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INDEX-DIGEST

KEY NUMBER SYSTEM

THIS IS A KEY-NUMBER INDEX

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

. Prior Reporter Volume Index-Digests

ACCORD AND SATISFACTION.

Disobedience, etc., not "good cause" for an-

nulment, unless parent blameless and child re-
See Compromise and Settlement.

sponsible.--Id.
C 10(1) (Ala.App.) Honest "dispute" affords Relation not annulled for traits of adopted
basis of accord: "satisfaction."-Southern Cot-child, unless child has reached such maturity as
ton Oil Co. v. Currie, 102 So. 149.

to be responsible for crime.--Id.
Payment of less than debtor is liable for not i20 (Ala.) Adoption of child creates status
valid accord and satisfaction, in absence of of parent and child, with duty of care, etc.-
bona fide dispute.-Id.

Buttrey v. West, 102 So. 456.
mil(3) (Aia. App.) One accepting check. re Rights and obligations created by statutory
citing that it was in full of account. bound by adoption are subject to paramount power of
such condition.-Southern Cotton Oil Co. v.

state as parens patriæ.-Id.
Currie, 102 So. 149.

ADVERSE POSSESSION.
ACCOUNT, ACTION ON.

I. NATURE AND REQUISITES.
22 (La.) Evidence in suit on account held
sufficient.-Stringfellow v. Nowlin Bros., 102 (A) Acquisition of Rights by Prescription

in General.
So. 869.
ACKNOWLEDGMENT.

Ow8(3) (La.) Prescription; title to lands for-

merly held by educational institution whose
III. OPERATION AND EFFECT.

charter has expired cannot be acquired by ad-
ww57 (Ala.) Proof necessary to render writ verse possession.-Martin V. Louisiana Cent.
ten statement, sworn to before notary public of Lumber Co., 102 So. 662.
another state, establishing mechanic's lien ad Prescription; that state's title is in trust or
missible in evidence, stated.—Knight v. Hill, restricted with obligations does not render it
102 So. 221.

subject to acquisition by possession adverse to
Admission of written statement. seal to state.--Id.
which was not certified as being official seal

(B) Actual Possession.
of potary public of another state, held error.
-Id.

27 (Ala.) Evidence in action against hus-
ACTION.

band and wife held to support finding wife in

possession of strip of land in controversy.--
See Dismissal and Nonsuit.

Dansby v. Middlebrooks, 102 So. 446.
III. JOINDER, SPLITTING, CONSOLIDA-

II. OPERATION AND EFFECT.
TION, AND SEVERANCE.

(B) Title or Right Acquired.
Am 38(3) (Ala.) Count in trespass quare clau 106(4) (Fla.) Title may be acquired by ad-
sum fregit held not to set up two causes of ac-
tion.-Alabama Fuel & Iron Co. v. Andrews,

verse possession against former owners as well
102 So. 799.

as strangers.-R. E, L. McCaskill Co. v. Dekle,

102 So. 252.
Count in trespass, for damages for taking

AFFRAY,
furniture and mental anguish caused, held not
to set up two causes of action.-Id.

al (Fla.) “Affray” at common law defined.

-Carnley v. State, 102 So. 333.
ADJOINING LANDOWNERS.

CW4 (Fia.) Indictment for affray is in effect
See Boundaries.

merely for the several included assaults and

batteries.-Carnley v. State, 102 So. 333.
ADMINISTRATION.

AGENCY.
See Executors and Administrators.

See Principal and Agent.
ADOPTION.
w 16 (Ala.) Volunteer cannot by statutory

AGRICULTURE.
adoption defeat rights of natural parent in his own (Ala.) Evidence fertilizer was not tagged
offspring.–Buttrey v. West, 102 So. 456.

when received admissible to prove lack of tags
Adoption of child may be given weighty con-

on delivery to carrier.-Decatur Fertilizer Co.
sideration in fixing its custody.-Id.

v. Walls, 102 So. 32.
Proceeding to annul declaration of adoption
is judicial.--Id.

