The Southwestern Reporter

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
of fact.-Id.

XX. MUTUAL BENEFIT INSURANCE.
(B) The Contract in General.

Where a member of a fraternal insurance or-
der who designated two beneficiaries secured
the erasure of the name of one of them from
the certificate, held that though such attempt
to change beneficiaries was irregular and might
where the insurer acquiesced in the change, the
give the insurer the right to deny liability, yet,
displaced beneficiary was entitled to no rights.

-Id.

723(7) (Ky.) Where a member of a frater-
nal insurance society, to whom a benefit certifi-
cate was issued, made a false statement in her
application as to the cause of her mother's
verdict for the beneficiary was improper, if two beneficiaries attempted to displace one by
death, held that, under Ky..St. § 639, a directed784 (7), (Tex. Civ.App.) Where a member of
a fraternal insurance order who had designated
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
court, ratified the certificate in its altered
form; no new consideration being necessary.-
Bills v. Bills, 207 S. W. 614.

724(1) (Mo.App.) Under constitution and by-
laws of defendant fraternal beneficiary associa-
tion, held, that a local medical examiner was
not an officer of the local lodge, prohibited by
such constitution and by-laws, as authorized by
Laws 1911, p. 292, § 22, from waiving provi-
sions thereof; but was an agent of the supreme
body. Hereford v. Mystic Workers of the
World, 207 S. W. 76.

Where a fraternal insurer ratified a change of
beneficiary by filing an answer admitting its lia-
bility, held that it could not thereafter arbitra-
rily repudiate its ratification so as to entitle
the displaced beneficiary to share in the fund.

-Id.

(F) Actions for Benefits.

Laws 1911, p. 292, § 22, authorizing a frater-
nal benefit association by its constitution and
by-laws to prohibit 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 serv
ice of process, where it did so thereafter, subse-
quent service on the clerk of a local lodge, in
compliance with the superseded statute (Kirby's
Dig. § 4378), was not proper.-Sovereign Camp,
Woodmen of the World, v. Wilson, 207 S.
W. 45.

724(2) (Mo.App.) A local medical examiner
of a fraternal beneficiary association, not being
an officer of the local lodge, but an agent of the
supreme body, could waive warranties in the
application for insurance.-Hereford v. Mystic
Workers of the World, 207 S. W. 76.

Provision of application for insurance in a
fraternal benefit association making answers
warranties was waived; the local medical ex-
aminer, agent of the supreme body, who wrote
the answers, having for years been insured's
physician, and knowing as much about her as
she did.-Id.

(D) Forfeiture or Suspension.
755(3) (Ark.) Where member of benefit soci-
ety was engaged in extrahazardous occupation,
and never changed, but the society voluntarily
reduced assessment as if he had, and it was
paid for years, after member's death society can-
not insist on forfeiture by failure to pay assess-
ments based on extrahazardous occupation on
the ground member was in default in failing to
give notice of resumption of such occupation,
which he had never abandoned.-Sovereign
Camp, Woodmen of the World, v. Wilson, 207 S.
W. 45.

(E) Beneficiaries and Benefits.

771 (Mo.App.) Deceased's mother, though
living in a home for widows, being dependent on
and supported by him, was a member of his
"family," within the constitution of a police re-
lief association, declaring as an object "aiding
the families" of members, so as to permit of her
being designated as beneficiary in his certificate
of life insurance issued by it, though he also
had a wife, from whom he was living apart.-
St. Louis Police Relief Ass'n v. Houlehin, 207
S. W. 880.

817(2) (Mo.App.) In an action on a frater-
nal life insurance certificate, wherein plaintiff
admitted that assured's signature to the appli-
cation was genuine and that the application
represented that assured had not been rejected
by other companies, the burden was on plaintiff
to overcome defendant's prima facie showing of
misrepresentations, and not on defendant to
show that the applicant's .answers were in fact
his.-Weise v. Sovereign Camp Woodmen of the
World, 207 S. W. 249.

