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It Supplements the Decennial Digests, the Key-Number Series and

Prior Reporter Volume Index-Digests


tween the parties, constituted an accord and

satisfaction, precluding plaintiff's subsequent See Appeal and Error, 1090; Attorney and

recovery.-Id. Client, 76, 145; Divorce, 37; Eminent Domain, m2; Husband and Wife, em

ACCOUNT. 302, 304, 313; Landlord and Tenant, w 66; Limitation of Actions,

See Guardian and Ward, 180; Limitation

118; Pledges, em of Actions. 25; Seduction, w52; Street Railroads, en

199; Tenancy in Common, 55, 60.

Oma 15; Trasts, 289.

III. DEFECTS AND OBJECTIONS AS See Adverse Possession, Om60; Deeds, en

208. TO PARTIES AND PROCEEDINGS. e 39 (Tex.Civ.App.) Dissolution of a corpora

II. TAKING AND CERTIFICATE. tion under Vernon's Sayles' Ann. Civ. St. arts. 38 (Mo.App.) Acknowledgment of corpora1206-1208, did not abate a suit pending against tion's chattel mortgage need not state it was the corporation, or deprive the court of power executed by authority of its board of directors, to render judgment; the dissolution under such that part of Rev. St. 1909, $ 2799, prescribstatutes being a qualified one.-Butcher V. J. ing the form that “may be used" in acknowlI. Case Threshing Mach. Co., 207 S. W. 980. edgment by corporations being permissive only,

and it being enough that the acknowledgment V. DEATH OF PARTY AND REVIVAL would have been good before the statute.-P. OF ACTION.

R. Sinclair Coal Co. v. Missouri-Hydraulic Min(A) Abatement or Survival of Action. ing Co., 207 S. W. 266.

48 (Mo.) A judgment rendered against a party who died after citation and before verdict

ACTION. is absolutely null and void as to him, his heirs and devisees, under Rev. St. 1909, 88 1916,

See Abatement and Revival. 1921-1923. relating to revival of suits on death. of party.--Cole v. Parker-Washington Co., 207



50(6) (Ky.) Plaintiff cannot in the same ac(B) Continuance or Revival of Action. tion prosecute two defendants, for distinct

71 (Mo.) Where petition on special tax bills torts, committed by each, independently, alagainst lots named a wife as a party, probably though the consequences of the tort of one deon account of her dower rights, and the hus- j fendant united with those of the tort of the band died after citation and before verdict, all other.-Stephens v. Schadler, 207 S. W. 704. judgment of foreclosure against the property In view of Ky. St. $ 68, providing "every perwas not binding on the wife or other person as son owning or harboring a dog shall be liable to any interest left under a will of the husband, to the party injured, for all damages done by where the suit was not revived, as provided in such dog," the owner and harborer, being each Rev. St. 1909. 88 1916. 1921-1923.-Cole v. liable for the full damages, may be made joint Parker-Washington Co., 207 S. W. 749, 766. defendants, regardless of whether the dog be

vicious or of the owner's or harborer's knowlABORTION.

edge thereof.--Id.

57 (1) (Tex.Civ.App.) Whether separate See Criminal Law, 1170; Homicide, suits for labor, which have been assigne), shall

255; Husband and Wife, em 171; Witnesses, be consolidated or tried separately, is within Om 277.

the court's discretion under Rev. St. 1911, art.
2182.-Pena v. Baker, 207 S. W. 426.
C 57(2) (Tex.Civ.App.) Suits by separate

plaintiffs, suing for separate demands, each Oml (Tex.Civ.App.) When a statement is re- case being dependent on issues entirely disceived by one party to a controversy from the connected and distinct, are not within Rev. St. other, showing the balance due, and payment oi 1911, art. 2182, relating to consolidation of that balance is accepted, it constitutes "accord causes.-Pena y. Baker, 207 S. W. 426. and satisfaction," and is settlement of the claims between the parties.-G. M. H. Wagner ADJOINING LANDOWNERS. & Sons v. Harris, 207 S. W. 632.

