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INDEX-DIGEST

Appeal and Error

i may only dismiss the appeal.- Arkansas Valley, it was based, whether the failure to give chargTrust Co. v. Corbin, 179 S. W. 484.

es with reference to the rights of plaintiff under @mw 627 (Tex.Civ.App.) Where plaintiff in error each note was error could not be determined.failed to file the record within three months First State Bank of Amarillo v. Cooper, 179 after the filing of an irregular citation in error. S. W. 295. which he believed to be regular, there was such Om 708 (Ky.) Where exceptions to confirmalaches as to require a dismissal.--First Nat. tion of a judicial sale are heard on evidence, the Bank of Knox City v. Lester, 179 S. W. 684. matter will not be reviewed on an appeal,

where the evidence is not in the record.(I) Defects, Objections, Amendment, and Graves' Committee v. Lyons, 179 S. W. 413.

Correction. Om 641 (Ky.) Motion to dismiss appeal for ap- XI. ASSIGNMENT OF ERRORS. pellant's failure to file schedule and clerk's failure to certify transmission of entire record Omw 724 (Tex.Civ.App.) The court on appeal held to be denied, in view of the record sent up. is multifarious, indefinite, and not properly

will not consider an assignment of errors which -Consolidation Coal Co. v. Vanover, 179 S. W. supported by a statement.-McConnon & Cɔ. v. 43.

McCormick, 179 S. W. 275. Om 644 (Tex.Civ.App.) Courts of Civil Appeals will notice a failure to file a statement of facts On 724 (Tex.Civ.App.) Under Rev. St. 1911, in time, although the question be not raised by art. 1612, assignments of error sufficient to dithe appellee.-International & G. N. Ry. Co. v. rect the appellate court's attention to the erReek, 179 S. W. 699.

rors complained of were sufficient.-Bonner Oil

Co. v. Gaines, 179 S. W. 686. (J) Conclusiveness and Effect, Impeach-m730 (Tex.Civ.App.) Where an assignment of ing and Contradicting.

error fails to give the substance of the requestCm 667 (Ark.) Where appellee's own counsel ed charge on the refusal of which it is based, found it impracticable to point out the deficien- and the statement fails in any way to identify cies in the abstract, the court will not go into it, the court will regard it as waived.-Pecos & the matter.–St. Louis, I. M. & S. R. Co. v. N. T. Ry. Co. v. Winkler, 179 S. W. 691. Laser Grain Co., 179 S. W. 189.

@mw 731 (Tex.Civ.App.) Any assignment of er

ror without support in the court's conclusions (K) Questions Presented for Review, of facts, and which fails to challenge the corOm67! (Ky.) In the absence of a transcript of rectness of such conclusions, presents no error. the evidence, the only matter which can be re-1-Fowler v. Carlisle, 179 s. W. 528. viewed is the sufficiency of the pleadings.-Pa-Om736 (Tex.Civ.App.) The court on appeal cific Mut. Life Ins. Co. v. Taylor, 179 S. W. will not consider an assignment of error which 199.

is multifarious, indefinite, and not properly Om 671 (Ky.) Where the record does not con- supported by a statement.--McConnon & Co. v. tain the evidence, the only questions are wheth- McCormick, 179 S. W. 275. er the pleadings and proceedings are sufficient mw 742 (Tex.Civ.App.) The court on appeal to support the judgment.-Graves' Committee will not consider an assignment of error which v. Lyons, 179 S. W. 413.

is multifarious, indefinite, and not properly Om671 (Ky.) Where there is no bill of evidence supported by a statement.--McConnon & Co. v. in the record, the court can only determine McCormick, 179 S. W. 275. whether the pleadings support the judgment.-742 (Tex.Civ,App.) Mere recital in motion Vasa Co. v. Ohio Valley Banking & Trust Co., for new trial that court overruled demurrer held 179 S. W. 1045.

not sufficient to present error under rule 31 Om 671 (Mo.App.) Where the abstract of the (142 S. W. xiii), requiring a brief statement record proper failed to show the filing and subjoined to the proposition in explanation overruling of a motion for a new trial, only thereof.-Allen v. Reed, 179 S. W. 544. the record proper could be considered, so that Assignment of error on failing to submit isconsideration of matters of exception 'was pre- sue to jury cannot be considered, in the absence cluded on appeal, and such rule was not chang- of a proposition, upon a statement that issue ed by Kansas City Court of Appeals rule 26 was raised by pleadings and was material.-Id. (169 S. W. xv).-Fleming v. Meals, 179 S. W. Assignment of error attacking judgment as 743.

