Page images

to show any exceptions.-Kentucky Traction & that it may be incorporated in a bill of excepTerminal Co. v. Peel, 169 S. W. 689.

tions, and such relief must be sought in the $ 501 (Tex.Civ.App.) Under Rev. St. 1911, art. circuit court.-Dent v. People's Bank of Im2061, as amended by Acts 330 Leg., c. 59, the boden, 169 S. W. 821. appellate court will not review the refusal to in- Where stenographer's notes and transcript struct, where the record contains no bill of ex- had been lost and could not be incorporated in ception showing that the refusal was duly ex

skeleton bill of exceptions authorized by Sp.

Acts 1911 cepted to.-Crow v. Childress, 169 S. W. 927.

p. 927, and the time for preparing $ 501 (Tex.Civ.App.) Assignments of error as timony bad expired, held that relief could not be

a bill containing appellant's recital of the testo the instructions will not be considered, where granted, except possibly by a suit in equity no bill of exceptions was taken to the charges.

for a new trial.-Id. Texas & P. Ry. Co. v. Beaird, 169 S. W. 1050; Same v. Moody, Id. 1057; Same v. Hubbard, issue to bring up original records to the Court

$ 659 (Ky.) A subpæna duces tecum will not Id. 1058.

of Appeals, unless they are so bulky that copy.

ing them would cause great expense and delay, (B) Scope and Contents of Record.

or it is important that the court inspect the $ 525 (Ky.) Instructions cannot be reviewed originals to arrive at a correct decision. --Smith on appeal, where neither those given nor those v. Berry, 169 S. W. 478. refused are identified by, or made a part of, the bill of exceptions.-Gardner V. Alexander, 169 (K) Questions Presented for Review. S. W. 466.

8 692 (Ky.) Errors in rulings on testimony

cannot be reviewed, where the transcript fails (C) Necessity of Bill of Exceptions, Case, to show any statement as to what a witness or Statement of Facts.

would have testified, where he was not permit8 547 (Tex.Civ.App.) Error assigned as to a ted to answer.--Kentucky Traction & Terminal question alleged to have been propounded by the Co. v. Peel, 169 S. W. 689. jury to the court, and answered, not supported $ 692 (Tex.Civ.App.) A bill of exceptions to by bill of exceptions taken as provided by law, the exclusion of evidence must show, what the cannot be considered.-Copeland v. Porter, 169 witness would have testified if permitted to do S. W. 915.

50.-Woods v. Eberling, 169 S. W. 932. (H) Transmission, Filing, Printing, and trial was rendered against plaintiff upon a di

$ 706 (Ky.) Where judgment on a second Service of Copies.

rected verdict, and plaintiff appealed only from $ 624 (Ky.) Under Court of Appeals rule 12 such judgment, and the record of the first trial (154 S. W. viii) and established practice, a motion for an extension of time to file a transcript verdict for plaintiff cannot be reviewed.—Dot

was not complete, the setting aside of the first on appeal, entered during a vacation of the son v. Delorme Lumber Co., 169 S. W. 503. court, will be treated as made in court on that day.--Creech v. Brock, 169 S. W. 183.

(L) Matters Not Apparent of Record. À clerk's certificate that a transcript could

$715 (Ark.) Where, in a suit to set aside a have been procured within the 30 days prescrib- mortgage, the chancellor heard oral testimony, ed by Ky. St. & 1596a, subsec. 12, was not evi- which was not brought into the record, it could dence of the fact, in resistance of a motion to not be considered on appeal.-Tedford v. Chick, extend the time for filing a transcript on ap- 169 S. W. 769. peal.-Id. On an application for an extension of time

8715 (Ky.) Alleged prejudicial remarks of to file the transcript on appeal, evidence of the counsel should be authenticated in the bill of exclerk, in resistance, that the transcript could ceptions by the lower court, before the Court of have been procured within the time fixed by dicial, and cannot be considered when presented

Appeals can consider whether they were prejulaw, should have been presented by affidavit. only by affidavits of counsel not mentioned in -Id.

