GENERAL INDEX ABUSE OF DISCRETION. See APPEAL AND ERROR, 24. ACCRUED COSTS PRIOR TO OFFER OF JUDGMENT. See COSTS, 5. ACTION TO QUIET TITLE. See APPEAL AND ERROR, 12. See ENJOINED. See INJUNCTION, 1. ADMINISTRATIVE OFFICERS MAY BE ADOPTION OF LAW FROM FOREIGN STATE. See STATUTES, 5. ADULTERY OF HUSBAND. ADVERSE POSSESSION. See DIVORCE, 2, 4. 1. ACTUAL POSSESSION IS CONSTRUCTIVE NOTICE TO ALL OF CLAIM OF The actual possession of land and the exercise of the usual 2. GRAZING OF CATTLE HELD NOT TO DEFEAT EXCLUSIVE POSSESSION Where plaintiffs claimed the land under a deed, and were 3. IMMATERIAL THAT PROPERTY WAS ACQUIRED UNDER MISAPPRE- HENSION. The mode of acquiring possession of property by one claim- 4. NEED NOT BE POSSESSION DURING PERIOD PRECEDING COMMENCE- To sustain a title by five years' adverse possession under 5. NEED NOT CONSIST OF STATUTORY ELEMENT, WHERE THEY ARE Though Rev. Laws, 4957, makes cultivation, improvements, ADVERSE POSSESSION-Continued. written instrument to prove any of those elements to establish adverse possession, where the land was suitable only for grazing land, so that its inclosure, cultivation, or improvement would not be profitable. Idem. 6. POSSESSION BY EITHER PARTY AFTER THE CONTROVERSY AROSE WILL BE DISREGARDED. In a suit to quiet title under claim by adverse possession, evidence of acts of possession of the premises by either party, after the controversy regarding the ownership thereof arose, will be disregarded. Idem. 7. POSSESSION OF GRAZING LAND HELD NOT CONSTRUCTIVE. Where the land in controversy was useful only for grazing purposes, and was part of an inclosed tract owned by several owners who grazed their cattle indiscriminately thereon, possession by a grantee of the tract in controversy by grazing his cattle on such tract under care of a herder to confine them to that tract was not constructive possession merely, but was actual. Idem. See TENANCY IN COMMON, 3. ADVISORY JURY. See APPEAL AND ERROR, 15; TRIAL, 5. AGENCY. See APPEAL AND ERROR, 3, 4; BROKERS, 3, 4. AGREEMENTS DETRIMENTAL TO PUBLIC INTEREST VOID. See CONTRACTS, 1. AMBIGUOUS AND UNCERTAIN COMPLAINT CURED BY ANSWER. See PLEADING, 3. AMENDED ARTICLES OF INCORPORATION. See MANDAMUS, 3. AMENDMENT TO COMPLAINT. See APPEAL AND ERROR, 17. AMENDMENT TO COMPLAINT IN DISCRETION OF COURT. See PLEADING, 1, 4. AMENDMENTS FAVORED. See PLEADING, 2, 5. 1. LESSEE OF GRAZING LAND IS "OWNER" WITH "LEGAL TITLE" WITHIN STATUTE. One who has leased land for grazing purposes is owner thereof, and has "legal title" thereto within Rev. Laws, 2335, making it unlawful to graze live stock on land of another without consent of "owner," provided person claiming to be owner has "legal title" thereto. Tobin v. Gartiez, 179. 2. SHEEP COMMISSION LAW NOT UNREASONABLE, ARBITRARY, OR DIS CRIMINATORY. The sheep commission law held not unreasonable, arbitrary, or discriminatory. Ex Parte Goddard, 128. ANNULMENT OF VOID DEFAULT JUDGMENT. See JUSTICES OF THE PEACE, 5. ANTICIPATION OF SUPPOSED OMISSION OF DUTY. See MANDAMUS, 6, 7. APPEAL AND ERROR. 1. ASSIGNMENT OF ERRORS UNNECESSARY ON APPEAL ON JUDGMENT ROLL. On appeal upon the judgment roll alone on which only errors appearing on the face of the judgment roll can be considered under 3 Rev. Laws, p. 3344, no assignment of errors is necessary. Greinstein v. Greinstein, 174. 2. CONTENTION THAT SOME DEFENDANTS WERE IN POSSESSION OF REPLEVIED PROPERTY AS AGENTS CANNOT BE FIRST RAISED ON APPEAL. Defendants in replevin who did not urge upon the trial court the theory that they were in possession of the property only as agents of a codefendant cannot raise that question for the first time on appeal. Studebaker v. Witcher, 468. 3. DEFECTS IN INSTRUCTION FAILING TO STATE ISSUES COMPLETELY HARMLESS. In broker's action for commissions on sale of ranch, defects in plaintiff's instruction undertaking to state issues, but not doing so completely, held harmless to defendant in view of pleadings clearly stating issues and read to jury. Ramezzano v. Avansino, 72. 4. DEFENDANTS HELD NOT ENTITLED TO COMPLAIN OF FINDING THEY WERE IN POSSESSION. Defendants in a replevin action claiming on appeal that they were in possession of the property merely as agents of the codefendant cannot complain that the court found all the defendants were in possession of the property, without a finding of agency, where defendants made no request for a finding they were agents. Studebaker v. Witcher, 468. 5. DETERMINATION ON FORMER APPEAL CONCLUSIVE ON SUBSEQUENT TRIAL. A determination on prior appeal that plaintiff's negligence was a proximate cause of the injury is conclusive on retrial, the facts being the same. Crosman v. Southern Pacific Co., 286. 6. ERROR AS TO INSTRUCTIONS IN EQUITY CASE NOT REVERSIBLE ERROR. Since the court in a purely equity case is not bound by the jury's advisory verdict, refusal to give a correct instruction or a misdirection is not an error authorizing a reversal. Johnston v. Rosaschi, 386. 7. FAILURE OF COMPLAINT TO STATE CAUSE OF ACTION PROPERLY RAISED FIRST ON APPEAL. In an action against a telegraph company to recover damages for mental anguish caused by failure to promptly deliver a death message, where it appeared from the complaint itself, and from the evidence, that the message was APPEAL AND ERROR-Continued. interstate in character, it became the duty of the supreme court on appeal to apply the federal law applicable to that kind of a message, and, if under the law applicable thereto the complaint failed to state a cause of action, it was the duty of such court to reverse the judgment, though the question was presented for the first time on appeal. Nichols v. W. U. T. Co., 148. 