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XI. ESTOPPEL, WAIVER, OR AGREE-, ing.--Springfield Fire & Marine Ins. Co. of MENTS AFFECTING RIGHT TO Springfield, Mass., v. Shapoff, 201 S. W. 1116.

AVOID OR FORFEIT POLICY. mm 559(1) (Ky.) If adjusters after a fire abm388(1) (Ark.) Any declaration or conduct solutely denied all liability, it was unnecessary by insurer which leads insured to believe that for insured to attempt to submit proofs of loss. he may avoid forfeiture of policy by certain - Springfield Fire & Marine Ins. Co. of Springprocedure will estop insurer from insisting field, Mass., v. Shapoff, 201 S. W. 1116. upon forfeiture.-Interstate Business Men's Acc. Ass'n v. Greene, 201 S. W. 799.

XV. ADJUSTMENT OF LOSS. Cu 392(1) (Ark.) An accident association did 576(1) (Ky.) If insurance adjusters after not waive its rights under forfeiture clause by the fire told insured that he was a firebug and accepting premium for policy's renewal where to stay away from the goods that remained, insured was not then engaged in prohibited the insurers could not complain that insured occupation, although he had previously been did not carry out an agreement in the policy to so engaged.-Interstate Business Men's Acc. separate the damaged from the undamaged Ass'n v. Greene, 201 S. W. 799.

goods.--Springfield Fire & Marine Ins. Co. of ww396 (1) (Ark.) Where accident association Springfield, Mass., v. Shapoff, 201 S. W. 1116. sent blank injury forms to insured without em 576(2) (Ky.) If adjusters after a fire abknowledge he had changed his occupation to solutely denied all liability, it was unnecessary one prohibited by policy it did not waive such for insured to attempt to carry out the apbreach of policy.- Interstate Business Men's praisal agreement contained in the policy Acc. Ass'n v. Greene, 201 S. W. 799.

Springfield Fire & Marine Ios. Co. of Spring.

field, Mass., v. Shapoff, 201 S. W. 1116. XII. RISKS AND CAUSES OF LOSS. (B) Insurance of Property and Titles.

XVI. RIGHT TO PROCEEDS. 423 (Mo.App.) Clause of tornado policy Om 586 (Mo.) Life policy provision that insurthat insurer should not be liable for any loss ed reserved no right to change beneficiary vestor damage for blowing down of metal smoke- ed in beneficiary interest of which it could not stacks, unless specifically insured, did not de- be deprived without its consent.--Coleman v. feat insured's claim for injury to such smoke- Northwestern Mut. Life Ins. Co., 201 S. W. stack by storm which did not blow stack down.- 544. Walker v. Fire Ass'n of Philadelphia, 201 S. W. 571.

XVIII. ACTIONS ON POLICIES. 426 (Mo.App.) That cattle died in stock- em 618 (Mo.App.) Since Rev. St. 1909, $ 7042, yards during very cold weather did not affect makes every foreign insurance company a resi. liability of transportation insurer, where cattle dent of every county for purposes of suit, it died as result of injuries received in transit. is not necessary, under Rev. St. 1909, $ 1754, -Estes v. Hartford Fire Ins. Co., 201 S. W. to bring action on fire policy in county where 563.

fire occurred.--Young v. Queen Ins. Co. of XIII. EXTENT OF LOSS AND LIABIL-632 (Mo.App.) An averment in petition

America, 201 S. W. 940.
ITY OF INSURER.

that goods were burnt "while policy was in (B) Insurance of Property and Titles. force” was sufficient to show that goods were Om 493 (Ky.) A total loss under an insurance in building where insured, where there was policy may not mean a total destruction or answer and no demurrer.--Young y. Queen Ins. consumption of the goods by fire, but a total Co. of America, 201 S. W. 940. loss occurs when the goods are rendered value- A petition which did not aver that property less, though a considerable bulk remains intact. was in any building when insured was not --Springfield Fire & Marine Ins. Co. of Spring- rendered defective by not averring that it field, Mass., v. Shapoff, 201 S. W. 1116.

