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contract by defendant, and no notice was given , appellant and Hodges. The ground of obto defendant that plaintiff was seeking to recovjection is that no notice to produce the origer on such a contract; that plaintiff's suit was inal had been given to appellant. While not brought upon a written contract, but all of the pleadings filed in the case, including the technically this is a good objection, we think, citation served upon defendant, showed that under the circumstances of this case, it was plaintiff was seeking to recover on an open ac- harmless and had no influence with the jury. count for debt and not upon a written contract; The appellant swore to having given appellee that the evidence showed entirely new cause of action from the one brought in the justice a written contract for the payment of $200 court. That defendant had no notice that plain- if appellee effected a compromise of a suit betiff was seeking to recover on a written con-tween Hodges and appellant, but containing tract such as testified to, and had no notice that plaintiff claimed to have lost said contract, terms different from those sworn to by apno affidavit or written pleading having been filed pellee, one of which was as to the place of putting defendant upon notice of the contents payment of the contract. The letter does of said instrument, and that said instrument not mention the terms of the contract; had been lost, as is required by law. Defendant further objected to said testimony for the therefore its admission was harmless. reason that, if in truth and in fact such a con- [6] The third assignment complains of the tract had been executed, it showed upon its face court's refusal to admit the testimony of that there was no consideration for the execu- witness A. H. Carrigan to the effect that tion of same.”

appellant had nothing to do with effecting Under the foregoing assignment appellant a compromise of the suit between the Ellpresents two propositions as follows:

erds and appellee, and that he had nothing

The (1) "There was no pleading by the plaintiff whatever to do with the settlement. alleging a written contract by defendant to witness Carrigan was permitted to testify at pay in Dallas county, and the evidence objected length as to how the compromise and settleto was therefore not admissible.” (2) “There þeing no written amendment to plaintiff's plead. ment was made; that he, as attorney for the ings filed in the county court of Dallas county Ellerds, and F. M. Etheridge, as attorney for at law, setting forth the new matter relied on, Hodges, effected the settlement; that F. M. that defendant had executed a written promise Etheridge wrote him a letter suggesting a to pay plaintiff in Dallas county, the evidence objected to was not authorized by the pleading, compromise; that they took up the matter and was therefore improperly admitted over and effected a compromise. This testimony defendant's objection.'

excludes the idea of appellant being present

or assisting in the settlement; therefore the [1, 2] Relative to the first proposition, we exclusion of the evidence complained of was will say that under our statute written hat mless and was not prejudicial to appelpleadings are not required in the justice

lant. court, and the same rule applies on an appeal

[7] The fourth assignment complains of to the county court. Such being the case, it the court's action in failing to submit to the was not necessary for appellee to plead jury the following issue:

jury the following issue: "Did the defendwhether his claim was evidenced by a written ant J. J. Ellerd execute and deliver to the instrument or by parol. The judgment in the plaintiff, W. J. Newcom, the following writjustice court shows that it was founded on ten agreement: 'I agree to pay to W. J. a written contract, which shows that it must Newcom $200.00 should he bring about a have been pleaded in that court. We con

compromise of the Ellerds v. Hodges Case clude that appellee had notice of the contract before court.'” Appellant submits this propsued on in the county court. Briggs-Weaver

osition: Defendant's special issue No. 1 Co. v. Pratt, 184 S. W. 732..

should have been given because the same [3, 4] As to the second proposition under

pertinently and affirmatively presented dethis assignment, we think the testimony was fendant's version and theory, and such issue properly admitted, The writing was lost.

was nowhere submitted in the court's Its existence was denied by appellant, which

charge." There is a difference between the raised the issue of it ever having existed terms of the contract sworn to by appellee and its contents. The testimony objected to and that pleaded by appellant. The terms was pertinent as a circumstance to show of the contract on which appellee sought to whether or not it did exist, and while the recover were embraced in an issue submitted witness could not say that the signature was to the jury, except as to whether or not the that of appellant, and could not identify it place of payment was embodied therein. as having been written by him, it was for These issues were sharply contested, and the jury to determine that fact. In other should have been submitted to the jury, words, the evidence was conpetent, and the which was not done by the court. The appel-weight to be given to it is the only matter lant having denied the contract as sworn to to be considered by the jury.

by appellee, and having pleaded a contract [5] The second assignment complains of as set out as a defense of the contract menthe admission in evidence of a copy of a tioned, he was entitled to have the issue letter written by appellee to appellant, which passed upon by the jury. This issue was in general terms refers to the money due raised by the appellee, and the court should him, and of placing him in an embarrassing have affirmatively presented it to the jury. position in submitting to Hodges a proposi- Railway Co. v. McGlamory, 89 Tex. 635, 35 tion of compromise and settlement between S. W. 1058; Pullman Co. v. Moise, 187 S. W.