permitting defendant to retain property of Cm 680 (Tex.Civ.App.) Error in overruling spe- plaintiff and that plaintiff was entitled to judgcial demurrer cannot be considered where record ment on the verdict under the pleadings and defails to show any demurrer presented or acted claring all other issues immaterial to defeat upon or exceptions taken.-Allen v. Reed, 179 s. plaintiff's action is not a proposition presentW. 544.

ing error for review.-Id. Om685 (Ky.) To show that defendant, in an Ow742 (Tex.Civ.App.) An assignment of error equitable action involving a legal issue as to complaining of the admission of evidence could which defendant was entitled to a jury trial, not be considered, where it was not followed by was prejudiced by denial of a jury trial as to

a statement showing that the court erred.-Hall such issue, the evidence must be shown by the v. Ray, 179 S. W. 1135. record.—Scott v. Kirtley, 179 S. W. 825.

An assignment of error under which no propo

sition is submitted will not be considered, where ww688 (Ky.) Civ. Code Prac. $ 340, subsec. 2, and section 343, held not to require affidavitsed on to be a proposition within itself.-Id.

it does not sufficiently disclose the point insistas to improper argument in the presence of the court and about which there was no dispute where the statement subjoined thereto is wholly

An assignment of error will not be considered and to which the court certified in a bill of ex- insufficient to support same and enable the Suceptions.-Carter Coal Co. v. Hill, 179 S. preme Court to determine without an examinaW. 2.

tion of the record whether error was committed. Om688 (Tex.Civ.App.) Statement of defend--Id. ant's counsel in his argument that plaintiff was eww 743 (Tex.Civ.App.) Plaintiff's contention a liar cannot be said to be error in the absence that defendant admitted, and that the undisof a statement of facts.-Pulkrabeck v. Griffith puted evidence showed, that he was entitled to & Griffith, 179 S. W. 282.

an item not allowed by the verdict, could not 699 (Tex.Civ.App.) Where defendants gave be considered, where the page or pages of the three separate notes, two of which were re- voluminous statement of facts containing such newal notes, and the court could not deter-admission and evidence was not given.-Hall v. mine from the general verdict upon which note Ray, 179 S. W. 1135.

Omw 747 (Tex.) Where plaintiff did not on de- Omw 835 (Tex.Civ.App.). Objections to instrucfendant's appeal assign as error the denial of tions, not contained in appellants' brief, but complete relief, the question will not be re- attempted to be set up in a motion for rehearviewed.-Owosso Carriage & Sleigh Co. v. Mc- ing, held waived.-Levy v. Dunken Realty Co., Intosh & Warren, 179 Š. W. 257.

179 S. W. 679. Om748 (Tex.Civ.App.) Assignments of error

XVI. REVIEW. not in conformity to the Courts of Civil Appeals rules for briefing and submitting cases will not (A) Scope and Extent in Ġeneral. be considered on appeal.-Allen v. Reed, 179837 (Ky.) Where inadmissible testimony S. W. 544.

was unobjected to, it must be allowed to stand XII. BRIEFS.

for what it is worth, on appeal, as part of the

evidence of the party whom it favors.--HatOm758 (Tex.Civ.App.) Under the rules for field's Adm’r v. Hatfield, 179 S. W. 832. briefing, Rev. St. 1911, art. 1612, as amended Under Civ. Code Prac. § 589, appellee's inby Acts 33d Leg. c. 136 (Vernon's Sayles' Ann. competent testimony on former trial embodied Civ. St. 1914, art. 1612), making grounds asin deposition, to which no exception was presssigned in a motion for new trial assignments of ed below, could not be disregarded on appeal; error, the assignments in the brief must be true any error in its admission having been waived. copies of such grounds, and not reconstructions --Id. thereof.-J. B. Farthing Lumber Co. v. lllig, m842 (Tex.Civ.App.) An erroneous construc179 S. W. 1092.

