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Sec. 52-265. Action of Supreme Court on appeals and writs of error. Costs.

      Sec. 52-265. Action of Supreme Court on appeals and writs of error. Costs. (a) On an appeal or writ of error, if the Supreme Court finds errors in the rulings or decision of the court below or of a judge thereof when the jurisdiction of any action or proceeding is or shall be vested in him, and unless it is of the opinion that the errors have not materially injured the appellant or plaintiff in error, it may: (1) Render judgment in favor of the appellant or plaintiff in error, together with his costs, or (2) may remand the action to the court below or to a judge thereof having jurisdiction, to be proceeded with by the court or judge to final judgment. If an action is remanded, the whole costs, except the costs on the writ of error or appeal, shall be taxed in favor of the prevailing party, and the costs in the Supreme Court shall be taxed in favor of the plaintiff in error or appellant.

      (b) If the judgment is affirmed, or the appellant or plaintiff in error suffers a nonsuit or withdraws the action, costs shall be taxed in favor of the defendant in error or appellee; provided the fee to the prevailing party and that for printing briefs shall be in the discretion of the court, upon the reservation of a cause for its advice, or when a new trial is granted, and all costs shall be taxed at its discretion in cases brought for equitable relief.

      (1949 Rev., S. 8006; P.A. 82-160, S. 137.)

      History: P.A. 82-160 rephrased the section and inserted Subsec. and Subdiv. indicators.

      Procedure. Court need not consider points not argued. 77 C. 528. Precedence in hearing case applies only among cases from same county. 72 C. 444. Action where brief contains scandalous matter. 73 C. 721; 75 C. 302; 82 C. 442. Only one attorney on a side should make opening argument. 79 C. 499. A charge is tested by the finding, not by the evidence. 147 C. 171; 296; 311. Appellant must show that error was made and that it was probably harmful. Id. Controversial issues of fact are solely within the province of the trial court to decide. Id., 492. Conclusions must be tested by the subordinate facts in the findings. Id., 677. When report of a referee reassessing damages may be overturned; correct procedure for attacking findings contained in such report. Id., 685. When court may direct a verdict. Id., 699. No material corrections in finding can be made on appeal if an appendix of the necessary evidence is not filed with the brief. 148 C. 21. Court does not examine transcript of testimony in search of evidence which supports a requested finding trial court refused to make. 151 C. 204. Brief must be supported by appendix. Id. Court cannot retry facts or pass on credibility of witnesses. Id., 445. Appeal on denial to set aside verdict not proper way to attack alleged variance in criminal action. Defendant should have made timely objection to evidence offered at trial. Id., 453. Where no finding, court is limited in review to facts which appear on record. Id., 709.

      Procedure; parties. Notice to state's attorney where trust for hospital was involved and it did not appear. 64 C. 321. Appeal by receiver from order claimed to be void; 69 C. 709; but he cannot appeal from order removing him. 70 C. 479. Where judgment assigned is vacated by appeal, assignor proper party. 71 C. 613. In divorce action, court regards interests of parties not appearing. 78 C. 242. Right of taxpayer to appeal in suit against city. 81 C. 235. In tort action, where some defendants appeal, others may be heard. 73 C. 428; 67 C. 256; 75 C. 605. Right of bankrupt to appeal in action begun before bankruptcy by attachment where conveyance is alleged to be fraudulent. 74 C. 616. Nonjoinder of party waived by argument on merits; 75 C. 605; and court may overlook nonjoinder of parties whose interests will not be affected. 67 C. 14; 80 C. 460. Parties where appellee dies pending appeal. 82 C. 208. District attorney of the United States heard where question was constitutionality of federal statute. 82 C. 374. In will case, though necessary parties not present, court may act, if decision is favorable to them; 67 C. 14; or if decision affecting parties present will probably determine case; 71 C. 222; or if only one decision is possible, or rights of nonappearing parties will not be prejudiced; 83 C. 655; so where necessary parties are not present, court may decide issue, and remand case for lower court to summon them in; 87 C. 677; 88 C. 86; executors personally interested should so appear, but court may overlook defect; 72 C. 256; but when all parties interested appear, court will not hear executor. 79 C. 362. Ordinarily, if necessary parties not present, court will not act. 81 C. 442; 91 C. 501. Decision should be limited to rights of those who are parties. 69 C. 10. Where judgment is for one and against another defendant, former not party to appeal by latter. 97 C. 223; 104 C. 108. See notes to sections 52-101 et seq., 52-235. In election contest involving three candidates, a candidate may appeal though he did not file any pleading nor participate in trial. 102 C. 606. Case will be dismissed whenever want of jurisdiction of subject matter appears. 105 C. 511.

      Procedure; pleas and motions. Court may regard plea in abatement though filed after time; 77 C. 395; 98 C. 505; with what clerk to be filed; 70 C. 339; determination of, carries costs; 82 C. 483; proper function; 82 C. 483; for defect of parties; 73 C. 432; appeal to wrong return day; 74 C. 438; to term already past; 67 C. 19; not stating time and place of sitting; 70 C. 329; 82 C. 386; failure of request for finding to include claims of law; 66 C. 551; taking appeal after time allowed; 79 C. 526; 82 C. 376; 89 C. 667; to be filed at term to which appeal actually returned; one of two appeals joined may be abated. 82 C. 386. Failure to take appeal within time fixed should be attacked by plea, not motion; Id., 377; 89 C. 667; 104 C. 353; 107 C. 367; so taking appeal to wrong term; 83 C. 134; form in such case; 85 C. 618; but plea is not proper way to secure erasure of assignment of error. 83 C. 466. Answer to plea cannot deny facts of record. 83 C. 316. Motion to erase case from docket proper when; 74 C. 729; 104 C. 353; as for misdescription of court; 79 C. 710; or where appeal is taken from judgment not final; 82 C. 517; or want of jurisdiction is apparent; 79 C. 46; or judgment conforms to advice of court previously given. 71 C. 589. Effect of denial of motion to erase; 84 C. 268; determination does not carry costs. 82 C. 483. Motion to dismiss for delay in having record printed. 83 C. 128. Motion for order directing clerk of trial court to pay over money; 71 C. 98; to recommit case where paragraphs of draft-finding not marked; 88 C. 25; to order trial court to certify evidence; 88 C. 211; to make statement of evidence in aid of appeal from nonsuit; 82 C. 132; to make finding. 79 C. 136; 89 C. 284; 97 C. 279; 78 C. 250. Motion to erase part of record not to be encouraged. 83 C. 243. Dismissal of case in ignorance of fact known to parties which would uphold appeal. 82 C. 208. Motion lies to strike from record special finding of facts where question arises on demurrer; 93 C. 160; so to strike out appeal in summary process action; 95 C. 69; or one attempted to be taken from judgment not final. 96 C. 719; 109 C. 50. No appeal lies from overruling of accused's challenge to array when he thereupon proceeds to trial without a jury. 105 C. 337. A motion to open and vacate a judgment during the term at which it was rendered is addressed to the court's discretion, and the action of the court will not be disturbed unless it is a clear abuse of its discretion. 147 C. 13. Motion to revoke an order of reference to a state referee is the legal equivalent of a motion to open a judgment. Id. On an appeal by the defendant from the denial of a motion for judgment non obstante veredicto, the plaintiff is required to set forth, in an appendix, the evidence which he claims warrants the rendition of a verdict in his favor. Id., 18. Jurisdiction of appeal court in reviewing denial of a motion to set aside a verdict as excessive. Id., 171. When a pleader wishes to admit or deny only a portion of a paragraph, he must recite that portion. Id., 305. Request to add certain paragraphs to draft finding must be accompanied by a record of the relevant evidence. Id. Motion to vacate a decree justified only where there was total absence of jurisdiction. Id., 482. The same principles are to be applied in reviewing court's action in failing to set aside a verdict and in denying a motion for judgment notwithstanding the verdict. 148 C. 419. In setting aside a verdict court ordered a new trial rather than directing a verdict, for it would not have been an abuse of discretion for the trial court to have denied a motion for judgment notwithstanding the verdict and to have ordered a new trial. Id., 426. See notes to sections 52-91, 52-123.