Testimony fertilizer sold by defendant was

not tagged admissible to prove lack of tags
Foster parent's desire to annul relation not when delivered to defendant by carrier.-Id.
"good cause" for so doing.-Id.
Relation not annulled for slight cause on ei- defendant had no tags, without identifying it,

Admitting testimony, fertilizer bought from
ther side.--Id.

held prejudicial error.-Id,
102 $0.--59

(929)

Alteration of Instruments

102 SOUTHERN REPORTER

930

ics.

AND

OF

ALTERATION OF INSTRUMENTS.

212 (Ala.) On failure to request affirm.
On 27 (2) (Ala.) Burden on defendant to show titled thereto is not presented on appeal.-

ative charge, question whether party was en-
unauthorized material alteration of assignment Decatur Fertilizer Co. v. Walls, 102 So. 32.
of property for which notes sued on were giv-em 219(2) (Ala.) That court's special findings
en.-Robertson v. Castellano, 102 So, 893.

were not sufficient in detail not considered,

where not raised below.-Shaw v. Knight, 102
ANIMALS.

So. 701.

230 (Ala.) Rules for
See Railroads, Om 446.

reviewing trial

court's action as to objectionable argument
80 (Miss.) Owner of bees attacking ani- stated.-Metropolitan Life Ins. Co. v. Carter,
mals liable for damages.-Ammons v. Kellogg, 102 So. 130.
102 So. 562.
cm 85 (Miss.) Evidence held to show defend- view or pass on demurrers upon which trial

Om242(3) (Ala.) Appellate court cannot re.
ant's bees attacked animals.-Ammons v. Kel-court did not rule.-Smith v. Lewis, 102 So. 21.
logg. 102 So. 562.
Oww.96 (Ala.App.) ."Growing crops," within

(C) Exceptions.
statute justifying injury to trespassing animals,
defined.-Pelham v. State, 102 So. 462.

On 261 (Ala.) Rules for reviewing trial court's
Malice not necessary ingredient of offense of action as to objectionable argument stated. -
shooting trespassing mule.-Id.

Metropolitan Life Ins. Co. v. Carter, 102 So.
130.

(D) Motions for New Trial.
APPEAL AND ERROR.
See Certiorari; Courts, em 207–224; Criminal plaintiff's account against defendant, if error,

Oma 301 (Ala.) Use by jury of statement of
Law, om 1017-1202.

harmless.-Stinson v. M. F. Patterson & Son,
For review of rulings in particular actions or 102 So. 912.
proceedings, see also the various specific top-302 (1) (Ala.) That trial was by “piece-

mealheld not good objection.-Shaw v. Knight,

102 So. 701.
I. XATURE AND FORM OF REMEDY.

302 (5) (Ala.) Ground of motion too gen-
Om (Fla.) In absence of constitutional pre- eral to raise objection that court's special find.
scription of method of acquiring appellate ju- ings were insufficient in detail.-Shaw v. Knight,
risdiction, Legislature may prescribe.—McJun- 102 So. 701.
kins v. Stevens, 102 So. 756.

VI. PARTIES.
II, NATURE

GROUNDS APPEL-em324 (Fla.) Defendants not appealing from
LATE JURISDICTION.

judgment, who appear and join in appeal by co-
om 17 (Ala.) Court without jurisdiction of ap- thereto.-McJunkins v. Stevens, 102 So. 756.

defendant in appellate court become parties
peal where not authorized by statute.--

:-Worth-
ington v. Morris, 102 So. 620.

Appellants declining to participate in appeal
em 17 (Fla.) Appeal or writ of error or oth-may in some cases be dismissed from cause.

-Id.
er authorized process duly taken gives court

Appellate court having jurisdiction of cause
jurisdiction to determine particular cause.-Mc-
Junkins v. Stevens, 102 So. 756.

may grant summons and severance as to par-
en 21 (La.) Supreme Court cannot entertainm329 (Fla.) Appellate court will not ordi-

ties appellant declining to come in.-Id.
appeal where amount in controversy below ju- narily bring in by process absent parties after
risdictional limit, even with consent of parties. time for taking appeal has expired, but may, in
- Nelson v. Continental Asphalt & Petroleum proper cases, "admit them as parties on their
Co., 102 So. 583.

request.-JicJunkins v. Stevens, 102 So, 756.