was in a building when burnt.-Id. 493 (Mo.App.) There need not be an ab-am 640 (1) (Mo.). Insurer's answer that benesolute extinction of all the parts of a build- ficiary of life policy released its interest there. ing in order for it to be "wholly destroyed."

in, and that insurer, pursuant to beneficiary's Horine v. Royal Ins. Co., Limited, of Liver- request, issued policy to another beneficiary, pool, 201 S. W. 958.

held plea that beneficiary authorized change cm 504 (Mo.App.) In view of Rev. St. 1909, and not plea of beneficiary's estoppel or lach

7020, as to valued policies, one whose barn es to deny such change.-Coleman v. Northwas insured in several companies could re

wescern Mut. Life Ins. Co., 201 S. W. 544. on a valued policy the full amount of

Estoppel of beneficiary of life policy to deny the policy regardless of other insurance.

that it consented to change of beneficiaries Horine v. Royal Ins. Co., Limited, of Liver- must be pleaded by insurer.--Id. pool, 201 S. W. 958.

Insurer must plead that beneficiary of life

policy was barred by laches from denying its (C) Guaranty and Indemnity Insurance. consent to change of beneficiaries.-Id. en 513 (Tenn.) Under liability policy limiting Cm 640 (2) (Mo.App.) Abandonment of a polliability to $5,000, and providing for defense icy, by the insured is an affirmative defense, at insurer's expense, insurer held liable for which is waived by failure to plead it.-Rasch taxable costs in addition to the $5,000.-Casey- v: Bankers' Life Co. of Des Moines, Iowa, Hedges Co. v. Southwestern Surety Co., 201 201 S. W. 919. S. W. 137.

Cm 645(3) (Mo.) Whether corporate benefici. Under liability insurance policy limiting lia- ary of life policy ratified action of its officers bility to $5,000, but excluding from such limi- in consenting to change of beneficiaries may be tation moneys expended in defense, insurer helet shown under general allegation that officers liable for interest on the portion of the judg- acted for their corporate principal. Coleman ment for which it was liable.--Id.

v. Northwestern Mut. Life Ins. Co., 201 S. W.

544. XIV. NOTICE AND PROOF OF LOSS. Cm646(4) (Mo.App.) In an action on an as. C553(1) (Ky.) Where insured stated in his sessment plan policy, where the insured adproofs of loss that he would not give 30 cents mitted issuance of the policy, that plaintiff for what was left, and that the goods had no was the beneficiary, that insured was dead, that value, the mere fact that they were sold for there had been a demand and refusal to pay, about $250, and testimony of witness that they and plaintiff introduced the policy, the burden were worth several thousand dollars, held not of showing whether any installments were unto avoid the policy on account of false swear- paid at the death of the insured was on the

cover

were

not

insurer.-Rasch v. Bankers' Life Co. of Des em 668(8) (Mo.App.) In action on assessment Moines, Iowa, 201 S. W. 919.

plan policy, evidence as to payment of installw 646(7) (Mo.) Where act which caused ments held to make the case for the jury.death may be either accidental or suicidal, bur- Rasch v. Bankers' Life Co. of Des Moines, den is upon insurer to establish suicide.- Reyn- Iowa, 201 S. W. 919. olds v. Maryland Casualty Co., 201 S. W. 1128.668 (11) (Mo.) In suit on accident policy, Ono 6541/2 (Mo.App.) In action on assessment where sole issue was whether intestate died

insuring against death by accidental means, plan policy, plaintiff could state what the from an accidental wound or whether the same cashier of a regularly appointed depository wound was inflicted by intestate for purpose of bank had told her as to whether assessments producing injury, held court properly refused to had been paid up to the date of deceased's sustain defendant's demurrer* to evidence.-death.-Rasch v. Bankers' Life Co. of Des Reynolds v. Maryland Casualty Co., 201 S. W. Moines, Iowa, 201 S. W. 919.

