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county court. The very fact, however, that the county court contracts for the services of an attorney, presupposes that the court has determined the necessity and propriety therefor; and, even if the prosecuting attorney may object to the contract, it is too late to do so after it has been entered into. The prosecuting attorney might, like any other citizen, appeal from the order of the county court entering into such a contract; but he cannot defeat the contract or abrogate it merely by manifesting his disapproval.

Again it is said by the two judges, whose views I am now discussing, that the evidence is sufficient to warrant the conclusion that appellant was acting for the county judge personally, and not for the county court. Where is that evidence found? The contract is evidenced by an order of the county court which was duly entered of record, and pursuant to that contract appellant performed the services contemplated in the employment. There is no evidence whatever that Judge Harp personally employed appellant to do anything at all, and there is no suggestion anywhere in the record of any fraud or collusion between the two. Judge Harp was very earnestly in favor of building a new courthouse. Whether he was right or wrong about that, as a matter of policy or propriety, it is plain that what he did was openly done and

was done as a public official representing the county, and not as an individual. As an individual he made no contract with appellant, but acting for the county he made a contract in the most solemn form. I cannot see that the issues of a political campaign, which resulted in Judge Harp's defeat for re-election as a county judge, have anything whatever to do with this case. It might be different if there was any charge here of fraud and collusion between Judge Harp and appellant to defraud the county by making a contract for the latter to perform services for the county judge as an individual and impose the payment upon the county. But such is not the state of this case. The most that can be said of it is that Judge Harp made a mistake as a matter of policy in pushing the movement to build a new courthouse.

It is treating too lightly the solemn contract of the parties to set aside the appellant's contract with the county on any such grounds as that which has been mentioned as sustaining the decision of the circuit court. I am of the opinion, therefore, that the undisputed evidence in this case shows that appellant's contract with the county court was valid, and that he performed the services and is entitled to the compensation specified in the contract. Mr. Justice WOOD agrees with me in this conclusion.

END OF CASES IN VOL. 179

INDEX-DIGEST

KEY NUMBER SYSTEM

THIS IS A KEY NUMBER INDEX

It Supplements the Decennial Digest, the Key-Number Series and
Prior Reporter Volume Index-Digests

ABANDONMENT.

See Homestead, 162; Husband and Wife, 302, 313; Parent and Child, 17. ABATEMENT AND REVIVAL.

See Death, 10.

ABSTRACTS.

See Appeal and Error, 590, 671.
ABUSIVE LANGUAGE.

See Appeal and Error, 767, 833.

ABUTTING OWNERS.

press company's delay in transmitting money
to them allowed the party from whom it was
extorted to garnish it.-American Express Co.
v. North Ft. Worth Undertaking Co., 179 S.
W. 908.

III. JOINDER, SPLITTING, CONSOLI-
DATION, AND SEVERANCE.

57 (Ark.) An interpleader suit to determine title to a certain fund held properly consolidated, under act May 11, 1905, with an independent suit brought by the party sought to be joined in the interpleader, for the same fund.Beatrice Creamery Co. v. Garner, 179 S. W. 160.

ADJOINING LANDOWNERS.

See Municipal Corporations, 265-567, 808. See Boundaries.

ACCEPTANCE.

ADMINISTRATION.

See Bills and Notes, 68; Elections, 146; See Executors and Administrators.
Mortgages, 73.

ACCIDENT INSURANCE.

See Insurance, 349.

ACCOMPLICES.

See Criminal Law, 507-511, 780; Wit-
nesses, 278.

ACCORD AND SATISFACTION.
See Compromise and Settlement; Novation;
Payment.

ACCOUNT.

ADMISSIONS.

See Criminal Law, 406, 407; Evidence, 211-265; Pleading, 129, 214, 376.

ADOPTION.

6 (Tex.Civ.App.) In an action for partition, evidence held not to sustain a finding that a decedent, adopting a child of his intended wife, intended that she should take, either under his will or upon his intestacy, equally with his own children.-Masterson v. Harris, 179 S. W. 284.

In action for partition, held, on the pleadings, See Account Stated; Guardian and Ward, that proof that decedent had intended that an 162; Partnership, 336, 346.

See Account Stated.

ACCOUNT, ACTION ON.

ACCOUNT STATED.

adopted child, through whom plaintiff claimed, should have the same interest in his estate as his own children, did not authorize judgment for plaintiff.-Id.

ADULTERY.

ADVERSE POSSESSION.

6 (Ark.) Where no objection to an item- See Fornication; Homicide, 47. ized account is made within a reasonable time, it is to be regarded as admitted by the person charged as prima facie correct.-May & Ellis Co. v. Farmers' Union Mercantile Co., 179 S. W. 490.

