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Springfield, Mass., v. Shapoff, 201 S. W. 1116.

XI. ESTOPPEL, WAIVER, OR AGREE- | ing.-Springfield Fire & Marine Ins. Co. of MENTS AFFECTING RIGHT то AVOID OR FORFEIT POLICY. 388 (1) (Ark.) Any declaration or conduct by insurer which leads insured to believe that he may avoid forfeiture of policy by certain procedure will estop insurer from insisting upon forfeiture.-Interstate Business Men's Acc. Ass'n v. Greene, 201 S. W. 799.

392 (1) (Ark.) An accident association did not waive its rights under forfeiture clause by accepting premium for policy's renewal where insured was not then engaged in prohibited occupation, although he had previously been so engaged.-Interstate Business Men's Acc. Ass'n v. Greene, 201 S. W. 799.

~~396(1) (Ark.) Where accident association sent blank injury forms to insured without knowledge he had changed his occupation to one prohibited by policy it did not waive such breach of policy.-Interstate Business Men's Acc. Ass'n v. Greene, 201 S. W. 799.

559(1) (Ky.) If adjusters after a fire absolutely denied all liability, it was unnecessary for insured to attempt to submit proofs of loss. Springfield Fire & Marine Ins. Co. of Springfield, Mass., v. Shapoff, 201 S. W. 1116.

XV. ADJUSTMENT OF LOSS. 576 (1) (Ky.) If insurance adjusters after the fire told insured that he was a firebug and to stay away from the goods that remained, the insurers could not complain that insured did not carry out an agreement in the policy to separate the damaged from the undamaged goods.-Springfield Fire & Marine Ins. Co. of Springfield, Mass., v. Shapoff, 201 S. W. 1116.

576 (2) (Ky.) If adjusters after a fire absolutely denied all liability, it was unnecessary for insured to attempt to carry out the appraisal agreement contained in the policy.Springfield Fire & Marine Ins. Co. of Springfield, 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 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-618 (Mo.App.) Since Rev. St. 1909, § 7042, yards during very cold weather did not affect liability of transportation insurer, where cattle died as result of injuries received in transit. -Estes v. Hartford Fire Ins. Co., 201 S. W. 563.

XIII. EXTENT OF LOSS AND ITY OF INSURER.

makes every foreign insurance company a resident of every county for purposes of suit, it is not necessary, under Rev. St. 1909, § 1754, to bring action on fire policy in county where fire occurred.-Young v. Queen Ins. Co. of America, 201 S. W. 940. LIABIL-632 (Mo.App.) An averment in petition that goods were burnt "while policy was in force" was sufficient to show that goods were in building where insured, where there was answer and no demurrer.-Young v. Queen Ins. Co. of America, 201 S. W. 940.

(B) Insurance of Property and Titles. 493 (Ky.) A total loss under an insurance policy may not mean a total destruction or consumption of the goods by fire, but a total loss occurs when the goods are rendered valueless, though a considerable bulk remains intact. -Springfield Fire & Marine Ins. Co. of Springfield, Mass., v. Shapoff, 201 S. W. 1116.

493 (Mo.App.) There need not be an absolute extinction of all the parts of a building in order for it to be "wholly destroyed."Horine v. Royal Ins. Co., Limited, of Liverpool, 201 S. W. 958.

504 (Mo.App.) In view of Rev. St. 1909, § 7020, as to valued policies, one whose barn was insured in several companies could recover on a valued policy the full amount of the policy regardless of other insurance.Horine v. Royal Ins. Co., Limited, of Liverpool, 201 S. W. 958.

(C) Guaranty and Indemnity Insurance. 513 (Tenn.) Under liability policy limiting liability to $5,000, and providing for defense at insurer's expense, insurer held liable for taxable costs in addition to the $5.000.-CaseyHedges Co. v. Southwestern Surety Co., 201 S. W. 137.

A petition which did not aver that property was in any building when insured was not rendered defective by not averring that it was in a building when burnt.-Id.

640 (1) (Mo.) Insurer's answer that beneficiary of life policy released its interest therein, and that insurer, pursuant to beneficiary's request, issued policy to another beneficiary, held plea that beneficiary authorized change and not plea of beneficiary's estoppel or laches to deny such change.-Coleman v. Northwestern Mut. Life Ins. Co., 201 S. W. 544.

Estoppel of beneficiary of life policy to deny that it consented to change of beneficiaries must be pleaded by insurer.-Id.

