ter by the court does not affect plaintiff's right to appeal.-Wood Mercantile Co. v. McAdoo (Ala.) 856.

V. PRESENTATION AND

RESERVATION IN LOWER COURT OF GROUNDS OF REVIEW.

(A) ISSUES AND QUESTIONS IN LOWER COURT.

170. A party held not entitled to raise the question of the constitutionality of Code 1906, 793, not considered below.-Southern Ry. Co. v. Jackson (Miss.) 738.

§ 171. Where suit is brought based on the theory that a transfer vested title in a judgment debtor, plaintiff on appeal cannot urge that the transfer was null and void and was omium bonorum.-Ruddock Orleans Cypress Co. v. De Luppe (La.) 588; In re De Luppe, Id.

§ 171. The issues on appeal cannot be different from those tried in the lower court.-Vicksburg Mfg. & Supply Co. v. J. H. Jaffray Const Co. (Miss.) 116.

§ 173. A demand in reconvention for the avoidance of a sale of machinery and return of the part of the price paid on the ground that the machinery had proved defective will not be dismissed upon objection urged for the first time in the Supreme Court that no tender back has been made of the machinery.-WoodwardWight & Co. v. Engel Land & Lumber Co. (La.) 719.

(B) OBJECTIONS AND MOTIONS, AND RULINGS THEREON.

§ 194. Where no ruling was invoked below as to replications which constituted a departure from the complaint, they should be considered and treated as good on appeal.-Alexander v. Woodmen of the World (Ala.) 883.

§ 204. An assignment of error to the admission of evidence will not be considered where such evidence was admitted without objection. -Wilson v. Jernigan (Fla.) 44.

§ 231. There was no error in overruling an objection to a question to a witness where no grounds are set out, and the witness has already testified as to the matter without objection.-Rutledge v. Rowland (Ala.) 461.

(C) EXCEPTIONS.

§ 248. A motion for a new trial cannot be made to serve the purpose of an exception to a ruling or charge of the court, nor can it cure the failure to reserve such exception.Smith v. Wolf (Ala.) 395.

§ 260. A ruling sustaining a motion to exclude testimony cannot be considered on appeal, where it was not excepted to at trial.-United Order of the Golden Cross v. Hooser (Ala.) 354.

§ 261. Alleged improper remarks by counsel in his closing argument will not be reviewed, where no exceptions were taken at the time.Mississippi Cent. Ry. Co. v. Turnage (Miss.) 840.

§ 263. A ruling on instructions cannot be made the ground of a motion for new trial in order to review the ruling on appeal, where it was not excepted to at trial.-Central of Georgia Ry. Co. v. Ashley (Ala.) 388.

must fall if one proposition is correct.-Stringfellow v. Coons (Fla.) 1019.

(D) MOTIONS FOR NEW TRIAL.

§ 292. Any error in the instructions will not be noticed on appeal, where not questioned in the motion for a new trial.-Southern Ry. Co. v. Jackson (Miss.) 738.

VI. PARTIES.

will be noticed on appeal without suggestion.§ 336. The defect of indispensable parties Russell v. Bell (Ala.) 314.

VII.

REQUISITES AND PROCEEDINGS FOR TRANSFER OF CAUSE. (A) TIME OF TAKING PROCEEDINGS. § 337. Where a judgment maintaining an exception of no cause of action has been rendered and suit dismissed, an appeal is premature until the judgment has been signed.-Mitchell v. Shreveport Creosoting Co. (La.) 655.

(C) PAYMENT OF FEES OR COSTS, AND BONDS OR OTHER SECURITIES.

§ 382. Where plaintiff has been nonsuited, without being ordered to deliver any property. the amount of the appeal bond is not required to include an amount to secure the property which has been sequestered.-Fitzpatrick v. Letten (La.) 494.

§ 382. The amount of an appeal bond is within the trial court's discretion, where plaintiff has been nonsuited.-Fitzpatrick v. Letten (La.) 494.

