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It Supplements the Decennial Digests, the Key-Number Series and Prior Re-

porter Volume Index-Digests.'



Em 37 (Miss.) Bank entitled to prosecute ac-

tion to judgment on merger with other bank See Executors and Administrators.
pending suit.-Central Nat. Bank v. Perry, 276.


OF See Shipping.

47 (Miss.) Actions against former Direc-lam 21. (Ala.) Employee held engaged in non-
tor General held not to abate, because not re-
vived.--Moore y. Hines, 392.

maritime service when injured.-Ex parte

Havard, 897.

See Compromise and Settlement.

Cos (Ala.) Creditor's acceptance of notes (A) Acquisition of Rights by Prescrip
from third party held not accord or satisfac-

tion in General.
tion.--Tuscalooså Lumber Co. v. Tropical Paint
& Oil Co., 236.

m13 (Ala.) Claimant must bring possession

within specification of Code.--Earnest v. Fite,


Code requirements held not to apply to claim
CI! (Ala.) Bookkeeper's affidavit held suffi- by prescription of 20 years.-Id.
cient to render account admissible.-Farrell v.
Anderson-Dulin-Varnell Co., 205.

(F) Hostile Character of Possession.

Cm7I(1) (La.) Prescription; sale under pri.

vate signature held sufficient basis for claim of
See Abatement and Revival; Dismissal and title by prescription.-Kinchen v. Redmond,


Cm81 (La.) Prescription; unauthorized deed

held sufficient to support prescription acqui-
m31 (Ala.) Assumpsit for cutting and re-

rendi causa.-Bowers v. Langston, 301.
moving timber not maintainable without aver-

Ow85(5) (La.) Prescription; proof of con-
ring sale.-Cox y. Awtry, 337.

tents of lost document evidencing sale of land

held sufficient to support plea of title by pre-

scription.-Kinchen v. Redmond, 607.

Om 38(3) (Ala.) Complaint in trespass held
not demurrable for misjoinder of causes of ac- See Principal and Agent.
tion.—Alabama Power Co. v. Cornelius, 207,
Oma 47 (Ala.) Complaint held demurrable for

misjoinder of actions.-Cox v. Awtry, 337.

z (Fla.) Rules of pleading applicable to
50(1) (Ala) No misjoinder of causes of vendors of fertilizers.--Davis v. American Agr.
action because suit brought on several injunc- Chemical Co., 741.
tion bonds.-McCord v. Bridges, 469.

Call (La.) Borrower of money to make crop
em 50(9) (La.) Joinder of individual defend- held not entitled to sell in violation of con-
ants and insurance companies in suit for dam-tract.--Gueydan v.-T. P. Ranch Co., 541.
ages for slander and libel held improper.-Mc-
Gee v. Collins, 430.

Defendants sued for conspiracy held to have
sufficient community of interest to be joined OF instrument as means of evidence is material

2 (Miss.) Alteration which enlarges scope
in one suit.-Id.

alteration.-J. R. Watkins Co. v. Fornea, 185.

C9 (Ala.) Detachment of draft pasted to

draft for larger amount held not material "al.

teration.”—Moore v. First Nat. Bank, 319.
C70 (La.) Plea of prescription and prayer

C17 (Ala.) Unauthorized alteration in tim-
for dismissal held to waive abandonment of suit

ber grant held not to authorize cancellation of
for want of prosecution.-Continental Supply

conveyance.-Gresham v. Pogue, 636.
Co. v. Fisher Oil Co., 64.
Demand in reconvention by plaintiff in an-

swer to demand in nullity held reinstitution of
suit as against claim of abandonment.-Id. See Railroads, m439-443.
100 SO.-59



50(2) (Ala.) Facts to support establish-, ww216(2) (Ala.) Instruction to verdict
ment of stock law district presumed.—March v. where mind in state of confusion held not re.
Board of Revenue & Road Com’rs of Mobile | versible error.-Boyette v. Bradley, 647.
County, 822.

