DENYING A WIDOW'S APPLICATION FOR A HOMESTEAD, to be set apart to her out of the estate of her deceased husband, must be taken within sixty days after the entry of such order. Estate of Harland (Cal.), I, 49. 27. WRIT OF ERROR AND APPEAL.-Whether an error of the county court in denying an appeal can be reviewed on a writ of error to the original judgment, quare. Brandexburg v. Reithman (Col.), II, 774.

28. APPEAL HELD WITHOUT MERIT, AND JUDGMENT AND ORDER AFFIRMED with damages. Hooper v. Powers (Cal.), IV, 525.

2. WHO MAY HAVE.

29. NO ONE CAN SUE OUT AND MAINTAIN A WRIT OF ERROR UNLESS HE IS A PARTY or privy to the record, or is prejudiced by the judgment. Van Camp v. Commis sioners of Custer Co. (Idaho), II, 18.

30. COURTS WILL LOOK BEYOND THE MERE TITLE OF AN ACTION or proceeding for the purpose of determining who are interested and affected as parties. Id.

31. APPEAL FROM JUDGMENT BY PERSON NOT A PARTY.-A person who is not a party nor privy to, nor aggrieved by, a judgment, can not appeal therefrom. Dunphy v. Potrero Co. et al. (Cal.), IV, 526.

32. A PARTY WHO HAS VOLUNTARILY TAKEN ADVANTAGE OF A JUDGMENT rendered at nisi prius can not afterwards prosecute proceedings to reverse it. Atkinson v. Tabor (Cal.), II, 105.

3. THE RECORD AND PRACTICE,

33. ERRORS APPEARING UPON THE FACE OF THE JUDGMENT ROLL may be taken advantage of upon a writ of error, without a bill of exceptions or statement of the case. Van Camp v. Commissioners of Custer Co. (Idaho), II, 18.

34. AN APPEAL TO THE DISTRICT COURT FROM A JUDGMENT OF THE PROBATE COURT can not be perfected unless the proper affidavit of non-vexation and delay is made and filed. Chaves v. Perea (N. M.), I, 807.

35. THE RIGHT OF APPEAL COMMENCES TO RUN FROM THE ACTUAL ENTRY of the judg ment, and not from the date as of which it was entered nunc pro tunc. Noce v. Daveggio (Cal.), III, 491.

36. AN APPEAL FROM AN ORDER DENYING A NEW TRIAL must be taken within sixty days after the entry thereof. Brown et al. v. Greene et al. (Cal.), II., 828. 37. SERVICE OF NOTICE OF APPEAL-FILING UNDERTAKING.-An undertaking on appeal must be filed within five days after service of the notice of appeal. When such service is by mail, the undertaking must be filed within five days after the deposit of a copy of the notice in the post-office. Section 1013 of the code of civil procedure, extending the time in which acts may be done in certain cases, has no application to such case. Id.

38. THE SAME-THE TRANSCRIPT MUST CONTAIN PROOF of the service of the notice of appeal upon the opposite party or his attorney. Id.

39. AN APPEAL IS INEFFECTUAL WHEN THE NOTICE THEREOF is not signed by the attorneys of record or by the counsel for the appellant, or when the transcript contains no proof that such notice was served upon the respondents. Ellis v. Bennet + t al. (Cal.), II, 884.

40. SERVICE OF NOTICE OF APPEAL, PROOF OF.-The certificate of the clerk of the district court acknowledging due service of appeal is not sufficient proof of such service to confer jurisdiction upon the supreme court. After rendition of judgment the proof of such service may be shown by affidavit, when the validity of such judg ment is attacked in a collateral action. Blinn v. Crosby et al. (Wash.), II, 796. 41. AN UNDERTAKING ON APPEAL MUST BE FILED WITHIN TEN DAYS from the time of the service of the notice of appeal. If filed on the eleventh day the appeal will be dismissed. Northern Pacific Terminal Co. v. Lowenberg et al. (Or.), II, 823.

42. THE ASSIGNMENT OF ERRORS IN A NOTICE OF APPEAL must be specific. It is not sufficient to state generally that the errors relied on consisted in admitting or excluding testimony as shown by the bill of exceptions. Id.

43. PRACTICE OF ASSIGNING MORE ERRORS than are necessary to present the points relied on, strongly condemned. Brewster, Receiver, etc., v. Baxter (Wash.), II, 791. 44. AFTER AN APPEAL HAS BEEN PERFECTED THE DISTRICT COURT HAS JURISDICTION to settle and allow the statement on appeal filed in the court below within the time required by statute. James v. Leport (Nev.), II, 44.

