Where the order refusing a new trial recites that "it was heard upon the record and statement and upon the affidavits filed by the defendants in support of their motion," it cannot be contended that the trial court did not consider affidavits as to newly discovered evidence presented on the motion. Haws v. Victoria Mining Co., 160 U. S. 303; same case, 7 U. 515; 27 P. 695.

DAMAGES HELD NOT EXCESSIVE. Where the verdict does not appear to be excessive, the damages fixed by the jury will not be disturbed. Farr v. Griffith, 9 U. 416; 35 P. 506.

Verdict for large damages will not be set aside unless palpably against evidence and caused by passion and prejudice. Griffiths v. Clift, 4 U. 462; 11 P. 609. Thirk field v. Mountain View Cemetery Ass'n, 12 U 76; 41 P. 564.

Even though court is satisfied that smaller sum might have been sufficient. Naylor v. Salt Lake City, 9 U. 491; 35 P. 509.

In action for libel, excessive damages no ground for new trial. Lowe v. Herald Co., 6 U. 175; 21 P. 991.

Verdict of ten thousand dollars for man twentyfour years of age, for injuries necessitating ampu tation of right foot, unfitting plaintiff from pursuing his calling; held, not excessive. Bowers v. U. P. Ry. Co., 4 U. 215; 7 P. 251.

Verdict of three thousand two hundred and fifty dollars for plaintiff, a school girl, receiving injuries by a horse running away, resulting in permanent ailments; held, not excessive. Griffiths v. Clift, 4 U. 462; 11 P. 609.

Verdict of five thousand dollars for injuries to a middle aged man of previous good constitution, where he would probably suffer from injuries during life; held, not excessive. Bitner v. Utah Central Ry. Co., 4 U. 502; 11 P. 620.

Verdict of fifteen thousand dollars for plaintiff, thirty-six years old, in good health, for permanent injuries to his back and spinal column, and partial paralysis of his lower limbs; held, not excessive. Reddon v. U. P. Ry. Co., 5 U. 344; 15 P. 262.

Upon an action for a breach of contract not to engage in the hotel business, the evidence examined and held to sustain a verdict of five thousand dollars damages. Lashus v. Chamberlain, 6 U. 355; 24 P. 188.

Where plaintiff is permanently disabled in one leg and shoulder, and wholly unable to perform manual labor, and was rendered helpless by the accident, and left for more than two days with his wounds undressed, a verdict for ten thousand dollars sustained. Daniels v. U. P. Ry. Co., 6 U. 357; 23 P. 762.

A verdict of four thousand nine hundred ninetyfive dollars for the death of a man who was twentyeight years old, of robust health and good habits, is not excessive. Webb v. D. & R. G. W. Ry. Co., 7 U. 363; 26 P. 981.

Fifteen hundred dollars damages for libel in denouncing the respondent as a prevaricator and liar; held, not to be excessive. Turner v. Stevens, 8 U. 75; 30 P. 24.

A verdict for fifty dollars damages in favor of a passenger, who has been ejected from a train for refusal to pay fare, at a place where there was no station, and had been in consequence compelled to walk three and a half miles to her home, is not excessive. Durfee v. U. P. Ry. Co., 9 U. 213; 33 P.

941.

Verdict of three thousand dollars in favor of section man, for loss of two fingers and permanent injury to two others on the left hand; held, not excessive. Chapman v. Sou. Pac. Co., 12 U. 30; 41 P. 551.

Verdict of ten thousand five hundred dollars in favor of a girl three years old for loss of a foot; held, not excessive, record showing that company was grossly negligent. Chipman v. U. P. Ry. Co., 12 U. 68; 41 P. 562.

Verdict of eleven hundred and fifty dollars, for wilfully removing body of plaintiff's child from plaintiff's lot, without notice; held, not excessive. Thirkfield v. Mountain View Cemetery Ass'n, 12 U. 76; 41 P. 561.

DAMAGES HELD EXCESSIVE. Where, in the opinion of the trial judge, the damages are excessive, he may, in his discretion, overrule the motion, upon remission of the excess. Reddon v. U. P. Ry. Co., 5 U. 344; 15 P. 262.

