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INDEX.

ACTIONS.

1. Fraudulent Conveyance: Creditor's Bill: Exhausting Legal Remedies.
Where the judgment is a lien upon real estate fraudulently con-
veyed by the judgment debtor to hinder and delay his creditors,
the judgment creditor may maintain a suit in equity to set aside
such fraudulent conveyance and enforce the lien of his judgment
against such real estate, without first having execution issued and
such property sold thereunder. Nor is he compelled to have such
execution issued, and to have other property of the judgment
debtor sold thereunder before being entitled to maintain his suit
in equity to set aside such fraudulent conveyance. Dalton v.
Barron, 36.

2.

3.

4.

: Two Judgment Debtors. A judgment
creditor, having a judgment against two persons which is a lien
upon the real estate of one of such judgment debtors fraudulently
conveyed by him to hinder or delay his creditors, may maintain a
suit in equity to set aside such fraudulent conveyance and to en-
force his lien against such property so fraudulently conveyed, with-
out exhausting his legal remedies against the property of the other
judgment debtor. Ib.

:

:

: Appeal Bond. A judgment creditor, whose
judgment is a lien upon real estate of the judgment debtor fraudu-
lently conveyed to hinder or delay his creditors, cannot be com-
pelled to resort to an appeal bond to make his judgment, but may
maintain a suit in equity to set aside such fraudulent conveyance
and to enforce his lien against the property so fraudulently con-
veyed. Ib.

:

-: Pleading: Stating Cause of Action: Case
Adjudged. One of the defendants made a lease of certain real
estate to a Store Company for sixteen years at an agreed rental,
covenanting that she had good right, etc. The company entered
and expended large sums in improving the property. Thereafter
an action of ejectment was brought against the company by one
claiming a superior title, and the lessor at her request was ad-
mitted to defend on the ground that she was landlord, etc. The
suit, after three trials in the circuit court and three appeals to the
Supreme Court, resulted in a judgment for possession and damages
against both defendants. The company lessee on the last appeal
gave an appeal bond, upon which another of the defendants in
this suit was surety, and to secure the surety made a note and de-
posited collateral with a bank of which such surety was a large
owner. This surety was a lawyer and had represented the lessor
in some matters connected with the litigation and had full knowl
edge of all the facts involved. Just before the third trial in the
circuit court the lessor transferred to this lawyer and another all
her property, including that involved in this suit, to hinder and
delay her creditors and to prevent its being taken to pay any
judgment rendered against her in the ejectment suit. After the
affirmance of the last judgment in such ejectment suit, plaintiff,
a large stockholder of the Store Company, lessee, bought and took
293 Mo.]

(701)

ACTIONS--Continued.

an assignment of such judgment and, in order to save the col-
lateral put up by the company to secure the sureties on the appeal
bond, released the sureties on such bond, including the defendant
lawyer. Plaintiff then began this suit to set aside such fraudulent
transfer of her property by the lessor, setting up all the facts and
charging full knowledge by defendants of the fraudulent purposes
of the lessor and participation therein by them. Held, the petition
stated a good cause of action, and the demurrer to it was improp-
erly sustained. Dalton v. Barron, 36.

5. Workmen's Compensation Law: Non-Compliance by Employer:
Proof: Contributory Negligence. The Workmen's Compensation
Law of Oklahoma is penal in its nature and in derogation of the
common law, and before a workman engaged in loading stone on
to a car of an interstate railroad can escape the effects of his own
contributory negligence, which the said act declares shall not be
a defense, he must prove non-compliance by defendant with the
provisions of said act, and therefore that said act applied to de-
fendant; and proof that defendant in the operation of its quarry
had obtained permission from the State Industrial Commission to
carry its own risk, and that there were no other records on file
with the Commission as to defendant's course with respect to its
employees, is not sufficient proof of non-compliance, since the act
provides that one of the methods by which "an employer shall
secure compensation to his employees" shall be "by obtaining and
keeping in force guaranty insurance," and such showing is not
proof that defendant did not obtain and keep in force guaranty
insurance. Osagera v. Schaff, 333.

6.

7.

Right of Injured Party to Sue. Under the Workmen's
Compensation Law of Oklahoma, giving to an injured employee
compensation for personal injuries, the State Industrial Commis-
sion alone can prosecute the action against the employer, and the
injured employee cannot maintain the action in his own name,
either in Oklahoma or Missouri, since said act provides that "the
claim shall be prosecuted for the injured employee by the Com-
mission, without expense to such employee," and the Missouri
statute (Sec. 1162, R. S. 1919) says that a person to whom a cause
of action has accrued under the laws of another state may main-
tain an action in the courts of this State "provided such person
be authorized to bring such action by the laws of the state where
the cause of action accrued." Ib.