819(1) (Mo.App.) Evidence held to author-
ize finding that deceased's mother was depend-
ent and supported by him, so as to allow her, as
a member of his family, under the constitution
of a police relief association, to be designated as
beneficiary in his certificate of life insurance is-
sued by it.-St. Louis Police Relief Ass'n v.
Houlehin, 207 S. W. 880.

819(4) (Mo.App.) Statement in coroner's
certificate of death under Rev. St. 1909, § 6671,
that suicide was contributory to death of insur-
ed, is a conclusion, and not a statement of fact.
within section 6684, declaring a certified copy
of the record of a death prima facie evidence of
the facts therein stated.-Schmidt v. Supreme
Council of Royal Arcanum, 207 S. W. 874.

825(2) (Ky.) In an action on a certificate
issued by a fraternal insurer, held, under the
evidence, that the issue whether the false state-
ment made by the member as to the cause of
her mother's death was fraudulently made was
for the jury.-National Council of Knights and
Ladies of Security v. Dean, 207 S. W. 702.

825(3) (Mo.App.) Evidence, with presump-
tion against suicide, held to make a question for
jury whether insured committed suicide, pre-
venting recovery on his benefit certificate.-
Schmidt v. Supreme Council of Royal Arcanum,
207 S. W. 874.

783 (Tex.Civ.App.) A beneficiary named in
fraternal benefit certificate, providing for
change of beneficiary, has no vested interest in
the contract of insurance which will prevent
the insured from changing any of the terms of
the contract, but has a mere expectancy, which
may be defeated by a change of beneficiary.-826(1) (Mo.App.) In an action on a frater-
Bills v. Bills, 207 S. W. 614.
nal life insurance certificate, wherein misrepre-
sentations in the application were alleged, evi-
dence that the examining physician had filled in
applicant's answers in the application and re-
port, and that there were inaccuracies, held not
sufficient to warrant an instruction as to wheth-
er or not the answers of the applicant were in
fact his; applicant's signature being admitted.
-Weise v. Sovereign Camp, Woodmen of the
World, 207 S. W. 249.

784 (6) (Tex.Civ.App.) A displaced benefici-
ary can question insured's method of making
change of beneficiary only on the ground that it
was legally insufficient to accomplish that pur-
pose, where the insurer acquiesced therein,
though the method did not follow the procedure
provided in the certificate; those requirements
being for the benefit of the insurer.-Bills v.
Bills, 207 S. W. 614.

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 externa.
means expressly declared that it should no
cover injuries intentionally inflicted upon the
insured by himself or by any other person e
cept by burglars and robbers, the company
not liable where one not a burglar or robber
tentionally shot and killed the insured.-Nati
al Life & Accident Ins. Co. v. De Lopez, 207
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 the
of the property insured and the specific
to be paid for its loss or damage, an
absence of fraud, such agreed valua
conclusive.-St. Paul Fire & Marine
v. Pipkin, 207 S. W. 360.

(E) Accident and Health Insi
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 clothin
burned switchboard, could not r
indemnity under accident policy
double indemnity for injuries
in consequence of the burning
while the insured is therein."-
Life Ins. Co., 207 S. W. 281.

XIV. NOTICE AND PRO

539(1) (Tex.Civ.App.)_V
Ann. Civ. St. 1914, art. 57
lations as to notice of claim
reasonable, invalidating a
tice of less than 90 days, a
tice shall be presumed to
thereof be expressly ple
plies to notice and proof
insurance policy.-St. Pa
Co. v. Pipkin, 207 S. W
561 (Tex. Civ.App.)
insurance policy, who,
an unsworn claim for
juster who viewed th
bility, presented a for
the percentage of loss
ed a settlement after
a formal proof of lo
mal proof, notwith
policy that no denia
the company shoul
proof.-St. Paul Fi
kin, 207 S. W. 36

XV. ADJ
570

surer

For cases in Der Tig

the result of his
of fact-Id

XX. MUTUAL BRING
(B) The Dan

5723TT.

nal insurer su
cate was issuPE
application a
death, held that

verdict for fin

nal benefic
by-laws a pie
thereof

does not appr
of age of
-7242 3
of a frate
an offer
supreme

applice
Workers

Pre

fratern

2mine?

the

phys

she

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

655; Judgment,
ace; Limitation of
amus, 30, 151,
Statutes, 279.

