THIS IS A KEY-NUMBER INDEX
It Supplements the Decennial Digests, the Key-Number Series and Prior Re- porter Volume Index-Digests.
OBJECTIONS AS TO See Boundaries.
TITLE, RIGHT, INTEREST, OR
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.
47 (Miss.) Actions, against former Direc-21 (Ala.) Employee held engaged in non- maritime service when injured.-Ex parte tor General held not to abate, because not re- vived.-Moore v. Hines, 392. Havard, 897.
ACCORD AND SATISFACTION.
See Compromise and Settlement.
(Ala.) Creditor's acceptance of notes from third party held not accord or satisfac- tion.-Tuscaloosa Lumber Co. v. Tropical Paint & Oil Co., 236.
ACCOUNT, ACTION ON.
(Ala.) Bookkeeper's affidavit held suffi- cient to render account admissible.-Farrell v. Anderson-Dulin-Varnell Co., 205.
See Abatement and Revival; Dismissal and Nonsuit.
II. NATURE AND FORM.
31 (Ala.) Assumpsit for cutting and re- moving timber not maintainable without aver- ring sale.-Cox v. Awtry, 337.
III. JOINDER, SPLITTING, CONSOLIDA- TION, AND SEVERANCE.
13 (Ala.) Claimant must bring possession within specification of Code.-Earnest v. Fite, 637.
Code requirements held not to apply to claim by prescription of 20 years.-Id.
(F) Hostile Character of Possession. 71(1) (La.) Prescription; sale under pri- vate signature held sufficient basis for claim of title by prescription.-Kinchen v. Redmond, 607. 81 (La.) Prescription; unauthorized deed held sufficient to support prescription acqui- rendi causa.-Bowers v. Langston, 301.
85(5) (La.) Prescription; proof of con- tents of lost document evidencing sale of land held sufficient to support plea of title by pre- scription.-Kinchen v. Redmond, 607.
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.
47 (Ala.) Complaint held demurrable for misjoinder of actions.-Cox v. Awtry, 337.
50(1) (Ala.) No misjoinder of causes of action because suit brought on several injunc- tion bonds.-McCord v. Bridges, 469.
50(9) (La.) Joinder of individual defend- ants and insurance companies in suit for dam- 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 in one suit.-Id.
IV. COMMENCEMENT, PROSECUTION, AND TERMINATION.
70 (La.) Plea of prescription and prayer for dismissal held to waive abandonment of suit for want of prosecution.-Continental Supply 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.
7 (Fla.) Rules of pleading applicable to vendors of fertilizers.-Davis v. American Agr. Chemical Co., 741.
1 (La.) Borrower of money to make crop held not entitled to sell in violation of con- tract.-Gueydan v. T. P. Ranch Co., 541.
ALTERATION OF INSTRUMENTS.
2 (Miss.) Alteration which enlarges scope of instrument as means of evidence is material alteration.-J. R. Watkins Co. v. Fornea, 185.
9 (Ala.) Detachment of draft pasted to draft for larger amount held not material "al- teration."-Moore v. First Nat. Bank, 349.
17 (Ala.) Unauthorized alteration in tim- ber grant held not to authorize cancellation of conveyance.-Gresham v. Pogue, 636. ANIMALS.
See Railroads, 439-443.
50 (2) (Ala.) Facts to support establish- ment of stock law district presumed.-March v. Board of Revenue & Road Com'rs of Mobile County, 822.
Petition for stock law election held insuffi- cient. Id.
Proceedings for stock law election held valid.
Withdrawal and refiling of petition for stock law election within court's discretion.-Id.
50(2) (Ala.) Previous act relative to stock law districts held`repealed.—Board of Revenue v. Ikner, 827.
216(2) (Ala.) Instruction as to verdict where mind in state of confusion held not re- versible error.-Boyette v. Bradley, 647.
226(1) (Ala.) Failure to render judgment for costs not to be raised for first time in ap- pellate court.-Richardson v. Stinson, 209.
