ABORTION. See HOMICIDE, 1, 2.
Occupation of Right of Way-When Consistent With Ease-
ment. Where a portion of the land granted to a railway
for right of way purposes was, during its non-user by
the railway, fenced and cultivated by the grantor of the
easement and his successors for a period of more than
ten years, no title by adverse possession inured to them,
since the mere occupation of a portion of a right of way
by the owner of the servient estate is not inconsistent
with the easement, but must be construed as permissive,
in the absence of acts upon his part actually tending to
prevent the use of the right of way for railway pur-
poses.-Northern Counties Investment Trust v. Enyard.. 366
1. Dismissal—Cessation of Controversy. An appeal from
an order sustaining a demurrer to a cross complaint
which seeks to enjoin one of the parties thereto from
prosecuting another action involving the same subject
matter should be dismissed on the ground of cessation
of the controversy, where it appears that, prior to the
sustaining of the demurrer, the two actions had been
consolidated and would be tried as one cause.-Sether
v. Clark....
2. Anticipation of Error-Prescribing Rules for Trial Court.
The supreme court will not lay down rules for the lower
court in anticipation of error on the trial of a cause, but
will confine itself to the review of errors, when com-
mitted.-Id....
It is a settled rule that the
3. Sufficiency of Evidence.
supreme court will not on appeal disturb a verdict, where
the question of fact involved was properly submitted
to the jury, although the court may believe the facts to
be otherwise than as found.-Johnston v. McCart......
4. Testing Complaint by Motion-Harmless Error. The
action of the trial court in permitting the sufficiency of
a complaint to be tested by a pleading called a "motion"
instead of a "demurrer", was not prejudicial error, when
the motion was in substance a demurrer, was so treated
by the court, and the issue raised by it was tried in the
same way as if it had been called a demurrer.-Seal v.
Cameron
5. Briefs-Compliance With Court Rules.-Failure to com-
ply literally with the requirements of rule 8 of the su-
preme court, which provides that briefs shall contain a
clear statement of the case, as far as deemed material,
with references to the pages of the transcript for verifi-
cation, and shall include the findings of fact made by the
court, with the exceptions thereto, on which any question
is sought to be raised on appeal, is not ground for strik-
ing the brief, when such requirements have been substan-
tially complied with by the appellant.-Dunsmuir v. Port
Angeles, etc., Power Co..
6. Notice Description of Judgment. A notice of appeal
which recites "that the defendant in the above entitled
action hereby appeals from the judgment made and en-
tered herein against the defendant on the 24th day of
July, 1900, to the supreme court of the state of Washing-
ton, and from the whole and every part thereof," is
sufficient, although the judgment was signed by the judge
July 16th, but not filed and entered by the clerk till
July 24th, when there was but one judgment in the case,
and the respondent could not have been misled.-Shan-
non v. Consolidated Tiger & Poorman Mining Co.... 119
7. Bond-Time of Filing. Under Bal. Code, § 6505, which
provides that the appeal bond may be filed with the clerk
"at or before the time when the notice of appeal is given
or served," a bond filed on August 25th was in due time,
when notice of appeal was given on August 24th and
filed on the next day.-Id...
8. Same-Reference to Judgment Appealed From. An ap-
peal bond sufficiently describes the judgment when it re-
fers to it as having been made on July 16th, when it was
in fact signed by the judge on that date, but not entered
by the clerk until July 24th-there being but one judg-
ment in the case.-Id....
9. Same--Sufficiency of Bond-Description of Obligee. An
undertaking given on appeal, intended both as an appeal
bond and a supersedeas bond, which undertakes "that
the appellant will satisfy and perform the judgment ap-
pealed from," is sufficient, without mentioning the name
of the obligee with particularity.-Id......
10. New Trial-Abuse of Discretion. The action of the trial
court in granting a new trial cannot be considered as an
abuse of discretion, when there was a substantial conflict
in the testimony, and there was nothing in the record
disclosing that the new trial was granted because of a
misconception of the law applicable to the case.-Lati-
mer v. Black....
11. Harmless Error-Pleading Statute of Limitations-Suf-
ficiency of Answer. An answer, in an action for conver-
sion of plaintiff's goods, which alleges that "For further
and affirmative answer to said complaint, defendant says
that more than three years elapsed between the accru-
ing and commencement of plaintiff's alleged cause of
action," while defective as a plea of the statute of limi-
tations, is yet sufficient to put the plaintiff on notice that
the statute would be relied on as a defense, and, where
not moved against in the lower court by demurrer or mo-
tion, will on appeal be considered as amended, under
Bal. Code, §§ 4957, 6535, since no substantial right of
the plaintiff was affected by its defectiveness.-Kinkead
v. Holmes & Bull Furniture Co......
