Page images
PDF
EPUB

to show any exceptions.-Kentucky Traction & Terminal Co. v. Peel, 169 S. W. 689.

$501 (Tex.Civ.App.) Under Rev. St. 1911, art. 2061, as amended by Acts 33d Leg., c. 59, the appellate court will not review the refusal to instruct, where the record contains no bill of exception showing that the refusal was duly excepted to.-Crow v. Childress, 169 S. W. 927.

501 (Tex.Civ.App.) Assignments of error as to the instructions will not be considered, where no bill of exceptions was taken to the charges. Texas & P. Ry. Co. v. Beaird, 169 S. W. 1050; Same v. Moody, Id. 1057; Same v. Hubbard,

Id. 1058.

[blocks in formation]

8624 (Ky.) Under Court of Appeals rule 12 (154 S. W. viii) and established practice, a motion for an extension of time to file a transcript on appeal, entered during a vacation of the court, will be treated as made in court on that day. Creech v. Brock, 169 S. W. 483.

A clerk's certificate that a transcript could have been procured within the 30 days prescribed by Ky. St. § 1596a, subsec. 12, was not evidence of the fact, in resistance of a motion to extend the time for filing a transcript on appeal.-Id.

On an application for an extension of time to file the transcript on appeal, evidence of the clerk, in resistance, that the transcript could have been procured within the time fixed by law, should have been presented by affidavit.

-Id.

On appeal from a judgment in an election contest, the Court of Appeals has jurisdiction to extend the time specified by Ky. St. § 1596a, subsec. 12, for filing the transcript, for cause.-Id.

A motion to extend the time for filing a transcript on appeal in an election contest, based only on an affidavit that appellant believed a transcript could not be obtained within the time, and that the record would amount to over 1,400 pages, in the absence of any proof of diligence, would be denied.-Id.

Where, on an appeal in an election contest, it appears that the transcript cannot be completed within the prescribed 30 days, appellant should file so much of the transcript as can be completed within the time, in connection with a motion to extend the time for completion.-Id.

(I) Defects, Objections, Amendment, and Correction.

§ 644 (Tex. Civ.App.) Under rules 40 and 41 for Courts of Civil Appeals (142 S. W. xiv), held that, where a party did not object, in his brief or before motion for rehearing, that there were no bills of exception in the record to the action of the court complained of in the assignments, he would be deemed to have waived such objection.-Southern Gas & Gasoline Engine Co. v. Adams & Peters, 169 S. W. 1143.

§ 653 (Ark.) The Supreme Court has no authority to require a circuit court stenographer to file a transcript of the testimony in order

that it may be incorporated in a bill of exceptions, and such relief must be sought in the circuit court.-Dent v. People's Bank of Imboden, 169 S. W. 821.

Where stenographer's notes and transcript had been lost and could not be incorporated in skeleton bill of exceptions authorized by Sp. Acts 1911, p. 927, and the time for preparing a bill containing appellant's recital of the testimony had expired, held that relief could not be granted, except possibly by a suit in equity for a new trial.-Id.

issue to bring up original records to the Court § 659 (Ky.) A subpoena duces tecum will not of Appeals, unless they are so bulky that copy ing them would cause great expense and delay, or it is important that the court inspect the originals to arrive at a correct decision.-Smith v. Berry, 169 S. W. 478.

(K) Questions Presented for Review. § 692 (Ky.) Errors in rulings on testimony cannot be reviewed, where the transcript fails to show any statement as to what a witness would have testified, where he was not permitted to answer.-Kentucky Traction & Terminal Co. v. Peel, 169 S. W. 689.

§ 692 (Tex.Civ.App.) A bill of exceptions to the exclusion of evidence must show, what the witness would have testified if permitted to do SO.- -Woods v. Eberling, 169 S. W. 932.

a

§ 706 (Ky.) Where judgment on second trial was rendered against plaintiff upon a directed verdict, and plaintiff appealed only from such judgment, and the record of the first trial was not complete, the setting aside of the first verdict for plaintiff cannot be reviewed.-Dotson v. Delorme Lumber Co., 169 S. W. 503.

