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HILL ▼. HILL. (Court of Appeals of Kentucky. Dec. 12, 1912.) Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division. Action by Bessie R. Hill against W. W. Hill. From a judgment denying relief, plaintiff appeals. Affirmed. Rowan Hardin, of Louisville, for appellant. W. A. McKay, of Louisville, for appellee.

uor, and he appeals. Affirmed. M. E. Rhoades, of Potosi, and Byrns & Bean, of De Soto, for appellant. W. A. Cooper and S. G. Nipper, both of Potosi, for the State.

CAULFIELD, J. Defendant was indicted, tried, and on September 7, 1910, convicted, under section 11640 of the Revised Statutes of Missouri of 1909, for selling intoxicating liquor in less quantity than five gallons; he being a merchant, having a merchant's license authorizing him to deal in goods, wares, and merchandise, but no dramshop license. He appeals to this court, but has assigned no error and filed no brief here. Having examined the record, we find no error, insufficiency, or irregularity in the indictment, trial, or other proceedings, justifying a reversal of the judgment, and find that the evidence warrants the conviction, and the instructions fairly present the case to the jury. The judgment is therefore affirmed. REYNOLDS, P. J., and NORTONI, J., con

cur.

STRICKLIN et al. v. MOORE. (Supreme Court of Arkansas. Jan. 20, 1913.) On petition for rehearing. Denied.

HOBSON, C. J. Dr. W. W. Hill and Miss Bessie Riley were married in June, 1907. They lived together as man and wife until July, 1911, when she left her husband's home, and in a few days thereafter brought this suit against him for divorce on the ground that without fault on her part he had habitually behaved toward her for not less than six months in such a cruel and inhuman manner as to indicate a settled aversion to her and to destroy permanently her peace and happiness. An answer was filed, controverting the allegations of the petition. Voluminous proof was taken, and on final hearing the circuit court dismissed the petition, refusing either to give the wife a divorce or allow alimony. From this judgment she appeals. We have read the record with great care, and are satisfied we ought not to disturb the chancellor's judgment. Neither the husband nor the wife was without fault, and each should in good faith seek a reconciliation with the other. The proof shows they are both excellent people of fine character. He is a successful physician. She is a lady of refinement and culture. Each has the power to make the other happy. We are satisfied from the record that the wife loves her husband, and that he has been more absorbed in his business and less attentive to her than he should have been. They differ in temperament. The trouble between them seems to have grown largely out of the fact that each failed to comprehend the other. They owe it to themselves and to society to follow the teachings of the church to which each belongs, and re-establishing the home in which they lived apparently hap: pily when this disturbance arose. Judgment affirmed.

STATE v. CORDIA. (St. Louis Court of Appeals. Missouri. Nov. 12, 1912.) Appeal from Circuit Court, Washington County; Joseph J. Williams, Judge. Francis Cordia was convicted of unlawfully selling intoxicating liquor, and he appeals. Affirmed. M. E. Rhoades, of Potosi, and Byrns & Bean, of De Soto, for appellant. S. G. Nipper and W. A. Cooper, both of Potosi, for the State.

CAULFIELD, J. Defendant was indicted, tried, and on September 3, 1910, convicted for selling intoxicating liquor in less quantity than five gallons; he being a merchant, having a merchant's license, authorizing him to deal in goods, wares, and merchandise, but no dramshop license, and the prosecution being under section 11640 of the Revised Statutes of Missouri of 1909. He appeals to this court, but assigns no error, and does not file a brief in the cause. An examination of the record fails to disclose any error or insufficiency in the indictment or other proceedings or any error or irregularity in the trial justifying a reversal of the judgment. The evidence warrants the conviction, and the instructions fairly present the case to the jury. The judgment is therefore affirmed.

For former opinion, see 151 S. W. 1009.

complaint on demurrer on the former appeal, HART, J. In testing the allegations of the the court said that the adverse possession of W. N. Stricklin as tenant by the curtesy, coupled with the adverse possession of his wife, would constitute an investiture of title in the heirs of Mary D. Stricklin, subject to the life tenancy of W. N. Stricklin. The reason is that the estate by curtesy is a mere continuation of the wife's estate, and is in the nature of an estate by descent rather than by purchase. According to the allegations of the complaint, W. referred to a claim of right by curtesy, it havN. Stricklin's possession was capable of being

been alleged in the complaint that his wife died in the possession of the lands. It then became a question whether the character of her previous possession, which had not run for the statutory period, could be continued by him. We held, under the allegations of the complaint, that his adverse possession could be tacked to the previous possession of his wife, and that, if the possession was continued for the statutory period, it would create an investiture of title in her heirs, subject to the life estate of W. N. Stricklin.

