For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER
the result of his own' negligence was a question where a member of a fraternal insurance or-
of fact.-Id.

der who designated two beneficiaries secured

the erasure of the name of one of them from
XX. MUTUAL BENEFIT INSURANCE.

the certificate, held that though such attempt
(B) The Contract in General.

to change beneficiaries was irregular and might

give the insurer the right to deny liability, yet,
723(7) (Ky.) Where a member of a frater-

where the insurer acquiesced in the change, the
nal insurance society, to whom a benefit certifi-

displaced beneficiary was entitled to no rights.
cate was issued, made a false statement in her

-Id.
application as to the cause of her mother's

784 (7) (Tex.Civ.App.) Where a member of
death, held that, under Ky..St. 8 639, a directed

a fraternal insurance order who had designated
verdict for the beneficiary was improper, if

two beneficiaries attempted to displace one by
there was any evidence that the statement com-

causing his name to be erased from the certifi-
plained of was either fraudulently made or ma-

cate, held that the insurer by admitting its lia-
terial.-National Council of Knights and Ladies bility for the sum specified in the certificate.
of Security v. Dean, 207 S. W. 702.

and paying the money into the registry of the
724(1) (Mo.App.) Under constitution and by-

court, ratified the certificate in its altered
laws of defendant fraternal beneficiary associa-

form; no new consideration being necessary.-
tion, held, that a local medical examiner was

Bills v. Bills, 207 S. W. 614.
not an officer of the local lodge, prohibited by

Where a fraternal insurer ratified a change of
such constitution and by-laws, as authorized by beneficiary by filing an answer admitting its lia-
Laws 1911, p. 292, & 22, from waiving provi-

bility, held that it could not thereafter arbitra-
sions thereof; but was an agent of the supreme

rily repudiate its ratification so as to entitle
body.--Hereford v. Mystic Workers of the
World, 207 S. W. 76.

the displaced beneficiary to share in the fund.

-Id.
Laws 1911, p. 292, & 22, authorizing a frater-

(F) Actions for Benefits.
nal benefit association by its constitution and
by-laws to probibit waiver of any provision 814 (Ark.) Though a fraternal society did
thereof by a member of a subordinate lodge, not comply with Acts 1917, p. 2087, $ 17, with-
does not apply to such a member in his capacity in the 30 days prescribed, by designating the
of agent of the supreme body.-Id.

commissioner of insurance as its agent for sery-
724(2) (Mo.App.) A local medical examiner ice of process, where it did so thereafter, subse-
of a fraternal beneficiary association, not being quent service on the clerk of a local lodge, in
an officer of the local lodge, but an agent of the compliance with the superseded statute (Kirby's
supreme body, could waive warranties in the Dig. $ 4378), was not proper.-Sovereign Camp,
application for insurance. Hereford v. Mystic Woodmen of the World, v. Wilson, 207 S.
Workers of the World. 207 S. W. 76.

W. 45.
Provision of application for insurance in a 817(2) (Mo.App.) In an action on a frater-
fraternal benefit association making answers nal life insurance certificate, wherein plaintiff
warranties was waived; the local medical ex- admitted that assured's signature to the appli-
aminer, agent of the supreme body, who wrote cation was genuine and that the application
the answers, having for years been insured's represented that assured had not been rejected
physician, and knowing as much about her as by other companies, the burden was on plaintiff
she did.-Id.

to overcome defendant's prima facie showing of

misrepresentations, and not on defendant to
(D) Forfeiture or Suspension,

show that the applicant's .answers were in fact
755(3) (Ark.) Where member of benefit soci- his.-Weise v. Sovereign Camp Woodmen of the
ety was engaged in extrahazardous occupation,

| World, 207 S. W. 249.
and never changed, but the society voluntarily Omw 819(1) (Mo.App.) Evidence held to author-
reduced assessment as if he had, and it was ize finding that deceased's mother was depend-
years

leath society can-

ent and supported by him, so as to allow her, as
not insist on forfeiture by failure to pay assess a member of his family, under the constitution
ments based on extrahazardous occupation on of a police relief association, to be designated as
the ground member was in default in failing to beneficiary in his certificate of life insurance is-
give notice of resumption of such occupation, sued by it.--St. Louis Police Relief Ass'n v.
which he had never abandoned.-Sovereign Houlehin, 207 S. W. 880.
Camp, Woodmen of the World, v. Wilson, 207 S. 819(4) (Mo.A pp.) Statement in coroner's
W. 45.

