SEC. 3154.

Where, in an action against a minor, an attorney appeared for him and was appointed guardian ad litem, held, that there was no ground, in the absence of prejudice being shown, to authorize setting aside the verdict and granting a new trial: Webster v. Page, 54-461.

A judgment rendered after the death of a party to the action, without substitution being made, is voidable and not void, and must stand unless set aside under T 6 of this section, upon an adjudication that there is a valid defense to the action: Gilman v. Donovan, 53–362.

Fraud of the prevailing party on the former trial being shown which is sufficient to constitute reasonable grounds to believe that a different result may be anticipated on the retrial, the judgment should be vacated and the new trial ordered: Brown v. Byam, 59-52.

That defendant was misled by an error in the copy of the notice served upon him in regard to the date of commencement of the term of court might be a sufficient averment of unavoidable casualty or misfortune, but where the petition contained an inconsistent averment that defendant had taken legal advice as to whether the error relieved him from obligation to appear at the proper time, head, that he did not make out a case for relief: Irions v. Keystone Man'f'g Co., 61-406.

The provisions of this section are applicable to a judgment in an adversary proceeding but not to an order for a guardian's sale of property: Bunce v. Bunce, 59-533.

Although the application under this section should be by petition and not by motion, yet where a motion was filed and the question as to the right to a new trial was determined thereunder without objection to the

SEC. 3155.

form, held, the supreme court would not reverse the proceedings for the defect: Incorporated Town of Storm Lake . I. F. & S. C. R. Co., 17 N. W. Rep., 489.

Where there is one judgment against two defendants, and one of them shows himself entitled to have it set aside, it should be set aside as to both: Ibid.

The proceedings authorized under this statute are in the nature of a writ of error coram nobis and are provided for a review of a case, after final judgment, in the very court wherein it was rendered. The jurisdiction of all other courts of such proceeding is thereby excluded and a change of venue cannot be had: Gilman v. Donovan, 59–76.

While courts of equity have jurisdiction to grant relief against judgments obtained by fraud in cases where the fraud is not discovered until after the expiration of one year from the rendition of the judgment, yet this statute defines the remedy to which the party is entitled, whether action be brought during the year provided for by the statute or after its expiration, and a court of equity can only grant the relief provided by the statute. The question whether a party is entitled to the remedy must be determined with reference to the terms of the statute, and, held, that the promise of a person seeking to foreclose a mechanic's lien that he would pay the claim of another person holding a prior lien upon the premises if the latter would not appear and a-sert such prior lien, would not constitute fraud authorizing the setting aside of the judgment thus obtained on failure of the promisor to make such payment, even though the promise was made without intention of performance: Lumpkin v. Snook, 19 N. W. Rep., 333.

The fact that an appeal from the original judgment is taken and pending cannot be pleaded in bar of an action under this section: Cook v. Smith, 58-607.

The filing of a petition for a new trial under this section cannot have

any greater force and effect than would a motion seeking the same thing when filed within the time prescribed by statute. The petition for a new trial is deemed denied by operation of law, and before there can be a new trial the court must

But where the motion for change of venue was treated as raising the question whether the action on an appeal bond was properly brought in the county where the suit was commenced, and by that county, for the use of the school fund, or whether it should not have been brought in and by another county, held, that the decision of that question would be treated in the same manner as though made upon a demurrer and an appeal therefrom would be entertained: Lucas County v. Wilson, 59-354.

Where final judgment is rendered in favor of a defendant, he cannot appeal from a finding of facts which is against him. But if defendant has properly objected to the correctness of such finding, it is not proper, in case of a reversal on plaintiff's appeal, to render judgment against defendant thereon without opportunity for a new trial: Boyce v. Wabash R. Co., 18 N. W. Rep., 673.

An order of court substituting other defendants in a case and releasing the original defendants may be appealed from, and such appeal may be prosecuted even though after such substitution the new defendants have procured a transfer of the case to the circuit court of the United States: Sunberg v. District Court of Linn Co., 61-597.

SEC. 3168.

An order of court declaring a bail bond forfeited is a final order from which appeal may be taken: State v. Conneham, 57–351.

Where in an appeal to the circuit court from the judgment of a justice of the peace, a motion was made to dismiss the appeal for want of jurisdiction on the ground that the amount in controversy was not sufficient, held, the action of the court in overruling such motion and taking jurisdiction was a determination affecting the final result, and that an appeal therefrom might be taken: Curran v. Excelsior Coal Co., 18 N. W. Rep., 698.

An appeal may be taken from a decree in a partition proceeding settling the rights and interests of the parties as provided in § 3289. In that respect such decree is to be deemed final: Williams v. Wells, 16 N. W. Rep., 513.

A plaintiff, to whose petition a demurrer has been sustained, has the right to appeal unless it appears that such right has been in some manner waived: Hampton v. Jones, 58-317.

An order of discharge in a habeas corpus proceeding cannot be suspended by supersedeas bond pending an appeal: The State v. Kirkpatrick, 54-373.

upon real estate, does not make the case one involving an interest in real property, authorizing an appeal without regard to the amount in controversy: Colyar v. Pettit, 18 N.W. Rep., 694; therefore, held, that an action to foreclose a mechanic's lien was not within the exception: Andrews v. Burdick, 16 N. W. Rep., 275.

