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county court. The very fact, however, that the was done as a public official representing the county court contracts for the services of an county, and not as an individual. attorney, presupposes that the court has de- dividual he made no contract with appellant, termined the necessity and propriety therefor; but acting for the county he made a contract and, even if the prosecuting attorney may ob- in the most solemn form. I cannot see that the ject to the contract, it is too late to do so after issues of a political campaign, which resulted it has been entered into. The prosecuting at- in Judge Harp's defeat for re-election as a countorney might, like any other citizen, appeal from ty judge, have anything whatever to do with the order of the county court entering into such this case. It might be different if there was a contract; but he cannot defeat the contract any charge here of fraud and collusion between or abrogate it merely by manifesting his dis- Judge Harp and appellant to defraud the county approval.

by making a contract for the latter to perform Again it is said by the two judges, whose services for the county judge as an individual views I am now discussing, that the evidence is and impose the payment upon the county. But sufficient to warrant the conclusion that appel- such is not the state of this case. The most lant was acting for the county judge personally, that can be said of it is that Judge Harp made and not for the county court. Where is that ev- a mistake as a matter of policy in pushing the idence found? The contract is evidenced by movement to build a new courthouse. an order of the county court which was duly It is treating too lightly the solemn contract entered of record, and pursuant to that contract of the parties to set aside the appellant's conappellant performed the services contemplated tract with the county on any such grounds as in the employment. There is no evidence what that which has been mentioned as sustaining ever that Judge Harp personally employed ap- the decision of the circuit court. I am of the pellant to do anything at all, and there is no opinion, therefore, that the undisputed evidence suggestion anywhere in the record of any fraud in this case shows that appellant's contract or collusion between the two. Judge Harp was with the county court was valid, and that he very earnestly in favor of building a new court- performed the services and is entitled to the house. Whether he was right or wrong about compensation specified in the contract. Mr. that, as a matter of policy or propriety, it is Justice WOOD agrees with me in this concluplain that what he did was openly done and sion.

END OF CASES IN VOL. 179

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It Supplements the Decennial Digest, the Key-Number Series and

Prior Reporter Volume Index-Digests

ABANDONMENT.

press company's delay in transmitting money

to them allowed the party from whom it was See Homestead, Om 162; Husband and Wife, extorted to garnish it.-American Express Co. Om 302, 313; Parent and Child, Om 17. v. North Ft. Worth Undertaking Co., 179 S.

W. 908. ABATEMENT AND REVIVAL.

III. JOINDER, SPLITTING, CONSOLISee Death, Ow10.

DATION, AND SEVERANCE.
ABSTRACTS.

57 (Ark.) An interpleader suit to determine

title to a certain fund held properly consolidatSee Appeal and Error, Om590, 671.

ed, under act May 11, 1905, with an independ

ent suit brought by the party sought to be joinABUSIVE LANGUAGE.

ed in the interpleader, for the same fund.

Beatrice Creamery Co. v. Garner, 179 S. W. See Appeal and Error, 767, 833.

160.
ABUTTING OWNERS.

ADJOINING LANDOWNERS.
See Municipal Corporations, Om265–567, 808. See Boundaries.
ACCEPTANCE.

ADMINISTRATION.
See Bills and Notes, Om68; Elections, 146; See Executors and Administrators.
Mortgages, Ow73.
ACCIDENT INSURANCE.

ADMISSIONS.

See Criminal Law, Ow406, 407; Evidence, O See Insurance, mm 349.

211-265; Pleading, 129, 214, 376. ACCOMPLICES.

ADOPTION. See Criminal Law, w 507–511, 780; Witnesses, Omn 278.

Om 6 (Tex.Civ.App.) In an action for parti

tion, evidence held not to sustain a finding that ACCORD AND SATISFACTION.

a decedent, adopting a child of his intended

wife, intended that she should take, either unSee Compromise and Settlement; Novation; der his will or upon his intestacy, equally with Payment.

his own children.-Masterson v. Harris, 179 S. ACCOUNT.