It is well settled that adverse possession must be continuous, and its continuity must be in the same right. Therefore it was necessary for appellants in this case to show that Mrs. Stricklin was in possession of the land at the time of her death, as well as to show that the possession of W. N. Stricklin after her death was continued in her right. We did not hold, as counsel for appellants seem to think we did, that a husband cannot act as agent for his wife, and cannot take charge of and manage her real estate. We did hold, however, that there was no testimony in the case that would have warranted a jury in finding that W. L. Stricklin was in possession of the lands prior to the death of his wife as her agent, or that he was holding the land for her. On the contrary, we held that the undisputed evidence showed that W. N. Stricklin held possession of the land in his own right prior to the death of his wife, and that, therefore, there could be no previous possession of the wife, to which his possession after her death could be tacked, so as to continue the adverse possession in her right. As we said, the testimony of B. L. Stricklin amounted to no more than a conclusion on his part that his STATE v. CORDIA. (St. Louis Court of mother was in the possession of the land prior Appeals. Missouri. Nov. 12, 1912.) Appeal to her death, for he did not testify to any fact from Circuit Court, Washington County; Jos- or circumstance from which it might be inferred eph J. Williams, Judge. Francis Cordia was that she was in possession of the land, but only

REYNOLDS, P. J., and NORTONI, J., con

cur.

Stricklin testified that after his mother died his father told him that the land belonged to Mary D. Stricklin, his wife, and that he was holding the land for her children. This statement, being made after the death of Mary D. Stricklin, is not sufficient to show that she had possession of the land prior to her death.

The declarations of W. N. Stricklin, made after the death of his wife, as to her ownership of the land, are not sufficient to show that she

was in possession of the land previous to her death. To so hold would be to adopt the rule that a scintilla of evidence is sufficient to send the case to the jury, and this the court has never done. On the contrary, the court has uniformly held that, where there is no substantial evidence to support a verdict for the plaintiff, it is the duty of the trial court to so declare the law.

The petition for a rehearing will be denied.

END OF CASES IN VOL. 151

INDEX-DIGEST

KEY NUMBER SYSTEM

THIS IS A KEY-NUMBER INDEX

It Supplements the Decennial Digest, the Key-Number Series and
Prior Reporter Volume Index-Digests

ABANDONMENT.

See Charities, § 30; Divorce, §§ 37, 133; Husband and Wife, §§ 268, 304; Mines and Minerals, § 68; Municipal Corporations, § 657; Railroads, 8 82.

ABATEMENT.

See Nuisance, § 36.

ABATEMENT AND REVIVAL.

See Appeal and Error, §§ 78, 359.

V. DEATH OF PARTY AND REVIVAL
OF ACTION.

(A) Abatement or Survival of Action.

made, the contract price, less 2 per cent., and nothing was said as to the 2 per cent. till after all the shipments and such payments.-Vinson v. Lee Jordan Lumber Co., 151 S. W. 199. $1 (Ky.) In order to constitute an accord and satisfaction, the less sum offered in settlement of the greater must be offered in full satisfaction of the demand and must be accepted as such.-Sanders v. Standard Wheel Co., 151 S. W. 674.

§ 27 (Ky.) Plaintiff's acceptance of a check for a part only of his claim held not to constitute an accord and satisfaction, as a matter of law. Sanders v. Standard Wheel Co., 151 S. W. 674.

ACCOUNT.

See Guardian and Ward, §§ 148-163; Partnership, § 336.

ACCRETION.

$ 69 (Ky.) Where, pending appeal, the defendant in an action for damages for assault and battery dies and the case is reversed, the action should be dismissed under Ky. St. § 10. See Navigable Waters, § 44. -Shields' Adm'rs v. Rowland, 151 S. W. 408.

ABORTION.

ACCRUAL.

See Criminal Law, §§ 494, 785; Indictment and See Limitation of Actions, §§ 46-55.
Information, §§ 60, 125.

§ 11 (Mo.) Evidence held insufficient to support a conviction for administering a drug with intent to produce an abortion.-State v. Stapp, 151 S. W. 971.

§ 13 (Mo.) Instruction that to "administer" drugs meant to "give" them to a person held erroneous, where evidence showed delivery with directions to take them the next day.-State v. Stapp, 151 S. W. 971.