Parties who should have been made appel-
III. DECISIONS REVIEWABLE.

lants or plaintiffs in error may appear and par-
(D) Finality of Determination.

ticipate.--Id.
m78(3) (Ala.) Decree overruling plea in bar absence of necessary or proper parties, or it

Appellate court may refuse to proceed, in
to bill held to constitute an interlocutory de-
cree and not appealable.- Worthington v. 'Mor- may permit them to voluntarily appear or have
ris, 102 So. 620.

them brought in.-Id.

Court having jurisdiction of appeal may per-
(E) Nature, Scope, and Effect of Decision.

mit absent parties to appear and participate.

-Id.
Om 115 (La.) No appeal from fully executed w335 (Fla.) Appeal or writ of error record-
order of seizure and sale.-Dyer v. Mountz, 102 ed in record books of trial court must properly
So. 413.

include all appellees or defendants in error
V. PRESENTATION

to give isdiction of their persons.-UcJunk-
AND RESERVATION
IN LOWER COURT OF GROUNDS

ins v. Stevens, 102 So. 756.
OF REVIEW.

cm336(1) (Fla.) When appeal or writ of er-
(B) Objections and Motions, and Rulings be dismissed, stated.-McJunkins y. Stevens,

ror not including all necessary parties will not

102 So. 756.
Em 193(9) (Ala.) General demurrer to com If parties, who should have been made appel.
plaint, not stating cause of action, sufficient. lants or plaintiffs in error, do not appear, ap-
--McCarty v. Williams, 102 So. 133.

pellate proceedings will be dismissed, unless
Em 197(3) (Ala.) Variance between pleading amendment can be made with summons and ser-
and proof not available on appeal where not erance.-Id.
questioned below.-Blackwood v. Standridge, On appeal or writ of error in which all par-
102 So. 108.

ties directly affected by judgment appealed from
207 (Ala.) Refusal to exclude argument of are not made parties, court will decline to pro-
counsel held not reversible error in absence of ceed.-Id.
objection and prejudice.-Drummond v. Drum Conditions under which appeal from joint
mond, 102 So. 112.

judgment taken by less than all parties against
Cwm 207 (Ala.) Improper argument, withdrawn whom rendered will not be dismissed, stated.
by counsel, not reviewable without objection -Id.
and exception to ruling, unless highly prejudi If all appellees or defendants in error are not
cial.-Feore v. Trammel, 102 So. 529.

included in appeal or writ of error as recorded
Withdrawn argument of counsel held not so in record books of trial court, writ of error or
highly prejudicial as to be reviewable without appeal will be dismissed, unless such persons
exception to ruling on objection.-Id.

appear in cause.-Id.

Thereon.

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For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER
VII. REQUISITES AND PROCEEDINGS review.-Pacific Fire Ins. Co. of New York
FOR TRANSFER OF CAUSE.

v. Burnett, 102 So. 214.
(A) Time of Taking Proceedings.

502 (7) (Ala.) Recital in bill of exception
356 (Fla.) Appeal or writ of error not

to judgment denying motion for new trial held
complying with statute as to return day, will sufficient for review.-Pacific Fire Ins. Co. of
be dismissed.-McJunkins v. Stevens, 102 So. | New York v. Burnett, 102 So. 214.
756.

(B) Scope and Contents of Record.
(C) Payment of Fees or Costs, and Bonds Om 537 (Ala.) Bill of exceptions considered in
or Other Securities.

review of judgment on motion for new trial.-
E393 (La.) Suspensive appeal from judg- Shaw v. Knight, 102 So. 701.
ment appointing administratrix, treated as demo 539 (Miss.) Record for appeal to Supreme
volutive appeal. --Succession of Pavelka, 102 So. I Court may be made by agreement of parties.-
579.