1128. Ow658 (Mo.App.) In action against transpor- cm 668(14) (Tex.Civ, App.) That plaintiffs in tation insurer, for injuries to cattle, evidence their proof of loss to defendant insurer had that hair was found to have been rubbed off placed value of furniture before fire and amount cattle on_arrival held admissible.- Estes v. of loss at higher figure than found by jury, Hartford Fire Ins. Co., 201 S. W. 563.

would not, as a matter of law, show plaintiff's em 659 (2) (Mo.) In action on accident policy fraud or false swearing.-Royal Ins. Co. of Livdefended on ground of suicide, evidence that erpool, England, v. Humphrey, 201 S. W. 426. pistol which inflicted fatal wound could be dis Om 668 (15) (Ark.) Evidence that defendant charged by a fall was admissible; discharge be- accident association paid plaintiff sum with ing admitted.-Reynolds v. Maryland Casualty statement that it neither admitted nor denied Co., 201 S. W. 1128.

any additional liability held to make jury quesIn action on accident policy defended on tion whether insured thereby waived prohibitground of suicide, evidence that intestate was a ed occupation clause in policy.-Interstate Busibeliever in God and a member of Episcopal ness Men's Acc. Ass'n v. Greene, 201 S. W. Church was admissible.-Id.

799. 665(1) (Mo. App.) Where the defendant ad- 668(15) (Mo.) Whether beneficiary of life mitted issuance of the policy, admitted that policy was prevented by estoppel or laches plaintiff was the beneficiary, and admitted the from denying its consent to change of beneficideath of insured and demand and refusal to aries, held jury question, where facts were not pay, plaintiff need only introduce the policy all admitted, but depended, in essential particuin evidence to make a prima facie case.- lars, on credibility of witnesses.-Coleman y. Rasch v. Bankers' Life Co. of Des Moines, Northwestern Mut. Life Ins. Co., 201 S. W. Iowa, 201 S. W. 919.

544. Om665(2) (Mo.App.) Evidence held to show on 669(8) (Mo.App.). In an action on assessmutual mistake in an insurance policy upon

ment plan policy, where the insurer set up property of the wife drawn in favor of the failure to pay a call consisting of three items, husband which the insurer's agent told plaintiff instructions using the word "assessment" was valid in spite of the variance in owner

necessarily erroneous, especially ship.-Horine v. Royal Ins. Co., Limited, of where the parties throughout the trial_used Liverpool, 201 S. W. 958.

such word to designate the entire call.–Rasch 665(3) (Mo.App.) Evidence held insufficient

v. Bankers' Life Co. of Des Moines, Iowa, 201

S. W. 919. to show acquiescence of the insured in a wrongful suspension from an assessment plan emo 669(12) (Mo.App.) In an action on fire company.-Rasch v. Bankers' Life Co. of Des policy, instruction that if the building could Moines, Iowa, 201 S. W. 919.

have been repaired with materials of like kind m 665(6) (Mo.) Although it does not relieve and quality, and so put in as good condition plaintiff from proving accidental death within the cost of repairing the building, sufficiently

as before the fire, plaintiff could recover only policy, where he has put in evidence circumstances which prove that death was either acci- defined total loss in a negative way.-Horine dental or suicidal, unreasonableness of theory

v. Royal Ins. Co., Limited, of Liverpool, 201 of suicide must receive due consideration in S. W. 958. weighing it against more reasonable theory of

In action on policy insuring barn, consistaccident.--Reynolds v. Maryland Casualty Co., ing of a main building and several extensions 201 S. W. 1128.

a general instruction limiting recovery to 666 (Mo.App.) in action

cost of repairs if the building could have been

assessment plan policy, where demand and refusal were

repaired was sufficient, and it was not necesadmitted, but the date of such demand" did sary to instruct on partial loss as to the varinot appear, plaintiff could not recover interest

ous additions to the building.-Id. from the date of the death of insured, but only from the date of her bringing action.-Rasch XX. MUTUAL BENEFIT INSURANCE. v. Bankers' Life Co. of Des Moines, Iowa,