certificate of death under Rev. St. 1909, 8 6671,

that suicide was contributory to death of insur-
(E) Beneficiaries and Benefits.

ed, is a conclusion, and not a statement of fact,
771 (Mo.App.) Deceased's mother. though within section 6684, declaring a certified copy
living in a home for widows, being dependent on of the record of a death prima facie evidence of
and supported by him. was a member of his the facts therein stated.-Schmidt v. Supreme
"family," within the constitution of a police re-

Council of Royal Arcanum, 207 S. W. 874.
lief association, declaring as an object "aiding

Om 825(2) (Ky.) In an action on a certificate
the families" of members, so as to permit of her issued by a fraternal insurer, held, under the
being designated as beneficiary in his certificate evidence, that the issue whether the false state-
of life insurance issued by it, though he also ment made by the member as to the cause of
had a wife, from whom he was living apart.-

her mother's death was fraudulently made was
St. Louis Police Relief Ass'n v. Houlehin, 207 | for the jury.-National Council of Knights and
S. W. 880.

Ladies of Security v. Dean, 207 S. W. 702.
783 (Tex.Civ. App.) A beneficiary named in On 825(3) (Mo.App.) Evidence, with presump-
fraternal benefit certificate, providing for tion against suicide, held to make a question for
change of beneficiary, has no vested interest in jury whether insured committed suicide, pre-
the contract of insurance which will prevent venting recovery on his benefit certificate.--
the insured from changing any of the terms of Schmidt v. Supreme Council of Royal Arcanum,
the contract, but has a mere expectancy, which

| 207 S. W. 874.
may be defeated by a change of beneficiary. Cm 826(1) (Mo.App.) In an action on a frater-
Bills v. Bills, 207 S. W. 614.

nal life insurance certificate, wherein misrepre-
784(6) (Tex.Civ. App.) A displaced benefici sentations in the application were alleged, evi-
ary can question insured's method of making dence that the examining physician had filled in
change of beneficiary only on the ground that it applicant's answers in the application and re-
was legally insufficient to accomplish that pur- | port, and that there were inaccuracies, held not
pose, where the insurer acquiesced therein, sufficient to warrant an instruction as to wheth-
though the method did not follow the procedure er or not the answers of the applicant were in
provided in the certificate; those requirements | fact his; applicant's signature being admitted.
being for the benefit of the insurer.-Bills y. -Weise v. Sovereign Camp, Woodmen of the
Bills, 207 S. W. 614.

I World, 207 S. W. 249.

er me

tations, applies to hail insurance.--St. Paul
Fire & Marine Ins. Co. v. Pipkin, 207 S. W.
360.

XII. RISKS AND CAUSES OF LOSS.
(E) Accident and Health Insurance,

464 (Tex.Civ.App.) Where an accident poli-
cy covering death through violent and externai
means expressly declared that it should no
cover injuries intentionally inflicted upon to
insured by himself or by any other person
cept by burglars and robbers, the company
not liable where one not a burglar or robber
tentionally shot and killed the insured.-Nat!
al Life & Accident Ins. Co. v. De Lopez, 21'.
W. 160.

XIII. EXTENT OF LOSS AND LI

BILITY OF INSURER.
(B) Insurance of Property and Ti

500 (Tex.Civ.App.) The parties to
surance contract may agree upon thi
of the property insured and the specific
to be paid for its loss or damage, and
absence of fraud, such agreed valus
conclusive.--St. Paul Fire & Marine
v. Pipkin, 207 S. W. 360.

