INDEX-DIGEST

KEY NUMBER SYSTEM)

THIS IS A KEY-NUMBER INDEX

It Supplements the Decennial Digests, the Key-Number Series and
Prior Reporter Volume Index-Digests

he might recover by cross-action in suit to can- See Executors and Administrators.
cel. Spark v. Lasater, 345.

17 (Tex.Civ.App.) Defendant cannot have
plaintiff restrained from prosecuting his suit.-
Spark v. Lasater, 345.

V. DEATH OF PARTY AND REVIVAL OF without statement, and tax tag held inapplica-

See Abatement and Revival; Dismissal and notice of rights of landlord.-Houston Oil Co.
Nonsuit.

8 (Tex.) Johnson grass statute applicable
71 (Mo.App.) "Determination" of action to federal railroad receivers.-International &
defined.-Hanchett Bond Co. v. Glore, 159. G. N. Ry. Co. v. Dawson, 279.

(1121)

See Carriers,

ANIMALS.
213-230.

V. PRESENTATION AND RESERVATION
IN LOWER COURT OF GROUNDS
OF REVIEW,

(A) Issues and Questions in Lower Court.
170(2) (Mo.App.) Constitutional question
not raised waived.-Commerce Trust Co. V.
Syndicate Lot Co., 1055.

173(2) (Mo.App.) Plaintiff's inducement of
36 (Tex.Cr.App.) Information under Tick slanderous words must be specially pleaded as
Law must designate quarantined territory. justification to be considered on appeal.-Nich-
Smith v. State, 522.
ols v. Chicago, R. I. & P. Ry. Co., 275.
Verdict for violation of Tick Law must spec-173(12) (Mo.) Satisfaction of cause of ac-
ify fine and number of animals.-Id.
tion shown for first time on appeal.-Johnson v.

50 (2) (Tex.Com.App.) "Or," in order for Conrades, 680.
stock law election, held to mean "and."-Cole-174 (Ky.) Objection to right to maintain
man v. Hallum, 296.
action must be made in trial court.-Shutt's
Adm'r v. Shutt's Adm'r, 405.

Petition essential to jurisdiction to order
stock law election.-Id.

Stock law election may be ordered at term
petition is filed.-Id.

Regularity of stock law election presumed.

-Id.

55 (Tex.Com.App.) Impounding

trespass-

176 (Mo.) Defendants could not complain
of evidence of fact admitted by them.-Coles
v. Belford, 728.

(B) Objections and Motions, and Rulings
Thereon.

ing animals not adequate to prevent injunction. 197(6) (Mo.App.) Defendant cannot com-
-Coleman v. Hallum, 296.

Law, 1004-1201.

plain of evidence as to unpleaded damage ad-
mitted without objection.-Samples v. Kansas
City Rys. Co., 1049.

204(4) (Mo.) Introduction of evidence not
objected to not reviewable.-Laughlin v. Laugh-
lin, 114.

204 (7) (Mo.App.) No complaint of evi-
dence not objected to.-O'Connor v. Columbian
Nat. Life Ins. Co., 218.

For review of rulings in particular actions or 215(1) (Ky.) Party cannot complain of in-
proceedings, see also the various specific top-struction not objected to below.-Barnes v. Cul-

ics.

II. NATURE AND GROUNDS OF

LATE JURISDICTION.

ver, 39.

APPEL-216(3) (Mo.App.) Instruction on diminu-
tion of damages not reversible error in absence
of request for more specific instruction.-Wag-

ner v. Chicago & A. R. Co., 771.

20 (Mo.App.) Circuit court has no appel-
late jurisdiction of matter over which board 216(4) (Mo.App.) To complain of refusal
appealed from had no original jurisdiction. of instruction, party must submit correct in-
City of St. Joseph v. Cox, 256.
structions.-Albert v. United Rys. Co. of St.
Louis, 793.

III. DECISIONS REVIEWABLE.

(B) Nature of Subject-Matter and Char-

acter of Parties.

38 (Ky.) Supreme Court held to have ju-
risdiction in suit involving rights under tax lien,
though amount involved less than $200.-Faust
v. Louisville Trust Co., 58.

tions to referee's report reviewable, time of
220 (Mo.) Decision overruling late excep-
ex rel. Saline County v. Wilson, 140.
exceptions not having been objected to.-State

43 (Tex.Civ.App.) Suit to recover land and
damages for removal of gravel is not a "bound-230 (Tex.Civ.App.) Assignment of
ary case," in which appellate court's judgment
is final.-Braumiller v. Burke, 907.

230 (Mo.) Objection to competency of ju-
ror not considered, where first appearing in
Rys. Co., 987.
motion for new trial.-Pietzuk v. Kansas City

Finality of judgment of appellate court should
depend on "case" made by pleadings, not on ev-
idence presented.-Id.