      Practice of court. Informality of appeal under new law disregarded; 64 C. 462; 72 C. 403; so where error is clear; 85 C. 679; and court overlooked minor error of procedure. 92 C. 7. Where facts found were written on margin of request for finding, court regarded them. 66 C. 56. Court passed on question irregularly presented where error was apparent and public interest involved; 67 C. 222; so where question was one of practice frequently arising; 67 C. 278; so where interpleader fairly presented questions, though it was perhaps not properly brought; 84 C. 364; 85 C. 573; 88 C. 157; 89 C. 332; so suit to construe deed of trust; 84 C. 497; so where finding was made in jury case and no one objected; 86 C. 281; so where case fully argued, court overlooked failure to close issue; 87 C. 614; so in assigning error, where no objection made. 81 C. 656. In murder case court overlooked defects of record to pass on real issues. 93 C. 343. Where case is tried upon a certain theory, court will adopt that theory. 85 C. 147; 86 C. 361; Id., 551; 107 C. 571, 580. Where question was assigned and argued as question of law, court so treated it. 65 C. 118. So it confined itself to question assumed by parties to be the only one at issue. 70 C. 489. So it followed agreement of counsel that it might regard pleadings as broad enough to cover facts found. 70 C. 540. Court regarded demurrer on same theory as had parties and trial court; 91 C. 514; 96 C. 543; 107 C. 119; and adopted parties' construction of pleadings. 94 C. 213; 96 C. 401. Court regarded demurrer to answer in light of facts stated in reply; 91 C. 354; and demurrer to complaint in light of finding. 92 C. 646. Court stated first impression on defective appeal where both parties desired decision. 71 C. 462. It accepts issues as framed on pleadings. 83 C. 666. It decided matters as interpleader though no judgment to interplead appeared, where parties so treated it. 84 C. 209. Where both parties overlooked statute, court ordered reargument; 73 C. 519; 72 C. 157; and in another case found error because of its terms. 92 C. 551. Minor grounds of demurrer, curable by amendment, disregarded to pass on main issue; 65 C. 326; so minor points which might be raised. 66 C. 134. An issue prominent and likely to be again presented considered, though another point was decisive; 66 C. 315; 81 C. 655; 82 C. 5; 93 C. 377; but an issue not likely to rise again and which might cause embarrassment was disregarded in such a case. 68 C. 71. Decision should be limited to rights of those who are parties. 69 C. 10. Where demurrer to answer presents fundamental question, demurrer to complaint may be overlooked. 79 C. 470. Court refused to discuss questions of evidence not material to decision where no new trial ordered; 81 C. 622; and so an issue, where new trial ordered on another ground. 82 C. 280. Where same questions arise on finding and ruling on demurrer, only former regarded. 82 C. 298; 85 C. 50; Id., 67. Where two appeals taken and decision of one is conclusive, court may pass on other, to determine costs, etc. 85 C. 271. It will not pass on question not properly presented where to do so would prevent party raising question of constitutionality in U.S. court. 84 C. 606. Court heard case involving salary of its own members where parties waived disqualification. 78 C. 536. Where public interest is involved, court may remand case for further finding. Id., 250. On appeal from demurrer, facts later appearing may be consulted; 74 C. 689; 83 C. 554; 87 C. 341; Id., 403; see 83 C. 634; so on appeal from plea in abatement. 76 C. 414. Where cross complaint was defective in substance, court disregarded technical faults. 81 C. 164. Court will strive to uphold judgment entered on stipulation. 67 C. 70. Question decided on bill of exceptions not open for reargument on appeal. 77 C. 667. Where there is no rule established, the court adopts the one most likely to do justice. 82 C. 571. Deeds are to be upheld; rights are to be upheld, not forfeited. 83 C. 231. Effect of prior opinion as to correctness of charge where point in question not brought up. Id., 324. Court will not speculate as to motives of pleader. 80 C. 552. On appeal after hearing in damages, complaint taken as true unless found untrue. 74 C. 382. Court is cautious in drawing inference from finding outside scope of trial court's inquiry. 77 C. 291. Where answer relies on date in complaint, court treats it as true date. Id., 528. Judgment on verdict directed not readily reversed. 78 C. 99; 82 C. 396. Court will take judicial notice. 67 C. 316; 69 C. 390; 73 C. 719; 81 C. 152; Id., 229; 83 C. 134; custom of lower courts; 84 C. 458; fact appearing on its records in another case. 91 C. 101. Courts must apply statutes of foreign state correctly, though trial court did not. 81 C. 164. If neither brief mentions assignment of error, court disregards it. 83 C. 417; 92 C. 579; 94 C. 521; 95 C. 378; 97 C. 308. Where committee's report failed to include subordinate facts, court regarded them under stipulation. 95 C. 538. Where both parties took appeal and one stated his desire to withdraw his, if it would require new trial-which it would-court regarded questions it presented as academic. 93 C. 413. Where judgment rendered against two parties, successful appeal by one does not affect judgment against other, when. 104 C. 111. Finding of issues generally for plaintiff but judgment given on one count only; that count will alone be considered on defendant's appeal. Id., 259. Otherwise if defendant prejudiced by such finding. Id. Judgment for defendant in bastardy action held a bar to action by complainant's father for seduction. Id., 592. Court may waive defect in pleading where trial court and both parties treated pleadings as proper. 105 C. 478. Proper procedure in appeal by state in a criminal case reviewed. 106 C. 115. In suit for declaratory judgment, court is not limited by issues joined or claims of counsel; court will itself give appropriate judgment. 107 C. 661. In absence of a finding by the court, legal conclusions upon which the judgment is based must be ascertained from the memorandum. 146 C. 1. Court cannot act on assumed rulings of the court that are not discoverable on the record. Id., 10. Court may resort to the memorandum of decision for aid in interpreting uncertainties in the finding. Id., 42. Award of damages will not be set aside if it does not offend the sense of justice and compel conclusion that jury was influenced by partiality, prejudice or mistake. Id., 344. Assignments of error not pursued in brief are treated as abandoned. Id., 360. If sole question on appeal is the sufficiency of evidence to sustain the conviction, no finding of facts is necessary since conviction can only be tested by the evidence. Id., 693, 705; 147 C. 90. If appellant fails to present all evidence necessary for proper consideration of an appeal, it becomes the duty of appellee to do so. Id., 7. Courts should not interfere with the reasonable regulations and orders of police departments when made for the purpose of maintaining discipline. Id., 113. Request to add certain paragraphs to draft finding must be accompanied by a record of the relevant evidence. Id., 305. Distinction drawn between evidence inadmissible as hearsay and evidence admissible as spontaneous utterances. Id., 337. A stipulation obviates the necessity of presenting evidence to establish the facts stipulated but it does not preclude the court from drawing proper inferences from those facts. Id., 426. Assessment of damages will not be disturbed unless the sum awarded is shown to be plainly excessive, particularly where the amount was determined by the court in a trial without a jury. Id., 540; 148 C. 557. If inapplicable statute is submitted to the jury, the materiality of the error must be determined on the whole record before the court. 147 C. 638. In reviewing a charge to the jury, the court should look at it as a whole and at its probable effect upon the jury in guiding them to a correct verdict. Id., 644; 148 C. 130. Conclusions must be tested by the subordinate facts in the findings. 147 C. 677. Directed verdicts are not favored. Id., 699, 704. Statement in finding that exhibits are made a part of the findings for use in the supreme court, without printing the exhibits in the record, held not to constitute a finding as a fact of the material contained in such exhibits. Id., 720. No material corrections in finding can be made on appeal if an appendix of the necessary evidence is not filed with the brief. 148 C. 21. Court refused to review alleged error in rulings on evidence because party had not followed procedure set out in section 648 (formerly 405) of practice book. Id., 27. In order to avail himself of the rule that grounds upon which evidence is claimed to be inadmissible must be stated, a party must state the grounds for his claim of admissibility. Id., 208. A finding in a jury trial is merely a narrative of the facts claimed to have been proved by each side, made for the purpose of fairly presenting any claimed errors in the charge or rulings of the court. Id. Corrections in a finding can be made if the trial court has refused to find a material fact which was an admitted or undisputed fact; information afforded by deeds and map introduced in evidence held to constitute such material fact. Id., 299. The fact that the trial court assigned an incorrect reason for its decision would not require a reversal of the judgment if it was correct for another reason. Id. When an appellant assigns as error, and makes the claim in his brief, that a material fact was found without evidence, and does not print the relevant evidence, the burden of printing evidence to show that no error was committed is placed on the appellee; if appellee fails to print such evidence, then the questioned finding must be stricken. Id., 398. Where the admissibility of evidence depends upon a preliminary question of fact, to be determined by the court, its decision is not to be reversed unless there is clear and manifest error. Id. Where court sustained a demurrer on grounds other than those claimed by the defendant, the ruling may be upheld if a proper conclusion was reached. Id., 430. Court dismissed the appeal as the question presented was then academic. Id., 456. An obviously erroneous award of damages can be corrected to conform to the finding of the trial court. Id., 504. Cited. 149 C. 576. Court does not examine transcript of testimony in search of evidence which supports a requested finding trial court refused to make. 151 C. 204. Brief must be supported by appendix. Id. Power to remand case for new trial where error is found is unqualified. 179 C. 372. Cited. 185 C. 527.