242(3) (Ala.) Demurrers not ruled on not reviewable.-Thompson v. Menefee, 107.
(D) Motions for New Trial.
301 (Ala.) Prejudicial effect of question assuming unproved fact to be reviewed must be presented by motion for new trial.-South- ern Ry. Co. v. Dickson, 665.
305 (Ala.App.) Excessiveness of verdict not reviewable on appeal from judgment with- out exception to denial of new trial.-Cheek v. Odom, 782. VI. PARTIES.
See Certiorari; Courts, 203-231; Crim- inal Law, 1036-1188; Exceptions, Bill of. For review of rulings in particular actions or proceedings, see also the various specific top-327 (2) (La.) Defendant not ics.
II. NATURE AND GROUNDS OF APPEL-
LATE JURISDICTION.
21 (Ala.) Jurisdiction to consider appeal from decree not final, may not be conferred by consent.-Jackson v. Jackson, 332.
III. DECISIONS REVIEWABLE. (D) Finality of Determination. 68 (Fla.) "Interlocutory orders or decrees" defined.-Theo. Hirsch Co. v. Scott, 157.
necessary party below held not necessary party on ap- peal by plaintiff.-Givens v. De Soto Bldg. Co., 534.
327 (4) (Fla.) Receiver may be made sole appellee in appeal from order fixing his com- pensation.-Theo. Hirsch Co. v. Scott, 157.
329 (Fla.) Interveners may be brought into court on appeal, when final decision of their right or claim made below.-Theo. Hirsch Co. v. Scott, 157.
VII. REQUISITES AND PROCEEDINGS FOR TRANSFER OF CAUSE.
(A) Time of Taking Proceedings.
69(1) (Ala.) Interlocutory decree allow- ing alimony and counsel fees pendente lite will not support appeal.-Jackson v. Jackson, 332.339 (4) (Ala.) Appeal from preliminary in- 71(2) (Fla.) Writ of error lies from or- junction lies if taken within ten days.-Malone der dissolving ancillary attachment.-Maddox v. Decatur Cotton Compress Co., 807. Grocery Co. v. Hay, 747.
76 (2) (Ala.) Opinion in decree stating re- lationship not followed by order or decree not final, supporting appeal.-Hill v. Hill, 340.
82(1) (Fla.) Matters arising after final appealable judgments or decrees requiring judi- cial action relative to rights litigated in main suit appealable.-Theo. Hirsch Co. v. Scott,
Subsequent decree requiring judicial action on matters arising after final decree review- able.-Id.
Order in orginal proceeding collateral to main action appealable; "final order."-Id.
(F) Mode of Rendition, Form, and Entry
of Judgment or Order.
133 (Fla.) Order for final judgment, fol- lowed by judgment for cost, will not support writ of error.-Young v. Lassiter, 362.
IV. RIGHT OF REVIEW.
(A) Persons Entitled.
143 (Fla.) Interveners may appeal when final decision of their right or claim made be- low. Theo. Hirsch Co. v. Scott, 157.
150(1) (Fla.) Debtor in receivership has appealable interest in order diverting proceeds of his property to purposes other than extin- guishment of his debt.-Theo. Hirsch Co. v. Scott, 157.
V. PRESENTATION AND RESERVATION IN LOWER COURT OF GROUNDS OF REVIEW.
(A) Issues and Questions in Lower Court. 171(3) (Ala.) Case considered on appeal, as it was tried.-Jefferson County v. Parker, 338.
351 (2) (Ala.) Appeal held taken within time prescribed.-Luther v. Luther, 497.
(B) Petition or Prayer. Allowance, and
Certificate or Affidavit,
364 (Fla.) Writ of error made returnable 30 days from its date will be dismissed.-Law v. Zimmerman, 528.
364 (Fla.) Writ of error made returnable more than 90 days from its date will be dis- missed.-East Coast Lumber Co. v. Walter Walton Co., 738.
(C) Payment of Fees or Costs, and Bonds or Other Securities.