On appeal from a judgment in an election the bill of exceptions.-Pine Mountain Mfg. Co. contest, the Court of Appeals has jurisdiction

v. Bishop, 169 S. W. 1010. to extend the time specified by Ky. St. 8

XI. ASSIGNMENT OF ERRORS. 1596a, subsec. 12, for filing the transcript, for cause.--Id.

$ 719 (Tex.Civ.App.) The action of the trial A motion to extend the time for filing a tran- court in directing a verdict is an error apparscript on appeal in an election contest, based ent upon the face of the record, which the appelonly on an affidavit that appellant believed a

late court will consider as fundamental error, transcript could not be obtained within the without an assignment of error.–Owens v. time, and that the record would amount to over Corsicana Petroleum Co., 169 S. W. 192. 1.400 pages, in the absence of any proof of dili- § 742 (Tex.Civ.App.) Though the assignment gence, would be denied.-Id.

raising the question that the judgment below Where, on an appeal in an election contest, was not final, and hence not appealable, beit appears that the transcript cannot be com- cause it did not dispose of all the issues raised, pleted within the prescribed 30 days, appellant was not properly briefed, the question will be should file so much of the transcript as can be disposed of, being a jurisdictional one. Bryant completed within the time, in connection with a v. Moore, 169 S. W. 395. motion to extend the time for completion.-Id. 8 742 (Tex.Civ.App.) The refusal to submit a

particular defense could not be held erroneous (1) Defects, Objections, Amendment, and

on appeal, where there was no statement from Correction.

the record, following defendant's assignment of 8 644 (Tex.Civ.App.) Under rules 40 and 41 error, indicating that there was any testimony for Courts of Civil Appeals (142 S. W. xiv), to support such defense.-Houston & T. C. Ry. held that, where a party did not object, in his Co. v. Meadors, 169 S. W. 1106. brief or before motion for rehearing, that there 8 742 (Tex.Civ.App.) Assignments of error, were no bills of exception in the record to the grouped and presented together, but raising difaction of the court complained of in the assign- ferent questions, do not require consideration.ments, he would be deemed to have waived such Davis v. Collins, 169 S. W. 1128. objection.-Southern Gas & Gasoline Engine Co. v. Adams & Peters, 169 S. W. 1143.

$ 751 (Tex.Civ.App.) Grounds of objection to

evidence stated in the assignments of error oth$ 653 (Ark.) The Supreme Court has no au- er than those alleged in the bills of exception, thority to require a circuit court stenographer will not be reviewed.-Sanford v. John Finni. to file a transcript of the testimony in order I gan Co., 169 S. W. 624.


$ 882 (Mo.) Where plaintiff in his own in. $ 768 (Tex.Civ.App.) Where statements in structions submitted the issue of his due care, appellant's brief are not controverted by ap- he could not object to an instruction submit pellee's brief, the appellate court is justified ting the issue of contributory negligence as an under rule 41 (142 S. W. xiv), in accepting ap- affirmative defense. -Strother v. Kansas City pellant's version as true.-Eldridge v. Citizens' Milling Co., 169 S. W. 43. Ry. Co., 169 S. W. 375.

$ 882 (Mo.) Where defendant adopted in its $ 770 (Ky.) Where appellant has filed no brief, instructions the same theory set forth in those it will be presumed that no errors exist, or that given on behalf of plaintiff, defendant cannot they have been waived.-Continental Ing. Co. v. on appeal complain that plaintiff's instructions Ramsey, 169 S. W. 855.

enlarged the issues framed by the pleading:

Holzemer v. Metropolitan St. Ry. Co., 169 S. W. XIII. DISMISSAL, WITHDRAWAL, OR 102. ABANDONMENT.

(E) Presumptions. $ 784 (Ky.) That bill of exceptions on plain- $ 907 (Tex. Civ.App.) A bill of exceptions, by tiff's appeal was filed after death of one of the which appellant complained that the court faildefendants, and without revivor, held not ground ed to prepare and read its charge to the jury befor dismissal, as the appeal might be heard as fore argument as required by statute, held not though there had been no attempt to file a bill defective in failing to show that appellant did of exceptions.-Gish Banking Co. v. Leachman's not waive the provisions of the statute.-InAdm'r, 169 S. W. 481.