      Grounds of error, in general. Refusal to direct verdict not ground of appeal. 89 C. 117. Defendant may have exception to order substituting new plaintiff. 73 C. 384. It is error to treat case on wrong basis; 77 C. 291; to overlook a statute, though not referred to; 72 C. 157; 92 C. 551; 73 C. 519; to fail to regard material facts; 73 C. 573; to consider as evidence matter not in the case, or to misconstrue purport of testimony; 77 C. 688; not to consider evidence for all proper purposes; 82 C. 460; to insert in charge issue not raised by pleading; 84 C. 150; to leave question of law to the jury; 86 C. 641; to direct verdict on erroneous assumption as to facts; 88 C. 16; to refuse to permit counsel to press proper claim in argument; 93 C. 106; to fail to regard material and relevant evidence; 95 C. 445; but frankness of the court in suggesting that a ruling is questionable is not. 95 C. 503. A judgment not supported by facts found is erroneous. 83 C. 118; 87 C. 617. The possibility of affecting the result is the test as regards rulings on evidence. 78 C. 396; 83 C. 547. Admission of evidence attacking credit. 74 C. 425; 76 C. 92. It is error to treat evidence as uncontradicted where facts contradict it; 74 C. 468; or to find material fact without evidence. 73 C. 692; 82 C. 5; 84 C. 93; id., 122. In ruling on demurrer, question is correctness of result, not reasons assigned. 84 C. 275. Departure from technical rules in examining witness unfamiliar with English language overlooked. 93 C. 107. Question which trial court does not find it necessary to rule upon disregarded. Id., 118. Refusal to direct verdict is not error. Id., 454. An erroneous conclusion from subordinate facts is an error of law. 96 C. 275. Where demurrer of one defendant to complaint is sustained, but case goes on and verdict is finally directed for it, appeal from verdict does not bring up ruling on demurrer. Id., 497. In passing on demurrer, court not restricted to grounds considered by trial court. Id., 542. So, where trial court inadvertently sustains demurrer to original complaint when amended complaint has been filed. 102 C. 128. When pleading to which a demurrer has been sustained is voluntarily replaced by another pleading on which issue is joined and a trial had, there is no right of appeal from decision on demurrer. 99 C. 67. Error held harmful where material evidence excluded on an erroneous ground and, on appeal, it could not be determined that the evidence was inadmissible for the purpose for which it was offered. 146 C. 42. There must be evidence to support a finding of fact; conclusions are tested by the finding and not by the evidence. Id., 90. Cross-examination to show motive, interest, bias or prejudice held to have been unduly restricted by court. 147 C. 40. For a new trial because of an erroneous ruling on evidence, the ruling must be both erroneous and harmful. Id., 76. Test for reasonableness of court's action in directing a verdict. Id., 398. If inapplicable statute is submitted to the jury, the materiality of the error must be determined on the whole record before the court. Id., 638. Court's finding omitted a ruling on evidence which was relied on as a ground of error, held that, because of the nature of the ruling, a new trial was necessary. Id., 641. Extemporaneous remark by judge that damages were "nominal" held not to invalidate his award of three hundred forty dollars. Id., 728. Error cannot be predicated on ambiguous exceptions which do not fairly apprise the trial court of the error claimed. 148 C. 459.

      Harmless errors; in general. As regards receiver, judgment removing him is harmless. 70 C. 473. Plaintiff not harmed by grant of nonsuit as to one of two defendants. 79 C. 379. Ruling on demurrer of one party held not to avail another; 65 C. 84; so party cannot complain of any ruling as to which he has no interest. 84 C. 208. A new trial will not be granted, where record shows error to be harmless; 65 C. 76; 69 C. 201; 90 C. 382; 91 C. 354; 101 C. 59; 109 C. 401, 402; and the whole record is to be consulted. 75 C. 548. Errors must be fundamental and substantial; 83 C. 547; 85 C. 55; and prejudicial to appellant. 87 C. 341; 91 C. 316. In rulings on evidence, the possibility of affecting the result is the test; 78 C. 396; and, in a criminal prosecution, the defendant is entitled to every doubt upon the question. 75 C. 334. If the jury is not misled, an error is harmless. 79 C. 108. An error favorable to the appellant will not be regarded. 73 C. 377. If main issues are correctly decided, irregularities or errors in reaching decision may be disregarded. 68 C. 201; 86 C. 579; 89 C. 553. Giving the wrong reason for a right decision is harmless; 72 C. 216; 74 C. 125; 77 C. 457; 79 C. 104; Id., 241; Id., 605; 81 C. 153; 84 C. 275; 90 C. 612; 94 C. 80; 95 C. 248; Id., 281; Id., 431; 107 C. 119; see note regarding harmless error infra; as where new trial was proper but for another reason than that assigned; 95 C. 248; if judgment is sustainable upon any theory it stands, though it does not appear that court adopted it; 96 C. 644; correctly directing verdict but upon wrong theory. 92 C. 330. Irregularities in reaching a right decision responsive to the issues disregarded. 86 C. 201. Technical defect of parties. 52 C. 329. Where on conceded facts appellant must lose. 96 C. 588. Where one ground of demurrer is efficacious, error cannot be predicated on the fact that the demurrer was sustained on another, even if erroneous, ground. 147 C. 566. Prompt direction by court to jury to disregard its comment rendered comment harmless. 154 C. 314. See note to section 52-263. Cited. 188 C. 259.