226(1) (Ala.) Failure to render judgment
Petition for stock law election held insuffi - for costs not to be raised for first time in ap-

pellate court.-Richardson y. Stinson, 209.
Proceedings for stock law election held valid. Em 242(3) (Ala.) Demurrers not ruled on not

reviewable.-Thompson v. Menefee, 107.
Withdrawal and refiling of petition for stock
law election within court's discretion.-Id.

(D) Motions for New Trial.
Ow50(2). (Ala.) Previous act relative to stock | Om 301 (Ala.) Prejudicial effect of question
law districts held repealed.-Board of Revenue assuming unproved fact to be reviewed must
v. Ikner, 827.

be presented by motion for new trial.-South-

ern Ry. Co. v. Dickson, 665.

Om 305 (Ala.App.) Excessiveness of verdict
See Certiorari; Courts. Om 203-231; Crim-

pot reviewable on appeal from judgment with-
inal Law, Ow1036–1188; Exceptions, Bill of.

out exception to denial of new trial.-Cheek v.

Odom, 782.
For review of rulings in particular actions or

proceedings, see also the various specific top-eww 327 (2) (La.) Defendant

not necessary

party below held not necessary party on ap-
II. NATURE AND GROUNDS OF APPEL- real by plaintiff.-Givens v. De Soto Bldg. Co.,

Cm21 (Ala.) Jurisdiction to consider appeal E-327(4) (Fla.) Receiver may be made sole
from decree not final, may not be conferred by appellee in appeal from order fixing his com-
consent.-Jackson v. Jackson, 332.

pensation.-Theo. Hirsch Co. v. Scott, 157.

m329 (Fla.) Interveners may be brought into

court on appeal, when final decision of their
(D) Finality of Determination.

right or claim made below.-Theo. Hirsch Co.

v. Scott, 157.
Ons 68 (Fla.) “Interlocutory orders or decrees"
defined.-Theo. Hirsch Co. v. Scott, 157.

ema 69(1) (Ala.) Interlocutory decree allow-

ing alimony and counsel fees pendente lite will (A) Time of Taking Proceedings.
not support appeal.-Jackson v. Jackson, 332.
Om7i (2).(Fla.) Writ of error lies from or- junction lies if taken within ten days.-Malone

339(4) (Ala.) Appeal from preliminary in-
der dissolving ancillary attachment.-Maddoxv. Decatur Cotton Compress Co.. 807.
Grocery Co. v. Hay, 747.

m351 (2) (Ala.) Appeal held taken within
Om76(2) (Ala.) Opinion in decree stating re-

time prescribed.-Luther v. Luther, 497.
lationship not followed by order or decree not
final, supporting appeal.-Hill v. Hill, 340.

(B) Petition or Prayer, Allowance, and
mm 82(1) (Fla.) Matters arising after final

Certificate or Affidavit.
appealable judgments or decrees requiring judi-
cial action relative to rights litigated in main C 364 (Fla.) Writ of error made returnable
suit appealable.-Theo. Hirsch Co. v. Scott, 30 days from its date will be dismissed.-Lav

v. Zimmerman, 528.
Subsequent decree requiring judicial action

Om 364 (Fla.) Writ of error made returnable
on matters arising after final decree review- more than 90 days from its date will be dis-

missed.--East Coast Lumber Co. v. Walter
Order in orginal proceeding collateral to main Walton Co., 738.
action appealable; “final order."-Id.

(C) Payment of Fees or Costs, and Bonds

or Other Securities.
(F) Mode of Rendition, Form, and Entry384 (2) (Ala.App.) Appeal held to be from
of Judgment or Order.

original judgment and not from order denying
Om 133 (Fla.) Order for final judgment, fol-new trial.--Robinson v. Steverson, 910.
lowed by judgment for cost, will not support
writ of error.-Young y. Lassiter, 362.



(A) Matters to be shown by Record.
(A) Persons Entitled,

mw494 (Ala.) Ruling on motion for new trial
mw 143 (Fla.) Interveners may appeal when not reviewable unless judgment thereon shown);
final decision of their right or claim made be- showing held sufficient.—May v. Middleton, 6-10.
low.-Theo. Hirsch Co. v. Scott, 157.