tion of the law applicable to the facts found is Where assignments of error are grounds as

error apparent on the face of the record.-Carsigned in a motion for new trial, they, as given roll v. Evansville Brewing Ass'n, 179 S. W. in the brief, must, as required by Rule 25 (142 1099. S. W. xii),' refer to the portion of the motion846 (Mo.App.) In an action tried to the in which they are complained of.-Id. 766 (Ark.) Where a brief fails to abstract be disregarded, unless it appears to have af

court, the erroneous admission of evidence will the complaint sufficiently to show whether a fected the decision.—Pickel v. Pickel, 179 S. W. demurrer was properly sustained, under Su-949. preme Court rule 9, the case will be affirmed.-1m866 (Ark.) Where each side requested a diUssery v. Ussery, 179 S. W. 996.

rected verdict, and neither requested any other Om767 (Tex.Civ.App.) Brief of defendant abus- instruction, the court on appeal must treat the ing the trial court and opposing counsel, and a cause as before them on the question of the suffimotion by plaintiff to strike it containing abu- ciency of the evidence to sustain the verdict.sive language in reference to opposing counsel, Swift v. First Nat. Bank of Lewisville, 179 S. stricken from the files on the court's own mo- W. 810. tion.-Mossop v. Zapp, 179 S. W. 685. ww770 (Tex.Civ.App.) Under court rule 40 (C) Parties Entitled to Allege Error. (142 S. W. xiv) an appellant's brief may be ac- 877 (Ky.) In an action to recover balance cepted as a proper presentation of the case, advanced on a timber contract, cross-defendants without examination of the record, where ap- could not complain of instructions having no pellee files no brief.-Occident Fire Ins. Co. bearing on the verdict from which they appealv. Linn, 179 S. W. 523.

ed.-Ramey v. Ironton Lumber Co., 179 S. W. Om773 (Ky.) Failure of appellant to file brief 207. 20 days before date set for hearing on appeal, e880 (Tex.Civ.App.) In action against coras required by rule 3 (154 S. W. vii), does not poration on its notes, and against its president warrant dismissal, where cause was not proper- as surety thereon, where the surety sought no ly docketed because appellee had never been relief against the corporation, he could not quessummoned.-Doherty v. First Nat. Bank, 179 tion the validity of the default judgment against S. W. 602.

it because the record showed no service on it.ww773 (Mo.App.) Under Rev. St. 1909, $8 Bonner Oil Co. v. Gaines, 179 S. W. 686. 2047-2049, and Courts of Appeals Rules 15, 18 cm 882 (Ky.) Where one party demurs to the (169 S. W. xxi, xxii), the court may not affirm petition for want of a necessary party, he is esthe judgment for failure of appellant to serve topped from afterwards alleging error in bringand file briefs in time, but may only dismiss the ing in such party, as the error, if any, is invited. appeal.-Arkansas Valley Trust Co. v. Corbin, -Carrick v. Garth, 179 S. W. 609. 179 S. W. 484. 773 (Tex.Civ.App.) Where appellants failed submission as ground of recovery of act of neg

ww882 (Tex.) Defendant cannot complain of to file briefs within the time provided in a ligence, though not the proximate cause of instipulation, and no error in law was apparent jury, where its own requested charges submiton the record, judgment held to be affirmed. Richardson v. Peden Iron & Steel Co., 179 ted the same issue: - Paris & G. N. R. Co. v. S. W. 544.

(D) Amendments, Additional Proofs, and XIII. DISMISSAL, WITHDRAWAL, OR

Trial of Cause Anew.
ABANDONMENT.

895 (Ark.) Case tried in chancery without Om781 (Tex.Civ.App.) Where the controversy objection held to come before the Supreme between the parties has been settled pending Court for trial de novo with a presumption in appeal, the appeal will be dismissed.-A. A favor of the chancellor's finding of fact, unless Fielder Lumber Co. v. Gamble, 179 S. W. 522. against the preponderance of the evidence.Com 784 (Tex.Civ.App.) Under Vernon's Sayles' Mays v. Blair, 179 S. W. 331. Ann. Civ. St. 1914, art. 2084, appellant, whose

(E) Presumptions. notice of appeal was not given before the last day of the term, and who filed no appeal bond, w907 (Ark.) In the absence of a bill of exdid not perfect his appeal so as to give the ceptions, it will be presumed that the court's. Court of Civil Appeals jurisdiction, and it will finding, in an action to set aside a judgment, be dismissed.—Elkins v. Houlihan, 179 S. W. that the attorney who confessed it was author894.

ized to do so, was sustained by evidence.