——: Failure to Give Notice. Since the Workmen's Compen-
sation Law of Oklahoma requires that "notice of an injury, for
which compensation is payable under this act, shall be given to
the Commission" and that "the failure to give such notice, unless
excused by the Commission, shall be a bar to any claim under this
act," a failure to give notice, unless excused, is fatal to a main-
tenance of an action for compensation. Ib.

ADMINISTRATION.

1. Sale to Pay Debts: Appellate Jurisdiction. The Supreme Court has
jurisdiction of an appeal from the judgment of the circuit court,
rendered on appeal from the probate court, holding void an order
of the probate court for the sale of decedent's real estate to pay
debts and legacies, inasmuch as such proceeding involves the title

ADMINISTRATION-Continued.

to real estate, which is directly affected by the judgment. Dildine
v. De Hart, 393.

2. Jurisdiction of Probate Courts. Probate courts have jurisdiction to
order the sale or leasing of the real estate of a decedent for the
payment of debts, upon being satisfied of the necessity therefor.
And until the order of the court, either to sell or lease such real
estate, the administrator or executor has no rights over it, as the
title to it, upon the death of the owner, passes to and vests di-
rectly in his heirs of devisees. Ib.

3. Circuit Courts: Partition. Circuit courts have jurisdiction to
order the partition, or sale for purposes of partition, of real estate
of a decedent, among his heirs or devisees, before the final settle-
ment of his estate in the probate court, subject to the final settle-
ment of such estate and the full discharge of all claims against the
same as provided in Section 2006, Revised Statutes 1919. Ib.

4.

-:

: Exclusive. After the filing in the circuit court of
a suit for the partition of the real estate of a decedent among his
heirs and devisees, pending the administration of his estate in
the probate court, the circuit court has exclusive jurisdiction over
said real estate and can order a sale thereof and distribution of
the proceeds, subject to the provisions of Section 2006, Revised
Statutes 1919, and the probate court, after the filing of such par-
tition suit, has no jurisdiction to entertain a petition for sale of
such real estate to pay debts or legacies. Ib.

5. Resulting Trust: Purchasing Land With Estate Funds. Where an
administrator of an estate purchased land at an execution sale
under a judgment in favor of the estate, with funds of the estate,
and took title thereto in his own name, he held the property in
trust for the estate and those entitled thereto. Stoff v. Schuetze,
635.

6. Witnesses: Party in Interest Competent: Declarations of Deceased
Person. An heir is a competent witness to testify to declarations
of an administrator who bought lands with estate funds and took
title in his own name, to the effect that he held such land for those
interested in the estate, notwithstanding such administrator was
dead at the time of the trial, as such declarations were in effect
admissions in disparagement of his title and were made while he
was in possession of the land, and were accordingly competent
against him and all claiming under him. Ib.

7. Limitations: Administrator as Trustee: Statute Does Not Apply.
The administrator being a trustee for the heirs of land bought with
estate funds, the Statute of Limitations did not apply to them,
particularly in view of the fact that during his life he advised
them not to bother about the land while he was living, warned
them against consulting lawyers, admonished them not to go to
court and assured them they would get what was coming to them
when he died, and they acquiesced and made no investigation
during his life. Ib.

8.

:

Notice to Distributees of Adverse Claim. Upon the
death of such administrator and the probate of his will. such bene-
ficiaries, having made an investigation and found that he had
taken title in his own name to land bought with estate funds and

ADMINISTRATION-Continued.

had devised his estate to his second wife, were thereby charged
with notice of his adverse claim, and the Statute of Limitations
began to run against them from that time. Stoff v. Schuetze, 635.
9. Final Settlement: Undistributed Assets on Hand: No Discharge.
Where the final settlement of an administrator showed a balance
due him from the estate, and also showed uncollected notes due the
estate exceeding the amount of such balance, and none of his
settlements accounted for or mentioned land bought with estate
funds but deeded to him, or the rents and profits therefrom, and
the final order of the probate court did not discharge him, but
merely provided that "he be no longer required to make annual
settlements," he still remained within the control and jurisdiction
of the court and was not released from liability for the undis-
tributed assets, and the distributees were entitled to a decree vest-
ing them with the title to such land. Ib.

APPEALS.

