THIS IS A KEY-NUMBER INDEX
It Supplements the Decennial Digests, the Key-Number Series and . Prior Reporter Volume Index-Digests
ACCORD AND SATISFACTION. See Compromise and Settlement.
10(1) (Ala.App.) Honest "dispute" affords basis of accord: "satisfaction"-Southern Cot- ton Oil Co. v. Currie, 102 So. 149.
Payment of less than debtor is liable for not valid accord and satisfaction, in absence of bona fide dispute.-Id.
11(3) (Ala.App.) One accepting check, re- citing that it was in full of account. bound by such condition.-Southern Cotton Oil Co. V. Currie, 102 So. 149.
ACCOUNT, ACTION ON.
22 (La.) Evidence in suit on account held sufficient. Stringfellow v. Nowlin Bros., 102 So. 869.
ACKNOWLEDGMENT.
III. OPERATION AND EFFECT.
57 (Ala.) Proof necessary to render writ- ten statement, sworn to before notary public of another state, establishing mechanic's lien ad- missible in evidence, stated.-Knight v. Hill, 102 So. 221.
Admission of written statement. seal to which was not certified as being official seal of notary public of another state, held error. -Id.
See Dismissal and Nonsuit.
III. JOINDER, SPLITTING, CONSOLIDA- TION, AND SEVERANCE.
38(3) (Ala.) Count in trespass quare clau- sum fregit held not to set up two causes of ac- tion.-Alabama Fuel & Iron Co. v. Andrews, 102 So. 799.
Count in trespass, for damages for taking furniture and mental anguish caused, held not to set up two causes of action.-Id.
ADJOINING LANDOWNERS.
ADMINISTRATION.
See Executors and Administrators.
16 (Ala.) Volunteer cannot by statutory adoption defeat rights of natural parent in his offspring.-Buttrey v. West, 102 So. 456. Adoption of child may be given weighty con- sideration in fixing its custody.-Id. Proceeding to annul declaration of adoption is judicial. Id.
Foster parent's desire to annul relation not "good cause" for so doing.-Id.
Relation not annulled for slight cause on ei- ther side. Id.
Disobedience, etc., not "good cause" for an- nulment, unless parent blameless and child re- sponsible.-Id.
Relation not annulled for traits of adopted child, unless child has reached such maturity as to be responsible for crime.—Id.
20 (Ala.) Adoption of child creates status of parent and child, with duty of care, etc.- Buttrey v. West, 102 So. 456.
Rights and obligations created by statutory adoption are subject to paramount power of state as parens patriæ.-Id.
8(3) (La.) Prescription; title to lands for- merly held by educational institution whose charter has expired cannot be acquired by ad- verse possession.-Martin v. Louisiana Cent. Lumber Co., 102 So. 662.
Prescription; that state's title is in trust or restricted with obligations does not render it subject to acquisition by possession adverse to state.-Id.
(B) Actual Possession.
27 (Ala.) Evidence in action against hus- band and wife held to support finding wife in possession of strip of land in controversy.-- Dansby v. Middlebrooks, 102 So. 446.
II. OPERATION AND EFFECT. (B) Title or Right Acquired. ~106(4) (Fla.) Title may be acquired by ad- verse possession against former owners as well as strangers.-R. É. L. McCaskill Co. v. Dekle, 102 So. 252.
(Fla.) "Affray" at common law defined. -Carnley v. State, 102 So. 333.
4 (Fla.) Indictment for affray is in effect merely for the several included assaults and batteries.-Carnley v. State, 102 So. 333.
See Principal and Agent.
AGRICULTURE.
7 (Ala.) Evidence fertilizer was not tagged when received admissible to prove lack of tags on delivery to carrier.-Decatur Fertilizer Co. v. Walls, 102 So. 32.
Testimony fertilizer sold by defendant was not tagged admissible to prove lack of tags when delivered to defendant by carrier.-Id.
Admitting testimony, fertilizer bought from defendant had no tags, without identifying it, held prejudicial error.-Id.
212 (Ala.) On failure to request affirm- titled thereto is not presented on appeal.- ative charge, question whether party was en- Decatur Fertilizer Co. v. Walls, 102 So. 32.
ALTERATION OF INSTRUMENTS. 27(2) (Ala.) Burden on defendant to show unauthorized material alteration of assignment of property for which notes sued on were giv-219(2) (Ala.) That court's special findings en.-Robertson v. Castellano, 102 So. 893.
80 (Miss.) Owner of bees attacking ani- mals liable for damages.-Ammons v. Kellogg, 102 So. 562.
85 (Miss.) Evidence held to show defend- ant's bees attacked animals.-Ammons v. Kel- logg, 102 So. 562.
defined.-Pelham v. State, 102 So. 462.
were not sufficient in detail not considered, where not raised below.-Shaw v. Knight, 102 So. 701. for 230 (Ala.) Rules reviewing trial court's action as to objectionable argument stated.-Metropolitan Life Ins. Co. v. Carter, 102 So. 130.