8. FINDING OUTSIDE EVIDENCE HARMLESS WHERE OTHER FINDINGS SUPPORT JUDGMENT. Finding by the trial court outside of the pleading and the evidence does not require reversal where other findings supported by the evidence were sufficient to sustain the judgment. Clark v. Clark, 44. 9. FINDING WILL NOT BE IMPLIED TO OVERTHROW JUDGMENT. Where there was no finding by the trial court that the appealing defendants were in possession of the replevied property as agents of their codefendant, no finding to that effect will be implied to overthrow the judgment, even if the record would support such finding. Studebaker v. Witcher, 468. 10. GENERAL ORDER OF REVERSAL LEFT LITIGATION IN SITUATION PRIOR TO JUDGMENT. General order of reversal of judgment for plaintiff, and of order denying defendant's motion for new trial, left the litigation in the situation it was in prior to entry of the judgment; the reversal not barring further proceedings in the same suit. Guisti v. Guisti, 437. 11. HARMLESS ERROR DISREGARDED BY SUPREME COURT. The supreme court will disregard any error that does not affect a substantial right. Ramezzano v. Avansino, 72. 12. JUDGMENT AFTER TRIAL TO COURT NOT REVERSED FOR EVIDENCE ADMITTED CONDITIONALLY. A judgment in an action to quiet title will not be reversed for the admission of evidence relating to the possession of another tract of land not in controversy, but used in connection with the tract in controversy, where the court stated he had admitted such evidence merely for what it might be worth in considering the ultimate conclusions of the case. O'Banion v. Simpson, 188. 13. JUDGMENT PRESUMED NOT TO HAVE BEEN BASED ON FINDING OUTSIDE ISSUES. Judgment, after findings by court that the parties cohabited after the man was divorced, and that thereafter they made a new marriage agreement, which latter finding was outside the issues and evidence, held not to have been based on the erroneous finding, since it will not be presumed that the trial court attempted to grant relief on an entirely different state of facts involving different principles of law from those stated in the pleadings. Clark v. Clark, 44. 14. LEADING QUESTION HELD HARMLESS, IN VIEW OF TESTIMONY OF OTHER WITNESSES. Leading question to one of plaintiff's experts as to whether a certain amount would be a reasonable fee was harmless; none of the other witnesses, on proper questions, having testified to a smaller amount as a reasonable fee.. Van Fleet v. O'Neil, 216. 15. OBJECTION BELOW IS NECESSARY FOR REVIEW. Conceding that where a jury is called in an equity case only special issues should be submitted, and that a general verdict is improper, and that a judgment based thereon is erroneous, yet where it does not appear that the court regarded the verdict as binding, and appellant's counsel concede the jury was called as advisory, appellant, having made no objection to such course at the time, cannot take advantage of the error on appeal. Johnston v. Rosaschi, 386. 16. OBJECTIONS TO DEPOSITIONS NOT AVAILABLE UNLESS URGED BEFORE THE TRIAL COURT. Objections made on the taking of depositions, not shown by the record to have been urged on the court during the trial, cannot be considered on appeal. Allen v. Allen, 243. 17. ORDER AFTER GENERAL REVERSAL, PERMITTING AMENDMENT OF COMPLAINT, NOT FINAL. Order of the trial court, after general reversal of judgment for plaintiff and of order denying defendant new trial, allowing the filing of an amended complaint by plaintiff, was not a final judgment, or an order entered after a final judgment, and so was not appealable, to give the supreme court jurisdiction to consider the question whether the trial court erred in permitting the amendment to be filed. Guisti v. Guisti, 437. 18. PRESUMED COURT MADE SPECIFIC FINDINGS. Where trial court made no specific findings on a point, no request having been made for specific findings, supreme court must conclude that the court did in fact so find. Laws v. Ross, 406. 19. REFUSAL TO RULE ON OBJECTIONS MUST BE ASSIGNED AS ERROR. If the court refuses to rule on objections to the materiality or competency of evidence given by deposition, such misconduct must be assigned as error. Allen v. Allen, 243. 20. REHEARING FOR PURPOSE OF MODIFYING JUDGMENT DENIED. The granting of a rehearing is not essential to procure a modification of a judgment, and petition therefor will be denied, with leave to apply for such modification, if necessary to protect appellants. Studebaker v. Witcher, 468. 21. SUPREME COURT MAY AFFIRM AS TO ONE DEFENDANT AND MODIFY AS TO ANOTHER. Under Rev. Laws, 5066, it is the duty of the supreme court to disregard any error or defect which does not affect the substantial rights of the parties, or either of them, so that the judgment may be modified as to one defendant and affirmed as to the other. Laws v. Ross, 406. 22. TRIAL COURT FINALLY DETERMINES CONTROVERTED QUESTIONS OF FACT. The determination of the controverted questions of fact raised by the evidence is for the trial court, not for the supreme court on appeal. O'Banion v. Simpson, 188. |