The provision of this section, requiring a certificate of the question upon which the decision of the supreme court is desired, when the amount in controversy is less than one hundred dollars, applies to chancery cases as well as actions at law, and as thus applied is not unconstitutional as depriving a party in such cases of a right to appeal and trial de novo. It amounts simply to a restriction or regulation of appeals in such cases: Ibid.

The statute does not contemplate that mere abstract questions of law shall be certified, but only such as are decisive of the case: Eckert v. Pickel, 59-545.

The certificate must point out the questions upon which it is desirable to have the opinion of the court in such a way as to be intelligible in and of themselves, without requiring the court to examine the whole case and determine what the questions are: Hawkeye Ins. Co. v. Lewis, 19 N. W. Rep., 311.

It is not the province of the supreme court to decide questions certified but not argued, nor questions argued but not certified, nor questions certified and argued where it is shown that they do not arise in the case: Speisberger v. Thomas, 59-606. Where the question is certified by the trial judge, it will be presumed that it arises in the case unless it is shown affirmatively otherwise: Noble v. Chase, 60-261.

The court will sometimes look at the record for the purpose of determining whether the question certified properly arises in the case, but it will not consider a certificate sufficiently specific which requires examination of the record to determine what the question certified is: Votaw v. Corvin, 17 N. W. Rep., 142.

A certificate of the judge which fails to indicate the specific question or questions to be determined, but presents the whole case and every question involved therein, without showing what they are, or what one

or more of them it is deemed desirable to present for determination, is not sufficient: Dunn v. Zoller, 61–227.

It is not proper to certify a general question which cannot be fully determined without a search of the entire record and a determination of two or more questions: Wheaton v. Foster, 58-661; and while it was not the intent that only a single question should be certified, the several questions must be so stated that the supreme court can readily ascertain the point to be determined, and that it is a question of law. Questions of law and fact cannot be mingled together under a guise of a question of law: City of Centerville v. Drake, 58-564.

Held, in a particular case, that the certificate of the judge did not suf ficiently point out the question of law upon which the opinion of the supreme court was desired: Fitch t. Flynn, 58-159.

Where the appellant's abstract failed to show that the judge's certificate stated that it was desirable to have the opinion of the supreme court on the question certified, held, that the supreme court did not acquire any jurisdiction by the appeal: Milliken v. Dougherty, 59-294.

While the sufficiency of the evidence to support a verdict may, in a certain sense, be said to be a question of law, yet it is not such a question as can be certified: Hudson v. C. & N. W. R. Co., 59-581.

The certificate must be given at the time of the trial, unless delayed upon order or for cause: Callanan r. Smart, 60–305.

Where the certificate was entitled of a proper term, but did not show when it was made, nor that it was made at the time of the trial, or even during the term of the trial, held, that it was not sufficient: Babcock e. Chickasaw Co., 60–752.

The making and filing of a certificate during the same term but subsequent to the rendition of judgment is not sufficient; it must be made at the time the final judgment is rendered: Foye v. Walker, 17 N. W. Rep., 494.

Where defendant concedes a part of the claim, the amount in controversy is the part not admitted: Thomson v. French, 59-559.

It must appear from the pleadings that it was possible for the court,

secur

The appeal is not perfected until the fees for transcript are paid or secured, and giving a supersedeas bond cannot be regarded as ing" such fees; and held, that after service of notice of appeal and filing of supersedeas bond, but before paying or securing costs of transcript, appellant had the right to abandon his appeal, and that the trial court had authority to entertain application by such party for a new trial, and grant it: Loomis v. McKenzie, 57-77. The time within which the appeal is to be perfected by paying or securing the fees for transcript, is not fixed. Filing an abstract and having the cause docketed is evidence of good faith, and the cause will not be dis

SEC. 3181.

Failure to file a transcript can only be taken advantage of by motion to dismiss the appeal or affirm the judgment, and cannot be urged on final hearing: Holmes v. Hull, 48

177.

The court will not dismiss the ap

SEC. 3183.

duced in an equitable case: Goff v. Hawkeye Pump, etc., Co., 18 N. W. Rep., 307.

A notice of appeal from a judgment brings up all the objections properly saved on the trial of the cause, including the motion for a new trial: Gulliher v. C., R. I. & P. R. Co., 59416.

missed for want of transcript. While one must be furnished, if insisted upon by appellee, time will be given to do so, unless appellant or his counsel have had notice that one would be required, and through negligence have failed to furnish it: Fairburn v. Goldsmith, 56–347.

It will not be a ground for striking the transcript from the files that it appears that it was delivered to the attorney of the party, where it is not shown that it was not afterward forwarded in the manner directed by the statute: Dedric v. Hopson, 17 N. W. Rep., 772.

As to the sufficiency of the abstract and how far it will take the place of the transcript, see notes to § 3184.

peal on motion for failure to file a transcript, but order the transcript to be filed and continue the case until it can be done: Town of Manson v. Ware, 19 N. W. Rep., 275; Aldrich v. Price, 57-151.

If the assignment of errors is filed at the time here required, it cannot be stricken from the files, although not served or filed until appellee's argument is filed: Conner v. Long, 19 N. W. Rep., 221.

As to sufficiency of abstract, etc., see notes in supplement to next section.

The want of an assignment of errors must be taken advantage of prior to the final trial and submission,