384 (2) (Ala.App.) Appeal held to be from original judgment and not from order denying new trial.-Robinson v. Steverson, 910.
X. RECORD AND PROCEEDINGS NOT IN
(A) Matters to be Shown by Record. 494 (Ala.) Ruling on motion for new trial not reviewable unless judgment thereon shown; showing held sufficient.-May v. Middleton, 640.
508 (Miss.) Dismissal of appeal by circuit court affirmed because no appeal bond in rec- ord showing appeal to circuit court.-Michael v. West Hatchie Drainage Dist., 392.
515(2) (Ala.) Decree reversed for absence 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.
(B) Scope and Contents of Record. 536 (Ala.) Settlement and signing of bill of exceptions judicial act and must take place within territorial limits of judge's jurisdiction.
179(4) (Ala.) Only constitutional infirm- ities of statutes raised and insisted on by par--Luther v. Luther, 497. ties considered.-Faircloth-Segrest Mercantile 537 (Ala.App.) Bill of exceptions not pre- Co. v. Roach, 908.
194(1) (Ala.) Plea not challenged, demur- red to, nor joined issue on not reviewable.-
sented within 90 days ineffectual to review or- iginal judgment.-Robinson v. Steverson, 910. (H) Transmission, Filing, Printing, and Service of Copies.
627(2) (Ala.) Appeal held not waived or
For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER 628 (2) (Ala.) Appellant not prejudiced by 863 (La.) Claims for attorney's fees could failure of probate judge to discharge ministerial not be considered on appeal.-First Nat. Bank v. Hudson Const. Co., 451. duties.-Luther v. Luther, 497.
(1) Defects, Objections, Amendment, and Correction.
655(1) (Ala.) Supreme Court must mero motu strike bill of exceptions not pre- sented to judge as required by statute.-South- ern Ry. Co. v. Williams, 203.
655(2) (Ala.) Appellee's motion to strike matters improperly incorporated in bill of ex- ceptions refused.-Harris v. Harris, 333.
655(2) (Ala.) Failure to set out consecu- tively interrogatories and answer held not to render bill subject to motions to strike.-Lucky v. Roberts, 878.
655 (2) (Ala.App.) Bill purposely contain- ing colloquy and questions and answers witness not stricken.-Cheek v. Odom, 782.
(B) Interlocutory, Collateral, and Supple- mentary Proceedings and Questions.
873 (3) (Ala.App.) Denial of new trial, not appealed from in time, not considered on ap- peal from original judgment.-Cheek v. Odom, 782.
(C) Parties Entitled to Allege Error. held precluded 878(2) (La.) Defendant from defending judgment on appeal on ground that it was not properly cited.-G. A. Kennedy & Bro. v. Farmers' Warehouse, 681.
to 900 (Ala.) Supreme Court will indulge, in 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.
668 (Ala.) That bill of exceptions was never properly signed may be shown by parol. -Luther v. Luther, 497.
(K) Questions Presented for Review. to quash 677 (Ala.) Overruling motion summons and process presumed proper, where record discloses no evidence in support of mo- tion.-Bailey v. Griffin, 242.
917(1) (La.) Facts alleged deemed true on review of judgment sustaining exception of no cause of action.-Dronette v. Meaux Bros., 411. 917(3) (Ala.) Grounds of demurrer, not asserted and argued in brief, presumed waived. -Conner v. State, 474.
920(1) (Ala.App.) Appellate court pre- sumes, where judgment rendered by default, that trial court correctly ruled on preliminary motions.-Green v. NuGrape, Co., 84.
931 (1) (Ala.) Proof taken by deposition reviewed, without presumption in favor of trial judge's finding.-May v. State, 780.
(L) Matters Not Apparent of Record. 713(3) (Ala.) Pleadings, charges given and refused should be incorpo-934(3) (Ala.) Face of record held to pre- rated in record proper, not bill of exceptions. --Harris v. Harris, 333.
