from his district, as well as in cases where the parties interested shall agree upon the bill of exceptions (and shall have attached a written stipulation to that effect to the bill), it shall be the duty of the clerk to settle and sign the bill in the same manner as the judge is by this act required to do; and shall thereupon be filed with the papers in the case, and have the same force and effect as though signed by the court. In cases where a party seeking to obtain the allowance of a bill of exceptions has used due diligence in that behalf, but has failed to secure the settlement and allowance of the same as herein required, it shall be competent for the judge who tried the cause, upon due showing of diligence, and not otherwise, to extend the time herein allowed, but not beyond forty days additional to that herein provided, making such specific directions in that behalf as shall seem just to all parties.

Rewritten 1881, p. 202. Where it is sought to present to the supreme court alleged errors occurring at the trial in district court, a bill of exceptions, settled and signed as required by law, is indispensably necessary, and no other paper, record, or showing can be made to take its place. 14, 48 (15 N. W., 329). Stipulation of facts will not take place of bill. 29, 219 (45 N. W., 626). Bill of exceptions is only necessary to bring that into the record which would not otherwise be in it. 13, 256 (13 N. W., 215). What the bill must contain: Affidavits used below, 11, 521 (9 N. W., 689); 14, 275 (15 N. W., 352); 14, 530 ( 16 N. W., 821); 16, 372 (20 N. W., 264); 16, 129 (20 N. W., 26). Depositions: 14, 550 (16 N. W., 821); all evidence, 6, 417; 5, 238; all matters intended for consideration of supreme court, 6, 102. Must not contain matters filed with clerk or entered on his journal. 11, 232 (9 N. W., 58). Where illegal testimony is admitted over objection an exception must be taken to make objection available. 12, 597 (12 N. W., 109). Where there is no bill of exceptions on file presumed that evidence supports findings. 8, 437. Where there is no bill of exceptions court can only notice such errors as appear on the face of the records proper. 8, 439. Applicable to equitable as well as legal actions. 10, 17 (4 N. W., 309). Party has fifteen days in which to reduce exceptions to writing, but court may extend time not to exceed forty days. 8, 321. The "fifteen days" commence to run from last day of term. Judge compelled by mandamus to sign bill of exceptions. 11, 166 (8 N. W., 385). Supreme court will not review grounds on which trial judge extends time from forty to eighty days. 24, 653 (39 N. W., 833). If no showing appears presumption is that bill of exceptions was signed within time provided by law. 20, 508 (30 N. W., 943). Where forty days are allowed for presenting bill, if it is signed by the judge in twenty days thereafter, it is good. 23, 222 (36 N. W., 491). Time within which bill may be allowed not extended by delay of trial judge in ruling on motion for new trial. Failure of adverse party to return bill in ten days not a waiver of the default. 27, 616 (43 N. W., 407). Bill mislaid by mistake, time of loss deducted from whole time between rendition of judgment and filing in supreme court. 29, 209 (45 N. W., 621). Where the record fails to show an extension of time, judge has no authority, after fifteen days allowed for serving the bill, to sign it on the ground that an attorney in the case is under a wrong impression as to his rights. 27, 672 (43 N. W., 427). Statutory time to present bill is allowed after the filing of a remittitur. 20, 33 (28 N. W., 849). Where an attorney of record to whom a bill of exceptions is presented proposes amendments thereto without objection, he cannot afterwards be heard to complain that it was not presented to him within the statutory time. 14, 56 (14 N. W., 665). Where attorneys for the adverse party, when called on to propose amendments, certify on a bill which purports to contain the testimony that they have no amendments to propose, the court will presume that the bill contains all the testimony. 14, 60 (14 N. W., 803). It is the duty of the adverse party, upon receiving a bill of exceptions, to propose amendments thereto, and return such bill in the time limited by statute. 12, 207 (10 N. W., 705). If he fails to do so, and on that account bill was not settled in time allowed by statute, the bill will not be quashed on his motion. Id. And see 13, 199 (13 N. W., 209). Where bill of exceptions is retained by trial judge until after time for appeal has passed, appellant is not deprived of his appeal. 19, 395 (27 N. W., 399). Judge may be compelled to sign bill by mandamus if presented in time. 25, 74 (40 N. W., 601). Bill not served upon adverse party within the time allowed, judge has no power to sign. 16, 422 (20 N. W., 287). May be allowed and signed by judge after he goes out of office. 16, 37 (19 N. W., 701). When bill of exceptions not filed within eighty days, the fault being with the reporter, held, should be signed. 22, 146 (34 N. W., 346). Where trial had, and verdict, bill of exceptions must be presented within forty days from close of the term, though hearing on motion for new trial is continued to next term. 16, 129 (20 N. W., 26). Where the parties interested agree upon a bill of exceptions by a written stipulation attached thereto, the clerk of the court can settle and allow it, independently of whether the judge is either disqualified or unable to do so. 14, 452 (16 N. W., 474). Signed by clerk. 9, 39 (2 N. W., 343). Though agreed to by attorneys, if not signed by judge or clerk, will be stricken from the files. 8, 36; 8, 97; 15, 145 (17 N. W., 265). Provisions do not apply to justices of the peace. 11, 528 (10 N. W., 409). Exception to opinion of probate judge upon questions of law arising during the trial of a case cannot be reviewed by petition in error unless trial had by jury. 4, 96. Cited, 3, 339. A motion to strike bill of exceptions from the file for the reason that said bill was allowed and filed in vacation not good;