45. CERTIFICATE AS TO THE EVIDENCE INTRODUCED AT THE TRIAL.-Where a trial was partly had in the district court, with the aid of the official reporter, and then discontinued on account of the retirement of the judge, and upon a rehearing by his successor the notes of the reporter were used as correctly presenting the evidence, the only certification as to the evidence introduced at the trial required, so as to bring the cause before the supreme court, is the certificate of the judge who tried the cause. Seattle & W. W. R. R. Co. v. Ah Kowe (Wash.), II, 53.

46. AN APPEAL FROM A JUDGMENT RENDERED IN FAVOR OF THE UNITED STATES can not be perfected without service of notice upon the United States. Such service,

should be made upon the United States attorney; service upon his assistant is not sufficient. Bennett v. United States (Wash.), II, 213.

47. APPEAL-UNDERTAKING STAY OF EXECUTION.-An undertaking on appeal to stay execution may be filed at any time after the appeal is taken, and before the execution is satisfied. Mansfield v. Stern (Cal.), IV, 141.

48. APPEAL-CERTIFICATE OF DEPOSIT IN LIEU OF APPEAL UNDERTAKING.-The statutory requirement that to render an appeal effectual, the appellant may, instead of giving an undertaking with sureties, deposit money equal in amount to the sum named in the undertaking, is substantially complied with by leaving with the clerk a certificate of deposit, payable to his order, for the requisite amount. Alt v. California Fig Syrup Co. (Nev.), IV, 255.

49. APPELLATE JURISDICTION OF SUPREME COURT-PROCEDURE ON APPEALS.-The supreme court can not decline to take cognizance of a matter clearly within its jurisdiction, because the mode of procedure applicable to it has not been regulated by statute, written rule, or precedent. In such case it is its duty to create a precedent, and it may adopt or ratify the practice resorted to on the first occasion when the exigencies of a cause require a reasonable and unprecedented practice to be resorted to. People v. Jordan (Cal.), IV, S5.

50. THE SAME-APPEALS IN MISDEMEANORS-PROCEDURE.-The supreme court has jurisdiction to entertain appeals in cases of misdemeanors prosecuted by indictment or information; and, as the legislature has failed to prescribe the mode of procedure on such appeals, to provide therefor by rule, and, in the absence of a previous rule, to sanction a mode of procedure adopted on a particular occasion. The practice pursued in taking the present appeal is adopted, and hereafter appeals in criminal actions prosecuted by indictment or information amounting to misdemeanors only, will be sustained, from the judgments and orders mentioned in chapter 1 of title 9 of part 2 of the penal code, when the appeal is taken in the manner therein prescribed. Id.

51. NOTICE OF APPEAL, FORM OF.-A notice of appeal which plainly indicates the particular order appealed from is sufficient in form. Id.

52. JUDGMENT ON DEMURRER TO INDICTMENT, ENTRY OF-NOTICE OF APPEAL.-The penal code does not provide for any entry of judgment on a demurrer to an indictment other than the entry of the order upon the minutes. The order in the minutes is the judgment. A judgment that such demurrer be "sustained" is a substantial compliance with section 1007 of the penal code, and is in effect a judg ment that the demurrer be allowed. An appeal from such judgment is not rendered ineffectual because, in the notice of appeal, the judgment specifically described is called an "order." Id.

53. TRANSCRIPT ON APPEAL-ATTACK ON, IN SUPREME COURT.-The verity of a fact stated in the transcript on appeal can not be attacked by affidavits in the supreme court. People v. Jordan (Cal.), IV, 138.

4. THE HEARING.

54. REPORT OF REFEREE IN EQUITY CASE-EFFECT OF APPEAL.-Whatever effect the report of a referee in a suit in equity has on the trial in the lower court, it can not be treated as a special verdict upon the facts at the trial on appeal. Such report will not be disturbed on appeal, unless in conflict with the preponderance of evidence, nor will a decree entered thereon be reversed, unless error affirmatively appears. O'Leary v. Fargher (Or.), III, 333.

55. AN EQUITY CASE IS TO BE RETRIED IN THE APPELLATE COURT upon every issue, both of law and fact, not waived in the lower court, without regard to the results of the previous trial, whether had altogether before the court or partly before a referee. Id.

56. REPORT OF REFEREE AND DECREE MODIFIED after a review of the evidence. Id. 57. IN THE ABSENCE OF A BILL OF EXCEPTIONS IN THE RECORD, the appellate court will not notice alleged irregularities occurring at the trial. Newby v. Rowland (Or.), I, 521.

58. ERRORS IN THE CHARGE TO THE JURY CAN NOT BE MADE AVAILABLE ON APPEAL, unless they are material, or calculated to mislead the jury, or to produce a wrong result. Martin v. Hill (Utah), I, 629.