(C) Amount or Value in Controversy.
46 (Ky.) Separate appeal under jurisdic-
tional amount cannot be considered with an-
other appeal on same record.-Oliver v. Gard-
ner, 418.

(D) Finality of Determination.

70 (6) (Tex.Civ.App.) Order denying mo-
tion for action on pleas of privilege interloc-
utory and not appealable.-Seale v. Anderson,
928.

76(1) (Mo.App.) Final judgment must de-
termine merits.-Marsala v. Gentry, 1046.
Final decree need not dispose of costs.-Id.
78(1) (Mo.App.) Judgment in injunction
suit held final and appealable.-Marsala v. Gen-
try, 1046.

error

involving answer to special issue considered,
before charge was read.-Deport Hardware Co.
though no objection was made to special issue
v. First Nat. Bank, 902.

231(6) (Mo.) General objection to reasons
given by expert witness held insufficient.-Kehl-
enbrinck v. City of St. Louis, 124.

231 (9) (Ark.) Specific objection to in-
struction must be made below.-Pope County
Real Estate Co. v. Clifton, 579.

232(2) (Mo.) Ground of objection not pre-
sented during trial not considered on appeal.-
Kehlenbrinck v. City of St. Louis, 124.

(C) Exceptions.

261 (Mo.) Exception to counsel's remarks
and argument, instead of to court's ruling, in-
sufficient.-Esstman v. United Rys. Co. of St.
Louis, 725.

270(1) (Mo.App.) Though action on mo-
tion to quash execution reviewable in absence
of motion for new trial, exception must be sav-
ed.-Johnson v. Kansas City Terminal Ry. Co.,
239.

80(1) (Tex.Civ.App.) Judgment for plain-
tiff, not mentioning counterclaim, is final.-Kel-
vin Lumber & Supply Co. v. Copper State Min-272(1) (Mo.App.) Necessity of timely sav-
ing Co., 858.
ing exceptions to adverse rulings cannot be dis-
Co., 786.
pensed with by custom.-Tyon v. Wabash Ry.

(F) Mode of Rendition, Form, and Entry
of Judgment or Order.

125 (Ky.) Judgment held not an agreed
judgment, from which there can be no appeal.-
Faust v. Louisville Trust Co., 58.

as to burden of proof held fundamental, and
273 (6) (Tex.Civ.App.) Error in charging
reviewable on exception made.-Cotten v. Wil-
lingham, 572.

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

(E) Abstracts of Record.

(D) Motions for New Trial.
296 (Mo.App.) Though action on motion to 586(1) (Mo.App.) Abstract insufficient to
quash execution reviewable in absence of mo- authorize review on merits of order sustaining
tion for new trial, exception must be saved. motion to quash execution.-Johnson v. Kansas
Johnson v. Kansas City Terminal Ry. Co., 239. City Terminal Ry. Co., 239.
301 (Mo.App.) Question of interest charg-592(1) (Mo.) Appeal will be dismissed
ed must be raised in motion for new trial.- where no printed abstract of record on file.-
Chicago & E. R. Co. v. Lightfoot, 176.
Craig v. Seaman, 113.

VI. PARTIES.

335 (Ky.) No relief against appellees not
named.-Shutt's Adm'r v. Shutt's Adm'r, 405.
VII. REQUISITES AND PROCEEDINGS
FOR TRANSFER OF CAUSE.
(A) Time of Taking Proceedings.

(G) Authentication and Certification.
612(5) (Ark.) Certificate of transcript as
containing all testimony on file held sufficient.
-Massey v. Kissire, 24.

(1)

Defects, Objections, Amendment, and
Correction,

337(1) (Mo.) Record held to show sustain-639(1) (Ark.) Omissions from appellant's
ing of demurrer to amended petition, so that abstract held cured, when supplied by appel-
appeal was not premature.-Kansas City Rys. lee.-Massey v. Kissire, 24.
Co. v. McCardle, 464.

(B) Petition or Prayer, Allowance, and

Certificate or Affidavit.

362 (1) (Tex.Com.App.) Supreme Court
cannot consider fundamental error not present:
ed in application for writ of error.-Town of
Jacksonville v. McCracken, 294.
(C) Payment of Fees or Costs, and Bonds

or Other Securities.

dis-

643 (5) (Tex.Civ.App.) Objection to
crepancy in dates of certificate to transcript
held too late.-Garrard v. Cantrell, 911.
transcript, complete on its face, does not con-
660 (2) (Ark.) Proper proceeding, when
tain all the evidence, stated.-Massey v. Kis-
sire, 24.