12. Appealable Order-Denial of Motion for Judgment in
Garnishment Proceedings. The action of the court in
denying plaintiff's motion for judgment against gar-
nishee defendants, based upon their answer in the
garnishment proceedings, is not such a final determina-
tion of the proceeding as to constitute an appealable
order, within the contemplation of title 36, Ballinger's
Code.-Green v. Moore
13. Review in Equity Cases-Decision Based on Wrong
Grounds. Although the judgment of the lower court
in an equity case may have been based upon a proposi-
tion of law which cannot be sustained, yet, where all the
testimony is before the appellate court for inspection, the
judgment will not be reversed, if it can be sustained
upon any legal principle.-Sanders v. Bartelt........ 244
14. Harmless Error-Refusal to Strike Exhibits from Com-
plaint. The refusal of the court to strike from a com-
plaint an exhibit containing a statement of items of
damage demanded from defendant, which named a
sum in excess of the amount demanded in the complaint,
was not prejudicial, when the court fully advised the
jury of the limit of damages claimed and what was be-
fore them for investigation.-Tyler v. North American
T. & T. Co......
15. Sufficiency of Evidence. The verdict of the jury will not
be disturbed upon a disputed question of fact, where the
evidence is conflicting.-Uren v. Golden Tunnel Mining
Co.......
16. Errors Not Urged Below-Admission of Evidence.
Where evidence as to the incompetency of a mine
superintendent was admitted without objection, in an
action against the company for injuries resulting from
his negligence, and the defendant tried its cause on that
issue, it cannot urge on appeal that the court erred in
submitting the question to the jury.-Id. . . . . . . . . . .. 261
17. Harmless Error-Admission of Evidence. Error in per-
mitting the husband to testify that the value of the loss
of his wife's services by reason of her sickness occa-
sioned through the act of defendant was $2,000, instead
of requiring the witness to state the facts and circum-
stances of the injury, for the purpose of allowing the jury
to determine the amount, was harmless, where the ver-
dict rendered was for $600.-Sievers v. Dalles, P.
& A. Navigation Co.....
18. Non-Suit-Sufficiency of Evidence. Refusal to grant
a non-suit is not error, when there is evidence, though
conflicting, sufficient under the allegations of the com-
plaint to sustain the verdict.—Id...
19. Non-Suit-New Trial-Sufficiency of Evidence. Refusal
of the court to grant a non-suit before verdict or a new
trial after verdict is not error, when there was sufficient
evidence to justify the trial court in submitting the case
to the jury, and when there was evidence, though con-
flicting, sufficient to support the verdict rendered.—
Wulf v. Sullivan.....
20. Harmless Error-Sustaining Demurrer to Pleading.
Error of the court, if any, in sustaining a demurrer
to a reply, is cured by the subsequent admission of
testimony in support of the allegations contained in the
reply. Washington National Building, Loan & Invest-
ment Ass'n v. Saunders..
21. Law of Case-Questions Raised on Appeal. In an action
to establish a claim which had been rejected by an ad-
ministratrix, where, upon an appeal by plaintiff, the de-
fendant had made the point, and fully argued it, that a
grant of a new trial would be a useless thing for the
reason that the claim had not been fully verified, it will
be presumed on a second trial, from the fact that the
supreme court granted a new trial, that the supreme
court had under consideration the question of verifica-
tion, although not passing directly thereon, and that the
sufficiency of the verification was established as the law
of the case.-Taylor v. Gale
22. Appealable Order—Refusal to Cancel Lis Pendens. A lis
pendens notice can properly be filed only when there is
an action pending involving the land covered by the no-
tice, and the filing of such notice by one of the parties
to an action after it has been determined against him
constitutes a cloud upon his adversary's title, which he
has a right to have removed; hence an order of the
court refusing to act upon his motion for its cancellation
is an order affecting a substantial right and therefore
appealable.-Washington Dredging & Imp. Co. v. Kin-
23. Findings Objectionable in Form-Waiver of Error.
Failure to except in the trial court to the form of the
findings or conclusions of the court constitutes a waiver
of error therein.-Bignold v. Carr
24. Record-Identification Without Judge's Certificate.
An agreed statement of facts upon which a cause had
been tried will not be stricken on appeal for want of the
trial judge's certificate, when it is sufficiently identified
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