In an action to recover from defendants com See Boundaries. missions which they had retained as brokers for effecting a sale, etc., held, that plaintiff's

ADMINISTRATION. acceptance of a payment by defendant, with which was sent a statement of the accounts be-/ See Executors and Administrators. 207 S.W.-63




, done upon land to affirmatively show that some

one other than the legal title holder was in posSee Divorce, ww129; Homicide, Om79. session and claiming adversely, defendant did

not acquire title thereto by adverse possession. ADVERSE POSSESSION. --Sackett v. Jeffries, 207 S. W. 454.

57 (Ky.) One who asserts title by adverse See Appeal and Error, w 172; Champerty possession must affirmatively show continuity and Maintenance, Cmw7; Easements, Cum 8, 9, of possession.-Sackett v. Jeffries, 207 S. W. 10; Highways, m17, 80, 87; Tenancy in | 454. Common, m15; Vendor and Purchaser, 232.

(F) Hostile Character of Possession.

60(3) (Tex.Civ.App.) A person in possession I. NATURE AND REQUISITES.

of land, though acknowledging a better right in (A) Acquisition of Rights by Prescription the state, may hold adverse possession as In General.

against true owner.-Masterson v. Pullen, 207 Om7(2) (Tex.Civ.App.) The ten-year statute

S. W. 537. would begin to run in favor of plaintiff when he

| Plaintiff, who took possession of land for purtook possession of lands within a valid survey

pose of acquiring land from state under belief claiming title by virtue of a deed, although no

that land was vacant, but who after being told patent had been issued to lands within the sur

that land was not vacant, and with knowledge vey, since those claiming adversely to plaintiff

of real owner, continued for a period of ten by virtue of the survey could, in view of Ver

years to hold land and make substantial imnon's Savles "Ann CivS+ '1914. art.7742provements in fence inclosing land, held to have maintained trespass to try title.---Spear

have held land adversely to true owner.--Id. man v. Mims, 207 S. W. 573.

66(2) (Tex.Civ.App.) An encroachment upOn 13 (Ky.) Title by adverse possession can

on the land of another, due solely to a mistake only be acquired by the actual holding and en

ctual holding and en in the location of the true boundary, is incon. joyment of land under a claim of right which sistent with a claim of ownership to any poris opposed to or inconsistent with any other tion of the land beyond the limits of the incloclaim.-Sackett v. Jeffries, 207 S. W. 454. | sure.-Boy v. McDowell, 207 S. W. 937.

An encroachment upon the land of another, (B) Actual Possession.

due solely to a mistake in the location of the Cam 16(1) (Ky.) While one may enter upon land true

may enter non land true boundary, may be converted into an adand acquire title thereto by occupying a por- verse claim to land beyond the inclosure suffition of it, and claiming the remainder to a well-cient to mature into a title by limitation by marked boundary, such occupancy must be con- acts showing a hostile intent, such as actual tinuous, and of such a character as to apprise notice to the owner that legal title to the enthe owner of a hostile claim to the entire tract. tire tract was claimed.-Id. hence the intermittent operation of a water mill C70 (Tex.Civ.App.) The grantee in posseson a small stream running through land, cou- sion under a deed, control of which the grantor pled with the occasional cutting of timber and retained during life, held not to trace his claim the building of an unoccupied cabin, will not of title through a regular chain of transfers, establish adverse title to a boundary marked etc., and so the three-year statute of limitaout by the occupant.-H. F. Davis & Co. v. tion was not applicable in a suit by those claimSizemore, 207 S. W. 16.

ing under the will.--Eckert v. Stewart, 207 S. On 24 (Ky.) The mere building of an unoccu- | W. 317. pied cabin on land, the ranging of cattle there mm 70 (Tex.Civ.App.) The mere holding of on, or the occasional cutting of timber there- land, under the belief that the land is the state's from is not sufficient to show adverse posses- and with the purpose of acquiring it lawfully sion.-H. F. Davis & Co. v, Sizemore, 207 S. at some future time, does not define the attiW. 16.

tude of the possessor as hostile to the claim of

the owner of whose existence he is ignorant. (C) Visible and Notorious Possession.