ENT.

Judgment

AND REVIEW IN SAME COURT.
298 (Tex.) Court may revise any judg-
ment, decree, or order at term at which it
was rendered.-Gulf, C. & S. F. Ry. Co. v.
Muse. 207 S. W. 897.

ar actions or proceed-335(1) (Mo.App.) Where defendants appear-
specific topics.
ed in an action and filed a motion to strike out
the petition as being duplicitous, they were not
within the purview of Rev. St. 1909, § 2101, as
parties entitled to file a petition for review.-
State ex rel. and to Use of Mosberg v. Owens,
207 S. W. 241.

and Validity.
In suit on vendor's lien
re, tried before a special 335(2) (Mo.App.) A motion to strike out a
strict judge, wherein de- petition as duplicitous, filed after the term at
ruling of their objections which the interlocutory and final judgments were
judge, withdrew from the rendered, is effective, if at all, only as a peti-
eir counsel, a judgment tion for review, under Rev. St. 1909, § 2101, on
Special judge, treating their complying with section 2104, as to showing a
indonment of their defense, meritorious defense, etc.-State ex rel. and to
nce and trying the case, Use of Mosberg v. Owens, 207 S. W. 241.
a judgment on trial, and 335(2) (Tex.Civ.App.) The principle that
by default.-Webb v. Reyn- new trial will not be granted upon newly dis-
covered evidence which is merely cumulative
applies to a bill of review, seeking a review
and cancellation of judgment after term time.-
Texas & P. Ry. Co. v. Duff, 207 S. W. 580.

r Setting Aside Default.

iv.App.) On motion to vacate
against indorser on note, a
maker and another indorser
ined as defendants was insuffi-
appeared that such parties were,
the suit and continuously since,
it.-Drinkard v. Jenkins, 207 S.

335(3) (Mo.App.) A motion to strike out a
petition as duplicitous, construed only as a pe-
tition for review under Rev. St. 1909, § 2101,
alleging that defendant had a meritorious de-
fense, was not a "setting forth" of such defense
within section 2104.-State ex rel. and to Use of
Mosberg v. Owens, 207 S. W. 241.

iv.App.) A motion to vacate a
335(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
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
d, was insufficient, where it did not such service.-McBride v. Kaulbach, 207 S. W.
ts, that the case
576.
was irregularly
at counsel had been misled.-Drink-
ins, 207 S. W. 353.
(Ark.) Burden was on defendant to
defense, at least to introduce testi-
king out a prima facie defense, be-
ould ask for setting aside of original
against it on ground that there was
r service of notice.-Sovereign Camp,
n of the World, v. Wilson, 207 S.

VI. ON TRIAL OF ISSUES.
Conformity to Process, Pleadings,
'roofs, and Verdict or Findings.

the ground that citation had not been served
In a bill of review to vacate a judgment, on
on defendant, in order that negative testimony,
that witnesses did not know that the citation
had been served, may be given probative force,
positive facts that, if service had been made,
witnesses would necessarily have known it,
must be shown.-Id.

335 (3) (Tex.Civ.App.) In bill of review,
seeking a revision and cancellation of a judg-
ment for personal injuries, held that issues
presented had been decided in suit for damages.
-Texas & P. Ry. Co. v. Duff, 207 S. W. 580.
IX. OPENING OR VACATING.

51(1) (Mo.App.) In an action by a divorc-341 (Tex.) Any judgment, decree, or or
oman to recover rents on her real estate der, including order granting new trial, may
ted by her former husband without her be vacated 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-342(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-
tion 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.

42.

252(1) (Tex. Civ. App.) Under Vernon's
Sayles' Ann. Civ. St. 1914, art. 1830, subd. 25,
providing that, where freight has been damaged
in transit over two or more railroads, the damage
shall be apportioned among them, does not re-
quire the apportionment of damage, where de-
fendants have not filed pleadings asking appor-
tionment.-Ft. Worth & D. C. Ry. Co. v. Kemp,
207 S. W. 605.