      Questions open to review; discretion of court. Rulings made in discretion of court not ordinarily reviewable; 80 C. 149; Id., 314; but whether matter is one involving discretion is; 68 C. 39; 79 C. 46; and so is conclusion reached on theory that matter was not in discretion, when it was. 68 C. 39. Granting nonsuit for failure to prosecute. 75 C. 314. Refusing nonsuit. 79 C. 266; Id., 379; 80 C. 299; 98 C. 248; Id., 373. Petition for new trial on ground of newly discovered evidence; 75 C. 576; 77 C. 15; 91 C. 25; 96 C. 254; or misconduct of juror; 84 C. 518; 87 C. 363; 109 C. 726; or his qualification. 97 C. 322. Drawing of jurors. 103 C. 471; Id., 542. Rulings allowing or disallowing amendments not ordinarily reviewable. 69 C. 555; 74 C. 62; id., 126; 75 C. 45; Id., 308; 82 C. 479; 83 C. 417; 85 C. 271. Allowing amendment on trial; 91 C. 449; 101 C. 552; 108 C. 625: But are reviewable where an amendment is refused as a matter of law; 73 C. 1; 76 C. 273; Id., 680; or because of erroneous construction of previous ruling; 71 C. 623; or because it would be of no avail. 79 C. 458. Denial of motion to consolidate actions. 82 C. 2. Granting motion for more specific statement. 87 C. 241. Rulings on motions for continuance. 69 C. 186; 75 C. 308; Id., 314; 78 C. 654; 79 C. 380; 81 C. 474; 108 C. 176. Dismissing jury because of improper argument of counsel; 72 C. 252; 74 C. 638; 108 C. 192; returning jury for further consideration; 74 C. 584; 108 C. 553; instructing them as to duty to strive to agree; 80 C. 245; directing them to return general verdict where same crime is charged in different counts. 74 C. 531. Ordering recount of ballots. 75 C. 48. Disbarring attorney. 66 C. 585; 80 C. 149; 84 C. 594; 88 C. 447. Action as to temporary injunction. 80 C. 426. Taxing costs to garnishee in action against him; 67 C. 257; in mandamus. 68 C. 220. Order modifying decree as to custody of children in divorce action; 83 C. 479; fixing amount of alimony. 85 C. 478. Allowance to wife to defend, appeal or prosecute. 104 C. 155. As to order approving compromise of claim by receiver, see 88 C. 371. Refusal of bail after judgment in habeas corpus. 78 C. 155. Discretion of court in conduct of trial ordinarily not reviewable. 85 C. 112. Rulings as to evidence where court has discretion; 92 C. 576; as to the order of admitting testimony; 66 C. 80; Id., 168; 77 C. 394; id., 398; 83 C. 429; 88 C. 177; 107 C. 97; as to relevancy or remoteness; 77 C. 267; 78 C. 29; id., 66; 79 C. 664; 80 C. 19; calling attention of witness to contradictory statements out of court; 82 C. 448; preliminary proof as to admission of evidence; 69 C. 124; 70 C. 516; 71 C. 313; 73 C. 364; Id., 588; 80 C. 525; 101 C. 551; 105 C. 393; 106 C. 308; identity; 84 C. 248; scope of redirect examination; 77 C. 201; examining one's own witness as to contradictory statements in case of surprise; 74 C. 431; permitting witness to explain answers showing interest or tending to discredit; 66 C. 175; limiting cross-examination; 74 C. 198; Id., 374; 80 C. 531; 82 C. 454; 84 C. 152; 97 C. 39; permitting cross-examination of one's own witness as hostile; 65 C. 93; scope of redirect examination; 73 C. 471; 77 C. 201; 82 C. 280; id., 454; excluding questions asked of an expert upon ground of lack of qualification; 91 C. 431; rulings as to witness refreshing recollection; 96 C. 279; but where court excluded evidence as improper, that part of it might have been excluded in its discretion will not obviate error. 93 C. 81. Finding as to qualification of juror. 97 C. 322. Action of court in disbarment proceedings. 90 C. 440. Extending time in which to present claim to receiver. 91 C. 359. Motion for stay of proceedings. Id., 553. Order of court for joint trial of two accused. 92 C. 58. Charge commenting on evidence. Id., 579; 96 C. 239. Decision in bastardy action as to amount of support to be furnished for child. 93 C. 318. Ruling as to printing evidence in criminal case at expense of state, though accused is appellant. 95 C. 451. Summary of discretionary and mandatory disqualifications of jurors. 103 C. 542. Compelling plaintiff to submit to physical examination by defendant's doctors before trial held valid. Id., 272. Allowance to defend, appeal or prosecute in divorce action discretionary. 104 C. 155. So allowance of attorney's fee to employer in joint action against third party under workmen's compensation act. Id., 507. So, compelling production of accident report held by defendant's counsel. Id., 513. So, competency of child of fifteen; but discretion held abused where such child had no belief in Supreme Being or understanding of obligations of an oath. Id., 588. Admission of statement as spontaneous utterance. 100 C. 482; 105 C. 433; Id., 482. But discretion may be abused. Id., 433. Whether expert be allowed to give opinion on testimony heard in court or confined to hypothetical question is discretionary. 105 C. 444; 106 C. 89. Submission of interrogatories to jury is discretionary when. 105 C. 582; 107 C. 243. Refusal to permit clerk orally to read verdict is improper but not reversible error. 105 C. 530. Admission of photographs. 106 C. 308. Continuance of trial and holding jury during illness of juror. Id., 722. Exclusion of unnecessarily repetitious questions is discretionary. 107 C. 99. Opening or vacating judgment during session at which it was rendered is discretionary; limitations on discretion. Id., 167. Where verdict is set aside, propriety of such action alone may be considered; no method whereby appellant can at same time secure review of rulings on trial. 108 C. 681. Submission of interrogatories. Id., 627. Refusal to answer jury's question held no error. 109 C. 403. Court may change decision denying motion to set aside verdict at any time during same term. Id., 483. Only errors raised at trial are reviewable. 146 C. 90. Matter of discretion for trial court to set aside verdict as inadequate and no reversal unless there is clear abuse of discretion. Id., 114. Motion for new trial on grounds of newly discovered evidence in discretion of court. Id., 149. Admission in evidence of photograph of murder victim held not an abuse of the court's discretion. 147 C. 194. Rule for review of alleged error relating to conclusions of law. Id., 254. The qualification of an expert witness is largely within the court's discretion and, if any reasonable qualification can be established, an objection goes to the weight of the evidence rather than to its admissibility. Id., 321. Considerations involved in a review of a motion to set aside a verdict on the ground that it was excessive. Id., 432. Court refused to review ruling on evidence since no ground for objection was stated. Id., 566. When evidence is excluded upon a mere general objection and the offering party at no time assigns any ground in support of the claim of admissibility, supreme court lacks a basis for reviewing court's ruling re admissibility. Id., 625. In reviewing a charge to the jury, the court should look at it as a whole and at its probable effect upon the jury in guiding them to a correct verdict. Id., 644; 148 C. 130. Wholesale attack on charge without any attempt to specify alleged error held to disentitle appellant to a review of the correctness of the charge. 147 C. 663. See also 148 C. 130. Court unable to review a claim that the trial court found a material fact without evidence since no evidence printed in the record. 147 C. 677. Court will not review alleged error in the charge to the jury if the party did not file any request to charge or, at the conclusion of the charge, took no exception to any part of the charge. 148 C. 27. Court refused to review alleged error in rulings on evidence because party had not followed procedure set out in section 648 (formerly 405) of the practice book. Id. Standards used by court in reviewing a charge to the jury. Id., 125. Court refused to review a disputed ruling on evidence since party did not state the grounds on which he claimed the evidence to be admissible. Id., 135. Substantial evidence defined. Id. Where a demurrer is overruled and the case goes to final judgment, the ruling on the demurrer may be claimed as error, since an erroneous ruling on a demurrer is a proper subject of review. Id., 153. Standard for reviewing action of a court in denying a motion to set aside a verdict. Id., 167. Party not entitled to a review of the correctness of a charge if he did not submit a proper request to charge. Id., 266. The same principles are to be applied in reviewing court's action in failing to set aside a verdict and in denying a motion for judgment notwithstanding the verdict. Id., 419. In setting aside a verdict court ordered new trial rather than directing a verdict, for it would not have been an abuse of discretion for the trial court to have denied a motion for judgment notwithstanding the verdict and to have ordered a new trial. Id., 426.