ternational & G. N. Ry. Co. v. Parke, 169 S. 8 793 (Ky.) Where appellee has filed the W. 397. transcript under Civ. Code Prac. § 741, the ap 8 909 (Mo.) On appeal from judgment for peal will not be dismissed without prejudice on plaintiff in an action for injuries received by the motion of the appellant, especially where railroad engineer, the Supreme Court will preit is a second appeal.-Doherty v. First Nat. sume that a rule of general application was Bank, 169 S. W. 493.

observed by the engineer.-Finnegan v. Mis

souri Pac. Ry. Co., 169 S. W. 969. XVI. REVIEW,

$.931 (Tex.Civ.App.) Where there was no com(A) Scope and Extent in General. plaint of the refusal of the court to submit an $ 842 (Mo.) In an action for injuries to a ported by the evidence, the presumption was

issue, and the judgment for defendant was suprailroad engineer, where the defense was his dis- that the court properly found on that issue.obedience of certain rules, and the rules and Paschal v. Hudson, 169 S. W. 911. their construction by the custom of the employés were in evidence, the question as to what the

(F) Discretion of Lower Court, rules required of the engineers was for the jury, and their determination thereon will not be dis- 8 954 (Tex.Civ.App.) Exercise of trial court's turbed on appeal.-Finnegan v. Missouri Pac. discretion in denying injunctive relief, while reRy. Co., 169 S. W. 969.

viewable on appeal, will be upheld unless some $ 842 (Mo.) Where in a suit to quiet title abuse of discretion is shown. -Wells Fargo & plaintiff stood on a legal title, and defendant Co. v. Guilheim, 169 S. W. 1053. claimed under the statute of limitations, and 8 961 (Tex.Civ.App.) Denial of a motion to there was evidence in support of the issue, the suppress a deposition will not be reversed on apverdict is conclusive on appeal.-Chilton v. peal, in the absence of a showing of abuse of Nickey, 169 S. W. 978.

discretion.-Missouri, O. & G. Ry. Co. of Texas

v. Love, 169 S. W. 922. (B) Interlocutory, Collateral, and Supplementary Proceedings and Questions.

$ 965 (Ky.) The refusal of a change of venue 8 870 (Mo.) An order denying a motion to tion appears.-Louisville & N. R. Co. v. Neth

will not be disturbed, unless an abuse of discrecompel plaintiff to make his petition more definite is not reviewable on appeal from an order ery, 169 S. W. 883. taking off a nonsuit and granting a new trial.- 8 977 (Ky.) The discretion of the trial court Collinsworth v. United Zinc & Chemical Co., 169 in granting a new trial will not be disturbed S. W. 50.

unless abused.-McLemore Evansville & $ 874 (Ky.) Where the trial court has lost Bowling Green Packet Co., 169 S. W. 1006. jurisdiction of a judgment, and no ground for plaintiff, on the ground that substantial justice

The grant of a new trial after a verdict for a new trial under civ. Code Prac. $ 518, is had not been done, will not be disturbed.-Id. shown, relief can only be obtained by an appeal from the judgment.--Naylor v. Brown, 169 S. W. 983.

(G) Questions of Fact, Verdicts, and Find.

ings. (C) Parties Entitled to Allege Error. $ 999 (Ky.) It is for the jury to pass upon 8 877 (Tenn.) Under Shannon's Code, $8 the weight and sufficiency of the evidence as a 4887, 4891, in proceeding for decree against whole and accept that of the plaintiff rather sheriff, held, that sheriff was properly allowed than that of the defendant as the truth of the a broad appeal, so as to bring up the whole de- matter. -Kentucky & T. Ry. Co. v. West, 169 cree for review, though the surety did not ap- S. W. 728. peal.-State v. Bolt, 169 S. W. 761.

$ 1001 (Ark.) The court, in testing the le$ 877 (Tex.Civ.App.) In trespass to try title, gal sufficiency of the evidence of plaintiff to where each of the plaintiffs was entitled to 160 sustain a verdict in her favor, must give that acres out of the larger survey, the fact that the evidence the highest probative value.- Weber v. land awarded to them jointly was less than Weber, 169 S. W. 318. 320 acres, and was located with due regard to $ 1001 (Ky.) That the evidence is conflicting, the defendants' right to an equitable parti- or that the Court of Appeals would have made tion, in no way injured defendants, and hence a different finding, or that in its opinion the they could not complain of a judgment on that verdict is against the weight of the evidence, ground.-Davis v. Collins, 169 S. W. 1128. furnishes no cause for setting it aside, unless

$ 882 (Ky.) Defendant was estopped to ob- it is clearly against the evidence.-Interstate ject to expert testimony, called to contradict Coal Co. v. Shelton, 169 S. W. 546. testimony given by defendant's witness who $ 1001 (Tex.Civ.App.). A verdict on an issue apparently fell short of qualifying as an ex- of fact, based on sufficient evidence, cannot be pert.-Interstate Coal Co. v. Shelton, 169 S. reviewed.--Hutchinson v., Murray, 169 S. W. W. 546.