Cw508" (Miss.) Dismissal of appeal by circuit
w 150(1) (Fla.) Debtor in receivership has court affirmed because no appeal bond in rec-
appealable interest in order diverting proceeds ord showing appeal to circuit court.-Michael
of his property to purposes other than extin- v. West Hatchie Drainage Dist., 392.
guishment of his debt.-Theo. Hirsch Co. v. 515(2) (Ala.) Decree reversed for absence
Scott, 157.

from record of note of testimony.-Conner v.

State, 474.

Decree denying complainants relief will not

be reversed on account of nonexistence of note

of testimony.-Id.
(A) Issues and Questions in Lower Court.
171(3) (Ala.) Case considered on appeal,

(B) Scope and Contents of Record.
as it was tried.—Jefferson County v. Parker, ww536 (Ala.). Settlement and signing of bill

of exceptions judicial act and must take place
Com 179(4) (Ala.) Only constitutional infirm- within territorial limits of judge's jurisdiction.
ities of statutes raised and insisted on by par- |-Luther v. Luther, 497.
ties considered.–Faircloth-Segrest Mercantile Cmw 537 (Ala.App.) Bill of exceptions not pre-
Co. v. Roach, 908.

sented within 90 days ineffectual to review or.

iginal judgment.--Robinson v. Steverson, 910.
(B) Objections and Motions, and Rulings

(H) Transmission, Filing, Printing, and
194(1) (Ala.) Plea not challenged, demur-

Service of Copies.
red to, nor joined issue on not reviewable.- Omw 627 (2) (Ala.) Appeal held not waived or
Harris v. Harris, 333.

discontinued.-Luther v. Luther, 497.


For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see game topic and KEY-NUMBER
Em 628(2) (Ala.). Appellant not prejudiced by low 863 (La.) Claims for attorney's fees could
failure of probaté judge to discharge ministerial not be considered on appeal.-First Nat. Bank
duties.-Luther y. Luther, 497.

v. Hudson Const. Co., 451.
(1) Defects, Objections, Amendment, and (B) Interlocutory, Collateral, and Supple-

mentary Proceedings and Questions.
Om655(1) (Ala.) Supreme Court must exm873(3). (Ala.App.) Denial of new trial, not
mero motu strike bill of exceptions not pre appealed from in time, not considered on ap-
sented to judge as required by statute.-South- peal from original judgment.-Cheek v. Odom,
ern Ry. Co. v. Williams, 203.

655(2) (Ala.). Appellee's motion to strike
matters improperly incorporated in bill of ex-

(C) Parties Entitled to Allege Error,
ceptions refused.--Harris v. Harris, 333. Om 878(2) (La.) Defendant held precluded

655(2) (Ala) Failure to set out consecu- from defending judgment on appeal on ground
tively interrogatories and answer held not to that it was not properly cited.-G. A. Kennedy
render bill subject to motions to strike.-Lucky & Bro. v. Farmers' Warehouse, 681,
1. Roberts, 878.
Em655(2) (Ala.App.) Bill purposely contain-

(E) Presumptions.
ing colloquy and questions and answers tocm900 (Ala.) Supreme Court will indulge, in
witness not stricken.-Cheek v. Odom, 782, favor of things done in trial court, all pre-

sumptions not contradicted by record.--McMil-
(J) Conclusiveness and Effect. Impeach- lian Lumber Co. v. First Nat. Bank, 331.
ing and Contradicting.

ww917(1) (La.) Facts alleged deemed true on
Com 668 (Ala.) That bill of exceptions review of judgment sustaining .exception of no
never properly signed may be shown by parol. cause of action.-Dronette v. Meaux Bros., 411.
-Luther y. Luther, 497.

Ono 917(3) (Ala.) Grounds of demurrer, not
(K) Questions Presented for Review.

asserted and argued in brief, presumed waived.