1. Action at Law: Demurrer to Plaintiff's Evidence. In pure law cases,
if defendant demurs at the close of plaintiff's case, and such de-
murrer is overruled and he then puts in his evidence, he will not
be precluded from urging in the Supreme Court that on the
whole evidence no case was made for plaintiff, although he may
not have filed a second demurrer to the evidence at the close of
the case.
By proceeding after demurrer is overruled, he only
takes the chance of aiding plaintiff's case, but loses no other right.
Pullen v. Hart, 61.

2.

:

-: Motion for New Trial. Where, at the close of the
evidence for plaintiff in a partition suit, defendant filed a de-
murrer to such evidence to the effect that defendant demurs to
the testimony offered on behalf of plaintiff and moves the court to
render judgment against plaintiff and in favor of defendant, the
question of error in the court's action in overruling such demurrer
is sufficiently raised by defendant's motion for new trial specifying
among other grounds therefor that the judgment and finding of
the court is (1) against the evidence and the weight of the evi-
dence, (2) is for the wrong party and is against the law and the
evidence and (3) because the plaintiff had no title to partition and
all the title is in defendant. Ib.

3. Criminal Law: Former Appeal: Identity of Questions Determined.
Where, on a second appeal in a criminal prosecution, it appears
from a comparison of the record with the record on the former
appeal, that the question determined on the former appeal was
whether defendant had been deceived or misled into entering a
plea of guilty, while the question on the second appeal is whether
a confession made by defendant was voluntary or involuntary, there
is no such identity of the questions involved as to render the de-
cision on the first appeal the law of the case on the second appeal.
State v. Meyer, 108.

4. Action at Law: Finding of Facts Binding. This suit to determine
title under Section 1970, Revised Statutes 1919, being an action at
law, tried by the court without the intervention of a jury, what-
ever conclusions of fact the trial court reached upon substantial
evidence are binding upon the Supreme Court on appeal. Mathis
v. Melton, 134.

APPEALS-Continued.

5. Motion for New Trial: Errors not Complained of. That the trial
court erred in refusing a requested instruction cannot be con-
sidered by the Supreme Court on appeal, where no complaint there-
of was made in the motion for a new trial. Friedman v. U. Rys.
Co., 235.

6. Reversal and Remandment with Directions: Enforcing Obedience
by Trial Court: Mandamus. Where an appellate court reverses the
judgment of a trial court and remands the cause with specific
directions as to the judgment to be entered by the trial court,
obedience to such directions can be enforced by mandamus from
the appellate court at the instance of the party in whose favor such
judgment was directed to be entered. State ex rel. Robertson v.
Kelly, 297.

7.

8.

: -: Second Appeal. In such case the party in whose
favor such judgment was directed to be entered may, at his elec-
tion, prosecute an appeal from the judgment entered by the trial
court in disobedience to such directions and thus secure a second
direction to the trial court, instead of resorting to mandamus.
[Meyer v. Goldsmith, 196 Mo. 1. c. 746, contra, disapproved.] Ib.

Power of Trial Court. Where an appellate court reverses
the judgment of a trial court and remands the cause with specific
directions as to the judgment to be entered, the trial court has no
power to enter any other judgment or to consider or determine
other matters not included in the duty of entering the judgment
as directed. Ib.

9. Trial Theory: Adopted on Appeal: Intrastate Commerce. Notwith-
standing plaintiff's petition alleged that defendant was engaged
in interstate railway business as a common carrier and that when
injured he was loading stone on one of its cars, yet if all the
parties, including the trial court, treated the particular engage-
ment of defendant at the time in question as being that of an intra-
state carrier, the case will on appeal be disposed of upon said
adopted trial theory. Osagera v. Schaff, 333.

10. Demurrer: No Exception: Nonsuit: Appellate Practice.

11.

Where the
court at the conclusion of the trial gave a demurrer offered by
defendant, and plaintiff saved no exception, but took an involun-
tary nonsuit with leave to move to set the same aside, no question
involving plaintiff's right to recover under the Workmen's Com-
pensation Law of Oklahoma for personal injuries is for considera-
tion in the appellate court. Ib.

: Nunc Pro Tunc Correction. Where plaintiff failed
to save an exception to the giving of a demurrer to his case, proof,
at a subsequent term, after the bill of exceptions was settled and
filed, that a failure to note an exception was a mere oversight by
the clerk who made the record entry and by the reporter who
made up the bill, and that it was the practice and custom of the
court to note an exception to every adverse ruling, was not suf-
ficient to authorize a nunc pro tunc entry to correct either the
record or the bill. The object of such an entry is to make the
record speak the truth, and to make it at a subsequent term some
memorandum, either from the judge's minutes, the clerk's entries
or some paper in the case, justifying it, must be produced. Ib.

293 Mo.-45

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