$ 1002. A verdict on conflicting evidence will § 1033 (Ky.) Defendants cannot complain not be disturbed.

that an instruction required the jury to believe -(Ky.) Stewart & Whitesides v. Mackin, 169 more than was necessary to find for plaintiff,

S. W. 469; Chesapeake & O. Ry. Co .v. or that they were required to pass on admitted Kelly's Adm'x, id. 736; East Tennessee facts.-Coleman v. Freeman, 169 S. W. 523. Telephone Co. v. Jeffries, Id. 825;

§ 1033 (Ky.) In a personal injury action by a (Tex. Civ. App.) Copeland v. Porter, 169 S. servant, the giving of an instruction which imW. 915.

posed upon the servant a greater degree of care 1003 (Mo.) The weight to be given the evi- than that imposed by the law is not prejudicial dence for plaintiff was foreclosed by the jury's to the master.-Flubart Colleries Co. v. Meeks, verdict for plaintiff.-Rutledge v. Swinney, 169 169 S. W. 686. S. W. 17.

$ 1036 (Ky.) Where plaintiffs assigned their $ 1004 (Ark.) Where, in an action for personal interest in a recovery pendente lite, and their injuries to a child, the testimony of plaintiff, if assignee was joined, defendant was not prejubelieved, justified the damages awarded, the diced by the subsequent prosecution of the accourt will not disturb the award on the ground tion in the joint names of plaintiffs and their that there was contradictory evidence minimizing assignee.-Smith v. Chapman, 169 S. W. 834. the injuries.-St. Louis South Western Ry. Co. $ 1040 (Ky.) The error in overruling a demurv. Overton, 169 S. W. 364.

rer to a plea of limitations filed to an amended $ 1004 (Ky.) Although a verdict may seem petition was not prejudicial, where the unconout of proportion to an injury received, it will tradicted proof showed contributory negligence, not afford cause for reversal, unless it exceeds defeating recovery.-Williamson's Adm'r v. Norreason or appears to have been the result of folk & W. R. Co., 169 S. W. 613. passion' or prejudice.-Kentucky & T. Ry. Co.

$ 1040 (Tex.Civ.App.) The facts alleged in the v. West, 169 S. W. 728.

petition being specifically answered by defend$ 1004 (Ky.) In an action for injuries to ani- ant, any error in overruling an exception to mals in transportation, the evidence as to dam- the petition as not complying with Rev. St. age being conflicting, a verdict for $200 will not 1911, art. 1827, as amended by Acts 33d Leg. be set aside as inadequate.-Robinson v. Louis- c. 127, requiring a petition to plead by separate 'ville & N. R. Co., 169 S. W. 831.

paragraphs, consecutively numbered, each fact $ 1004 (Mo.) Improper argument of counsel going to make up the cause of action and other for plaintiff in a personal injury action will allegations, was harmless.-Southwestern Telbe considered in determining the question of ex- egraph & Telephone Co. v. Andrews, 169 S. W. cessive damages.-Ostertag v. Union Pac. R. 218. Co., 169 S. W. 1.

