94 N. W. 540, 98 N. W. 837, 100 N. W. 930, 103 N. W. 455; Western Travelers A. A. v. Tomson, 72 Neb. 661, 101 N. W. 341, 103 N. W. 695, 105 N. W. 293; Chicago etc. R. Co. v. Kerr, 74 Neb. 1, 104 N. W. 49; Bennett v. Bennett, 65 Neb. 432, 91 N. W. 409, 96 N. W. 994; Omaha Nat. Bank v. Kiper, 60 Neb. 33, 82 N. W. 102; American Fire Ins. Co. v. Landfare, 56 Neb. 482, 76 N. W. 1068.

17. When complaint is not vulnerable to attack on appeal.-Although a complaint may in fact be bad in substance, if the object of the plaintiff can be ascertained from the allegations of his complaint, and the allegations are sufficient, the court has power to grant the relief demanded, and, where it has jurisdiction of the parties, the judgment is not vulnerable to attack: Lemon v. Hubbard, 10 Cal. App. 471, 102 Pac. 554, 555, citing Brush v. Smith, 141 Cal. 470, 75 Pac. 55; Crane v. Cummings, 137 Cal. 202, 69 Pac. 984.

18. Reversal for fundamental error.If the records should disclose that the complaint is not sufficient to support a judgment, the rendition of a judgment thereon would constitute fundamental error as manifest in the record, and the judgment should be reversed in the appellate court, even if the point was not raised by the appellant: Sandovial v. Randolf (Ariz.), 95 Pac. 119, 120, (to recover moneys held for plaintiff's use and benefit).

19. Non-prejudicial ruling. The overruling of a demurrer to the complaint on the ground of misjoinder of parties plaintiff is not ground for reversal of a judgment where the defendants were not prejudiced thereby: Tooney v. Knoblock, 8 Cal. App. 585, 97 Pac. 529, 530; Woollacott v. Meekin, 151 Cal. 701, 91 Pac. 612; Daly v. Ruddell, 137 Cal. 674, 70 Pac. 784.

20. Parties to appeal. The parties to a motion for a new trial are the only necessary parties to an appeal from an order denying the motion: Herriman v. Menzies, 115 Cal. 16, 25, 44 Pac. 660, 46 Pac. 730, 56 Am. St. Rep. 82; Johnson v. Phenix Ins. Co., 146 Cal. 571, 575, 80 Pac. 719.

21. Parties to the record only may appeal: Elliott v. Superior Court, 144 Cal. 501, 507, 77 Pac. 1109. But see as to limitations of this rule, Estate of Crooks, 125 Cal. 459, 462. 58 Pac. 89; Estate of Meade (Cal.), 49 Pac. 5. And the notice

of appeal need be served only upon a defendant who has been served with summons or appeared in the action: Clarke v. Mohr, 125 Cal. 540, 543, 58 Pac. 176.

22. An "adverse party" is any party whose interest in the subject-matter of appeal is adverse to, or will be affected by, a reversal or modification of the judgment or order appealed from: Senter v. De Bernal, 38 Cal. 637, 640; Harper v. Hildreth, 99 Cal. 265, 267, 33 Pac. 1103; Mohr v. Byrne, 132 Cal. 250, 251, 64 Pac. 257.

23. Undertaking on appeals from judgment and order denying new trial.-The undertaking must refer to each of the appeals as distinctly as if there were separate appeals,- -one from the order, the other from the judgment,-and as if each was accompanied by an undertaking: Granger v. Robinson, 114 Cal. 631, 632, 46 Pac. 604; Corcoran v. Desmond, 71 Cal. 100, 102, 11 Pac. 815.

24. Where the undertaking insufficiently refers to either the judgment or the order denying new trial appealed from, the undertaking is ineffectual, and the appeal will be dismissed: McCormick v. Belvin, 96 Cal. 182, 183, 31 Pac. 16; Carter v. Butte Creek G. M. & P. Co., 131 Cal. 350, 351, 63 Pac. 667.

25. Separate undertakings are required where an appeal is from a judgment and any order or orders other than an order denying a new trial: Sharon v. Sharon, 68 Cal. 326, 332, 9 Pac. 187. And this rule is not varied when a nonappealable order is joined in the notice with an appealable one: Estate of Kasson, 135 Cal. 1, 2, 66 Pac. 871.