Verdict of twelve thousand dollars, afterward reduced to ten thousand dollars, for loss of a hand to a man earning seventy-five dollars per month; held, excessive; judgment affirmed upon remission of all damages over four thousand dollars. Brown v. Sou. Pac. Ry. Co., 7 U. 288; 26 P. 579.

Verdict of four thousand dollars for a laborer for loss of little finger, the one next to it having been broken, the hand remaining weak for one year after the injury; held, excessive; but three thousand dollars would not have been excessive. Mahood v. P. V. Coal Co., 8 U. 85; 30 P. 149.

Verdict of five thousand dollars for death of plaintiff's seven-years-old son, held, excessive to the amount of two thousand dollars. Riley v. S. L. Rapid Transit Co., 10 U. 428; 37 P. 681.

Verdict of fifteen thousand dollars, or thirteen thousand dollars, for death of man thirty-eight years old, earning fifty dollars per month, having a wife and seven children; held, excessive, and that it should be reduced to ten thousand dollars. English v. Sou. Pac. Co., 13 U. 407; 45 P. 47.

Verdict of two hundred and eighty-eight dollars, for taking plaintiff to jail under an unsigned commitment, where sheriff declined to lock him up; held, excessive, defendants having acted in good faith; new trial granted, unless plaintiff should consent to reduce damages to one hundred dollars. Yost v. Tracy, 13 U. 431; 45 P. 346.

Where the

SUFFICIENCY OF EVIDENCE. evidence is conflicting, new trial will not be granted on ground that verdict or findings are contrary thereto, unless there is clear and marked preponderance against them. Newton v. Brown, 2 U. 126. Firman v. Bateman, 2 U. 263. Harrington v. Chambers, 3 U. 94; 1 P. 362. Chamberlain v, Raymond, 3 U. 117; 1 P. 850. Smith v. Ireland, 4 U. 187; 7 P. 749. Lehi Irrigation Co. v. Moyle, 4 U. 327; 9 P. 867. McDonough v. Smith, 5 U. 276; 15 P. 3. Brooks v. Warren, 5 U. 118; 13 P. 175. Orr v. Rich, 5 U. 519; 17 P. 261. Wells v. Wells, 7 U. 68; 24 P. 752. Slater v. Cragan, 7 U. 412; 27 P. 4. Victoria Mining Co. v. Haws, 7 U. 515; 27 P. 695; 160 U. S. 303. Dooly Block v. Rapid Tr. Co., 9 U. 31; 33 P. 229. Smith v. Rio Grande W. Ry. Co., 9 U. 141: 33 P. 626. Stahn v. Hall, 10 U. 400; 37 P. 585. Darke v. Smith, 14 U. 35; 45 P. 1006.

ERRORS IN LAW. Party cannot complain of instructions asked by him. People v. Gough, 2 U.70. Especially if jury disregarded them. Davis v. Utah Sou. Ry. Co., 3 U. 218; 2 P. 521.

One faulty instruction is no ground for new trial if charge as a whole correct. Nickles v. Wells, 2 U. 167. Hamer v. First Natl. Bank, 9 U. 215; 33 P. 941.

Whole charge will be considered together. People v. Sensabaugh, 2 U. 473.

Erroreous instructions to justify refusal must be material and calculated to affect the verdict. Martin v. Hill, 3 U. 157; 2 P. 62.

Harmless error will not justify new trial. Snell v. Crowe, 3 U. 26; 5 P. 522. Wells v. D. & R. G. W. Ry. Co., 7 U. 482; 27 P. 688. Victoria Mining Co. v. Haws, 7 U. 515; 27 P. 695; 160 U. S. 303. Leak v. R. G. W. Ry. Co., 9 U. 246; 33 P. 1045. Chambers v. Emery, 13 U. 374; 45 P. 192.

See citations, tions to juries.

3147, for cases concerning instruc

Cal. C. Civ. P. § 662*.

[C.

Appeal from final judgment on garnishment proceedings, 3113. Appeal from district court, Con. art. 8, sec. 9.

