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CARSON CITY DAILY APPEAL, SATURDAY, NOVEMBER 26, 1921
The Carson City Daily Appeal PUBLISHED EVERY EVENING. EXCEPT SUNDAY, BY THE NEVADA PRINTING COMPANY r. D. VAN DEVORT Editor and Manager Entered as Matter of the Second Class at the Postoffice at Carson City, Nevada, under Act of Congress of March 3, 1879 One jear by Carrier One year by Mail TERMS OF SUBSCRIPTION 112.00 9.00 Carson Citv Daily Appeal is the .real live advertising medium of this section as evidenced by its carrying a larger amount of advertising than any paper it (he city. INTO LEAGUE OF NATIONS BX THE BACK DOOR A Letter From Senator Carter Glass of Virginia to John Stewart Bryan Answering your inquiry as to how I feel about disarmament, I am always for an honorable peace, whether it be by disarmament or otherwise. I am never for a dishonorable peace through any con ceivable medium. Had the United States gone into the League of Nations the world would have disarmed long ago and we would have security against war for many years to some, if not forever. I hope the disarmament conference, which was forced on this reluctant ad ministration by a combination of Democrats and progressive Repub lican senators, will accomplish something in the matter of a reduc tion of military burdens, albeit its personnel embraces not a single zealot for the cause. It would have been far better to have gone into the League of Nations by the front door rather than to be waiting in the woodshed in the back yard. Had the Christian churches of this country exhibited the same degree of interest in the League of Nations that they now are mani festing in disarmament, the Nation would have held its place in the high esteem of the world; but the church, in large part, failed Chris tianity in the supremest test to which it has been put since the angels of heaven sang of Christ's advent and mission on earth. As I wrote a preacher friend of mine in Virginia the other day, the church is getting religion too late. Its awakening should have come when the greatest Christian statesman of all time summoned the na lions oi the earth to enter into a covenant winch contained the very essence of the Sermon on the Mount and was the consummation, as far as Christian nations could contrive, of the sacrifice on Calvary. Many churches were cold; they even ignored the startling defiance of the anti-leaguist who from his place in the senate said: "If the Saviour of mankind should revisit the earth and declare for a League of Nations I would oppose it." The churches passed vague resolu tions, and when election day came around divided on the issue and shattered the hopes of mankind. Not long ago a minister of the gos pel in Virginia was reported to have said the League of Nations fail ed "because it did not recognize uod in its text.. As it seems to me any man who cannot discover in the covenant a glorious response to the pleadings of a crucified Christ must have as little appreciation of the intent and as poor an understanding of the practical effort of this ed, upon the ground that since we ex pressed an adherence in our former opinion to the views stated in Stude baker Brothers Company of Utah vs. Witcher, et als. (No. 2399), we should have ordered' a modification of the judgment, as in that case. If such an order he necessary to protect appel lants, the granting of a rehearing is not essential to that end. Hence the peti tion is denied, with leave to apply with in ten days from service of a copy here of for a modification of the order. It is so ordered. COLEMAN, J. We concur: SANDERS. C. J. DUCKER, J. Filed Nov. 4, 1921. Wm. KENNETT, Clerk. 00 IN NO. 2498 THE SUPREME COURT THE STATE OF NEVADA OF GIOVANNI BOTTINI, Respondent. vs. LOUIS MONGOLO, JOHN GOTAL- LI, ANTONIO SEMENZA, DO MENICO DAPOLI, JOHN AVAN SINO, L. M. CHRISTIANSON, JOHN MURRAY, JAMES LYON, BENJAMIN BARBASH, LOUIS COHN, MARY SILVEY, now known as DORA SILVEY, and her Hus band, JOHN A. SILVA, MARTINUS JENSEN, FRITZ NIEBUHR, PAUL S. GREELEY. ALESIO CAPURRO, AUGUST and ANNA PETERSON, HERBERT FLEISCH ACKER, AG GIE HALL SCHEELINE, HARRY HALL SCHEELINE and AGGIE HALL SCHEELINE and HARRY HALL SCHEELINE, Joint Execu tors of the Estate of MORITZ SCHEELINE, Deceased, Appellants. wherein it is sought to point ont some error committed by the trial court. Prior to the time the right to do so had been cut off, nothing of that nature was done in this case. Our attention is directed to what is termed the discretionary language of the statute (R. L. 7209), providing that judgment of affirmance may be grant ed without argument if appellant fail to appear. There is nothing in said statute to sustain the petition for re hearing. Counsel for appellant obtain ed several extensions of time in which to file their brief. On the day the last extension was granted they appeared m open court and asked lor ten uas further time. They were granted five