12. Assignments: Rule 15. An assignment of error under appellant's
points and authorities is a substantial compliance with Rule 15.
Osagera v. Schaff, 333.
13. Brief: Failure to Comply with Statute and Rule. Where the appel-
lant, in preparing his brief, fails to make out and furnish the
court with a clear and concise statement of the case and the points
intended to be insisted upon in argument, as required by Section
1511, Revised Statutes 1919, and Rule 15 of the Supreme Court,
the court is authorized to restrict its consideration of the case to
the record proper. Norwithstanding such failure in this case, the
court has given appellant's assignments of error such consideration
as will prevent its suffering vicariously. Evans v. Gen. Explosives
Co., 364.
14. Administration 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, hold-
ing 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 to real estate, which is directly affected by the
judgment. Dildine v. De Hart, 393.
15. Instructions: Objections: Motion for New Trial. Complaint of the
giving of instructions in a criminal prosecution, made for the first
time in a motion for new trial, comes too late, such instructions
having been given without objection or exception at the time.
State v. Reich, 415.
: Failure to Give: No Requests. Defendant in a criminal
prosecution cannot complain of the failure of the trial court to
give any specific instructions to the jury, or of its failure to sub-
mit to the jury, by appropriate instructions, his theory of the case,
where no requests for such instructions were made by him and
he did not, at the time, call the court's attention to any question
of law arising in the case upon which the court had failed to in-
struct, and did not except, at the time, to the court's failure to
give the instructions he deemed necessary. Ib.
17. Record: Transcript of Justice. The transcript of proceedings be-
fore the justice of the peace is no part of the record proper of the
circuit court, and if incorporated in the transcript of such record
may on motion be stricken out. State v. Langford, 436.
18. Referee's Report: Review by Appellate Court: Action at Law. In
an action at law, the findings of fact made up by a referee, when
approved and confirmed by the trial court, occupy the same status,
on appeal, as the verdict of a jury, and will not be disturbed if
supported by substantial evidence. Kline Cloak & Suit Co. v.
Morris, 478.
- Act of 1919: Application. The Act of 1919 (Laws
1919, page 213; now Sec. 1444, R. S. 1919), to the effect that on
appeals in all cases, whether at law or in equity, in which a
referee has been appointed and made a report, the appellate court
shall, on exceptions properly preserved, review the evidence and
the findings of fact and conclusions of law of the referee and the
trial court, and give such judgment as shall be conformable to the
law on the evidence, does not apply to a case wherein the appeal
was allowed and the transcript of the judgment and order grant-
ing the appeal was lodged in the appellate court before the effective
date of the act, which could not be earlier than August 7, 1919.
Ib.
: Unconstitutional. The above act (Laws
1919, p. 213) is unconstitutional. [Following State ex rel. v. Wil-
son, 288 Mo. 315, 232 S. W. 140.] Ib.
-: Conflicting Evidence: Accord and Satisfaction:
Omitted Stipulations. The referee's findings against defendants,
approved and confirmed by the trial court, and based on conflicting
substantial evidence, are conclusive on the appellate court on the
issues of accord and satisfaction, and of an alleged agreement be-
tween plaintiff and the contractor defendant as to a mistake in
omitting from his bid the costs of lumber and ornamental iron,
pleaded by defendants. Ib.
22. Moot Case: Purchase by a Plaintiff from Defendants. A court of
equity having once acquired jurisdiction will not release its hold
until it has done full justice to all the parties. Where one of the
plaintiffs, who appeared as trustee for minor children, after judg-
ment in the trial court dismissing the wife's bill in equity, sued
out a writ of error, and afterwards purchased the void deed of
trust and refused to release it-void because based on a deed by
the husband alone who was a tenant by the entirety, and on a
forged conveyance of the wife's interest-the wife's suit to remove
the void instruments as clouds upon the title has not become a
moot question, but said purchaser, although a nominal plaintiff,
will be considered as standing in the shoes of defendants and
asserting the same rights they did. Mahen v. Ruhr, 500.
23. Estoppel: Submitting Issue as One of Fact: Plaintiff Bound There-
by. There being a plea of estoppel, if plaintiff subinis the question
of estoppel as an issue of fact, to be determined from the evidence
offered, and makes no objection at the trial that there is no sub-
stantial evidence to prove estoppel and asks no instruction in the
nature of a demurrer to the evidence or direction of a verdict on
that issue, he cannot thereafter, on appeal, be heard to say that
estoppel was not an issue of fact to be determined on the evidence.