X. EQUITABLE RELIEF.

(A) Nature of Remedy and Grounds.

443(1) (Tex.Civ.App.) District courts may
grant relief against a judgment by re-examin-
ing the case on its merits, when it appears that
the judgment has been obtained by fraud, mis-
take, or accident without any want of diligence
on the part of the person against whom ren-
dered.-Texas & P. Ry. Co. v. Duff, 207 S. W.
580.

(B) Jurisdiction and Proceedings.

460 (6) (Tex.Civ.App.) In equitable suits to
reopen judgments for new trial, the complain-
ing party must allege and show, not only a ju

INTEREST.

See Appeal and Error, 878; Courts,
121; Damages, 157; Exchange of Prop-
erty, 7; Subrogation, 31; Usury.

II. RATE.

36(1) (Tex.Civ.App.) Intervener's suit be-
ing on an implied contract for reimbursement
for what he had paid, the interest to be recov-
ered is the legal rate and not the rate stated
in the notes sued on.-Miller v. Guaranty Trust
& Banking Co., 207 S. W. 642.

INTERNATIONAL LAW.

See Courts, 18.

INTOXICATING LIQUORS.
See Evidence, 528, 547; Pleading,
War, 4.

II. CONSTITUTIONALITY OF ACTS

AND ORDINANCES.

-Adams Express Co. v. Commonwealth, 207 S.
W. 482.

Petition alleging that defendant express com-
pany delivered liquor without entering truthful
statements of amount and kind, name and ad-
dress of consignor, etc., and by whom and to
whom delivered, did not charge more than one
offense under Ky. St. § 2569b, subsec. 3, offense
charged growing out of a single transaction.

-Id.

187 (Ky.) In action to recover penalty pre-
scribed by Ky. St. § 2569b, subsec. 3, as to
keeping records of consignments of liquor, the
petition must contain substantially the same
averments that would be required for the state-
ment of the same offense in an indictment un-
der the statute.-Commonwealth v. Adams Ex-
press Co., 207 S. W. 486.

In an action to recover penalty prescribed by
Ky. St. § 2569b, subsec. 3, as to keeping record
403; of consignments of liquor, a shipment, or ship-
ments, of spirituous, vinous, or malt liquors in
prohibited territory was a necessary ingredient
to the offense, which petition must charge.-Id.
In action to recover penalty prescribed by
Ky. St. 2569b, subsec. 3, petition, alleging
that defendant express company did unlawfully
fail and refuse to keep open for public inspec-
tion book containing entries with reference to
consignments of liquor, was fatally defective,
where it failed to allege that inspection re-
quested and refused was during business hours.
Id.

17 (Tex.Cr.App.) Acts 35th Leg. (4th Called
Sess.) c. 24, p. 37, prohibiting the sale, barter,
or exchange of intoxicating liquors throughout
the state, violates Const. art. 16, § 20, relating
to local option.-Ex parte Myer, 207 S. W. 100.
In the absence of Const. art. 16, § 20, there
would be no restriction upon the power of the
Legislature to prohibit the sale of intoxicating188 (Ky.) In action against defendant ex-
liquors throughout the state under the police press company for delivering liquor without en-
power.-Id.
tering upon 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. § 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.

IV. LICENSES AND TAXES.
108(10) (Tex.Civ.App.) A petition to com-
pel the acting comptroller of Texas to reinstate
a retail liquor license held, as against general
demurrer, to sufficiently allege the license was
rescinded and vacated.-Tittle v. Bartholomae,
207 S. W. 176.

VI. OFFENSES.

138 (Mo.) Since the adoption of the Webb-
Kenyon Act (U. S. Comp. St. 1916, § 8739) and
the sustention of its constitutionality by the
Supreme Court of United States, carriers have
no right to transport and deliver intoxicants
into a state in contravention of its local laws.
City of Kirksville v. Warden, 207 S. W. 66.