W. 284.

In action for partition, held, on the pleadings, See Account Stated; Guardian and Ward, em that proof that decedent had' intended that an 162; Partnership, Om336, 346.

adopted child, through whom plaintiff claimed,

should have the same interest in his estate as ACCOUNT, ACTION ON.

his own children, did not authorize judgment See Account Stated.

for plaintiff.-Id. ACCOUNT STATED.

ADULTERY.
Om 6 (Ark.) Where no objection to an item-See Fornication; Homicide, ww47.
ized account is made within a reasonable time,
it is to be regarded as admitted by the person

ADVERSE POSSESSION.
charged as prima facie correct.-May & Ellis See Limitation of Actions.
Co. v. Farmers' Union Mercantile Co., 179 S.
W. 490.

I. NATURE AND REQUISITES. On 20 (Ark.) The question whether by reason of delay in notice of alleged shortages an ac

(F) Hostile Character of Possession. count became an account stated held, under the On 68 (Tex.Civ.App.) When two persons are in evidence, for the jury.-May & Ellis Co. v. mixed possession, one by title, and the other by Farmers' Union Mercantile Co., 179 S. W. 490. wrong, the one having title, held in possession

to the extent of his rights, so as to preclude adACTION.

verse possession by the other.-Wichita Valley

Ry. Co. v. Somerville, 179 S. W. 671. See Attachment, Om 343.

(G) Payment of Taxes. 1. GROUNDS AND CONDITIONS PRE-Oww86 (Tex.Civ.App.) To acquire title by adCEDENT.

verse possession for five years under Vernon's Cm 4 (Tex.Civ.App.) Parties extorting money Sayles Ann. Civ. St. 1914, art. 5674, payment by duress held not entitled to complain that ex- of all taxes, including city and school taxes,

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER

held necessary.-Wichita Valley Ry. Co. v. submission of question of damages, though inSomerville, 179 S. W. 671.

jury might have come from other sources.-Id. II. OPERATION AND EFFECT.

AIDER BY VERDICT. (A) Extent of Possession.

See Indictment and Information, Omw 202; www 103 Tex.Civ.App.) Wife having adverse Pleading, 433. possession after husband's death of lots part of which was community property and part be

ALIBI. longing to a stranger held to acquire the whole interest therein, and not merely an undivided See Criminal Law, Cm775. half interest.-Wichita Valley Ry. Co. v. Somerville, 179 S. W. 671.

ALIENATION.
III. PLEADING, EVIDENCE, TRIAL,

See Perpetuities.
AND REVIEW.

ALIMONY.
Om 112 (Tex.Civ.App.) In trespass to try title
against mother and son, both living on the land, See Divorce, O236–241.
mother held to have burden of showing her pos-
session under a claim of exclusive ownership.-

ALTERATION OF INSTRUMENTS. Wichita Valley Ry. Co. v. Somerville, 179 S. W. See Bills and Notes, C378; Forgery; Indict671.

ment and Information, On 34. Om 115 (Tex.Civ.App.) Facts held to raise issue as to son's possession and as to mixed or

Ow20 (Tex.Civ.App.) Change in personality, joint possession or occupancy by mother and number, or relation of parties to instrument, son, and not to entitle mother to peremptory in- without consent of the opposite party, held to struction under the ten-year statute.--Wichita avoid it, even in the hands of an innocent purValley Ry. Co. v. Somerville, 179 S. W. 671.

chaser-Bolt v. State Savings Bank of Mancm 116 (Tex.Civ. App.) In trespass to try title, c. 25 (Tex.Civ.App.) That the makers consent

chester, Iowa, 179 S. W. 1119. refusal of instruction as to lease from plaintiff ed to or ratified alteration of note, or that it that she and not the son was in possession held was not altered by a party to the suit, held matnot error.-Wichita Valley Ry. Co. v. Somer-ters to be pleaded by plaintiff suing on the note.

-Bolt v. State Savings Bank of Manchester, ville, 179 S. W. 671.

Iowa, 179 S. W. 1119.
ADVERTISEMENT.

AMENDMENT.
See Municipal Corporations, Omw 683.