(B) The Contract in General. 201 S. W. 919. Om668(1) (Mo.) Evidence that president and w726 (Tenn.) Beneficial association by-laws, secretary of corporate beneficiary of life policy forming part of member's contract, are to be executed instrument changing beneficiary, and liberally construed to effectuate benevolent that corporation's directors and stockholders purpose of order; but construction must be of individually consented to such action, does not laws as whole, rather than of segregated clause establish, as matter of law, the corporation's and it must not be forced or counter to maniconsent to such change.-Coleman y. North- | fest intention of contracting parties unambiguwestern Mut. Life Ins. Co., 201 S. W. 544.

ously expressed.-Honea V. American Council Oral evidence that president of corporate No. 27, J. 0. U. A. M., 201 S. W. 127. beneficiary of life policy managed corporation's affairs, etc., made his authority to consent to

(C) Dues and Assessments. change of beneficiary jury question.-Id.

en 743 (Mo.App.) Beneficiary named in in668(7) (Ark.) In action on life policy, surance certificate of fraternal benefit society whether insured had syphilis and had made who paid premiums had right to be recomfalse statements as to his health, held, under pensed from insurance money for any premithe evidence, for the jury.-- Fraternal Aid ums paid by her, though assured had right l'nion v. High, 201 S. W. 824.

to change beneficiary, which he exercised.For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER

on

Sovereign Camp, Woodmen of the World, v.

INTEREST. Downing, 201 S. W. 951.

See Usury; Witnesses, O363. (D) Forfeiture or Suspension.

III. TIME AND COMPUTATION. ww761 (Tenn.) Under by-laws of fraternal order entitling beneficiary to receive funeral em 59(1) (Mo.App.) In calculating interest on benefits for death of member, not caused from pote in case of partial payments, interest should any disease, which had demonstrated itself be calculated on demand to first payment, addprior to his reinstatement, beneficiary of mem

ed to principal, and payment deducted, then in. ber who had been suspended and whose fatal terest should be cast on remainder to second illness demonstrated itself after he applied for payment, interest added, and second payment reinstatement, but before he was finally en- deducted, etc., unless interest up to any parrolled on books of the national council, could ment shall exceed it, when payment is to be not recover the death benefit.- Honea v. Ameri- deducted from interest, and excess interest can Council No. 27, J. 0. U. A. M., 201 s. w. carried forward without casting interest to next 127.

payment that will discharge excess.-Sutton v. Ci 764 (Tenn.) Where beneficiary of member Libby, 201 S. W. 615. of fraternal order who had been suspended lost right to recover against national council

INTERSTATE COMMERCE.
by delay in enrollment after reinstatement, she see Commerce.
could not recover against local council, whose
by-laws postponed right to benefits until three
months after reinstatement; member having

INTERVENTION.
died before expiration of such time. Honea v. See Parties, em 48.
American Council No. 27, J. 0. U. A. M , 201
S. W. 127.

INTESTACY. (E) Beneficiaries and Benefits. See Descent and Distribution. ww783 (Mo.App.) Unless assured had right to change beneficiary named in original certificate, INTOXICATING LIQUORS. beneficiary acquired vested interest which could see Criminal Law, ww564; Indictment and Innot be disposed of without her consent.Sovereign Camp, Woodmen of the World, v.

formation, 110, 125. Downing, 201 S. W. 951.