GENERALLY. Right of appeal does not exist unless given by statute expressly or by necessary implication. Golding v. Jennings, 1 U. 135. Benson v. Anderson, 9 Ü 154; 33 P. 691. Nor from court that has no jurisdiction. Golding v. Jennings, 1 U 135.

A writ of error is a writ of right allowable at common law, and will issue by the supreme to the district courts in the absence of statutory provisions regulating the prosecution of the writ. Reece v. Knott, 3 U. 436; 24 P 759.

Appeals are wholly statutory and subject to all restrictions prescribed by law. Benson v. Anderson, 9 U 154; 33 P. 691.

A citizen has no vested right in a statutory privilege or exemption, and the right of appeal may be taken away by repeal of the statute. Eastman v. Gurrey, 14 U. 169; 46 P. 828. North Point Irr. Co. v. Utah and Salt Lake Canal Co., 14 U. 155; 46 P. 824.

Consent of parties cannot confer jurisdiction on appeal. White v. Seely, 1 U. 191. Thomas v. U. P. Ry. Co., 1 U. 184. For case in which the supreme court, at request of parties, decided the point at issue, though there was a vital defect of parties, but no demurrer, see Fritsch v. Board of Commissioners, U.; 47 P. 1026.

WHERE ALLOWABLE. Where a contempt proceeding is remedial for the benefit of the opposing party to compel the doing or omission of an act necessary to the administration of justice in enforc ing some private right in a civil proceeding, appeal lies. Snow v. Snow, 13 U. 15; 43 P. 620. Ex parte Whitmore, 9 U. 441; 35 P. 524.

An appeal lies from the district court of the late territory of Utah when the decisions of such courts are rendered in cases appealed from the justice's court, although such appeals are perfected after statehood. Hodson v. Ü. P. Ry. Co., 14 U. 402; 46 P. 270.

Appeal from a judgment will not be dismissed because an appeal from an order denying a new

trial is before the court. Kelly v. Kershaw, 5 U. 300; 14 P. 808. See Snell v. Cisler, 1 U. 298.

FROM FINAL JUDGMENTS ONLY. While there is no express declaration that appeals will not lie from judgments other than final judgments, yet under secs. 9 and 4 of art. 8, constitution, appeals will lie only from final judgments of district courts. A final judgment is a judgment that disposes of the case as to all parties, and finally disposes of the subject matter of the litigation on the merits. An appeal from an order pendente lite is not an appeal from a final judgment. North Point Irr. Co. v. Utah Canal Co., 14 U. 155; 46 P. 824.

An appeal cannot be taken from an order granting an injunction pendente lite. Id.

An order setting aside and vacating a judgment is not a final judgment, and no appeal can be taken from such order. Affirming North Point Irr. Co. v. Utah & Salt Lake Canal Co., 14 U. 155; 46 P. 824. Eastman v. Gurrey, 14 U. 169; 46 P. 828. Strickland v. Flagstaff S. M. Co., 1 U. 199.

An order discharging the defendant from further liability upon deposit with the clerk of the amount in controversy and the bringing in by interpleader of persons making conflicting claims upon defendant, is final and therefore appealable. Jones v. N. Y. Life Ins. Co., 14 U. 215; 47 P. 74.

An order appointing a receiver is not a final decree, and could not be appealed to the supreme court of the U. S. U. S. v. The Church, 5 U. 394; 16 P. 723.

An order refusing to grant a new trial is not a final judgment from which an appeal will lie, under sec. 9 of art. 8, of the constitution, although any errors committed by the trial court in granting or refusing to grant a new trial, and any affidavits used on said motion, if properly identified, and embodied in a bill of exceptions, or otherwise properly preserved in the record, may be reviewed on appeal from the judgment. White v. Pease, U.; 49 P. 416.

An appeal from an order overruling a motion for a new trial cannot be taken. Watson v. Mayberry, - U.; 49 P. 479.

Where demurrer of one of several defendants to

complaint is sustained, and the action dismissed as to him, this is not an appealable final judgment. Lowell v. Parkinson, 2 U. 370.