26. Classes of undertakings on appeal. -Under the California practice, there are three classes of undertakings used on appeal,- one, under sections 940 and 941 of the Code of Civil Procedure, which must be for the penal amount of $300, to pay damages and costs which may be awarded, etc., and which must be filed within five days after service of the notice of an appeal, to make the appeal effectual, unless a deposit of money be made in lieu thereof or such undertaking is waived. The second class of undertakings, under section 942 of the same code, is an additional undertaking filed for the purpose of staying execution of a judgment or order directing the payment of money. Under this undertaking the sureties are to be bound in double the amount of the judgment

or order, etc. A third class, similar in purpose to the second class, under section 943 of the same code, is used to obtain a stay of execution in case of an appeal from a judgment or order directing the assignment or delivery of documents: For the distinctions between the classes of undertakings, see Duffy v. Greenebaum, 72 Cal. 157, 159, 12 Pac. 74, 13 Pac. 323; Corcoran v. Desmond, 71 Cal. 100, 104, 11 Pac. 815; In re Schedel, 69 Cal. 241, 243, 10 Pac. 234; Owens v. Pomona L. & W. Co., 124 Cal. 331, 334, 57 Pac. 71.

27. Non-appealable order. Striking out pleading.-An appeal does not generally lie from an order striking out a pleading: Allen v. Church, 101 Iowa 116, 70 N. W. 127; Allen v. Cook (Iowa), 71 N. W. 534; Jordan Co. v. Sperry Bros., 141 Iowa 225, 119 N. W. 692, 693.

28. Failure to answer.-When deemed waived. Where the plaintiff fails to take judgment against defendant upon failure of the defendant to file an answer, and goes to trial, the parties thereby treating the cause as if at issue; held, that the plaintiff can not take advantage on appeal of the failure to answer: Ward v. Blythe (Ark.), 122 S. W. 508; Pembroke v. Logan, 71 Ark. 364, 74 S. W. 297; Cribbs v. Walker, 74 Ark. 104, 85 S. W. 244.

29. Deficiencies of complaint supplied by the answer.-Where any deficiencies of the complaint are supplied by the allegations of the answer, and thereby all material issues are clearly presented by the pleadings, such defects can not be said to result in prejudice to the defendant in review on appeal: Lowe V. Yolo County C. W. Co., 8 Cal. App. 167, 96 Pac. 379, 381.

30. Trial de novo of equity case in supreme court.-It has been the uniform ruling of the supreme court of the state of Washington in an equity case which is tried de novo in that court, that the case will be tried upon the testimony, and the pleadings will be considered amended to meet the requirements of the testimony. In equity cases, if evidence is introduced without objection which would entitle a party to relief, the decision would be based upon it, without regard to the pleadings, which are treated as amended: Ness v. Bothell, 53 Wash. 27, 101 Pac. 702, 703; Davis v. Hinchcliffe, 7 Wash. 199, 34 Pac. 915;

Cunningham v. Lakin, 50 Wash. 394, 97 Pac. 447.

31. Decisions on all questions not required. The defendant is entitled to the decision of the appellate court, where an appeal is made from a judgment for defendant sustaining a demurrer, on all questions presented by the demurrer and necessary to the decision made: Burke v. Maguire, 154 Cal. 456, 98 Pac. 21, 23, See White v. Merrill, 82 Cal. 14, 22 Pac. 1129; Wakeham v. Barker, 82 Cal. 46, 22 Pac. 1131; Wilson v. Carter, 117 Cal. 53, 48 Pac. 983.

32. Modification of judgment for excess.-Where a judgment is rendered in the trial court for an amount in excess of the amount to which plaintiff is entitled, and no offer to remit is made in the court below, the appellate court, on appeal, may render such judgment as should have been rendered in the court below: Duggan v. Cole, 2 Tex. 381, 397. 33. Transcript should contain notice of appeal: Woodside v. Hewel, 107 Cal. 141, 143, 40 Pac. 103.

34. Transcript not required to include the undertaking.-The undertaking on appeal should not be embodied in the transcript on appeal: San Francisco etc. R. Co., 77 Cal. 297, 298, 19 Pac. 517.

35. Alternative method of appeal.California.-Under code provisions enacted in 1907 (Stats. 1907, p. 753), an alternative method of appeal was established under which the mere filing of a notice of appeal within a period specifiled is sufficient. This method of appeal has been passed upon in the following cases: United Investment Co. v. Los Angeles Interurban R. Co., 10 Cal. App. 175, 179, 101 Pac. 543; Ford & Sanborn v. Braslan Seed Growers' Co., 10 Cal. App. 762, 766, 103 Pac. 946; Modoc Co-operative Association v. Porter, 11 Cal. App. 270, 271, 104 Pac. 710; Reclamation Dist. No. 70 v. Sherman, 11 Cal. App. 399, 403, 105 Pac. 277, (in this latter case rule 7, as prescribed by the supreme court, is held applicable to appeals under the alternative method: for this rule, see 144 Cal. xliv, 78 Pac. ix); John Brickell Co. v. Sutro, 11 Cal. App. 460, 462, 105 Pac. 948, 949, (holding that service of the notice under this method of appeal is not required); Estate of Brewer, 156 Cal. 89, 91-93, 103 Pac. 486, (holding that this method is applicable to probate appeals); Lane v.