the case made by the call in warranty against John B. O'Leary the exception of no cause of action was well taken and the call properly dismissed. This leads to an affirmance of the judgment of the trial court. However, in order that the plaintiff in error may not be prejudiced hereafter in asserting any rights that may have grown out of the correspondence referred to in the call in warranty, we think the judgment of the trial court should be amended by adding to the same "without prejudice," and, as so amended, the judgment of the District Court is affirmed, with costs.

(232 Fed. 1022)

MCCLURE et al. v. UNITED STATES. (Circuit Court of Appeals, Eighth Circuit. March 16, 1916.) No. 4510. In Error to the District Court of the United States for the Western District of Missouri. Writ of error dismissed, without costs to either party in this court, per stipulation of parties. George F. Anderson, of Kansas City, Mo., and Moman Pruiett, of Oklahoma City, Okl., for plaintiffs in error. Francis M. Wilson, U. S. Atty., of Kansas City, Mo.

(232 Fed. 1022)

MAYTAG v. MAYTAG-MASON MOTOR CO. (Circuit Court of Appeals, Eighth Circuit. April 6, 1916.) No. 4588. Appeal from the District Court of the United States for the Northern District of Iowa. Appeal dismissed, at costs of appellant, per stipulation of parties. Haffenberg & Friedman, of Chicago, Ill., for appellant. Edward R. Mason, of Des Moines, Iowa, for appellee. See, also, 223 Fed. 684.

(232 Fed. 1022)

MORGAN v. UNITED STATES. (Circuit Court of Appeals, Eighth Circuit. May 23, 1916.) No. 4460. In Error to the District Court of the United States for the Western District of Oklahoma. Motion of plaintiff in error for a continuance denied. Writ of error dismissed, without costs to either party in this court, for want of prosecution, on motion of defendant in error. John A. Remy, of Guthrie, Okl., for plaintiff in error. John A. Fain, U. S. Atty., of Lawton, Okl.

(232 Fed. 1022)

MURPHY v. UNITED STATES. (Circuit Court of Appeals, Eighth Circuit. March 11, 1916.) No. 4668. In Error to the District Court of the United States for the Eastern District of Missouri. Writ of error docketed and dismissed, without costs to either party in this court, on motion of defendant in error. Vance J. Higgs, Asst. U. S. Atty., of St. Louis, Mo.

(232 Fed. 1022)

NEFF v. NATIONAL INVESTMENT & SECURITIES COMPANY et al. (Circuit Court of Appeals, Eighth Circuit. May 12, 1916.) No. 4696. Appeal from the District Court of the United States for the District of Colorado. Appeal docketed and dismissed, with costs, for want of prosecution, pursuant to sixteenth rule (150 Fed. xxix, 79 C. C. A. xxix), and mandate granted forthwith, on motion of appellees. E. M. Sabin, of Denver, Colo., for appellant. Simon J. Heller, of Denver, Colo., for appellees.

(232 Fed. 1022)

PACIFIC PHONOGRAPH CO. v. SEARCHLIGHT HORN CO. (Circuit Court of Appeals, Ninth Circuit. June 2, 1916.) No. 2770. Appeal from the District Court of the United States for the Second Division of the Northern

District of California. Frank Parker Davis, of Chicago, Ill., and Frank P. Deering, of San Francisco, Cal., for appellant. John H. Miller, of San Francisco, Cal., for appellee. Upon motion of Mr. John H. Miller, counsel for the appellee, ordered, appeal dismissed for noncompliance by appellant with rules 23 and 24, 150 Fed. xxxii, xxxiii, 79 C. C. A. xxxii, xxxiii (failure of appellant to print record under rule 23, and to file a printed brief under rule 24), with costs in favor of the appellee and against the appellant.

(232 Fed. 1023)

POPE-HARTFORD MOTOR CAR CO. v. WAVERLY CO. (Circuit Court of Appeals, Eighth Circuit. January 19, 1916.) No. 4120. In Error to the District Court of the United States for the Eastern District of Missouri. Writ of error dismissed, with costs, for want of prosecution. John K. Lord, Jr., and F. J. McMaster, both of St. Louis, Mo., for plaintiff in error. Sears Lehmann, of St. Louis, Mo., for defendant in error.