§ 382. The judge must fix the amount of the security in a devolutive appeal when the appeal requires his signature.-Succession of Lynch (La.) 1002.

§ 391. An additional, supplemental, suspensive appeal bond may be authorized by the trial judge, if timely offered.-Fitzpatrick v. Letten (La.) 494.

$395. Where an appeal bond is declared insufficient, and the appeal dismissed in the district court, and appellant furnishes another surety without obtaining another order of appeal, a second bond is not legal, and the appeal will be dismissed.-Durel v. Murphy (La.) 1013.

(D) WRIT OF ERROR, CITATION, OR

NOTICE.

§ 397. Where an appeal is taken by motion in open court at the same term, no citation or notice of appeal is necessary.-Guy v. McDuffie (La.) 222.

§ 397. Where an order for an appeal is granted on motion in open court, or the parties who have not appealed are appellees, so that there can be no want of proper parties, where motion for appeal is made in open court, all parties who have not appealed are appellees.-Guy v. McDuffie (La.) 222.

(E) ENTRY, DOCKETING, AND APPEARANCE.

§ 434. Where appellant makes no appearance, and no assignment of error, the judgment below will be assumed to be correct.-Guy v. McDuffie (La.) 222.

X. RECORD AND PROCEEDINGS NOT IN RECORD.

ORD.

§ 274. An exception to a charge as a whole embracing two or more distinct propositions

§ 494. Where the transcript on appeal fails to show that final judgment was rendered by the circuit court, the appeal will be dismissed.Newberger Cotton Co. v. Watts (Miss.) 146.

(C) NECESSITY OF BILL OF EXCEPTIONS, CASE, OR STATEMENT OF FACTS.

8548. Where only part of the evidence is reduced to writing, the result is the same as though none of the evidence had been so preserved.-Fletcher v. Ozone Lumber Co. (La.) 158; In re Ozone Lumber Co., Id.

$552. A statement of facts prepared by the trial judge is not technically incomplete because, in the opinion of the appellate court, the facts may be insufficient to support the judgment.Fletcher v. Ozone Lumber Co. (La.) 158; In re Ozone Lumber Co., Id.

(F) MAKING, FORM, AND REQUISITES OF TRANSCRIPT OR RETURN.

§ 594. Appellant must present a transcript showing error, in order to have a review of a judgment.-Garig v. Truth Printing & Pub. Co. (La.) 632.

(H) TRANSMISSION, FILING, PRINTING, AND SERVICE OF COPIES.

§ 627. An appeal not docketed within the time limited by Code 1907, § 2870 (Code 1896, $ 437), should be dismissed.-Southern Ry. Co. v. Abraham Bros. (Ala.) 801.

§ 628. Where the citation of appeal was not served on appellee until the expiration of the term to which the appeal was returnable, but the delay in service was not through appellant's fault, the appeal will not be dismissed because the transcript was not filed during the term to which the appeal was returnable.-Prince v. Prince (Ala.) 873.

(1) DEFECTS, OBJECTIONS, AMEND-
MENT, AND CORRECTION.

§ 644. The insufficiency of the register's certificate to a transcript was waived by submitting the case on its merits.-Crittenden v. Chancey (Ala.) $11.

§ 653. An appellant held not entitled to move in the Supreme Court to expunge certain erasures in the bill of exceptions.-Horton v. Louisville & N. R. Co. (Ala.) 423.

§ 657. Where an issue is presented whether the statement of facts by the trial judge was prepared after appellee's refusal to join in such statement, or without notice to appellee, it may be proper that the testimony thereon be taken in the trial court.-Fletcher v. Ozone Lumber Co. (La.) 158; In re Ozone Lumber Co., Id.

§ 659. Where the record on appeal to the Court of Appeal is incomplete, because of the absence of testimony which was not reduced to writing, the trouble cannot be remedied by certiorari.-Fletcher v. Ozone Lumber Co. (La.) 158; In re Ozone Lumber Co., Id.