374(4) (Tex.Civ.App.) Federal statute ex-662 (2) (Mo.) Bill of exceptions imports
empting government officials from giving appeal absolute verity.-Andre v. Andre, 153.
bond applicable only to proceedings in federal ~662(2) (Mo.App.) Effect of bill of excep-
courts.--Bryson v. Payne, 362.
tions reciting timely exceptions not affected by
contradictory recital of judge.-Tyon v. Wa-
bash Ry. Co., 786.

VIII. EFFECT OF TRANSFER OF CAUSE
OR PROCEEDINGS THEREFOR.
(A) Powers and Proceedings of Lower

Court.

664(1) (Ark.) Decree controls, when in
conflict with clerk's certificate as to evidence
upon which case heard.-Massey v. Kissire, 24.
tificate.-Id.
Decree held not in conflict with clerk's cer-

438 (Ark.) Pendency of appeal by one par-
ty does not foreclose right of other party to
obtain new trial and appeal.-Payne v. Road667 (Mo.App.) Record imports_verity and
Imp. Dist. No. 1 of Howard County, 943.
may not be impeached.-Jackson v. Kansas City
Rys. Co., 752.

IX. SUPERSEDEAS OR STAY OF PRO-
CEEDINGS.

479(1) (Tex.Civ.App.) Injunction will not
be issued to suspend execution pending appeal
by party unable to give supersedeas bond.-
Spark v. Lasater, 346.

489 (Mo.) Property seized by receiver
must, on appeal from order refusing to revoke
order appointing him and giving of bond, be re-
turned. State ex rel. Mueller v. Wurdeman,
1002.

(A) Matters to be Shown by Record.
501(1) (Mo.App.) Exceptions for review
of motion to quash execution can be preserved
only in bill of exceptions.-Johnson v. Kansas
City Terminal Ry. Co., 239.

501(1) (Mo.App.) Exception must be saved
at the time to a ruling to render it reviewable.
-Tyon v. Wabash Ry. Co., 786.

(B) Scope and Contents of Record.
518(4) (Mo.App.) Record need not show
amendment at trial by interlineation.-Samples
v. Kansas City Rys. Co., 1049.

(D) Contents, Making, and Settlement of
Case or Statement of Facts.

559 (Mo.App.) Petition not necessary in
statement. Malone v. Kansas City Rys. Co.,
782.

560 (Mo.App.) Entire testimony of wit-
nesses not necessary in statement.-Malone v.
Kansas City Rys. Co., 782.

564(2) (Tex.Civ.App.) Statement of facts
filed before time for filing transcript had ex-
pired held in time.-Early-Foster Co. v. Mid-
Tex Mills, 1117.

to

670(2) (Mo.) Affidavits inadmissible
show error in stenographic report.-Pietzuk v.
Kansas City Rys. Co., 987.

cate intention to change meaning.-In re Pub-889 (3) (Mo.) Action on note treated as if
lication of Docket of Supreme Court, 454. amendment by defendant to admit proof of pay-
ment had been made.-Citizens' Trust Co. v.
Going, 996.

Statute requires Supreme Court docket to be
published in newspaper.-Id.

Supreme Court clerk has same power as 893(2) (Mo.) Action on official bond held
clerk of other courts of record to print docket not made one in equity by answer, as regards
in pamphlet form.-Id.
review. State ex rel. Šaline County v. Wilson,
140.

811 (Tex.Civ.App.) Appeal from dissolu-
tion of preliminary injunction not advanced
when permanent injunction also denied.-Early-901
Foster Co. v. Mid-Tex Mills, 1117.

XVI. REVIEW.

(E) Presumptions.

(Mo.App.) Burden of showing error
warranting granting of new trial on successful
party.-Gass v. United Rys. Co. of St. Louis,
160.

907(3) (Mo.App.) Presumption favors reg-
ularity of judicial action in quashing execution.
-Johnson v. Kansas City Terminal Ry. Co.,
239.

(A) Scope and Extent in General.
837(11) (Ky.) Incompetent testimony can
be considered, where objections to it were not
passed upon below.-Oliver v. Gardner, 418.
840 (3) (Mo.App.) Court of Appeals has 907(4) (Ark.) In absence of abstract of
no jurisdiction of constitutional questions. all testimony, Supreme Court must assume tes-
timony supports trial court's finding.-Bramble
City of St. Joseph v. Cox, 256.
843(1) (Mo.) Errors likely to be eliminat-914(1) (Ky.) Presumed without contrary
v. College Hill Light & Traction Co., 758.
ed on new trial not considered.-Grimm v. Globe showing summons of minor was properly served
Printing Co., 676.
on grandmother.-Humphrey v. Holland, 642.
record entry that cause was duly transferred
920 (2) (Ark.) Court must presume from
to chancery court.-Flanagan v. Ray, 600.

846(5) (Tex. Civ.App.) Judgment, without
findings or conclusions, affirmed on any applica-
ble ground.-Head v. Moore, 362.