correct practice is to raise question by motion to quash. Code of 1866. 5, 218. Motion to quash bill of exceptions for the reason that decree was not rendered until five months after trial, held, that the trial term continued until a decision was rendered. 8, 529. After case is submitted it is too late to object that the bill of exceptions had not been presented to adverse party. 13, 272 (13 N. W., 285). Motion to quash bill of exceptions will not be entertained after case is submitted. 13, 501 (14 N. W., 528). Unless a bill of exceptions is authenticated as required by law, the supreme court cannot consider it. 13, 502 (14 N. W., 536). Objections in supreme court to bill of exceptions must be made in a reasonable time and come too late after the printing of briefs. 23, 650 (37 Ñ. W., 590). Superior court cannot correct, but will remand where errors are shown. 27, 706 (43 N. W., 422). Bill of exceptions of cause tried in the district court must be filed in that court; and if the original bill is read in the supreme court, the district clerk's certificate that it is the original bill must be attached to it. 14, 57 (14 N. W, 804). If not allowed or certified to may be stricken from files of supreme court. 27, 556-7 (43 N. W., 346). Cited, 4, 43; 1,317; 2, 404; 3, 446. Sec. 4832 added 1881, p. 204.

4832. This act shall apply to all cases hereafter decided as well as all that have been already adjudicated by final order or judgment; and that the provisions of this act shall apply to actions in equity sought to be appealed to the supreme court, under the act of March 3, 1873, entitled "An act to provide for appeals in actions in equity."

4833 (312). No exception shall be regarded, unless it is material, and prejudicial to the substantial rights of the party excepting.

4834 (313). Exceptions taken to the decision of any court of record may, by leave of such court, be withdrawn from the files by the party taking the same, at any time before proceedings in error are commenced, and before the exceptions are recorded.

ARTICLE VI.-NEW TRIAL.

4835 (314). A new trial is a re-examination in the same court of an issue of fact after a verdict by a jury, report of a referee, or a decision by the court. The former verdict, report, or decision shall be vacated, and a new trial granted on the application of the party aggrieved, for any of the following causes affecting materially the substantial rights of such party: First-Irregularity in the proceedings of the court, jury, referee, or prevailing party, or any order of the court or referee, or abuse of discretion, by which the party was prevented from having a fair trial. Second-Misconduct of the jury or prevailing party. Third-Accident or surprise, which ordinary prudence could not have guarded against. Fourth-Excessive damages, appearing to have been given under the influence of passion or prejudice. Fifth-Error in the assessment of the amount of recovery, whether too large or too small, where the action is upon a contract, or for the injury or detention of property. Sixth-That the verdict, report, or decision is not sustained by sufficient evidence, or is contrary to law. Seventh-Newly discovered evidence, material for the party applying, which he could not with reasonable diligence have discovered and produced at the trial. Eighth-Error of law occurring at the trial, and excepted to by the party making the application.