$ 680. Where the record does not show what the demurrer to the amended complaint was, the Supreme Court cannot review the order overruling it.-Central of Georgia Ry. Co. v. Ashley (Ala.) 388.

$ 680. Defendant can take nothing on his appeal by reason of plaintiffs' demurrer to his pleas where the record does not affirmatively show the judgment upon the demurrer.—Cefalu v. Dearborn & Warfield (Ala.) 1030.

§ 691. Where all the evidence is not in the bill of exceptions, error cannot be based on exclusion of testimony.-Falk V. Kimmerle (Fla.) 504.

whether the trial court erred in excluding pa$692. The appellate court cannot determine pers not set out in the bill of exceptions.Stringfellow v. Coons (Fla.) 1019.

§ 695. Whether the general affirmative charge for plaintiff was improper cannot be determined on appeal where the bill of exceptions does not purport to set out all the evidence.Penry v. Dozier (Ala.) 909.

§ 706. The denial of a motion for new trial cannot be reviewed, where it is not set out in the bill of exceptions.-Basenberg v. Lawrence (Ala.) 771.

XI. ASSIGNMENT OF ERRORS.

§ 721. Assignments of error, made jointly by defendants as to matter prejudicial to some of them only, will be disregarded.-Davis v. W. F. Vandiver & Co. (Ala.) 318.

§ 736. Where several errors are included in a single assignment, which cannot be good in part and bad in part, all the matters complained of must constitute error, or the assignment will not be supported.-Brent v. Baldwin (Ala.) 343.

§ 737. Where an assignment of errors to the sustaining of a demurrer to different counts of the complaint is general, embodying therein errors claimed as to several rulings, if either ground of demurrer to either count is sustainable, the ruling will be upheld.-Thompson v. Nashville, C. & St. L. Ry. (Ala.) 340.

§ 737. Where a joint and several demurrer to each of several replications is filed, an assignment based on an order overruling such demurrer held good if any one of the replications is bad.-Southern Home Ins. Co. v. Putnal (Fla.) 922.

§ 749. An answer to an appeal praying for cannot be considered if filed on the day on which an amendment of the judgment appealed from the cause is set down for argument.-Union Sawmill Co. v. Arkansas Southeastern R. Co. (La.) 173.

§ 664. The judgment entry is on appeal the sole expositor of rulings on pleadings.-Penry v. Dozier (Ala.) 909.

§ 664. Where recitals in the bill of exceptions and the judgment entry conflict, the recitals in the latter must prevail on appeal as to rulings on demurrer.-Penry v. Dozier (Ala.)

909.

ABANDONMENT.

Dismissal in contempt proceedings, see Contempt, § 66.

the court a qua overruling a motion to dismiss § 794. The correctness of the judgment of an appeal cannot be tested by motion to dismiss filed in the Supreme Court, but the only remedy is by appeal.-Succession of Desina (La.) 23.

§ 801. The burden of proof is with an appellee, who seeks to have an appeal dismissed for insufficiency of the bond.-Fitzpatrick v. Letten (La.) 494.

XV. HEARING AND REHEARING.

§ 835. It is too late, on a motion for rehearing on appeal, to ask for the alternative remedy of mandamus.-Gartman v. Lightner (Ala.) 412.

XVI. REVIEW.

tiff not cured by the final judgment entry as finally amended may be reviewed; and hence demurrers thereto sustained before their final amendment will be reviewed.-Penry v. Dozier (Ala.) 909.

$854. Where a demurrer to a bill is sustainable on any of the grounds thereof, it is immaterial that the trial court may have given a wrong reason. Murrell v. Peterson (Fla.) 31. (B) INTERLOCUTORY, COLLATERAL, AND SUPPLEMENTARY

PROCEEDINGS AND QUESTIONS.

$870. Rights of plaintiff where demurrers have been sustained to the complaint in view of Code 1907, § 5370, stated.-J. B. Ellis & Co. v. Brannen (Ala.) 1034.