854(6) (Mo.App.) Where proper, granting
of new trial will be affirmed, though erroneous
ground was assigned.-Gass v. United Rys. Co.
of St. Louis, 160.

856(5) (Mo.App.) Motion granting new
trial may be sustained on ground not assigned.
-Rasch v. Bankers' Life Co. of Des Moines,
183.

863 (Ark.) On appeal from the sustaining
of demurrer to complaint as against one de-
fendant, only question reviewable is cause of
action against such defendant.-Fowler v. Pine
Bluff Spoke Co., 16.

927(5) (Mo.App.) Evidence to be viewed in
favor of plaintiff.-Milward v. Wabash Ry. Co.,
226.
927(5) (Mo.App.) Demurrer to evidence
accepted as
true.-Smith v. Western Union
Telegraph Co., 480.

930 (1) (Mo.App.) Evidence to be given ev-
ery reasonable inference in favor of prevailing
party. Williams v. East St. Louis & S. Ry.
Co., 759.

930(1) (Mo.App.) Evidence of successful
party must be considered in light most favora-
ble to him.-Wagner v. Chicago & A. R. Co.,
771.

(B) Interlocutory, Collateral, and Supple-930(3) (Tex.Com.App.) Court will be pre-
mentary Proceedings and Questions.

871 (Mo.App.) Question as to sustaining
demurrer to counterclaim eliminated by failure
to file term bill of exceptions for such court
term.-Chicago & E. R. Co. v. Lightfoot, 176.

(C) Parties Entitled to Allege Error.
878(2) (Mo.App.) Plaintiff appellee cannot
complain that case was tried in equity.-Reid
v. Brotherhood of Railroad Trainmen, 185.

880 (2) (Mo.) Appealing defendant cannot
complain that as to his codefendants the peti-
tion was improperly amended.-Morgner v. Hun-
ing, 88.

882(8) (Mo.App.) Error in evidence held
invited by complaining party.-Albert v. Unit-
ed Rys. Co. of St. Louis, 793.

882 (9) (Mo.App.) Questions asked by de-
fendant on cross-examination cannot be com-
plained of by him.-O'Connor v. Columbian Nat.
Life Ins. Co., 218.

882(12) (Mo.App.) Instructions which ap-
pellant joined in asking not assignable as er-
ror.-Johnson v. Kansas City Electric Light
Co., 1094.

882(12) (Tex.Civ.App.) Party, having re-
quested more complete instruction, could not
complain of court's action in giving it.-McAdoo
v. McClure, 348.

sumed to have found facts necessary to support
judgment where authorized.-Houston Oil Co.
of Texas v. Choate, 285.

930 (3) (Tex.Civ.App.) Court presumed to
have made finding to support judgment on is-
sue of fraud not submitted to jury.-Mason v.
Peterson, 567.

931(1) (Ark.) Evidence must be viewed in
light most favorable to appellee.-Houston v.
Hanby, 930.

931(1) (Tex.Civ.App.) Finding not attack-
ed presumed to have been warranted by testi-
mony.-Longley & Reeves v. Miller, 566.
Sufficiency of evidence to sustain one finding
presumed in absence of attack.-Id.

931(3) (Tex.Civ.App.) Presumed trial court
found facts to support judgment.-Kelvin Lum-
ber & Supply Co. v. Copper State Mining Co.,
858.

931 (4) (Tex.Com.App.) Permanent nui-
sance presumed in support of judgment where
no requests for submission of issue of perma-
nence were made.-Town of Jacksonville v. Mc-
Cracken, 294.

933 (4) (Mo.App.) Presumption that new
trial was granted on ground that verdict was
against weight of evidence.-Leavel v. Johns-
ton, 1064.

939 (Ark.) Transcript properly certified by
clerk presumed true and perfect copy of record.

882 (13) (Mo.) Appellants could not com--Massey v. Kissire, 24.
plain of error invited by their requested in-
struction.-Kehlenbrinck v. City of St. Louis,

124.

Error in permitting jury to consider special
benefits to property claimed to have been dam-
aged held invited by requested instruction.-Id.

(D) Amendments, Additional Proofs, and

Trial of Cause Anew.

(F) Discretion of Lower Court.
968 (Mo.App.) Trial court's rulings on
challenges to jurors not lightly disturbed.-
Johnson v. Kansas City Electric Light Co.,
1094.

977(4) (Mo.App.) Grant of new trial on
ground that verdict was against weight of evi-
dence not disturbed unless wholly inconsistent
889 (3) (Ark.) Complaint treated as amend- with the evidence.-Leavel v. Johnston, 1064.
ed to conform to proof, when evidence not ob-978(2) (Mo.) Propriety and effect of argu-
jected to.-Jenkins v. International Life Ins. ment of counsel for trial judge.-Pietzuk v.
Co., 3.
Kansas City Rys. Co., 987.