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249; Railway Co. v. Casseday, 92 Tex. 525,, Company, appellant, and against the Texas50 S. W. 125.

Mexican Railway to recover damages arising For the error indicated the judgment of from negligence in handling cattle and dethe court below is reversed and the cause lay in transportation. Judgment was renremanded.

dered in favor of appellee against appellant for $455.50, being the amount of the damages

without interest from the date of the injury INTERNATIONAL & G. N. RY. CO. v. to the date of the judgment. REED. (No. 6029.) )

The cause of action originally alleged was (Court of Civil Appeals of Texas. San Antonio. that the cattle shipped belonged jointly to May 1, 1918.)

J. P. Reed and W. A. Reed. The evidence in1. LIMITATION OF ACTIONS Cm127(11)-STAT-troduced upon the first trial proved that UTE OF LIMITATIONS-AMENDMENT-CHANGE there was no joint ownership in the cattle, FROM JOINT TO INDIVIDUAL CAUSE OF AC- but that some of the cattle belonged to J. P. TION.

Change in the cause of action from a joint Reed and some to W. A. Reed. W. A. Reed to an individual one, made by amendment of was thereupon dismissed from the case and the petition, is not the filing of a new suit, judgment was rendered in favor of J. P. and to determine whether the cause is barred Reed for the damages to the cattle that beby the statute of limitations it will be considered longed to him. The evidence upon that first as filed on the date of the original petition. 2. CARRIERS Om 227(1) - CARRIAGE OF LIVE trial proved that no damage was caused by

STOCK — PLEADING – COMMON-LAW LIABIL- the Texas-Mexican Railway Company. The ITY.

first judgment therefore decreed that J. P. Where the shipper of cattle suing the carrier Reed recover nothing by his suit against the for damages in transit alleged that the carrier received the cattle for shipment, received the re- Texas-Mexican Railway Company. Upon ward in payment for the services, and caused an appeal by the International & Great damage by its negligence, there was a sufficient Northern Railway Company from the first allegation of the common-law liability of the judgment, this court held that the petition carrier, which was alleged to be a common carrier.

alleged joint ownership, whereas the evi3. APPEAL AND ERROR Om 1051(1)→HARMLESS dence and judgment appealed from estabERROR-EVIDENCE.

lished individual ownership, and that thereWhere, on trial without a jury, there was fore there was no pleading to support the sufficient evidence properly admitted to prove the common-law liability of defendant carrier,

judgment. No appeal was taken from the which was pleaded, on which pleading and proof part of the judgment in favor of the Texasjudgment against it was based, the improper ad- Mexican Railway Company, which part of the mission of other evidence was harmless.

decree was undisturbed by us. This court 4. DEPOSITIONS_Oww96 – ADMISSIBILITY

reversed the judgment against the InternaAMENDMENT-ELIMINATION OF ISSUE.

In an action against a carrier for damage tional & Great Northern Railway Company to cattle in transit, the trial court did not err and remanded the cause for new trial. The in permitting plaintiff to read excerpts from dep- opinion is found in volume 189 S. W. 997. ositions taken before another party was dismiss

Appellee, J. P. Reed, filed a second amended from the cause as plaintiff and joint owner of the cattle and amended petition filed, alleg-ed petition alleging the same cause of action ing individual ownership, though when the dep- set forth in the original petition except inositions were offered in evidence there was no is-dividual ownership of the cattle damaged sue of joint ownership, as there was when they were taken, but only ownership by plaintiff.

was alleged. The Texas-Mexican Railway 5. CARRIERS Om 229(2) – CARRIAGE OF LIVE Company pleaded res adjudicata, which was STOCK-NEGLIGENCE-MEASURE OF DAMAGE. sustained, from which no complaint is made.