      Harmless errors; before trial. Abating action where complaint is defective in substance. 76 C. 628. Compelling plaintiff to cite in defendant where no actual harm results. 65 C. 84. Misjoining plaintiff where no judgment rendered for him. 72 C. 519. Failure to join defendant where decision reached not prejudicial to him. 80 C. 460. Striking out name of one plaintiff. 72 C. 472. Failure to sign bill of exceptions where issue otherwise raised. 73 C. 384; 80 C. 493. Striking out allegation where case turns on another issue. 74 C. 498. Denying motion to strike out, where default later suffered. 64 C. 487. Striking out allegations where party not thereby prevented from putting in whole case; 69 C. 201; 72 C. 531; 76 C. 148; 81 C. 707; 84 C. 501; 89 C. 671; refusing to allow amendment in such case. 82 C. 479. Denying motion to file defenses to count which court treats as out of case. 72 C. 651. Overruling demurrer where only harm was to make proof more burdensome; 69 C. 205; or which goes to different basis of action than that claimed; 77 C. 482; or where defect is cured by amendment. 60 C. 378; 73 C. 187; 90 C. 261. Overruling demurrer to one of several defenses where all issues found for the defendant. 92 C. 295. Treating demurrer to separate paragraphs as one to defense set out in them. 93 C. 392. Sustaining demurrer to one of two counts where plaintiff cannot recover on either; 69 C. 484; sustaining demurrer to complaint held harmless on assumption that, if overruled, defendant would have pleaded over and prevailed. 68 C. 504. Failure to specify grounds for sustaining demurrer; 69 C. 489; stating wrong ground for right result. 78 C. 575; 79 C. 241; Id., 603; 84 C. 275. Sustaining demurrer to pleading afterwards replaced by another; 72 C. 196; id., 257; 74 C. 125; 80 C. 348; Id., 549; 81 C. 474; 99 C. 67; though latter is filed under order of court. 81 C. 415. If demurrer is correctly sustained as to one ground, rulings on others are harmless. 93 C. 604, 614. Ruling on demurrer where same question is presented and correctly decided on trial; 76 C. 335; 77 C. 304; 85 C. 51; 86 C. 616; 91 C. 474; on technical grounds, where substantial rights upheld; 79 C. 100; where later proceedings disclose that no harm was done. 83 C. 554; 87 C. 342; 91 C. 356. Refusing permission to replace plea with demurrer where latter would not prevail. 74 C. 38. Refusing application to distribute estate where there is nothing to distribute. 72 C. 322. Verbal inaccuracy in answer whereby certain issues not closed. 87 C. 221. Ruling that statements are not libelous per se where cause of action otherwise defective. 89 C. 553. Where pleading insufficient on any ground, overruling it is harmless. 81 C. 646. Appointing temporary receiver of national bank. 76 C. 260. Striking case from jury list cannot be supported unless record shows error was harmless. 90 C. 133. Court regarded demurrer in light of facts found. 92 C. 646. Refusal to permit opponent to be present at taking of deposition. 91 C. 405. Denial of motion for disclosure where facts sought are not legally available. Id., 553. Erroneous ruling on pleading held harmless. 98 C. 251. If pleading successfully demurred to is voluntarily replaced, no appeal lies from decision on demurrer; otherwise if demurrer is overruled. 99 C. 67. So no appeal from action on original complaint where substituted complaint is filed. Id., 389. See note to section 52-128.

      Harmless error; matters on trial in general. Ruling on accounting which results in appellant's favor. 71 C. 503. As to election between counts. 79 C. 672. Momentary possession of paper improperly by jury. 68 C. 248. As to improper arguments of counsel, see 68 C. 551; 72 C. 252; 74 C. 638; Id., 700; 75 C. 55; Id., 215; 77 C. 603; 81 C. 22; 83 C. 161; Id., 183; Id., 449; id., 466; Id., 642; 85 C. 111; 86 C. 100; Id., 415. Failure to permit examination of jurors in civil case. 89 C. 46. Immaterial variance. 87 C. 691. Setting aside verdict without motion where it is later filed. 83 C. 445. Rulings as to count on which appellant prevailed. 77 C. 398. Correctly directing verdict, but upon wrong theory. 92 C. 330. Setting aside verdict where, on bill of exceptions, charge appears erroneous. Id., 252; Id., 365. Defect in interrogatories submitted for special verdict. 93 C. 446. Rulings in questions of law where plaintiff's claims have no foundation in fact. 97 C. 275. Improper argument of state's attorney may well be harmful. 96 C. 264. Disqualification of juror healed by verdict when. 103 C. 546. Improper argument of counsel to jury. 106 C. 122; 108 C. 192.

      Harmless error; trial to court. Improper argument to court. 72 C. 202. Failure to indicate which of two rules of damages adopted where results would be substantially the same. 70 C. 125. Rulings as to damages where defendant prevails. 73 C. 300; 77 C. 150. Denying right to recover against one of two defendants, where plaintiff recovers no damages. 74 C. 443. In ruling as to failure of plaintiff's case where defense is fully proved. 77 C. 22. Error as to irrelevant findings. 70 C. 473. Conflict between language of finding and annexed exhibits. 71 C. 254. Finding claims of party proved where other party fails to sustain burden upon him. 78 C. 614. Finding immaterial fact clearly by inadvertence. 79 C. 276. Finding fact where issue otherwise determined. 80 C. 310. Error as to subordinate facts where conclusion is sound. 75 C. 164. Ruling that words not libelous per se where plaintiff has no cause of action. 89 C. 553. Failing to mark paragraphs of draft-finding "proven" where issues otherwise presented; 81 C. 491; or it would not avail appellant. 88 C. 22. Finding harmless fact not supported by the evidence; 92 C. 208; or not alleged. 93 C. 545. Ruling as to burden of proof where issue is one of law on undisputed facts; 94 C. 452; but not where issue is one of fact. 96 C. 277. Not harmless to disregard statute requiring plaintiff who sues for negligence to adopt certain precaution. 95 C. 603. Rulings as to waiver of right where it was not proved. Id., 16.