(232 Fed. 1023)

TSIOUSLI v. COYKENDALL, Immigration Inspector. (Circuit Court of Appeals, Eighth Circuit. March 31, 1916.) No. 4682. Appeal from the District Court of the United States for the Western District of Missouri. Appeal docketed and dismissed, without costs to either party in this court, on motion of United States Attorney for appellee and stipulation of parties. A. R. McClanahan, of Kansas City, Mo., for appellant. Francis M. Wilson, U. S. Atty., of Kansas City, Mo., for appellee.

(232 Fed. 1023)

UNITED SHOE MACHINERY CO. et al. v. UNITED STATES. (Circuit Court of Appeals, Eighth Circuit. May 1, 1916.) No. 4617. Appeal from the District Court of the United States for the Eastern District of Missouri. Upon announcement by government of abandonment of claim to preliminary injunction, the order of District Court granting preliminary injunction (227 Fed. 507) is reversed, without prejudice, etc., and without costs to either party in this court, to which appellants do not consent. C. A. Severance, of St. Paul, Minn., Charles F. Choate, Jr., and Frederick P. Fish, both of Boston, Mass., and Chester H. Krum and Douglas W. Robert, both of St. Louis, Mo., for appellants. C. J. Smyth, Sp. Asst. Atty. Gen., and Arthur L. Oliver, U. S. Atty., of St. Louis, Mo.

(232 Fed. 1023)

VALENTINE et al. v. CITY OF JUNEAU. (Circuit Court of Appeals, Ninth Circuit. May 24, 1916.) No. 2743. Appeal from the District Court of the United States for Division No. 1 of the District of Alaska. J. H. Cobb, of Juneau, Alaska, for appellants. Hellenthal & Hellenthal, of Juneau, Alaska, for appellee. Upon motion of Mr. Simm Hellenthal, counsel for the appellee, ordered appeal dismissed for noncompliance by appellant with rules 23 and 24, 150 Fed. xxxii, xxxiii, 79 C. C. A. xxxii, xxxiii (failure of appellant to print record under rule 23, and to file a printed brief under rule 24), with costs in favor of appellee and against appellant.

END OF CASES IN VOL. 146

INDEX-DIGEST

KEY NUMBER SYSTEM)

THIS IS A KEY-NUMBER INDEX

It Supplements the Decennial Digest, the Key-Number Series and
Prior Reporter Volume Index-Digests

ABATEMENT AND REVIVAL.

See Criminal Law, 279, 280.

V. DEATH OF PARTY AND REVIVAL
OF ACTION.

(A) Abatement or Survival of Action.

57 (U.S.C.C.A.) Where recovery for the results of a monopolistic conspiracy is sought un

See Food.

ADULTERATION.

AFTER-ACQUIRED PROPERTY.

See Wills, 578.

AGENCY.

der Sherman Act, § 7, the action will survive See Principal and Agent.
against the estate of a decedent in case he se-
cured some benefit at the expense of plaintiff.-
United Copper Securities Co. v. Amalgamated See Bankruptcy, ~68.
Copper Co., 532.

AGRICULTURE.

32(9) (U.S.C.C.A.) Where the record does not show that an alien came from China, but that he entered the United States from an adjacent country, an order for his deportation to China may be amended.-Yee Suey v. Berkshire, 335.

50 (U.S.C.C.A.) Dismissal of a petition bringing in a charterer under admiralty rule 59, in a suit for injury to a stevedore, held without prejudice to respondent.-The Wilhel-32(10) (U.S.C.C.A.) One who was born in mina, 424.

IX. APPEAL.

118 (U.S.C.C.A.) Although one respondent alone appeals in admiralty, it may assign error in the failure to hold a corespondent liable. The Willie, 61.

China, and came directly from there to Canada, whence he attempted to cross into the United States, can be deported to China.-Jung Sew v. United States, 145.

32(10) (U.S.C.C.A.) An order for deportation of an alien to China is not warranted, where

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER
146 C.C.A.

(669)

AMENDMENT.

the record does not show that he came from China, but that he entered the United States from an adjacent country.-Yee Suey v. Berk- See Limitation of Actions, 127; Partition, shire, 335.

See

60; Pleading, 246, 248.

AMOUNT IN CONTROVERSY. Courts, 328, 329.

ANCILLARY JURISDICTION.

Courts, 264.

ANTI-TRUST LAW.

32(12) (U.S.C.C.A.) An order for the deportation of a Chinese person will not be reversed merely because on the evidence the appellate court would have found the facts dif- See Monopolies. ferently.-Chin Sing Quon v. United States,

APPEAL AND ERROR.