(E) Accident and Health Insı
Om 527 (Mo.App.) An electrician, f
ed as a proximate result of sud
switchboard, installed along inside
ing, occasioned by a short circuit
oil over him, ignited his clothir
burped switchboard, could not r
indemnity under accident policy
double indemnity for injuries
in consequence of the burnin:
while the insured is therein.".
Life Ins. Co., 207 S. W. 281.

a

1043
INDEX-DIGEST

Judgment
For cases in Det. Tig SR-

Key-No.Series & Indexes see same topic and KEY-NUMBER
the result étis

court had jurisdiction to grant such relief un-
of fact-Id

der the general prayer.-Griner v. Trevino,

': 655; Judgment, 207 S. W. 947.
XX. MUTTLI BRES

ace; Limitation of
umus, 30, 151, VIII. AMENDMENT, CORRECTION,

i Statutes, 279. AND REVIEW IN SAME COURT.
7230
nal insuran

298 (Tex.) Court may revise any judg-
cate was ist

INT.

ment, decree, or order at term at which it
application DE

inal Law, w1186.

was rendered.—Gulf, C. & S. F. Ry. Co. v.
death, held that

Muse, 207 S. W. 897.
verdict tur ti

lar actions or proceed- m 335(1) (Mo.App.) Where defendants appear-
there is so

s specific topics.

ed in an action and filed a motion to strike out
plained of

see Appeal and Error. the petition as being duplicitous, they were not
terial.-X

within the purview of Rev. St. 1909, $ 2101, as
EFAULT.
of Security

parties entitled to file a petition for review.-
7241
and Validity.

State ex rel. and to Use of Mosberg v. Owens,
laws of dejen

...) In suit on vendor's lien 207 S. W. 241.
tion, held.

sure, tried before a special em 335(2) (Mo.App.) A motion to strike out a
not an affe

Jistrict judge, wherein de- petition as duplicitous, filed after the term at
such constitute

Iruling of their objections which the interlocutory and final judgments were
Laws 101

I judge, withdrew from the rendered, is effective, if at all, only as a peti-
sions that

heir counsel, judgment tion for review, under Rev. St. 1909, $ 2101, on
body-Hest

special judge, treating their complying with section 2104, as to showing a
World 2

bandonment of their defense, meritorious defense, etc.-State ex rel. and to
Lars 2011

once and trying the case, Use of Mosberg v. Owens, 207 S. W. 241.
mal bensin

15 a judgment on trial, and w335(2) (Tex.Civ.App.) The principle that
by-las

it by default.-Webb v. Reyn- new trial will not be granted upon newly dis-
there is

covered evidence which is merely cumulative
does it

applies to a bill of review, seeking a review
of asset

Setting Aside Default. and cancellation of judgment after term time.-
=720

CiviApp.) On motion to vacate Texas & P. Ry. Co. v. Duff, 207 S. W. 580.
of a free
t against indorser on note, a

Omw 335(3) (Mo.App.) A motion to strike out a
an der

maker and another indorser petition as duplicitous, construed only as a pe-

lined as defendants was insuffi- tition for review under Rev. St. 1909, $ 2101,
appines
Wokes

appeared that such parties were, alleging that defendant had a meritorious de-

the suit and continuously since, fense, was not a "setting forth" of such defense
Prim
lit.-Drinkard v. Jenkins, 207 S. within section 2104.-State ex rel. and to Use of

Mosberg v. Owens, 207 S. W. 241.
iv.App.) A motion to vacate a

w335(3) (Tex.Civ.App.) In a bill of review
ilar on its face, supported by evi- to set aside a judgment, evidence that the chil-

on default after appearance, made dren of defendant in the judgment had no
pusa

d that defendant had no notice of knowledge that defendant had been served with
ial and that such date had not been citation was too remote to show absence of
Ad, was insufficient, where it did not such service.-McBride v. Kaulbach, 207 S. w.
is, that the case was irregularly

576.
hat counsel had been misled.—Drink- the ground that citation had not been served

In a bill of review to vacate a judgment, on
ets

ins, 207 S. W. 353.
(Ark.) Burden was on defendant to

on defendant, in order that negative testimony,
defense, at least to introduce testi- that witnesses did not know that the citation
king out a prima facie defense, be- had been served, may be giyen probative force,
ould ask for setting aside of original positive facts that, if service had been made,
! against it on ground that there was

witnesses would necessarily have known it,
or service of notice. -Sovereign Camp,

1335(3) (Tex.Civ.App.) In bill of review,

must be shown.-Id.
in of the World, v. Wilson, 207 S. seeking a revision and cancellation of a judg-

ment for personal injuries, held that issues
VI. ON TRIAL OF ISSUES.

presented had been

decided in suit for damages.