VII. ACTIONS FOR PENALTIES.

179 (Ky.) In action against defendant ex-
press company for violation of Ky. St. § 2569b,
subsec. 3, court properly instructed that de-
fendant was guilty if it delivered package of
liquor without entering or causing to be en-
tered truthful statements of amount and kind
of liquor or date when received or by whom and
to whom delivered, since, if any one or more of
the entries mentioned were not made, defend-
ant was amenable to the fine prescribed.-Ad-
ams Express Co. v. Commonwealth, 207 S. W.
482.

179 (Ky.) The failure of carrier to obey
any of mandatory provision of Ky. St. § 2569b
subsec. 3, will subject it to the penalty imposed,
whether there be a failure to keep required
book at local office in territory where sale of
liquors is prohibited, to make any one of the
entries required, or to keep the book open to
public inspection during business hours.-Com-
monwealth v. Adams Express Co., 207 S. W.

486.

188 (Ky.) Evidence that in delivering pack-
age defendant express company's agent made in
its book kept for that purpose no entries show-
ing quantity or kind of liquor delivered or date
of delivery, although label on package showed
that it contained five quarts of whisky, was
sufficient to support verdict against the com-
pany in penal action under Ky. St. § 2569b,
subsec. 3.-Adams Express Co. v. Common-
wealth, 207 S. W. 485.

191 (Ky.) In penal action against express
company for violation of some of provisions of
Ky. St. § 2569b, subsec. 3, as to failure to make
required entries with reference to shipments of
liquor if conviction or acquittal results, carrier
cannot, in another action growing out of the
same delivery, be convicted of a violation of
other provisions, in view of Crim. Code, § 126.-
Adams Express Co. v. Commonwealth, 207 S.
W. 482.

191 (Ky.) Conviction under Ky. St. § 2569b,
subsec. 3. with reference to recording deliver-
ies, growing out of violation with respect to a
shipment and delivery of whisky to one indi-
vidual, would not be a bar to penal action grow-
ing out of shipment and delivery to another in-
the
dividual;
two offenses being distinct,
though deliveries were made at the same time
and place. Adams Express Co. v. Common-
wealth, 207 S. W. 485.

193 (Ky.) There being evidence to support
verdict in a penal action under Ky. St. § 2569b,
subsec. 3, court on appeal is without authority
to disturb it.-Adams Express Co. v. Common-
wealth, 207 S. W. 485.

VIII. CRIMINAL PROSECUTIONS.

236(1) (Mo.) In prosecution for violation of
ordinance framed in language of Rev. St. $8
7227-7229, evidence held to show delivery of
intoxicants by defendant to another in local
option territory within the terms of section
7227.-City of Kirksville v. Warden, 207 S.
W. 66.

187 (Ky.) In action against defendant ex-
press company for delivering liquor without en-
tering upon a separate book the amount and
kind of liquor, etc., petition held to clearly
charge a violation of Ky. St. § 2569b, subsec. 3. See Tenancy in Common.

JOINT TENANCY.

INDEX-DIGEST

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

JUDGES.

See Criminal Law, 252, 655; Judgment,
104; Justices of the Peace; Limitation of
Actions, 192; Mandamus, 30, 151,
164; Prohibition, 19; Statutes, 279.
JUDGMENT.

See Costs,

231; Criminal Law, 1186.

Judgment

court had jurisdiction to grant such relief un-
207 S. W. 947.
der the general prayer.-Griner v. Trevino,

VIII. AMENDMENT, CORRECTION,
AND REVIEW IN SAME COURT.

298 (Tex.) Court may revise any judg-
ment, decree, or order at term at which it
was rendered.-Gulf, C. & S. F. Ry. Co. v.
Muse. 207 S. W. 897.

For judgments in particular actions or proceed-335(1) (Mo.App.) Where defendants appear-
ings, see also the various specific topics.
For review of judgments, see Appeal and Error.

IV. BY DEFAULT.

the petition as being duplicitous, they were not
ed in an action and filed a motion to strike out
within the purview of Rev. St. 1909, § 2101, as
parties entitled to file a petition for review.-
State ex rel. and to Use of Mosberg v. Owens,
207 S. W. 241.