Insurer must plead that beneficiary of life policy was barred by laches from denying its consent to change of beneficiaries.-Id.

640 (2) (Mo.App.) Abandonment of a policy by the insured is an affirmative defense, which is waived by failure to plead it.-Rasch V. Bankers' Life Co. of Des Moines, Iowa, 201 S. W. 919.

645(3) (Mo.) Whether corporate beneficiUnder liability insurance policy limiting lia-ary of life policy ratified action of its officers bility to $5,000, but excluding from such limitation moneys expended in defense, insurer held liable for interest on the portion of the judgment for which it was liable.-Id.

XIV. NOTICE AND PROOF OF LOSS. 553(1) (Ky.) Where insured stated in his proofs of loss that he would not give 30 cents for what was left, and that the goods had no value, the mere fact that they were sold for about $250, and testimony of witness that they were worth several thousand dollars, held not to avoid the policy on account of false swear

in consenting to change of beneficiaries may be shown under general allegation that officers acted for their corporate principal.-Coleman v. Northwestern Mut. Life Ins. Co., 201 S. W. 544.

646(4) (Mo.App.) In an action on an assessment plan policy, where the insured admitted issuance of the policy, that plaintiff was the beneficiary, that insured was dead, that there had been a demand and refusal to pay. and plaintiff introduced the policy, the burden of showing whether any installments were unpaid at the death of the insured was on the

insurer. Rasch v. Bankers' Life Co. of Des668 (8) (Mo.App.) In action on assessment Moines, Iowa, 201 S. W. 919.

caused

plan policy, evidence as to payment of installments held to make the case for the jury.Rasch v. Bankers' Life Co. of Des Moines, Iowa, 201 S. W. 919.

646 (7) (Mo.) Where act which death may be either accidental or suicidal, burden is upon insurer to establish suicide.-Reynolds v. Maryland Casualty Co., 201 S. W. 1128.668 (11) (Mo.) In suit on accident policy,

6542 (Mo.App.) In action on assessment plan policy, plaintiff could state what the cashier of a regularly appointed depository bank had told her as to whether assessments had been paid up to the date of deceased's death.-Rasch v. Bankers' Life Co. of Des Moines, Iowa, 201 S. W. 919.

insuring against death by accidental means, where sole issue was whether intestate died from an accidental wound or whether the same wound was inflicted by intestate for purpose of producing injury, held court properly refused to sustain defendant's demurrer to evidence.Reynolds v. Maryland Casualty Co., 201 S. W. 1128.

in

658 (Mo.App.) In action against transpor-668(14) (Tex.Civ.App.) That plaintiffs 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 fraud or false swearing.-Royal Ins. Co. of Liverpool, England, v. Humphrey, 201 S. W. 426.

659 (2) (Mo.) In action on accident policy defended on ground of suicide, evidence that pistol which inflicted fatal wound could be discharged by a fall was admissible; discharge being admitted.-Reynolds v. Maryland Casualty Co., 201 S. W. 1128.

In action on accident policy defended on ground of suicide, evidence that intestate was a believer in God and a member of Episcopal Church was admissible.-Id.

668 (15) (Ark.) Evidence that defendant accident association paid plaintiff sum with statement that it neither admitted nor denied any additional liability held to make jury question whether insured thereby waived prohibited occupation clause in policy.-Interstate Business Men's Acc. Ass'n v. Greene, 201 S. W. 799.

665(1) (Mo.App.) Where the defendant ad-668(15) (Mo.) Whether beneficiary of life mitted issuance of the policy, admitted that plaintiff was the beneficiary, and admitted the death of insured and demand and refusal to pay, plaintiff need only introduce the policy in evidence to make a prima facie case. Rasch v. Bankers' Life Co. of Des Moines, Iowa, 201 S. W. 919.

665 (2) (Mo.App.) Evidence held to show mutual mistake in an insurance policy upon property of the wife drawn in favor of the husband which the insurer's agent told plaintiff was valid in spite of the variance in ownership.-Horine v. Royal Ins. Co., Limited, of Liverpool, 201 S. W. 958.

665 (3) (Mo.App.) Evidence held insufficient to show acquiescence of the insured in a wrongful suspension from an assessment plan company.-Rasch v. Bankers' Life Co. of Des Moines, Iowa, 201 S. W. 919.