VI. OFFENSES. Cm784(1) (Mo.App.) Method to change name of beneficiary taken by assured holding cer

cm 159(2) (Tex.Cr.App.) In prosecution for tificate in fraternal benefit association which giving intoxicating liquors to minor, state must had complied with laws of Missouri in pro- nest v. State, 201 S. W. 175.

show that defendant knew of minority.-Earcuring license held sufficient to accomplish that end.- Sovereign Camp, Woodmen of the World, VIII. CRIMINAL PROSECUTIONS. v. Downing, 201 S. W. 951.

w219 (Tex.Cr.App.) An indictment, that de. (F) Actions for Benefits.

fendant gave intoxicating liquor to one named,

"then and there being under the age of 21 C805(1) (Tenn.) Beneficial association may years, without the written consent of the validly stipulate that remedies must be ex parent

of the said

against the hausted by appeal to higher tribunal of order, peace," etc., was too uncertain as to who was provided for adjudication of claims, though it the minor.--Earnest v. State, 201 S. W. 175. may not wholly deprive its member of right w222 (Tex.Cr. App.) In indictment, that de to invoke aid of courts.-Honea v. American Council No. 27, J. 0. U. A. M., 201 S. W. "then and there being under the age of 21

fendant gave intoxicating liquor to one na med, 127. Where right to a funeral benefit against fra- years, without the written consent of the

of the said

parent ternal order is involved, beneficiary may sue

against the without appealing to judicatories within order, Earnest v. State, 201 S. W. 175.

peace," etc., was too uncertain as to consent.though by-laws provided for appeals therein, if they do not expressly inhibit suit in courts

Cm 233(2) (Ark.) In prosecution under Laws before exhaustion of remedies within order. 1917, p. 46, § 7, for unlawfully receiving alco--Id.

holic liquors, testimony that liquor was found Cm 817(1). (Mo.App.) For foreign corporation nesses had previously testified that they took

on accused's premises is competent, where witto be entitled to benefit of fraternal society liquor to such premises after law's enactment. laws of Missouri, it must be shown, burden being on

-Rogers v. State, 201 S. W. 815. one asserting fact, that association possesses qualifications of society, also has any 236(1) (Mo.App.) Direct testimony of serbeen admitted to do business in state, and al- eral witnesses that they purchased liquor from legation in petition, or recital in certificate, defendant, who introduced no evidence, held to that association is fraternal benefit society. sustain his conviction for violating the local will not supply proof in face of denial. -Sover: option law.-State v. Smith, 201 S. W. 942. eign Camp. Woodmen of the World, v. Down. Om 236(1) (Tex.Cr.App.) Evidence held to susing. 201 S. W. 951.

tain conviction for engaging in business or ocCum 819(1) (Mo.App.) Order of court, on bill cupation of selling intoxicants in a prohibition of interpleader by foreign fraternal'associa- county.-Morse v. State, 201 S. W. '1158. tion reciting association's character as such 236(4), (Ark.) Evidence that intoxicating and that it had complied with laws of Missouri. liquors and empty bottles were found hidden on to pay insurance to clerk of court, did not accused's premises, etc., held to sustain consupply evidence to show association had com

viction for unlawfully receiving liquors for plied with law of Missouri.-Sovereigo Camp. distribution by another.-Rogers v. State, 201 Woodmen of the World, v. Downing, 201 S. S. W. 845. W. 951.

236 (11) (Mo.App.) Direct testimony of

two witnesses that accused sold intoxicating INTENT.

liquors, contradicted only by defendant's denial,

held to sustain his conviction.-State v. Smith, See Contracts, cm147; Criminal Law, m371; 201 S. W. 942.

Deeds, www.93; Evidence, 151; Fraudu-l am 236(15) (Tex.Cr.App.) In prosecution for lent Conveyances, www273; Homicide, giving intoxicating liquor to minor, mere proof 86; Wills, Omw 439.

that girl obtaining liquor was only 17 was in

*

ror.

sufficient to warrant conviction, in the absence, and tenure of office, since article 16, § 12, of evidence as to her size and development.- prohibits one holding office under the United Earnest v. State, 201 S. W. 175.

States from holding office under the state.em 238(2) (Ark.) Evidence regarding taking Lowe v. State, 201 S. W. 986. of intoxicating liquor to accused's premises, ww25(2) (Tex.Cr.App.) Where regular judge where it was found hidden, etc., held to make formed National Guard company, and the bar jury question whether accused received liquor elected a special judge, and the regular judge, for storage, distribution, or on consignment for inducted into federal service, resigned as judge, another.-Rogers v. State, 201 S. W. 845. the special judge had power to finish the work

of the then unfinished term.-Watson v. State, XI. CIVIL DAMAGE LAWS.