Smith v. Minter, 179 S. W. 341. XV. HEARING AND REHEARING,

Om 907 (Ky.) In the absence of a transcript of 833 (Tex.Civ.App.) Where appellee's motion the evidence, it will be presumed that the evifor rehearing contains much abusive and vitu-dence supported the judgment.-Pacific Mut. perative language referring to appellant, it will Life Ins. Co. v. Taylor, 179 S. W. 199. be dismissed with leave to file another.–Pye v. Cum 907 (Tex.Civ. App.) Where the record of a 1207

INDEX-DIGEST

Appeal and Error

hibiting horses and other animals from running Om969 (Ky.) Trial together of action for libel at large was in force, the court on appeal will against newspaper and action against reporter presume that it was not in force.-Missouri, K. thereon involving same issues held within dis& T. Ry. Co. of Texas v. Lovell, 179 S. W. 1111. cretion of court, and not to be disturbed on apCum 909 (Ky.) Where the evidence is not in the peal, except for abuse.-Reid v. Nichols, 179 record, it will be presumed in an action on an S. W. 440. insurance policy that the premiums were paid; Onw977 (Ky.) The discretion of the trial court judgment going for plaintiff. --Pacific Mut. Life in granting a new trial will not be interfered Ins. Co. v. Taylor, 179 S. W. 199.

with unless it appears to have been abused, or w 922 (Ky.) Where the facts disclosed in a unless it appears that the court transcended its motion to quash the panel were not established authority under the Code.—Gnau v. Ackerman, other than by the motion, they cannot be assum- 179 S. W. 217. ed to be true, and the denial cannot be reviewed. -Trosper Coal Co. v. Rader, 179 S. W. 1023. 977 (Mo.App.) Trial court's discretion to On927 (Ark.) In determining the correctness grant new trial should not be interfered with of directed verdict, view of evidence most favor- by appellate court, unless that discretion has able to party against whom it is directed held been clearly abused; but where no verdict in to be taken.--Barrentine v. Henry Wrape Co., favor of the party to whom the new trial is 179 S. W. 328.

granted could be allowed to stand, the order 927 (Ark.) In reviewing the direction of a granting the new trial will be reversed.-Powell verdict for defendant, the evidence for plaintiff v. Batchelor, 179 S. W. 751. must be given its highest probative force.-eww 982 (Ky.) The action of lower court in setCook v. St. Louis, I. M. & S. Ry. Co., 179 s. ting aside verdict as excessive will not be reW. 501.

viewed on appeal, in the absence of abuse of On927 (Tex.Civ.App.) Where there are both discretion by the trial court.--Beall v. Louisvalid and invalid grounds for dismissal, it will ville Home Telephone Co., 179 S. W. 251. be presumed on appeal that the dismissal was upon valid grounds only.-H. J. Murrell & Co. v. Edwards, 179 S. W. 532.

(G) Questions of Fact, Verdicts, and FindOm928 (Tex.Civ.App.) In the absence of any

ings. information enabling it to determine error in Omw 1001 (Mo.App.) Jury's finding on ample evithe refusal to charge, the presumption must be dence that railroad rail, which struck plaintiff, in support of the judgment.-First State Bank was turned by another employé as directed, and of Amarillo v. Cooper, 179 S. W. 295,

not thrown at the foreman for the purpose of O930 (Tex.Civ.App.) In an action for delay assaulting him, held to be respected.- Hellriegel in the shipment of live stock an assignment of v. Dunham, 179 S. W. 763. error that the verdict was insufficient in failing On 1001 (Tex.Civ.App.) Where the evidence is to find weight and market value, or what the sufficient to raise the issue, the finding of the jucattle sold for, will be overruled, under Vernon's Sayles' 'Ann. Civ. St. 1914, art. 1985, time of his death is conclusive on appeal.

that assured was in good standing at the where the issue was not requested and the mar- Knights of the Maccabees of the World v. Parket value was sufficiently proven.-Quanah, A.