$870. Scope of review no appeal from an order dismissing a cause for want of prosecution stated.-J. B. Ellis & Co. v. Brannen (Ala.) 1034.

§ 874. Where only specified orders of several interlocutory orders are appealed from, the appellate court is confined to the orders mentioned. -City of Miami v. Miami Realty, Loan & Guaranty Co. (Fla.) 55.

(D) AMENDMENTS, ADDITIONAL
PROOFS, AND TRIAL OF
CAUSE ANEW.

§ 886. On appeal a judgment cannot be amended as between co-appellees.-Corbitt v. Hanson (La.) 995.

$895. Garnishee in proceedings founded on a judgment may show in the Court of Appeal that the judgment was obtained by default against unrepresented minor.-Johnson v. Murphy (La.) 1007; In re D. H. Holmes Co., Id.

(E) PRESUMPTIONS.

(F) DISCRETION OF LOWER COURT.

§ 959. The trial court's discretion on a motion for the compulsory amendment of a pleading will not be disturbed except for manifest abuse.-Southern Home Ins. Co. v. Putnal (Fla.) 922.

§ 970. The trial court's discretion in the matter of the order of the introduction of evidence will not be reviewed except for an abuse.-Wilson v. Jernigan (Fla.) 44.

§ 971. The exclusion of a question on crossexamination as to the witness' recollection of a fact held within the trial court's discretion, and not reviewable.-United Order of the Golden Cross v. Hooser (Ala.) 354.

§ 971. An allowance of leading questions will not be disturbed unless there was an abuse of the court's discretion.-Birmingham Ry., Light & Power Co. v. Pritchett (Ala.) 782.

§ 971. Discretionary rulings of the court in overruling objections to questions to witnesses as leading are not reviewable.-Merriweather v. Sayre Mining & Mfg. Co. (Ala.) 916.

§ 971. The discretion of the trial court in propounding of leading questions to a witness will not be reviewed on appeal.-Falk v. Kimmerle (Fla.) 504.

§ 985. Where the trial court's discretion in fixing the amount of an appeal bond has not been arbitrarily exercised, it is not subject to review.-Fitzpatrick v. Letten (La.) 494.

(G) QUESTIONS OF FACT, VERDICTS, AND FINDINGS.

§ 1001. In passing on an assignment to the denial of a motion for new trial for insufficiency of the evidence, the question is whether as reasonable men the jury could have found such verdict.-Wilson v. Jernigan (Fla.) 44.

§ 901. A party on appeal must make the errors complained of clearly appear.-Falk v. Kimmerle (Fla.) 504.

turb a verdict, unless it is clearly contrary to the great weight of evidence.-Houston v. Davis (Ala.) 869.

§ 1004. The damages for physical pain proximately resulting from actionable negligence, being for the jury, will not be disturbed on appeal, unless the jury's discretion was abused. Central of Georgia Ry. Co. v. Morgan (Ala.) 865.

§ 1005. A verdict which reasonable men might have found, and which has received the sanction of the trial court, will not be disturbed.-Wilson v. Jernigan (Fla.) 44.

$ 1005. A refusal of a new trial for insufficiency of the evidence will not be reversed unless against the decided preponderance of the evidence.-Wilson v. Jernigan (Fla.) 44.

1005. A verdict approved by the trial court, and which there is evidence to support, should not be disturbed in the absence of any showing that the jurors were improperly influenced.Wilson v. Jernigan (Fla.) 44.

§ 1008. In cases tried without a jury, if the facts are not agreed on, and there are no special findings or requests therefor, the judge's conclusions stand as the jury's verdict and cannot be reviewed, except as to whether or not

§ 1008. Where there is no special finding or request therefor in a trial by the court, the judgment takes the place of a verdict and is reviewable on appeal only in the same manner.Cefalu v. Dearborn & Warfield (Ala.) 1030. $1009. Where the propriety of a decree rests entirely upon the facts in proof, and there is evidence justifying it, it should be affirmed. West v. Daniels (Fla.) 154.