201 S. W. 988. Cw301 (Mo.App.) A dramshop bond required on 26 (Tex.Cr.App.) The acts of a judge by Rev. St. 1909, $ 7196, will have the statute elected in the absence of the regular judge by read into it, and sureties will be held to have the bar of a county are valid on the principle contracted with reference thereto.-Jackson that he was a de facto officer, since he had posCounty v. Enright, 201 'S. W. 599.

session of a legally constituted office under col

or of authority.-Lowe v. State, 201 S. W. 986. INTOXICATION. See Railroads, Om390.

JUDGMENT.

See Execution."
IRON-SAFE CLAUSE.

For judgments in particular actions or proSee Insurance, Cum 335.

ceedings, see also the various specific topics.

For review of judgments, see Appeal and ErJOINDER. See Action, 45; Indictment and Informa

I. NATURE AND ESSENTIALS IN tion, em128; Parties, cm 25.

GENERAL.
JOINT TENANCY.

cm 17(11) (Tex.Civ. App.) Attaching nonresi

dent's property and serving process upon him See Tenancy in Common.

under Vernon's Sayles' Ann. Civ. St. 1914, art. mw 8 (Ky.) Conceding that one joint tenant

1869, confers jurisdiction to satisfy plaintiff's made repairs and paid taxes, etc., after he had demand by selling attached property, but not lived on the land for 32 years, receiving all | 201 S. W. 438.

to enter personal judgment.-Mann v. Brown. the rents and profits, he was not entitled to a lien for improvements without an accounting

Judgment against nonresident secured by atfor the benefits received by him and the value taching property within state and serving proof the improvements.-Sullivan v. Sullivan, 201

cess under Vernon's Sayles' Ann. Civ. St. 1914, S. W. 24.

art. 1869, is not invalid because notice or ci

tation did not show that defendant's property en 9 (Ky.) Where a deed granted land to two had been attached.-Id. brothers jointly, one of them could not become the sole owner by adverse possession, since,

II. BY CONFESSION. owing to the unity of interest, title, and possession, his possession was also on behalf of 29 (Ark.) Offer to confess is in the nature the other grantee.--Sullivan v. Sullivan, 201 of a tender, in that it must be absolute and S. W. 24.

unconditional, and, to be valid, be so unqualiIn order for one of two joint tenants to es fied that final judgment may be pronounced on tablish adverse possession, there must be actual | it.-Shepard v. Dudley, 201 S. W. 1112. ouster brought home to the other.-Id.

59 (Ark.) An offer to confess judgment Evidence held insufficient to show such ad- pursuant to Kirby's Dig. § 6283, relieving a verse holding by one of two joint tenants as defendant from costs where recovery does not to set the statute running in favor of the de- exceed the offer, was not sufficient, where defendant tenant.-Id.

fendant not only did not offer to confess for The mere fact that one of two joint tenants costs, but prayed for costs in his own behalf. who were brothers received no interest nor-Shepard v. Dudley, 201 S. W. 1112. income from the property does not support a claim of adverse holding by the other, where VI. ON TRIAL OF ISSUES. the property was occupied by their father and mother, who paid the taxes.- Id.

(A) Rendition, Form, and Requisites in

General.
JUDGES.

Om 203 (Tex.Civ.App.) A judgment awarding See Judgment, em501; Justices of the Peace; judgment for taxes accruing since claimant's

land to claimant under tax title, and the city Officers, 55.

purchase, and reciting that it does not affect I. APPOINTMENT, QUALIFICATION,

former tax adjudications against parties other AND TENURE.

than claimant, is a final judgment, not violat

ing the law against rendering two judgments in em4 (Tenn.) Under Const. art. 6, § 1, and

a cause.-Ivey v. Teichman, 201 S. W. 695. Thomp. Shan. Code, $8 221, 493, 5992, no one is eligible for office of chairman of county court (C) Conformity to Process, Pleadings, who is not a justice of the peace of the coun Proofs, and Verdict or Findings. ty.--State v. Howard, 201 S. W. 139.