242(3) (Ala.) Appellate court cannot re- view or pass on demurrers upon which trial court did not rule.-Smith v. Lewis, 102 So. 21.
96 (Ala.App.) "Growing crops," within statute justifying injury to trespassing animals,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.
(D) Motions for New Trial. 207-224; Criminal plaintiff's account against defendant, if error, 301 (Ala.) Use by jury of statement of 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- ics. meal" held not good objection.-Shaw v. Knight, 102 So. 701.
I. NATURE AND FORM OF REMEDY.
302 (5) (Ala.) Ground of motion too gen- (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.
II. NATURE AND GROUNDS OF
LATE JURISDICTION.
APPEL-324 (Fla.) Defendants not appealing from judgment, who appear and join in appeal by co- thereto.-McJunkins v. Stevens, 102 So. 756. defendant in appellate court become parties
17 (Ala.) Court without jurisdiction of ap- peal where not authorized by statute.-Worth- ington v. Morris, 102 So. 620.
17 (Fla.) Appeal or writ of error or oth- er authorized process duly taken gives court jurisdiction to determine particular cause.-Mc- Junkins v. Stevens, 102 So. 756.
Appellants declining to participate in appeal may in some cases be dismissed from cause. -Id.
Appellate court having jurisdiction of cause may grant summons and severance as to par- ties appellant declining to come in.-Id. 21 (La.) Supreme Court cannot entertain329 (Fla.) Appellate court will not ordi- 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.-McJunkins v. Stevens, 102 So. 756.
III. DECISIONS REVIEWABLE. (D) Finality of Determination. 78 (3) (Ala.) Decree overruling plea in bar to bill held to constitute an interlocutory de- cree and not appealable.-Worthington v. Mor- ris, 102 So. 620.
Parties who should have been made appel- lants or plaintiffs in error may appear and par- ticipate. Id.
Appellate court may refuse to proceed, in absence of necessary or proper parties, or it may permit them to voluntarily appear or have 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. 115 (La.) No appeal from fully executed335 (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 to give jurisdiction of their persons.-McJunk- ins v. Stevens, 102 So. 756.
336 (1) (Fla.) When appeal or writ of er- ror not including all necessary parties will not be dismissed, stated.-McJunkins v. Stevens, 102 So. 756.
If parties, who should have been made appel- lants or plaintiffs in error, do not appear, ap- pellate proceedings will be dismissed, unless amendment can be made with summons and sev- erance.-Id.
On appeal or writ of error in which all par- ties directly affected by judgment appealed from are not made parties, court will decline to pro- ceed.-Id.
Conditions under which appeal from joint judgment taken by less than all parties against whom rendered will not be dismissed, stated.
207 (Ala.) Improper argument, withdrawn by counsel, not reviewable without objection-Id. and exception to ruling, unless highly prejudi- cial. Feore v. Trammel, 102 So. 529.
Withdrawn argument of counsel held not so highly prejudicial as to be reviewable without
If all appellees or defendants in error are not included in appeal or writ of error as recorded in record books of trial court, writ of error or appeal will be dismissed, unless such persons
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.
356 (Fla.) Appeal or writ of error not complying with statute as to return day, will be dismissed.-McJunkins v. Stevens, 102 So.
(C) Payment of Fees or Costs, and Bonds or Other Securities.
502 (7) (Ala.) Recital in bill of exception to judgment denying motion for new trial held sufficient for review.-Pacific Fire Ins. Co. of New York v. Burnett, 102 So. 214.
(B) Scope and Contents of Record.
537 (Ala.) Bill of exceptions considered in review of judgment on motion for new trial.— Shaw v. Knight, 102 So. 701.
393 (La.) Suspensive appeal from judg- ment appointing administratrix, treated as de-539 (Miss.) Record for appeal to Supreme volutive appeal.-Succession of Pavelka, 102 So. Court may be made by agreement of parties.- Cooper v. Martin, 102 So. 851.
(E) Entry, Docketing, and Appearance.
435 (Fla.) Motion to dismiss appeal for want of proper parties denied on appearance of absent parties in appellate court.-McJunkins v. Stevens, 102 So. 756.
On entry of appeal by one party, giving appel- late court jurisdiction of cause, and appear- ance by other parties in such court, it has jurisdiction to determine appeal.-Id.
Appeal taken under full caption by one de- fendant from joint judgment, determined on merits if other defendant joins in appellate
Express or implied appearance of no avail on appeal or writ of error taken in violation of statute.-Id.
436 (Fla.) Entry of appeal used to trans- fer cause to circuit court.-McJunkins v. Stev- ens, 102 So. 756.