-Texas & P. Ry. Co. v. Duff, 207 S. W. 580.
Conformity to Process, Pleadings,
roofs, and Verdict or Findings.

IX. OPENING OR VACATING.
51(1) (Mo.App.) In an action by a divorc-341 (Tex.) Any judgment, decree, or ors
oman to recover rents on her real estate der, including order granting new trial, may

ted by her former husband without her be vacate by court at term at which it was
ent in writing, as required by Rev. St. 1909, rendered.-Gulf, C. & S. F. Ry. Co. v. Muse,
309, where defendant admitted collecting the 207 S. W. 897.
t in his answer, but counterclaimed for mon- m342(1) (Tex.Civ.App.) A judgment rendered
expended in improvements and paid to the by a court of competent jurisdiction and regular
fe, a judgment for defendant on plaintiff's pe- on its face cannot be set aside after the ad-
rion and for plaintiff on defendant's counter-journment of the term at which it was rendered.
aim was erroneous.-Algeo v. Algeo, 207 S. W. -Drinkard v. Jenkins, 207 S. W. 353.
12.
252(1) (Tes. Civ. App.) Under Vernon's

X. EQUITABLE RELIEF.
Cayles' Ann. Civ. St. 1914, art. 1830, subd. 25,
viding that, where freight has been damaged

(A) Nature of Remedy and Grounds.
ransit over two or more railroads, the damage ww443(1) (Tex.Civ.App.) District courts may
I be apportioned among them, does not re- grant relief against a judgment by re-examin-

the apportionment of damage, where de- ing the case on its merits, when it appears that
laints have not filed pleadings asking appor- the judgment has been obtained by fraud, mis-
ment.-Ft. Worth & D. C. Ry. Co. v. Kemp, take, or accident without any want of diligence
S. W. 605.

on the part of the person against whom ren-
»252(5) (Tex.Civ.App.) Although court of dered.-- Texas & P. Ry. Co. v. Duff, 207 S. W.
rum would not have jurisdiction to cancel 580.
struments as requested in special prayer,
where petition stated facts showing jurisdic-

(B) Jurisdiction and Proceedings.
tion of defendants, and that a fraud had been w460(6) (Tex.Civ.App.) In equitable suits to
committed for which a remedy could be afford- reopen judgments for new trial, the complain-
ed by requiring defendants to reconvey, the ling party must allege and show, not only a just

be

INTEREST.

-Adams Express Co. v. Commonwealth, 207 S.

W. 482.
See Appeal and Error, m878; Courts, en Petition alleging that defendant express com-

121; Damages, www157; Exchange of Prop- pany delivered liquor without entering truthful
erty, On 7 ; Subrogation, 31; Usury. statements of amount and kind, name and ad-

dress of consignor, etc., and by whom and to
II. RATE.

whom delivered, did not charge more than one
ww 36(1) (Tex. iv.App.) Intervener's suit be- offense under Ky. St. § 2569b, subsec. 3, offense
ing on an implied contract for reimbursement charged growing out of a single transaction.
for what he had paid, the interest to be recov-

-Id.
ered is the legal rate and not the rate stated Ems 187 (Ky.) In action to recover penalty pre-
in the notes sued on.--Miller v. Guaranty Trust scribed by Ky. St. § 2569b, subsec. 3, as to
& Banking Co., 207 S. W. 642.

keeping records of consignments of liquor, the

petition must contain substantially the same
INTERNATIONAL LAW.

averments that would be required for the state.

ment of the same offense in an indictment un-
See Courts, Cw18.

der the statute.-Commonwealth v. Adams Ex-

press Co., 207 S. W. 486.
INTOXICATING LIQUORS.