§ 1009. A decree in equity will be affirmed, where no question of law is raised and substantial justice has been done.-Cimino v. Smith (Fla.) 545.

§ 1009. A decree will not be disturbed simply because the evidence is conflicting.-J. I. Kelley Co. v. Pollock & Bernheimer (Fla.) 934.

§ 1010. The finding of the court on testimony given viva voce will not be reversed unless so manifestly against the evidence that a judge at nisi prius would set aside a verdict rendered on the same testimony.-Fulton v. Norris (Ala.) 1028.

§ 1010. In an election contest, held, that the trial judge had peculiar advantages in weighing the testimony, and that the Supreme Court could not affirm errors on assignments based on his general finding.-Fulton v. Norris (Ala.) 1028.

§ 1011. A finding of fact by the court on conflicting evidence is like a verdict as to review.-J. Rapport & Bro. v. Birmingham Ry., Light & Power Co. (Ala.) 674.

§ 1011. A finding by the trial court will not be reversed because of a conflict in the testimony.-Johnson v. Miller (Ala.) 858.

§ 1011. A finding of the court on conflicting oral testimony will not be disturbed, unless plainly erroneous.-Montgomery v. Patterson (Ala.) 1027.

§ 1011. A final decree on conflicting evidence will not be disturbed.-Davis v. Horne (Fla.)

505.

§ 1011. Whether a person offering to register is a bona fide resident of the precinct, within Const. 1898, art. 197, is a question of fact, and the judgment will not be disturbed unless clearly erroneous.-State ex rel. Fleming v. Joyce (La.) 218.

$ 1011. A judgment on conflicting evidence will not be disturbed on appeal.-State ex rel. Fleming v. Joyce (La.) 219.

1015. The granting of a new trial will not be reversed on appeal, unless the evidence palpably supports the verdict.-Hoven v. Gewin (Ala.) 676.

§ 1015. Unless the evidence plainly and palpably supports the verdict, the action of the trial court in granting a new trial will not be disturbed on appeal.-Sherrer v. Enterprise Banking Co. (Ala.) 779.

§ 1024. On an application to dissolve a temporary injunction on bill, answer, replication, and affidavits, the chancellor must be governed by the weight of the evidence, and his ruling will not be reversed, unless clearly erroneous.High v. Jasper Mfg. Co. (Fla.) 156.

(H) HARMLESS ERROR.

§ 1026. Where no rulings of the court limit plaintiff in any effort to sustain the material averments of the complaint, rulings adverse to plaintiff are without injury to him.-Pike v. Tallassee Falls Mfg. Co. (Ala.) 857.

§ 1026. Error which did not injure appellant is not reversible.-Suell v. Derricott (Ala.) 895.

§ 1026. Where it affirmatively appears that no injury resulted from an erroneous ruling, it is not ground for reversal.-Penry v. Dozier (Ala.) 909.

§ 1026. An appellate court will not reverse, however erroneously a point may have been ruled, where it is clearly made to appear that the complaining party was not prejudiced.Southern Home Ins. Co. v. Putnal (Fla.) 922.

§ 1027. A party in whose favor an issue is found is not injured by errors in respect to such issues.-Stephens v. Middlebrooks (Ala.) 321.

§ 1031. Where there is no bill of exceptions, and neither the evidence nor the instructions are brought up, the court is precluded from saying that from the whole case error in ruling on the pleadings was harmless.-Southern Home Ins. Co. v. Putnal (Fla.) 922. that errors which may have been committed § 1032. Where defendant in error believes were harmless, he should avail himself of the right conferred by special rule 1 (51 Fla. 18, 37 South. x), and have the evidence and other proceedings incorporated in the transcript.-Southern Home Ins. Co. v. Putnal (Fla.) 922.

§ 1033. Rulings as to pleadings in favor of a party appealing will not be considered.-Penry v. Dozier (Ala.) 909.