Cooper v. Martin, 102 So. 851.
(D) Writ of Error, Citation, or Notice. (D) Contents, Making, and Settlement of

Case or Statement of Facts.
em 430(1) (Fla.) If jurisdiction not acquired
by service of notice, appeal or writ of error Cm 56! (Miss) Stenographer's transcribed notes
will be dismissed unless appellee appears gen- and chancellor, held to become part of record

of evidence, properly certified by stenographer
erally or waives notice.-McJunkins y. Stevens,
102 So. 756.

on appeal, regardless of failure to give stenog-

rapher notice to transcribe, in view of agree-
(E) Entry, Docketing, and Appearance. ment of parties.-Cooper v. Martin, 102 So.
On 435 (Fla.) Motion to dismiss appeal for

851.
want of proper parties denied on appearance (H) Transmission, Filing, Printing, and
of absent parties in appellate.court.--McJunkins

Service of Copies.
V. Stevens, 102 So, 756.
On entry of appeal by one party, giving appel- withiú legal delay or obtaining extension of

Om627(1) (La.) Appellant not filing transcript
late court jurisdiction of cause, and appear-
ance by other parties in such court, it has return day abandons suspensive appeal.-Mundy
jurisdiction to determine appeal.-Id.

v. Phillips, 102 So. 519.
Appeal taken under full caption by one de-

Judgment creditor's remedies on appellant's
fendant from joint judgment, determined on

failure to file transcript stated.-Id.
merits if other defendant joins in appellate fore expiration of return day of suspensive ap-

Seizure and sale under execution issued be-
court.-Id.

Express or implied appearance of no avail on peal held not vitiated.-Id.
appeal or writ of error taken in violation of
statute.-Id.

(K) Questions Presented for Review.

Om692(1) (Ala.) Error not to be predicated
VIII. EFFECT OF TRANSFER OF CAUSE on exclusion of question to mine engineer as
OR PROCEEDINGS THEREFOR.

to use of questions, by examining board, in
(A) Powers and Proceedings of Lower other states, where questions not in appeal

record.--Williams v. Alabama Fuel & Iron Co.,
Ew 436 (Fla.) Entry of appeal used to trans- 102 So. 136.
fer cause to circuit court.-McJunkins v. Stev-

(L) Matters Not Apparent of Record.
ens, 102 So. 756.
em 436 (La.) After filing of appeal bond, in- m713(1) (La.) Document not filed in Court
ferior court may only transmit record and test of Appeal not considered on appeal to Supreme
solvency and sufficiency of sureties.-Mundy v. Court.-Stout v. Henderson, 102 So. 193.
Phillips, 102 So. 519.
Om437 (La.) Issuance of fi. fa. before expira-

XI. ASSIGNMENT
tion of return day of suspensive appeal illegal 728(3) (Ala.) Assignment of error
and premature.-Mundy v. Phillips, 102 So. 519. plaining of exclusion of evidence held not too

Defendant taking devolutive appeal only can- | general.-J. E. Pinkham Lumber Co. v. C. W.
not complain of issuance of fi, fa. before notice Griffin & Co., 102 So. 689.
of_judgment against him.--Id.

C-736 (Ala.) If any one of assignments of
Defendant not seeking to enjoin execution,

error treated in bulk without merit, considera-
abandoning appeals, and bidding on and pur- tion of other pretermitted.—Bush v. Bumgard-
chasing property, cannot attack validity of sale.

rer, 102 So. 629.
-Id.

737 (Fla.) Single assignment of error in
IX. SUPERSEDEAS OR STAY OF PRO-

sustaining demurrer to defendant's pleas, some
CEEDINGS.

of which were defective, is unavailing.–Reli-

ance Life Ins. Co. v. Gray, 102 So. 764.
Om 458 (2) (La.) Suspensive appeal cannot be
taken from judgment appointing administrator. XIII, DISMISSAL, WITHDRAWAL,
-Succession of Pavelka, 102 So. 579.

ABANDONMENT.
m475 (Miss.) Penalties imposed by city or-

Om792 (Ala.) Appeal from decree overruling
Jinance for act enjoined not recoverable on su-
persedeas bond given on appeal from decree defendant's plea in bar to bill dismissed by
granting injunction.-McNeeley v.

City of 102 So. 620.

court ex mero motu.-Worthington v. Morris,
Natchez, 102 So. 564.

On motion to increase supersedeas bond, XV. HEARING AND REHEARING,
facts showing insufficiency of bond must be set
forth.-Id.

m831 (Miss.) After sustaining or overruling
em 479 (2) (La.) Grant or refusal of suspen- suggestion of error, no further suggestion of
sive appeal discretionary.- Mitchell v. Dixie Ice error can be filed.-Amite County v. Mills, 102
Co., 102 So. 497.