The amount of damage sustained by a ship- The International & Great Northern Railper of cattle from the carrier's negligence in transit, plus 6 per cent. interest from the date way Company by special exception and speof the loss, is the correct measure of the ship- / cial plea urged that the second amended per's damage at the date he recovers judgment original petition alleged a new cause of acagainst the carrier.

tion from that presented in the original peAppeal from Jim Wells County Court; L. tition, and that the new cause was barred by Broeter, Judge.

the statute of limitation. Upon the trial Suit by J. P. Reed against the Internation- appellant objected to the introduction in evial & Great Northern Railway Company. dence by appellee of depositions taken before From a judgment for plaintiff, defendant the filing of the second amended original appeals. Reformed and affirmed.

petition, presenting the new cause of action. See, also, 189 S. W. 997.

The objection was overruled, the depositions Greer & Hamilton, of Laredo, and Wilson, review and is supported by a proper bill of

introduced, all of which is presented for Dabney & King, of Houston, for appellant.

exception. Dougherty & Dougherty and H. S. Bonham,

[1] Under its first assignment of error all of Beeville, for appellee.

appellant submits the following proposition: SWEARINGEN, J. J. P. Reed, the appelJ. P. Reed, the appel- Reed for the shipment of cattle, alleging the

"The plaintiff having sued jointly with W. A. lee, and W. A. Reed brought suit against date of the shipment to have been April 26, the International & Great Northern Railway 1914, and the cause having remained as a joint

cause of action until the filing of plaintiff's , ed in evidence at the last trial of the case there amended petition herein, the same made a new was no issue of joint ownership, but only ownand different cause of action from that to which ership by J. P. Reed." defendant was cited to appear and answer, and The trial court did not err in its ruling therein and thereby the same became, was, and is barred by the statute of limitations of two admitting the depositions. Kothman v. Fayears."

seler, 84 S. W. 390; Houston Co. v. Dunn, 176 The rule of law here invoked as applied S. W. 634. The following authorities cited to facts of the present case has been clearly by appellee also are relevant: Baker v. G., announced several times by our Texas Su- C. & S. F. Ry. Co., 184 S. W. 257; St. Louis, preme Court and by the Court of Civil Ap- B. & M. Ry. Co. v. Green, 196 S. W. 555; Texpeals. The rule is that the change in the as Midland R. R. Co. v. Cardwell, 67 S. W. cause of action from a joint to an individual 157; Thompson v. Swearengin, 48 Tex, 560; one, made by the amendment, is not the filing Portis v. Hill, 30 Tex. 529, 98 Am. Dec. 481. of a new suit. The cause of action thus The fourth assignment is overruled. changed by amendment will be considered [5] Appellee submits the following crossas filed on the date of the original petition, assignment: up to which date only will the time be com- "The court having found that plaintiff, J. P. puted for the purpose of determining wheth- Reed, had been damaged by reason of the negli

gence of the defendant, International & Great er the cause is barred. Baker v. G., C. & Northern Railway Company, in the sum of S. F. Ry. Co., 184 S. W. 257; Foster v. Rail- $445.50, and that such damage was sustained on way, 91 Tex. 631, 45 S. W. 376; Thompson v. the 29th day of April, 1914, erred in refusing to Swearengin, 48 Tex. 560. The decisions above on said sum of $445.50 at the rate of 6 per

render judgment in plaintiff's favor for interest cited render further discussion of appellant's centum per annum from the said 29th day of first proposition unnecessary. The first as- April, 1914." signment is overruled.

The trial court found it to be a fact that The fifth assignment presents a similar the damage was caused to appellee's cattle question and for the above reasons is also on the 26th day of April, 1914. The court overruled.

further found that the negligence of appel[2] The contention made by the second as- lant caused the cattle to sell for $3.30 per signment is that the court erred in overrul- head less than the market price, and found ing appellant's exception to appellee's sec- that there were 135 head of cattle so damond amended original petition. The sub- aged. This damage amounted to $445.50 stance of the exception is that no cause of on the said April 26, 1914. A correct measaction was alleged against the appellant. An ure of appellee's damage at the date of the examination of the said second amended judgment is the $445,50 plus 6 per cent. inoriginal petition discloses that appellee al- terest from the date of the loss. Watkins leged that appellant received the cattle for v. Junker, 90 Tex. 584, 40 S. W. 11; Steger shipment, received the reward in payment et al. v. Barrett, 58 Tex. Civ. App. 331, 124 for said service, and that appellant caused S. W. 174; Houston Car Wheel & Machine the damage by its negligence. This was a