See Appeal and Error, C590; Pleading, Om

236-261; Statutes, 141, 143. AFFIDAVITS. See Criminal Law, 134, 608, 956, 957; Ex- AMOUNT IN CONTROVERSY. ecution, m184; Judgment, 391.

See Appeal and Error, Omw 45; Courts, Own 231. Om5 (Tex.Cr.App.) On motion for new trial for newly discovered evidence, affidavits made

ANIMALS. before the attorney of defendant are invalid and cannot be considered.-Pope v. State, 179 S. See Carriers, Ow205–230; Game; Railroads, W. 874.

Omw 411-447. Ouws 5 (Tex.Cr.App.) Affidavits sworn to before 26 (Ky.) Under Ky. St. $ 2500, lessor of defendant's attorney are not entitled to consid- grazing lands had no lien on mares belonging eration on his motion for new trial.-McDonald to a third person covering a charge for grazing v. State, 179 S. W. 880.

them thereon under a contract with the lessee C 14 (Tex.Civ.App.) An affidavit in lieu of an during the term of the lease.-Patchen-Wilkes appeal bond sworn to before the judge of a Stock Farm Co. v. Walton, 179 S. W. 823. county court of another state is defective.- Ow50 (Tex.Civ.App.) Where cattle escaped Rounds v. Coleman, 179 S. W. 530.

from the owner's inclosure through no fault of

his, he was not guilty of a violation of the AFTER-ACQUIRED PROPERTY. stock law, prohibiting the running at large of

animals.-Ft. Worth & D. C. Ry. Co. v. DecaSee Mortgages, Ow13.

tur Cotton Seed Oil Co., 179 S. W. 1104. AGENCY.

ANSWER.
See Principal and Agent.

See Pleading, Om 129.
AGISTMENT,

ANTI-TRUST LAW.
See Animals, em 26.

See Monopolies.
AGRICULTURE.

APPEAL AND ERROR.
See Constitutional Law, Om 240, 296; Statutes, See Affidavits, Om14; Courts, Ow223–247.
On 20.

For review of rulings in particular actions or 8 (Tex.Civ.App.) In an action under Rev proceedings, see also the various specific St. 1911, arts. 6601, 6602, against a railroad topics. company for damages caused by its allowing Johnson grass to go to seed on its right of way, I. NATURE AND FORM OF REMEDY, the question of permanent damages held prop- en 2 (Ky.) The law in force at the time an aperly submitted; there being testimony that land peal is granted controls the right.-Gough v. infested with Johnson grass could not be clear-Illinois Cent. R. Co., 179 S. W. 449. ed.-Missouri, K. & T. Ry. Co. of Texas v. Forrest, 179 'S. W. 273.

III. DECISIONS REVIEWABLE. In an action for damages for allowing John

(C) Amount or Value in Controversy. son grass to go to seed on a railroad right of way, where the jury were charged that plaintiff Onw 45 (Ky.) Under Ky. St. $ 950, subsecs. 1, was bound to show the damages caused by de- 3, an appeal will be dismissed, where the amount fendant's act, defendant could not complain of l in controversy was less than $500, and it did

1203

INDEX-DIGEST

Appeal and Error

not appear that there was prejudicial error, or debtor to the defendant.-Commonwealth v. Filthat the construction or validity of a statute or iatreau, 179 S. W. 20. of the Constitution was in issue.-Gough v. Illinois Cent. R. Co., 179 S. W. 449.

(B) Objections and Motions, and Ruling's

Thereon. (D) Finality of Determination. Om 185 (Ark.) The question of the lower court's Om76 (Tex.Civ.App.) Where a judgment did jurisdiction of the subject-matter may be raised not dispose of certain interveners, nor of the for the first time in the appellate court.-Chisubject-matter sued for by them, and there was cago Mill & Lumber Co. v. Drainage Dist. No. no order of dismissal as to them, the judg. 16, 179 S. W. 998. ment would not support an appeal.-Moore v. w 193 (Mo.App.) Unless a petition is so deToyah Valley Irr. Co., 179 S. W. 550.

fective as to wholly fail to state any cause of Om79 (Tex.Civ.App.) In an action having sev-action, an objection that it does not state a eral parties plaintiff and defendant, a judgment cause of action first made in the appellate court not disposing of issues between some parties is cannot be considered. First Nat. Bank of Grant not final, and not appealable.-J. I. Case Thresh-City v. Korn, 179 S. W. 721. ing Mach. Co. v. Lipper, 179 S. W. 701.