Contents, Making, and Settlement of Case or Statement of Facts.
561 (Miss) Stenographer's transcribed notes of evidence, properly certified by stenographer and chancellor, held to become part of record on appeal, regardless of failure to give stenog- rapher notice to transcribe, in view of agree- ment of parties.-Cooper v. Martin, 102 So. 851.
(H) Transmission, Filing, Printing, and Service of Copies.
within legal delay or obtaining extension of 627 (1) (La.) Appellant not filing transcript return day abandons suspensive appeal.-Mundy v. Phillips, 102 So. 519.
Judgment creditor's remedies on appellant's failure to file transcript stated.-Id.
fore expiration of return day of suspensive ap- peal held not vitiated.-Id.
Seizure and sale under execution issued be-
(K) Questions Presented for Review.
~692(1) (Ala.) Error not to be predicated on exclusion of question to mine engineer as to use of questions, by examining board, in other states, where questions not in appeal record.-Williams v. Alabama Fuel & Iron Co., 102 So. 136.
(L) Matters Not Apparent of Record.
436 (La.) After filing of appeal bond, in-713(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.
437 (La.) Issuance of fi. fa. before expira- tion of return day of suspensive appeal illegal and premature.-Mundy v. Phillips, 102 So. 519. Defendant taking devolutive appeal only can- not complain of issuance of fi, fa. before notice of judgment against him.-Id.
Defendant not seeking to enjoin execution, abandoning appeals, and bidding on and pur- chasing property, cannot attack validity of sale. -Id.
IX. SUPERSEDEAS OR STAY OF PRO- CEEDINGS.
458 (2) (La.) Suspensive appeal cannot be taken from judgment appointing administrator. -Succession of Pavelka, 102 So. 579.
475 (Miss.) Penalties imposed by city or- dinance for act enjoined not recoverable on su- persedeas bond given on appeal from decree granting injunction.-McNeeley V. City of Natchez, 102 So. 564.
On motion to increase supersedeas bond, facts showing insufficiency of bond must be set forth.-Id.
479(2) (La.) Grant or refusal of suspen- sive appeal discretionary.-Mitchell v. Dixie Ice Co., 102 So. 497.
X. RECORD AND PROCEEDINGS NOT IN
(A) Matters to be Shown by Record. 494 (La.) Record held sufficient to show rendition of formal judgment.-Henderson v. Hollingsworth, 102 So. 577.
502(6) (Ala.) Exceptions to judgment de- nying motion for new trial held sufficient for
XI. ASSIGNMENT OF ERRORS.
728 (3) (Ala.) Assignment of error plaining of exclusion of evidence held not too general.-J. E. Pinkham Lumber Co. v. C. W. Griffin & Co., 102 So. 689.
736 (Ala.) If any one of assignments of error treated in bulk without merit, considera- tion of other pretermitted.-Bush v. Bumgard- rer, 102 So. 629.
737 (Fla.) Single assignment of error in sustaining demurrer to defendant's pleas, some of which were defective, is unavailing.-Reli- ance Life Ins. Co. v. Gray, 102 So. 764. XIII. DISMISSAL. WITHDRAWAL,
843 (2) (Ala.) Improper argument present- ed only by ruling on motion for new trial not considered on reversal on other grounds.-Feore v. Trammel, 102 So. 529.
850 (1) (Ala.) Sufficiency of evidence to support special findings by court considered. -Shaw v. Knight, 102 So. 701.
swearing not disturbed on appeal.-Strauss v. Insurance Co. of North America, 102 So. 861. 1008(1) (Ala.) Judgment of court trying case without jury, based on testimony taken in court's presence, not disturbed, unless clearly wrong. Robinson v. State, 102 So. 693.
1009(1) (Ala.) Chancellor's findings of fact not disturbed unless plainly wrong.-Curb v. Grantham, 102 So. 619.
863 (La.) Only question, on appeal from order of sale in executory proceedings, is suf- ficiency of evidence to authorize order.-Dyer v.1009() (Fla.) Chancellor's findings not Mountz, 102 So. 413. disturbed unless clearly erroneous.-Norton v. Baya, 102 So. 361.
Validity of sale under order in executory pro- ceedings not considered on devolutive appeal. -Id.
865 (Fla.) Correctness of decree pro con- fesso tested by case made before final decree and not by matters first presented in petition for rehearing.-Kissimmee Everglades Land Co. v. Carr, 102 So. 335.
867(1) (Ala.) Errors at trial not within purview of appeal from order on motion for new trial.-Shaw v. Knight, 102 So. 701.
(B) Interlocutory, Collateral, and Supple- mentary Proceedings and Questions. 870(2) (Ala.) Order denying transfer to other side of court, assignable as error.-Mc- Donald v. McDonald, 102 So. 38.