sons, 179 S. W. 78. & P. Ry. Co. v. Collier, 179 S. W. 96. C-931 (Tex.Civ.App.) When a special answer 1001 (Tex.Civ.App.) Where the verdict is does not find all the facts necessary to form the not supported by the evidence, the case will be basis of a judgment, but does answer all the reversed.-Blair & Hughes Co. v. Watkins & questions submitted, the court is presumed to Kelley, 179 S. W. 530. have found the omitted facts necessary to sup-On 1002 (Ark.) Where a judgment was for a port the judgment.-International & G. N. Ry. less sum than the only testimony as to the damCo. v. Berthea, 179 S. W. 1087.

ages, held, that it would not be disturbed on Om 933 (Ky.) New trial held not to be assum- the ground that it was contrary to the uned to have been granted for inadequacy of the contradicted evidence; the credibility of the damages contrary to Civ. Code Prac. $ 341.- witness being involved.-Hall v. Gage, 179 S. Gnau v. Ackerman, 179 S. W. 217.

W. 508. Cm 934 (Tex.Civ.App.) Under Rev. St. 1911, 8 cm 1002 (Ky.) Where evidence was conflicting, 1985, as to presuming finding by court to sup- verdict for plaintiff not flagrantly against the port judgment, assignment that court erred in evidence is conclusive.-Shelby v. Grabble, 179 decreeing foreclosure of lien because jury made S. W. 1. made no finding on that issue held to be over-1002 (Mo.App.) Conflict between plaintiff's ruled.-King v. Collins, 179 S. W. 899.

statement of the facts and his affirmative anOm 934 (Tex.Civ.App.) On appeal from district swers to carefully-worded questions on crosscourt of T. county, to which sequestration suit examination held a matter for the jury.-Hellhad been taken by certiorari, held that, in the riegel v. Dunham, 179 S. W. 763. absence of the writ of certiorari from the recem 1002 (Tex.Civ.App.) In an action on life inord, it would be presumed to support the judg-surance policies, the finding of assured's death ment, that claimant residing in D. county had held conclusive on the appellate court where the admitted that the property was in defendant's evidence is conflicting.--Knights of the Maccapossession when levied on.—Josey v. Masters, bees of the World v. Parsons, 179 S. W. 78. 179 S. W. 1134. 936 (Mo.App.) An award of a lump sum for ported by the evidence, though conflicting, will

Omw 1002 (Tex.Civ.App.) A verdict fully supattorney's fees must, where there were numer- not be reversed.-Hughes v. Colbert, 179 S. ous items, be presumed to have been only for W. 443; Same v. Butler, id. those services for which compensation could be awarded.—Pickel v. Pickel, 179 S. W. 949. Em 1003 (Ky.) Verdict held not to be set aside,

unless clearly and palpably against the weight

of the evidence.-Hodge Tobacco Co. v. Whaley, (F) Discretion of Lower Court. 179 S. W. 840. On959 (Mo.App.) The allowance of amendm 1004 (Ky.) Damages for personal injuries ments to pleadings is a matter not entirely with held to be left to the judgment and discretion of in the discretion of the trial court; its action the jury, which will not be interfered with unbeing reviewable in case of abuse.-Jennings v. less unreasonable or influenced by passion or National American, 179 S. W. 789.

prejudice.-Gnau v. Ackerman, 179 S. W. 217. Omo 1009. A chancellor's findings of fact will, amendment.-City of Brownsville v. Tumlinson, not be disturbed on appeal, unless against the 179 S. W. 1107. clear preponderance of the evidence.

Om 1046 (Tex.Civ.App.) Under rule 31 for dis-(Ark.) Beatrice Creamery Co. v. Garner, 179 trict and county courts (142 S. W. xx), includ

S. W. 160; Vaughan v. Chicago, R. I. & ing the provision of Rev. St. art. 1953, 'held, on P. Ry. Co., Id. 165; Louis Werner Saw- the pleadings in an action on a note, that the mill Co. v. Sessoms, Id. 185; Barker v. granting to defendants of the right to open and Lack, Id. 493;

close was reversible error.--First State Bank (Ky.) Gambill v. Grigsby, 179 S. W. 822. of Amarillo v. Cooper, 179 S. W. 295. Om 1009 (Ky.) In an action to set aside a con- Omw 1046 (Tex.Civ.App.) Error in permitting veyance, the evidence being conflicting, the defendant to open and conclude the argument chancellor's finding of the grantor's mental ca- was material and necessitated a reversal.-J. pacity must be accepted on appeal.-Meece v. W. Carter Music Co. v. Bailey, 179 S. W. 547. Colyer, 179 S. W. 579.