This was a Co. v. Smith, 160 S. W. 435; Texas & Pac. sufficient allegation of the common-law lia- Ry. Co. v. Erwin, 180 S. W. 662; Ft. Worth bility of appellant, which was alleged to be & R. G. Ry. Co. v. Montgomery, 141 S. W. a common carrier. The exception was over- 813; Sayles' R. S. art. 1985. We sustain ruled. We overrule the second assignment. appellee's cross-assignment.

[3] The third assignment complains of the The judgment of the trial court will be re. admission of testimony. There was no jury. formed by adding thereto that appellee reIf the admission of the evidence objected to cover of appellant the sum of $445.50, towas error, it is harmless error, for there | gether with interest at the rate of 6 per was sufficient evidence properly admitted to cent. per annum from the 26th day of April, prove the common-law liability of appellant, 1914; up to the date of the judgment, and which was pleaded, upon which pleading and interest at the rate of 6 per cent. per annum proof the judgment was based.

on the amount of principal and interest on [4] The third assignment is overruled, and the date of the judgment from that date unalso the sixth assignment, which involves a til the said sum is paid. similar question.

As thus reformed, the judgment is affirmed, The fourth assignment, submitted as a proposition, is as follows:

"The court erred in permitting the plaintiff BAKER et al. v. COLE. (No. 5889.) to read excerpts from depositions, over defendant's objections, that were taken before W. A. (Court of Civil Appeals of Texas. Austin. Reed was dismissed from this cause, and before Feb. 27, 1918. Rehearing Denied this cause was reversed by the Court of Civil

April 17, 1918.) Appeals.”

APPEAL AND ERROR 20, 493–JURISDICTION We understand, as stated by appellee:

-RECORD. “Appellant's sole complaint, as already stated, Although it appears from the record that seems to be that when the depositions were tak- the case originated in justice court for an en there was in the case the issue of joint own- amount less than $200, where there is no tranership, but that when the depositions were offer- script of the record 'from justice court, no

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

final judgment of that court and no appeal ,5. APPEAL AND ERROR C753(2)—FUNDAMENbond from justice to county court, it is not made TAL ERROR-ASSIGNMENTS OF ERROR. to appear that the county court had jurisdic- Where there are no fundamental errors that tion, and appeal will be dismissed, since if the need not be assigned to be reviewed and no county court had no jurisdiction Court of Civ- assignments of error presented in compliance il Appeals is without appellate jurisdiction. with statutory requirement, the judgment must

be affirmed. Appeal from Bell County Court; M. B. Blair, Judge.

Appeal from District Court, El Paso CounSuit between Bluford Baker and others and ty; Ballard Coldwell, Judge. Geo. W. Cole, Jr. From a decree of county

Action between Lee Harlan and others court on appeal from justice court the for- and the Acme Sanitary Flooring Company mer appeal. Appeal dismissed.

and others. Judgment for the latter and

the former appeal. Affirmed. G. M. Felts, of Belton, for appellants.

Seymour Thurmond and Edwards & EdJENKINS, J. There is enough in the rec-wards, all of El Paso, for appellants. C. W. ord in this case to show that it originated in Croom and Jones, Jones, Hardie & Gramthe justice court for an amount less than bling, all of El Paso, for appellees. $200, but there is no transcript in the record from the justice court, no final judgment HIGGINS, J. This is an appeal from a of that court, and no appeal bond from the judgment rendered upon an instructed verjustice court to the county court. For these dict. Two assignments of error are presentreasons, it is not made to appear that the ed in the brief complaining of the perempcounty court had jurisdiction to try this case, tory instruction. The assignments set forth and, that court having no jurisdiction, we the reasons why it was contended the perare without appellate jurisdiction.

emptory charge was improperly given. NeiFor the reasons stated, the appeal in this ther of the assignments presented in the case is dismissed.

brief are true copies of any paragraph of Appeal dismissed.

the motion for new trial. They are presented in a reconstructed form.