ABSTRACT BOOKS.

See Records, § 17.

ABSTRACTS.

See Appeal and Error, §§ 581, 584, 639.

ABUTTING OWNERS.

See Boundaries, § 21.

ACCEPTANCE.

See Bills and Notes, § 66; Guaranty, § 7;
Sales, §§ 23, 181, 182.

ACCIDENT INSURANCE.

See Insurance, § 669.

ACCOMPLICES.

See Criminal Law, § 507.

ACCORD AND SATISFACTION.

§ 8 (Mo.App.) There having been no dispute

as to the amount of indebtedness, there was

no accord and satisfaction, where a purchaser

ACKNOWLEDGMENT.

See Limitation of Actions, §§ 15, 146.

I. NATURE AND NECESSITY. $5 (Mo.) Where a contract for a sale of land was acknowledged by the purchaser, but not by the vendor, it was not entitled to record. -Heintz v. Moore, 151 S. W. 449.

II. TAKING AND CERTIFICATE.

§ 37 (Tex.) A certificate of acknowledgment of a conveyance held sufficient to pass the wife's interest, though not in the form of the statute (Paschal's Dig. art. 1003), because not containing a recital that the wife stated that she did not wish to retract.-Spivy v. March, 151 S. W. 1037.

§ 38 (Mo.) Under Rev. St. 1909, §§ 2790, 2799, 3001, certificate of acknowledgment of a deed executed by a corporation held sufficient.Strother v. Barrow, 151 S. W. 960.

IV. PLEADING AND EVIDENCE.

§ 58 (Tex.) Where, in an action to set aside deeds executed by married women because of land fraudulently included, the proper execution of the deeds was not questioned, plaintiffs were not required to allege that the notary who took the acknowledgments, through fraud or imposition, failed to explain the deeds to them.Oar v. Davis, 151 S. W. 794.

ACTION.

See Abatement and Revival.

ADJOINING LANDOWNERS.

of lumber remitted, as each shipment was See Boundaries.

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER

ADJOURNMENT.

See Courts, § 66.

ADMINISTRATION.

See Executors and Administrators.

ADMISSIONS.

See Criminal Law, 88 406-417; Evidence, §§ 210-253.

ADULTERY.

See Divorce, § 62.

811 (Tex. Cr. App.) Where the state depended somewhat upon circumstantial evidence, evidence that persons seen by witness under circumstances indicating adultery were the defendants was admissible as bearing upon the identity of the parties.-Mackey v. State, 151 S. W. 802.

ADVERSE POSSESSION.

See Easements, §§ 5-9; Highways, § 7; Estates, 8: Limitation of Actions; ancy in Common, § 15.

-Dulce Realty Co. v. Staed Realty Co., 151
S. W. 415.

§ 84 (Mo.) Where defendant had held open and exclusive possession of land in dispute, claiming title, long enough for her possession to ripen into title, it did not affect that result because she may have known the record title was in another.-Cousins v. White, 151 S. W. 737.

§ 85 (Ark.) In ejectment between the heirs of a wife and a purchaser under an execution against the husband, evidence held insufficient to show any such change of possession under a colorable deed from the husband to the wife as gave her title by adverse possession prior to the execution sale.-Stricklin v. Moore, 151 S. W. 1009.

$85 (Ky.) Evidence held to sustain a chancellor's finding that plaintiff occupied the land in question by defendant's permission only and not under an unconditional parol gift.-Murphy v. Newingham, 151 S. W. 930.

(G) Payment of Taxes.

Life
§ 87 (Ark.) Act March 18, 1899 (Laws 1899,
Ten-P117), now Kirby's Dig. § 5057, providing
that parties paying taxes on uninclosed and
unimproved land shall be deemed to be in pos-
session, but that no one can invoke the act un-
less he and his predecessors shall have made
seven payments, three after its enactment,
while retroactive, is not so as to persons under
disability at its passage, but not under disabil-
ity when payments began.-Deane v. Moore,
151 S. W. 286.

I. NATURE AND REQUISITES. (A) Acquisition of Rights by Prescription in General.

§ 4 (Mo.) A grant to trustees of a church in trust for the congregation of the church for the use of the premises as a place of worship is a grant for a charitable use within Rev. St. 1909, § 1886, relating to limitations.-Strother v. Barrow, 151 S. W. 960.

§7 (Mo.) Limitations did not begin to run in favor of the parties in possession of public land until the issuance of a patent correctly describing the land.-Marshall v. Hill, 151 S. W. 131.

