PER CURIAM. Action to recover a commission alleged to have been earned by plaintiff on the sale of certain real estate for defendant. Plaintiff had judgment, and defendant appealed. The only question presented for consideration is whether the trial court erred in finding certain facts outside the issues made by the pleadings, and whether the conclusions of law are sustained by the findings of fact. The rule laid down in Jones v. Wilder, 28 Minn. 238, 9 N. W. 707, controls the case. It was there held that, where there is no case or bill of exceptions, this court will presume that the findings of the trial court were within the issues litigated by the parties on the trial. In the case at bar there is no case or bill of exceptions, and under that decision we are bound to assume that the question whether plaintiff had an exclusive agency for the sale of the property was litigated on the trial by consent. The conclusions of law are fully supported by the findings of fact. Judgment affirmed. ROBERT ELLIS v. THEODORE F. CURTIS.1 November 22, 1907. Nos. 15,455-—(87). Action in the municipal court of Minneapolis to recover $500 damages for injuries to plaintiff's horse and buggy caused by defendant's wilful negligence in driving an automobile. The case was tried before C. L. Smith, J., and a jury which rendered a verdict in favor of plaintiff for $300. From an order granting defendant's motion for a new trial, plaintiff appealed. Affirmed. A. C. Middelstadt, for appellant. R. L. Penney, for respondent. PER CURIAM. The appellant was damaged by being run into by an automobile, which injured his horse and buggy. He recovered a verdict for $300. The trial court granted a new trial on the ground that the verdict was not sustained by the evidence. The issue was whether the respondent, the owner of the automobile, was present when the accident occurred; the respondent claiming that the machine was then being used by a person who was not at the time in his em 1 Reported in 113 N. W. 1134. ploy and not engaged in his business. As the evidence was not manifestly and palpably in favor of the verdict, the order of the trial court will not be disturbed. Order affirmed. IVER WOLD v. J. B. COLT COMPANY.1 November 29, 1907. Nos. 15,303-(31). Action in the district court for Beltrami county to recover $1,997 for personal injuries. From an order, McClenahan, J., granting defendant's motion to set aside and vacate the service of summons, plaintiff appealed. Affirmed. Chester McKusick, for appellant. How, Butler & Mitchell and Spencer, Ordway & Wierum, for respondent PER CURIAM. This case is controlled by the case of Wold v. J. B. Colt Co., supra, page 386, 114 N. W. 243. The order appealed from is affirmed. TOWN OF WINNEBAGO CITY v. FRITZ CHRISTENSEN.2 December 6, 1907. Nos. 15,299 (45). Action in the district court for Faribault county for a temporary injunction restraining defendant from obstructing a public highway. The case was tried before Quinn, J., who found plaintiff was entitled to a perpetual injunction. From an order denying his motion for a new trial, defendant appealed. Affirmed. Andrew C. Dunn, for appellant. Putnam & Nicholsen and S. J. Abbott, for respondent. PER CURIAM. The complaint in this action set forth that within the limits of the plaintiff and respondent, an organized town, there was, and for more than forty years 1 Reported in 113 N. W. 244. 2 Reported in 113 N. W. 1135. past had been, a public highway of a described course and direction; that defendant wrongfully obstructed the said highway, to the great damage of the plaintiff and the public. It sought a temporary injunction, and, finally, a perpetual injunction. The answer was a general denial. After trial had, the court found for the plaintiff and ordered judgment accordingly. This appeal was taken from an order denying defendant's motion for a new trial. Careful examination of the evidence has satisfied us that within the familiar rule on the subject there was sufficient evidence to sustain the findings of the trial court. We are also satisfied that the decision was not contrary to law. Defendant urges with much force that, part of this "judge-made highway” being within the territorial limits of a named village and outside of the territorial limits of the plaintiff town, it was therefore beyond its legal control. The findings are inconsistent with this contention. No motion was made to correct them on this point. The question was raised for the first time in this court. To have availed himself of the error, defendant should have made an appropriate motion in the trial court. He is entitled to no relief on that account at the present time. Affirmed. INDEX ACTION. An action on a judgment, whether domestic or foreign, must be brought -Gaines v. Grunewald, 245. Under the provisions of R. L. 1905, §§ 3838, 4060, an action to recover -Patterson v. Melchior, 363. A right of action accruing to a party under a statute of another state -Powell v. Great Northern Railway Co., 448. ADVERSE POSSESSION. Title to lands granted to the state of Minnesota for the use of its -Murtaugh v. Chicago, Milwaukee & St. Paul Railway Co., 52. APPEAL AND ERROR. An order of court setting aside its former order approving a settlement -Picciano v. Duluth, Missabe & Northern Railway Co., 21. In a case where plaintiff abandoned his appeal against one defendant, -Floody v. Great Northern Railway Co., 89. In an action for damage to a shipment of lemons, assignments of error |