665(6) (Mo.) Although it does not relieve plaintiff from proving accidental death within policy, where he has put in evidence circumstances which prove that death was either accidental or suicidal, unreasonableness of theory

of suicide must receive due consideration in weighing it against more reasonable theory of accident. Reynolds v. Maryland Casualty Co.,

201 S. W. 1128.

policy was prevented by estoppel or laches from denying its consent to change of beneficiaries, held jury question, where facts were not all admitted, but depended, in essential particulars, on credibility of witnesses.-Coleman v. Northwestern Mut. Life Ins. Co., 201 S. W. 544.

669 (8) (Mo.App.) In an action on assessment plan policy, where the insurer set up failure to pay a call consisting of three items, instructions using the word "assessment" necessarily erroneous, especially where the parties throughout the trial_used such word to designate the entire call.-Rasch S. W. 919. v. Bankers' Life Co. of Des Moines, Iowa, 201

were not

669 (12) (Mo.App.) In an action on fire policy, instruction that if the building could have been repaired with materials of like kind and quality, and so put in as good condition as before the fire, plaintiff could recover only the cost of repairing the building, sufficiently defined total loss in a negative way.-Horine S. W. 958. v. Royal Ins. Co., Limited, of Liverpool, 201

In action on policy insuring barn, consisting of a main building and several extensions

a

general instruction limiting recovery to cost of repairs if the building could have been repaired was sufficient, and it was not necessary to instruct on partial loss as to the various additions to the building.-Id.

666 (Mo.App.) In action on assessment plan policy, where demand and refusal were admitted, but the date of such demand did not appear, plaintiff could not recover interest 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, 201 S. W. 919.

(B) The Contract in General.

668 (1) (Mo.) Evidence that president and 726 (Tenn.) Beneficial association by-laws, secretary of corporate beneficiary of life policy executed instrument changing beneficiary, and that corporation's directors and stockholders individually consented to such action, does not establish, as matter of law, the corporation's consent to such change.-Coleman v. Northwestern Mut. Life Ins. Co., 201 S. W. 544.

Oral evidence that president of corporate beneficiary of life policy managed corporation's affairs, etc., made his authority to consent to change of beneficiary jury question.-Id.

668(7) (Ark.) In action on life policy, whether insured had syphilis and had made false statements as to his health, held, under the evidence, for the jury.-Fraternal Aid Union v. High, 201 S. W. 824.

forming part of member's contract, are to be liberally construed to effectuate benevolent purpose of order; but construction must be of laws as whole, rather than of segregated clause and it must not be forced or counter to manifest intention of contracting parties unambiguously expressed.-Honea v. American Council No. 27, J. O. U. A. M., 201 S. W. 127.

(C) Dues and Assessments.

743 (Mo.App.) Beneficiary named in insurance certificate of fraternal benefit society who paid premiums had right to be recompensed from insurance money for any premiums paid by her, though assured had right to change beneficiary, which he exercised.-

Sovereign Camp, Woodmen of the World, v.
Downing, 201 S. W. 951.

(D) Forfeiture or Suspension.

761 (Tenn.) Under by-laws of fraternal order entitling beneficiary to receive funeral benefits for death of member, not caused from any disease, which had demonstrated itself prior to his reinstatement, beneficiary of member who had been suspended and whose fatal illness demonstrated itself after he applied for reinstatement, but before he was finally enrolled on books of the national council, could not recover the death benefit.-Honea v. American Council No. 27, J. O. U. A. M., 201 S. W.

127.

INTEREST.

See Usury; Witnesses, 363.

III. TIME AND COMPUTATION. 59(1) (Mo.App.) In calculating interest on note in case of partial payments, interest should be calculated on demand to first payment, added to principal, and payment deducted, then interest should be cast on remainder to second payment, interest added, and second payment deducted, etc., unless interest up to any payment shall exceed it, when payment is to be deducted from interest, and excess interest carried forward without casting interest to next payment that will discharge excess.-Sutton v. Libby, 201 S. W. 615.

INTERSTATE COMMERCE.

764 (Tenn.) Where beneficiary of member of fraternal order who had been suspended lost right to recover against national council 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 died before expiration of such time.-Honea v. See Parties, 48. American Council No. 27, J. O. U. A. M, 201 S. W. 127.

(E) Beneficiaries and Benefits.

783 (Mo.App.) Unless assured had right to change beneficiary named in original certificate, beneficiary acquired vested interest which could not be disposed of without her consent.Sovereign Camp, Woodmen of the World, v. Downing, 201 S. W. 951.