[1] By chapter 136, Acts 33d Legislature,

page 276 (Vernon's Sayles' Ann. Civ. St. HARLAN et al. v. ACME SANITARY

1914, art. 1612) it is provided that the asFLOORING CO. et al. (No. 812.)

signments in the motion shall constitute the

assignments of error. We have no authority (Court of Civil Appeals of Texas. El Paso. to disregard the plain meaning of this legisApril 11, 1918. Rehearing Denied May 16, 1918.)

lative provision, and it has been repeatedly

held that the courts will not consider as1. APPEAL AND ERROR m722(1) - ASSIGN-signments which have been reconstructed, or MENTS OF ERROR. Acts 33d Leg. c. 136 (Vernon's Sayles' Ann,

are incorrectly copied in the brief. Civ. St. 1914, art. 1612), providing that as- | the reasons indicated, the assignments cansignments in the motion for new trial shall con- not be considered. Edwards v. Youngblood, stitute the assignments of error, held to pre- 160 S. W. 288; Mfg. Co. v. Walcowich, 163 clude the consideration on appeal of assign- S. W. 1054; Dees v. Thompson, 166 S. W. 56; ments that are not correct copies of the corre-Overton v. K. of P., 163 S. W. 1052; Smith sponding paragraphs in the motion,

; 2. APPEAL AND ERROR Om 231(9)—PRESERVING Bogle, 105 S. W. 35; Coons v. Lain, 168 EXCEPTIONS STATEMENT OF GROUNDS-S. W. 981; Watson v. Patrick, 174 S. W. 632; CHARGE TO THE JURY.

Oil Co. v. Crawford, 184 S. W. 728; IrrigaActs 33d Leg. c. 59, providing that parties tion Co. v. Buffington, 168 S. W. 21; Ruth shall present their objections to a charge be- v. Cobe, 165 S. W. 530. fore it is read to the jury, construed to mean that the particular grounds of objection shall

[2, 3] Another reason which precludes be presented, and an objection without such consideration of the assignments upon their grounds being specified is insufficient to entitle merits is the failure to observe the proviobjection to be reviewed on appeal.

sions of chapter 59, Acts 33d Legislature. 3. APPEAL AND ERROR 525(3) - RECORD- This act requires that before the charge is PRESERVING EXCEPTIONS.

Compliance with Acts 33d Leg. c. 59, pro-read to the jury, the parties shall present viding that a party who objects to a charge to the court their objections. This plainly shall present grounds of objection before charge means that the parties shall present to the is given, requires that the particular objections court the reasons why they object to the be specified in the record, and a failure to do so charge, or any part thereof. is fatal to a review of such objection on ap- here simply discloses that the parties ob

The record peal. 4. APPEAL AND ERROR C212 – QUESTIONS jected to the charge before it was given. It | REVIEWABLE – PEREMPTORY INSTRUCTION

fails to show that they presented the FUNDAMENTAL ERROR.

grounds of their objection. If it were held The giving of a peremptory instruction is that it is sufficient for a party to simply not fundamental error so apparent on record that it will be reviewed despite failure to ob- state that he objects to a charge, then the ject to such instruction as required by Acts 330 statute would be deprived of all efficacy. Leg. c. 59.

The objections must be distinctly stated so

For

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that the trial court then and there may be, others. Judgment for plaintiff, and defendadvised of the error, if any, which the charge ant Alamo Trust Company appeals. Affirincontains. Railway Co. v. Thomas, 175 S. ed. W. 822; Steele v. Dover, 170 S. W. 809. The

Ryan & Matlock, of San Antonio, for appelrecord failing to show what objections were lant. W. H. Penix, of Mineral Wells, for apurged against the charge, the act was not

pellee. complied with. Compliance therewith is imperative. Railway Co. v. Dickey, 108 Tex.

