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.
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.
(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
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
nal benefic by-laws a pie thereof
does not appr of age of -7242 3 of a frate an offer supreme
Key-No.Series & Indexes see same topic and KEY-NUMBER
655; Judgment, ace; Limitation of amus, 30, 151, Statutes, 279.
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.
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.
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 committed for which a remedy could be afford- ed by requiring defendants to reconvey, the
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
See Appeal and Error, 878; Courts, 121; Damages, 157; Exchange of Prop- erty, 7; Subrogation, 31; Usury.
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.
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.
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.
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.
For cases in Dec,Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER
See Criminal Law, 252, 655; Judgment, 104; Justices of the Peace; Limitation of Actions, 192; Mandamus, 30, 151, 164; Prohibition, 19; Statutes, 279. 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.
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.
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,
VI. ON TRIAL OF ISSUES.
(C) Conformity to Process, Pleadings, Proofs, 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.
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.
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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