Om 1050 (Mo.App.) In an action for injuries reOm 1009 (Ky.) Where the evidence is conflict-ceived by one who fell on a defective sidewalk, ing and the mind left in doubt, and it is not the erroneous admission of evidence of the conreasonably certain that the chancellor has erred, dition of the walk subsequent to the action the appellate court will affirm his decision.- held prejudicial.-Morgan v. City of Kirksville, Cole v. Collins, 179 S. W. 607.

179 S. W. 755. em 1009 (Ky.) Where the evidence is conflict- cm 1050 (Tex.Civ.App.) Erroneous admission ing, and on the whole case the court on appeal of hearsay evidence could not be said to be cannot determine with reasonable certainty that barmless, though there was other competent the chancellor erred, his finding will not be evidence, where there was no statement of facts. disturbed.-Gover v. Williams, 179 S. W. 1047. -Pulkrabeck v. Griffith & Griffith, 179 S. W. Omw 1010 (Tex.Civ.App.) Where an issue of fact 282. was not requested to be submitted to the jury, Cum 1050 (Tex.Civ.App.) It is harmless error to but was determined by the court, the Court of admit testimony that witness did not hear of Civil Appeals could only inspect the evidence a train's not running on Sunday, over the obto ascertain whether the finding was support-jection of the defendant that the evidence is ed thereby.-Harper v. Stewart, 179 S. W. 277. immaterial.-Missouri, K. & T. Ry. Co. of TexOm 1010 (Tex.Civ.App.) The question for an as v. Dale Bros. Land & Cattle Co., 179 S. W. appellate court is not whether findings of the 935. trial court complained of are supported by a preponderance of the evidence, but whether timony as to whether a railroad track was fenc

Om 1050 (Tex.Civ.App.) The admission of tesor not there is any evidence to support them.. ed at a point other than the place of the acInternational Fire Insurance Co. v. Black, 179 cident is harmless, in an action for the killing S. W: 534.

of cattle.-Ft. Worth & D. C. Ry. Co. v. DecaOn 1015 (Ark.) Where there is a substantial tur Cotton Seed Oil Co., 179 S. W. 1104. conflict in the evidence, the action of the trial cm 1050 (Tex.Civ.App.) Though testimony of court, in granting new trial because the verdict president of bank suing on note as to extent of is against the weight of the evidence, is not re- his powers might be objectionable, held, that the viewable.—Johnson v. Mantooth, 179 S. W. inquiry as to his powers was not apparently 175.

material.-Bolt v. State Savings Bank of Man(H) Harmless Error.

chester, Iowa, 179 S. W. 1119.

cm 1050 (Tex.Civ.App.) Admission of testiOm 1027 (Tex.Civ.App.) Admission of testimony mony over objection that it was a conclusion of witness that he did not know or hear of held harmless, where the witness had already plaintiff's ownership of the land in contro- given substantially the same testimony without versy, if error held harmless, where it appeared objection.-Hall v. Ray, 179 S. W. 1135. that the same verdict and judgment would have Admission of defendant's testimony that prior been rendered had the evidence been excluded. to the date of the general partnership the ex-Hall v. Ray, 179 S. W. 1135.

istence of which was in controversy he and Om 1033 (Ky.) Where defendants were enti- plaintiff had made a number of land trades tled to the whole of timber on land, plaintiffs together and divided the profits on same, if ercannot complain that the judgment awarded ror, was harmless, where plaintiff had testithem only a one-half interest.- Wilson v. Mar-fied to similar transactions.-Id. see, 179 S. W. 410.