Masterson v. Pullen, 207 S. W. 537. 28 (Tex.Civ.App.) One of the essentials re 81 (Tex.Com.App.) Where the one-time quired to perfect a title by limitation is that the owner had by prior conveyance parted with adverse claim must be open and notorious in whatever title he had to the land, the claims of order to inform the true owner that his title is a subsequent grantee to title by virtue of the contested.-Boy v. McDowell, 207 S. W. 937. I three-year statute of limitations cannot be sus

30 (Tex.Civ.App.) Fence inclosing 360 acres tained.---Raley v. D. Sullivan & Co., 207 S. W.

nd was a sufficient notorious assertion of 906. holder's adverse claim, though land was in a 85(1) (Tex.Civ.App.) Possession of premises very rough, broken, uninhabited country.--Mas usually carries with it the presumption of a terson v. Pullen, 207 S. W. 537.

claim of title.-Boy v. McDowell, 207 S. W. 937. 31 (Ky.) To establish title by adverse possession, the evidence must show that the pos II. OPERATION AND EFFECT. session was open, notorious, exclusive, hostile,

(A) Extent of Possession, continuous, and adverse for 15 years before the bringing of the action, and to this end there Om 100(1) (Tex.Civ.App.) When a deed is the must have been such acts of physical possession basis of possession of land, it defines the extent ag would put the owner upon notice of the as- of the hostile claim.-Boy v. McDowell, 207 S. sertion of a hostile claim.-H, F. Davis & Co. v. W. 937. Sizemore, 207 S. W. 16.

Cum 100(4) (Ky.) If deed did not include all

lands in survey, neither grantee nor his suc(E) Duration and Continuity of Posses. cessors could acquire title by adverse possession sion.

to lands not included, where neither ever in43(2) (Ky.) Different and distinct periods closed, improved, or in any wise exercised ownof possession cannot be added to establish a bar ership over lands not included.-Combs V. Adso as to constitute title by adverse possession.- | ams, 207 S. W. 691. Sackett y. Jeffries, 207 S. W. 454.

100(5) (Ky.) Where one having constructive Om44 (Ky.) Possession to give title by adverse actual possession of all lands within a survey possession must not only be actual but must be sold all lands, purchaser, who entered thereon open, notorious, continuous, adverse, and peace with intention to possess the lands to the exful for every hour of every day of the whole 15-tent of the survey, acquired actual possession to year period.-Sackett y. Jeffries, 207 S. W. 454. the extent of the boundaries of the survey and

46 (Ky.) Where defendant's possession of of his deed, which, if continued for 15 years, land was not continuous; the land at times be vested him with legal title, regardless of whething occupied by tenants and at other times be- er he had patent. Combs v. Adams, 207 S. W. ing unoccupied, and where there was nothing. 691.


For cases in Dec.Dig. & Am.Dig. Key-No.Series & Iodexes see same topic and KEY-NUMBER
Om 103 (Ky.) The patent, being junior to sur-

ANIMALS. vey, was void to extent of interference, and an actual possession by patentee or his successors See Action, 50; Appeal and Error, of lands covered by the patent outside of the 1051, 1071, 1234; Carriers, Omw32, 211-229; lap did not give actual possession by construc- Chattel Mortgages, em 49; Criminal Law, em tion of the lands within the lap regardless of 55; Evidence, w323; Explosives, 12; intention.-Combs v. Adams, 207 S. W. 691. Insurance, 181; Railroads, 350, 411

Constructive possession under survey covered 419; Trial, 194, 240, 260, 350, 352. hy lap of subsequent patent being in B., or bis 50(2). (Mo.App.) Under Rev. St. 1909, $ successors, patentee would have to take actual 787, authorizing formation of stock law dispossession of lands within the lap by inclos-tricts by townships, a number of townships, ing or making improvements to displace pos- whether in the same or in an adjoining county, session of B. or his successors.-Id. The occasional cutting of trees within the that have already adopted the law, although

may join an existing unit of five townships lap by one who obtained patent overlapping each of the townships does not adjoin the unit prior survey, or by his successors, did not create an adverse holding.-Id.

to be enlarged, provided the enlarged territory be in one body which adjoins the original

unit.-Bever v. Smith, 207 S. W. 238. III. PLEADING, EVIDENCE, TRIAL, Under Rev. St. 1909, $ 787, providing for AND REVIEW.

formation of stock law districts by five or more Owl 15(1) (Ky.) Ordinarily the question of ad- townships in one body in any county, all townverse possession is for the jury, but where the ships to be affected by any one election must facts are admitted, and an ordinarily sensible be in the same county, whether voting as the man can draw only one conclusion therefrom, original unit of five townships or as additions. the question is for the court.-H. F. Davis &

-Id. Co. v. Sizemore, 207 S. W. 16.

