and impartially render a verdict therein, in accordance with the law and the evidence, and the court shall be satisfied of the truth of such statement. History.-Laws 1905, H. R. 118, sec. 11; in force conditionally March 3. District clerk keep names of jurors in box. 1697. It shall be the duty of the Clerk of the Court to write the name of each petit juror summoned and retained on a separate ticket and put the whole into a box or other place for safe keeping, and as often as it shall be necessary to empanel a jury, the clerk, the Sheriff or Coroner shall in the presence of the court draw by chance the names of jurors out of such box or other place, to be sworn on the jury then being empanelled. History.-Laws 1905, H. R. 118, sec. 12; in force conditionally March 3. 1698. Sections seventy-two forty-nine (7249), seventy-two fifty (7250), seventy-two fifty-one (7251), seventy-two fifty-two (7252), seventy-two fiftythree (7253), seventy-two fifty-four (7254), seventy-two fifty-five (7255), seventy-two fifty-six (7256), seventy-two fifty-seven (7257), seventy-two fiftyeight (7258), seventy-two fifty-nine (7259), seventy-two sixty (7260), and seventy-two sixty-one (7261), of the Compiled Statutes of Nebraska for 1903, Title XIX-Jurors [1686-97], are hereby repealed; also sections seventy-two thirty-eight (7238), seventy-two thirty-nine (7239), seventy-two forty (7240), seventy-two forty-one (7241) [1676-78], and seventy-two forty-five (7245), of said Compiled Statutes of Nebraska for 1903, [1682] so far as respects counties having a population of thirty thousand or more and also so far as respects counties having a population of thirty thousand (30,000) or more and less than sixty thousand (60,000), and all acts and parts of acts inconsistent herewith be and the same are hereby repealed; provided, that the existing laws relating to jurors shall be in effect in the respective counties until such time as the county boards of the respective counties having a population of thirty thousand (30,000) or more and in counties having a population of thirty thousand (30,000) or more and less than sixty thousand (60,000), shall have complied with the provisions of this act. History.-Laws 1905, H. R. 118, sec. 13; in force conditionally March 3. 1702 and 1703. Repealed 1905, H. R. 211; in force July 1. Secs. 1702 to 1703c. An act to provide for appeals to the supreme court in all cases except criminal cases, and to repeal sections five hundred eighty-four (584), five hundred ninety-five (595), six hundred seventy-five (675) and six hundred seventy-six (676) of the Code of Civil Procedure of Nebraska, and all other acts or parts of acts in conflict herewith. Clark's appeal law. 1905, H. R. 211; in force July 1. Proceedings to reverse judgments or decree. 1702. The proceedings to obtain a reversal, vacation or modification of judgments and decrees rendered or final orders made by the district court, except judgments and sentences upon convictions for felonies and misdemeanors under the criminal code of this state, shall be by filing in the supreme court a transcript certified by the clerk of the district court, containing the judgment, decree or final order sought to be reversed, vacated or modified, within six months from the rendition of such judgment or decree or the making of such final order or within six months from the overruling of a motion for new trial in said cause; the filing of such transcript shall confer jurisdiction in such case upon the supreme court. History.-Laws 1905, H. R. 211, sec. 1; in force July 1. How appeal docketed in supreme court. 1703. The cause shall be docketed in the supreme court under the same title it had in the district court and the party or parties seeking the reversal, vacation or modification of such judgment, decree or final order shall be designated as appellant or appellants and the adverse party or parties shall be designated as appellee or appellees. History.-Laws 1905, H. R. 211, sec. 2; in force July 1. Failure to file bill of exceptions, fatal. 1703a. Within the time limited by section (1) of this act, the appellant or appellants shall file with the clerk of the supreme court the bill of exceptions if any, taken, preserved and settled in the manner now provided. On the failure of appellant or appellants to file such bill of exceptions within the said time, the judgment or decree rendered or final order made in the district court shall stand and proceed as if no appeal had been taken. History.-Laws 1905, H. R. 211, sec. 3; in force July 1. Practice in the supreme court. 1703b. The supreme court shall by general rule provide for the filing of briefs in all causes appealed to said court. The brief of appellant shall set out particularly each error asserted and intended to be urged for the reversal, vacation or modification of the judgment, decree or final order alleged to be erroneous; but no petition in error or other assignment of errors shall be required. The supreme court may, however, as its option, consider a plain error not specified in appellant's brief. History.