Om 1051 (Tex.Civ.App.) Admission of opinion Om 1033 (Mo.App.) In an action for breach of evidence given after positive showing upon the marriage promise, where defendant's answer ad- same question, although error, is harmless.mitted plaintiff's legal capacity to marry, an in- Pecos & N. T. Ry. Co. v. Winkler, 179 S. W. struction submitting that question to the jury 691. was harmless as to defendant, casting an un-m 1052 (Tex.Civ.App.) In a proceeding for the necessary burden on plaintiff.-Chapman v.

appointment of a receiver, the admission of secBrown, 179 S. W. 774.

ondary evidence as to the contents of the books. Om 1040 (Tex.Civ.App.) In an action on note, of defendant was cured by the production of the error, if any, in overruling exception to answer, books in court.-Hart-Parr Co. v. Alvin-Japaheld harmless, where the subsequent pleadings nese Nursery Co., 179 S. W. 697. raised such issue and the case was tried there

Omw 1058 (Ky.) The exclusion on.-First State Bank of Amarillo v. Cooper, which was supplied by the testimony of later

of evidence 179 S. W. 295.

witnesses is harmless, though erroneous.-RobOmw 1040 (Tex.Civ.App.) Defendant cannot com- erts v. Sandy Valley & Elkhorn Ry. Co., 179 plain of court's refusal to rule on a general de S. W. 228. murrer, unless it is well taken.-City of

1060 (Tex.Civ.App.) Argument of plaintiff's Brownsville v. Tumlinson, 179 S. W. 1107.

counsel based on defendant's failure to have Om 1041 (Ky.) Defendant held not prejudiced present as witnesses the engineer and fireman by filing of amended petition after impaneling of train causing the injury held not to require a of jury; it merely making more definite some reversal. -St. Louis Southwestern Ry. Co. of of the allegations of the original petition.- Texas v. Aston, 179 S. W. 1128. Hodge Tobacco Co. v. Whaley, 179 S. W. 840.

Om 1062 (Ark.) Error in

directing verdict cm 1041 (Tex.Civ.App.) Refusal to permit de- against plaintiff, who sued for wrongful atfendant to withdraw its announcement of ready, tachment, was harmless, where plaintiff, who to file a supplemental answer, held harmless, bought in other attached property with her where the answer was actually an amendment, own, profited in the transaction.-Webb v. Van

1209

INDEX-DIGEST

Appraisement

Cm 1062 (Tex. Civ.App.) Submitting special is-XVII. DETERMINATION AND DISPOsue of whether parties were defendants' agents,

SITION OF CAUSE. the controversy being as to their authority, held

(B) Affirmance. immaterial; another issue having been submitted as to their authority.-King v. Collins, 1791 140 (Tex.Civ.App.) Where a verdict allows S. W. 899.

an excessive amount for medical attendance, the w 1064 (Ky.) In a servant's action for injury, error may be cured by plaintiff's filing a reerror in an instruction as to assumption of risk mittitur so as to conform the amount to that from a defective appliance held harmless, where supported by the evidence.-Pecos & N. T. Ry. plaintiff testified that he knew of the 'alleged Co. v. Winkler, 179 S. W. 691. defect.-Phillips v. Corbin & Fannin, 179 S. W. 1 144 (Mo.App.) Judgment, in action to dis586.

affirm contract, entered into in infancy, open Ono 1064 (Tex.Civ.App.) It must appear that an in that it provided for the appointment of a did

not have that effect, or the judgment will be it to meet the situation as changed by the aperroneous charge calculated to mislead the jury receiver if money award was not paid, would be reversed.-Wichita Valley Ry. Co. v. Somer- it to meet the situation as changed by the apville, 179 S. W. 671.

peal.-Moser v. Renner, 179 S. W. 970. Erroneous instruction as to defendant's right

(D) Reversal. to prevail under five-year statute of limitations held not immaterial under rule 62a (149 S. W. 1170 (Ky.) In view of Civ. Code Prac. $ x), unless she was entitled to a peremptory in- 134, prohibiting reversal for harmless errors, struction under the ten-year statute.-Id.

a judgment which is a correct decision will not Omw 1066 (Ky.) Under Civ. Code Prac. $S 134,

be disturbed because based on an erroneous 338, 756, in mining trip brakeman's action for 179 s. w. 411.

reason.—Commonwealth v.

v. McCauley's Ex'r, injuries through negligence of motorman, his superior servant, charge erroneously authorizing 1 170 (Ky.) In view of Civ, Code Prac. $$ recovery for mere ordinary negligence held not 135, 335, 756, the error in an instruction allowprejudicial where gross negligence was shown.-ing recovery for ordinary negligence, where the Consolidated Coal Co. v. Baldridge, 179 S. W. charge was gross negligence, held harmless.-18.

