Imágenes de páginas
PDF
EPUB

years in a mutual insurance company, and a part of it is destroyed
by fire, but he does not pay two assessments, one of which is de-
linquent, and the other overdue, until after the loss has occurred
the acceptance of such payments is not a waiver of forfeiture of
the policy, because of the delinquent assessment, where the insured
has the right, under the laws of the association, to make such pay-
ments, when it is necessary to make them to restore the insurance
provided for in the policy for the remainder of the period of five
years, and where the association is bound to accept such payments
in order to revive the policy for the remaining time it has to run.
(Beeman v. Farmers' Pioneer Mut. Ins. Assn., 424.)

59. AGENCY.-KNOWLEDGE OF A LOCAL INSURANCE
AGENT is the knowledge of the insurance company employing him.
(Horton v. Home Ins. Co., 717.)

60. INSURANCE.-AN ACTION BY A MORTGAGEE may be
maintained on a policy of insurance issued to and in the name of
the mortgagor, providing that the loss shall be payable to the mort-
gagee as his interest may appear, where the amount of the debt se-
cured by the mortgage exceeds the amount of the insurance and the
whole value of the property. (Lowry v. Insurance Co. of N. A.,
587.)

61.

INSURANCE-FIRE-ACTION ON POLICY-ADMISSIBLE
EVIDENCE.-If a local insurance agent becomes the company's
medium of communication with the insured, his acts are those of
the company, and a conversation between such agent and the in-
sured, as well as letters passing between such agent and the in-
surer, are admissible in evidence where suit is brought upon the
policy. (Medearis v. Anchor Mut. Life Ins. Co., 428.)

62. INSURANCE-FIRE-ACTION ON POLICY-HARMLESS
ERROR IN ADMISSION OF EVIDENCE.-In an action against
an insurance company, it is harmless error for the insured to testify
that, after a conversation with the company's agent, he believed
that he was insured in the defendant company, where its liability
had already become fixed by an estoppel, resting upon undisputed
testimony. (Medearis v. Anchor Mut. Life Ins. Co., 428.)

63. INSURANCE-REFUSAL TO PAY LOSS-LIABILITY.—If
questions of law made in an action to recover insurance, are of
such character as to acquit the insurer of bad faith in refusing to
pay the loss within the time limited by law, he is not liable for
damages and attorneys' fees required by him to be paid in case he
refuses in bad faith to pay the loss within sixty days after demand.
(Phenix Ins. Co. v. Clay, 307.)

64. INSURANCE, LIFE-ACTION-DIRECTION OF VERDICT.
In an action upon a policy of life insurance, where the defense
is that the deceased committed suicide by taking cyanide of potas-
sium, it is reversible error for the court to direct a verdict for the
plaintiff, when there is some evidence, though circumstantial, in
support of the issue tendered by the insurance company. (Germania
Life Ins. Co. v. Lewin, 215.)

65.

INSURANCE-LIFE-POLICY AS EVIDENCE.-In an action
to recover on a life insurance policy, the beneficiary may offer such
policy in evidence without the application therefor, as the policy
constitutes the contract upon which the suit is brought, and the
application is no part of the policy and is in the possession of the
defendant. (Albert v. Mutual Life Ins. Co., 693.)

66. INSURANCE, LIFE-EVIDENCE-ADMISSIBILITY OF IN-
QUEST.-In an action on a policy of insurance upon the life of a
person, since deceased, the verdict of a coroner's jury that the de-
ceased committed suicide is not admissible in evidence to establish
that fact as a defense. (Germania Life Ins. Co. v. Lewin, 215.)

67. INSURANCE-LIFE-EXPERT EVIDENCE.-In an action on a policy of life insurance, expert physicians who have personally examined the insured, and who as medical examiners for the insurer have passed upon the application upon which the policy is issued, may testify as to what they mean by the use of the word "paralysis" in their reports to the insurer. (Albert v. Mutual Life Ins. Co., 693.)

See Attachment, 8, 9; Contracts, 8; Duress.

INTENT.

See Criminal Law.

INTEREST.

1. INTEREST-ALLOWANCE OF, ON JUDGMENTS.-At common law, judgments carried no interest. Its allowance on judgments is controlled entirely by statute. (Hoyt v. Beach, 461.)