(L) Matters Not Apparent of Record. $715 (Ark.) Where, in a suit to set aside a mortgage, the chancellor heard oral testimony, which was not brought into the record, it could not be considered on appeal.-Tedford v. Chick, 169 S. W. 769.

§715 (Ky.) Alleged prejudicial remarks of counsel should be authenticated in the bill of exceptions by the lower court, before the Court of. Appeals can consider whether they were prejudicial, and cannot be considered when presented the bill of exceptions.-Pine Mountain Mfg. Co. V. Bishop, 169 S. W. 1010.

only by affidavits of counsel not mentioned in

XI. ASSIGNMENT OF ERRORS.

§ 719 (Tex.Civ.App.) The action of the trial court in directing a verdict is an error apparent upon the face of the record, which the appellate court will consider as fundamental error, without an assignment of error.-Owens v. Corsicana Petroleum Co., 169 S. W. 192.

§ 742 (Tex. Civ.App.) Though the assignment raising the question that the judgment below was not final, and hence not appealable, because it did not dispose of all the issues raised, was not properly briefed, the question will be disposed of, being a jurisdictional one.-Bryant v. Moore, 169 S. W. 395.

§ 742 (Tex.Civ.App.) The refusal to submit a particular defense could not be held erroneous on appeal, where there was no statement from the record, following defendant's assignment of error, indicating that there was any testimony to support such defense.-Houston & T. C. Ry. Co. v. Meadors, 169 S. W. 1106.

§ 742 (Tex.Civ.App.) Assignments of error, grouped and presented together, but raising different questions, do not require consideration.Davis v. Collins, 169 S. W. 1128.

8751 (Tex.Civ.App.) Grounds of objection to evidence stated in the assignments of error other than those alleged in the bills of exception, will not be reviewed.-Sanford v. John Finnigan Co., 169 S. W. 624.

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

[blocks in formation]

$784 (Ky.) That bill of exceptions on plaintiff's appeal was filed after death of one of the defendants, and without revivor, held not grounded for dismissal, as the appeal might be heard as though there had been no attempt to file a bill of exceptions.-Gish Banking Co. v. Leachman's Adm'r, 169 S. W. 481.

8793 (Ky.) Where appellee has filed the transcript under Civ. Code Prac. § 741, the appeal will not be dismissed without prejudice on the motion of the appellant, especially where it is a second appeal.-Doherty v. First Nat. Bank, 169 S. W. 493.

XVI. REVIEW.

(A) Scope and Extent in General.

§ 842 (Mo.) In an action for injuries to a railroad engineer, where the defense was his disobedience of certain rules, and the rules and their construction by the custom of the employés were in evidence, the question as to what the rules required of the engineers was for the jury, and their determination thereon will not be disturbed on appeal.-Finnegan v. Missouri Pac. Ry. Co., 169 S. W. 969.

$ 842 (Mo.) Where in a suit to quiet title plaintiff stood on a legal title, and defendant claimed under the statute of limitations, and there was evidence in support of the issue, the verdict is conclusive on appeal.-Chilton v. Nickey, 169 S. W. 978.

[blocks in formation]

(C) Parties Entitled to Allege Error.

§ 877 (Tenn.) Under Shannon's Code, 8g 4887, 4891, in proceeding for decree against sheriff, held, that sheriff was properly allowed a broad appeal, so as to bring up the whole decree for review, though the surety did not appeal.-State v. Bolt, 169 S. W. 761.

§ 877 (Tex.Civ.App.) In trespass to try title. where each of the plaintiffs was entitled to 160 acres out of the larger survey, the fact that the land awarded to them jointly was less than 320 acres, and was located with due regard to the defendants' right to an equitable partition, in no way injured defendants, and hence they could not complain of a judgment on that ground.-Davis v. Collins, 169 S. W. 1128.

(E) Presumptions.

§ 907 (Tex.Civ.App.) A bill of exceptions, by which appellant complained that the court failto prepare and read its charge to the jury before argument as required by statute, held not defective in failing to show that appellant did not waive the provisions of the statute.-International & G. N. Ry. Co. v. Parke, 169 S. W. 397.