§ 1040. A ruling on a demurrer to a count of the complaint need not be reviewed on defendant's appeal, where the affirmative charge for defendant was given as to that count.Atlanta & B. Air Line Ry. v. Wood (Ala.)

426.

§ 1040. Where plaintiff was not entitled to recover in any event, the error, if any, in a ruling on the demurrer to a plea of contribuCity of Bessemer (Ala.) 872. tory negligence, was harmless.-Lipscomb v.

§ 1040. If a former ruling on any count of a complaint as finally amended was detrimental to plaintiff's rights, it was cured by a subsequent ruling overruling the demurrer to each of the counts as finally amended.-Penry v. Dozier (Ala.) 909.

§ 1040. In an action for libel and slander, no injury resulted to plaintiff from sustaining a demurrer to a count in a complaint as first amended, where a demurrer to the same count as subsequently amended was overruled, and the same proof which would support conviction under the one would support it under the other.Penry v. Dozier (Ala.) 909.

§ 1040. No error can be predicated on sustaining a demurrer to a count in a complaint containing other counts substantially the same, and to which a demurrer was overruled.-Penry v. Dozier (Ala.) 909.

§ 1040. To sustain a demurrer to a pleading held not reversible error, though the proper method of attack would be by motion to strike out.-Southern Home Ins. Co. v. Putnal (Fla.)

922.

§ 1042. Where it clearly appears that a party whose pleading has been improperly stricken was not injured thereby, the error held harmless; but it may be reversible error on the principle that, error appearing, injury must be presumed. Southern Home Ins. Co. v. Putnal (Fla.) 922.

§ 1048. Where the answer to a question to a witness would be the statement of a fact known to the jury as well as to the witness, that the question was objectionable would be harmless error.-Atlanta & B. Air Line Ry. v. Wood (Ala.) 426.

§ 1048. Error in overruling an objection to a question which was not answered was harm

less.-Birmingham Ry., Light & Power Co. v. Baker (Ala.) 755.

$1050. Where defendant in detinue by the seller admitted the use of the property to be worth $1 per day, and the verdict for detaining it nearly two years was only $300, the error, if any, in the admission of plaintiff's evi- | dence as to the value of such use, was harmless.-Roquemore v. Vulcan Iron Works Co. (Ala.) 389.

§ 1050. Admission of evidence of a transaction of deceased which is immaterial held harmless. Tutwiler v. Burns (Ala.) 455.

§ 1050. Where conditional sale stipulated for attorney's fees, held not reversible error to receive proof of reasonable attorney's fees, though no claim was made therefor in the declaration.-Williams v. Hampton (Fla.) 506.

§ 1051. Error, if any, in permitting a witness to testify as to whose duty it was to keep up the roof of a coal mine entry held not prejudicial, in view of the facts authorizing the court to determine that question as one of law. -Sloss-Sheffield Steel & Iron Co. v. Green (Ala.) 301.

§ 1051. Though the originals of letters are the best evidence, there is not error in admitting copies in evidence against a party who testified that they were true copies of the originals written to and received by him.-Penry v. Dozier (Ala.) 909.

§ 1051. Where, in detinue for a typewriter, there was, in fact, evidence that the value of the machine was greater than the alternate value fixed by the judgment, any error in admitting other evidence of its value after the case was submitted and argued on the ground that there was no evidence to show its value, was not prejudicial to defendant.-Cefalu v. Dearborn & Warfield (Ala.) 1030.

§ 1052. In an action for the price of lumber, in which defendant sought to recoup for delay in delivery, error in allowing testimony of plaintiff's officer as to why he stopped sending lumber to defendant was not made harmless by the subsequent introduction of a letter which did not refer to plaintiff's stopping to send lumber. -Merchants Bank v. Acme Lumber & Mfg. Co. (Ala.) 782.

$ 1056. The exclusion of evidence held not prejudicial to plaintiff, where all the evidence would not have supported a judgment for him. -Crone & Co. v. I. Long & Son (Ala.) 227.