-Conner v. State, 474.
Om677 (Ala.) Overruling motion to quash Oww.920(1) (Ala.App.) Appellate court pre-
summons and process presumed proper, where sumes, where judgment rendered by default,
record discloses no evidence in support of mo that trial court correctly ruled on preliminary
tion.-Bailey y. Griffin, 242.

motions.-Green v. NuGrape, Co., 84.

Ow931 (1) (Ala.) Proof taken by deposition
(L) Matters Not Apparent of Record.

reviewed, without presumption in favor of trial
713(3) (Ala.) Pleadings, rulings, and judge's finding.-May v. State, 780.
charges given and refused should be incorpo-Paw 934(3), (Ala.) Face of record held to pre-
rated in record proper, not bill of exceptions.clude appellate court from presuming defend-
--Harris v. Harris, 333.

ants' plea was filed in advance of judgment.-

McMillian Lumber Co. v. First Nat. Bank, 331.
719(10) (Ala.) Failure to render judgment

(F) Discretion of Lower Court.
for costs not to be raised for first time in m969 (Ala.) Court's refusal to transfer case
appellate court without assignment of error.- to equity side of court not reviewable.-Foun-
Richardson v. Stinson, 209.

tain v. State, 892.

Par 973 (Fla.) Dismissal without prejudice in

equity not error, in absence of clear showing
Emo 761 (Ala.) Grouping assignments of error of abuse of discretion.--Veillard v. City of St.
and argument permissible.-Southern Ry. Co. Petersburg, 163,
v. Cates, 356.

979(2) (Ala.) When grant of new trial
Cm761 (Ala.) Where one of several assign- because verdict contrary to preponderance of
ments argued'in bulk without merit, considera- evidence not disturbed.--Acuff v. Lowe, 761.
tion of others may be pretermitted. --Alabama mw979(2) (Fla.) 'Order granting new trial not
Co. y. Norwood, 479.

disturbed where evidence conflicts and judicial

discretion not abused.--Herrin v. Avon Mfg.

Em778 (Ala.) Dismissal discretionary.-Luth-(G) Questions of Fact, Verdicts, and Find-

er v. Luther, 497.

mm 792 (Ala.) Sufficiency of decree to support w 100!(1) (Miss,) Jury's finding on compe-
appeal jurisdictional.- Jackson v. Jackson, 3:32. tent evidence not disturbed.-F. W. Woolworth
Cm797(2) (Ala.) Motion to dismiss should be Co. v. Volking, 3.
made without undue delay.-Luther v. Luther, !002 (Ala.) Jury's, finding of fact on con-

flicting evidence indisputable appeal.-

Franklin v. Argyro, $11.
XV. HEARING AND REHEARING. Om 1003 (Miss.) Employec's testimony held not
820 (La.) Supreme Court may appoint ex-

so unreasonable as to warrant appellate court
pert to report on long and intricate accounts. in disturbing verdict.-F. W. Woolworth Co.
Interstate Trust & Banking Co. v. Laplace, 1005 (2) Ala.) Where court not convinced
Em 835(2) (Miss.) Consideration of points first that verdict was wrong, refusal of new trial
made on suggestion of error optional with

not disturbed.-America Mining Co. v. Taylor,

court.-Mars v. Germany, 23.

1005 (3) (Ala.) Court's ruling sustaining

verdict on motion for new trial, conclusive.

May v. Middleton, 640.
(A) Scope and Extent in General.

Om 1005(3) (Ala.) Weight of conflicting evi-
Om 843(4) (Ala.) Overruling of demurrers to dence against verdict held not ground for re-
pleas mentioned in single assignment of error versal.--Southern Ry. Co. v. Dickson, 665.
in like rulings thereon not considered if proper Om 1008(1) (Ala.App.) Effect of findings by
as to any.-Cooledge v. McArdle, 145.

court.--Dolcito Quarry Co. v. Cruse-Crawford
Cm850(i) (Ala.) Special finding of fact sub- Mfg. Co., 72.
ject to review by Supreme Court.-Bogacki v. Appellate court will ascertain whether find-
City of Montgomery, 214.

ings sustain judgment but not whether findings
Om863 (Ala.) Only errors affecting quantum are sustained by extrinsic evidence.--Id.
of damages considered on plaintiff's appeal Om 1009(1) (Ala.) Decree based on oral ex-
from judgment as insufficient.-Franklin v. amination of witnesses not disturbed, unless
Argyro, 811.

plainly wrong.–Driver v. Johnson, 116.



