Opinion of the Court-Dunbar, C. J.

[8 Wash. payment of the price of the land, have been performed by the settler. That the legislation thus adopted for the benefit of settlers was not intended to deprive congress of the power to make any other disposition of the lands before they are offered for sale, or to appropriate them to any public use.

In Campbell v. Wade, 132 U. S. 34 (10 Sup. Ct. 9), it was held that the statutes of the State of Texas, providing for the sale of a portion of the vacant and unappropriated public lands of the state, did not appear to confer upon a person making application under them for a survey of a part of said lands and paying the fees for filing and recording the same a vested interest in such lands which could not be impaired by the subsequent withdrawal of them from sale under the provisions of the later statutes; and the doctrine of Frisbie v. Whitney and Hutchings v. Low was reaffirmed.

It seems to us that, under all authority, as well as on principles of sound public policy, it must be decided that the respondent obtained no vested rights under the act of March 26, 1890, and that the act of March 9, 1893, should not be construed as an impairment of any contract between the state and the parties who are privileged to purchase under the provisions of the act.

All the other questions raised in the brief are decided against the contention of respondent. The judgment will, therefore, be reversed and the cause remanded to the lower court with instructions to sustain appellant's demurrer to respondent's complaint.

ANDERS, STILES, HOYT and SCOTT, JJ., concur.

INDEX.

ADULTERY.

Solicitation to Commit. Solicitation to commit adultery is
not indictable as an attempt to commit the crime.-State
v. Butler

AGENCY. See EVIDENCE, 8, 9.

APPEAL.

1. Notice. An appeal will be dismissed when one of the
parties to the action has not been served with notice of
the appeal.-Johnson v. Lighthouse...

2. Appealable Order — Premature Judgment. An appeal will
not lie from a judgment which fails to dispose of all the
defendants in the action, either by dismissal or by an af-
firmative judgment.-Id..

3. Law of the Case. The decision of the supreme court con-
struing a statute, whether proper or not, is the law of the
case in another action between the same parties, upon the
same subject matter.-Wilkes v. Davies..

-

4. Modification of Judgment — Expiration of Time for. After
the time fixed by law, or the well established practice, a
judgment which is neither void on its face, nor affected by
fraud in its procurement nor want of jurisdiction, stands
for absolute verity; and neither the court which rendered,
nor the appellate court which has affirmed it, has jurisdic-
tion to vacate, modify or otherwise affect it.-Wolferman
v. Bell

5. Weight of Evidence. Where there is a substantial conflict
of testimony the verdict of the jury will not be set aside.—
Klepsch v. Donald.

194

32

32

112

140

162

6. Admission of Evidence - Harmless Error. The admission
of incompetent testimony in rebuttal of immaterial evi-
dence is harmless error.-Id...

162

7. Effect of Supersedeas - Emergency Restraining Order.
restraining order issued without notice to defendants, on
the ground of a temporary emergency, cannot be kept in
force by plaintiff pending an appeal.-Coleman v. Colum-
bia, etc., R. R. Co..

227

APPEAL-CONTINUED.

8. Appealable Order - Failure to Enter Judgment. Where the
judgment in an action prepared by the court has been lost
and never entered, an affidavit of one of the attorneys de-
scribing the judgment set forth in the transcript on appeal
does not constitute such record of a judgment as will war-
rant the reversal of the original judgment.— Reichenbach v.
Sage
250

9. Record Statement of Facts. Where the notice of settle-
ment of a statement of facts designates no place at which
application therefor is to be heard, as required by Code
Proc., 1422, the statement will be stricken on the ground
that it was settled and certified without notice to respond-
ent.-American Asphalt Co. v. Gribble..

10. Defective Brief. Where many of the points argued in appel-
lant's brief purport to be based upon parts of the record,
without indicating the pages thereof, the court will not
hear the appeal until after an amendment of the brief upon
terms imposed.- State v. Carter..

11. Re-Trial After Reversal — Law of Case. Where a cause has
been reversed upon appeal and sent back for re-trial, the
failure of the lower court to comply with the directions for
re-trial is ground of error.-Tacoma Bldg., etc., Association
v. Clark

12. Weight of Evidence. The findings and judgment of the
lower court in an action at law tried by the court will not
be disturbed on appeal, where the record discloses a sharp
conflict in the evidence, unless there appears to be a de-
cided preponderance of the evidence against the court's
finding.-Fischer v. Quigley..