XI. ASSIGNMENT OF ERRORS. 719(10) (Ala.) Failure to render judgment for costs not to be raised for first time in appellate court without assignment of error.- Richardson v. Stinson, 209.
778 (Ala.) Dismissal discretionary.-Luth- er v. Luther, 497.
792 (Ala.) Sufficiency of decree to support appeal jurisdictional.-Jackson v. Jackson, 3:32. 797(2) (Ala.) Motion to dismiss should be made without undue delay.-Luther v. Luther, 497.
XV. HEARING AND REHEARING. 820 (La.) Supreme Court may appoint ex- pert to report on long and intricate accounts. Interstate Trust & Banking Co. v. Laplace, 544.
835(2) (Miss.) Consideration of points first made on suggestion of error optional with court.-Mars v. Germany,
(A) Scope and Extent in General. 843(4) (Ala.) Overruling of demurrers to pleas mentioned in single assignment of error in like rulings thereon not considered if proper as to any.-Cooledge v. McArdle, 145.
850(1) (Ala.) Special finding of fact sub- ject to review by Supreme Court.-Bogacki v. City of Montgomery, 214.
863 (Ala.) Only errors affecting quantum on plaintiff's appeal of damages considered insufficient.-Franklin V. from judgment as Argyro, 811.
clude appellate court from presuming defend- ants' plea was filed in advance of judgment.- McMillian Lumber Co. v. First Nat. Bank, 331.
(F) Discretion of Lower Court. 969 (Ala.) Court's refusal to transfer case to equity side of court not reviewable.-Foun- tain v. State, 892.
973 (Fla.) Dismissal without prejudice in equity not error, in absence of clear showing of abuse of discretion.-Veillard v. City of St. Petersburg, 163.
979 (2) (Ala.) When grant of new trial because verdict contrary to preponderance of evidence not disturbed.-Acuff v. Lowe, 761. 979 (2) (Fla.) Order granting new trial not disturbed where evidence conflicts and judicial discretion not abused.-Herrin v. Avon Mfg. Co., 174.
(G) Questions of Fact, Verdicts, and Find-
1001(1) (Miss.) Jury's finding on compe- tent evidence not disturbed.-F. W. Woolworth Co. v. Volking, 3.
on appeal.- 1002 (Ala.) Jury's finding of fact on con- flicting evidence indisputable Franklin v. Argyro, 811.
1003 (Miss.) Employee's testimony held not so unreasonable as to warrant appellate court in disturbing verdict.-F. W. Woolworth Co. v. Volking, 3.
1005 (2) (Ala.) Where court not convinced that verdict was wrong, refusal of new trial not disturbed.-America Mining Co. v. Taylor, 1005 (3) (Ala.) Court's ruling sustaining verdict on motion for new trial, conclusive.- May v. Middleton, 640.
1005 (3) (Ala.) Weight of conflicting evi- dence against verdict held not ground for re- versal.-Southern Ry. Co. v. Dickson, 665.
1008(1) (Ala.App.) Effect of findings by court.-Dolcito Quarry Co. v. Cruse-Crawford Mfg. Co., 72.
Appellate court will ascertain whether find- ings sustain judgment but not whether findings are sustained by extrinsic evidence.-Id.
1009 (1) (Ala.) Decree based on oral ex- amination of witnesses not disturbed, unless plainly wrong.-Driver v. Johnson, 116.
1009 (1) (Fla.) Where chancellor's decree 1050(1) (Ala.) Admission of evidence held appears clearly erroneous, it will be reversed. not reversible error.-McCord v. Bridges, 469. -Bankers' Financing Co. v. Dye, 804. 1050(1) (Ala.) Asking witness what day he had a fire not prejudicial.-Atlanta & St. A. B. R. Co. v. Spivey, 759.
1009 (4) (Ala.) Decree not set aside unless contrary to great weight of evidence.-State v. Brown, 224.
1050(1) (Ala.) Admission of evidence held 1009(4) (Ala.) Trial court's findings not not 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 1010(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.