In an action to recover penalty prescribed by

Ky, St. $ 2569b, subsec, 3, as to keeping record
See Evidence, w523, 547; Pleading, w403; of consignments of liquor, a shipment, or ship-
War, m4.

ments, of spirituous, vinous, or malt liquors in

prohibited territory was a necessary ingredient
II. CONSTITUTIONALITY OF ACTS to the offense, which petition must charge.-Id.
AND ORDINANCES.

In action to recover penalty prescribed by
em 17 (Tex.Cr.App.) Acts 35th Leg. (4th Called that defendant express company did unlawfully

Ky. St. $ 2569b, subsec. 3, petition, alleging
Sess.) c. 24, p. 37, prohibiting the sale, barter, fail and refuse to keep open for public inspec-
or exchange of intoxicating liquors throughout tion book containing entries with reference to
the state, violates Const. art. 16, $_20, relating consignments of liquor, was fatally defective,
to local option.-Ex parte Myer, 207 S. W. 100. where it failed to allege that inspection re-

In the absence of Const. art. 16, $ 20, there quested and refused was during business bours.
would be no restriction upon the power of the -Id.
Legislature to prohibit the sale of intoxicating w 188 (Ky.) In action against defendant ex-
liquors throughout the state under the police press company for delivering liquor without en.
power.-Id.

tering pon a separate book the amount and
The state Legislature cannot, on the ground of kind of liquor, etc., evidence held sufficient to
military necessity, pass a general prohibition show a violation of Ky. St. 8 2569b, subsec. 3.
law, under Const. art. 16, $ 28, the federal gov- -Adams Express Co. v. Commonwealth, 207 S.
ernment being able to take care of its army. W. 482.
-Id.

Om 188 (Ky.) Evidence that in delivering pack-
IV. LICENSES AND TAXES.

age defendant express company's agent made in

its book kept for that purpose no entries show-
Cuma 108(10). (Tex.Civ.App.) A petition to com- ing quantity or kind of liquor delivered or date
pel the acting comptroller of Texas to reinstate of delivery, although label on package showed
a retail liquor license held, as against general that it contained five quarts of whisky, was
demurrer, to sufficiently allege the license was

sufficient to support verdict against the com-
rescinded and vacated.-Tittle y. Bartholomae, pany in penal action under Ky. St. $2569b,
207 S. W. 176.

subsec. 3.--Adams Express Co. v. Common-

wealth, 207 S. W. 485.
VI. OFFENSES.

cm191 (Ky.) In penal action against express
138 (Mo.) Since the adoption of the Webb- Ky. St. $ 2569b, subsec. 3, as to failure to make

company for violation of some of provisions of
Kenyon Act (U. S. Comp. St. 1916, § 8739) and required entries with reference to shipments of
the sustention of its constitutionality by the liquor if conviction or acquittal results, carrier
Supreme Court of United States, carriers have cannot, in another action growing out of the
no right to transport and deliver intoxicants

same delivery, be convicted of a violation of
into a state in contravention of its local laws:- other provisions, in view of Crim. Code, g 126.-
City of Kirksville v. Warden, 207 S. W. 66.

Adams Express Co. v. Commonwealth, 207 S.

W. 482.
VII. ACTIONS FOR PENALTIES.

Om 191 (Ky.) Conviction under Ky. St. $ 2569b,
ww179 (Ky.) In action against defendant ex-

subsec. 3, with reference to recording deliver.
press company for violation of Ky. St. $ 2.369b, ies, growing out of violation with respect to a
subsec. 3, court properly instructed that de- shipment and delivery of whisky to one indi-
fendant was guilty if it delivered package of vidual, would not be a bar to penal action grow-
liquor without entering or causing to be en. ing out of shipment and delivery to another in-
tered truthful statements of amount and kind dividual; the two offenses being distinct,
of liquor or date when received or by whom and though deliveries were made at the same time
to whom delivered, since, if any one or more of and place.- Adams Express Co. v. Common-
the entries mentioned were not made, defend wealth, 207 S. W. 485.
ant was amenable to the fine prescribed.--Ad-w 193 (Ky.) There being evidence to support
ams Express Co. v. Commonwealth, 207 S. W. verdict in a penal action under Ky. St. $ 2569b,
482.