Creek v. Railroad, 541.
24. Appellate Practice: Death of Respondent: Revivor. This case hav-
ing been continued in the Supreme Court five times by stipulation
of counsel, and counsel for plaintiff having thereafter suggested
the death of the defendant against whom the relief was sought,
and thereafter counsel for such defendant having suggested that the
cause be revived against her legal representative and heirs, and
entered his appearance as counsel for such parties, but no formal
order of revivor having been made, the court now orders that the
cause be revived against such legal representative and heirs, and
the judgment is reversed and cause remanded to be proceeded with
in accordance with the opinion. Stoff v. Schuetze, 635.
25. Easement in Lands: Appellate Jurisdiction. As the judgment in
this case established an easement over land of plaintiffs other
than that mentioned in their deeds, such judgment affected the
title to real estate and the Supreme Court had jurisdiction of the
appeal therefrom. Davis v. Lea, 660.
26. Reference: Exceptions to Order For: Term Bill of Exceptions. In
order to have the action of the trial court in ordering a reference
in a cause, or in refusing to set aside such an order, reviewed by
the appellate court, the party complaining thereof must except to
such order and preserve his exceptions in a bill of exceptions
filed at the term at which such order was made, or under leave,
granted at such term, file the same at a later time. It is not suf-
ficient to embrace such exceptions in a general bill of exceptions,
filed under leave of court given at a subsequent term at which
judgment was entered and after the appeal was granted. Kline
Cloak & Suit Co. v. Morris, 478.
-: Statutory Relief. Laws 1911, page 139, now
Section 1460, Revised Statutes 1919, did not abolish the necessity
for term bills of exceptions to preserve for review exceptions to
the action of the trial court in respect to rulings not made during
the progress of the trial, inasmuch as that statute applies only to
exceptions taken during the progress of the trial. Ib.
: Record Entries. The fact that the record
entries on the records of the trial court, showing the action of
the court, ordering a reference and overruling the motion to set
aside such order, show that appellant excepted to such action of
the court, is not sufficient to preserve such exceptions for review,
as such entries are not part of the record proper, and can only be
made part of the record by proper and timely bill of exceptions.
Ib.
Referee: Jury Trial. In a suit on a building contractor's bond, it is too
late, after a referee's report has been filed, to move for a trial by
jury or to insist upon arbitration provided for in the contract.
Kline Cloak & Suit Co. v. Morris, 478.
ARGUMENT TO JURY. See Attorneys.
ATTORNEYS.
1. Improper Remarks of State's Attorneys. Where the State's attor-
neys made improper remarks in the presence of the jury, on a trial
for robbery in the first degree, and defendant's objections thereto
were promptly sustained and the attorneys were reprimanded and
the jury admonished not to consider such remarks in rendering
their verdict, there was no error. State v. Taylor, 210.
2. Argument to Jury: Opening and Closing: Time. The time to be
allowed for argument of a case to the jury, and also whether the
plaintiff is to be allowed to make a closing argument after having
made an opening argument and after argument had been waived
by defendant, are matters within the sound judicial discretion of
the trial court; and it is held that such discretion was not abused
in this case. Friedman v. U. Rys. Co., 235.
: Value of Money. In a suit, by a minor servant against his
master, for damages for personal injuries alleged to be due to the
master's negligence, where the injury consisted in plaintiff's right
arm being entirely torn from his body at the shoulder, it was not
prejudicial error for his counsel in arguing the case to the jury
to say, "Gentlemen of the jury, there was a time when juries in
cases of this kind would bring in a verdict for plaintiff for from
eight to ten thousand dollars, but the purchasing power of the
dollar is only one-half now what it was then," inasmuch as such
remarks could not have misled or improperly influenced the jury,
and it was evident that counsel's comparison was based on his own
knowledge and was made by way of illustration and could not have
Evans v. Gen. Explosives Co., 364.
been otherwise understood.
