Gress vs. Evans, et al.
The word such is here used, referring to the kind, character and description of the house charged in the indictment—the keeping of which is a misdemeanor.
From a careful examination of the instructions, I am unable to discover that the jury may or could have been misled by the alleged erroneous words or statements made use of, simply, to make plain and simplify the issues to be passed upon by the jury.
Let the judgment of the court below be affirmed, and the case remanded to the District Court of Yankton County for further proceedings according to law.
The Chief Justice and Justice Bennett concur.
Gress v. Evans, et al.
1. PROCEEDINGS: law and equity: distinctions abolished. Under the provisions of the Code of Civil Procedure, all distinction between actions at law and suits in equitv, and the forms of all such actions and suits have been abolished, and a uniform course of proceeding established.
2. APPELLATE COURT: jurisdiction: effect of consent. The mere consent of parties cannot confer jurisdiction, unless in a very few special instances. The appellate powers of the Supreme Court are fixed by law, and can be exercised only in the modes and channels prescribed by the Codes.
3. -: effect of stipulation: uncertified evidence. A stipulation of parties as to testimony adduced on the trial below, in the absence of a case made or exceptions settled, will not authorize the appellate court to receive and review de novo such uncertified evidence.
4. APPEAL: trial to the court: case and exceptions. Upon the trial of a cause to the Court, without the interposition of a jury, either party desiring to review upon the evidence appearing upon the trial, a question of fact or of law, must make a case or exceptions, in like manner as upon a trial by a jury, except that the Judge in settling the case is required to briefly specify the facts found by him and his conclusions of law.
5. -: -: -. Cause tried to the Court, and the following general exceptions appended to the decision: "To which finding of facts, conclusions of law and the order of the Court, the defendants except." Held:—That on appeal from the judgment, with no case made or exceptions settled, there was nothing before the appellate court, except such papers as the clerk was au-