Motion for, necessary in order to obtain review. 5, 238; 6, 129. Likewise in an equity case. 28, 72 (44 N. W., 873). But not necessary when court had only ruled on motion or demurrer to a pleading. 13, 256 (13 N. W., 215). Motion addressed to the sound discretion of trial court. 20,372 (30 N. W., 258). But such discretion must not be abused. 11, 394 (9 N. W., 558). Motion must contain all the errors complained of. 1, 398; 2, 317; 3, 446. Errors must be specifically presented in motion, in order to be assigned in supreme court. 6, 380; 8, 143, 213, 276, 388; 9, 211 (2 N W., 464); 386 (2 N. W., 729); 13, 228 (13 N. W., 214); 21, 290 (31 N. W., 933); 24, 605 (39 N. W., 620); 629 (39 N. W., 784). General assignment insufficient. 7, 138; 24, 772 (40 N. W., 287). Grounds: (1) Admission of immaterial and irrelevant testimony over defendant's objection. 1, 406-8; 20, 513 (30 N. W., 941); 12, 597 (12 N. W., 109). Disregard by jury of material testimony which, if considered, would have required a different verdict. 12, 597 (12 N. W., 109). Disregard by jury of instructions. 2, 342; 9,490 (4 N. W., 81). (2) Misconduct of attorney of prevailing party. 20, 172 (29 N. W., 292). No ground for, that juror was asleep and court's al

tention was not called to it. 12, 5 (10 N. W., 413). Not granted on charge that juror conversed with outsider during trial, if denied by such juror and not sustained by trial court. 24, 235 (38 N. W., 794). (3) Unavoidable accident. 7, 299. (4) Verdict clearly against weight of evidence. 5, 527; 6, 309, 315; 9, 66 (2 N. W., 381); 13, 475 (14 N. W., 387). But it must be clearly so. 1, 404, 406; 7, 284, 309; 9, 71 (2 N. W., 363); 20, 310 (30 N. W., 59). Balanced or conflicting evidence is not sufficient. 7, 42, 146. Nor mere difference of opinion between court and jury. 3, 357; 6, 157, 401, 489; 9, 534. (7) Merely cumulative evidence insufficient. 7, 224; 28, 333 (44 N. W., 441); 29, 95 (45 N. W., 272). Affidavit must state what particular effort has been made to procure testimony. 8, 389; 13, 397 (14 N. W., 379). And it must clearly appear that such evidence could not be obtained at first trial. 3, 266. New trial will not be granted for newly discovered evidence which merely tends to discredit opposite witnesses. 13, 438 (14 N. W., 165). The rule is that if, with the newly discovered evidence before them, the jury would not have come to the same conclusion, a new trial will be granted. 13, 438 (14 N. W., 165). Evidence taken on hearing of petition for new trial in action for personal injury which merely tends to show that injury was committed in somewhat different manner than that testified to, is insufficient. Newly discovered evidence, as well as that given at the trial, should be set out in a bill of exceptions. 24, 758-9 (40 N. W., 298). Referee cannot grant motions for new trial. 11, 439 (9 N. W., 573). Party appealing to supreme court is estopped from assailing judgment on the ground of irregularity in entering. 3, 443. Must fully present his case to the court below and obtain ruling thereon before entitled to review in supreme court. 5, 187. To entitle a litigant to new trial there must be a final judgment in the court below. In case cited entry mere recital. 7, 228. Affidavit for, on account of lost deposition must set out testimony contained therein. Alleged violation of agreement to postpone trial, denied by prevailing party, not ground for. 29, 585 (45 N. W., 930). Neglect of attorneys-as ground for. 23, 64 (36 N. W., 359). Not granted unless it appear reasonably certain that wrong has been done. 3, 356. Not granted on evidence superinduced by extra-judicial statements of trial judge not in harmony with record. 24, 300 (38 N. W., 780). See 4, 114; 5, 358; 20, 314 (30 N. W., 61); 21, 500 (32 N. W., 576); 24, 314 (39 N. W., 450); 24, 818 (40 N. W., 410).