194 (Tex.Civ.App.) That special exception Om79 (Tex.Civ.App.) Judgment in suit by cor- in plaintiff's supplemental petition was not in poration to recover title and possession of goods due order of pleading would not be entertained in which interveners claimed, which neither di- when first made in the Court of Civil Appeals. rectly or by implication adjudicated plaintiff's -Scruggs v. E. L. Woodley Lumber Co., 179 claim, held not a final judgment and not appeal- S. W. 897. able.-Finnigan-Brown Co. v. Escobar, 179 s. 209 (Mo.App.) Where a party joins in subW. 1127.

mitting the case to the jury, he cannot assign In suit to recover title and possession of goods, as error on appeal that on the undisputed facts interests being claimed by defendants and inter- the adverse party is not entitled to judgment. veners as well as plaintiff, judgment failing to -McCracken v. Schuster, 179 S. W. 757. adjudicate on plaintiff's claim was not by impli-216 (Ky.) The contention on appeal that cation an appealable final determination be an additional instruction should have been givcause the verdict determined such claim.-Id.

en in the terms indicated by appellants' brief Om 80 (Tex.Civ.App.) In an action on a note, would not be considered, where no such instruca judgment not disposing of indorser's prayer tion was offered or asked by appellants. for judgment over against his codefendant held Ramey v. Ironton Lumber Co., 1179 S. W, 207. not a final

final appealable judgment.-Houston 216 (Tex.) Where correct charge was given Transp. Co. v. Peden Iron & Steel Co., 179 S. Ion contributory negligence in personal injury W. 443.

suit, question of its direct application to the (E) Nature, Scope, and Effect of Decision. facts will not be determined, in absence of re

quest by defendant for more elaborate charge.Cum 101 (Tex.Civ.App.) Where a receiver was Wells Fargo & Co. v. Benjamin, 179 S. W. 513. appointed and subsequently on an amended pe-C

242 (Tex. Civ.App.) When the court refuses tition the order of appointment was vacated, to rule on a general' demurrer which is well but was followed by a later order of reappoint- taken, the case will be reversed for fundamental ment, an appeal from the order lies, under Ver- error.-City of Brownsville v. Tumlinson, 179 non's Sayles' Ann. Civ. St. 1914, art. 2079.- IS. W. 1107. Hart-Parr Co. v. Alvin-Japanese Nursery Co., 179 S. W. 697.

(C) Exceptions.

Om 272 (Tex.Civ.App.) Assignments of error V. PRESENTATION AND RESERVA- complaining of the court's refusal to submit TION IN LOWER COURT OF

special charges will not be considered, where GROUNDS OF REVIEW.

appellant did not except to such refusal in (A) Issues and Questions in Lower Court. proper time.-Gillespie v. Williams, 179 S. W.

1101. Om 171 (Ky.) Where the intervening defendant after overruling of its demurrer filed a re

(D) Motions for New Trial. joinder to the reply which set up a wholly new 282 (Tex.) Under Rev. St. 1911, art. 1991, cause of action against it, the case on appeal it is not a prerequisite to perfecting an appeal will be disposed of on the theory that the reply that the appealing party shall move for new took the place of an amended petition.-Hodge trial, where the trial below is without a jury. Tobacco Co. v. Sexton, 179 S. W. 36.