See Admiralty, 118; Aliens, 32; Bankruptcy, 440-467; Criminal Law, 11341178; Exceptions, Bill of.

III. DECISIONS REVIEWABLE.

(D) Finality of Determination. 80(1) (U.S.C.C.A.) In action for partnership settlement, held, that it was doubtful whether decree determining main controversy was final for purposes of appeal, and hence appeal from subsequent decree after sale of property, etc., would not be dismissed.-Halfpenny v. Miller, 305.

62 (U.S.C.C.A.) Under Naturalization Act (Rev. St. § 2170 [Comp. St. 1913, § 4360]), held, 80(1) (U.S.C.C.A.) A decree of a federal that an alien's temporary absence from the court, directing its receiver in a foreclosure United States during the five-year period will suit against a corporation to turn over the not necessarily preclude naturalization.-Unit- mortgaged property to a receiver of a state ed States v. Mulvey, 471. court, made on application of the latter, is final and appealable.-Empire Trust Co. v. Brooks, 567.

Where an alien left the United States, and was away over two years, he is not, under Naturalization Act (Rev. St. § 2170 [Comp. St. 1913, § 4360]) and in view of Act March 26. 1790, V. Act Jan. 29, 1795, Act April 14, 1802, Act March 3, 1813, and Act June 26, 1848, entitled to naturalization upon his return, having been without the United States for practically half of the five-year period.-Id.

68 (U.S.C.C.A.) Where, in a naturalization proceeding, a representative of the Bureau of Naturalization presents to the District Court personal history of applicant, he should not be considered as representing the government adversely to the applicant.-United States v. Mulvey, 471.

69 (U.S.C.C.A.) Where applicant was not entitled to naturalization, issuance of certificate was illegal and may be attacked by district attorney under Naturalization Act June 29, 1906, § 15.-United States v. Mulvey, 471.

70 (U.S.C.C.A.) An order of naturalization cannot be treated as a judgment precluding the government from questioning it under Naturalization Act June 29, 1906, § 15, because under section 11 the government can appear in opposition.-United States v. Mulvey, 471.

712 [New, vol. 7, Key-No. Series]

(U.S.C.C.A.) An affidavit for cancellation of a certificate of citizenship, under Comp. St. 1913, § 4374, which merely shows that the certificate was granted the same day the petition was filed, contrary to section 4354, is insufficient.-United States v. Salomon, 124.

PRESENTATION AND RESERVA-
TION IN LOWER COURT OF
GROUNDS OF REVIEW.
(A) Issues and Questions in Lower Court.

169 (U.S.C.C.A.) Questions not raised below, ruled on, and to which no exceptions were preserved, cannot be raised by assignments of error.-Continental Public Works Co. v. Stein,

517.

(B) Objections and Motions, and Rulings

Thereon.

185(1) (U.S.C.C.A.) On appeal from a decree dismissing on the merits a suit over which the District Court had no jurisdiction, the Circuit Court of Appeals should, under Judicial though the question was not raised by defendCode, § 37, dismiss it for want of jurisdiction, ant.-Weyman-Bruton Co. v. Ladd, 94.

193(3) (U.S.C.C.A.) Though complaint as amended might have been subject to special demurrer as duplicitous, no demurrers having been made below, matter cannot be reviewed on appeal.-Victor American Fuel Co. v. Tomljanovich, 588.

195 (U.S.C.C.A.) Though objection might have been made to mode of amendment of complaint, no objections having been made below, matter cannot be reviewed on appeal.-Victor American Fuel Co. v. Tomljanovich, 588.

213 (U.S,C.C.A.) Where motion to enter satisfaction of judgment was tried to the court,

but jury was not waived, the appellate court on
writ of error will not, no objection having been
made, consider whether order of court was mere
award of an arbitrator, but will treat decision as
one which can be reviewed.-Lillie v. Dennert,
296.

remarks do not appear in the bill of exceptions,
cannot be considered.-Fisher Mach. Works Co.
v. Dougherty, 106.

XI. ASSIGNMENT OF ERRORS.

216(1) (U.S.C.C.A.) An exception to the 730(2) (U.S.C.C.A.) Where the portion of
failure to charge specifically as to some theory
of recovery or defense is not sufficient upon
which to predicate error, when there is no pre-
liminary request for such instruction.-Key-

stone Coal & Coke Co. v. Fekete, 264.

the charge alleged to have been erroneous was
11 (150 Fed. xxvii, 79 C. C. A. xxvii), and no
not set out totidem verbis, as required by rule
exception was taken to the charge as given,
the judgment will not be reversed on an assign-
ment of error to the charge.-Fisher Mach.
Works Co. v. Dougherty, 106.