§ 1040 (Tex.Civ.App.) Refusal to sustain $ 1004 (Tex.Civ.App.) The evidence as to the special exception to a portion of plaintiff's origcharacter and permanency of plaintiff's injuries inal petition seeking damages for particular exbeing conflicting and sufficient to justify the penses held harmless, where the verdict showed conclusion that they were serious and perma- that none of such items were included.-Houston nent, a verdict for $5,000 would not be set & T. C. Ry. Co. v. Meadors, 169 S. W. 1106. aside on appeal as excessive.-Missouri, O. & G. $ 1040 (Tex.Civ.App.) In action for wrongRy. Co. of Texas v. Love, 169 S. W. 922. ful attachment, assignment of error complain

$ 1008 (Ark.) Where a case was tried before ing of overruling of exception to allegations ina court sitting as a jury, its findings of fact tended as a basis for exemplary damages held are as binding as a verdict.-Rush v. Citizens" without merit, where no exemplary damages Nat. Bank, 169 S. W. 777.

were recovered.-Brady-Neely Grocer Co. v. De

Foe, 169 S. W. 1135. 8 1009 (Ark.) The finding of a chancellor on In action for wrongful attachment, error, if an issue of fact will not be disturbed unless any, in overruling exceptions to allegations against the clear preponderance of the evidence that judgment in the attachment action was ren-Delolme v. State Savings Bank of Springfield, dered on a debt not due held cured by instrucMo., 169 S. W. 229; Stogsdill v. Holmes, Id. tion that the former judgment was res judicata 961.

of that issue.-Id. 8 1009 (Ky.) Judgment in ejectment held to $ 1041 (Ky.) Though the petition alleges an be affirmed, where it could not be said with express contract, and the proof is of an implied reasonable certainty that the chancellor's find- one, there was no necessity of amendment, the ings as to abandonment or rescission of a answer admitting an express contract, but dischampertous contract and as to adverse pos- puting value of services.—Moore's Adm'r v. session were erroneous.-Meade v. Ratliff, 169 Pierce, 169 S. W. 620. S. W. 729.

§ 1044 (Tenn.) Reference to master of ques$ 1009 (Ky.) A finding of the chancellor will tion as to fact which defendant admitted held not be disturbed, where, on the whole record, harmless, except in so far as it involved an the truth is doubtful.--Robinson-Pettit Co. v. increase of costs.-State v. Bolt, 169 S. W. Sapp, 169 S. W. 869.

761. $ 1012 (Ky.) The finding of the chancellor injury resulted from a defective wire cable, a

$ 1048 (Ky.) Where plaintiff claimed that his will not be disturbed, unless palpably against the weight of evidence.-Dotson v. Norman, 169 question to the master's cable boss whether S. W. 527.

there were any defects apparent to him, which

was answered in the negative, though perhaps $ 1022 (Tenn.) The Supreme Court is not objectionable as leading, was not reversible erbound by concurrent finding of the master and ror.-Hall v. Mengel Box Co., 169 S. W. 985. the chancellor on questions of fact which should

$ 1050 (Ark.) In an action for injuries from not have been referred to the master.-State v. explosion of dynamite used in removing piling Bolt, 169 S. W. 761.

of railroad bridge where drainage ditch was to

cross right of way, admission of evidence as to (H) Harmless Error.

promise of engineer, not authorized to make $ 1026 (Ark.) The error of the state court in as such agreement, that the railroad company suming jurisdiction to administer the assets of would remove the piling, held harmless, if eran insolvent, under a general assignment, is roneous, where there was eyidence that the not prejudicial, where there was nothing to railroad bridge and wrecking crew, under the show that the assignment was made for the pur- superintendence of the bridge and building depose of hindering, delaying, or defrauding the partment, was actually engaged in removing the insolvent's creditors.--Baxter County Bank v. piling.–St. Louis, I. M. & S. R. Co. v. WashCopeland, 169 S. W. 1180.

ington, 169 S. W. 770.

§ 1050 (Ky.) Rejection of evidence merely | error.-Kinney v. Metropolitan St. Ry. Co., 169 cumulative was not prejudicial.-Stewart & S. W. 23. Whitesides v. Mackin, 169 S. W. 469.

$ 1060 (Tex.Civ.App.) In an action for death $ 1050 (Ky.) Admission in an action against at a crossing argument of plaintiff's attorney an administrator for services to deceased of tes that the other facts in connection with a standtimony of plaintiff and her husband, incompe- ing train shutting off the engineer's view tent under Civ. Code Prac, 606, is harmless, amounted almost to criminal negligence held it serving only to confirm defendant's theory of not to require a reversal, though any issue as the contract, or going to a matter not in issue to such standing train was not submitted to the or seriously disputed.-Moore's Adm'r v. Pierce, jury.--Texas & P. Ry. Co. v. Moody, 169 S. W. 169 S. W. 620.