(A) Requisites and Validity.
104 (Tex.Com.App.) In suit on vendor's lien
note and for foreclosure, tried before a special 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 335(2) (Tex.Civ.App.) The principle that
not as a judgment by default.-Webb v. Reyn-
olds, 207 S. W. 914.

(B) Opening or Setting Aside Default.
145(4) (Tex. Civ.App.) On motion to vacate
default judgment against indorser on note, a
defense that the maker and another indorser
had not been joined as defendants was insuffi-
cient, where it appeared that such parties were,
at the time of the suit and continuously since,
wholly insolvent.-Drinkard v. Jenkins, 207 S.
W. 353.

new trial will not be granted upon newly dis-
covered evidence which is merely cumulative
applies to a bill of review, seeking a review
and cancellation of judgment after term_time.-
Texas & P. Ry. Co. v. Duff, 207 S. W. 580.
335(3) (Mo.App.) A motion to strike out a
petition as duplicitous, construed only as a pe-
tition for review under Rev. St. 1909, § 2101,
alleging that defendant had a meritorious de-
fense, was not a "setting forth" of such defense
within section 2104.-State ex rel. and to Use of
Mosberg v. Owens, 207 S. W. 241.

335(3) (Tex.Civ.App.) In a bill of review
to set aside a judgment, evidence that the chil-
dren of defendant in the judgment had no
knowledge that defendant had been served with
citation was too remote to show absence of
such service.-McBride v. Kaulbach, 207 S. W.

576.

151 (Tex.Civ.App.) A motion to vacate a
judgment regular on its face, supported by evi-
dence, entered on default after appearance, made
on the ground that defendant had no notice of
the date of trial and that such date had not been
set nor posted, was insufficient, where it did not
show defects, that the case
tried, nor that counsel had been misled.-Drink-
was irregularly
ard v. Jenkins, 207 S. W. 353.
162(2) (Ark.) Burden was on defendant to
prove its defense, at least to introduce testi-
mony making out a prima facie defense, be-
fore it could ask for setting aside of original
judgment against it on ground that there was
no proper service of notice.-Sovereign Camp,
Woodmen of the World, v. Wilson, 207 S. 335(3) (Tex. Civ.App.) In bill of review,

W. 45.

VI. ON TRIAL OF ISSUES.

seeking a revision and cancellation of a judg-
ment for personal injuries, held that issues
presented had been decided in suit for damages.
-Texas & P. Ry. Co. v. Duff, 207 S. W. 580.
IX. OPENING OR VACATING.

251(1) (Mo.App.) In an action by a divorc-341 (Tex.) 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 be 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,
§ 8309, where defendant admitted collecting the 207 S. W. 897.
rent in his answer, but counterclaimed for mon-342(1) (Tex.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.

252(1) (Tex. Civ. App.) Under
Sayles' Ann. Civ. St. 1914, art. 1830, subd. 25,
Vernon's
providing that, where freight has been damaged
in transit over two or more railroads, the damage
shall be apportioned among them, does not re-
quire the apportionment of damage, where de-
fendants have not filed pleadings asking appor-
tionment.-Ft. Worth & D. C. Ry. Co. v. Kemp,
207 S. W. 605.

X. EQUITABLE RELIEF.

(A) Nature of Remedy and Grounds.

443(1) (Tex.Civ.App.) District courts may
ing the case on its merits, when it appears that
grant relief against a judgment by re-examin-
the judgment has been obtained by fraud, mis-
take, or accident without any want of diligence
dered.-Texas & P. Ry. Co. v. Duff, 207 S. W.
on the part of the person against whom ren-
580.

(B) Jurisdiction and Proceedings.

252 (5) (Tex. Civ.App.) Although court of
forum would not have jurisdiction to cancel
instruments as requested in special prayer,
where petition stated facts showing jurisdic-
tion of defendants, and that a fraud had been 460(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 ing party must allege and show, not only a just

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Books

The Southwestern Reporter, 207. köide