§ 909 (Mo.) On appeal from judgment for plaintiff in an action for injuries received by railroad engineer, the Supreme Court will presume that a rule of general application was observed by the engineer.-Finnegan v. Missouri Pac. Ry. Co., 169 S. W. 969.

8931 (Tex.Civ.App.) Where there was no complaint of the refusal of the court to submit an issue, and the judgment for defendant was supported by the evidence, the presumption was that the court properly found on that issue.— Paschal v. Hudson, 169 S. W. 911.

(F) Discretion of Lower Court. $954 (Tex.Civ.App.) Exercise of trial court's discretion in denying injunctive relief, while reviewable on appeal, will be upheld unless some abuse of discretion is shown.-Wells Fargo & Co. v. Guilheim, 169 S. W. 1053.

§ 961 (Tex.Civ.App.) Denial of a motion to suppress a deposition will not be reversed on appeal, in the absence of a showing of abuse of discretion. Missouri, O. & G. Ry. Co. of Texas v. Love, 169 S. W. 922.

965 (Ky.) The refusal of a change of venue will not be disturbed, unless an abuse of discretion appears.-Louisville & N. R. Co. v. Nethery, 169 S. W. 883.

§ 977 (Ky.) The discretion of the trial court in granting a new trial will not be disturbed unless abused.-McLemore V. Evansville &

Bowling Green Packet Co., 169 S. W. 1006.

The grant of a new trial after a verdict for plaintiff, on the ground that substantial justice had not been done, will not be disturbed.-Id.

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

§ 999 (Ky.) It is for the jury to pass upoň the weight and sufficiency of the evidence as a whole and accept that of the plaintiff rather than that of the defendant as the truth of the matter.-Kentucky & T. Ry. Co. v. West, 169 S. W. 728.

$ 1001 (Ark.) The court, in testing the lesustain a verdict in her favor, must give that gal sufficiency of the evidence of plaintiff to evidence the highest probative value.-Weber v. Weber, 169 S. W. 318.

§ 1001 (Ky.) That the evidence is conflicting, or that the Court of Appeals would have made a different finding, or that in its opinion the verdict is against the weight of the evidence, furnishes no cause for setting it aside, unless it is clearly against the evidence.-Interstate Coal Co. v. Shelton, 169 S. W. 546.

§ 882 (Ky.) Defendant was estopped to object to expert testimony, called to contradict 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.

640.

§ 1002. A verdict on conflicting evidence will not be disturbed.

-(Ky.) Stewart & Whitesides v. Mackin, 169
S. W. 469; Chesapeake & O. Ry. Co .v.
Kelly's Adm'x, Id. 736; East Tennessee
Telephone Co. v. Jeffries, Id. 825;
(Tex. Civ. App.) Copeland v. Porter, 169 S.
W. 915.

§ 1003 (Mo.) The weight to be given the evidence for plaintiff was foreclosed by the jury's verdict for plaintiff.-Rutledge v. Swinney, 169 S. W. 17.

§ 1004 (Ark.) Where, in an action for personal injuries to a child, the testimony of plaintiff, if believed, justified the damages awarded, the court will not disturb the award on the ground that there was contradictory evidence minimizing the injuries. St. Louis South Western Ry. Co. v. Overton, 169 S. W. 364.

§1004 (Ky.) Although a verdict may seem out of proportion to an injury received, it will not afford cause for reversal, unless it exceeds reason or appears to have been the result of passion' or prejudice.-Kentucky & T. Ry. Co. v. West, 169 S. W. 728.

1004 (Ky.) In an action for injuries to animals in transportation, the evidence as to damage being conflicting, a verdict for $200 will not be set aside as inadequate.-Robinson v. Louis'ville & N. R. Co., 169 S. W. 831.

§ 1004 (Mo.) Improper argument of counsel for plaintiff in a personal injury action will be considered in determining the question of excessive damages.-Ostertag v. Union Pac. R. Co., 169 S. W. 1.

81004 (Tex.Civ.App.) The evidence as to the character and permanency of plaintiff's injuries being conflicting and sufficient to justify the conclusion that they were serious and permanent, a verdict for $5,000 would not be set aside on appeal as excessive.-Missouri, O. & G. Ry. Co. af Texas v. Love, 169 S. W. 922.