20 (Ark.) The question whether by reason. of delay in notice of alleged shortages an account became an account stated held, under the evidence, for the jury.-May & Ellis Co. v. Farmers' Union Mercantile Co., 179 S. W. 490.

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See Limitation of Actions.

I. NATURE AND REQUISITES. (F) Hostile Character of Possession.

68 (Tex.Civ.App.) When two persons are in mixed possession, one by title, and the other by wrong, the one having title, held in possession to the extent of his rights, so as to preclude adverse possession by the other.-Wichita Valley Ry. Co. v. Somerville, 179 S. W. 671.

(G) Payment of Taxes.

86 (Tex.Civ.App.) To acquire title by adverse possession for five years under Vernon's Sayles' Ann. Civ. St. 1914, art. 5674, payment 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.

II. OPERATION AND EFFECT.

(A) Extent of Possession.

jury might have come from other sources.-Id.
AIDER BY VERDICT.

See Indictment and Information, 202;
Pleading, 433.

ALIBI.

103 (Tex. Civ.App.) Wife having adverse
possession after husband's death of lots part of
which was community property and part be-
longing to a stranger held to acquire the whole
interest therein, and not merely an undivided See Criminal Law, 775.
half interest.-Wichita Valley Ry. Co. v. Somer-
ville, 179 S. W. 671.

III. PLEADING, EVIDENCE, TRIAL,
AND REVIEW.

112 (Tex.Civ.App.) In trespass to try title against mother and son, both living on the land, mother held to have burden of showing her possession under a claim of exclusive ownership. Wichita Valley Ry. Co. v. Somerville, 179 S. W.

671.

ALIENATION.

See Perpetuities.

ALIMONY.

See Divorce, 236-241.

ALTERATION OF INSTRUMENTS. See Bills and Notes, 378; Forgery; Indictment and Information, 34.

number, or relation of parties to instrument, 20 (Tex.Civ.App.) Change in personality, number, or relation of parties to instrument, without consent of the opposite party, held to avoid it, even in the hands of an innocent purchaser.-Bolt v. State Savings Bank of Manchester, Iowa, 179 S. W. 1119.

115 (Tex. Civ.App.) Facts held to raise issue as to son's possession and as to mixed or joint possession or occupancy by mother and son, and not to entitle mother to peremptory instruction under the ten-year statute.-Wichita Valley Ry. Co. v. Somerville, 179 S. W. 671. 116 (Tex. Civ.App.) In trespass to try title, 25 (Tex.Civ.App.) That the makers consentrefusal of instruction as to lease from plaintiff ed to or ratified alteration of note, or that it by son and effect as against mother claiming was not altered by a party to the suit, held matthat she and not the son was in possession held ters to be pleaded by plaintiff suing on the note. not error.-Wichita Valley Ry. Co. v. Somer-Bolt v. State Savings Bank of Manchester, ville, 179 S. W. 671.

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5 (Tex.Cr.App.) On motion for new trial for newly discovered evidence, affidavits made before the attorney of defendant are invalid and cannot be considered.-Pope v. State, 179 S. W. 874.

5 (Tex.Cr.App.) Affidavits sworn to before defendant's attorney are not entitled to consideration on his motion for new trial.-McDonald v. State, 179 S. W. 880.

Iowa, 179 S. W. 1119.

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26 (Ky.) Under Ky. St. § 2500, lessor of grazing lands had no lien on mares belonging to a third person covering a charge for grazing them thereon under a contract with the lessee 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.-50 (Tex.Civ.App.) Where cattle escaped Rounds v. Coleman, 179 S. W. 530.

AFTER-ACQUIRED PROPERTY.

See Mortgages, 13.

AGENCY.

See Principal and Agent.

AGISTMENT.

See Animals, 26.

AGRICULTURE.

from the owner's inclosure through no fault of his, he was not guilty of a violation of the stock law, prohibiting the running at large of animals.-Ft. Worth & D. C. Ry. Co. v. Decatur Cotton Seed Oil Co., 179 S. W. 1104.

ANSWER.

See Pleading, 129.

ANTI-TRUST LAW.

See Monopolies.

APPEAL AND ERROR.

See Constitutional Law, 240, 296; Statutes, See Affidavits, 14; Courts, 223-247. mm 20.

For review of rulings in particular actions or proceedings, see also the various specific topics.

8 (Tex.Civ.App.) In an action under Rev St. 1911, arts. 6601, 6602, against a railroad 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-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 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 in controversy was less than $500, and it did

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

debtor to the defendant.-Commonwealth v. Filiatreau, 179 S. W. 20.

(B) Objections and Motions, and Rulings

Thereon.