mw253(4) (Tex.Civ.App.) Judgment should not

be for plaintiff for amount sued for, and for III. RIGHTS, POWERS, DUTIES, AND defendant his cross-action for greater LIABILITIES.

amount, but that plaintiff take nothing, and de25(2) (Tex.Cr.App.) Where the regular fendant recover excess.--Hegman V. Roberts, judge became an officer of the National Guard 201 S. W. 268. and the bar elected a special judge, and the reg.256(1) (Tex.Civ.App.) Judgment should conular judge thereafter went into the federal form to verdict, whether it be correct or not, service, the special judge had power, under and whether the error therein, if any, arose Vernon's Sayles' Ann. Civ. St. 1914, art. 1678, from erroneous instructions or from misinteras to election of special judges, to continue pretation of the evidence by the jury.-Turnerthe term already begun, in spite of Const. art. Cummings Hardwood Co. v. Phillip A. Ryan 5, $ 28, art. 16, § 17, as to filling vacancies | Lumber Co., 201 S. W. 431.

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

on

con:

On 256(5) (Tex.Civ.App.) Judgment not

(B) Jurisdiction and Proceedings. forming to the verdict, as required by Rev. St. ww460(3) (Ky.) In a suit to set aside a deart. 1994, with respect to the parties, was er fault judgment, showing of diligence in petition roneous.-Turner-Cummings Hardwood Co. v. held sufficient.-Davidson v. Kentucky Coal Phillip A. Ryan Lumber Co., 201 S. W. 431. Lands Co., 201 S. W. 982. (D) Arrest of Judgment.

Cw460(4) (Ky.) A petition in a suit to set 263(1) (Tenn:) Where declaration averred the ground of fraud, held to state a good cause

aside a default judgment and for a new trial on that sum "was due by a promissory note here of action.-Davidson v. Kentucky Coal Lands to the court shown,

of which note Co., 201 S. W. 982. defendant was indorser," and proof showed that indorsement contained 'waiver of protest by in- Cm 461(3) (Tex.Civ.App.) In action to set aside dorser, indorser's motion in arrest could not compromise judgment releasing plaintiff's warbe granted in view of Acts 1911, c. 32 (Thomp. rantors from liability, evidence held to show Shan. Code. 8 4902a1).-Waterhouse v. Sterchi amount of purchase price paid warrantors.

Fidelity Lumber Co. v. Ewing, 201 S. W. 1163. Bros. Furniture Co., 201 S. W. 150.

In action to set aside compromise judgment

as having been procured by fraudulent repreVIII. AMENDMENT, CORRECTION, sentations of plaintiffs, in such former suit AND REVIEW IN SAME COURT. as to their title, inducing purchase by defend

ants therein, evidence held to show that such Cu 298 (Mo.App.) Trial court has authority to defendants did not purchase a "chance of ticontrol orders and judgments during term, and tle.”—Id. they may be modified in interest of justice.- m461(5) (Ark.) Evidence that judgment Warren v. Order of Railway Conductors of foreclosing mortgage was for larger amount America, 201 S. W. 368.

than justifiable, and that guardian ad litem for ww334. (Mo.App.) Motion to set aside judgment infant defendants did not plead statute of limfor plaintiff in action against life insurer for itations, held not to sustain decree setting aside death of person insured on ground that such judgment for fraud, where limitation defense person was in fact alive was not a “writ of error was not well founded, and there was no direct coram nobis."-Warren v. Order of Railway proof of fraud.- Estes v. Lucky, 201 S. W. $15. Conductors of America, 201 S. W. 368.