-Laws 1905, H. R. 211, sec. 4; in force July 1. Court make order as to cost. 1703c. When a judgment, decree or final order is reversed, vacated or modified, the court may render judgment for all costs against the appellee or appellees, or some of them, or may direct that each party pay his own or apportion the costs among the parties or direct that judgment for costs abide the event of a new trial as in its discretion the equities of the cause may require. History.-Laws 1905, H. R. 211, sec. 5; in force July 1. 1702 183. A case can not be considered in the supreme court both as an appeal and in error. Where the case is appealable and all steps taken necessary to a review upon error as well as upon appeal the party bringing the case to the supreme court may submit it either on error or on appeal. If he makes no choice it will be considered on error. Jones v. Danforth, Neb. -; 98 N. W. R. 668. - 184. Judgment of the district court on appeal from the probate side of the county court can only be reviewed in error. Consent can not give the supreme court juris diction by appeal. Boales v. Ferguson, 2 Unoff. 172; 96 N. W. R. 337. 185. All reasonable presumptions will be indulged in for the purpose of upholding the regularity of the proceedings of the trial court. If there be a conflict between the general and special findings made by the trial court the special finding will control. Citizens' Bank v. Stockslager, 1 Unoff. 799; 96 N. W. R. 591. 186. Any order or proceeding in equity that may be brought to the supreme court for review may be brought by appeal. Williams v. Miles, Neb. -; 102 N. W. R. 482. 187. This does not give the right to have reviewed on appeal the decisions made by a county court in settlement of the estate of the person deceased. Such decision is reviewable on error only. Huffman v. Rhodes, Neb. -; 100 N. W. R. 159. 198. One who attacks an appeal successfully on the ground that the law does not provide for an appeal can not maintain an action on the undertaking given to procure such appeal. U. S. F. & G. Co. v. Ettenheimer, Neb. -; 97 N. W. R. 227. 199. Where the record shows that the evidence fully sustains the findings of the trial court, such finding will be adopted by the supreme court. Stocker v. Nemaha County, Neb. ; 100 N. W. R. 308. 200. The findings of the trial court must stand or fall in an appeal case upon the pleadings and evidence contained in the record. Errors of the trial court in rulings on the evidence can not be corrected by appeal. Parrott v. McDonald, Neb. -; 100 N. W. R. 132. 201. When the evidence is fairly conflicting, or where the case as made by the evidence is such that reasonable minds might fairly differ as to the correct and proper conclusion to be drawn therefrom, a finding of fact made by the trial court will not be disturbed on appeal. Sullivan Sav. Inst. v. Sharp, 2 Unoff. 300; 96 N. W. R. 522. 202. Where the sole question involved is the sufficiency of the evidence to sustain a finding of fact if the evidence is legally sufficient the judgment of the trial court will be sustained. Thomas v. Janesofsky, Unoff. ; 97 N. W. R. 332. 203. Affidavits used on a hearing in the trial court can not be considered on review unless preserved by bill of exceptions. Stansbury v. Storer, Neb. -; 97 N. W. R. 805. 204. Alleged errors of the trial court in the exclusion of evidence can not be examined on appeal. John Stewart & Co. v. Allen, 2 Unoff. 333; 96 N. W. R. 528. 205. Where on an appeal the record contains no bill of exceptions and the pleadings are sufficient to support the judgment, it will be affirmed. Stansbury v. Storer, Neb.; 97 N. W. R. 805. 206. On an appeal in equity the appellee is not concluded as to any matter directly involved in the questions raised by the appellant. As to matters not necessarily involved in the appeal an appellee who enters no cross-appeal should be held concluded. Clark v. Lancaster County, Neb. -; 96 N. W. R. 593. 207. Where the decision of a constitutional question could avail nothing it will not be investigated or determined. Green v. Doerwald, - Neb. —; 96 N. W. R. 634. 210. On a second appeal the former decision will be adhered to as the law of the case. Merrill v. Van Camp, Unoff. —; 96 N. W. R. 617. 211. Where a judgment is reversed and remanded without directions the trial court is reinvested with discretion to proceed therein as justice may require. Hoagland v. Stewart, Neb. -; 98 N. W. R. 428; 100 N. W. R. 133. 212. The supreme court will review a case only on the theory adopted by the parties in the trial court. Commercial State Bank v. Ketchum, 1 Unoff. 454; 96 N. W. R. 614. 213. A cause must be tried upon appeal upon the same issues as in the lower court. Banking House v. Stewart, Neb. -; 98 N. W. R. 34. 