§ 1056. Exclusion of testimony held not prejudicial.-Southern Ry. Co. v. Dickens (Ala.)

766.

§ 1056. Error in excluding evidence held not rendered harmless because of an apparent variance, where the ruling excluding it practically put plaintiff out of court, as her subsequent evidence might have explained and obviated the apparent variance.-Prince v. Prince (Ala.) 873.

§ 1058. There was no error in overruling an objection to a question to a witness where no grounds are set out, and the witness has already testified as to the matter without objection.-Rutledge v. Rowland (Ala.) 461.

$ 1058. No error can be predicated on the exclusion of a question to a witness who had just previously answered the identical question. -Penry v. Dozier (Ala.) 909.

§ 1058. No error can be predicated on sustaining an objection to a question to a witness where it affirmatively appears that the question was subsequently answered fully.-Penry v. Dozier (Ala.) 909.

1064. The giving of a charge merely misleading or abstract held not reversible error.Gillespie v. Hester (Ala.) 580.

§ 1066. It is not reversible error to give an abstract instruction inapplicable to the case. Central of Georgia Ry. Co. v. Dothan Mule Co. (Ala.) 243.

§ 1066. Refusal of charge held not prejudicial.-Alabama Great Southern R. Co. v. Hanbury (Ala.) 467.

charges is not necessarily reversible error.§ 1066. The giving of abstract or misleading Suell v. Derricott (Ala.) 895.

dered for defendants, it is unnecessary to con§ 1068. Where the verdict was properly rensider alleged errors in instructions as to amount of the verdict and measure of damages.-Suell v. Derricott (Ala.) 895.

(1) ERROR WAIVED IN APPELLATE COURT.

§ 1078. Where appellant in its brief insists upon only one of several assignments of error, only that assignment will be considered.-Atlantic Coast Line R. Co. v. Dothan Mule Co. (Ala.) 882.

§ 1078. The court on appeal is justified in affirming a judgment, when counsel do not, either by personal appearance or through a brief, point out the specified grounds of complaint.-Schwan v. Peterman (La.) 486.

(K) SUBSEQUENT APPEALS.

§ 1097. Where judgment of district court has been affirmed, the Supreme Court will not undertake to enforce such judgment on a different theory.-Succession of Filhiol (La.) 138.

XVII. DETERMINATION AND DISPOSITION OF CAUSE.

(A) DECISION IN GENERAL.

is not such as to furnish the Supreme Court § 1116. Where the condition of the record with the basis for a judgment for any particu lar amount for plaintiff, it cannot arbitrarily fix an amount.-Fitzpatrick v. Letten (La.) 494.

(B) AFFIRMANCE.

§ 1136. If any one ground of demurrer was properly sustained to any one count of a complaint, and plaintiff declined to amend the count, or strike it out, so as to leave his complaint good, and, suffered judgment to be rendered against him for so declining, the trial court will be sustained on appeal, though demurrers were improperly sustained to other counts.-Baker v. Atlanta, B. & A. R. Co. (Ala.) 751.

(D) REVERSAL.

§ 1170. Code 1906, § 808, providing that judgment by default shall not be reversed for any fault which would not have been good cause to stay or reverse the judgment on issue joined, does not apply where the declaration fails to show a right to recover.-Penn Mut. Life Ins. Co. v. Keeton (Miss.) 736.

§ 1171. Where there was ample proof of $1,000 damage, a verdict for plaintiff for $1 should have been set aside as inadequate.-Corley v. Board of Levee Com'rs of Yazoo-Mississippi Delta (Miss.) 266.

§ 1171. A judgment may be reversed on appeal because the verdict is grossly deficient in amount.-Corley v. Board of Levee Com'rs of Yazoo-Mississippi Delta (Miss.) 266.

reversed on appeal that it might be determined

§ 1177. Partition suit held necessary to be

whether a tenant in common had by laches lost his right to compel the co-tenant purchasing the premises from a purchaser by tax sale to make a title to his part of the property.-Duson v. Roos (La.) 590.