870(5) (Ala.) Decree on demurrer to cross-bill on which no final decree rendered, held not reviewable on appeal.-Jones v. Moore, 102 So. 200.
(C) Parties Entitled to Allege Error. 880 (1) (Alá.) Proper and regular condem- nation of automobile assumed as to purchaser and driver not complaining.-Equitable Credit Co. v. State, 102 So. 802.
882(3) (Ala.) Judgment, based on insuffi- ciency of complaint for statutory action, held not error, though sustainable on another ground.-Austin v. Moebes, 102 So. 535.
882(12) (Ala.) Instructions following lan- guage of complaint held sufficiently broad. Earnest v. Corona Coal Co., 102 So. 445.
1009 (2) (Fla.) Chancellor's decree sup- ported by legal evidence not reversed unless clearly erroneous.-Schaefer V. Voyle, 102
1009 (3) (Miss.) Judgment of trial court based on conflicting evidence upheld, if evidence is sufficient to support it.-Lampkin v. Heard, 102 So. 565. 1009 (4) (Ala.) Conclusions of trial court in equity not disturbed unless plainly contrary to great weight of evidence.-D. & S. Motor Co. v. State, 102 So. 805.
1010(1) (Fla.) Finding, sustained by evi- dence, that proposed municipal bond issue for golf courses was for benefit of private enter- prise, not disturbed.-City of Bradentown v. State, 102 So. 556.
1022 (3) (Fla.) Master's findings on con- flicting evidence, approved by chancellor, not disturbed, unless latter's error in conclusion clearly shown.-Phillips v. Howell, 102 So. 157.
1040(2) (Fla.) In sustaining demurrer to amended pleas, ordering judgment by default not harmful error.-Reliance Life Ins. Co. v. Gray, 102 So. 764.
1040 (7) (Ala.) Sustaining demurrer to plea will not work a reversal of judgment where case tried without jury, and defendant's case presented under general issue.-Smith v. Lewis, 102 So. 21.
1040 (8) (Ala.App.) Appellant not injured by sustaining of demurrers to replication mere- ly denying plea.-Southern Cotton Oil Co. v. Currie, 102 So. 149.
901 (Ala.) Overruling motion by defend- ant to retax cost presumed correct, unless af-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. Carter, 102 So. 130.
907 (3) (La.) Judgment presumed rendered on proper evidence.-Stout v. Henderson, 1021040(11) (Ala.) Error, in submitting and So. 193. authorizing recovery of damages claimed in 927 (7) (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 1040(13) (Ala.) Any error in overruling Ins. Co. v. Carson, 102 So. 219. demurrer to defendant's plea of contributory negligence harmless, where no issue of falling from pier was before jury.-Thierry v. Oswell,
928(3) (Ala.) Circular construed in cordance with construction of trial court where neither circular nor its contents is before ap- pellate court.-J. E. Pinkham Lumber Co. v.1040 (16) (Ala.) Rulings on original counts C. W. Griffin & Co., 102 So. 689.
931(1) (Fla.) Chancellor's finding on con- flicting evidence presumed correct.-Schaefer v. Voyle, 102 So. 7.
933 (1) (Ala.) Presumption in favor of ruling of trial court in refusing or granting motion for new trial.-Alabama Fuel & Iron Co. v. Andrews, 102 So. 799.
934(3) (La.) Confirmation of default held based on sufficient proof.-Stout v. Henderson,
(F) Discretion of Lower Court. 966 (2) (Ala.) Refusal of continuance for absence of reporter held not reversible error.- Shaw v. Knight, 102 So. 701.
984 (5) (Fla.) Chancellor's allowance of at- torney's fee, if excessive, should be reversed.- R. E. L. McCaskill Co. v. Dekle, 102 So. 252. (G) Questions of Fact, Verdicts, and Find- ings.
994 (3) (La.) Trial judge's conclusion that
immaterial where new counts substituted.- Drummond v. Drummond. 102 So. 112. 1042 (1) (Fla.) Sustaining motion to strike pleas rather than sustaining demurrer amended pleas held not harmful to defendant.- Reliance Life Ins. Co. v. Gray, 102 So. 764. objection to 1048 (5) (Ala.) Overruling question not reversible error, where question was corrected and answer did not invade prov- ince of jury.-Meadows v. Du Bose Iron Co., 102
1048(5) (Ala.) Error in overruling objec- tion to improper question not rendered harm- less by witness' denial in view of testimony re- butting denial.-Johnson-Brown Co. v. Domin- ey Produce Co., 102 So. 606.
1048 (6) (Ala.) Exclusion of cross-exam- ination to show alleged bias of witness held harmless.-Drummond v. Drummond, 102 So.
1048 (6) (Ala.) Plaintiff should have been allowed to ask expert witnesses for defendant as to best material to use in safety lamps in mine to detect gas.-Williams v. Alabama Fuel
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