days, whereupon thev assured the court that the brief would be filed within the time allowed bv the court. They failed to comply with the assurance given the court: in fact, no brief had been filed twentv-three davs thereafter, when the state moved to affrm the judgment. We do not deem further considera tion of the petition necessary. We can not see that the court was not justified in the order heretofore entered in the case. The in part as follows : " article 4, of the constitution, which "An act done with intent to commit a j provides that each law enacted by the crime, and tending but failing to r.c- j 1 gislatrre shall embruce but one sub complish it, is an attempt to commit j ject ; th rd, that on an appeal from an ., . . r , . ' i -li .un. : z .u i crime; r.nd everv person wno at petition is denied. COLEMAN. J. We concur: SANDERS, C. J. DUCKER, 1. Filed Nov. 4, 1021. Wm. KENNETT, Clerk. " on NO. 2501 IN THE SUPREME COURT THE STATE OF NEVADA OF THE STATE dent. OF NEVADA, Respon vs. McCarran & Mashburn, Attorneys for Appellants. Huskey & Kuklinski, Attorneys for Re spondent. OPINION . By the Court, SANDERS, C. J.: This appeal is taken from an order of refusal of the trial judge to settle a proposed bill of exceptions prepared, served and filed after a motion for a new trial had been determined, and af ter an appeal from the judgment and order denying a new trial had been perfected. On the 12th day of May, 1921, this court made and caused to be entered its order dismissing the appeals taken from the judgment and order denying a new trial in this action. Bottini vs. Mon golo, et a!., 45 Nev., 197 Pac. 702. In passinc upon the motion to dismiss A. CERFOGLIO, Appellant. Frame, Morgan & Raffetto and Moore & Mcintosh, for Appellant L. B. Fowler, Attorney General; Rob ert Richards, Deputy Attorney Gen eral, and L. D. Summerfield, District Attorney, for Respondents. great Magna Charta of Christian faith as certain politicians had of s the appeals it became necessary for the The letter kills, the spirit ' the honor and good name of this Nation saves. ; ' How alarming it is to contemplate such a frightful reaction from exalted idealism to selfish materialism! The other day I sat in the senate listening to the discussion of the Berlin treaty, the unclean thing which, to adopt. Senator Lodge once prophetically said, "would brand us with everlasting dishonor and bring ruin to us also." 1 heard not a single word uttered by proponents or apologists that had reference to the duty or honor of this Nation not a syl lable. In entering the war Mr. Wilson had said: "We ask nothing for ourselves." These American senators were asking everything. They were for the last pound of flesh exacted for us from the enemy by the nations with which we were allied in the war; in the same breath and by their votes they were repudiating every moral obliga tion this country had contracted. The sole import of their speech was: How much can we get ' llow soon can we get it x llow may we obtain it without assuming any part of the expense, which our j'ormer associates alone must endure? Could sordidness surpass that? My country home in Virginia is but seven miles removed from the site of the improvised court room in which Patrick Henry held up to scorn the acquisitive Tory who disturbed the Continental camp with the cry of "Beef! Beef!" when the life of the country was im perilled. 1 on and I read of the episode in our youth. How little did I ever dream that I should live to see history repeat itself and to wit nses with my own eyes, here in Washington, the saddening spectacle of American senators bleating the cry of Johnny Hook when the very integrity of the republic was at stake! I have never examined the weird and mysterious dogma of the transmigration of the soul ; but one listening to the discussion of the separate treaty with Germany might readily profess the doctrine. Shakespeare in lago, even above Shyloek, personified his conception of unscrupulous thrift, and it seemed that the spirit of this Venetian knave had come down through the centuries and found furtive lodg ment in the minds of senatorial disputants. "Put monev in thv purse! Put money in thy purse!" was the high tenor of their song. Take no account of the Nation's faith; pause not to consider the Na tion s honor; think not of the distrust which must ensue from con tumely incurred. Put money in thy purse!" And by this specious and fallacious plea for a resumption of trade relations with two pros trate dismembered and impoverished Central European powers, gen tlemen of the adversary party were led up to Mr. Lodge's trough in the Republican camp to eat the provender which they had previously I ' " 1 . I . . I' . . . A 1 1 . . 1 . . . . - uenueu; io vote lor a treaty mey once ueiesteu; a treaty made in Germany," which greedily grabbed the advantages while repelling the obligations ot the treaty made in trance by our comrades in arms I do not discover the name of God in this Berlin treaty which confirms our shame. Rather is it not the devil's own work, which thus completes the degradation of a proud nation by substituting for an immortal document, every sentence responsive to the teachings of Christ, a pact literally reeking in avarice and textually rejecting the precepts of common honesty? In it both the letter and the spirit are absent. The American soldier caught the torch from the dead of Flan ders tields and carried it with valor against the barbarians; now American politicians use the oriflamme only to consume every high purpose which this Nation avowed, to blister every ideal for which our boys endured and died. Our sons of the American Legion who fought or trained to fight in France may execrate George Harvey for saying we entered the war to save our skins ; but it may not by any man be said that the sentiment of this accursed ambassador is not accepted and reflected in the separate treaty made with Wirth in Berlin by an agent of this administration and recently confirmed at Washington by the senate. It literally sickens to think of it. Were it not that God's mercy is without measure, one would have cause of despair. Supreme Court Decisions court to review and to consider the or der now appealed from. Our conclu sion upon the former appeals with ref erence to the order of refusal of the trial judge to settle the bill of excep tions was that appellants were not en titled, under the particular facts, to have their bill of exceptions settled It is conceded, or must be conceded, that no other or different question is presented for determination by this ap peal. The result is that our opinion upon the motion to dismiss the former appeals becomes the law of the case and is binding upon this appeal. Had counsel been dissatisfied with the reas oning and the conclusion reached they .should have petitioned for a rehearing. This they did not do. The objection. therefore, of respondent to the consid eration of this appeal must be sustain ed, and the appeal is dismissed. SANDERS, C. J. We concur : DUCKER. J. COLEMAN. T. Filed Nov. 4, 1921. Wm. KENNETT. Clerk. By ADELINA PAGNI, Deputy Clerk. NO. 2505 IN fil- 1N NO. 2400 THE SUPREME COURT THE STATE OF NEVADA OF STUDEBAKER BROTHERS COM PANY OF UTAH, a Corporation, Respondent. vs. A. B. WITCHER, A. JURICH, GEORGE A. McDONALD, and BARTLEY SMITHSON, Appellants. A. Jurich, for Appellants. Chandler & Quayle, for Respondent OPINION ON PETITION FOR RE HEARING By the Court. COLEMAN, J. A petition for rehearing has been fil- THE SUPREME COURT OF THE STATE OF NEVADA THE STATE OF NEVADA, Respond ent, vs. C. CECCHETTINI and A. MAT TE UCCI, Appellants. McCarran & Mashburn, for Appellants. Geo. J. Kenny, District Attorney (A. L. Haight, of counsel), for Respondent. OPINION ON PETITION FOR REHEARING By the Court, COLEMAN, J.: A petition for rehearing has been ed herein. It is first contended that no motion to dismiss was made. The exact fact is that notice of motion was served upon counsel for appellant, and at the time stated therein counsel for the state and for appellant appeared. No formal mo tion was made, but the matter was ar gued and submitted as though such a motion had been made. Such is the usual practice. The objection now urg ed does not go to the merits of the mat ter argued upon the hearing. Counsel cannot now contend that there was no motion, it tney had desired to urge this point, they should have done so at the time of the hearing. They did not do so, and cannot now complain of their oversight. They waived the point now made by failing to raise it upon the hearing and bv participating in the argument. (28 Cyc. 7, 9, 10.) It is said, also, that neither briefs nor points and authorities are necessary when the transcript of the entire trial is made the bill of exceptions. This is, indeed, a startling contention. What are attorneys for, if not to point out the " alleged errors of the trial court. This court, in State vs. Milosovich, 42 Nev. 273, held that it would not comb the record to ascertain the matter urged as reversible error. If we were right in the view then expressed, as we think we were, we know of no sound reason for now holding substantially to the contrary. It is contended, further, that our po sition, to the effect that the judgment should be affirmed for lack of appear ance, is not supported 1y the cases cit ed in our opinion, for the reason that "no appearance whatsoever was made by th appellant" in those cases, while appearance was made in the instant OPINION By the Court, COLEMAN. J.: Appellant was convicted upon a charge of perjury. Six grounds for re versal are urged one that the court erred in giving certain instructions, and the others based upon alleged erron eous rulings on objections to the admis sion of tendered evidence. Section 3. chap Zil. Mats, my, pp. 431-2. provides what shall constitute the record on appeal in a criminal case. Pursuant thereto, the onlv way by which the evidence in the case can be come a part ot the recora is to nave u incorporated in a duly settled lull ot exceptions. 1 here is no hill ot excep tions, hence there is nothing before the court for its consideration. True it is that the instructions complained of are i t r . a part ot the recora proper, out so iar as appears they may have been given at the request of appellant. In view of the tact that there is no bill of exceptions before us. we must presume that the in structions were applicable to the proof (State vs. Keith. 9 Nev. 10.) Further more, as stated in State vs. Willberg, 45 Nev. . 200 Pac. 475. no judgment will be reversed for a misdirection of the iurv, unless it appears, after an ex amination of the entire case, that the error complained of resulted in a mis carriage of justice. In the absence of hill ot exceptions, there can he no ex amination of the entire case. The judgment is affirmed. COLEMAN. T. We concur. SANDERS, C. T. DUCKER. 1. Filed Nov. 4. 1921. Wm. KENNETT, Clerk. NO. 2506 IN THE SUPREME THE STATE OF that tempts to commit a crime, unless other wise prescribed by statute, shall be punished as follows: ." The question presented for our deter mination is whether an information (or indictment) grounded upon section 6291, Revised Laws, which merely avers that the defendant did attempt to carnally and unlawfully know a designated fe male is so defective that no judgment could properly be rendered upon it. It is manifest that the offense of an at tempt to commit a crime as defined by the statute is composed of two ele ments : First, the intent to commit a crime; second, a direct act done toward its commission, and tending but failing to accomplish it. In the early case (1867) of State vs. Brannan, 3 Nev. 238, it was held that an indictment which merely states that the defendants did attempt to commit the crime of grand larceny was so de fective that no judgment could be ren dered upon it. In the case of State vs. Charley Lung, 21 Nev. 210. 28 Pac. 235, 37 A. S. R. 505. it was held that an indictment for an attempt at rape must aver the neces sary facts and elements of the offense with such particularity that the court may determine whether or not they constitute an offense. In the case of State vs. Pierpont, 38 Nev. 173. 147 Pac. 214, an indictment for an attempt at rape was upheld against an attack upon the ground that i it did not sufficiently charge an overt act toward tne commission oi tne oi- ense. in its opinion tne court quotes section 6291, Kev. uws, upon whicti the indictment was founded, and cites th approval, and in support of its conclusion, the case of Glover vs. Com monwealth. 86 Va. 382, 10 S. E. 420, and 33 Cyc. 1431. While there is some lit tle discord in the authorities, this court is committed to the rule that in a case of an attempt at rape an overt act to ward the commission of the offense COURT OF NEVADA THE STATE OF NEVADA, Respon dent, vs. G. R. DAWSON, Appellant. Frame, Morgan & Raffetto, Attorneys for Appellant. L. B. Fowler, Attorney General, Rob ert Richards, Deputy Attorney Gen eral, L. D. Summerfield, District At torney, Attorneys for Respondent. must be charged and proved. It is urged by counsel for the state hat. conceding the information to be defective in the respect pointed out, the sufficiency of the information not hav- ng been raised bv demurrer it cannot now be taken advantage of for the first time on appeal. If the defect be one of torm. upon reason and authority, we should hold with the prosecution on this proposition, but if such defect be one of substance upon and authority we must hold that it can be raised for the first time on appeal, and is not waived by a failure in the district court to make the point on demurrer. State vs. Trolson. 21 Nev. 419. 32 Pac. 930. In view of the authorities above cited. and the greater weight of authority in general, we are of the opinion that the failure of the information before us to aver any overt act toward the commis sion of the offense charged is a defect of substance and not of form. Hogan vs. State, 51 Fla. 86. 39 So. 464. 7 Ann. Cas. 139; Williams vs. State, 10 Okla, Cr. 336, 136 Pac. 599; Bond vs. State. (Okla. Cr.) 152 Pac. 809; Glover vs. Commonwealth, s-upra. It is finally insisted by the state that since the statute in express terms desig nates the elements of the offense, and the information charges the offense in the words of the statute, it is sufficient. But the information does not charge the offense in the language of the stat ute, defining the offense of an attempt to commit a crime. It merely alleges the statutory designation of such an of- tense. to-wit, attempt to carnally know, which m our opinion, even un er the most liberal construction litains under our law. is not to advise the delendant ot the accu tion against him. The judgment is reversed. SANDERS, C. J We concur : DUCKER. I. COLEMAN, J. Piled Nov. 4. 1921. Wm. KENNETT, Clerk By ADELINA PAGXI, Deputy. order aw tnat :s required ot tne appel lant is to furnish this court with cop ies of the notice of appeal, the order appealed from, and the papers used on the hearing of the order in the court below, certified by the clerk to be cor rect. Since counsel for appellants, by their first and second positions, concede and admit that appellants have ignored and made no effort whatever to comply with the requirements of the act of 1915, with respect to the preparation, service and filing of bills of exception after en try of the order, it is unnecessary for us to consider and discuss whether or not the requirements ot tne act ot iyi: concerning bills of exception is manda tory or directory, or whether or not it is violative of section 17, article 4, ot the constitution. Passing, then, to a consideration of the third position, without a further statement of it, it is conceded that the application for a new trial was made upon the insufficiency of the evidence to justify the decision, that it is against law, and for errors in law oc curring at the trial and excepted to by the defendants. (Rev. Laws, sec. 5320.) There is appended to the transcript on appeal the certificate of the clerk, which recites that the transcript, from page 1 to 750, is and contains full, true and correct copies of the pleadings, or ders, documentary evidence, and a copy of the stenographic report of the testi mony and the record of the proceed ings on the trial all declared by the certificate of the clerk to have been presented to, used and referred to by the trial judge in passing upon the mo tion. It is provided in section 5321, Revis ed Laws, that when the application for a new trial is made upon sub-divisions 1, 2, 3 or 4 of section 5320, it must be supported by affidavit. In all other cases it must be made upon the minutes of the court without statement or bill of exceptions. The trial court is ex pressly privileged by the provisions contained, in section 5321. in passing upon an application made upon the minutes of the court, to refer to the pleadings and orders of the court; and, also, reference may be bad to the depo sitions, documentary evidence, steno graphic notes or report of the testi mony and the records of the court. Section 414 of the Civil Practice Act provides, among other things, that on an appeal from an order, the appellant shall furnish the court with a copy of the notice of appeal, the order appealed from, and a copy of the papers used on the hearing in the court below, and a statement if there be one, such copies to be certified by the clerk of the court to be correct. It is the contention of counsel for ap pellants that no statement or bill of ex ceptions. is now required in order tnat the lower court may decide a motion for a new trial, and that the appellants having furnished this court with copies IN NO. 2508 THE SUPREME COURT THE STATE OF NEVADA OF case. Prior to service of motion to dis-J miss, the only appearance in this case was to ask for further time. This is not an appearance such as is contem plated by the statute. The appearance contemplated by the statute is one OPINION Bv the Court, SANDERS, C. T.: Appellant was charged, tried and convicted upon the following informa tion : L. D. Summerfield, district attorney within and for the county of Washoe, state of Nevada, in the name and by the authority of the sate of Nevada, in forms the above entitled court that G. R. Dawson, the defendant above named has committed a felony, to-wit: At tempted rape, in the manner following: That said defendant on the 19th day of September, A. D. 1920, or there abouts, and before the filing of this in formation, at and within the county of Washoe, state of Nevada, did, then and there, he. the said defendant, being then and there a male person over the age of sixteen years, wilfully, unlawfully, and feloniously, attempt to have carnal knowledge of a female child, to-wit. one Mabelle Lockridge, said female child then and there being under the age of eighteen years, to-wit, of the age of ten years; ." From the judgment of imprisonment in the state prison for the term of not less than three years nor more than twenty years, and also from an order denying to him a new trial, the appel lant appeals. The assignment of error relied upon for the reversal of the judgment is stated as follows : "The court erred in rendering judg ment against the defendant for the reas on that the intormation did not state facts sufficient to constitute a public offense, and particularly, that of an at tempt to commit rape, and the court, therefore, was without jurisdiction to enter judgment and pronounce sentence in said cause." Any person of the age of sixteen , years or upwards who shall have carnal MEXICAN DAM & DITCH COM PANY, a Corporation, Respondent, vs. JOSEPH SCHULTZ, ANTONE SCHULTZ, and J. R. SCHULTZ, (doing business under the firm name j of Schultz Brothers), Appellants. H. V. Morehouse and Wm. McKnight, for Appellants. W. M. Kearney and W. E. Baldy, for Respondent. knowledge of any female child under the age of eighteen years, either with or without her consent, shall be adjudg ed guilty of the crime of rape. Stats. iyi9. p. 439. OPINION By the Court. SANDERS, C. J.: This is an appeal from an order deny ing to the defendants, Schultz Broth ers, a new trial in an action brought : against them by the Mexican Dam & Ditch Company in the district court of Ormsby county. j As the case comes to us upon the mo tions of the ditch company to dismiss the appeal and to strike from the files appellants' assignments of errors, it would serve no useful purpose to make a statement of the several issues raised by the voluminous pleadings. The motions to dismiss the appeal and to strike the purported assignments of errors are that the transcript on ap peal contains no bill of exceptions, in cluding errors based upon any ground urged for a new trial as required by the Civil Practice Act, as amended bv the statute of 1915 (Stats. 1915. p. 164. 3 Rev. Laws, p. 3342) ; that the purported assignments of errors are not based upon any bills of exceptions, and that said assignments are not in coniormity with the requirements of said act as amended with respect to assignments of error. (Stats. 1919, p. 55.) The answer of appellants to the mo tion to dismiss is, first, that the statute of 1915 is merely an optional method of appeal from an order denying a mo tion for a new trial, which may or not be followed in bringing up the record on appeal from such order; second, that the statute of 1915, with respect to ap peals from orders granting or overrul ing motions for new trial, is useless of the papers used on the hearing of the, motion, certified by the clerk to be cor- rect. the appeal from the order must 1e considered upon its merits, and cannot be dismissed. If we clearly interpret the position of counsel, it is their conten tion that when the papers used on the motion are certified, as directed by sec tion 414, and the trial court is privi leged to refer to the pleadings, records, documentary evidence and stenographic report of the testimony, these papers can be used in the Supreme Court upon the certification of the clerk, without being embodied in a statement on ap peal or bill of exceptions. Prior to the that I supplementary and amendatory act of sufficient ! 191a. and subsequent to the adaption ot the practice act approved March I. Wll. the court, in the case of Ward vs. Pitu'.urg Silver Peak G. M. Company. 39 Nev. '80, 148 Pac. 345, 153 Pac. 434. I ruled adversely to the contention of ap pellants, and expressly held that upon an appeal from an order denying a mo tion for a new trial, when the trans cript on appeal contains no statement and no bill of exceptions, there is noth ing before this court for review. This conclusion is but a reaffirmance of the rule stated in the case of The State vs. The Eberhart Co., 6 Nev. 186. which de clares that where the transcript con tains no settled or agreed statement, either on motion for new trial or on ap peal, nor any bill of exceptions, there is nothing which can be reviewed.. This rule is based upon the repeated hold ings of this court, that in the abscne'e of a statement on appeal or bill of ex ceptions the court is confined to a cou sideration of the judgment roll alor.eTT As the appeal in this case is taken from the order, there is no judgment roll to be considered. In the case of Smith vs. Wells Es tate Co., 29 Nev. 414, 91 Pac. 315. it is pointed out that the practice act dis tinguishes between the methods of cer tification of statements and of trans cripts on appeal. Without going into the question ot whether or not the copies of the papers purporting to have been used on the I hearing of the motion are properly ' authenticated, so as to entitle them to be considered as a part of the record on appeal, we are of the opinion that from the beginning of our judicial his tory the rule of practice has been as above stated in The State vs. The Eber hart Co.. supra, and in Irwin vs. Sam son. 10 Nev. 282. The failure of appellants to bring up the errors based upon any ground for new trial by a statement or bill of ex ceptions has deprived them of the right to have their case considered upon its merits. This is to be regretted. As lias been frequently stated, it is always a source of regret to a court to decide a point of practice so a to affect sub stantial rights, but when the point is made the only thing for the court to do is to adhere to the law. The order denying to the defendants a new trial is affirmed. SANDERS, C. J. We concur: DUCKFR. J. COLEMAN. J. fc Filed November 5. 1921. M Wm. KENNETT, Clerk. Section 6291, Revised Laws, provides legislation and violative of section 17, See bridge. LUMBER FOR SALE C. Jensen at Credelbaugh's n4-t!