4836 (315). A new trial shall not be granted on account of the smallness of damages in an action for an injury to the person or reputation, nor any other action where the damages shall equal the actual pecuniary injury sustained.

Cited, 1, 169.

4837 (316). The application for a new trial must be made at the term the verdict, report, or decision is rendered, and, except for the cause of newly discovered evidence material for the party applying, which he could not with reasonable diligence have discovered and produced at the trial, shall be within three days after the verdict or decision was rendered, unless unavoidably prevented.

No limit as to time within which ruling must be made. Affidavits in support of motion may be filed at any time before submission, though the three days have expired. 24, 807 (40 N. W., 317). Where motion is made more than three days after verdict, or by amendment to motion previously filed, question raised should not be considered. 24, 286 (38 N. W., 740); 6, 535. Failure to except to overruling of motion will not justify supreme court in dismissing case. 29, 320 (45 N. W., 466). "Unavoidably prevented," does not include mere neglect. 15, 622 (20 N. W., 100). Cited, 23, 679 (37 N. W., 593).

4838 (317). The application must be by motion upon written grounds, filed at the time of making the motion. *It shall be sufficient, however, in assigning the grounds of the motion to assign the same in the language of the statute and without further or other particularity.* The causes enumerated in subdivisions 2, 3, and 7 of section 314 must be sustained by affidavits showing their truth, and may be controverted by affidavits.

*to* inserted 1881, p. 201. Motion for new trial must be made and ruled on in all cases of the trial of issues of fact to obtain a review in the supreme court. 10, 475 (6 N. W., 760). Oral motion or written one not specifying grounds therefor not sufficient. 28, 587 (44 N. W., 864). Motion must contain all the grounds defendant claims relief upon. 25, 122 (41 N. W., 128). Instructions must be specially excepted to. 15, 23 (16 N. W., 833). Where there are two defendants and one of them desires to raise a question peculiar to himself he should make a separate motion and not join with his co-defendant. 23, 691 (37 N W., 603). Motion for new trial not necessary when error is taken from justice of the peace. 9, 504 (4 N. W., 237). Motion for new trial unnecessary in cases brought to district court from justice, where no retrial of issues of fact is to be had. 11, 527 (10 N. W., 409).

4839 (318). Where the grounds for a new trial could not with reasonable

diligence have been discovered before, but are discovered after the term at which the verdict, report of referee, or decision was rendered or made, the application may be made by petition, filed as in other cases; on which a summons shall issue, be returnable and served, or publication made, as prescribed in section seventy-nine. The facts stated in the petition shall be considered as denied without answer, and if the service shall be complete in vacation, the case shall be heard and summarily decided at the ensuing term. The case shall be placed on the trial docket, and the witnesses shall be examined in open court, or their depositions taken as in other cases, but no such petition shall be filed more than one year after the final judgment was rendered.

Petition should show why facts not discovered sooner. 17, 450 (23 N. W., 353, 511). Only applicable to causes named in section 314. 17, 69 (22 N. W., 78). Neglect of attorney not sufficient. 15, 621 (20 N. W., 100). New trial will not be granted after stay of execution taken. 20, 315 (30 N. W., 56). See 24, 545 (39 N. W., 597).

ARTICLE VII.-GENERAL PROVISIONS.

4840 (319). Whenever damages are recoverable, the plaintiff may claim and recover any rate of damages to which he may be entitled for the cause of action established.

Measure of damages in action in nature of trespass de bonis asportatis. 24, 65 (37 N. W., 688). Damages for failure to ship goods will not be sustained. 2, 260. Where a contract to place machinery in a mill by a certain day, and the mill is not ready at that day, damages will not be allowed for failure to place machinery at time specified. 1, 355. Measure of damages is worth, not cost. Rule is difference between the value of machinery furnished and what it would cost to replace the same with such as was demanded by the contract. 1, 356. Cited, 3, 130.

4841 (320). The provisions of this title respecting trials by jury apply, so far as they are in their nature applicable, to trials by the court.

ARTICLE VIII.-TIME OF TRIAL.

4842 (321). The clerk of the district court shall keep at least eight books, to be called the appearance docket, the trial docket, the journal, the complete record, the execution docket, *the fee book, the general index, and the judgment record.