1057. $ 1050 (Ky.) In an action against a carrier for § 1062 (Ky.) Where the question of title was loss of mules, plaintiff held not prejudiced by one of law, submitting it to the jury could not the admission of the opinion of a veterinary sur: be complained of; verdict being for the right geon that the mules died from "natural causes." party.-Likens v. Pate, 169 S. W. 734. -Robinson v. Louisville & N. R. Co., 169 S. W. 8 1062 (Mo.) Error in submitting plaintiff's 831.

contributory negligence to the jury, though not § 1050 (Ky.) In a personal injury action by a pleaded, is not reversible, where the court finds servant, testimony that the injured servant was from the whole evidence that plaintiff was nega "little bit careless in some things” was soligent as a matter of law.--Boesel v. Wells Farvague as not to be prejudicial to plaintiff.-go & Co., 169 S. W. 110. Hall v. Mengel Box Co., 169 S. W. 985.

8 1064 (Mo.) The erroneous admission of evi$ 1050 (Tex.Civ.App.) Where a witness de- dence of a rule of a railroad company requiring scribed without objection and swore to the con- two short whistles in answer to any signal not tents of a check, its admission was not preju- otherwise provided for is harmless, where the dicial to defendant.--Sanford y, John Finnigan instructions did not submit to the jury any Co., 169 S. W. 624.

fact involving that rule.-Ostertag v. Union § 1050 (Tex.Civ.App.) Where plaintiff's hogs Pac. R. Co., 169 S. W. 1. were injured by the failure of a carrier to per- § 1066 (Ark.) Though instructions submitting, form its common-law duty to drench the hogs issues whether a corporation had authorized its to prevent injury from overheating, the carrier agents to negotiate the transaction relied on was not prejudiced by evidence that plaintiff by plaintiff

or whether the corporation had rathad directed the receiving agent to instruct con- ified unauthorized acts of its agents were propductors to see that the hogs were drenched er, the error in an instruction authorizing a when necessary.-Pecos & N. T. Ry. Co. v. finding that the agents of the corporation were Morrison, 169 S. W. 1098.

general agents so as to bind the corporation by $ 1050 (Tex.Civ.App.) Any error, in the ad- their wrongful acts, arising from the fact that mission of immaterial evidence, was not reversi- there was no evidence justifying it required the ble error.

r.-Missouri, K. & T. Ry. Co. of Texas setting aside of a judgment for plaintiff.-Capv. Interstate Chemical Co., 169 S. W. 1120. ital Security Co. v. Gray, 169 S. W. 244.

$ 1052 (Ky.) Erroneous admission of evidence $ 1066 (Ky.) Where undisputed evidence as to lost time, and error in charging that dam- showed notice of defective appliance to emages might be awarded therefor, held prejudi- ployer's foreman, instruction that notice to cial, where the verdict was only for $650, and agents or employés was notice to the employer the evidence showed a loss of three months' held not prejudicially erroneous.- Hough time, at a loss of $50 or $60 each month.-Main Spradlin Co. v. Moreland's Adm's, 169 Š. W. Jellico Mountain Coal Co. v. Young, 169 S. W. 467. 841.

$ 1066 (Ky.) Where defendant admitted that $ 1052 (Tex.Civ.App.). Defendant may not as- he knew plaintiffs claimed an interest in a timsign error on the admission of testimony, the ber contract between defendant and R., plainsubstance of which was otherwise given by an- tiffs were not prejudiced by an instruction that, other witness without objection.-International if defendant did not have such notice, then he Travelers' Ass'n v. Branum, 169 S. W. 389. might lawfully refuse to allow them to remove

$ 1054 (Tex.Civ.App.) The admission of evi- the timber in question.-Wood v. Nall, 169 S. dence, if error, was harmless, where appellant W. 569. proved substantially the same fact by its own § 1066 (Ky.) In a servant's action for injury witnesses, where the case was tried before the the predication of a recovery on the consideracourt, and such evidence was not necessary to tion of his inexperience and age held not preju. support the judgment.-Halff Co. v. Jones, 169 dicial as assuming that he was inexperienced S. W. 906.