784 (1) (Mo.App.) Method to change name of beneficiary taken by assured holding certificate in fraternal benefit association which had complied with laws of Missouri in procuring license held sufficient to accomplish that end. Sovereign Camp, Woodmen of the World, v. Downing, 201 S. W. 951.

(F) Actions for Benefits.

805 (1) (Tenn.) Beneficial association may validly stipulate that remedies must be exhausted by appeal to higher tribunal of order, provided for adjudication of claims, though it may not wholly deprive its member of right to invoke aid of courts. Honea v. American Council No. 27, J. O. U. A. M., 201 S. W.

127.

Where right to a funeral benefit against fraternal order is involved, beneficiary may sue without appealing to judicatories within order, though by-laws provided for appeals therein, if they do not expressly inhibit suit in courts before exhaustion of remedies within order. -Id.

INTERVENTION.

INTESTACY.

See Descent and Distribution.

INTOXICATING LIQUORS.

See Criminal Law, 564; Indictment and Information, 110, 125.

VI. OFFENSES.

for

159(2) (Tex.Cr.App.) In prosecution giving intoxicating liquors to minor, state must show that defendant knew of minority.-Earnest v. State, 201 S. W. 175.

VIII. CRIMINAL PROSECUTIONS.

219 (Tex.Cr.App.) An indictment, that defendant gave intoxicating liquor to one named, "then and there being under the age of 21 years, without the written consent of the parent of the said against the peace," etc., was too uncertain as to who was the minor.-Earnest v. State, 201 S. W. 175.

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222 (Tex.Cr.App.) In indictment, that defendant gave intoxicating liquor to one named. "then and there being under the age of 21 years, without the written consent of the parent of the said against the peace," etc., was too uncertain as to consent.Earnest v. State, 201 S. W. 175.

* **

233 (2) (Ark.) In prosecution under Laws 1917, p. 46, § 7, for unlawfully receiving alcoholic liquors, testimony that liquor was found on accused's premises is competent, where witnesses had previously testified that they took liquor to such premises after law's enactment. -Rogers v. State, 201 S. W. 845.

817(1) (Mo.App.) For foreign corporation to be entitled to benefit of fraternal society laws of Missouri, it must be shown, burden being on one asserting fact, that association possesses qualifications of society, also has 236(1) (Mo.App.) Direct testimony of sevbeen 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. Downing. 201 S. W. 951.

819(1) (Mo.App.) Order of court, on bill of interpleader by foreign fraternal association reciting association's character as such and that it had complied with laws of Missouri. to pay insurance to clerk of court, did not supply evidence to show association had complied with law of Missouri.-Sovereign Camp, Woodmen of the World, v. Downing, 201 S. W. 951.

INTENT.

236(1) (Tex.Cr.App.) Evidence held to sustain conviction for engaging in business or occupation of selling intoxicants in a prohibition county.-Morse v. State, 201 S. W. 1158.

236(4) (Ark.) Evidence that intoxicating liquors and empty bottles were found hidden on accused's premises, etc., held to sustain conviction for unlawfully receiving liquors for distribution by another.-Rogers v. State, 201 S. W. 845.

236(11) (Mo.App.) Direct testimony of two witnesses that accused sold intoxicating liquors, contradicted only by defendant's denial, held to sustain his conviction.-State v. Smith, 201 S. W. 942.

See Contracts, 147; Criminal Law, 371; Deeds, 93; Evidence, 151; Fraudu-236(15) (Tex.Cr.App.) In prosecution for lent Conveyances, 273; Homicide, 86; Wills, 439.

giving intoxicating liquor to minor, mere proof that girl obtaining liquor was only 17 was in

sufficient to warrant conviction, in the absence of evidence as to her size and development. Earnest v. State, 201 S. W. 175.

238(2) (Ark.) Evidence regarding taking of intoxicating liquor to accused's premises, where it was found hidden, etc., held to make jury question whether accused received liquor for storage, distribution, or on consignment for another.-Rogers v. State, 201 S. W. 845.

XI. CIVIL DAMAGE LAWS. 301 (Mo.App.) A dramshop bond required by Rev. St. 1909, § 7196, will have the statute read into it, and sureties will be held to have contracted with reference thereto.-Jackson County v. Enright, 201 S. W. 599.

