ISSUES ON APPEAL FROM NEW TRIAL ORDER. The purpose of the legislative pro-
visions in relation to appeals from orders on motions for new trials, is to allow
all points which could be urged in the court below, either for or against the
motion for new trial, to be raised on the appeal from the order granting or
refusing it, without any further statement. White v. White, 20.
NO REVERSAL FOR ERROR WHICH DOES NOT PREJUDICE. A judgment will not be
reversed on account of error in admitting immaterial or incompetent testimony
when it appears that the appellant could not have been prejudiced thereby.
Cahill v. Hirschman, 57.
IRREGULARITIES OF PRACTICE NOT OBJECTED TO. Though the proceedings of a
district court are plainly irregular in point of practice, yet if no objection be
made on that ground, such irregularity will not be considered in the supreme
court. Fitzpatrick v. Fitzpatrick, 63.
WHAT CONSIDERED ON APPEAL FROM JUDGMENT. On appeal from a judgment,
any error appearing in the judgment roll may be corrected in the appellate
court without a statement on appeal. Klein v. Allenback, 159.
APPEAL-TRANSCRIPT CONTAINING NOTHING TO BE REVIEWED. Where, on appeal
from a judgment and order overruling a motion for a new trial, the transcript
contained neither judgment, order, settled or agreed statement, nor bill of ex-
ceptions: Held, that there was nothing before the appellate court which
could be reviewed. State v. Eberhart Company, 186.
PRACTICE. DISMISSAL OF APPEAL. Where there is a failure to bring up in
the record anything to be reviewed, the appeal will be dismissed.
Eberhart Company, 186.
APPEAL IN CASE OF CONFLICT OF EVIDENCE. The rule that a judgment will not
be disturbed as being against evidence, where there is a conflict of evidence,
has been often enough announced to be considered settled. Clark v. Nevada
Land and M. Co., 203.
ANY SUBSTANTIAL EVIDENCE WILL SUPPORT A JUDGMENT. A judgment will be
sustained as against an objection that it is contrary to evidence, if there be any
substantial testimony for it to rest upon. Lewis v. Wilcox, 215.
10. JUDGMENT CORRECT THOUGH REASON WRONG. If a judgment be right, though
decided upon a wrong ground, it will not be disturbed by the supreme court.
Conley v. Chedic, 222.
11. PRACTICE ACT, SEC. 332-STATEMENT ON APPEAL FROM ORDER. The word " or-
der," in section three hundred and thirty-two of the Practice Act, providing for a
statement, on appeal from a judgment or order, does not refer to the ordinary
order upon a motion for new trial. Johnson v. Wells, Fargo & Co., 224.
12. STATEMENT ON APPEAL FROM NEW TRIAL ORDER. On appeal from an order grant-
ing or refusing a new trial, any matter properly pertaining to such order, ex-
cept it may have arisen subsequent to the notice for the motion, may be con-
sidered without any other statement than that used on the motion for new
trial. Johnson v. Wells, Fargo & Co., 224.
13. ORDER REQUIRING BOND OR APPOINTING RECEIVER NOT APPEALABLE. The stat-
ute (Practice Act, Sec. 330) does not allow an appeal from an order requiring
a party to give a bond, nor from an order appointing a receiver. Meadow
Valley M. Co. v. Dodds, 261.
14. RELIEF ON APPEAL FROM ORDER APPEALABLE ONLY IN PART. Where an order
granting an injunction embraced a further order, entirely independent of the
injunction, to the effect that one party should execute a bond for the protec-
tion or security of the other: Held, on appeal therefrom, that the entertain-
ment by the appellate court of the portion of the order which was appealable
would not warrant a review of the other portion which was not appealable.
Meadow Valley M. Co. v. Dodds, 261.
15. ASSIGNMENT OR SPECIFICATIONS OF ERRORS ON APPEAL. Where on appeal from
an order, appellant brought up a statement of the evidence heard and proceed-
ings had, claiming that it exhibited various errors of the court, and showed
that plaintiff failed to make out a case, but without pointing out the particular
errors or failure: Held, that as there was no assignment or specification of
such alleged errors, they could not be reviewed by the appellate court. Meadow
Valley M. Co. v. Dodds, 261.