      Harmless error; evidence. Technical error where no injustice appears is harmless; 87 C. 349; and record must disclose harm; 65 C. 93; 78 C. 629; 79 C. 664; 80 C. 452; or a possibility of harm. 70 C. 646; 78 C. 396. Harmless if result would not have been changed; 62 C. 542; 70 C. 54; 72 C. 617; 75 C. 33; Id., 127; Id., 197; 83 C. 407; 84 C. 207; 95 C. 251, 263; 92 C. 428; 99 C. 160; 102 C. 336; 104 C. 321; 105 C. 394, 626; 106 C. 87, 135; 107 C. 544; or is clearly correct; 70 C. 745; or evidence does not touch vital issue in case; 81 C. 622; 82 C. 539; or would not benefit appellant; 91 C. 449; or it goes to issue not in case; 82 C. 653; or to one which decision makes immaterial. 70 C. 67; 80 C. 338; 82 C. 595; 83 C. 386; 90 C. 148; 91 C. 431. Rulings on matters of little importance or in court's discretion. 83 C. 183. Rulings as to relevancy or remoteness of evidence. 76 C. 209; Id., 302; 77 C. 397; Id., 617; 79 C. 217; id., 664; 81 C. 75; Id., 573; 90 C. 126. Overruling objections as to form of questions, or where evidence was trivial, or favorable to appellant. 66 C. 93; 76 C. 209; 77 C. 399; 79 C. 379; 87 C. 341. Excluding evidence where inference from it would be remote and unsubstantial; 85 C. 66; or it would be material only in connection with other facts not proved. 65 C. 69; 88 C. 219. Excluding evidence later given. 66 C. 250; 72 C. 305; 74 C. 257; 78 C. 430; 83 C. 216; 90 C. 677. Overruling objection where evidence later given without objection. 70 C. 646; 71 C. 437. Rulings on evidence where facts are otherwise proved or admitted; 73 C. 300; 77 C. 165; Id., 387; 79 C. 540; 80 C. 338; 82 C. 33; Id., 552; 83 C. 64; 84 C. 169; Id., 248; Id., 508; Id., 654; 85 C. 613; 88 C. 109; Id., 219; Id., 547; Id., 720; 89 C. 321; 90 C. 570; 91 C. 432; 92 C. 658; 97 C. 155; 102 C. 169; 105 C. 433; or court takes judicial notice. 91 C. 431. Excluding question merely preliminary. 81 C. 338. Admitting evidence as to matter which jury is instructed later to disregard. 73 C. 187; 82 C. 280; Id., 647; 97 C. 260. Limiting scope of cross-examination. 77 C. 462; 81 C. 423; 83 C. 537; 85 C. 259; 86 C. 82; 91 C. 499; 96 C. 240. Excluding opinion of nonexpert who has testified to facts. 84 C. 202. Admitting evidence in rebuttal of irrelevant evidence. 67 C. 533; 69 C. 272. Admitting document in evidence during argument. 69 C. 440. Admitting evidence as to construction of document where court adopts objector's claims. 68 C. 579. Admitting hearsay statement of witness out of court where he confirms it in his testimony. 69 C. 652. Admitting question where no answer given; 71 C. 638; or witness states he does not remember; 74 C. 564; or answer makes question harmless. 81 C. 22. Ruling that evidence not given is admissible. 73 C. 589. Admitting evidence where court finds against it; 75 C. 139; or wholly disregards it. 85 C. 635. Immaterial self-serving declaration. 86 C. 346. Use of word "sold" where all facts as to transaction claimed to be a sale later shown. Id., 474. Ruling as to preliminary proof of document offered on direct examination made harmless by facts brought out on cross-examination. 85 C. 18. Admitting irrelevant evidence tending to prejudice jury not harmless; 89 C. 405; nor is exclusion of direct evidence of party though opponent later puts in deposition given by him; Id., 205; nor is question on cross-examination of accused tending to reflect on his character, not in issue, though his answer is "no"; 88 C. 150; nor is exclusion of written declarations of decedent, though oral ones are offered; 86 C. 474; nor exclusion of evidence as improper even though part might have been excluded in court's discretion; 93 C. 81; and court will assume that admission of testimony as to special damages not pleaded was harmful. 91 C. 339. Admission of evidence as to intent of testator in using certain word where it accords with legal meaning is harmless. 93 C. 308. Admitting hearsay where another witness gives proper testimony as to fact and opponent partially admits it. 95 C. 62. Excluding nonexpert opinion as to danger of certain condition upon premises which jury have visited. Id., 231. Excluding question on cross-examination of plaintiff as to matter which he later fully explains. Id., 566. Excluding cross-examination of photographer as to other pictures taken by him where they were available to party examining. 96 C. 590. Relaxing rules in examination of witness with scanty knowledge of English. 93 C. 107. Permitting demonstration not under oath where it is immediately repeated under oath. 96 C. 34. Irrelevant and irresponsive answer regarding a trivial matter; Id., 582; improper question not answered and withdrawn or where witness says he does not know; Id., 638; where witness answers, he does not know, or remember. 97 C. 298. Error can rarely be based upon exclusion of leading question, as it could easily be replaced. Id.; 106 C. 729. If objections would not project or aid interests of party, he has no ground to complain. 97 C. 298. Admitting preliminary questions of expert whose opinion is finally excluded. 96 C. 240. Submitting questions of law to jury held harmless where result was correct. 98 C. 314. No appeal from ruling on evidence unless exception taken. 101 C. 445. Admitting evidence on counsel's promise to connect it up. 106 C. 101, 308. Admission of improper but harmless evidence not reversible error. 148 C. 192.