2. INTEREST-JUDGMENT FOR COSTS AND ATTORNEY'S FEES.-If the allowance of interest on a judgment is not limited by statute, a judgment for costs and attorney's fees will draw interest from the date of its entry. (Hoyt v. Beach, 461.)

INTERSTATE COMMERCE.

1. INTERSTATE COMMERCE-DELETERIOUS ARTICLE POWER OF STATE.-A state has no right to interfere with, or to attempt to regulate, interstate commerce in an article on the ground that it is deleterious to the inhabitants of the state, so long as it is recognized in the commercial world, by the laws of Congress, and by the decisions of the courts as a commodity in which a right of traffic exists. (McGregor v. Cone, 522.)

2. INTERSTATE COMMERCE-SALE OF CIGARETTES-VIOLATION OF STATE STATUTE.-If an importer, after bringing Into the state stamped packages of cigarettes, packed in a common pine box, for convenience of shipment, opens the box and sells one of the packages to a customer, who applies for it, the sale violates a statute of the state which prohibits the sale of cigarettes within the state by all persons except jobbers doing an interstate business. (McGregor v. Cone, 522.)

3. INTERSTATE

COMMERCE-SALE

OF CIGARETTESREGULATION OF BY STATE-UNCONSTITUTIONAL STATUTE.-Cigarettes are a recognized commercial commodity. Hence, a state statute which prohibits the sale of cigarettes within the state by all persons except jobbers who do an interstate business with customers outside of the state is in contravention of section 8, article 1, of the federal constitution, conferring upon Congress the exclusive right to regulate commerce among the several states, and is void, so far as it amounts to such a regulation. (McGregor v. Cone, 522.)

4. INTERSTATE COMMERCE "ORIGINAL PACKAGE"WHAT IS.-An "original package," within the meaning of the interstate commerce law, is a bundle put up for transportation or commercial handling, and usually consists of a number of things bound together, convenient for handling and conveyance. It is the unit which the carrier receives, transports, and delivers as an article of commerce the identical package delivered by the importer to the carrier at the initial point of shipment, in the exact condition in which it was shipped. (McGregor v. Cone, 522.)

5. INTERSTATE COMMERCE-CIGARETTES "ORIGINAL PACKAGE"-DECISION OF REVENUE OFFICERS AS TOFORCE OF.—In determining whether or not there has been a viola

tion of a state anti-cigarette law, the fact that the internal revenue department has recognized a package containing ten cigarettes as an "original package," for the purpose of taxation, is not conclusive, as the repacking of such packages in additional coverings is optional with the manufacturer in placing them upon the market. The package so recognized is not the original package of commerce, within the meaning of the interstate commerce law. (McGregor v. Cone, 522.)

6. INTERSTATE COMMERCE-CIGARETTES "ORIGINAL PACKAGE”-COMMON PINE BOX.-If packages of cigarettes, each package containing ten cigarettes, and sealed with an internal revenue stamp, are packed in a common pine box, for convenience of shipment, such box is the original package of commerce; and when it is opened or "broken," the packages of cigarettes are subJect to the police power of the state as a part of the common mass of property therein. (McGregor v. Cone, 522.)

INTERSTATE COMMERCE.

See Taxes, 6, 7.

JOINT LIABILITY.

See Judgment, 28; Libel, 3; Partnership, 1.

JUDGMENT.

1. JUDGMENT-"RENDITION”-LIEN-NECESSITY OF RECORD.-A judgment is not rendered, so as to be a lien from the time of its "rendition" until it is entered on the records, as prescribed by the statute, although an entry or direction therefor has been signed by the judge and indorsed by the clerks as "filed." (Callanan v. Votruba, 538.)

2. JUDGMENTS.-DOCKETING of a judgment is not an essential condition of its efficacy, except for the purposes of a lien, and is not a condition precedent to issuing execution thereon to an officer where it is rendered or to an officer in any other county. (Bernhardt v. Brown, 725.)