subsec. 3, court on appeal is without authority
C179 (Ky.) The failure of carrier to obey to disturb it.-Adams Express Co. v. Common-
any of mandatory provision of Ky. St. $ 2569b. wealth, 207 S. W. 485.
subsec. 3, will subject it to the penalty imposed,
whether there be a failure to keep required VIII. CRIMINAL PROSECUTIONS.
book at local office in territory where sale of
liquors is prohibited, to make any one of the

0236(1) (Mo.) In prosecution for violation of
entries required, or to keep the book open to ordinance framed in language of Rev. St. $s
public inspection during business hours.--Com- 7227--7229, evidence held to show delivery of
monwealth v. Adams Express Co., 207 S. w. intoxicants by defendant to another in local
136.

option territory within the terms of section
Em 187 (Ky.) In action against defendant ex-17227.--City of Kirksville v. Warden, 207 S.
press company for delivering liquor without en-

W. 66.
tering mpon a separate book the amount and

JOINT TENANCY.
kind of liquor, etc., petition held to clearly
charge a violation of Ky. St. & 2369b, subsec. 3. See Tenancy in Common.

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

court had jurisdiction to grant such relief un-

der the general prayer.-Griner y. Trevino,
See Criminal Law, 252, 655; Judgment, 207 S. W. 947.

Om104; Justices of the Peace; Limitation of
Actions, ww192; Mandamus, un 30, 151, VIII. AMENDMENT, CORRECTION,
164; Prohibition, 19; Statutes, 279. AND REVIEW IN SAME COURT.

298 (Tex.) Court may revise any judg-
JUDGMENT.

ment, decree, or order at term at which it
See Costs, em 231; Criminal Law, em 1186.

was rendered.-Gulf, C. & S. F. Ry. Co. v.

Muse, 207 S. W. 897.
For judgments in particular actions or proceed. Om 335(1) (Mo.App.) Where defendants appear-

ings, see also the various specific topics. ed in an action and 'filed a motion to strike out
For review of judgments, sce Appeal and Error. the petition as being duplicitous, they were not

within the purview of Rev. St. 1909, $ 2101, as
IV. BY DEFAULT.

parties entitled to file a petition for review.-
(A) Requisites and Validity.

State ex rel. and to Use of Mosberg v. Owens,
Ora 104 (Tex.Com.App.) In suit on vendor's lien 207 S. W. 241.
note and for foreclosure, tried before a special em 335(2) (Mo.App.) A motion to strike out a
judge in absence of district judge, wherein de petition as duplicitous, filed after the term at
fendants, after the overruling of their objections which the interlocutory and final judgments were
to election of special judge, withdrew from the rendered, is effective, if at all, only as a peti-
courtroom with their counsel, a judgment tion for review, under Rev. St. 1909, $ 2101, on
against them by the special judge, treating their complying with section 2104, as to showing a
withdrawal as an abandonment of their defense, meritorious defense, etc.-State ex rel. and to
after hearing evidence and trying the case, Use of Mosberg v. Owens, 207 S. W. 241.
would be treated as a judgment on trial, and w335(2) (Tex.Civ.App.) The principle that
not as a judgment by default.-Webb v. Reyn- new trial will not be granted upon newly dis-
olds, 207 S. W. 914.

covered evidence which is merely cumulative

applies to a bill of review, seeking a review
(B) Opening or Setting Aside Default. and cancellation of judgment after term time.-
Om 145(4) (Tex.Civ. App.) On motion to vacate Texas & P. Ry. Co. v. Duff, 207 S. W. 580.
default judgment against indorser on note, a

Om 335(3) (Mo.App.) A motion to strike out a
defense that the maker and another indorser petition as duplicitous, construed only as a pe-
had not been joined as defendants was insuffi- tition for review under Rev. St. 1909, $ 2101,
cient, where it appeared that such parties were, alleging that defendant had a meritorious de-
at the time of the suit and continuously since, fense, was not a "setting forth" of such defense
wholly insolvent.--Drinkard v. Jenkins, 207 S! within section 2104.-State ex rel. and to Use of
W. 353.