      Harmless error; charge. Charge is to be construed as a whole; 73 C. 95; 81 C. 22; id., 601; 82 C. 343; 84 C. 467; 86 C. 335; 88 C. 558; 103 C. 148; to be reasonably read in its entirety; 94 C. 186; and if, so construed, it is correct and sufficient, error in part will be disregarded; 73 C. 667; 74 C. 525; 75 C. 254; 80 C. 298; 82 C. 600; 84 C. 152; 85 C. 359; 86 C. 415; 88 C. 700; 90 C. 59; 91 C. 6; id., 316; or if the jury could not have been misled; 67 C. 578; 74 C. 304; Id., 525; 82 C. 518; 85 C. 19; 86 C. 424; Id., 608; 91 C. 668; 92 C. 578; as where verdict is only one legally possible; 93 C. 669; or there is a slight inaccuracy in a single sentence; 81 C. 218; 83 C. 466; 86 C. 265; 87 C. 253; id., 341; 88 C. 177; or palpable error is disclosed by context; 79 C. 104; and the court will assume the jury was not misled. 81 C. 288. Error in part disregarded; 90 C. 261; 91 C. 393; Id., 395; inadvertent use of single expression; 93 C. 439; 102 C. 166; as use of phrase "unusual care" in negligence action; 93 C. 251; "visible" instead of "clearly visible" as in statute; 97 C. 149; or "defendant" for "plaintiff" where context makes meaning clear. 94 C. 614. Omission of word or two. 95 C. 187. Use of words "maintain and operate" where negligence alleged was in "operating" alone. 93 C. 439. Adding phrase of doubtful meaning to adequate charge as to burden of proof. 97 C. 381. Failing to charge as to equipoise of evidence, where charge correct as to burden of proof. 87 C. 363. Charge to be read in view of claims of parties. 69 C. 89; 83 C. 208; 89 C. 343. Error as to issue disregarded by jury harmless; 88 C. 558; or as to one not material to verdict; 74 C. 443; 82 C. 595; 83 C. 183; 85 C. 180; 87 C. 406; 88 C. 117; 88 C. 620; 90 C. 261; 91 C. 186; Id., 581; 107 C. 438; Id., 572; but to submit to jury issue not raised by parties or evidence is error. 92 C. 626; 95 C. 440; 94 C. 131; Id., 197. Failure to charge as requested where jury clearly adopted law of request; 71 C. 551; or it would not have availed appellant. 72 C. 402. Failure to charge as to claim of law not made. 91 C. 250. Charge proceeding on wrong theory harmless where verdict is correct. 80 C. 14. So error as to point not in issue; 70 C. 398; 77 C. 150; 78 C. 18; 108 C. 125; or one not supported by evidence; 77 C. 572; failing to charge as to admitted fact; 71 C. 569; 83 C. 183; so error as to weight of evidence as to such fact; 78 C. 18; or as to burden of proof of fact clearly established. Id., 430; 82 C. 595. Granting inapplicable request where jury could not be misled. 87 C. 691. Charge favoring appellant. 82 C. 199; 83 C. 160; 90 C. 59; 91 C. 316; Id., 188; 92 C. 315; 93 C. 126. Submitting construction of written instrument to jury where they arrive at correct decision. 81 C. 310. Charging that several counts state but one offense. 75 C. 269. Errors as to count on which appellant prevailed. 77 C. 398. Where complaint offers two bases of recovery and verdict is general, error as to one harmless, 94 C. 690; 95 C. 724; 104 C. 28; 106 C. 154. Ordinarily an erroneous charge on any material issue is ground for new trial. 87 C. 652. Assumption of fact mistakenly harmless even in murder case if jury told that facts were for them to determine; 93 C. 328; or court correctly states duty of parties in the premises; 96 C. 49; so mistake as to evidence. 95 C. 574. Incomplete and therefore incorrect statement in one place harmless where matter fully explained elsewhere; Id., 187; 97 C. 282; so irrelevant, obscure and confusing instructions where later correct rule given and verdict shows jury was not misled; 95 C. 388; 108 C. 125; greater effect to be given to final instruction; 95 C. 398; immediate correction of erroneous statement as remedying error. Id., 484. A later incorrect statement will be considered misleading, though correct rule first stated; 74 C. 177; 75 C. 326; and a later correction will not always remedy an earlier statement. 69 C. 219; 71 C. 61. Even a misstatement of evidence is not harmless where jury could not fail to follow it. 84 C. 248. Where verdict equals amount erroneously included in charge, with interest, harm appears. 81 C. 479. Calling particular attention to element of damages not properly recoverable held harmful; 91 C. 407; so permitting recovery for breach of inapplicable statute; 96 C. 22; so requiring proof of incompetency of driver of automobile as well as his negligence. Id., 669. So charge authorizing jury to treat alleged intentional wrongdoing as an accident where evidence affords no warrant for that view. 92 C. 388. But it is harmless to place duty upon a wrong theory; Id., 314; or to submit question of law where verdict shows that it was decided correctly; Id., 658; or where court erred as to one sum stated to jury but jury adopted another correctly stated; 93 C. 234; or where error is as to contract alleged in answer but verdict is based on one alleged in the complaint; Id., 412; or as to a counterclaim which jury never considers; 95 C. 530; or court places too broad a construction upon a criminal statute but accused admits facts showing guilt under proper construction. 96 C. 107. Errors in charge immaterial if verdict is properly directed. 95 C. 252. Where jury finds accused guilty, and there was no reasonable basis for a finding that enterprise was abandoned, error in charging as to that matter harmless. 97 C. 330. Held harmful for court to state it was uncertain upon whom burden of proof upon one issue rested. Id., 175. Chance remark concerning contributory negligence, though incorrect, held cured by balance of charge. 98 C. 610. Charge containing absolute contradiction on a vital point held error. 99 C. 423. Unless whole charge printed, omissions cannot be presumed. 102 C. 639. Conflicting statements regarding law governing case are usually ground for reversal. 103 C. 557. A charge is tested by the finding, not by the evidence. 147 C. 171; 296; 311. If party took no exception to charge of jury, he cannot claim error in such charge on appeal. Id., 191. Wholesale attack on charge without any attempt to specify alleged error held to disentitle appellant to a review of the correctness of the charge. Id., 663. See also 148 C. 130. Defendant could prevail on a denial of negligence or a defense of contributory negligence; hence possible error in charge on issue of negligence cured by general verdict for defendant. 147 C. 727. Court will not review alleged error in the charge to the jury if the party did not file any request to charge or, at the conclusion of the charge, took no exception to any part of the charge. 148 C. 27. Party not entitled to a review of the correctness of a charge if he did not submit a proper request to charge. Id., 266.

      Immaterial errors. Error which did not influence judgment held immaterial. 52 C. 310. So one involving very small sum. 76 C. 153. Trifling or microscopical errors disregarded. 81 C. 218. Item of insignificant amount ignored in finding and reasons of appeal disregarded. 85 C. 629. De minimis non curat lex. 79 C. 104; 88 C. 50. Charge increasing damage by small amount. 83 C. 208. Trivial error in damages. 79 C. 343; 86 C. 265; 90 C. 317. Frivolous motion in error should not be reserved. 13 C. 216, note. Erroneous allowance of four dollars in judgment of one hundred fifty-two dollars. 94 C. 256. Failure to allow interest amounting to three dollars or less. 96 C. 645. Failure of court in ordering remittitur to allow for nominal damages amounting to one dollar. 96 C. 685. On appeal from award of nominal damages, error held too inconsequential to merit a new trial on issue of damages. 146 C. 470. Extemporaneous remark by judge that damages were "nominal" held not to invalidate his award of three hundred forty dollars. 147 C. 728.

      Errors cured. Error in ruling on demurrer may be cured by subsequent proceedings; 74 C. 689; 83 C. 554; Id., 634; 87 C. 341; Id., 403; so ruling on plea in abatement; 76 C. 414; so error in admitting document may be cured by facts subsequently proved. 85 C. 18; see 83 C. 575. Failure to recite notice of injury cured by admitting due notice. 85 C. 221. Error in admitting evidence cured by charge when. 80 C. 582; 83 C. 575; 85 C. 337; Id., 359; 86 C. 301; 87 C. 173; 88 C. 177. Error in failing to charge as requested cured by verdict negativing facts on which it is based. 86 C. 263. Refusal to allow proper amendment disregarded where facts are stated in answer. 87 C. 634. Aider by verdict. 68 C. 517; 70 C. 72; 72 C. 112; 75 C. 201; 81 C. 696; 84 C. 272; 93 C. 643; 97 C. 149; 108 C. 127. Leaving paper in file given to jury improperly cured by charge; 82 C. 59; so improper argument. 81 C. 22; 86 C. 415. Amendment curing defect will cause demurrer on that ground to be overruled. 71 C. 632. Statement in charge may cure improper argument; 95 C. 111; see 96 C. 160; Id., 289; and ordering improper evidence stricken out and directing jury to disregard it may cure error in its admission; 95 C. 500; but this may not be so in criminal case; 97 C. 259; and charge that evidence as to one being a careful driver is immaterial if they found him negligent does not cure error in admitting the testimony as to reputation. 95 C. 639. Demonstration of personal injury not under oath repeated under oath. 96 C. 34. Defects in drawing jury panel waived by accused if he elects trial by the court. 105 C. 337. Error in charge on one count cured by general verdict where complaint contained two counts and no interrogatories were filed. Id., 486. Defendant who files new answer to amended complaint waives review of judgment on motion to expunge parts of original answer to original complaint. Id., 675. Defendant could prevail on a denial of negligence or a defense of contributory negligence, hence possible error in charge on issue of negligence cured by general verdict for defendant. 147 C. 727. Prompt direction by court to jury to disregard its comment rendered comment harmless. 154 C. 314.