§ 1008 (Ark.) Where a case was tried before a court sitting as a jury, its findings of fact are as binding as a verdict.-Rush v. Citizens'

Nat. Bank, 169 S. W. 777.

§ 1009 (Ark.) The finding of a chancellor on an issue of fact will not be disturbed unless against the clear preponderance of the evidence. -Delolme v. State Savings Bank of Springfield, Mo., 169 S. W. 229; Stogsdill v. Holmes, Id. 961.

§ 1009 (Ky.) Judgment in ejectment held to be affirmed, where it could not be said with reasonable certainty that the chancellor's findings as to abandonment or rescission of a champertous contract and as to adverse possession were erroneous.-Meade v. Ratliff, 169 S. W. 729.

§ 1009 (Ky.) A finding of the chancellor will not be disturbed, where, on the whole record, the truth is doubtful.-Robinson-Pettit Co. v. Sapp, 169 S. W. 869.

1012 (Ky.) The finding of the chancellor will not be disturbed, unless palpably against the weight of evidence.-Dotson v. Norman, 169

S. W. 527.

§ 1022 (Tenn.) The Supreme Court is not bound by concurrent finding of the master and the chancellor on questions of fact which should not have been referred to the master.-State v. Bolt, 169 S. W. 761.

(H) Harmless Error.

§ 1026 (Ark.) The error of the state court in assuming jurisdiction to administer the assets of an insolvent, under a general assignment, is not prejudicial, where there was nothing to show that the assignment was made for the purpose of hindering, delaying, or defrauding the insolvent's creditors.-Baxter County Bank v. Copeland, 169 S. W. 1180.

§1033 (Ky.) Defendants cannot complain that an instruction required the jury to believe more than was necessary to find for plaintiff, or that they were required to pass on admitted facts.-Coleman v. Freeman, 169 S. W. 523.

§ 1033 (Ky.) In a personal injury action by a servant, the giving of an instruction which imposed upon the servant a greater degree of care than that imposed by the law is not prejudicial to the master.-Fluhart Colleries Co. v. Meeks, 169 S. W. 686.

$1036 (Ky.) Where plaintiffs assigned their interest in a recovery pendente lite, and their assignee was joined, defendant was not prejudiced by the subsequent prosecution of the action in the joint names of plaintiffs and their assignee.-Smith v. Chapman, 169 S. W. 834.

§ 1040 (Ky.) The error in overruling a demurrer to a plea of limitations filed to an amended petition was not prejudicial, where the uncontradicted proof showed contributory negligence, defeating recovery.-Williamson's Adm'r v. Norfolk & W. R. Co., 169 S. W. 613.

§ 1040 (Tex.Civ.App.) The facts alleged in the petition being specifically answered by defendant, any error in overruling an exception to the petition as not complying with Rev. St. 1911, art. 1827, as amended by Acts 33d Leg. c. 127, requiring a petition to plead by separate paragraphs, consecutively numbered, each fact going to make up the cause of action and other allegations, was harmless.-Southwestern Telegraph & Telephone Co. v. Andrews, 169 S. W. 218.

§ 1040 (Tex.Civ.App.) Refusal to sustain a special exception to a portion of plaintiff's original petition seeking damages for particular expenses held harmless, where the verdict showed that none of such items were included.-Houston & T. C. Ry. Co. v. Meadors, 169 S. W. 1106.

$1040 (Tex.Civ.App.) In action for wrongful attachment, assignment of error complaining of overruling of exception to allegations intended as a basis for exemplary damages held without merit, where no exemplary damages were recovered.-Brady-Neely Grocer Co. v. De Foe, 169 S. W. 1135.

In action for wrongful attachment, error, if any, in overruling exceptions to allegations that judgment in the attachment action was rendered on a debt not due held cured by instruction that the former judgment was res judicata of that issue.-Id.

1041 (Ky.) Though the petition alleges an express contract, and the proof is of an implied one, there was no necessity of amendment, the answer admitting an express contract, but disputing value of services.-Moore's Adm'r v. Pierce, 169 S. W. 620.