and under age, when those facts were proven § 1056 (Tex.Civ.App.) Where cattle escaped and stood undenied. - Pine Mountain Mfg. Co. from cars by the carrier's negligence in failing v. Bishop, 169 S. W. 1010. to furnish proper cars and to securely fasten $ 1066 (Tex.Civ.App.) In an action to cancel tliem, the carrier was not prejudiced by the a deed on the ground of defendant's fraud, court's exclusion of a provision of the shipping charge on what constitutes a fraudulent reprecontract requiring the shipper to examine the sentation, if error, held harmless.-Paschal v. cars and fastenings.-Gulf, C. & S. F. Ry. Co. Hudson, 169 S. W. 911. v. Boger, 169 S. W. 1093.

$ 1067 (Ky.) Failure to specifically charge § 1058 (Ky.). In an action for alienating the that if explosion of stationary boiler which killed affections of plaintiff's wife, exclusion of a let- an employé was caused by an insufficient supply ter by her to her mother, charging mistreat- of water, due to his negligence, there could be ment so intolerable that she intended to leave no recovery held not prejudicial, in view of the him, was not harmless, because defendant was evidence and the instruction given as to conpermitted to testify to substantially the same tributory negligence.-Hough & Spradlin Co. v. statements by her to him.-Willey y. Howell, | Moreland's Adm'x, 169 S. W. 467. 169 S. W. 519.

§ 1068 (Ark.) In action for penalty for re$ 1058 (Tex.Civ.App.) Error in excluding cer- fusal of telegraph company's agent to transmit tain evidence is cured where the facts sought to message to his superior complaining of his conbe proved are otherwise shown before the end duct, difference in instructions given and reof the trial.-La Grange & Lockhart Compress fused as to subsequent offer to transmit the mes. Co. v. Hart, 169 S. W. 373.

sage held not so material as to require reversal 8 1060 (Mo.) Where a verdict for plaintiff of a judgment for plaintiff, in view of the jury's would have resulted in any event, improper ar- belief of plaintiff's testimony as to the refusal, gument of plaintiff's counsel is not reversible which was radically different from that of the


agent.-Western Union Telegraph Co. v. Frank- 1 to adjudge to the successful party the undivided lin, 169 S. W. 234.

four-fifths of the land without making any ad$ 1068 (Ky.) Though action for $2,000 for judication as to the other one-fifth-Chilton v. services was originally by husband and wife, and Nickey, 169 S. W. 978. he abandoned it, the instruction, authorizing a finding for her for $2,000 was harmless, the

(D) Reversal. verdict being for only $750, and the value of 8 1166 (Tex.Civ.App.) Upon appeal from his services being slight, compared with hers.- judgment of the county court, which was withMoore's Adm'r v. Pierce, 169 S. W. 620. out jurisdiction, the appeal will not be dismiss

$ 1071 (Tex.Civ.App.) In an action for dam- ed, but the cause will be reversed and remanded ages for refusal to redeliver a shipment of goods, to enable that_tribunal to dismiss the action.a finding that the shipper would have surren- Ft. Worth & R. G. Ry, Co. v. Mathews, 169 S. dered the bill of lading had the shipment been W. 1052. halted held harmless error, even if not support- $ 1170 (Ky.) In view of Civ. Code Prac. $ ed by the evidence, where tender of the bill of 134, requiring the disregarding of nonprejudicial lading was immaterial to recovery.-- Texas Mid-errors, the failure of the court, in an action on land R. R. v. Hargrove, 169 S. W. 925.

a fire policy which included a barn and tobacco, $ 1071 (Tex.Civ.App.) The court's immaterial to limit recovery for loss of tobacco to the findings of fact constituted no reversible error. amount specified in the policy, held harmless. -Missouri, K. & T. Ry. Co. of Texas v. Inter--Henry Clay Fire Ins. Co. v. Barkley, 169 S. state Chemical Co., 169 S. W. 1120.