(E) Duration and Continuity of Posses

sion.

§ 41 (Tex.Civ.App.) A person and his assigns claiming title under a settler and holding adverse possession for 15 years of 100 feet of the 200 feet of land granted to a railroad for a right of way acquired title by adverse possession.-Ft. Worth & D. C. Ry. Co. v. Western Stockyards Co., 151 S. W. 1172.

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See Appeal and Error, §8 201, 242; Criminal
Law, 88 956, 958; Exceptions, Bill of, § 54;
Judgment, § 158; Witnesses, § 392.

(F) Hostile Character of Possession. § 62 (Ark.) Where a wife never had actual possession of land, the possession of the husband after her death was in his own right, and not as tenant by curtesy; and hence created title by adverse possession in himself as against See an outstanding title and not in the heirs of the wife. Stricklin v. Moore, 151 S. W. 1009.

§ 62 (Mo.) A widow occupying property under her quarantine cannot thereby acquire title as against the heir or remainderman.-Moran v. Stewart, 151 S. W. 439.

AFTER-ACQUIRED TITLE.
Estoppel, § 38.

AGENCY.

See Principal and Agent.

AGGRAVATED ASSAULT.

By delay during which a widow is permitted See Assault and Battery, § 54. to occupy the whole of an estate, the other heirs do not lose their right to apply to the court to assign dower to her; the possession not being hostile.-Id.

See Contracts.

AGREEMENT.

ALAMO PROPERTY.

See Perpetuities, § 4; States, § 88.
ALIMONY.

§ 64 (Ky.) Possession under an unconditional parol gift of a well-defined body of land for 15 years confers title, but not so if the entry was under a mere expectation of a gift in the future.-Murphy v. Newingham, 151 S. W. 930. $73 (Ky.) A patent, though void because including land previously granted, is color of See Divorce, § 245; Husband and Wife, § 288. title, and defines the possession of the patentee claiming to the extent of his boundary.-Bryant v. Strunk, 151 S. W. 381.

§ 80 (Mo.) A quitclaim deed purporting to convey land abutting a private alley, and describing such alley as "known as a private alley," held insufficient as color of title there

AMENDMENT.

See Costs. § 316; Criminal Law. § 214; Judgment, § 318; Pleading, §§ 236-252.

AMOUNT IN CONTROVERSY.

ANIMALS.

See Carriers, §§ 228, 229; Municipal Corporations, §§ 604, 631; Nuisance, §§ 3, 61; Railroads, §§ 103, 419-446; Sunday, § 19. $51 (Mo.App.) Under Rev. St. 1909, § 773, it is not necessary for recovery of damages by one restraining a cow running at large that he give the owner written notice under section 772, when he gives the owner personal notice, though they do not agree on the damages. Warren v. Cowden, 151 S. W. 501.

Where plaintiff, restraining a cow running at large, proceeds under Rev. St. 1909, § 773, dispensing, under certain circumstances, with necessity of written notice, under section 772, it is immaterial that he gave an insufficient written notice.-Id.

Authorizing recovery by plaintiff in replevin for his cow, restrained, when running at large, by defendant, without plaintiff having deposited the amount which he admitted to be due defendant or without an instruction to render verdict for that amount, if the jury found for plaintiff as to the other issues, was error.-Id. ANSWER.

See Pleading, §§ 133, 403.

APPEAL AND ERROR.

See Abatement and Revival, 8 69; Attorney and Client, §§ 57, 101; Bail, §§ 57, 65; Certiorari; Constitutional Law, § 316; Criminal Law, 88 1028-1173; Divorce, § 184; Eminent Domain, 256: Exceptions, Bill of Homicide, §§ 332-340; Insane Persons, § 27; Justices of the Peace, § 191; Mandamus, 88 16, 57; Municipal Corporations, § 642; Principal and Agent, § 113; Taxation, § 453; Wills, § 402.

II. NATURE AND GROUNDS OF AP.

PELLATE JURISDICTION.

§ 23 (Mo.) The Supreme Court will determine its jurisdiction of the subject-matter in condemnation proceedings, though no question thereon is raised by counsel.-Springfield S. W. Ry. Co. v. Schweitzer, 151 S. W. 128.