Mosberg v. Owens, 207 S. W. 241.
w 151 (Tex.Civ.App.) A motion to vacate a

335(3) (Tex.Civ.App.) In a bill of review
judgment regular on its face, supported by evi- to set aside a judgment, evidence that the chil-
dence, entered on default after appearance, made dren of defendant in the judgment had no
on the ground that defendant had no notice of knowledge that defendant had been served with
the date of trial and that such date had not been

citation was too remote to show absence of
set nor posted, was insufficient, where it did not such service.-McBride v. Kaulbach, 207 S. W.
show defects, that the case

576.

was irregularly
tried, nor that counsel had
been misled.—Drink- the ground that citation had not been served

In a bill of review to vacate a judgment, on
ard v. Jenkins, 207 S. W. 353.
em 162(2) (Ark.) Burden was on defendant to

on defendant, in order that negative testimony,
prove its defense, at least to introduce testi- that witnesses did not know that the citation
mony making out a prima facie defense. be had been served, may be given probative force,
fore it could ask for setting aside of original positive facts that, if service had been made,
judgment against it on ground that there was

witnesses would necessarily have known it,

must be shown.--Id.
no proper service of notice.-Sovereign Camp, em 335(3) (Tex.Civ.App.) In bill of review,
Woodmen of the World, v. Wilson, 207 S. seeking a revision and cancellation of a judg-
W. 13,

ment for personal injuries, held that issues
VI. ON TRIAL OF ISSUES.

presented had been decided in suit for damages.

--Texas & P. Ry. Co. v. Duff, 207 S. W. 580.
(C) Conformity to Process, Pleadings,
Proofs, and Verdict or Findings.

IX. OPENING OR VACATING.
251(1) (Mo.App.) In an action by a divorc-341 (Tox.) Any judgment, decree, or
ed woman to recover rents on her real estate der, including order granting new trial, may
collected by her former husband without her he vacated by court at term at which it was
consent in writing, as required by Rev. St. 1909, rendered.-Gulf, C. & S. F. Ry. Co. v. Muse,
$ $309, where defendant admitted collecting the 207 S. W. 897.
rent in his answer, but counterclaimed for mon-om 342(1) (Tes. Civ.App.) A judgment rendered
ey expended in improvements and paid to the by a court of competent jurisdiction and regular
wife, a judgment for defendant on plaintiff's pe-on its face cannot be set aside after the ad-
tition and for plaintiff on defendant's counter-journment of the term at which it was rendered.
claim was erroneous.-Algeo v. Algeo, 207 S. W.-Drinkard v. Jenkins, 207 S. W. 353.
842.
Aww 252(1) Tex. Civ. App.) Under Vernon's

X. EQUITABLE RELIEF.
Sayles' Ann. Civ. St. 1914, art. 1830, subd. 25,
providing that, where freight has been damaged

(A) Nature of Remedy and Grounds.
in transit over two or more railroads, the damage ww443(1) (Tex.Civ.App.) District courts may
shall be apportioned among them, does not re-

grant relief against a judgment by re-examin-
quire the apportionment of damage, where de- ing the case on its merits, when it appears that
fendants have not filed pleadings asking appor- the judgment has been obtained by fraud, mis-
tionment.-Ft. Worth & D. C. Ry. Co. v. Kemp, take, or accident without any want of diligence
207 S. W. 605.

on the part of the person against whom ren-
m252(5) (Tex.Civ.App.) Although court of dered.- Texas & P. Ry. Co. v. Duff, 207 S. W.
forum would not have jurisdiction to cancel 580.
instruments as requested in special prayer,
where petition stated facts showing jurisdic-

(B) Jurisdiction and Proceedings.
tion of defendants, and that a fraud had been w460(6) (Tex.Civ.App.) In equitable suits to
comunitted for which a remedy could be afford- reopen judgments for new trial, the complain-
ed by requiring defendants to reconvey, the ing party must allege and show, not only a just

or