Om 1009(1) (Fla.) Where chancellor's decree om 1050(1) (Ala.) Admission of evidence held
appears clearly erroneous, it will be reversed. not reversible error.-McCord v. Bridges, 462.

-Bankers' Financing Co. v. Lye, 804. Cw1050(!) (Ala.) Asking witness what day
Om 1009 (4) (Ala.) Decree not set aside unless he had a fire not prejudicial.-Atlanta & St. A.
contrary to great weight of evidence.-State v. B. R. Co. v. Spivey, 759.
Brown, 224.

Cum 1050(!) (Ala.) Admission of evidence held
Pa 1009(4),(Ala.) Trial court's findings not pot harmless.-America Mining Co. v. Taylor,
disturbed unless contrary to weight of evidence. 761.
--Smith v. City of Dothan, 501.

C1052(6) (Ala.) Exclusion of testimony on
Cw1010(1) (Ala.) Finding of neither part. issue found for appellant not reversible error.
nership nor joint adventure not disturbed in Franklin v. Argyro, 811.
view of evidence.-Hill v. Hill, 340.

Cw1052(8) (Ala.) Admission of testimony in-
ww1011(1) (Ala.App.) Findings of fact on stead of books of accounts held not prejudicial.
conflicting testimony not 'disturbed.-Dicks v. -Contorno v. Ensley Lumber Co., 127.
McAllister, 631.

Om 1054(1). (Ala.) Admission of evidence of
Cm 1011(1) (La.) Trial court's findings of fact bad reputation of alleged disorderly house held
on conflicting evidence entitled to great weight. not prejudicial error. --State v. Brown, 224.
-Oliver v. New Orleans Ry. & Light Co., 53. C1056(3) (Ala.) Exclusion of testimony
w 1012(1) (Ala.) Finding by trial court sit- shedding no light on quantum of damages held
ting without jury not disturbed unless clearly immaterial.-Franklin v. Argyro, 811.
against weight of evidence given ore tenus.- Cm 1057(2) (Ala.) Exclusion of testimony as
Gillespie v. Bartlett & Byers, 858.

to lessors' ownership not questioned by lessee

held not prejudicial.-Hogg v. Frazier, 95.
(H). Harmless Error.

Om 1058(i) (Ala.) Exclusion of evidence cured

by admission of similar evidence.- Nashville
C 1026 (Miss.) Judgment not reversed be- Broom & Supply Co. v. Alabama Broom &
cause of erroneous ruling not prejudicial to Mattress Co., 132.
complaining party.-Ladnier v. "Ingram Day C1058(1) (Ala.) Rejection of testimony
Lumber Co., 369.

subsequently admitted without objection not
Cm1033(2) (Ala.) Overruling of demurrer fa- prejudicial. -Cumbee v. Eady-Baker Grocery
vorable to appellant will not be reviewed on Co., 336.
appeal.-Carmichael v. City of Dothan, 643. Om 1058(2) (Ala.) Exclusion of testimony held
CM1033(3) (Ala.) Defendant cannot complain not prejudicial in view of witness' subsequent
of allegation requiring plaintiff to assuine un- testimony.--Southern Ry. Co. v. Dickson, 605.
necessary burden of proof.--Southern Ry. Co. C1058 (2) (Ala.) Sustaining objection
v. Blackwell, 215,

question to witness who had been examined
Omw 1036(2) '(Ala.) Error as for · misjoinder thoroughly not reversible error.-Atlanta &
held harmless in view of amendment.-South- St. A. B. R. Co. v. Spivey, 759.
ern Ry. Co. v. Williams, 203.