~1011(1) (Ala.App.) Findings of fact on conflicting testimony not disturbed.-Dicks v. McAllister, 631.
1052(8) (Ala.) Admission of testimony in- stead of books of accounts held not prejudicial. -Contorno v. Ensley Lumber Co., 127.
1054 (1) (Ala.) Admission of evidence of ~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., 53.1056(3) (Ala.) Exclusion of testimony 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.-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.
1026 (Miss.) Judgment not reversed be- cause of erroneous ruling not prejudicial to complaining party.-Ladnier v. Ingram Day Lumber Co., 369.
1058(1) (Ala.) Exclusion of evidence cured by admission of similar evidence.-Nashville Broom & Supply Co. v. Alabama Broom & Mattress Co., 132.
~1058(1) (Ala.) Rejection of testimony subsequently admitted without objection not 1033 (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. 1058(2) (Ala.) Exclusion of testimony held 1033(3) (Ala.) Defendant cannot complain not prejudicial in view of witness' subsequent of allegation requiring plaintiff to assume un- testimony.-Southern Ry. Co. v. Dickson, 665. necessary burden of proof.-Southern Ry. Co.1058(2) (Ala.) Sustaining objection v. Blackwell, 215. question to witness who had been examined 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
1039(9) (Miss.) Wrongfully requiring elec- other testimony held not prejudicial.—Id. tion by plaintiff between two counts not dis-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. v. Ensley Trans- & Bros. v. Lovell Lumber Co., 188. fer & Supply Co., 342.
1040 (4) (Ala.) Sustaining demurrer to 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.
1040 (6) (Ala.) Sustaining demurrer to Alabama Broom & Mattress Co., 132. counts of complaint held inmaterial error in 1064 (1) (Miss.) Giving of erroneous in- view of plaintiff's evidence.-Franklin v. Argy- struction as to custom held not cured.-Allen v. ro, 811. Gaddis, 29. instructions held 1040 (7) (Ala.) Appellant held not injured 1066 (Ala.) Abstract by ruling sustaining demurrers to pleas alleging without injury.-Stout v. Limestone County, matters proved under general issue.-Cooledge 352. v. Collum, 143.
1068 (5) (Ala.) Denial of charge preclud- 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, 665.
(I) Error Waived in Appellate Court.
1040 (13) (Ala.) Overruling demurrer to plea which amounted to but plea of general is-1078(1) (Ala.) Errors not argued and in- sue held not prejudicial.-Fribush v. Friedman, B. Ry. Co. v. Knight, 233. sisted on in brief, waived.-Atlanta & St. A.
1042 (4) (Ala.) Denying motion to strike 1078(1) (Ala.) Assignments not argued in brief nor relied on considered waived.-Moore from plea not reversible error, since movant could by motion exclude evidence.-Ex parte 1078(1) (Ala.App.) Assignments waived if v. First Nat. Bank, 349. Steverson, 912. not insisted on in brief.-Dolcito Quarry Co. v. Cruse-Crawford Mfg. Co., 72.
1048 (5) (Ala.) Overruling objection to question held not prejudicial in view of witness 1078 (3) (Ala.) Rulings not insisted on and answer.-Southern Ry. Co. v. Dickson, 665. argued in appellant's brief treated as waived.- 1050(1) (Ala.) Claimant of condemned au- Cooledge v. McArdle, 145.
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.
1050(1) (Ala.) Overruling objection to ev- idence as conclusion held not improper in view of opportunity of opposite party to develop facts. Nashville Broom & Supply Co. v. Ala- bama Broom & Mattress Co., 132.
1050(1) (Ala.) Admission of testimony al- ready in evidence without objection held without prejudice.-John R. Thompson & Co. v. Vildi- bill, 139.
(J) Decisions of Intermediate Courts.
1089 (5) (Ala.) Supreme Court will not ex- amine record to find basis for reviewing Court of Appeals' failure to consider question of harmless error.-Ex parte Steverson, 912.
1050 (1) (Ala.) Whether vendee assuming 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-
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