-Craver v. Greer, 179 S. W. 862. Om 172 (Ky) Under petition in minor servant's In spite of rule 24 of the Supreme Court action for injuries, held, that he could not raise (142 S. W. xii), it is not a prerequisite to the the issue for the first time on appeal that he perfecting of an appeal in other than jury was employed in violation of Ky. St. 331a, cases that a motion for new trial be made by subsec. 9, forbidding employment of one under the appealing party:-Id. 16 years in work dangerous to life.--Mason & Rule 24 of the Supreme Court (142 S. W. Hurst Co. v. Feltner, 179 S. W. 222.

xii) must be construed together with other court em 173 (Ky.) Where defendants failed to raise so construed does not require a motion for a the question below that the plaintiff union so construed does not require a motion for a was an unlawful combination in restraint of new trial in cases tried to the court.-Id. trade, and could not recover in the action, it cases tried to the court, without filing a notice

The right to have an appeal considered, in was 'too late to raise it on appeal.-Pete for new trial does not depend upon filing by Sheeran, Bro. & Co. v. Tucker, 179 S. W. 426. the trial judge of his conclusions of fact or law. Om 173 (Tex.Civ.App.) The insurer, who did -Id. not set up in the trial court a provision of the Om282 (Tex.Civ.App.) Under Vernon's Sayles' policy that it assumed no obligation unless in- Ann. Civ. St. 1914, arts. 1612, 1991, and dissured was in good health at its delivery, could trict court rule 71a (145 S. W. vii), motion for not urge the defense for the first time in the new trial held unnecessary in case tried without appellate court.-American Nat. Ins. Co. v. An- a jury, where conclusions of fact and law are derson, 179 S. W. 66.

filed and exception taken.-Wilkerson v. Stasney On 179 (Ky.) In action to enforce judgment, & Holub, 179 S. W. 669. commissioner's report and defendant's exception On289 (Ark.) An assignment of error comthereto held to sufficiently raise the question as plaining that the court refused to allow defendto the number of jacks sold by the judgment ant to introduce evidence to prove a defense

cannot be considered, where there was no mo- in absence of statement of facts.-Allen v. Reed, tion for new trial.-Hall v. Gage, 179 S. W. 179 S. W. 544. 508.

Error in admission of evidence held not reOn 300 (Mo.App.) Matters of exception cannot viewable, in absence of bill of exceptions or be reviewed in the appellate court, unless re- statement of facts disclosing the evidence.-Id. served in a motion for a new trial filed in prop

Assignment of error asserting right of plainer time.-Fleming v. Meals, 179 S. W. 743. tiff to judgment upon the evidence cannot be Cm301 (Ky.) That it was not made a ground considered in the absence of a statement of for a new trial held no objection to the consid- facts.-Id. eration on appeal of the error that the court sit-Omw 553 (Ky.) Under Civ. Code Prac. § 337, ting as in equity improperly transferred the subd. 2, a stenographer's transcript of the evicase to the common-law docket.-Consolidation dence not approved by the court and made part Coal Co. v. Vanover, 179 S. W. 43.

of the record during the term or the time allowed cannot be treated as a bill of exceptions.

-Graves' Committee v. Lyons, 179 S. W. 413. VII. REQUISITES AND PROCEEDINGS FOR TRANSFER OF CAUSE.

(D) Contenis, Making, and Settlement of (B) Petition or Prayer, Allowance, and

Case or Statement of Facts.
Certificate or Affidavit.

564 (Tex. Civ.App.) A purported statement Om 358 (Ky.) A party to a proceeding to sell of facts, filed in the Court of Civil Appeals, the land of an incompetent has no standing in which statement had never been filed below the Court of Appeals, where its clerk had not within 90 days of perfecting the appeal, as regranted her an appeal, and none had been quired, could not be considered. - International granted by the trial court.-Graves' Committee & G. N. Ry. Co. v. Reek, 179 S. W. 699. V. Lyons, 179 S. W. 413.

Statement of facts filed late in the trial court will be considered when the late filing is prop

erly excused in the motion for rehearing by (D) Writ of Error, Citation, or Notice.

showing difficulty of counsel in getting the statemw424 (Tex.Civ.App.) Under Rev. St. 1911, ment prepared. - Id. art. 2095, service of citation in error upon par Filing of statement of facts in Court of ty's attorney, instead of upon the party who re- Civil Appeals held not to preclude such court sided in the county where the case was tried, from refusing to consider such statement bewas invalid and did not confer jurisdiction up- cause it was not filed below.-Id. on the Court of Civil Appeals.-First Nat. Bank Agreement by appellee's counsel that the of Knox City v. Lester, 179 S. W. 684.

statement of facts might be filed out of time

could not relieve appellant of the duty and X. RECORD AND PROCEEDINGS NOT necessity of filing such statement in the trial IN RECORD

court.-Id. (A) Matters to be shown by Record.