ww461(5) (Tex.Civ.App.) In action to set aside

compromise judgment for fraud and mistake, IX. OPENING OR VACATING. evidence held to show fraud and mistake.-F. Cu341 (Mo.App.) Trial court has authority to 463 (Ky.) Under Civ. Code Prac. $. 522,

delity Lumber Co. v. Ewing, 201 S. W. 1163. set aside its orders and judgments during term, the trial court may, in a suit to set aside a in interest of justice.-Warren v. Order of Railway Conductors of America, 201 S. W. 368.

default judgment, pass upon the grounds for em363 (Mo.App.) After judgment for plaintiff the sufficiency of defense thereto.-Davidson v.

vacation of the judgment before deciding as to
in action on life policy, if judge discovered dur: Kentucky Coal Lands Co., 201 S. W. 982.
ing term that insured was alive, he should set
aside judgment, under Rev. St. 1909, $ 2022.-

XI. COLLATERAL ATTACK.
Warren v. Order of Railway Conductors of
America, 201 S. W. 368.

(B) Grounds.
Cw401 (Mo.App.) Where beneficiary, secured m486(1) (Tenn.) A decree of partition he.
judgment against life insurer, and judgment tween a life tenant and remainderman is utter-
was satisfied and later vacated because it was
discovered insured was alive, trial court had au-

ly void, and can be collaterally attacked by re: thority to order beneficiary to make restitution: assigned to life tenant by the decree and mort

maindermen in foreclosure action against land --Warren v: Order of Railway Conductors of gaged by him.-Chickamauga Trust Co. v. LonAmerica, 201 S. W. 368.

Court which vacated judgment against life as, 201 S. W. 777.
insurer on discovering person insured was alive w489 (Ky.) In a collateral attack on judg-
held clothed with jurisdiction to render judgment, in a cause which had been submitted to
ment for restitution against counsel for bene a special judge, the record of which did not
ficiary, who had participated in proceeds of show his qualification, it would be presumed
judgment, as well as against beneficiary.-Id. that the judgment was rendered by the regular

Life insurer which pays judgment for death of judge.- Bentley v. Stewart, 201 S. W. 978. person insured with knowledge he is alive can-am 501 (Ky.) In a collateral attack on judg. not have restitution on vacation of judgment ment rendered by a special judge whose auagainst it when it comes to attention of court thority did not affirmatively appear from the that person insured is alive.--Id.

record, bis acts were nevertheless binding and Where beneficiary in life policy made contin- valid, since he was not a tortious usurper, but gent fee contract with one member of firm of acted under color of authority by agreement lawyers, and judgment against insurer was re of parties.--Bentley v. Stewart, 201 S. W. 978. covered, and attorney individually received con- 504(2) (Ark.) The recitals of a judgment tract share proceeds, court was not justified being conclusive in the absence of fraud, and in rendering judgment of restitution against the attorneys being authorized by Kirby's Dig. two other members of firm on vacation of judg. $ 6212, to consent to trial before the court, ment.-Id.

record 'showing judgment for plaintiff on plead

ings, testimony, exhibits, and agreements is not X. EQUITABLE RELIEF.

subject to collateral attack.-Lanier v. Shonyo, (A) Nature of Remedy and Grounds.

201 S. W. 108. Cw407(1). (Ark.) Where validity of probate XIII. MERGER AND BAR OF CAUSES court's order authorizing administrator to bor OF ACTION AND DEFENSES. row money with which to pay lien indebtedness might have been tested in a foreclosure suit,

(A) Judgments Operative As Bar. order cannot be attacked in action to set aside 548 (Ark.) Although judgment was affirmerl foreclosure judgment.--Estes v. Lucky, 201 for noncompliance with rules as to abstract, and S. W. 815.

was not considered on its merits, such adjudica. 453 (Tex.Civ.App.) In action to set aside tion is bar to further action on same cause. compromise judgment for fraud, plaintiff held E. O. Barnett Bros. v. Western Assur. Co., 201 to be in "privity" with plaintiffs in action in S. W. 282. which the judgment was rendered.-Fidelity Affirmance of a judgment on appeal for failLumber Co. v. Ewing, 201 S. W. 1163.

ure to comply with court rules for insufficiency

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