§ 1044 (Tenn.) Reference to master of question as to fact which defendant admitted held harmless, except in so far as it involved an increase of costs.-State v. Bolt, 169 S. W. 761.

injury resulted from a defective wire cable, a
§ 1048 (Ky.) Where plaintiff claimed that his
question to the master's cable boss whether
there were any defects apparent to him, which
was answered in the negative, though perhaps
objectionable as leading, was not reversible er-
ror.-Hall v. Mengel Box Co., 169 S. W. 985.
§ 1050 (Ark.) In an action for injuries from
explosion of dynamite used in removing piling
of railroad bridge where drainage ditch was to
cross right of way, admission of evidence as to
promise of engineer, not authorized to make
such agreement, that the railroad company
would remove the piling, held harmless, if er-
roneous, where there was evidence that the
railroad bridge and wrecking crew, under the
superintendence of the bridge and building de-
partment, was actually engaged in removing the
piling.-St. Louis, I. M. & S. R. Co. v. Wash-
ington, 169 S. W. 770.

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

§ 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.

$1050 (Ky.) Admission in an action against an administrator for services to deceased of testimony of plaintiff and her husband, incompetent under Civ. Code Prac. § 606, is harmless, it serving only to confirm defendant's theory of the contract, or going to a matter not in issue or seriously disputed.-Moore's Adm'r v. Pierce, 169 S. W. 620.

$1050 (Ky.) In an action against a carrier for loss of mules, plaintiff held not prejudiced by the admission of the opinion of a veterinary surgeon that the mules died from "natural causes.' -Robinson v. Louisville & N. R. Co., 169 S. W. 831.

[ocr errors]

§ 1050 (Ky.) In a personal injury action by a servant, testimony that the injured servant was a "little bit careless in some things" was so vague as not to be prejudicial to plaintiff.Hall v. Mengel Box Co., 169 S. W. 985.

§ 1050 (Tex.Civ.App.) Where a witness described without objection and swore to the contents of a check, its admission was not prejudicial to defendant.-Sanford v. John Finnigan Co., 169 S. W. 624.

§ 1050 (Tex.Civ.App.) Where plaintiff's hogs were injured by the failure of a carrier to perform its common-law duty to drench the hogs to prevent injury from overheating, the carrier was not prejudiced by evidence that plaintiff had directed the receiving agent to instruct conductors to see that the hogs were drenched when necessary.-Pecos & N. T. Ry. Co. v. Morrison, 169 S. W. 1098.

§ 1050 (Tex.Civ.App.) Any error, in the admission of immaterial evidence, was not reversible_error.-Missouri, K. & T. Ry. Co. of Texas v. Interstate Chemical Co., 169 S. W. 1120.

§ 1052 (Ky.) Erroneous admission of evidence as to lost time, and error in charging that damages might be awarded therefor, held prejudicial, where the verdict was only for $650, and the evidence showed a loss of three months' time, at a loss of $50 or $60 each month.-Main Jellico Mountain Coal Co. v. Young, 169 S. W. 841.

§ 1052 (Tex.Civ.App.) Defendant may not as sign error on the admission of testimony, the substance of which was otherwise given by another witness without objection.-International Travelers' Ass'n v. Branum, 169 S. W. 389.

§ 1054 (Tex.Civ.App.) The admission of evidence, if error, was harmless, where appellant proved substantially the same fact by its own witnesses, where the case was tried before the court, and such evidence was not necessary to support the judgment.-Halff Co. v. Jones, 169 S. W. 906.

§ 1056 (Tex.Civ.App.) Where cattle escaped from cars by the carrier's negligence in failing to furnish proper cars and to securely fasten them, the carrier was not prejudiced by the court's exclusion of a provision of the shipping contract requiring the shipper to examine the cars and fastenings.-Gulf, C. & S. F. Ry. Co. v. Boger, 169 S. W. 1093.

$ 1058 (Ky.) In an action for alienating the affections of plaintiff's wife, exclusion of a letter by her to her mother, charging mistreatment so intolerable that she intended to leave him, was not harmless, because defendant was permitted to testify to substantially the same statements by her to him.-Willey v. Howell, 169 S. W. 519.