Final judgment" as used in the constitution, article 8, section 9, means a judgment that has terminated the litigation between the parties in the court rendering it. When a motion for a new trial has been duly made, the judgment becomes final for the purpose of an appeal when it is overruled, and an appeal may be taken from such judgment within one year after the entry of such order, but an exception to the verdict or decision on the ground that it is not supported by the evidence cannot be reviewed on such appeal unless taken within 60 days next after the order overruling such motion. Watson v. Mayberry, — U. —; 49 P. 479. WHERE NOT ALLOWABLE. No appeal lies from conviction for contempt where the proceedings are criminal in their nature for the purpose of vindicating the dignity and authority of the court or to prevent the doing of an act injurious to the opposite party and the punishment is purely punitive. People v. Owens, 8 U. 20; 28 P. 871. Ex parte Whitmore, 9 U. 441; 35 P. 524. Elliot v. Whitmore, 10 U. 246; 37 P. 461. Ex parte Whetstone, 9 U. 156; 36 P. 633.

No appeal lies from order sustaining demurrer, no final judgment having been entered thereon. Thomas v. U. P. Ry. Co., 1 U. 184. Zeile v. Moritz, 1 U. 283. Lowell v. Parkinson, 2 U. 370. Nor from order overruling demurrer. Smith v. Mc

Evoy, 8 U. 58; 29 P. 1030. Nor from order changing place of trial. Nounnan v. Aspinwall, 1 Ù. 140. Nor from an order refusing to retax costs. Id. Nor from judgment that has been vacated. Id. Nor from order discharging prisoner on habeas corpus. Mead v. Metcalf, 7 U. 103; 25 P. 729. In re Clasby, 3 U. 183; 1 P. 852.

Order allowing amendments to a pleading and refusing to dismiss appeal from a lower court, are not appealable. In re Faust, 1 U. 197.

Nor are orders permitting parties to intervene and refusing to strike out an answer as sham. Jones v. N. Y. Life Ins. Co., 11 U. 401; 40 P. 702.

No appeal lies from order in divorce suit for payment of temporary alimony, suit money, and counsel fees. In re Kelsey. 12 U. 393; 43 P. 106.

Neither this section nor 3635 authorizes an appeal, from an allowance for support of a child made incident to a decree of divorce. Thomson v. Thomson, 5 U. 401; 16 P. 400.

A brother of a deceased person who dies intestate without issue, but leaving a mother and father. cannot appeal from an order of the probate court inade in the administration of the estate of the deceased. Jones v. Jones, 12 U. 72; 41 P. 563.

Intermediate orders will not be reviewed unless presented to the appellate court by bill of exceptions or statement on motion for new trial. Reever v. White, 8 U. 188; 30 P. 635. Lowell v. Parkinson, 4 U. 64; 6 P. 58.

Cal. C. Civ. P. 2 939*.

Time may not be extended, 2 3329.

Court cannot extend times limited by statute for taking appeals. Brough v. Mighell, 6 U. 317; 23 P. 673.

3302.

Appeal taken after statutory time is expired, is nullity and will be dismissed. Mount v. Simons, 3 U. 230, 5 P. 563. Hanks v. Matthews, S U. 181; 30 P. 504. Ryan & Ream Cattle Co. v. Murdock, 8 U. 497; 33 P. 136.

Cal. C. Civ. P. ? 161*.

Judgment roll, 3197. Bill of exceptions, 3286.

Title

The

Cal. C. Civ. P. 2 938*.

Parties designated as plaintiff and defendant, ? 2853.

On appeal to the district court, a guardian ad litem may properly be substituted for a general guardian appointed in another state. Hyndman v.

Stowe, 9 U. 23; 33 P. 227.

One of two or more defendants may appeal, the other not having been served with process nor appearing in the action. Winters v. Hughes, 3 U. 438; 24 P. 907.

Cal. C. Civ. P. 2 956*.

ASSIGNMENT OF ERRORS.