185 (Ark.) The question of the lower court's jurisdiction of the subject-matter may be raised for the first time in the appellate court.-Chicago Mill & Lumber Co. v. Drainage Dist. No. 16, 179 S. W. 998.

(D) Finality of Determination. 76 (Tex.Civ.App.) Where a judgment did not dispose of certain interveners, nor of the subject-matter sued for by them, and there was no order of dismissal as to them, the judgment would not support an appeal.-Moore v. 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 79 (Tex. Civ.App.) In an action having sev-action, an objection that it does not state a eral parties plaintiff and defendant, a judgment not disposing of issues between some parties is not final, and not appealable.-J. I. Case Threshing Mach. Co. v. Lipper, 179 S. W. 701.

79 (Tex. Civ.App.) Judgment in suit by corporation to recover title and possession of goods in which interveners claimed, which neither directly or by implication adjudicated plaintiff's claim, held not a final judgment and not appealable.-Finnigan-Brown Co. v. Escobar, 179 S.

W. 1127.

cause of action first made in the appellate court cannot be considered.-First Nat. Bank of Grant City v. Korn, 179 S. W. 721.

194 (Tex. Civ.App.) That special exception in plaintiff's supplemental petition was not in due order of pleading would not be entertained when first made in the Court of Civil Appeals. Scruggs v. E. L. Woodley Lumber Co., 179 S. W. 897.

209 (Mo.App.) Where a party joins in submitting 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 because the verdict determined such claim.-Id.

80 (Tex.Civ.App.) In an action on a note, a judgment not disposing of indorser's prayer for judgment over against his codefendant held not a final appealable judgment.-Houston Transp. Co. v. Peden Iron & Steel Co., 179 S.

W. 443.

an additional instruction should have been given in the terms indicated by appellants' brief would not be considered, where no such instruction was offered or asked by appellants.Ramey v. Ironton Lumber Co., 179 S. W. 207.

216 (Tex.) Where correct charge was given on contributory negligence in personal injury suit, question of its direct application to the (E) Nature, Scope, and Effect of Decision. facts will not be determined, in absence of request by defendant for more elaborate charge.101 (Tex.Civ.App.) Where a receiver was Wells Fargo & Co. v. Benjamin, 179 S. W. 513. appointed and subsequently on an amended pe-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.-S. W. 1107. Hart-Parr Co. v. Alvin-Japanese Nursery Co., 179 S. W. 697.

V. PRESENTATION AND RESERVA-
TION IN LOWER COURT OF
GROUNDS OF REVIEW.

(C) Exceptions.

272 (Tex.Civ.App.) Assignments of error complaining of the court's refusal to submit special charges will not be considered, where appellant did not except to such refusal in proper time.-Gillespie v. Williams, 179 S. W. 1101.

(D) Motions for New Trial.

(A) Issues and Questions in Lower Court. 171 (Ky.) Where the intervening defendant after overruling of its demurrer filed a rejoinder 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.

172 (Ky) Under petition in minor servant's action for injuries, held, that he could not raise the issue for the first time on appeal that he was employed in violation of Ky. St. § 331a, subsec. 9, forbidding employment of one under 16 years in work dangerous to life.-Mason & Hurst Co. v. Feltner, 179 S. W. 222.

173 (Ky.) Where defendants failed to raise 173 (Ky.) Where defendants failed to raise the question below that the plaintiff union was an unlawful combination in restraint of trade, and could not recover in the action, it was too late to raise it on appeal.-Pete Sheeran, Bro. & Co. v. Tucker, 179 S. W. 426.

173 (Tex.Civ.App.) The insurer, who did not set up in the trial court a provision of the policy that it assumed no obligation unless insured was in good health at its delivery, could not urge the defense for the first time in the appellate court.-American Nat. Ins. Co. v. Anderson, 179 S. W. 66.

179 (Ky.) In action to enforce judgment, commissioner's report and defendant's exception thereto held to sufficiently raise the question as to the number of jacks sold by the judgment

In spite of rule 24 of the Supreme Court (142 S. W. xii), it is not a prerequisite to the perfecting of an appeal in other than jury cases that a motion for new trial be made by the appealing party.-Id.

Rule 24 of the Supreme Court (142 S. W. xii) must be construed together with other court rules, including 71a (145 S. W. vii), and when so construed does not require a motion for a new trial in cases tried to the court. Id. cases tried to the court, without filing a notice The right to have an appeal considered, in for new trial does not depend upon filing by the trial judge of his conclusions of fact or law. -Id.

282 (Tex. Civ.App.) Under Vernon's Sayles' Ann. Civ. St. 1914, arts. 1612, 1991, and district court rule 71a (145 S. W. vii), motion for new trial held unnecessary in case tried without a jury, where conclusions of fact and law are filed and exception taken.-Wilkerson v. Stasney & Holub, 179 S. W. 669.