16. NO REVERSAL FOR ERROR WHICH DOES NOT PREJUDICE. No error is noticeable or
deemed material which did not or could not prejudice the rights of the party
complaining. Caples v. Central Pacific R. R. Co., 265.
17. APPEAL-POINTS NOT COVERED BY TRANSCRIPT NOT CONSIDERED. Alleged error
in refusing to grant a continuance cannot be considered by the supreme court,
if the affidavits are not properly in the transcript, and there is no bill of excep-
tions, nor statement. State v. Wallin, 280.
18. SHOWING OF IMMATERIALITY OF ERROR IN CRIMINAL CASES MUST BE CONCLU-
SIVE. On an appeal, where error is shown to have been committed, the burden
of establishing its immateriality is on the respondent; and in criminal cases
the showing of immateriality must be conclusive. State v. Van Winkle, 340.
19. APPEAL-INSUFFICIENCY OF EVIDENCE. Where a finding for plaintiff, as to the
quantity of a water appropriation, was founded upon the basis that the flume
was of a certain size, and also of a certain grade; and it appeared on appeal
that, though the size of the flume was proved, there was no sufficient proof of
its grade: Held, on proper objection, that the judgment should be set aside.
Ophir Silver M. Co. v. Carpenter, 393.
20. NEW ISSUES NOT TO BE RAISED IN THE SUPREME COURT. Where on the trial
of a water case it was conceded that the findings as to the quantity of water
appropriated were to depend upon the capacity of the flume at a certain point:
Held, that the investigation in the supreme court, as to the question of quantity,
should be confined to the same point of the flume. Ophir Silver M. Co. v. Car-
penter, 393.
NO REVERSAL FOR ERRONEOUS INSTRUCTION NOT APPLICABLE TO ISSUE AND THAT
COULD NOT INJURE-see CHARGE, 6.
NO REVERSAL FOR ERROR WITHOUT PREJUDICE-see ERROR, 1, 2.
PRACTICE ON APPEAL AS TO PRELIMINARY INJUNCTION-See INJUNCTION, 1.
JUDGE'S CERTIFICATE TO STATEMENT ON APPEAL-See STATEMENT, 1, 2.
TRANSCRIPT NOT CONTAINING ALL THE EVIDENCE-see TRANSCRIPT, 1.
WAIVER AS TO TIME TO MAKE STATEMENT ON APPEAL-See WAIVER, 4.
DISCRETION OF COUNTY COMMISSIONERS AS TO APPROPRIATIONS
SPECIFIC APPROPRIATION OF COUNTY REVENUES-see COUNTY FUNDS, 2.
ASSAULT-ABILITY AND INTENTION-See CRIMINAL LAW, 4, 6.
POWER OF COUNTY COMMISSIONERS AS TO ASSESSMENT ROLL-See CERTIORARI, 1.
EVIDENCE OF SALES OF STOCK FOR ASSESSMENTS-see EVIDENCE, 2.
SUBSEQUENT TAX ASSESSMENTS-see TAXES, 1, 2.
TREASURER'S POWERS AS TO SUBSEQUENT TAX ASSESSMENT see Treasurer, 1.
1. DEPUTY COUNTY ASSESSOR'S TERM — LIABILITY OF SURETIES. Where a county
assessor on April 5th, 1867, made a writing appointing a deputy, which with
the oath of office was recorded as required by statute (Stats. 1864, 134) and
the deputy gave a bond for the faithful performance of the duties of his office
as such deputy during his continuance therein; and on May 9th, 1868, the
assessor made a new writing of appointment of the same person, which
with a new oath attached was recorded, but no new bond given: Held, that
the second writing did not create a new term of office, and that the sureties
on the bond were responsible for a defalcation of the deputy occurring at
any time during the continuance of his office, though after the date of the
second writing. Kruttschnitt v. Hauck, 163.
2. POWER OF COUNTY ASSESSOR TO APPOINT DEPUTIES. The power of the county
assessor to appoint deputies (Stats. 1864, 143; 1864–5, 345) is limited only by
the statutory provision (Stats. 1864-5, 346) that before such appointment he
shall "divide the county into convenient districts, of which division notice shall
be given to the board of county commissioners." Kruttschnitt v. Hauck, 163.