Error must affirmatively appear. Error must affirmatively appear. It will not be presumed. Walker v. Continental Ins. Co., 2 U. 331. Firman v. Bateman, 2 U'. 268. Ruth v. Long, 3 U. 466; 24 P. 756. Haynes v. Roberts, 4 U. 405; 11 P. 512. Wright v. Aschheim, 4 U. 455; 11 P. 580. Smyth v. Lawson, 7 U. 410; 27 P. 4. Haws v. Victoria Mining Co.. 7 U. 515: 27 P. 695; 160 U. S. 303. Hyndman v. Stowe, 9 U. 23; 33 P. 227. HenderFlint v. Nelson, 10 U. 261; 37 P. 479, was affirmed,

son v. Higgins, 9 U. 290; 34 P. 61. Flint v. Nelson, 10 U. 261; 37 P. 479. McKay v. Farr, C.; 49 P. 649.

Intermediate orders must be preserved by bill of exceptions or statement on motion for new trial. Reever v. White, 8 U. 188; 30 P. 688. Lowell v. Parkinson, 4 U. 64; 6 P. 58.

Insufficient assignment of error. When one of the errors assigned on appeal is "that the evidence does not support the findings," or "that the findings are not in accordance with the evidence."" 166 U. S. 276.

such error cannot be reviewed unless the findings are brought into the record on motion for a new trial. Kahn v. Central Smelting Co., 2 U. 371. The supreme court will not review a cause upon an agreed statement of the evidence not referred to in the record. Klimer v. Schnorf, 3 U. 443; 24 P. 909.

Where upon appeal the only errors assigned are such as have either been waived in the court below, or such as cannot be considered by reason of the laches of the appellant, the appeal will be dismissed on proper motion. Young v. Martin, 3 U. 484; 24

P. 909.

When ground of motion is verdict against law, statement must show particularly how and why, or will be disregarded. Gilberson v. Miller M. & S. Co., 4 U. 46; 5 P. 699.

A statement cannot be considered upon an appeal unless the record discloses that it was settled. Nelson v. Brixen, 7 U. 454; 27 P. 578.

Where an appeal is taken upon the judgment roll, rulings of the court not preserved by bill of exceptions cannot be considered. Evans v. Jones, 10 U. 182; 37 P. 262.

Where it is urged that a trial court erred in refusing a new trial on the grounds of newly discovered evidence, and it does not appear from the affidavit why the newly discovered evidence could not have been produced at the trial, and the transcript shows no assignment of error upon the action of the trial court thereon, and where it does not appear that the court's attention was directed to the affidavit, or that it was considered by the court, or identified as paper used on the hearing, the appellate court will not consider the affidavit. McKay v. Farr, U.; 49 P. 649.

Where record contains a general statement that the charge was excepted to, correctness of any part of the charge will sustain whole. Nelson v. Brixen, 7 U. 454; 27 P. 578. Bowers v. U. P. Ry. Co., 4 U. 215; 7 P. 251.

Statement containing no specifications of error will be disregarded. Bankhead v. U. P. Ry. Co., 2 U. 507. Sterling v. Parsons, 9 U. 81; 33 P. 245. Gill v. Hecht, 13 U. 5; 43 P. 626. If the statement upon motion for a new trial contains no specifications of error, it will be disregarded, even though the notice does contain such specification. Overruling Stevens v. Higginbotham, 6 U. 215; 21 P. 946. Paragoonah Canal Co. v. Edwards, 9 U. 477; 35 P. 487.

SUFFICIENCY OF RECORD. Where a party appealing from a judgment does not file and serve a statement on appeal within twenty days from the entry of the judgment, h's right to be heard on a statement is waived and the case will be heard on the judgment roll alone. Walker v. HamburgBremen Fire Insurance Co., 2 U. 109.

Where only paper furnished is not at all in compliance with section 3650, C. L. 1888, the appeal will be dismissed. Rotch v. Hamilton, 7 U. 513; 27 P. 694.

Under rules of the supreme court requiring transcript to be filed within thirty days after appeal shall have been perfected, unless further time be allowed, the appeal will be dismissed if transcript be not filed within thirty days, unless satisfactory showing of reasonable diligence be made. Corinne M. C. & S. Co. v. Johnston, 5 U. 147; 13 P. 17.