§ 1058 (Tex.Civ.App.) Error in excluding certain evidence is cured where the facts sought to be proved are otherwise shown before the end of the trial. La Grange & Lockhart Compress Co. v. Hart, 169 S. W. 373.

§ 1060 (Mo.) Where a verdict for plaintiff would have resulted in any event, improper argument of plaintiff's counsel is not reversible

§ 1060 (Tex.Civ.App.) In an action for death at a crossing argument of plaintiff's attorney that the other facts in connection with a standing train shutting off the engineer's view amounted almost to criminal negligence held not to require a reversal, though any issue as to such standing train was not submitted to the jury.-Texas & P. Ry. Co. v. Moody, 169 S. W. 1057.

$ 1062 (Ky.) Where the question of title was one of law, submitting it to the jury could not be complained of; verdict being for the right party. Likens v. Pate, 169 S. W. 734.

$1062 (Mo.) Error in submitting plaintiff's contributory negligence to the jury, though not pleaded, is not reversible, where the court finds from the whole evidence that plaintiff was negligent as a matter of law.-Boesel v. Wells Fargo & Co., 169 S. W. 110.

§ 1064 (Mo.) The erroneous admission of evidence of a rule of a railroad company requiring two short whistles in answer to any signal not otherwise provided for is harmless, where the instructions did not submit to the jury any fact involving that rule.-Ostertag v. Union Pac. R. Co., 169 S. W. 1.

§ 1066 (Ark.) Though instructions submitting, issues whether a corporation had authorized its agents to negotiate the transaction relied on by plaintiff or whether the corporation had ratified unauthorized acts of its agents were proper, the error in an instruction authorizing a finding that the agents of the corporation were general agents so as to bind the corporation by their wrongful acts, arising from the fact that there was no evidence justifying it required the setting aside of a judgment for plaintiff.-Capital Security Co. v. Gray, 169 S. W. 244.

[blocks in formation]

§ 1066 (Ky.) Where defendant admitted that he knew plaintiffs claimed an interest in a timber contract between defendant and R., plaintiffs were not prejudiced by an instruction that, if defendant did not have such notice, then he might lawfully refuse to allow them to remove the timber in question.-Wood v. Nall, 169 S. W. 569.

§ 1066 (Ky.) In a servant's action for injury the predication of a recovery on the consideration of his inexperience and age held not prejudicial as assuming that he was inexperienced and under age, when those facts were proven and stood undenied.-Pine Mountain Mfg. Co. v. Bishop, 169 S. W. 1010.

§ 1066 (Tex. Civ.App.) In an action to cancel a deed on the ground of defendant's fraud, charge on what constitutes a fraudulent representation, if error, held harmless.-Paschal v. Hudson, 169 S. W. 911.

§ 1067 (Ky.) Failure to specifically charge that if explosion of stationary boiler which killed an employé was caused by an insufficient supply of water, due to his negligence, there could be no recovery held not prejudicial, in view of the evidence and the instruction given as to contributory negligence.-Hough & Spradlin Co. v. Moreland's Adm'x, 169 S. W. 467.

§ 1068 (Ark.) In action for penalty for refusal of telegraph company's agent to transmit message to his superior complaining of his conduct, difference in instructions given and refused as to subsequent offer to transmit the message held not so material as to require reversal of a judgment for plaintiff, in view of the jury's belief of plaintiff's testimony as to the refusal, which was radically different from that of the

agent.-Western Union Telegraph Co. v. Franklin, 169 S. W. 234.

§ 1068 (Ky.) Though action for $2,000 for services was originally by husband and wife, and he abandoned it, the instruction, authorizing a finding for her for $2,000 was harmless, the verdict being for only $750, and the value of his services being slight, compared with hers.Moore's Adm'r v. Pierce, 169 S. W. 620.

$1071 (Tex. Civ.App.) In an action for damages for refusal to redeliver a shipment of goods, a finding that the shipper would have surrendered the bill of lading had the shipment been halted held harmless error, even if not supported by the evidence, where tender of the bill of lading was immaterial to recovery.-Texas Midland R. R. v. Hargrove, 169 S. W. 925.