APPEAL AND ERROR. 115(5) (Tex.Civ.App.) In trespass to try title, where defendant claimed title by adverse See Costs, ww231; Courts, em 207; Criminal possession, whether defendant was a tenant of Law, 1035–1186;, Mandamus, m4. plaintiff held for the jury.—Dolen v. Lobit, 207 For review of rulings in particular actions or S. W. 143, 964.

proceedings, see also the various specific topAFFIDAVITS.

III. DECISIONS REVISWABLE. See Appeal and Error, m 1056; Bills and (C) Amount or Value in Controversy. Notes, em 485; Evidence, m318; Injuncm 64 (Tex.Com.App.) On appeal from the tion, m122; Pleading, 291; Venue,

judgment in an action to recover property of 70.

the value of $250 or its value, the judgment of AGENCY.

the Court of Civil Appeals is final, and the Su

preme Court cannot review the same on error. See Principal and Agent.

-Clay v. Marmar, 207 S. W. 84.

(D) Finality of Determination.

en 79(1) (Tex. Com. App.) Where the court See Burglary, Om 41.

overruled motion for continuance to bring in

other parties as sought by cross-bill, such parALTERATION OF INSTRUMENTS.

ties were not before the court, and it was not

necessary, in order to be final, that the judgSee Bills and Notes, Ow378; Municipal Cor- ment dispose of them, or of any cause of acporations, Cm942.

tion asserted against them.-Thompson v. Har

mon, 207 S. W. 909. Own 2 (Tex.Civ.App.) Any alteration causing In action against partnership operating bank, the instrument to speak different in legal effect cross-bill held to seek no relief as against temfrom that which it spoke originally is a "ma- porary administrator of one of partners, so terial alteration."-Commercial Credit Co. v. that judgment was final, although it failed to Giles, 207 S. W, 596.

dispose of his interest.--Id. 8 (Ky.) To retrace the signature of the county clerk on a bond is not such a material (E) Natare, Scope, and Effect of Decision, alteration as will invalidate, the instrument;100(2) the purpose not being to give validity to a Sayles' Ann. Civ. St. 1914, art. 4644, no ap

(Tex. Civ. App.) Under Vernon's thing which never had any, but to preserve that peal is allowed from a judgment denying a which did have validity.-Citizens' State Bank motion to dissolve a temporary injunction preof Greenup v. Johnson County, 207 S. W. 8. Em9 (Ky.) The number placed on a bond forms viously granted.—Jowell v. Lamb, 207 s.'W.

987. no part of its obligatory terms, and an altera

IV. RIGHT OF REVIEW. tion of it, though fraudulent, would necessarily be immaterial.-Citizens' State Bank of Green- (B) Estoppel, Waiver, or Agreements Alup v. Johnson County, 207 S. W. 8.

fecting Right. ww9. (Tex.Civ.App.) The payee's detachment of Cw153 (Ark.) Where sheriff, after rendition a series of negotiable notes from a contract or- of judgment charging him with amount of counder permitting their detachment was not a maty warrants not turned over to treasurer, sued terial alteration rendering the notes void:-Com the treasurer to recover the amount paid on mercial Credit Co. v. Giles, 207 S. W. 596. the judgment and had judgment in trial court Om 12 (Tex.Civ.App.) A contract order for the that treasurer, who had out of his own funds, purchase of goods payable by a series of nego- turned over the amount of warrants not actiable notes, providing that the payee might de-counted for by sheriff to county, was reimburstach the notes from the order, being consistent, ed by warrants received in payment of judg. contemporaneous agreement, authorized the ment, did not estop him to appeal.-Cargill v. payee to detach_the notes.-Commercial Credit Matthews, 207 S. W. 225. Co. v. Giles, 207 S. W. 596.

w 16 (Tex.Civ.App.) Any material alteration V. PRESENTATION AND RESERVAof an instrument destroys its obligation and TION IN LOWER COURT OF renders it unenforceable, and any alteration