13. Bill of Exceptions — Assignment of Errors. Where the
record on appeal contains an exception to the refusal of
the court to grant a new trial on the ground of the insuffi-
ciency of the evidence, and a bill of exceptions is made a
part thereof for the purpose of bringing the evidence into
the record, it is unnecessary that the bill of exceptions con-
tain any assignment of error.-Shotwell v. Dodge

14. Review - Matters Not Apparent in Record. Where a judg-
ment has been founded on findings of fact and of law made
by the court in an action at law, the failure to include
such findings in the record on appeal will not entitle the
appellant to a review of the judgment, although a proper
statement of facts may have been brought up.-State, ex
rel. Buddress, v. Rohde.

255

272

289

327

337

362

APPEAL-CONTINUED.

15. Insufficiency of Complaint - When Cannot be Raised on Appeal. Where the question of the insufficiency of the complaint in an action to sustain the judgment has not been raised in the brief of appellant, it will not be considered on appeal. Id...

362

16. Record Bill of Exceptions Detached from Transcript. Although a transcript on appeal may be properly certified, yet where the bill of exceptions accompanying it is a detached paper, without authentication, the supreme court will ignore the errors shown in the bill.- Stinson v. Sachs.. 391 17. Judgment Against Sureties on Appeal Bond. It is within the jurisdiction of the supreme court to enter judgment against the principals and sureties upon a stay bond on appeal when affirming judgment against the appellants.Hanna v. Savage..

432

18. New Trial - Excessive Damages - Discretion of Court. It is a matter within the discretion of the trial court to grant a new trial on the ground that the damages awarded by the verdict of the jury are excessive, and the ruling of the court thereon will not be interfered with, unless it appears affirmatively from the record that such discretion has been improperly exercised.—Kohler v. Fairhaven, etc., Ry. Co......... 452 19. Same-Right of Appellant to Reversal on Remitting Excessive Judgment. Although an order granting a new trial has been made contingent upon the plaintiff's remitting a portion of the verdict, which he refuses to do, the plaintiff is not entitled on appeal, when no error is found in the action of the lower court, to a reversal of the order conditioned upon his remitting such portion of the verdict as may seem just to the appellate court.—Id....

20. Error Occurring at Trial-Waiver. Error arising upon a ruling of the court in regard to the right of argument cannot be urged on appeal after waiver at the trial.-State v. Ackles..

21. Weight of Testimony-Order Granting Temporary Injunction. Where there is a substantial conflict over the facts upon which a temporary injunction has been granted, the supreme court will not, on an appeal from such order, disturb the action of the trial court.-West Coast Improvement Co. v. Winsor......

22. Verdict Upheld Where Testimony Conflicting. The jury is the tribunal instituted by law to pass upon questions of fact,

452

462

490

APPEAL-CONTINUED.

and, where there is a conflict of testimony, the verdict will
not be disturbed by the courts.--State v. Manville.........
23. Improper Argument- When Harmless Error. The refusal
of the court to strike out improper remarks of counsel at
the time of their utterance is harmless error, where the
court later instructs the jury to disregard them.-State v.
Regan

24. Same-Objections Not Raised Below. No error can be
founded upon improper argument of counsel where no
motion is made to strike it, or the court asked to instruct
the jury to disregard it.—Id

25. Statement of Facts - Notice of Settlement. The fact that
notice of the settlement of a statement of facts was given
prior to the rendition of judgment, is not ground for strik-
ing the statement, when the notice designated a day subse-
quent to the judgment as the time at which the application
for settlement would be made.-Phillips v. Port Townsend
Lodge, No. 6.

523

506

506

529

26. Appealable Order — Directing Receiver to Sell Property at
Suit of Intervenors. Where a receiver of a railroad corpo-
ration has been appointed in an action instituted for that
purpose, an order, made upon a complaint in intervention
by preferred creditors against a mortgagee of the property,
directing the sale of the rolling stock to satisfy the claims
of the preferred creditors, is an appealable order, as the
title to the rolling stock is thereby absolutely determined
adversely to the claim of the mortgagee.-Radebaugh v.
Tacoma & Puyallup R. R. Co.......
570

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27. Notice of Appeal — Notice to Receiver Sufficient for all Cred-
itors. In such a proceeding the statute requiring all parties
not joining in the appeal to be served with notice is com-
plied with by service upon the receiver, who is the repre-
sentative of all the creditors, and by the joinder or
notification of all parties to the proceedings in interven-
tion.-Id...

-

28. Review by Appellate Court ·Appointment of Receiver.
Where an appeal is from an order incident to a receiver's
suit, and is not an attack upon the order appointing a re-
ceiver, the appellate court is not authorized to inquire into
the regularity of the proceedings leading up to the appoint-
ment of the receiver.-Id..

29. Laws Changing Procedure-Application to Pending Appeals.
Where a law regulating appeals provides "that it shall

570

570