[blocks in formation]

$1170 (Ky.) In view of Civ. Code Prac. § 134, requiring the disregarding of nonprejudicial errors, the failure of the court, in an action on 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 was entered, so as to make sureties as well as the principal defendant parties to the recovery, held not to affect its validity, or give cause for its reversal on an appeal by plaintiffs.-Gardner v. Alexander, 169 S. W. 466.

§ 1073 (Tex.Civ.App.) In a servant's action for personal injury, held, that the fact that judg

ment was not rendered for all of the amount found by the jury against defendant did not injure the defendant.-Texas Bldg. Co. v. Reed,

169 S. W. 211.

$1073 (Tex.Civ.App.) Where an insurance association's by-law provided for payment of death losses in installments at the association's option, the first payable 90 days after proof of loss, and more than 90 days had expired pending appeal from a judgment, it was not material that the judgment authorizing payment in installments was conditional on defendant's failure to appeal. -International Travelers' Ass'n v. Branum, 169 S. W. 389.

(K) Subsequent Appeals.

§ 1170 (Tex.Civ.App.) Courts of Civil Appeals rule 62a (149 S. W. x) having the effect of abolishing presumption of injury from error, any error in overruling an exception to a general allegation of negligence, no injury therefrom being apparent, is not ground for reversal. -Trinity & B. V. Ry. Co. v. Geary, 169 S. W. 201.

§ 1171 (Ky.) A verdict for $1,600 in an action on a fire policy will not be reversed for an error which amounted to only $16.-Henry Clay Fire Ins. Co. v. Barkley, 169 S. W. 747.

$1173 (Tex. Civ.App.) In replevin against two defendants, one of whom counterclaimed for breach of contract, a judgment for both will be reversed and remanded when an improper issue on the counterclaim was submitted and the rights of the parties to the goods replevined depended upon the determination of the issue raised by the counterclaim.-Gordon v. Ratliff, 169 S. W. 372.

(F) Mandate and Proceedings in Lower

Court.

§ 1201 (Mo.) A reversal with directions to limit the court to mere entry of judgment, or preclude it from allowing an amendment of the pleadings.-Wilcox v. Phillips, 169 S. W. 55.

§ 1097 (Mo.) Defendants, not having object-proceed in accordance with the opinion did not ed, on retrial after reversal, to an amendment raising additional issues, cannot claim on a subsequent appeal that the judgment on the prior appeal was res judicata.-Wilcox v. Phillips, 169 S. W. 55.

Where, by inadvertence, a former appeal broke on a proposition which, when more fully considered on a subsequent appeal, needed modification, the court will make such modification without reference to the conclusiveness of the prior

decision. Id.

§ 1099 (Tex.Civ.App.) The holding on appeal that a general allegation of negligence in the petition is permissible is the law of the case on a subsequent appeal.-Trinity & B. V. Ry. Co. v. Geary, 169 S. W. 201.

§ 1203 (Ky.) Where a former judgment had been reversed on plaintiff's appeal with directions to ascertain the correct amount due, the lower court on retrial may find for a lesser amount than the former judgment, even though Southern Nat. Life Ins. Co., 169 S. W. 874. no cross-appeal was taken therefrom.-Ford v.

[blocks in formation]

§ 1236 (Ark.) On motion to quash execution 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.

(A) Decision in General.

§ 1116 (Ky.) The Court of Appeals has jurisdiction to order a permanent injunction by final judgment in the action-Saunders v. City of Flemingsburg, 169 S. W. 575.

(C) Modification.

held to have no jurisdiction to adjust the equities between the moving parties and a surety on the company's bond given to authorize it to do business, claiming to have paid the judgment and to have taken an assignment instead of satisfying it.-American Ins. Co. v. McGehee Liquor Co., 169 S. W. 251,

APPLIANCES.

1149 (Ark.) An equity case being heard de novo on appeal, a clerical error, whereby an in- See Master and Servant, §§ 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. 1180.

APPOINTMENT.

See Guardian and Ward, §§ 11, 35; Officers, §§ 1, 4.

APPRAISAL.

$1152 (Mo.) Where the evidence clearly showed that one-fifth of the land belonged to 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 (§) NUMBER 169 S.W.-76

« PreviousContinue »