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9 (Ky.) Where a deed granted land to two brothers jointly, one of them could not become the sole owner by adverse possession, since, owing to the unity of interest, title, and possession, his possession was also on behalf of the other grantee.-Sullivan v. Sullivan, 201 S. W. 24.

In order for one of two joint tenants to establish adverse possession, there must be actual ouster brought home to the other.-Id.

Evidence held insufficient to show such adverse holding by one of two joint tenants as to set the statute running in favor of the defendant tenant.-Id.

and tenure of office, since article 16, § 12, prohibits one holding office under the United States from holding office under the state.Lowe v. State, 201 S. W. 986.

25(2) (Tex.Cr.App.) Where regular judge formed National Guard company, and the bar elected a special judge, and the regular judge, inducted into federal service, resigned as judge, the special judge had power to finish the work of the then unfinished term.-Watson v. State, 201 S. W. 988.

26 (Tex.Cr.App.) The acts of a judge elected in the absence of the regular judge by the bar of a county are valid on the principle that he was a de facto officer, since he had possession of a legally constituted office under color of authority.-Lowe v. State, 201 S. W. 986.

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II. BY CONFESSION.

29 (Ark.) Offer to confess is in the nature of a tender, in that it must be absolute and unconditional, and, to be valid, be so unqualified that final judgment may be pronounced on it.-Shepard v. Dudley, 201 S. W. 1112.

59 (Ark.) An offer to confess judgment pursuant to Kirby's Dig. § 6283, relieving a defendant from costs where recovery does not exceed the offer, was not sufficient, where defendant not only did not offer to confess for costs, but prayed for costs in his own behalf.

The mere fact that one of two joint tenants 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 the property was occupied by their father and mother, who paid the taxes.-Id.

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4 (Tenn.) Under Const. art. 6, § 1, and Thomp. Shan. Code, §§ 221, 493, 5992, no one is eligible for office of chairman of county court who is not a justice of the peace of the county.-State v. Howard, 201 S. W. 139.

III. RIGHTS, POWERS, DUTIES, AND
LIABILITIES.

VI. ON TRIAL OF ISSUES.

(A) Rendition, Form, and Requisites in General.

203 (Tex.Civ.App.) A judgment awarding land to claimant under tax title, and the city judgment for taxes accruing since claimant's purchase, and reciting that it does not affect former tax adjudications against parties other than claimant, is a final judgment, not violating the law against rendering two judgments in a cause. Ivey v. Teichman, 201 S. W. 695.

(C) Conformity to Process, Pleadings, Proofs, and Verdict or Findings. 253(4) (Tex.Civ.App.) Judgment should not be for plaintiff for amount sued for, and for defendant on his cross-action for greater amount, but that plaintiff take nothing, and defendant recover excess.-Hegman v. Roberts,

25(2) (Tex.Cr.App.) Where the regular 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 service, the special judge had power, under Vernon's Sayles' Ann. Civ. St. 1914, art. 1678, as to election of special judges, to continue the term already begun, in spite of Const. art. 5, § 28. art. 16. § 17, as to filling vacancies

form to verdict, whether it be correct or not, and whether the error therein, if any, arose from erroneous instructions or from misinterpretation of the evidence by the jury.-TurnerCummings Hardwood Co. v. Phillip A. Ryan Lumber Co., 201 S. W. 431.

256(5) (Tex.Civ.App.) Judgment not conforming to the verdict, as required by Rev. St. art. 1994, with respect to the parties, was erroneous.-Turner-Cummings Hardwood Co. v. Phillip A. Ryan Lumber Co., 201 S. W. 431.

(D) Arrest of Judgment.

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(B) Jurisdiction and Proceedings. 460(3) (Ky.) In a suit to set aside a default judgment, showing of diligence in petition held sufficient.-Davidson v. Kentucky Coal Lands Co., 201 S. W. 982.

460(4) (Ky.) A petition in a suit to set aside a default judgment and for a new trial on the ground of fraud, held to state a good cause of action.-Davidson v. Kentucky Coal Lands Co., 201 S. W. 982.

263(1) (Tenn.) Where declaration averred that sum "was due by a promissory note here to the court shown, * of which note defendant was indorser," and proof showed that indorsement contained waiver of protest by in-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, § 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.

VIII. AMENDMENT,

CORRECTION, AND REVIEW IN SAME COURT.

In action to set aside compromise judgment as having been procured by fraudulent representations of plaintiffs, in such former suit as to their title, inducing purchase by defendants therein, evidence held to show that such defendants did not purchase a "chance of title."-Id.