Ow569 (Tex.Civ.App.) Without a statement of

facts approved by the trial judge, assignments of Ow493 (Tex. Civ. App.) A default judgment error cannot be considered.-San Antonio, U. & against a defendant will be reversed where the G. Ry. Co. v. Yarbrough, 179 S. W. 523. record fails to show service of citation other 569 (Tex.Civ.App.) Under the statute, appelthan by the recital thereof in the judgment.- lant, without consent of appellee, may without Bonner Oil Co. v. Gaines, 179 S. W. 686. the reporter's transcript prepare a statement Om 499 (Tex.Civ.App.) A bill of exceptions to of facts on appeal, and have it approved by the the refusal of the court to submit the case on judge.-J. B. Farthing Lumber Co. v. Illig, 179 special issues should show at what point in the S. W. 1092. trial the request was made.-Banks v. Mixon, C569 (Tex.Civ.App.) Bills of exceptions tak179 S. W. 690.

en to the exclusion of evidence could not be ww499 (Tex.Civ.App.) Bills of exceptions to considered on appeal, where they were not signrefusal of requested special charges must dis- ed by the presiding judge.-Hall v. Ray, 179 S. close that such charges were submitted to op- W. 1135. posing counsel for examination and objection, cm 578 (Tex.Civ.App.) A supplemental stateas required by Rev. St. 1911, art. 1973, as ment of facts held not proper matter for conamended by Acts 33d Leg. c. 59 (Vernon's sideration in addition to the statement of facts Sayles' Ann. Civ. St. 1914, art. 1973).-J. B. filed and approved in time.- Texas Fidelity & Farthing Lumber Co. v. Illig, 179 S. W. 1092. Bonding Co. v. Brown, 179 S. W. 1125. Cum 499 (Tex.Civ.App.) Where bills of exceptions do not disclose the objections made to evidence

(E) Abstracts of Record. excluded, the ruling cannot be considered on C590 (Mo.App.) Request for leave to amend appeal.-Hall v. Ray, 179 S. W. 1135.

original abstract would be denied where it did Cw500 (Ky.) Where the bill of exceptions not come until after appellees had attacked the fails to show the order complained of limiting original abstract, and no reason was given for the number of witnesses, the question cannot be appellant's failure to present a sufficient abreviewed.-Deitchman v. Bowles, 179 S. w. stract in the first instance.-Fleming v. Meals, 249.

179 S. W. 743. @mw 501 (Mo.App.) Where bill of exceptions fails not be inferred from the mere granting of per

Leave to amend an abstract of the record canto show exception to overruling of motion for mission to file a supplemental abstract, subject new trial, no errors are presented, except those to further decision of the question whether an appearing on face of record proper.-National Novelty Import Co. v. Diekman, 179 S. W. 724. amendment should be allowed.-Id. Own 515 (Ky.) In an equity cause, where a re (G) Authentication and Certification. view of the testimony is desired, it must be in-mw 616 (Ky.) Instructions which the clerk had corporated in the record by proper bill of ex- copied into the record held not so identified that ceptions.-Graves' Committee v. Lyons, 179 s. they could be considered. --Cotton Seed Products W. 413.

Co. v. Bondurant, 179 S. W. 603. (C) Necessity of Bill of Exceptions, Case, (H) Transmission, Filing, Printing, and or Statement of Facts.

Service of Cojies. Om548 (Tex.Civ.App.) Assignments of error Ouw627 (Mo.App.) Under Rev. St. 1909, $$ attacking a verbal agreement for want of con- 2047-2049, and Courts of Appeals Rules 15, 18 sideration, and answer of jury to special issues (169 S. W. xxi, xxii), the court may not afas against the evidence, and submission of spe- firm the judgment for failure of appellant to cial issues as irrelevant cannot be considered serve and file abstracts of record in time, but

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