So. 737.

XVI. REVIEW.
X. RECORD AND PROCEEDINGS NOT IN

(A) Scope and Extent in General.
RECORD,

Om837 (11) (Ala.) Supreme Court need con-
(A) Matters to be Shown by Record.

sider only relevant, material, and competent
Om494 (La.) Record held sufficient to show testimony:-King v. Price, 102 So. 702.
rendition of formal judgment.-Henderson v. Ow837(11) (Ala.) Neither trial nor Supreme
Hollingsworth, 102 So. 577.

Court need indicate what testimony should be
Om 502(6), (Ala.) Exceptions to judgment de- excluded or not considered.-D. & S. Motor
nying motion for new trial held sufficient for Co. v. State, 102 So. 805.

Court.

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Om 843(2) (Ala.) Improper argument present. I swearing not disturbed on appeal.-Strauss v.
ed only by ruling on motion for new trial not Insurance Co. of North America, 102 So. 861.
considered on reversal on other grounds.-Feore Om 1008(1) (Ala.). Judgment of court trying
v. Trammel, 102 So. 529.

case without jury, based on testimony taken in
m850(1) (Ala.) Sufficiency of evidence to court's presence, not disturbed, unless clearly
support special findings by court considered. wrong.---Robinson v. State, 102 So. 693.
-Shaw v. Knight, 102 So, 701.

Ca 1009(1) (Ala.) Chancellor's findings of
em863 (La.) Only question, on appeal from fact not disturbed unless plainly wrong.--Curb
order of sale in executory proceedings, is suf v. Grantham, 102 So. 619.
ficiency of evidence to authorize order.-Dyer v. m 1009(1) (Fla.). Chancellor's findings not
Mountz, 102 So. 413.

disturbed unless clearly erroneous.-Norton v.
Validity of sale under order in executory pro- Baya, 102 So. 361.
ceedings not considered on devolutive appeal. Om 1009(2) (Fla.) Chancellor's decree sup-
-Id.

ported by legal evidence not reversed unless
865 (Fla.) Correctness of decree pro con- clearly erroneous.-Schaefer V. Voyle, 102
fesso tested by case made before final decree So. 7.
and not by matters first presented in petition - 1009(3) (Miss.) Judgment of trial court
for rehearing. --Kissimmee Everglades Land tased on condicting evidence upheld, if evidence
Co. v. Carr, 102 So. 335.
Om867 (1) (Ala.) Errors at trial not within 102 So. 565.

is sufficient to support it.-Lampkin v. Heard,
purview of appeal from order on motion for 1009 (4) (Ala.) Conclusions of trial court
new trial.-Shaw v. Knight, 102 So. 701.

in equity not disturbed unless plainly contrary
(B) Interlocutory, Collateral, and Supple- | Co. v. State, 102 So. 805.

to great weight of evidence.-D. & S. Motor
mentary Proceedings and Questions.

Cw1010(1) (Fla.) Finding, sustained by evi-
Cm 870(2) (Ala.) Order denying transfer to dence, that proposed municipal bond issue for
other side of court, assignable as error.-Mc- golf courses was for benefit of private enter-
Donald v. McDonald, 102 So. 38.

prise, not disturbed.-City of Bradentown v.
em 870 (5) (Ala.) Decree demurrer to State, 102 So. 556.
cross-bill on which no final decree rendered, CM 1022(3) (Fla.) Master's findings on con-
held not reviewable on appeal.-Jones v. Moore, ficting evidence, approved by chancellor, not
102 So. 200,

disturbed, unless latter's error in conclusion

clearly shown.-Phillips v. Howell, 102 So. 157.
(C) Parties Entitled to Allege Error.
Cum 880(1) (Ala.) Proper and regular condem-

(H) Harmless Error.
nation of automobile assumed as to purchaser Omw 1040(2) (Fla.) In sustaining demurrer to
and driver not complaining.-Equitable Credit amended pleas, ordering judgment by default
Co. v. State, 102 So. 802.

not harmful error.-Reliance Life Ins. Co. v.
Cw882(3) (Ala.) Judgment, based on insuffi- Gray, 102 So. 764.
ciency of complaint for statutory action, held on 1040(7) (Ala.) Sustaining demurrer
not error, though sustainable another plea will not work a reversal of judgment
ground.--Austin v. Moebes, 102 So. 535.

where case tried without jury, and defendant's
mw882(12) (Ala.) Instructions following lan- case presented under general issue.-Smith v.
guage of complaint held sufficiently broad.- Lewis, 102 So. 21.
Earpest v. Corona Coal Co., 102 So. 445.