3. A MOTION FOR JUDGMENT ON THE PLEADINGS, based on the facts thereby conceded, cannot be sustained, except where, under such facts, a judgment different from that pronounced could not be rendered, notwithstanding any evidence which might be produced. In other words, it cannot be sustained unless, under the admitted facts, the moving party is entitled to judgment, without regard to what the findings might be on the facts upon which issue is joined. (Mills v. Hart, 241.)

4. A MOTION FOR JUDGMENT ON THE PLEADINGS cannot, under the guise of such a motion, be substituted for some other plea. (Mills v. Hart, 241.)

5. A MOTION FOR JUDGMENT ON THE PLEADINGS cannot prevail, unless, on the facts thereby established, the court can, as a matter of law, pronounce a judgment on the merits, one final between the parties. (Mills v. Hart, 241.)

6. JUDGMENT ON THE PLEADINGS-RIGHT TO, HOW DETERMINED.-In determining the right of a party to a judgment given him on the pleadings, the real question to determine is the sufficiency of the admitted facts to warrant the judgment rendered, and the materiality of those upon which issue is joined. (Mills v. Hart, 241.)

7. JUDGMENT - WHEN NUNC PRO TUNC ORDERS SHOULD BE GRANTED.-The action of a court cannot be falsified by the failure of a mere ministerial officer to perform his duty, and

the plaintiff has a right to have the record show what the court
did in his case. Hence, if a decree has been prepared and signed
by the judge, and given to the clerk, who files, but fails to record
It, the plaintiff is afterward, if no rights of third parties have in-
tervened or will be affected thereby, entitled to a nunc pro tune or-
der requiring the clerk to record the decree, irrespective of the ques-
tion whether the proceedings in the case were regular or irregular,
valid or invalid. (Day v. Goodwin, 465.)

8. JUDGMENT-RECORD-VALIDITY.-The record is the
only proof of a judgment, and it is, therefore, essential to the valid-
ity of a judgment that it be spread upon the records as required
by law. (Callanan v. Votruba, 538.)

9. JUDGMENT.-THE RATIFICATION OF A JUDGMENT
BASED ON AN UNAUTHORIZED APPEARANCE of an attorney
does not result from an offer to pay a lesser sum in full satisfaction,
such offer being rejected. (Handley v. Jackson, 839.)
10. JUDGMENT ON DEMURRER-WHAT CONTROLS.-
Statements in the memorandum of the trial judge as to what ques-
tions were argued, submitted, and decided by him on demurrer can-
not control or affect the positive language of his decision. (Meyers
V. Chicago etc. Ry. Co., 579.)

11. PRACTICE.--THE RELIEF WHICH CAN BE GRANTED
UPON A JUDGMENT BY DEFAULT cannot exceed that de-
manded in the complaint. Hence, if the complaint prays that the
defendant be restrained from transferring certain' property, it is
error, in a decree entered upon default, to provide that the defend-
ant transfer such property to a receiver. (Foley v. Foley, 147.)

12. A JUDGMENT IS AN ENTIRETY, and if void as to one of
the defendants is void as to all, as where one of the defendants is
dead when it was rendered. This rule is not abrogated by a stat-
ute declaring that one of several appellants shall not secure a re-
versal as to himself by assigning some error in a judgment valid as
to him, which judgment does not affect his rights, but does consti-
tute reversible error as to the other appellants. (Weis v. Aaron,
594.)

13. A JUDGMENT AGAINST A PERSON DEAD AT THE
TIME OF ITS RENDITION is void, and is therefore subject to col-
lateral assault. (Weis v. Aaron, 594.)

14. JUDGMENTS-IMPROPER SERVICE OF SUMMONS.-A
summons illegally issued and illegally served does not bring the de-
fendant into court. A judgment rendered upon such service is void.
(Durham Fertilizer Co. v. Marshburn, 708.)

15. JUDGMENT-IMPROPER SERVICE OF SUMMONS.—A
justice's judgment against a nonresident defendant, on whom process
was not served at least ten days before the return day, as required
by statute, is void. (Durham Fertilizer Co. v. Marshburn, 708.)