Sustaining objection to question covered by
wow 1039(9). (Miss.) Wrongfully requiring elec- other testimony held not prejudicial.-Id.
tion by plaintiff between two counts not dis- Omw 1060(2) (Ala.) Offer of evidence held not
turbed in absence of showing enabling deter- prejudicial in view of issue submitted.--Ala-
mination whether error harmful.-Louis Cohn bama Great Southern R. Co. y. Ensley Trans-
& Bros. v. Lovell Lumber Co., 188.

fer & Supply Co., 342.
em 1040(4) (Ala.) Sustaining demurrer to Cm 1064(1) (Ala.) Instruction on burden of
count of complaint held harmless error in view proof held argumentative and confused, but not
of other counts.—Davis v. Reed, 226.

prejudicial.- Nashville Broom & Supply Co. v.
cm 1040 (6) (Ala.) Sustaining demurrer to Alabama Broom & Mattress Co., 132.
counts of complaint held inmaterial error in Om 1064(1) (Miss.) Giving of erroneous in-
view of plaintiff's evidence.-Franklin v. Argy-struction as to custom held not cured.-Allen v.

Gaddis, 29.
Om1040(7) (Ala.) Appellant held not injured mm 1066 (Ala.) Abstract instructions herd
by ruling sustaining demurrers to pleas alleging without injury.-Stout v. Limestone County,
matters proved under general issue.-Cooledge 352.
v. Collum, 143.

Cm1068(5) Ala.) Denial of charge preclud.
em 1040(10) (Ala.) Error in overruling de- ing, recovery for wantonness, and willfulness
murrer to complaint for omission of necessary held not error.-Bradley v. Ashworth, 663.
allegation held cured by instructions requiring
proof.-Southern Ry. Co. v. Dickson, 605. (I) Error Waived in Appellate Court.

@ 1040 (13) (Ala.) Overruling demurrer to
sue held not prejudicial.--Fribush v. Friedınan, B. Ry. Co. v. Knight, 233.
plea which amounted to but plea of general is- cm 1078(1) (Ala.) Errors not argued and in-

sisted on in brief, waived. -Atlanta & St. A.
C1042(4) (Ala.) Denying motion to strike S078 (1) (Ala.) Assignments not argued in
from plea not reversible error, since movant

brief vor relied on considered waived. --Moore
could by motion exclude evidence.Ex parte 1078(1) (Ala.App.) Assignments waired if

v. First Nat. Bank, 349.
Steverson, 912.
Ca 1048(5) (Ala.) Overruling objection

not insisted on in brief.--Dolcito Quarry Co. v.

question held not prejudicial in view of witness C1078(3) (Ala.) Rulings not insisted on and

Cruse-Crawford Mfg. Co., 72.
answer.-Southern Ry. Co. v. Dickson, 665.
C 1050(1) (Ala.) Claimant of condemned au- Cooledge v. McArdle, 145.

argued in appellant's brief treated as waived. -
tomobile held not prejudiced by answer to ques; 1079 (Ala.) Assignments of error not in.
tions as to whether he objected to unlawful sisted upon not considered.-Boyette v. Brad-
use of car.-Bearden v. State, 93.

ley, 617.
1050(1) (Ala.) Overruling objection to ev-
idence as conclusion held not improper in view
of opportunity of opposite party to develop

(J) Derisions of Intermediate Courts.
facts.- Nashville Broom & Supply Co. v. Ala-C1089 (5) (Ala.) Supreme Court will not er.
bama Broom & Mattress Co., 132.

amine record to find basis for reviewing Court
1050(1) (Ala.) Admission of testimony al- of Appeals' failure to consider question of
ready in evidence without objection held without harmless error.-Ex parte Steverson, 912.
prejudice.-John R. Thompson & Co. v. Vildi-
bill, 139.
1050(1) (Ala.) Whether vendee assuming

(K) Subsequent Appeals.
debts had paid other creditors instead of plain- 1096(1) (La.) On second appeal, only is-
tiff held immaterial.--Farrell v. Anderson-Du- sues on which case was remanded will be re-
lin-Varnell Co., 205. .

dviewed.-Succession of Derigny, 251.

ro, 811.

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