Feb. 1894.]

Opinion on Re-hearing-STILES, J.

order of distribution alone. But the order did not assume to declare the interest or estate which the widow would have in the property distributed to her, and in not doing so the court avoided any attempt at construction which would have been beyond its jurisdiction. The will undoubtedly governs her estate in such of the property as she derived through it, viz., that which belonged to the separate estate of her husband; but, as to the community property, she has no more than the law gave her, for her husband could dispose of only one-half of that by will, and that half has been given to the children. The will did not assume to dispose of anything but what the statute permitted the husband to devise.

We are, therefore, constrained to hold as before, that the statutes of the territory required the probate court to do just what was done in this case, so far as it made distribution to the children; that its decree was final and binding unless appealed from, it not being contrary to the limitations of the organic act; that the respondent did not have the title which she had contracted to convey, and that the disposition of the case should be as before ordered.

DUNBAR, C. J., and ANDERS and Scott, JJ., concur.
HOYT, J., not sitting.

INDEX.

ACTION.

1. Form of Action· Equitable Treated as Law Action - Prac-
tice. Where an action, which is properly one of equitable
cognizance, has been treated by all parties as an action at
law for money, it is not error for the court to permit the
filing of a supplemental complaint asking for judgment
generally against the defendants, after their action has put
it out of plaintiff's power to secure equitable relief.-Kleeb
v. Bard...

2. Equitable Actions. It is error to compel the trial of a
cause as an action at law, when both the complaint and
answer invoke the equity powers of the court.- Distler
v. Dabney.....

ADVANCEMENT.

What Constitutes. The fact that a woman furnished her son-
in-law with money with which to buy a lot and construct a
building in a town to which the family comtemplated re-
moving, and that the son-in-law took the title to the land
in his own name, does not constitute an advancement,
when none of the parties to the transaction ever claimed
or treated it as one.- Girault v. Hotaling Co..

ADVERSE POSSESSION.

......

Possession Under Void Tax Deed. A void tax deed under
which the grantee has entered and held possession of the
land in controversy constitutes such color of title as will
sustain the bar of the statute of limitations provided for
actions relating to tax deeds.-Ward v. Huggins..

See LIMITATION OF ACTIONS, 2.

AGENCY. See MORTGAGES, 3; PRINCIPAL AND AGENT.

APPEAL.

1. Proceedings by Superior Court upon Remand. Where the
supreme court has reversed a judgment of the superior
court and directed that the title to certain land be estab-
lished in the appellant, subject to a vendor's lien for a bal-

41

431

90

617

APPEAL-CONTINUED.

ance of purchase money, the amount of which lien the
supreme court was unable to adjust by reason of the bar-
renness of the record on that matter, the superior court
may, upon a remand of the case, determine and establish
such vendor's lien before the entry of judgment in accord-
ance with the decision of the supreme court.-Spinning v.
Drake

2. Notice. Where notice of appeal is given in open court at
the rendition of judgment, no other service of notice is
necessary. Moore v. Brownfield.

3. Weight of Evidence. The verdict of a jury based upon con-
flicting testimony will not be set aside on the ground of the
insufficiency of the evidence.-Id.

4. Record Case Divided for Hearing - By Whom Statement
Certified. Where a suit is begun before a judge having
charge of the equity cases arising in a county, and during
its progress is transferred by him to another judge having
charge of the jury cases, for the purpose of submitting
certain questions of fact to a jury, the second judge ac-
quires no jurisdiction of the suit, and, on appeal, the only
judge authorized to certify a statement of facts is the one
who originally assumed jurisdiction.-Hill v. Young....

5. Appealable Order—Order Removing Receiver. An appeal
will not lie from an order of the court removing one receiver
and appointing another in his stead. State, ex rel. Tilton,
v. Superior Court..

6. Order Vacating Judgment— Record on Appeal. On an ap-
peal from an order denying a petition to vacate a judgment
no bill of exceptions nor statement of facts is necessary, as
all matters essential for a determination of the appeal ap-
pear in the record otherwise.-Seattle & Montana Ry. Co. v.
Johnson

7. Notice. Notice of appeal is not necessary to parties who
do not appear in the action, though named as defendants.-

Id

8. Bond. Insufficiency of the appeal bond is not ground for
the dismissal of the appeal, but the remedy provided by
§1421, Code Proc., for the discharge of the bond and the
filing of a new one should be followed.-Id..

9. Settlement of Statement-When Time Begins to Run. Notice
of the settlement of a statement of facts given within thirty
days after the filing of a judgment is sufficient, although

23

23

33

74

97

97

97

APPEAL-CONTINUED.

more than that time has elapsed since the dating of the
judgment at the time the findings of fact were filed.— Mc-
Glauflin v. Merriam...

-

111

111

10. Same-Objections Not Raised Below. Although a statement
of facts was settled on the day following the one for which
notice was given, without any adjournment to that day by
the court, the respondent cannot urge objection thereto in
the supreme court, if he appeared at the time of settlement
to object thereto on other grounds.— Id...
11. Referee's Findings — Necessity for Statement. A stenogra-
pher's longhand notes of testimony taken before a referee
in an action at law, and attached to and made a part of the
referee's report, is sufficient on appeal, without the filing
of a statement of facts.-Bash v. Culver Gold Mining Co...... 122
12. Dismissal on Admission of Appellant. An appeal by the
state from a judgment sustaining a demurrer to an indict-
ment will be dismissed, when the attorney general, who ap-
pears for the state, concedes that the demurrer was properly
sustained.-State v. Smith

13. Sufficiency of Evidence. The verdict of a jury will not be
disturbed where there is sufficient evidence to establish all
the facts necessary to sustain the issue made by the success-
ful party, although the court may be of the opinion that evi-
dence upon the other side is of greater weight.-Burden v.
Cropp

14. Rendition of Void Judgment on Appeal - Modification. A
judgment in the supreme court for costs against defendants
who have not been served nor appeared in the action is ab-
solutely void, and may be properly attacked by a proceed-
ing in said court to have the judgment modified.— Bell v.
Waudby..

15. Judgment of Supreme Court-Modification by Lower Court.
The judgment of the supreme court upon appeal in an
equity cause, which by our statute is required to be tried
de novo in the appellate court, cannot be modified by the
superior court after the cause has been remanded.-State,
ex rel. Wolferman, v. Superior Court..

16. Urgency for Early Hearing. Cases on appeal will not be
heard out of their regular order, except where grave public
considerations justify the supreme court in thus hearing
and determining important cases.—Olympia v. Moore..
17. Record-Appropriation of Way of Necessity. A special pro-
ceeding to appropriate a "private way of necessity" not

194

198

203

234

236