16. JUDGMENTS, IF ERRONEOUS, may be remedied by ap-
peal. (Bear v. Board of Co. Commrs., 711.)

17. JUDGMENTS.-IRREGULAR JUDGMENTS ARE VOID-
ABLE and may be set aside on motion. (Bear v. Board of Co.
Commrs., 711.)

18. JUDGMENT-FRAUD AS A GROUND FOR A MOTION TO
VACATE.-Where the statute authorizes a court to grant relief from
a judgment suffered by a party through his mistake, inadvertence,
surprise, or excusable neglect, he is entitled to relief, if, by any
fraud of his adversary, he was prevented from appearing and an-
swering in due time. (Thompson v. Connell, 818.)

19. JUDGMENT-PROCEEDING TO ANNUL-PARTIES.-In a
proceeding, either at law or in equity, to annul a judgment, all of

the parties to the judgment should be made parties. (Day v. Goodwin, 465.)

20. JUDGMENT-DEFECTIVE SERVICE OF PROCESSWHEN EXTRINSIC FACTS TO DEFEAT ARE AVAILABLE ONLY ON DIRECT ATTACK.-Although the service of notice of the pendency of an action is irregular and insufficient, yet, if the court assumes jurisdiction, the judgment is not void, where the service appears, upon the face of the record, to be good. Hence, extrinsic facts relied upon to defeat it can be shown only in a direct attack on the judgment. (Day v. Goodwin, 465.)

21.

JUDGMENT-DEFECTIVE SERVICE OF PROCESS ON PARTY ADJUDGED INSANE-EFFECT OF.-If a wife has been adjudged insane, but is living with her husband when both are made parties defendant to a foreclosure action, and notice of the pendency of the action is served upon both, the judgment therein is not void, though a strict compliance with the statute, in such a case, would have required the notice to her to be also served upon her husband. (Day v. Goodwin, 465.)

22. JUDGMENTS.-RELIEF WILL NOT BE GRANTED IN EQUITY against a judgment at law, unless some meritorious and sufficient defense exists to the action at law or to some substantial part thereof. (Handley v. Jackson, 839.)

23. JUDGMENT-RELIEF FROM AN EQUITY AFTER AN UNSUCCESSFUL MOTION IN THE ORIGINAL ACTION.-Where a party against whom a judgment has been entered moves in the original action to have it set aside, and such motion is there denied, he cannot maintain a suit in equity for relief based upon the same grounds, they being, if established by the evidence, sufficient to have warranted the granting of relief on the motion. (Thompson v. Connell, 818.)

24. RELIEF FROM A JUDGMENT WILL BE DECREED IN EQUITY upon there appearing any fact clearly proving that it is against conscience to execute the judgment, and that the injured party could not have availed himself of this fact in the court of law, or if he could have so availed himself, that he was prevented from doing so by fraud or accident unmixed with any fault or negligence in himself or his agents. (Handley v. Jackson, 839.)

25. A JUDGMENT BASED ON AN UNAUTHORIZED APPEARANCE OF ATTORNEY will be relieved against in equity, and the want of authority on the part of the attorney may be proved by parol. This rule is equally applicable whether the attorney be responsible or not, and whether or not he acted by the procurement or collusion of the adverse party. (Handley v. Jackson, 839.)

26. JUDGMENTS GENERALLY ARE CONCLUSIVE, except for fraud or mistake. (Bear v. Board of Co. Commrs., 711.)

27. JUDGMENTS-CONCLUSIVENESS.-A judgment against parties present before a competent court is conclusive of matters adjudged therein. (Bear v. Board of Co. Commrs., 711.)

28. A JUDGMENT FOR OR AGAINST ONE DEFENDANT cannot be res judicata for or against another where they are entitled to, and demand, separate trials, or where for some other reason one of them is not a party to a judgment, or is entitled to relief from a judgment against himself and the other. (Handley v. Jackson, 839.) 29. JUDGMENTS AGAINST CORPORATIONS-CONCLUSIVENESS.-A valid judgment against a corporation binds the stockholders in respect to corporate matters. Such judgment is not open to collateral attack. (Bear v. Board of Co. Commrs., 711.)

30. JUDGMENTS-CONCLUSIVENESS.-In a proceeding to compel the levy of taxes, to pay a judgment against commissioners of a

« AnteriorContinuar »