      Errors induced by appellant. Error induced by appellant no ground for new trial. 66 C. 577; 73 C. 379; 104 C. 299. Exclusion of evidence on appellant's objection. 67 C. 50. Findings sought by appellant. 70 C. 480. Where court adopts theory and requests of appellant, he cannot complain; 69 C. 228; 76 C. 283; 80 C. 582; 83 C. 278; 96 C. 41; 106 C. 157; nor can he, as to taxing costs on count inserted by him out of court's jurisdiction. 79 C. 305. Party securing process can rarely object to it as invalid. 77 C. 183. Party can rarely complain of failure of opponent to introduce evidence, induced by his silence; 77 C. 674; or of charge which imposes greater restrictions on opponent than his own requests; 82 C. 647; or of the admission of evidence in pursuance of his own theory; 84 C. 508; or of failure to charge due to his own admissions on failure to make claim. 79 C. 706. If party consents to admission of evidence, he cannot complain; 65 C. 69; or to use of document otherwise inadmissible; 90 C. 669; nor can he raise other questions where he agrees to a finding; 71 C. 505; nor can he complain of decision on demurrer to which he consents; 72 C. 435; or of ruling consented to. 79 C. 79. But to recognize that judgment is necessary result of certain ruling does not make it judgment by consent; and consent to filing amendment does not waive defects in it. 72 C. 257.

      Errors waived. By trial and consent to reservation, party is estopped to claim that issues tried were not those settled before trial; 69 C. 228; so to claim error as to pleadings after stipulation filed and judgment entered accordingly. 67 C. 73. A party claiming judgment against all defendants cannot complain of failure to give it against one only. 68 C. 496. An executor who enters to defend cannot complain of a judgment against "the defendant." 77 C. 382. Inspection and approval of judgment file as waiving defects. 88 C. 676. Appeal from ruling sustaining demurrer to special defense not waived by trial on general issue. 83 C. 634. Objection to evidence waived by later admitting fact. 89 C. 322. Amending pleading waives right to claim error in rulings on original. 79 C. 79; 80 C. 549; 81 C. 415; Id., 474; 99 C. 67, 389; see note to section 52-128. Defects in process waived by general appearance. 67 C. 366; 70 C. 329; 77 C. 382. See note to section 52-57. Irregularity in signing writ of scire facias waived by pleading to it. 74 C. 87. Nonjoinder of husband in action by wife waived by going to trial without objection. 75 C. 279. Pleading over after demurrer overruled does not waive error as to it. 71 C. 190; 74 C. 689; 99 C. 67. Answering over after plea to jurisdiction overruled not a waiver. 90 C. 293. Failing to object to irregularity of probate appeal on reservation waives it. 71 C. 129. Failure to object to giving interrogatories to jury; 81 C. 611; to acceptance of unsigned verdict; Id., 656; to variance; 83 C. 634; to determination of substantial rights on motion addressed to pleading; 77 C. 284; to demurrer being too general; 73 C. 538; to evidence that act was done by agent, not pleaded; 66 C. 155; to treating original file of justice court as record; 77 C. 140; to improper argument; 81 C. 22; 83 C. 161; Id., 183; 86 C. 415; 96 C. 584. Error rarely comes from excluding question as leading as it can be replaced. 95 C. 521. Failure to ask court to limit effect of admission; 69 C. 5; to object to statement of issues by judge in place of reading pleadings to jury. 91 C. 430. Formal defects in complaint waived by plea in bar and trial; 71 C. 613; 72 C. 450; 73 C. 368; 74 C. 304; 75 C. 423; 77 C. 155; Id., 358; 79 C. 255; Id., 338; Id., 449; 82 C. 567; 84 C. 24; 91 C. 1; or by judgment in default; 73 C. 428; 75 C. 79; 77 C. 358; Id., 501; 78 C. 48; or by such judgment and hearing in damages. 72 C. 617; 73 C. 182; 77 C. 501; 78 C. 48. See note to section 52-93. Plea in bar or admissions in answer waives such defects as are reached by motion. 66 C. 165; 70 C. 73; Id., 320; 73 C. 83; Id., 368; 74 C. 304; 75 C. 254; 77 C. 382; Id., 602; 78 C. 119. Failure to make formal denial waived by trial. 70 C. 420. Amendable defects in criminal information not properly attacked disregarded. 80 C. 614. But defect as to jurisdiction over the subject matter not waived by trial; 74 C. 265; 85 C. 528; 89 C. 196; 105 C. 511; nor is disqualification of judge. 75 C. 104. Argument on merits in supreme court as waiving defect of parties; 75 C. 605; irregularity of appeal. 66 C. 37. Errors apparent on record but not presented disregarded; 83 C. 510; so reasons of appeal not urged. 83 C. 417; 92 C. 579; 94 C. 521; 95 C. 378; 97 C. 308. Errors as to a motion for a disclosure later replaced by another. 90 C. 261. Variance not objected to; 91 C. 253; 98 C. 577; 108 C. 42; as where no objection made to generality of complaint or evidence. 93 C. 302; 107 C. 488. No waiver where objection is made to argument and court says it will cover matter in its charge. 96 C. 289. Waiver of absence of innuendo in complaint for slander by going to trial. 99 C. 719. Evidence admitted without objection, within issues but outside scope of more specific statement; error held waived. 107 C. 489.

      Action of supreme court on appeal. Form adopted to bring case up will not hamper court in giving proper redress. 63 C. 456. Remanding case on reversal. 3 C. 587; 4 C. 311; 5 C. 474; 12 C. 101. If nonsuit for variance is properly granted, case should not be remanded. 82 C. 236. If finding shows judgment in part based on error, new trial should be ordered. 85 C. 212. If all facts of record, judgment may be given without new trial; 72 C. 444; 99 C. 511; if facts proved lead to definite conclusion, it should be adopted; 96 C. 412; but not if finding is uncertain; 75 C. 519; or is so altered on appeal as to materially change basis of judgment; 82 C. 619; 86 C. 481; 105 C. 432; or is based in part on inadmissible evidence. 84 C. 694. When former finding of facts is not affected by reversal. 46 C. 38. New trial will not be ordered where it would be unavailing; 64 C. 397; 72 C. 617; or where no error appears though court cannot see how decision was reached; 65 C. 442; or where there are irregularities in reaching a judgment responsive to issues and supported by facts; 68 C. 201; or where substantial justice has been done; Id., 579; 78 C. 422; as where action was brought at law instead of in equity; 71 C. 250; but the court set aside a judgment for error in admitting evidence, though new trial could not result differently. 70 C. 647. If little more than nominal sum involved, court hesitates to grant new trial. 72 C. 561; 79 C. 108; 85 C. 629; 106 C. 39; 107 C. 535. Unless substantial rights are involved; 67 C. 255; 84 C. 556; thus where judgment for defendant was erroneous, but plaintiff was only entitled to nominal damages, new trial not granted; 86 C. 552; 106 C. 174; 108 C. 99; but otherwise where continuing nuisance is involved; 106 C. 174; but if plaintiff gets substantial damages and is only entitled to nominal, case should be remanded for latter judgment. 75 C. 42. A portion of a judgment may be stricken out; Id., 251; or a certain amount of damages may be added; Id., 301; and if erroneous part of judgment can be separated and justice done, court may modify judgment; 83 C. 34; and where issues properly determined, but judgment on them is erroneous, court may modify it. Id., 118. But the court remanded a case with directions to exclude an item erroneously inclu