Om 1040(8) (Ala.App.) Appellant not injured

by sustaining of demurrers to replication mere-
(E) Presumptions.

ly denying plea.-Southern Cotton Oil Co. v.
Om901 (Ala.) Overruling motion by defend-Currie, 102 So. 149.
ant to retax cost presumed correct, unless af- www 1040 (10) (Ala.) Ruling on demurrer, if
firmatively shown otherwise.--Smith v. Lewis, error, held without injury, in view of evidence
102 So. 21.

and instructions.- Metropolitan Life Ins. Co. v.
mw 907 (3) (La.) Judgment presumed rendered Carter, 102 So. 130.
on proper evidence.-Stout v. Henderson, 102 cm 1040(11) (Ala.) Error, in submitting and
So. 193.

authorizing recovery of damages claimed in
m92717) (Ala.) On review of refusal of counts not stating cause of action, held techni-
plaintiff's affirmative charge, defendant's evi- cal only.--McCarty v. Williams, 102 So. 133,
dence taken as true. -American Automobile Cw1040(13) (Ala.) Any error in overruling
Ins. Co. v. Carson, 102 So. 219.

demurrer to defendant's plea of contributory
928 (3) (Ala.) Circular construed in ac negligence harmless, where no issue of falling
cordance with construction of trial court where from pier was before jury.--Thierry v. Oswell,
neither circular nor its contents is before ap-

102 So. 903.
pellate court.-J. E. Pinkham Lumber Co. v. Cw1040(16) (Ala.) Rulings on original counts
C. W. Griffin & Co., 102 So. 689.

immaterial where new

counts substituted.-
ww931(1) (Fla.) Chancellor's finding on con-

Drummond y. Drummond. 102 So. 112.
flicting evidence presumed correct.-Schaefer Cm1042(1) (Fla.) Sustaining motion to strike
v. Voyle, 102 So. 7.

pleas rather than sustaining demurrer to
933(1) (Ala.) Presumption in favor of amended pleas held not harmful to defendant.-
ruling of trial court in refusing or granting Reliance Life Ins. Co. v. Gray, 102 So, 764.
motion for new trial.- Alabama Fuel & Iron Fw 1048 (5) (Ala.) Overruling objection to
Co. v. Andrew's, 102 So. 799.

question not reversible error, where question
Com 934 (3) (La.) Confirmation of default held

was corrected and answer did not invade prov-
based on sufficient proof.--Stout v. Henderson, ince of jury.--Meadows v. Du Bose Iron Co., 102

So. 431.
102 So. 193.

Cw1048(5) (Ala.) Error in overruling objec-
(F) Discretion of Lower Conrt.

tion to improper question not rendered barm-

less by witness' denial in view of testimony re-
966(2) (Ala.) Refusal of continuance for butting denial.-Johnson-Brown Co. v. Domin-
absence of reporter held not reversible error.-

ey Produce Co., 102 So. 006.
Shaw v. Knight, 102 So. 701.
984 (5) (Fla.) Chancellor's allowance of at- ination to show alleged bias of witness held

Co 1048 (6) (Ala.) Exclusion of cross-exam,
torney's fee, if excessive, should be reversed.- harmless.-Drummond v. Drummond, 102 So.
R. E. L. McCaskill Co. v. Dekle, 102 So, 252.

112.

ww1048(6) (Ala.) Plaintiff should have been
(G) Questions of Fact. Verdicts, and Find-

allowed to ask expert witnesses for defendant
ingu.

as to best material to use in safety lamps in
ww994(3) (La.) Trial judge's conclusion that mine to detect gas.-Williams v. Alabama Fuel
insured was not guilty of fraud and false I & Iron Co., 102 So. 136.

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