289 (Ark.) An assignment of error plaining that the court refused to allow defendant to introduce evidence to prove a defense

cannot be considered, where there was no motion for new trial.-Hall v. Gage, 179 S. W. 508.

300 (Mo.App.) Matters of exception cannot be reviewed in the appellate court, unless reserved in a motion for a new trial filed in proper time.-Fleming v. Meals, 179 S. W. 743.

in absence of statement of facts.-Allen v. Reed, 179 S. W. 544.

Error in admission of evidence held not reviewable, in absence of bill of exceptions or statement of facts disclosing the evidence.-Id. tiff to judgment upon the evidence cannot be Assignment of error asserting right of plainconsidered in the absence of a statement of facts.-Id.

301 (Ky.) That it was not made a ground for a new trial held no objection to the consideration on appeal of the error that the court sit-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. (D) Contents, Making, and Settlement of Case or Statement of Facts.

VII. REQUISITES AND PROCEEDINGS
FOR TRANSFER OF CAUSE.

(B) Petition or Prayer, Allowance, and
Certificate or Affidavit.

358 (Ky.) A party to a proceeding to sell the land of an incompetent has no standing in the Court of Appeals, where its clerk had not granted her an appeal, and none had been granted by the trial court.-Graves' Committee v. Lyons, 179 S. W. 413.

(D) Writ of Error, Citation, or Notice.

424 (Tex.Civ.App.) Under Rev. St. 1911, art. 2095, service of citation in error upon party's attorney, instead of upon the party who resided in the county where the case was tried, was invalid and did not confer jurisdiction upon the Court of Civil Appeals.-First Nat. Bank of Knox City v. Lester, 179 S. W. 684.

564 (Tex.Civ.App.) A purported statement of facts, filed in the Court of Civil Appeals, which statement had never been filed below within 90 days of perfecting the appeal, as required, could not be considered.-International & G. N. Ry. Co. v. Reek, 179 S. W. 699.

Statement of facts filed late in the trial court will be considered when the late filing is properly excused in the motion for rehearing by showing difficulty of counsel in getting the statement prepared.-Id.

Filing of statement of facts in Court of Civil Appeals held not to preclude such court from refusing to consider such statement because it was not filed below.-Id.

Agreement by appellee's counsel that the 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 court.-Id.

IN RECORD.

(A) Matters to be Shown by Record. 493 (Tex. Civ. App.) A default judgment against a defendant will be reversed where the record fails to show service of citation other than by the recital thereof in the judgment.Bonner Oil Co. v. Gaines, 179 S. W. 686.

499 (Tex.Civ.App.) A bill of exceptions to the refusal of the court to submit the case on special issues should show at what point in the trial the request was made.-Banks v. Mixon, 179 S. W. 690.

569 (Tex. Civ.App.) Without a statement of facts approved by the trial judge, assignments of error cannot be considered.-San Antonio, U. & G. Ry. Co. v. Yarbrough, 179 S. W. 523.

569 (Tex. Civ.App.) Under the statute, appellant, without consent of appellee, may without the reporter's transcript prepare a statement of facts on appeal, and have it approved by the judge.-J. B. Farthing Lumber Co. v. Illig, 179 S. W. 1092.

569 (Tex.Civ.App.) Bills of exceptions taken to the exclusion of evidence could not be 499 (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, 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.

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501 (Mo.App.) Where bill of exceptions fails to show exception to overruling of motion for new trial, no errors are presented, except those appearing on face of record proper. National Novelty Import Co. v. Diekman, 179 S. W. 724.

(E) Abstracts of Record.

590 (Mo.App.) Request for leave to amend original abstract would be denied where it did not come until after appellees had attacked the original abstract, and no reason was given for appellant's failure to present a sufficient abstract in the first instance.-Fleming v. Meals, 179 S. W. 743.

Leave to amend an abstract of the record can

not be inferred from the mere granting of permission to file a supplemental abstract, subject to further decision of the question whether an amendment should be allowed.-Id.

(G) Authentication and Certification.

515 (Ky.) In an equity cause, where a review of the testimony is desired, it must be in-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.

548 (Tex. Civ.App.) Assignments of error attacking a verbal agreement for want of consideration, and answer of jury to special issues as against the evidence, and submission of special issues as irrelevant cannot be considered

Service of Copies.

627 (Mo.App.) Under Rev. St. 1909, §§ 2047-2049, and Courts of Appeals Rules 15, 18 (169 S. W. xxi, xxii), the court may not af firm the judgment for failure of appellant to serve and file abstracts of record in time, but

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