FLY, C. J. This suit was instituted by ap126, 187 S. W. 184.

pellee against F. T. Alexander, W. 0. Scott, [4] The giving of a peremptory instruction Herman Harms, H. E. Bahr, and appellant is not fundamental error, and, if it is, the to recover 40 acres of land in Cameron counsame is nevertheless waived by a failure to ty, and in the alternative to recover on seven comply with the act last mentioned. Hen

promissory notes executed by Alexander to drick v. Lbr. Co., 200 S. W. 171; Needham W. 0. Scott for part of the purchase money v. Cooney, 173 S. W. 979; Railway Co. v. of the 40 acres of land. It was alleged that Wheat, 173 S. W. 974; Loeb v. Railway Co., the vendor's lien was retained on the land, 186 S. W. 378; Pearce v. Supreme, etc., 190 and that the notes were transferred by Scott S. W. 1156; Heidenheimer v. Railway Co., to appellee together with the lien and that 197 S. W. 886;

886; Commonwealth, etc., v. payment was guaranteed by Scott. It was Bryant, 185 S. W. 979.

alleged that Bahr, Harms, and appellant [5] We have carefully examined this en- were setting up some claim to an interest in tire record to ascertain if it presents any the land. Appellant, Bahr, and Harms filed fundamental error requiring reversal, with a general demurrer, general denial, and speout being properly assigned, and find none. cially pleaded that the trust company had The judgment must therefore be affirmed. loaned Alexander $1,700, and had taken a Riggs v. Baleman, 198 S. W. 813, and cases deed of trust on the 40 acres of land sued there cited. This court always regrets the for by appellee to secure a note given by Alnecessity of disposing of appeals except up-exander to evidence the loan; that this ocon their merits, but it cannot disregard curred on September 10, 1912, after a thorplain statutory provisions.

ough search of the records of Cameron counAffirmed.

ty failed to disclose any claim against said land; that Alexander defaulted in payment

of the note, and the land was sold by the ALAMO TRUST CO. v. CUNNINGHAM. trustee on July 1, 1913, and purchased by ap(No. 6030.)

pellant, and afterwards, on March 7, 1914, (Court of Civil Appeals of Texas. San Antonio, appellant, for a valuable consideration, sold

. April 24, 1918. On Motion for Re

said land to Herman Harms, and on March hearing, May 16, 1918.)

16, 1914, Harms sold the land to H. E. Bahr;

that these different purchases were made in 1. VENDOR AND PURCHASER 239(9)—DEEDS -DUTY TO RECORD.

good faith without notice of any adverse The vendor is under no duty to record his claim to the land and for a valuable considdeed to preserve his vendor's lien thereunder eration. from loss by another's innocent purchase in re- deed from Scott to Alexander was a full

It was further alleged that the liance on a deed forged by the vendee. 2. VENDOR AND PURCHASER Cm 239(9)-FOR- warranty deed, no lien of any kind being re

Om GERY-EFFECT.

served therein, and no record was made of A forged deed is void and ineffective, and re- any transfer of the notes and lien to appelliance upon it by a purchaser cannot affect the lee from Scott, and appellant Harms and rights of the owner of the property.

Bahr had no notice of the same. A plea of 3. PLEADING Cum291(4) – AFFIDAVIT OF FOR- not guilty was filed as a trial amendment. GERY-BURDEN OF PROOF. When a deed was attacked by an affidavit of

In a supplemental petition, which was veriforgery, the burden then rested on the party re-fied by affidavit, appellee alleged that the lying on the deed to show that it was a genuine deed from Scott to Alexander, which failed instrument.

to recite a lien on the land, was a forgery, 4. APPEAL AND ERROR Om 1064(3)-HARMLESS and that the real deed recited a vendor's ERROR-INSTRUCTIONS.

While the statute requires that instructions lien to secure the purchase money, and rebe in writing, failure to give a written charge is tained the superior title to Scott in the land immaterial, where, under the facts, no other ver- A trial was held by jury, and a verdict in dict could have been properly rendered. 5. APPEAL AND ERROR Cm742(1) - ASSIGN-structed for appellee, which was accordingly MENTS OF ERROR_SUFFICIENCY.

returned, and judgment was rendered in faAn assignment of error which is neither a vor of appellee as against Scott and Alexproposition of law in itself, nor is followed by ander in the sum of $5,370.10, and foreclo 3a proposition of law, may be disregarded.

ing the vendor's lien on the land, and that Appeal from District Court, Bexar County; the lien of the deed of trust given by AlexW. S. Anderson, Judge.

ander to appellant be made second to the Suit by J. L. Cunningham against F. T. vendor's lien. Alexander, the Alamo Trust Company, and The evidence in this case shows beyond

PurwFor other cases see same topic and KEY-NUMBER id all Key-Numbered Digests and Indexes

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