237(5) (U.S.C.C.A.) Where there was no
specific motion for direction of a verdict in de-
fendant's favor on ground that evidence, or 733 (U.S.C.C.A.) In an action for personal
weight of evidence, was against plaintiff's con- injuries, where the verdict was for plaintiff, an
tention, questions whether evidence, or weight assignment that the court erred in refusing to
thereof, supported plaintiff's contention, cannot render judgment for defendant, instead of
be reviewed.-Victor American Fuel Co. v. plaintiff, presents nothing for review.-Fisher
Tomljanovich, 588.
Mach. Works Co. v. Dougherty, 106.

(C) Exceptions.

a

248 (U.S.C.C.A.) An appellate court on
writ of error can only consider errors which
have been properly excepted to at the trial.-
International Lumber Co. v. United States, 69.
263(1) (U.S.C.C.A.) An assignment of error
to a portion of the charge cannot be sustained,
where no exception was taken to the charge on
that ground, no modification of it was suggest-
ed, and no instructions on the subject requested.
-Pennsylvania Co. v. Fanger, 47.

XIII. DISMISSAL, WITHDRAWAL, OR

ABANDONMENT.

801 (1) (U.S.C.C.A.) Motions to dismiss ap-
peals without consideration of the merits should
not be granted, except when it clearly appears
that there has been a fatal failure to comply
with legal requirements.-Halfpenny v. Miller,
305.
XVI. REVIEW.

(A) Scope and Extent in General.

of a District
836 (U.S.C.C.A.) Failure
Judge to follow the prior rulings of another
judge, who sat in the same case, does not affect
the power of the appellate court to review the
final judgment.-Friederichsen v. Renard, 78.

263(1) (U.S.C.C.A.) Where the portion of
the charge alleged to have been erroneous was
not set out totidem verbis, as required by rule
11 (150 Fed. xxvii, 79 C. C. A. xxvii), and no
exception was taken to the charge as given,
the judgment will not be reversed on an assign-859 (U.S.C.C.A.) The right of review under
ment of error to the charge.-Fisher Mach.
Works Co. v. Dougherty, 106.

VII. REQUISITES AND PROCEEDINGS
FOR TRANSFER OF CAUSE.
(A) Time of Taking Proceedings.
339(2) (U.S.C.C.A.) A decree in a suit for
unfair competition, ordering a reference for ac-
counting, held interlocutory, so that an appeal
could not be taken therefrom more than 30 days
after it was entered.-Puritan Cordage Mills v.
Sampson Cordage Works, 330.

357(1) (U.S.C.C.A.) The burden held on one
appealing more than 30 days after the decree
was entered to show respect in which the decree
was final.-Puritan Cordage Mills v. Sampson
Cordage Works, 330.

writ of error is limited to questions of law; so,
where trial was to the court, matters of fact
cannot be reviewed, save in so far as the appel-
late court may determine whether there was any
evidence which would warrant the finding.-Lii-
lie v. Dennert, 296.

(B) Interlocutory, Collateral, and Sup-
plementary Proceedings and

Questions.

X. RECORD AND PROCEEDINGS NOT 882(13) (U.S.C.C.A.) Where defendant offer-

IN RECORD.

(A) Matters to be Shown by Record.
500(1) (U.S.C.C.A.) Where the record does
not show that a motion for continuance was
presented to the trial court and ruled on, plain-
tiff in error fails to show an abuse of discre-
tion.-Pennsylvania Co. v. Fanger, 47.

(K) Questions Presented for Review.
688(1) (U.S.C.C.A.) An assignment of error
relating to remarks of the trial court, which

ed no evidence as to the cost of conforming to
the warranty, and urged only an erroneous the-
ory of damages, he cannot complain that the
court instructed that the measure of damages
was the difference between the value as war-
ranted and the actual value.-B. F. Sturtevant
Co. v. Champion Fibre Co., 193.

(F) Discretion of Lower Court.
966(1) (U.S.C.C.A.) The ruling of the trial
court on an application for a continuance is a
matter of discretion, not subject to review un-

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER