merit in this contention. If the facts were different, then the question could be raised either by motion, or by objection to evidence during the trial, but not by demurrer. The record fails to show that any motion for an itemized bill was made, or that objections were made or exceptions taken to the admission of evidence on that ground, and, even if the facts alleged disclosed the two classes of items, still the question would not be prop erly before us, and for that reason could not be here considered.

The second ground of demurrer is that there is a defect in the party plaintiff. This, as a statutory ground, goes to the nonjoinder of necessary parties as plaintiffs. Powers

et al. v. Bumeratz, 12 Ohio St. 273, 293. All those whose interests are in common with those of plaintiff in the subject-matter of the suit should be joined as plaintiffs, unless upon a refusal to join as such they may upon appropriate averments be made defendants. A failure to do either, where the defect is apparent, would render a petition demurrable on this ground. The wording of the demurrer, together with the specification of the particular defect and the argument of the counsel, indicate that the objection is rather upon the ground that the action is not brought in the name of the real party in interest. Having already held in another part of this opinion that Burgess had an interest, and that neither the state nor the county had any interest in the subject-matter of the injunction suit, it follows that they were not necessary parties to the action on the bond.

That the plaintiff has no capacity to sue is not, strictly speaking, a ground for demurrer under our statute. The word "legal," as qualifying "capacity," is omitted by the pleader, and it is only when the plaintiff has no legal capacity to sue that a demurrer will lie for that cause. Section 3535, Rev. St. 1899. The words "legal capacity to sue," in the sense used in the statute, have a welldefined meaning. They are directed to the legal disabilities of the plaintiff, and the facts showing such legal disabilities are independent of the cause of action. In Brown, Ex'r, et al. v. Critchell et al., 110 Ind. 31, 7 N. E. 888, it is said: "The want of legal capacity to sue, as a canse for demurrer, has reference to plaintiffs under legal disabilities, and not to a case where the facts alleged show that the plaintiff has no right to sue in that particular case. In such case the assignment should be that the complaint does not state facts sufficient to constitute a cause of action." It was so held in Weidner v. Rankin et al., 26 Ohio St. 522, and Buckingham v. Buckingham, 36 Ohio St. 69. It is said in Stang et al. v. Newberger et al., 6 Ohio N. P. 60, 8 S. & C. P. Dec. 80, that "a dictum in Saxton v. Seiberling, 48 Ohio St. 559. 29 N. E. 179, tends somewhat in ar opposite direction, but it was unnecessary to a determination of the case, and is inconsistent with the decision in Weidner et al.

v. Rankin et al., supra, which was seemingly overlooked by the judge rendering the opinion." It does not appear upon the face of the petition, even if the demurrer be held sufficiently specific, that the plaintiff is under any legal disability, such as infancy, want of authority, or any personal disability, to maintain the action. It is to these matters that a demurrer upon this ground is directed. Farrell v. Cook, 16 Neb. 483, 20 N. W. 720, 49 Am. Rep. 721; Bliss, Code Pl. (2d Ed.) §§ 407-109; Haskins v. Olcott, 13 Ohio St. 210; Smith v. Sewing Machine Co., 26 Ohio St. 562; Dale et al. v. Thomas et al., 67 Ind. 570; Debolt v. Carter, 31 Ind. 355.

Our conclusion is that the demurrer was properly overruled on each and every ground. The judgment will be affirmed. Affirmed.

POTTER, C. J., and BEARD, J., concur.

(15 Wyo. 368)

PARDEE v. KUSTER et al. (Supreme Court of Wyoming. Oct. 7, 1907.) 1. WRIT OF ERROR-EXCEPTIONS-REVIEW.

Under Rev. St. 1899, § 3744, providing that no exception shall be regarded unless it is prejudicial to the substantial rights of the party excepting, an exception will not be considered unless it is material to a substantial right.

[Ed. Note. For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 612.] 2. SAME.

A party failing to show by his petition a cause of action in his favor against defendant fails to show a substantial right, and his exceptions will be disregarded.

3. PLEADING — ALLEGATIONS NESS.

CONCLUSIVE

A party is bound by the allegations of his petition. [Ed. Note. For cases in point, see Cent. Dig. vol. 39, Pleading, $$ 81-86.]

4. SAME-DEFECTS-AIDER BY VERDICT.

A petition, affirmatively showing that no allegation of an existing fact can be brought into it by amendment, and thereby perfected so that it will support a judgment, can neither be cured by answer, verdict, or judgment.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 1443, 1451.]

5. WRIT OF ERROR-REVIEW-HARMLESS ERROR-PLEADING.

Where the judgment is for defendant, the overruling of his demurrer to the petition is not available to him.

[Ed. Note.-For cases in point. see Cent. Dig. vol. 3. Appeal and Error, § 4105.]

6. SAME-BURDEN OF SHOWING ERror.

Under Rev. St. 1899, § 3744, declaring that no exception shall be regarded unless it is material, and section 4249, providing that a judgment may be reversed or modified for errors appearing on the record, a plaintiff in error has the burden of showing prejudicial error on the record.

[Ed. Note.-For cases in point. see Cent. Dig. vol. 3, Appeal and Error, §§ 2670, 4047.] 7. SAME-RECORD-PLEADINGS.

Under Laws 1901, p. 5, c. 3, § 1, providing that plaintiff in error shall file with his petition an application for an order directing the clerk of the district court to transmit to

the Supreme Court all original papers, etc., the pleadings may constitute a part of the record of the case.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 2342.]

8. SAME-CROSS-ERRORS-NECESSITY.

Where no affirmative relief is sought, defendant in error may, without assigning crosserror, show that the statement of the facts as set forth in the petition constitutes no cause of action, and that errors in the admission of evidence were harmless.

SCOTT, J. The plaintiff in error has filed her petition for a rehearing, upon the ground that the defendants in error filed no crossassignment of error to the overruling of their demurrer to the petition. It is urged that, in the absence of such cross-assignment, the question of the sufficiency of the petition was not before the court. Taking that view, she subinitted no oral argument thereon, nor did she refer to this question in her brief. The defendants in error called this court's attention to the question and devoted a considerable part of their brief to its discussion.

The case is analogous to Fell v. Muller, 78 Ind. 507, in which it was said: "The real question for discussion in this case is: Did the appellant's complaint state a cause of action in their favor against the appellee? If it did not state a valid or sufficient cause of action against the appellee, and we think It did not, then it is clear that the appellants were not harmed by any of the rulings of the trial court adverse to them, and the judgment below must be affirmed." In that case there was no assignment of cross-error, and the decision turned on the provisions of the Civil Code of that state to the effect that no judgment shall be reversed by reason of any error or defect in the proceedings which does not affect the substantial rights of the adverse party. Section 3744, Rev. St. Wyo. 1899, is as follows: "No exception shall be regarded unless it is material and prejudicial to the substantial rights of the party excepting." In order that the exception may be considered, it must be material to a substantial right. It is just as essential to show a substantial right either by the pleadings or the record as it is to preserve the exception. A failure to do either would furnish no basis for a review of an alleged error. That there is no substantial right upon the whole case may appear from the allegations of the petition, though, where there has been a trial, it is not generally so, and in most cases that question involves an examination of the entire record. If the party complaining shows by his petition that no valid cause of action exists in his favor against the defendant, then he has failed to show a substantial right, and in such case any and all of his exceptions should be disregarded be cause harmless. It will be observed that the petition was not defective by reason of the

absence of averment or want of allegation of an existing fact. The execution of the deed, its terms, the time and the purpose for which it was executed, are alleged, and, taken in connection with the other allegations, clearly set forth the claim of the plaintiff. She was bound by the allegations of her petition, and nowhere, either in the record or by suggestion in the argument, does it appear, nor are we able to discover, that any amendment could be made. The defect goes to the question as to whether she has any cause of action, or right to recover, upon a full and complete statement of all the facts. The error is fundamental, in that it affirmatively appears that no allegation of an existing fact can be brought into the petition by way of amendment, and thereby perfect it so that it would support a judgment in her favor. The error is not in failing to plead all the facts, but rested in an attempt to predicate a right of recovery upon a complete statement of facts when no such right exists. It is not the defective statement of a cause of action, but a showing of no cause of action. Such a petition can neither be cured by answer, verdict, or judgment. Gittings v. Baker, 2 Ohio St. 21. This case is distinguishable from the Indiana cases (Anderson, etc., Ass'n v. Thompson, 88 Ind. 405; Farmer's Bank v. Orr, 25 Ind. App. 71, 89)1 cited by plaintiff in error in support of her petition. In those cases the defect did not consist in the absence of any cause of action, but did consist in the omission of a material averment in the allegations of an existing cause of action. The theory of those cases is that, by failing to demur or to assign crosserror, the pleading was treated by the parties as being complete, and it was presumed that evidence was submitted and heard and findings made upon issues necessary to support a judgment, even though there may have been an absence of averment of some material fact. Sections 471, 720, Elliott App. Proc.

The defendants in error asked no affirmative relief. They had obtained a judgment in the court below with which they were satisfied. They sought neither to vacate nor modify it, and did not assign the ruling on the demurrer as error prejudicial to them or at all. The finding and judgment being in their favor, the overruling of the demurrer was not available to them. Blessing v. Blair, 45 Ind. 546; Rogers v. State, 99 Ind. 218; Reddick v. Keesling, 129 Ind. 128, 28 N. E. 316; Allen v. Berndt, 133 Ind. 355, 32 N. E 1127; Thrash v. Starbuck, 145 Ind. 673, 44 N. E. 543; Levi v. Allen, 15 Ind. App. 38, 43 N. E. 571. Nor was the decision based upon the exception to such ruling. The presumption of the correctness of the judgment was necessarily against the contention of the plaintiff in error, and the burden was on her, not only to show error upon the record (section 4249, Rev. St. 1899), but that the error complained of was material and prejudicial to

55 N. E. 35.

her substantial rights (section 3744, Rev. St. 1899). In this jurisdiction a defendant in error has always been accorded the right, without assigning cross-error, to direct our attention to different parts of the record presented for review to show that an alleged error was not prejudicial. Al! parts of the record so presented are accessible to the defendant in error for that purpose. When the complete record is before the court, as it was in this case, the justice of the rule is apparent. It is not within the power of the plaintiff in error to open the record at certain places to sustain his contention, and close the balance to the defendant in error. The entire record was in the court for the benefit of the parties and the court. The pleadings constituted a part of the record of the case. Section 1, c. 3. p. 5, Sp. Laws 1901. If the erroneous admission of evidence may be shown to be without prejudice by consulting other parts of the bill, we see no reason why it could not also be shown by consulting the pleadings, for the latter are as much a part of the record as is the bill. The materiality of the evidence is determined by the issues, and, when the petition affirmative ly shows the nonexistence of any legal cause of action, there can be no issues of fact and no right of recovery. Hence the admission or rejection of any evidence would be harmless to the plaintiff. She had no standing in court, and is therefore not in a position to allege or urge prejudicial error. When no affirmative relief is sought, the defendant in error is not precluded from showing from the record the nonprejudicial character of the error complained of, and we hold that this rule is sufficiently broad to enable him, without assigning cross-error, to urge that a full and complete statement of the facts as appears in the petition in this case constitutes an affirmative showing of no cause of action or right of recovery in the plaintiff, and that it would not for that reason support a judg ment in her favor. It should be remembered that what is here stated and what we said in the opinion filed is directed and applies to the kind of a petition involved in this case, and we here express no opinion as to one which is defective merely by reason of the absence of averment.

The plaintiff in error has presented a brief upon her contention as to the construction which should be placed upon the documents construed together as the last will of the testator. We discussed the question in the opinion filed, and, after considering the authorities cited in her brief, we find nothing in conflict with that opinion. We are still of the opinion that the reference in the codicil is not merely by date, but by other words which clearly indicate that it was the document executed on May 18, 1903, by itself. which was within the contemplation of the testator. McLeod v. McNabb, App. Cas. (1891). It may be conceded that when A.

devises to B., and over to C., the latter, upon the accrual of his right, takes all of the property which B. would have taken under the will. By the codici! the testator substituted Reinsberg as devisce in case of his son's death. It was evidently the intention of the testator to provide that the devise of his property as contained in his will should not lapse, and, as relating back and showing the extent of that devise, the language used in the codicil is material. It is from the context of the will and the codicil thereto that this question must be determined. It will be noticed that the codicil does not merely confirm the former devise, and say that, in the event of the death of the primary devisee, then the property devised to the latter shall go to Reinsberg; but it goes further and designates the property devised over. It says that in that event all the real and personal property owned by testator at the time of his death shall go to Reinsberg, his heirs and assigns forever, unconditionally and without reserve. It is unreasonable, in the face of this language, which discloses the evident purpose of testator to prevent a lapse of the previous devise to his son, to say that such previous devise was less in its scope than the devise over. The language of the codicil as a whole shows that the testator must in confirming the provisions of his will have intended his confirmation of the devise to his son to be equally as broad as the devise over to Reinsberg. If title to the property described in the deed vested in petitioner, then no contingent interest therein vested at the same time in Reinsberg upon the death of the testator. The latter's title was to accrue and vest upon a contingency disassociated with and antagonistic to the idea of the ownership of the property ever having passed to plaintiff in error. The title by devise to the property in controversy never vested in Reinsberg, nor could it, except upon the hypothesis that the testator contemplated, and by his codicil confirmed and ratified by itself, the document which was executed on May 18, 1903. This intention of the testator is apparent and clearly appears from the codicil. It is not a case of latent ambiguity calling for parol testimony, nor is it so contended, and the question was one of construction to be determined and ascertained from the words and language used by the testator in these documents. Sections 956, 1025, cols. 1048, 1135, vol. 49 Cent. Dig. The later codicil operated as a complete revocation of the former devise of the same property to the plaintiff in error. regardless of whether the testamentary deed be construed as a codicil or treated as a will by itself. 1 Jarman on Wills, 171, 173: Rood on Wills, § 336, and cases cited in support of the text; 1 Redfield on Wills, 350, 351, and cases there cited.

It does not appear that the conclusions reached in the opinion tiled are in any wise

Rehearing denied.

POTTER, C. J., and BEARD, J., concur.

(47 Wash. 301)

ed by the failure to sound the whistle or ring the bell; but, if we concede that there was sufficient evidence of negligence on the part of the appellant to carry the case to the jury, yet we think the evidence discloses a clear case of contributory negligence on the part of the respondent, under the rulings of this

Limited.

(Supreme Court of Washington. Oct. 10, 1907.) STREET RAILROADS - INJURY ΤΟ PERSONS DRIVING ACROSS TRACK CONTRIBUTORY NEGLIGENCE.

Where the driver of a wagon saw electric cars approaching a block away on the street he was about to cross, and did not wait until they passed, nor pay the slightest attention to their movement. he was guilty of contributory negligence, barring recovery for injury received in collision with the cars.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 44, Street Railroads. §§ 210-216.]

Appeal from Superior Court, Spokane County; W. A. Huneke, Judge.

Action by Phillip Davis against the Coeur d'Alene & Spokane Railway Company. From a judgment for plaintiff, defendant appeals. Reversed, with direction to dismiss.

Belden & Losey, for appellant. Samuel R. Stern, for respondent.

RUDKIN, J. This action was brought to recover damages for injuries to person and property resulting from a collision between the electric cars operated by the defendant company and the plaintiff's express wagon at the intersection of Browne street and Main avenue, in the city of Spokane. The plaintiff had judgment for the sum of $270.83. and the defendant appeals.

The material facts are these: On the morning of March 29, 1906, the respondent came out of the alley into Browne street near Main avenue driving an express wagon loaded with empty bottles. As he proceeded along Browne street to its intersection with Main avenue, he saw the electric cars operated by appellant coming towards him on Main avenue, about a block distant. Without giving further attention to the approaching cars. he proceeded to cross Main avenue, and as he did so the cars struck the rear of the wagon, causing more or less damage to the vehicle and injury to the person of respondent, for which a recovery was sought in this action. Two grounds of negligence were charged in the complaint: First. that the cars were running at a speed of more than 8 miles per hour, in violation of the ordinances of the city of Spokane: and, second, failure to sound the whistle or ring the bell.

The only testimony offered in support of the first ground of negligence was that of a small boy 13 wears of age, who testified that the cars were running about "S. or 10 or 12 miles an hour. somewhere along there." Inasmuch as the respondent saw the approaching cars and knew of their presence, it is

or less away, he did not stop until the cars passed, he did not increase his own speed to avoid a collision, nor did he pay the slightest attention to the movement of the cars. In Criss v. Seattle Electric Co., 38 Wash. 320, 80 Pac. 525, the plaintiff saw a street car approaching at about the same distance, and proceeded to drive his team across the track in about the same manner. In Coats v. Seattle Electric Company, 39 Wash. 386, 81 Pac. 830, the plaintiff saw a car approaching from the rear, while driving along the track of the railway company, and proceeded to cross the track without giving further heed to the approaching car. In each case this court held that the contributory negligence of the plaintiff barred a recovery, and even a greater lack of care and caution on the part of the respondent is disclosed by this record.

The judgment is therefore reversed, with directions to dismiss the action.

HADLEY, C. J.. and CROW, DUNBAR, ROOT, and MOUNT, JJ.

(19 Okl. 55)

SPARKS v. OKLAHOMA CONST. CO. (Supreme Court of Oklahoma.

1. BILLS AND NOTES-ACTION PUBLIC POLICY.

Sept. 4, 1907.)

PLEADING ·

A petition, praying for judgment upon a promissory note, containing a provision showing that it was executed in consideration of the benefits arising to the maker by reason of the construction of a railroad from a given place to another place named, by a time stated, and which is made payable to a construction company, without naming the railroad to be built, or any railroad company as an interested party, does not present such a question of public policy as to make such petition demurrable upon that ground.

2. SAME-ANSWER-BURDEN OF PROOF.

Where, in an action upon a promissory note, which sets forth as the consideration thereof the construction of a railroad to a given point by a given time, an answer is filed setting up a distinct contract providing for the conveyance of real estate as the consideration for the execution and delivery of said note, and where the reply to such answer denies under oath the execution and delivery of such contract. the burden of proving the execution and delivery thereof is upon the defendant, and a failure to prove the execution and delivery of such contract precludes its being received in evidence, and is a failure of that ground of defense. [Ed. Note.-For cases in point, see Cent. Dig. vol. 7. Bills and Notes, §§ 1653-1654.] (Syllabus by the Court.)

Error from District Court. Woods County; before Justice J. L. Pancoast.

Action by the Oklahoma Construction Company against J. W. Sparks. Judgment for plaintiff. Defendant brings error. Affirmed.

Snoddy & Son, for plaintiff in error. Dale & Bierer, for defendant in error.

GILLETTE, J. This action was begun in the district court of Woods county June 30, 1904, by defendant in error to recover from the plaintiff in error upon two promissory notes aggregating the sum of $100, the first of which is Exhibit A to the petition, and reads as follows: "No. 140. $25.00. Enid, O. T., April 13, 1901. On or before September 1, 1901, for value received, I promise to pay to the Oklahoma Construction Company, or order, the sum of $25.00, with interest from maturity at the rate of ten per cent. per annum. This note is made in consideration of the benefits accruing to me from the construction and operation of a railroad from the town of Blackwell, O. T., to and into the town of located upon the quarter of section 32, in township 21 north, of range 9 W. I. M., and the erection of a depot and yard facilities thereat. Now, if said railroad is built and in operation on or before the first day of August, 1901, this note shall be in full force and effect; but, if said railroad is built as above provided, this note shall be null and void. And to secure the payment hereof I hereby give and grant to the Oklahoma Construction Company, or its assigns, a lien upon an undivided interest to one red and white cow, 8 years old, now situated upon the southeast quarter of section 34, town 21, range 9 W. I. M., equal to bushels of

J.

W. Sparks. In presence of C. C. Arel." The second note for $75 was of like tenor and effect, dated at Enid, Okl., May 6, 1901, and designated the town of Hoyle, located upon the S. W. 14 of section 32, town 21 N., of range 9 W. I. M., as the point to which said road was to be built by August 1, 1901. The answer, filed after a demurrer to the petition had been overruled, was first a general denial of the allegations of the petition, except such allegations as were expressly admitted, but denied that the railroad was built and in operation as required by the terms of the note, and alleged that there was no depot erected or yard facilities provided on said quarter section of land the 1st day of August, 1901. The defendant, further answering, stated that the notes were based upon an illegal agreement and contract, in that, in addition to the location of the depot and yard facilities at the point mentioned, there was an agreement by which the plaintiff agreed to deliver to the defendant deeds conveying three lots in Ames, Woods county, Ok.. which were to be determined by lot or drawing therefor, which agreement was as follows: "Enid, O. T., 4/26, 1901.

In consideration of the execution and delivery of a certain promissory note made by J. W. Sparks and payable September 1, 1901, to the Oklahoma Construction Company, or order, and conditioned for the construction. of a certain line of railroad mentioned in the written condition to said promissory note annexed, said Oklahoma Construction Company hereby certifies that said J. W. Sparks is entitled to receive a good and sufficient deed of conveyance to three lots in the town of Ames, Woods county, Oklahoma, conveying to said J. W. Sparks good title to such lot free and clear of all lien or incumbrance, the location of said lot in said town to be determined by lot or drawing therefor, between all parties entitled thereto. And said Oklahoma Construction Company hereby guarantee the due execution and delivery of such deed of conveyance upon the determination by lot as aforesaid, and the payment of said promissory note. The Oklahoma Construction Company, By T. S. Chambers, Its Agent." A second contract of like tenor and effect was executed and delivered May 31, 1901, for one lot. The answer further alleged that there was more than 1,000 lots in the town of Ames of the value of from $1 to $300, and that defendant had demanded before suit was brought a deed conveying a lot in the town of Ames, which was refused. The defendant, for a further defense, declared the plaintiff to be the owner of the land platted as a town site, and through its officers informed the defendant that, unless it could sell 400 lots in said town site, no depot or yard facilities would be located there, and the defendant, being desirous of having such depot and yard facilities there, executed and delivered to the plaintiff said notes, for which he was to receive four lots in consideration of his notes. and which had never been tendered or offered to him, and conveyance of the same had been refused. In reply, the plaintiff denied the allegations of the defendant's answer which in any way denied the plaintiff's right of recovery, and, for a further reply, denied the authority of T. S. Chambers, as agent of the plaintiff, to make and deliver on behalf of the plaintiff the contract to convey lots, and denied that Chambers was an agent of the plaintiff, which denial was verified by the president of the plaintiff. Upon the issue so framed the case was tried June 1, 1905.

The first assignment of error presented by the brief of plaintiff in error is the overruling, by the trial court, of the demurrer to the petition and objections to the introduction of testimony, citing, in support of such contention, Enid Right of Way & Town Site Co. v. Lyle, 15 Okl. 318, 82 Pac. 810, McGuffin v. Coyle & Guss, 16 Okl. 648, 85 Pac. 954. 86 Pac. 962, 6 L. R. A. (N. S.) 524, and Piper v. Choctaw Northern Town Site & Improvement Co., 16 Okl. 436, 85 Pac. 965.