Chesapeake & 0. Ry. Co. v. Shamblen, 179 S.

W. 837. Cm 1066 Tex.Civ.App.) That petition was based on quantum meruit, and charge authorized on 1170 (Tex.Civ.App.) In an action for derecovery of balance dúe under contract, hela struction of plaintiff's house by fire from denot to require reversal, where there was no fendant's locomotive, admission of a conducquestion of the reasonable value of the work tor's report not shown to be correct held harmand material.-King v. Collins, 179 S. W. 899. less error, under rule 62 for the Court of Civil Om 1067 (Tex.Civ.App.) Where the court er- & T. Ry. Co. of Texas, 179 S. W. 75.

Appeals (149 S. W. x).-Moose v. Missouri, K. roneously denied a motion to strike incompelem 1177 (Tex.Civ.App.) Where amended, peti: tent evidence, the refusal of a charge to dis- tion shows an amount beyond the jurisdiction of regard such evidence was Occident Fire Ins. Co. v. Linn, 179 S. W. 523. the trial court, but the record does not show

the amount originally sued for, the cause will be C1068 (Tex.Civ.App.) Refusal of an instruc- remanded, instead of dismissing it.-San Antion that an agreement was not binding was tonio & A. P. Ry. Co. v. Schaeffer, 179 S. W. harmless, it being clear that the jury did not 540. consider the agreement.-Bankers' Trust Co. of Amarillo v. Cooper, Merrill & Lumpkin, 179 S. out giving a stay bond, may, on reversal of

Om 1180 (Mo.App.) Appellant, appealing withW. 541.

the judgment, recover back money he has been Om 1068 (Tex.Civ.App.) In trespass to try title, compelled to pay on judgment pending appeal. refusal of instruction to find against one defend--Arkansas Valley Trust Co. v. Corbin, 179 ant under certain circumstances held immate- s. W. 484. rial, because jury, by finding for the other defendant, found against such defendant.-Wichita (F) Mandate and Proceedings in Lower Valley Ry, Co. v. Somerville, 179 S. W. 671.

Court. Om 1068 (Tex.Civ. App.) Error in refusing a re- Omw 1195 (Tex.Civ.App.) The answers to quesquested instruction was harmless, where the tions propounded by the Court of Civil Appeals verdict shows that the jury found adversely to to the Supreme Court are conclusive upon the the one requesting the instruction.--Pecos & N. Court of Civil Appeals.-Masterson v. Harris, T. Ry. Co. v. Winkler, 179 S. W. 691.

179 S. W. 284. Om 1070 (Ky.) In an action for setting fire by XVIII. LIABILITIES ON BONDS AND sparks from a locomotive, failure of the jury

UNDERTAKINGS. to say whether the company owning the road or the company operating a train thereon started On 1230 (Mo.App.) An appellant who fails to the fire was not prejudicial, where the first perfect his appeal, or who asks its dismissal, company was liable for the 'negligence of the violates his appeal bond.–Arkansas Valley latter:-Louisville & N. R. Co. v. Feeney, 179 S. Trust Co. v. Corbin, 179 S. W. 484. W. 826.

APPELLATE COURTS. (K) Subsequent Appeals.

See Courts, 207. Omw 1099 (Ky.) In action in equity for use of a judgment creditor against father of judgment

APPLIANCES. debtor, to whom he had fraudulently turned See Master and Servant, Om101-129. over several jacks, language of Court of Appeals on former appeal held not conclusive as to the number of jacks living when the suit was

APPOINTMENT. commenced.-Commonwealth v. Filiatreau, 179 See Executors and Administrators, em 11. S. W. 20. Om 1099 (Ky.) Where the evidence on

APPORTIONMENT. trial after appeal is substantially the same as See Eminent Domain, Eww157. on the first trial, the court will not review a verdict directed in accordance with opinion on

APPRAISEMENT. first appeal.--Swann's Adm'x v. Cincinnati, N. 0. & T. P. Ry. Co., 179 S. W. 391.

See Taxation, Omw 895.

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