III. DECISIONS REVIEWABLE. (D) Finality of Determination. §71 (Tex.Civ.App.) A proceeding by defendant in replevin to compel the constable to accept a replevy bond is not within Rev. Civ. St. 1911, arts. 4644-4646, relative to appeals from orders granting or refusing temporary injunctions, but is a proceeding by mandamus, independent of the replevin action.-Keasler Lumber Co. v. Clark, 151 S. W. 345.

§ 76 (Tex.Civ.App.) A judgment from which an appeal was taken during the term held a final judgment, and appealable, where the term ended without a change therein or the granting of a new trial.-Robbie v. Upson, 151 S. W. 570.

§ 76 (Tex.Civ.App.) The fact that a judgment was entered nunc pro tunc did not affect its finality.--Snell v. Ham, 151 S. W. 1077.

§ 77 (Mo.) An order appointing commissioners to set off homestead and dower to a widow held merely a preliminary order, and not a final judgment.-Moran v. Stewart, 151 S. W. 439. $78 (Ky.) An order sustaining a demurrer to an amended petition, but making no further disposition of the action, is not a final order, and is not appealable.-Rodes v. Yates, 151 S. W. 359.

§ 78 (Tenn.) A decree overruling a plea in abatement to the jurisdiction is not upon the merits, so as to be final and appealable.-Employers' Indemnity Co. v. Willard, 151 S. W. 1029.

878 (Tex.Civ.App.) An order to preserve property under the control of the court in replevin is interlocutory, and not appealable.Keasler Lumber Co. v. Clark, 151 S. W. 345.

§ 80 (Tenn.) A final decree, which is appealable, is one that disposes of the entire merits of the case.-Employers' Indemnity Co. v. Willard, 151 S. W. 1029.

§ 80 (Tex.Civ.App.) Judgment, which did not dispose of one defendant's cross-action against his codefendants, held not a final judgment, from which he could appeal.-Hamilton v. D. S. Cage & Co., 151 S. W. 894.

(E) Nature, Scope, and Effect of Decision. § 100 (Tex.Civ.App.) Under Acts 31st Leg. c. 34, amending Acts 30th Leg. c. 107, authorizing an appeal from an order granting, refusing, or dissolving a temporary injunction, no right of appeal lies from an order refusing to dissolve such an injunction.-Jaynes v. Burch, 151 S. W. 596.

8100 (Tex.Civ.App.) Jurisdiction to review an order denying a motion to dissolve or modify a temporary injunction is not given by Rev. Civ. St. 1911, art. 4644, authorizing appeal from an order granting, refusing or dissolving a temporary injunction.-Welborn v. Collier, 151 S. W. 655.

§ 113 (Ark.) An appeal does not lie from an order setting aside a default judgment as premature.-McPherson v. Consolidated Casualty Co., 151 S. W. 283.

§ 113 (Tex. Civ. App.) Where judgment was entered under a verdict rendered in pursuance of an agreement of the parties that a verdict might be returned by a majority of the jurors on which judgment might be entered, an order made at the same term setting aside the judgment and granting a new trial is not appealable.-Philadelphia Underwriters' Agency of Fire Ass'n of Philadelphia v. Brown, 151 S. W. 899.

V. PRESENTATION AND RESERVATION IN LOWER COURT OF GROUNDS OF REVIEW.

(A) Issues and Questions in Lower Court. § 171 (Mo.) Where a proceeding was tried below and heard in the Supreme Court on the theory that it was a proceeding in the nature of quo warranto, it will be decided by the Supreme Court on the same theory.-State ex rel. Kimbrell v. People's Ice, Storage & Fuel Co., 151 S. W. 101.

§ 170 (Mo.) A constitutional question cannot be raised on appeal from the probate court, where no such issue was presented at the trial. -State ex rel. Nolte v. McQuillin, 151 S. W. 444.

§ 171 (Mo.App.) Complainant is bound on appeal by the theory of the cause adopted in his petition and at the trial.-Hight v. American Bakery Co., 151 S. W. 776.

(B) Objections and Motions, and Rulings

Thereon.

§ 185 (Ark.) A party who did not object when a chancellor was substituted for the regular chancellor who announced his disqualification but went to trial cannot object on appeal.Blagg v. Fry, 151 S. W. 699.

§ 187 (Ark.) Where there was no objection to a misjoinder of parties, it will not be considered on appeal.-Burnett v. Turner, 151 S. W. 249.

§ 193 (Ark.) Where there was no objection to an improper joinder of two causes of action, it will not be considered on appeal.-Burnett v. Turner, 151 S. W. 249.

§ 193 (Mo.App.) That a petition does not state a cause of action may be raised for the

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