W. 747. § 1073 (Ky.) That judgment on counterclaim $ 1170 (Tex.Civ. App.) Courts of Civil Appeals was entered, so as to make sureties as well as rule 62a (149 S. W. x) having the effect of the principal defendant parties to the recovery, abolishing presumption of injury from error, held not to affect its validity, or give cause for any error in overruling an exception to a genits reversal on an appeal by plaintiffs.-Gardner eral allegation of negligence, no injury thereV. Alexander, 169 S. W. 486.

from being apparent, is not ground for reversal. $ 1073 (Tex. Civ.App.) In a servant's action Trinity & B. V. Ry. Co. v. Geary, 169 S. W. for personal injury, held, that the fact that judg

201. ment was not rendered for all of the amount $1171 (Ky.) A verdict for $1,600 in an action found by the jury against defendant did not in- on a fire policy will not be reversed for an erjure the defendant.-Texas Bldg. Co. y. Reed, ror which amounted to only $16.--Henry Clay 169 S. W. 211.

Fire Ins. Co. v. Barkley, 169 S. W. 747. $ 1073 (Tex.Civ. App.) Where an insurance as- $1173 (Tex.Civ.App.) In replevin against two sociation's by-law provided for payment of death defendants, one of whom counterclaimed for losses in installments at the association's option, breach of contract, a judgment for both will be the first payable 90 days after proof of loss, and reversed and remanded when an improper issue more than 90 days had expired pending appeal on the counterclaim was submitted and the from a judgment, it was not material that the rights of the parties to the goods replevined dejudgment authorizing payment in installments pended upon the determination of the issue was conditional on defendant's failure to appeal. raised by the counterclaim.-Gordon v. Ratliff,

- International Travelers' Ass'n v. Branum, 169 169 S. W. 372. S. W. 389.

(F) Mandate and Proceedings in Lower (K) Sabsequent Appeals.

Court. $ 1097 (Mo.) Defendants, not having object: proceed in accordance with the opinion did not

$ 1201 (Mo.) A reversal with directions to ed, on retrial after reversal, to an amendment limit the court to mere entry of judgment, or raising additional issues, cannot claim on a sub-preclude it from allowing an amendment of the sequent appeal that the judgment on the prior pleadings.-Wilçox v. Phillips, 169 S. W. 55. appeal was res judicata.-Wilcox v. Phillips, 169 S. W. 55.

$ 1203 (Ky.) Where a former judgment had Where, by inadvertence, a former appeal broke been reversed on plaintiff's appeal with direcon a proposition which, when more fully con- tions to ascertain the correct amount due, the sidered on a subsequent appeal, needed modifica | lower court on retrial may find for a lesser out reference to the conclusiveness of the prior Southern Nat. Life Ins. Co., 169 S. W. 874. tion, the court will make such modification with amount than the former judgment, even though

no cross-appeal was taken therefrom.-Ford v. decision.-Id.

$ 1099 (Tex.Civ.App.) The holding on appeal that a general allegation of negligence in the XVIII. LIABILITIES ON BONDS AND

UNDERTAKINGS. petition is permissible is the law of the case on a subsequent appeal.-Trinity & B. V. Ry. 8 1236 (Ark.) On motion to quash execution Co. v. Geary, 169 S. W. 201.

on judgment of Supreme Court against sureties

on supersedeas bond and indorsers of drafts on XVII. DETERMINATION AND DISPO- insurance company for a loss, Supreme Court SITION OF CAUSE.

held to have no jurisdiction to adjust the equi(A) Decision in General.

ties between the moving parties and a surety

on the company's bond given to authorize it to $ !116 (Ky.) The Court of Appeals has juris, do business, claiming to have paid the judgment diction to order a permanent injunction by final and to have taken an assignment instead of judgment in the action -Saunders v. City of satisfying it.-American Ins. Co. v. McGehee Flemingsburg, 169 S. W. 575.

Liquor Co., 169 S. W. 251, (C) Modification. 81149 (Ark.) An equity case being heard de

APPLIANCES. novo on appeal, a clerical error, whereby an in. See Master and Servant, $f 101-129, 219, 286. sufficient judgment was rendered for plaintif against one of the defendants, will be corrected. - Baxter County Bank v. Copeland, 169 S. W.


See Guardian and Ward, 88 11, 35; Officers, $8 $ 1152 (Mo.) Where the evidence clearly showed that one-fifth of the land belonged to

APPRAISAL. heirs not made parties, a judgment awarding the land to one of the parties must be modified so as . See Execution, $ 226. For cases in Dec. Dig. & Am. Dig: Key No. Series & Indexes see same topic and section (8) NUMBER

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