298 (Mo.App.) Trial court has authority to control orders and judgments during term, and they may be modified in interest of justice.461 (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 infant defendants did not plead statute of limitations, held not to sustain decree setting aside judgment for fraud, where limitation defense was not well founded, and there was no direct proof of fraud.-Estes v. Lucky, 201 S. W. 815.

334 (Mo.App.) Motion to set aside judgment for plaintiff in action against life insurer for death of person insured on ground that such person was in fact alive was not a "writ of error coram nobis."-Warren v. Order of Railway Conductors of America, 201 S. W. 368.

IX. OPENING OR VACATING.

341 (Mo.App.) Trial court has authority to set aside its orders and judgments during term, in interest of justice.-Warren v. Order of Railway Conductors of America, 201 S. W. 368.

363 (Mo.App.) After judgment for plaintiff in action on life policy, if judge discovered during term that insured was alive, he should set aside judgment, under Rev. St. 1909, § 2022.Warren v. Order of Railway Conductors of America, 201 S. W. 368.

461(5) (Tex.Civ.App.) In action to set aside compromise judgment for fraud and mistake, evidence held to show fraud and mistake.-Fi

delity Lumber Co. v. Ewing, 201 S. W. 1163.

463 (Ky.) Under Civ. Code Prac. § 522, the trial court may, in a suit to set aside a default judgment, pass upon the grounds for the sufficiency of defense thereto.-Davidson v. vacation of the judgment before deciding as to Kentucky Coal Lands Co., 201 S. W. 982.

XI. COLLATERAL ATTACK.
(B) Grounds.

tween a life tenant and remainderman is utterly void, and can be collaterally attacked by remaindermen in foreclosure action against land

401 (Mo.App.) Where beneficiary secured judgment against life insurer, and judgment 486 (1) (Tenn.) A decree of partition bewas satisfied and later vacated because it was discovered insured was alive, trial court had authority to order beneficiary to make restitution. -Warren v. Order of Railway Conductors of America, 201 S. W. 368.

assigned to life tenant by the decree and mortgaged by him.-Chickamauga Trust Co. v. Lonas, 201 S. W. 777.

Court which vacated judgment against life insurer on discovering person insured was alive 489 (Ky.) In a collateral attack on judgheld 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 judge.-Bentley v. Stewart, 201 S. W. 978.

Life insurer which pays judgment for death of person insured with knowledge he is alive cannot have restitution on vacation of judgment against it when it comes to attention of court that person insured is alive.-Id.

501 (Ky.) In a collateral attack on judgment rendered by a special judge whose authority did not affirmatively appear from the record, his acts were nevertheless binding and valid, since he was not a tortious usurper, but acted under color of authority by agreement of parties.-Bentley v. Stewart, 201 S. W. 978. being conclusive in the absence of fraud, and the attorneys being authorized by Kirby's Dig. § 6212, to consent to trial before the court, record showing judgment for plaintiff on pleadings, testimony, exhibits, and agreements is not subject to collateral attack.-Lanier v. Shonyo, 201 S. W. 108.

Where beneficiary in life policy made contingent fee contract with one member of firm of lawyers, and judgment against insurer was recovered, and attorney individually received con- 504(2) (Ark.) The recitals of a judgment tract share of proceeds, court was not justified in rendering judgment of restitution against two other members of firm on vacation of judgment.-Id.

X. EQUITABLE RELIEF. (A) Nature of Remedy and Grounds. 407(1) (Ark.) Where validity of probate court's order authorizing administrator to borrow money with which to pay lien indebtedness might have been tested in a foreclosure suit, order cannot be attacked in action to set aside foreclosure judgment.-Estes v. Lucky, 201 S. W. 815.

453 (Tex.Civ.App.) In action to set aside compromise judgment for fraud, plaintiff held to be in "privity" with plaintiffs in action in which the judgment was rendered.-Fidelity Lumber Co. v. Ewing, 201 S. W. 1163.

XIII. MERGER AND BAR OF CAUSES
OF ACTION AND DEFENSES.

(A) Judgments Operative as Bar,
548 (Ark.) Although judgment was affirmed
for noncompliance with rules as to abstract, and
was not considered on its merits, such adjudica-
tion is bar to further action on same cause.-
E. O. Barnett Bros. v. Western Assur. Co., 201
S. W. 282.

Affirmance of a judgment on appeal for failure to comply with court rules for insufficiency

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