A failure to file the transcript on appeal or brief in accordance with the rules of the supreme court is cause for dismissal. Utah Com'l & S. Bank v. Morgan, 9 U. 369; 36 P. 632. Borlase v. Morgan, 9 U. 370; 36 P. 633. Bailey v. Stevens, 9 U. 370; 36 P. 633. Bonesteel v. Fairchild, 9 U. 371; 36 P. 633. Emerick v. Ogden City, 9 U. 372; 36 P. 633.

Corinne M. C. & S. Co. v. Johnston, 5 U. 147; 13 P. 17.

Where the abstract on appeal is in disregard of the rules of the court, and does not show that any motion for a new trial was made nor that any appeal was taken from the judgment, the court will dismiss the appeal on its own motion. Anderson Pressed Brick Co. v. Dubois & Williams, 10 U. 60; 37 P. 90.

An appeal upon the judgment roll will not be dismissed though no exceptions were saved to any of the rulings of the trial court. U. S. v. Duggins, 11 U. 430; 40 P. 707.

Upon an appeal from the judgment alone, the appellate court may order records affecting the judgment to be certified up, although they form no part of the judgment roll. McClelland v. Dickenson, 2 U. 100.

Where record shows findings of fact and conclusions of law; that no judgment was entered; that notice of appeal was filed but never served; that statement on motion for new trial was settled but motion never heard-attempted appeal will be dismissed. Voorhees v. Manti City, 13 U. 435; 45 P. 564.

Affidavits used on motion for new trial not incorporated into a statement or bill of exceptions cannot be considered on appeal. Nelson v. Brixen, 7 U. 454; 27 P. 578. Perego v. Dodge, 9 U. 3; 33 P. 221. Nor evidence. Snell v. Cisler, 1 U. 298. Spencer v. Van Cott, 2 U. 337. Gilberson v. Miller M. & S. Co., 4 U. 46; 5 P. 699.

Papers filed with the record, but not made a part thereof, cannot be considered. Hussey v. Smith, 1 U. 129. Bachman v. Smith, 1 U. 237.

On appeal from an order refusing to discharge an attachment affidavits used not embodied in bili of exceptions cannot be considered. Bowring v. Bowring, 4 U. 185; 7 P. 716.

Where statement actually settled but not authenticated by certificate of trial judge till sometime afterwards; held, irregular but not to justify striking it from record on appeal. Marks v. Culmer, 6 U. 339; 23 P. 757.

Where the statement does not appear that it had been signed and settled by the trial judge, and does not contain any specifications of errors, it cannot be considered. Snow v. Crowe, 3 U. 172; 2 P. 209. Nelson v. Brixen, 7 U. 454; 27 P. 578. Slater v. U. P. Ry. Co.. 8 U. 178; 30 P. 493.

Where record fails to show notice, notes.

3305 and

APPEALS FROM INFERIOR COURTS. On appeal to the district court from a probate court, the former has power to consider only such matters as are embraced in the order appealed from or as are matters of equitable cognizance. In re Moulton's estate, 9 U. 159; 33 P. 694.

Where the district court refused to dismiss an appeal from a justice's court on account of delay in filing, and the record was silent as to whether the rules governing appeals had been complied with, such action of the district court would not be disturbed. Hyndman v. Stowe, 9 U. 23; 33 P. 227. Van Wagonen v. Barben, 9 U. 481; 35 P. 497.

Sections 3595 and 3659, C. L. 1888, giving either party on appeal to the district court the benefit of all legal objections made below, oblige the district court to reverse on finding objections to the venue well taken. Kansas City Hardware Co. v. Neilson, 10 U. 27; 36 P. 131.

REVIEW.

Objections not raised below. Matters not urged in court below cannot be first urged on appeal. Firman v. Bateman, 2 U. 268. Walker v. Cont. Ins. Co., 2 U. 331. Rhemke v. Clinton, 2 U. 438. Miller v. Zeigler, 3 U. 17; 5 P. 518. People v. Peacock, 5 U. 237; 14 P. 332. Wimmer v. Simon, 9. U. 378: 35 P. 507. Cooper v. D. & R. G. Ry. Co., 11 U. 46; 39 P. 478. Wasatch M'g Co. v. Cres