59. ERRORS ASSIGNED FOR REFUSING TO GIVE CERTAIN INSTRUCTIONS ASKED FOR, and in the form of the judgment, can not be considered by the appellate court unless the transcript contain all of the instructions given, and a copy of the judgment. Tucker v. Parks (Col.), I, 264.

60. OBJECTIONS TO A COMPLAINT OTHER THAN THAT IT DOES NOT STATE FACTS SUFFICIENT to constitute a cause of action must be made in the court below to entitle them to consideration in the appellate court. Id.

61. ASSIGNMENTS OF ERROR.-The court will not review points nor consider questions not clearly covered by the assignments of error on the record. Kiskadden v. Allen (Col.), II, 320.

62. AN OBJECTION TO A JUDGMENT, that it is inconsistent with the pleadings, may be considered by the appellate court without producing the evidence. Seattle and Walla Walla R. R. Co. v. Ah Kowe et al. (Wash.), II, 53.

63. APPELLATE COURT WILL NOT REVIEW THE FACTS OF A CASE for the purpose of determining whether the findings are supported by the evidence, unless the same are brought up on a statement of the case after a motion for a new trial. Beck v Truckee Lodge, No. 14 (Nev.), II, 40.

64. REVIEW OF EVIDENCE ON APPEAL.-On an appeal from the judgment only the court can not inquire whether the verdict is supported by the evidence; this can be done only upon an appeal from the order denying a new trial. The People etc. v. Pierson (Idaho), II, 809.

65. ON APPEAL FROM A JUDGMENT, WITHOUT A STATEMENT OR BILL OF EXCEPTIONS, nothing belongs to the record except the judgment roll, and no question arising outside the roll can be considered. The mode of presenting questions not arising on the judgment roll for review on appeal is by statement or bill of exceptions. Jones v. St. John Irrigating Co. (Idaho), II, 183.

66. ON APPEAL THIS COURT CAN ONLY NOTICE THE ERRORS COMMITTED AGAINST THE APPELLANT, not those committed against the successful party. Id.

67. ERRORS IN THE ADMISSION OR REJECTION OF TESTIMONY, or in the giving or refusal of instructions, can not be considered on appeal when no exceptions were taken during the trial. Ralph et al. v. Weary et al. (Col.), II, 324.

68. WAIVER OF APPEAL.-Matters may occur subsequent to the judgment which operate to waive the right of a party to have the judgment reviewed on appeal or writ of error. When such matters appear of record, the objection to the appeal may be raised by a motion to dismiss; but where they do not so appear the objection must be raised by a plea in bar of the proceedings in error. The supreme court has jurisdiction to institute the necessary inquiry whether the matters alleged to constitute the waiver have in fact occurred. Atkinson v. Tabor (Cal.), II, 105. 69. ERRORS OF LAW OCCURRING ON TRIAL MUST BE SPECIFIED.-Errors of law alleged to have occurred on the trial will not be considered on appeal unless the same are specified in the statement of the case. Carter v. Allen et al. (Cal.), IV, 385.

70. MOTION MADE AFTER JUDGMENT-APPEAL FROM ORDER-IDENTIFICATION OF PAPERS.--Copies of papers used on a motion made after judgment will not be considered on appeal, although contained in the transcript, unless the same are identified by the certificate of the judge, or otherwise, as having been used or considered on the hearing. Peltret v. Frank (Cal.), IV, 221.

71. THE STATEMENT OF A FACT IN AN OBJECTION MADE AT THE TRIAL is no evidence of the existence of such fact on the hearing in the appellate court. Chung Yon v. Hop Chong (Or.), III, 325.

5. THE RELIEF GRANTED.

72. JUDGMENT APPEALED FROM MAY BE AFFIRMED IF THE APPELLANT fails to file any points and authorities, as required by the rules of the supreme court. Robinson v. Longley (Nev.) I, 306.

73. APPEAL FROM JUDGMENT-NOTICE OF APPEAL, SERVICE OF JURISDICTION OF SCPREME COURT OVER APPEAL.-The supreme court has no power to hear an appeal from a judgment unless the appellant has served a notice of appeal on all the adverse parties whose rights may be affected by a reversal of the judgment; or where the appeal is from a part of the judgment, by a reversal of the part appealed from. But a modification of a judgment may be had on an appeal from the whole judgment, although some of the adverse parties have not been served with notice of appeal; provided such modification can not affect the rights of the parties not served with notice. Williams v. Santa Clara M. Co. of Baltimore et al. (Cal.), IV, 616. 74. THE SAME MODIFICATION OF JUDGMENT.-On an appeal from a judgment as an entirety, the power of the supreme court is not limited to an affirmance or reversal of the judgment as a whole. It may modify the judgment when a modification is appropriate and necessary to a correct determination of the rights of the parties. Id.