TERM OF LIABILITY OF SURETIES ON BOND OF DEPUTY ASSESSOR-See BONDS, 1.
ASSIGNMENT OF ERRORS ON APPEAL-See APPEAL, 15.
SPECIAL PROPERTY OF OFFICER IN PROPERTY ATTACHED. An officer who has
seized goods upon attachment has a special property in them, coupled with
the right of possession; and any interference therewith gives him a right of
action against the wrong-doer. Foulks v. Pegg, 136.
RIGHTS OF ATTACHMENT CREDITOR AS TO PROPERTY ATTACHED. An attachment
creditor has no interest or property in or possession of the attached goods by
reason of the levy, and cannot maintain an action in his own name for inter-
ference therewith against a wrong-doer, his only remedy being against the of-
ficer. Foulks v. Pegg, 136.
SEIZURE BY SHERIFF OF GOODS ATTACHED BY CONSTABLE-See SHERIFF, 4.
DELIVERY AFTER Sale and befoRE ATTACHMENT—see STATUTE of Frauds, 2.
STATEMENT OF COUNSEL TO SHOW RELEVANCY OF EVIDENCE-See PRACTICE, 5.
EFFECT OF AUDITING AND ALLOWING CLAIM AGAINST COUNTY-see COUNTY
FUNDS, 1.
BANKRUPT PLEADING DISCHARGE PRESUMED TO INSIST ON DISCHARGE. Where in
a suit against joint debtors one pleaded his discharge in bankruptcy subse-
quent to the commencement of the suit; and plaintiff thereupon amended his
complaint, set up such discharge, dismissed as to the bankrupt, and on default
of the other defendant took judgment against him; and it was objected on ap-
peal that plaintiff had no right to assume that the bankrupt would insist on
his discharge: Held, that plaintiff had the right to so assume and to waive
proof of the fact of discharge by his amendment, and that it was no error un-
der the circumstances to take a separate instead of a joint judgment. Dorn
v. O'Neale, 155.
PROCEEDINGS AGAINST JOINT DEBTORS WHERE ONE BANKRUPT-see JOINT DEBT-
ORS, 1.
TERM OF LIABILITY ON BOND OF DEPUTY ASSESSOR. Where the sureties on the
official bond of a deputy assessor obligated themselves for the faithful per-
formance by the officer of the duties of said office "during his continuance
therein": Held, that the obligation of the sureties was general, for a term
solely dependent upon the will of the assessor, and which would continue, un-
less revoked, during his entire term. Kruttschnitt v. Hauck, 163.
OFFICIAL BOND FOR SUM GREATER THAN REQUIRED. Where a State treasurer
voluntarily gave an official bond in the sum of $102,500, while the law only re-
quired one in the sum of $100,000: Held, that there was nothing in the law to
prohibit the giving and the accepting (if voluntarily offered) of such a bond;
and that under the circumstances the excess did not invalidate it.
Rhoades, 352.
ORDER REQUIRing Bond to be given Not AppEALABLE—see APPEAL, 13.
LIABILITY ON BONDS OF DE FACTO OFFICERS-RECITALS IN OFFICIAL BONDS-
see ESTOPPEL, 3.
PARTY PLAINTIFF IN SUIT ON REPLEVIN BOND-see PARTIES, 1, 2.
SHERIFF NOT INTERESTED IN REPLEVIN BOND-See SHERIFF, 3.
STOCK-BROKERAGE-WAIVER OF DELIVERY OR TENDER. Where a broker buys
stock for his principal, and the principal before receiving it orders the broker
to sell it again on the principal's account, this amounts to a waiver of any de-
livery or tender of the stock by the broker to the principal. Cahill v. Hirsch-
man, 57.
BROKER'S LEDGER AS EVIDENCE-see EVIDENCE, 3.
DAMAGES AGAINST PASSENGER CARRIERS FOR NEGLIGENCE STRICTLY COMPENSA-
TORY-SEE DAMAGES, 6.
1. QUESTION INVOLVED ON CERTIORARI. Where, on application of a person to
equalize as to his own property the subsequent assessment roll, as provided in
the supplemental revenue act of 1867, (Stats. 1867, 111) the county commis-
sioners ordered the entire subsequent assessment roll to be stricken out; and
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