-: In Criminal Case. Defendant, in a prosecution for robbery
in the first degree, was not injured by the trial court's telling the
jury to follow the evidence in the case, where such statement was
made in response to a colloquy between counsel for the State and
counsel for defendant wherein the former, in his argument to the
jury, censured the latter for assailing the integrity of a witness
for the State and the latter denied the charge. State v. Reich, 415.
BENEFIT ASSESSMENTS. See Cities, 1 to 4, 8, 17 to 19, and Taxes
and Taxation, 18 and 19.
1. Involuntary Non-Suit: No Exception: Nunc Pro Tunc Correction.
Where plaintiff failed to save an exception to the giving of a de-
murrer 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 rul-
ing, was not sufficient 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. Osagera v. Schaff, 333.
2. Reference: Exceptions to Order For: Term Bill.
the action of the trial court in ordering a reference in a cause, or
in refusing to set aside such an order, reviewed by the appellate
court, the party complaining thereof must except to such order and
preserve his exceptions in a bill of exceptions filed at the term at
which such order was made, or under leave, granted at such term,
It is not sufficient to embrace such
file the same at a later time.
exceptions in a general bill of exceptions, filed under leave of court
given at a subsequent term at which judgment was entered and
after the appeal was granted. Kline Cloak & Suit Co. v. Morris,
478.
: Statutory Relief.
now Section 1460, Revised Statutes 1919, did not abolish the ne-
cessity for term bills of exceptions to preserve for review excep-
tions to the action of the trial court in respect to rulings not
made during the progress of the trial, inasmuch as that statute
applies only to exceptions taken during the progress of the trial.
Ib.
: Record Entries. The fact that the record
entries on the records of the trial court, showing the action of the
court, ordering a reference and overruling the motion to set aside
BILL OF EXCEPTIONS-Continued.
such order, show that appellant excepted to such action of the
court, is not sufficient to preserve such exceptions for review, as
such entries are not part of the record proper, and can only be
made part of the record by proper and timely bill of exceptions.
Kline Cloak & Suit Co. v. Morris, 478.
1. Kansas City Charter: Condemnation: Benefit Assessments: Redemp-
tion of Lands Sold for. Lands, sold under special execution issued
on a judgment assessing benefits in a condemnation proceeding
under Article 6 of the Kansas City Charter 1908, may be redeeried
within one year from such sale, in accordance with the provisions
of Article 8 of such charter, applicable to redemption from sales
under special execution on judgments enforcing special tax bills
issued for public improvements. Land & Sec. Co. v. Standard Inv.
Co., 120.
Tax Sales: Redemption: What Must be Paid. One secking
to redeem lands sold for general city taxes under Article 5 of
the Kansas City Charter 1908, is not required to pay special tax
bills for grading, paid by the purchaser at the tax sale, where the
lien of such tax bills had expired, as provided in said charter, at
the time they were paid by such purchaser. Ib.
: Equitable Considerations.
much as the legal remedy for the enforcement of the lien of special
tax bills issued for public improvements under the Kansas City
Charter 1908 is adequate and complete, the purchaser of lands
sold for general city taxes under said charter is not entitled to
insist, upon equitable grounds, that one seeking to redeem such
lands from such tax sale should pay special grading tax bills
which such purchaser had paid after the lien thereof had expired.
Ib.
Who Entitled to Redeem: Unstamped Deed.
A deed to land, which, through inadvertence, was not stamped at
the time of its execution, as required by the Federal Revenue Act
of 1917, and which, upon objection made, the trial court permitted
to be stamped, was admissible in evidence for the purpose of
showing that the plaintiff had paid the purchase price of the prop-
erty and had thereby acquired the equitable title thereto and as
such was "the owner" and entitled, under Section 34, Article 5,
Kansas City Charter 1908, to redeem such land from a sale there-
of for general city taxes. Ib.
5. Constitutional Law: Indebtedness: Bonds to Build Approach to
Private Toll Bridge. The issuance of bonds by a city of the third
class to pay the cost of improving a public street of such city by
building therein an approach to a toll bridge across the Missouri
River, proposed to be built and owned by a private corporation,
one end of which bridge was to be rested on the river bank at the
end of said street, within the limits of such city, did not violate
the provisions of Section 6 of Article IX of the Constitution for
bidding any city to make appropriation or donation or loan its
credit to or in aid of any railroad or other corporation or asso-
ciation. State ex rel. Boonville v. Hackmann, 313.
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