necessarily finds as ultimate facts all matters of fact relevant or otherwise which are contained in Exhibit C, which, as before stated, is a voluminous record of the administrative acts and doings of the defendant during a period of some five years, and the bulk of which cannot, of course, have any direct connection with any of the questions in litigation here, but some of which, as counsel claim, do bear upon the issues of this case.

Counsel are at loggerheads in their briefs as to what ultimate facts appear and what do not appear in Exhibit C. Respondent's counsel contends that certain facts-some of which are pertinent, and others claimed not to be so--are duly found by the court, because the court adopts Exhibit C as a part of its findings of fact; and, on the other hand, the appellant's counsel contends that certain specific facts material to a determination of the case are proven either positively or negatively by Exhibit C, but that such facts are not enunciated and embodied in the findings of the court, nor in the stipulated facts, and hence are practically useless in disposing of the case. It is obvious that this confusion comes about solely because the letter and spirit of the statute were violated when the trial court assumed to substitute for express findings upon material and ultimate facts in issue certain evidence and evidential facts submitted at the trial and agreed to by counsel. In Wagner v. Nagel, (Minn.) 23 N. W. Rep. 308, the court say: "A conclusive reason why this judgment must be reversed is that there are no findings to support it. The so-called findings are mere statements of evidence." As to indefinite firdings, see Templen v. Plattner, (Iowa) id. 664; Demming v. Weston, 15 Wis. 236-238. The supreme court of Missouri say: "A finding of facts which does not cover all the matters put in issue by the pleadings is insufficient, and ground of reversal." Downing v. Bourlier, 21 Mo. 149. Judgments were reversed in the following cases for insufficient findings of fact: Bates v. Wilbur, 10 Wis. 415; Reich v. Mining Co., 3 Utah, 254, 2 Pac. Rep. 703; Bowman v. Ayers, (Idaho) 13 Pac. Rep. 346; Conlan v. Grace, (Minn.) 30 N. W. Rep. 880. We do not hold that it would be impossible to so stipulate the facts at the trial that they would be at once so explicit and so responsive to the issues that they could be adopted

in hæc verba by the court as the findings of fact; but we do hold that this record does not present such a case. In this case the ultimate facts which are material to a determination of the issues have not been found, and for such omission the judgment will be reversed. But the same disposition of the case will follow upon a consideration of the record upon the facts and merits. A perusal of this record shows that the case is parallel in its facts, and falls completely within the principles of law laid down in a case decided by this court at the present term, i. e., Capital Bank of St. Paul v. School Dist. No. 53, reported ante, 479. Wedeem further discussion of this case unnecessary. Following the ruling in the case cited, we shall make an order directing a reversal of the judgment, and dismissing the action. All concur.

ON REHEARING, MARCH 16, 1891.

PER CURIAM. After due consideration of the arguments presented at the rehearing of this case the court will adhere to its views as set forth in the foregoing opinion. Its reasons for so doing are set forth in the opinion filed in the case of Capital Bank of St. Paul v. School Dist. No. 53, ante, 479, where the principal questions involved in this case are fully considered..

INDEX.

ACCORD

AND

SATISFACTION.

ACCEPTANCE OF LESS THAN LAWFUL SALARY.

An officer rendering bills for less than his legal salary and accepting
payment of the same cannot afterwards recover the difference between
what he might have claimed and what he did claim. O'Hara v. Park
River, 279.

ACTION.

(At law between partners. See Partnership.)

(By cestui que trust against trustee. See Trust and Trustee.)
(On warranty. See Warranty.)

(Diligence in bringing. See Trover and Conversion.)

(Limitation of time to bring. See Insurance.)
(Former action pleaded in bar. See Judgment.)

ADMINISTRATOR.

(Substitution of as defendant. See Partnership.)
(See Executors and Administrators.)

ADMISSIONS.

(Of agent to bind principal. See Principal and Agent.)

AFFREIGHTMENT.

(See Contract.)

AGENT.

(See Principal and Agent.)

ALIENATION.

(Suspension of power to alienate. See Trust and Trustee.)

AMENDMENT.

(See Pleading.)

APPEALABLE Order.

APPEAL.

1. An order of the district court refusing an application for judg.
ment upon the findings of a jury is not an appealable order, within the
meaning of subdivision 1, § 5236, Comp. Laws 1887, which subdivision
is as follows: "An order affecting a substantial right, made in any
action, when such order in effect determines the action, and prevents a
judgment from which an appeal might be taken." Such an order
neither determines an action nor any issue in an action, nor is it the
legal effect of such an order to prevent the entry of a judgment from
which an appeal might be taken. Persons v. Simons, 243.

2. Held, further, that the order is not rendered appealable by the
fact that the district court had previously denied defendant's applica-
tion for judgment on the findings of the jury. Id.

3. An order vacating an attachment is an appealable order. Red
River Valley Bk. v. Freeman, 196.

BOND ON APPEAL.

Municipal and public corporations need not give bond on appeal to
obtain stay of proceedings. Territory v. Woodbury, 85.
REVERSIBLE ERROR.

1. After a trial by jury, and at the close of plaintiff's testimony, the
defendant moved the trial court to direct a verdict in defendant's favor,
which motion was granted, and plaintiff duly excepted to the order.
Evidence examined. Held, that the order directing a verdict was sub-
stantial error to plaintiff's prejudice, and that a new trial must be
granted for the reason that the evidence reasonably tended to sustain
the allegations of the complaint, and hence such evidence should have
been submitted to the jury. Slattery v. Donnelly, 264.

2. Where defendant sheriff justified seizure under writ of attach-
ment and alleged that the debt, on which was brought the action in
which the writ issued, was incurred under false pretenses, (plaintiff
claiming property as exempt) the refusal of the court to allow proof of
the false pretenses is reversible error. Taylor v. Rice, 72.

3. Error does not constitute reversible error where the plaintiff con-
clusively established his right to recover on grounds wholly different
from and independent of the subject-matter of the erroneous instruc-
tion. Such instruction did not materially affect the substantial rights
of the defendant, and hence it is not prejudicial error. Johnson v. N.

P. R. R. Co., 354.

WHAT ERRORS REVIEWED.

1. To sustain objection to a question, the competency of which is
not apparent on its face, is not error unless offer is made to prove the
facts sought to be elicited by the question. Halley v. Folsom, 325.

2. Sufficiency of the evidence to support the verdict cannot be as-
sailed in the supreme court when in neither the notice of intention to
move for a new trial nor the bill of exceptions are the particulars spec-
ified wherein the evidence is alleged to be insufficient. Pickert v.
Rugg, 230.

3. The action of the trial court in directing a verdict, and in refus-
ing to allow plaintiff to dismiss her action, cannot be reviewed on ap-
peal without an exception. Sections 5080, 5237, Comp. Laws, held not
to permit such review without an exception. De Lendrecie v. Peck, 422.
4. Irregularities in procedure not objected to nor called to attention