214. Under all ordinary circumstances parties in the appellate court will be confined to the issues on which they relied in the trial court. Carnahan v. Brewster, 2 Unoff. 366; 96 N. W. R. 590. 215. Ordinarily a case on appeal will be tried and determined in the appellate court upon the same issues raised by the pleadings and the evidence as were presented in the trial of the case in the court in which it originated. McCook Irr. Co. v. Crews, Neb.; 102 N. W. R. 249. 1704 35. The principal and sureties upon an appeal bond, given under a void statute, when in fact no appeal could be taken, are liable if the court without objection entertains the appeal, and upon a retrial of the issues renders a judgment adverse to the appellant. McVey v. Peddie, Neb.; 96 N. W. R. 166. 36. Facts stated in opinion held not to constitute a defense to surety on bond. English v. Smith, 1 Unoff. 670; 96 N. W. R. 60. 37. An appeal bond in an action for the foreclosure of a mechanic's lien, which is conditioned that the appellant will pay all condemnation money, judgment, and costs which may be found against him or them on the final determination, is based upon a sufficient consideration, and is valid. The "condemnation money" mentioned in the conditions of a bond given under this section is "found against the defendant” when the judgment of the district court is affirmed in the supreme court. Maloney v. Johnson, Neb. -; 100 N. W. R. 423. 38. Where a decree awards the plaintiff a personal judgment against the defendants, and also directs the sale of pledged property by way of foreclosure, the defendants may supersede that portion of the decree providing for foreclosure of the pledge without superseding the money judgment. If the district court fails to fix the conditions of the bond application should be made for a further order, and there is no supersedeas until the terms of the bond are determined by the court and the required bond is given. State ex rel. v. Baxter, Unoff.; 96 N. W. R. 40. A supersedeas is a statutory remedy, and if not given within the time limited by statute the right to such remedy is lost, and if given thereafter is ineffective. Whitaker v. McBride, Unoff. —; 98 N. W. R. 877. 41. An administrator who filed no appeal bond is not entitled to a supersedeas on account of a mere intention to appeal without filing the same, except during the time reasonably necessary to get his appeal filed in the appellate court. Michigan Mut. Life Ins. Co. v. Klatt, Unoff. -; 98 N. W. R. 436. 4. The usual presumptions in favor of a finding of the trial court do not obtain on appeal in an equity case. Michigan Trust Co. v. City of Red Cloud, Neb. -; 96 N. W. R. 140. 5. Rulings of the trial court made during the progress of the trial will not be reviewed when presented on appeal. An appellant impliedly consents to submit the issues for decision on the evidence actually in the record. Pettibone v. Yeiser, 2 Unoff. 65; 96 N. W. R. 193. 1707 16. The remedy to set aside a franchise irregularly or fraudulently granted, where the party to whom it has been granted is in the exercise of the privileges it confers, is by quo warranto at the suit of the state and not by an equitable action at the suit of private parties. Clark v. Interstate Tel. Co., Neb. -; 101 N. W. R. 977. 17. An information will not lie to inquire into the right of an officer to exercise certain additional duties imposed upon him by the legislature. State v. Scott, Neb.; 97 N. W. R. 1021. 18. When a county judge dies pending proceeding against him in the nature of quo warranto for the alleged usurpation of his judicial powers, his successor in office can not upon motion be substituted as respondent after judgment in district court. State v. Gower, Neb. -; 102 N. W. R. 674. 1712 2. An answer to a petition in quo warranto which alleges that the respondents Judgment confirming the shares. 17. Where an action in partition involves an accounting of transactions extending over a long series of years it is the duty of a trial court, by himself or a referee, to state the account, giving the items or classes and the facts, so that the reviewing court may understand the basis of its rulings. Baldridge v. Coffman, Neb.; 98 N. W. R. 811. 18. Where the partition involves a long series of dealings between the parties, the trial court should state the account and where the dealings appear not yet to bave ended the statute of limitations does not apply. Hanson v. Hanson, Unoff. —; 97 N. W. R. 23. 1760 (812). Upon entering such judgment the court shall appoint a referee or referees, not exceeding three in number, to make partition into the requisite number of shares. History.-R. S. 1866, p. 539, Tit. XXVI, sec. 811; amended 1905, S. F. 136; in force July 1. 1793 140. A mortgage and note executed at the same time as part of the same transaction should be construed together, and the purchaser of the note and mortgage will be charged with knowledge of the |