All after added 1873, G. S., p. 579. The fee book of the clerk is a public record, open to the inspection of all interested. 19, 106 (26 N. W., 620). Where transcript of judgment from county court is filed in district court, it is notice to purchasers of real estate if not placed on general index. 19, 303 (27 N. W., 125).

4843 (322). On the appearace docket, he shall enter all actions in the order in which they were brought, the date of the summons, the time of the return thereof by the officer, and his return thereon, the time of filing the petition, and all subsequent pleadings. *On the general index he shall enter the names of the parties to every suit, both direct and inverse, with the page and book where all proceedings in such action may be found. The judginent record shall contain the judgment debtor and the judgment creditor, arranged alphabetically, the date of the judgment, the amount of the same, and the amount of costs, with the page and book where the same may be found. Transcripts of judgments from justices of the peace, or courts of probate, filed in the district court, shall be entered upon said judgment record; and whenever any judgment is paid off and discharged, the clerk shall enter such fact upon the judgment record in a column provided for that purpose.

All after* added 1873, G. S., p. 579. Index a part of record. 7, 171.

4844 (323). The trial docket shall be made out by the clerk of the court at least twelve days before the first day of each term of the court; and the actions shall be set for particular days in the order in which the issues were made up, whether of law or of fact, and so arranged that the cases set for each day shall be tried as nearly as may be on that day. For the purpose of arranging said docket,

an issue shall be considered as made up when either party is in default of a pleading. *If the defendant fails to answer or demur, the cause for the purpose of this section shall be deemed to be at issue upon questions of fact, but in every such case the plaintiff may move for and take such judgment as he is entitled to, on the defendant's default, on or after the day on which said action shall be set for trial. No witnesses shall be subpoenaed in any case while the cause stands upon issue of law; and whenever the court shall regard the demurrer in any case as frivolous, and put in for delay only, no leave to answer or reply shall be given, unless upon payment of all costs then accrued in the action; Provided, That when the number of actions to be docketed shall exceed three hundred, the judge or judges of the district court for the county may by rule or order classify them in such manner as they may deem expedient, and cause them to be placed according to such classification upon different dockets; and the respective dockets may be proceeded with and causes thereon be tried, heard, or otherwise disposed of, concurrently by one or more of the judges; and provision may be made by rule of court that issues of fact shall not be for trial at any term when the number of pending actions shall exceed three hundred, except upon such previous notice of trial as may be prescribed thereby.

All after* added 1887, p. 647.

4845 (324). The trial of an issue of fact, and the assessment of damages in any case, shall be in the order in which they are placed on the trial docket, unless, by consent of the parties, or the order of the court, they are continued, or placed at the heel of the docket, *or temporarily postponed.* The time of hearing all other cases shall be in the order in which they are placed on the docket, unless the court in its discretion shall otherwise direct. The court may in its discretion hear at any time a motion, and may by rule prescribe the time for hearing motions, *and provide for dismissing actions without prejudice for want of prosecution.

*to* and all after third * added 1887, p. 648.

Secs. 325 and 326 repealed. Laws 1867, 12th sess., Ty., p. 7.

4846 (327). The clerk shall make out a copy of the trial docket * and other dockets, if any, for the use of the bar before the first day of the term of court. *to* added, 1887, p. 649.

Sec. 4847 added 1887, p. 649.

4847. The clerk shall make out a copy of the dockets for the use of the bar before the first day of the term of court.

TITLE X.-EVIDENCE.

CHAPTER I.-COMPETENCY OF WITNESSES.

4848 (328). Every human being of sufficient capacity to understand the obligation of an oath is a competent witness in all cases, civil and criminal, except as otherwise herein declared. The following persons shall be incompetent to testify: First-Persons of unsound mind at the time of their production. SecondIndians and negroes who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them intelligently and truly. Third-Husband and wife, concerning any communication made by one to the other during marriage, whether called as a witness while that relation subsists or afterward. Fourth-An attorney, concerning any communication made to him by his client in that relation or his advice thereon, without the client's consent in open court or in writing produced in court. Fifth-A clergyman or priest, concerning any confession made to him in his professional character in the course of discipline