GROUNDS OF REVIEW causing the instrument to speak differently in legal effect from that which it spoke originally (A) Issues and Questions in Lower Court. is a “material alteration."-Commercial Credit Cm 171(1) (Mo.App.) An action must be heard Co. v. Giles, 207 S. W. 596.

and disposed of in the appellate court upon the

theory upon which it was disposed of in the 219(2) (Tex.Ciy.App.) Court on appeal is trial court.-Central Nat. Bank v. Pryor, 207 | not authorized to consider assignments of erS. W. 298.

ror predicated on failure of trial court to find 171(3) (Mo.App.) Conceding that motion to as facts certain matters, it not appearing from set aside satisfaction of judgment and to order record that appellant requested trial court to execution in favor of appellant claiming an so find.-Spearman v. Mims, 207 S. W. 573. attorney's lien required an answer where the 220 (Ky.) Objection to master's report not motion was heard as if a denial of its alle- made in lower court will not be considered on gations had been filed, failure to answer can appeal.-Hustonville & Coffey's Mill Turnpike avail appellant nothing.-Johnston v. United Road Co. v. McAninch's Adm'r, 207 S. W. 458. Rys. Co. of St. Louis, 207 S. W. 252.

Om 232(2) (Mo.App.) Where immaterial evi. 172(1) (Tenn.) Where plaintiff was injured dence was objected to on several good grounds, wben she stumbled over lumber placed on a that its prejudicial nature was not called to the railroad right of way in such a manner that attention of the court did not make it any the it obstructed an established path thereon, held less reversible error, where it was in fact that, where plaintiff relied on a prescriptive prejudicial.-Sexton v. Lockwood, 207 S. W. way, she could not on appeal change to the 856. theory that a landowner, who expressly or by

(C) Exceptions. implication invites the public to come upon his land or use it as a pathway, cannot permit a m 254 (Mo.App.) A demurrer and the court's snare or danger to exist thereon which re-action thereon are matters of record proper, sults in injury to the person who accepts the and as such are preserved for review in an invitation.--Cincinnati, N. O. & T. P. Ry, Co. appellate court without exceptions to ruling on v. Sharp, 207 S. W. 728.

motion, and without motion for new trial.

State ex rel. and to Use of Mosberg v. Owens, (B) Objections and Motions, and Rulings

207 S. W. 241. Thereon.

ww256 (Mo.App.) In action against a consta

ble and his sureties, a motion to strike out 184 (Ark.) Where no motion was made in petition as being duplicitous, not challenging trial court to transfer suit to law court, it is | its sufficiency as stating a cause of action, was unnecessary to decide on appeal whether this not essentially a demurrer dispositive of whole should have been done.-Howell v. Walker, 207 case on a matter of law, as to whieh trial S. W'. 41.

court's ruling might be reviewed on appeal mm 185(1) (Tenn.) Question as to whether, in without exceptions to ruling on motion, and bill to settle estate in chancery, clerk of county without motion for new trial.-State ex rel. court can petition to collect inheritance tax, and to Use of Mosberg v. Owens, 207 S. W. cannot be first raised on appeal.-Tate v. 241. Greenlee, 207 S. W. 716.

en 263(3) (Tex.Civ.App.) Refusal to give a corOm 193(1) (Tex.Civ.App.) Where defendant, by rect charge in lieu of an erroneous one will general demurrer and denials, merely joined is not be considered, in the absence of a proper sue on the facts, presenting in the Court of exception and assignment.-Texas Midland R. Civil Appeals for the first time question of the R. v. Brown, 207 S. W. 340. sufficiency of the pleadings, his action was 270(3) (Mo.App.) Motion to quash, set aside permissible if the pleadings presented only one judgment, and stay execution cannot be conspecific cause of action, and the judgment was sidered by the court on appeal, where neither founded on a fundamentally different one. the motion nor the action of the court on it Celli v. Sanderson, 207 S. W. 179.

are preserved by proper exceptions.-Val Reis Where averment of complaint was sufficient Piano Co. v. Gordon, 207 S. W. 233. to admit certain necessary evidence, which, in fact, was admitted on trial without excep

(D) Motions for New Trial. tion to the pleading or objection to the evidence, objection to the sufficiency of the complaint is an 281(1) (Mo.) Under Rev. St. 1909, $ 2038. not one going to foundations of action, and one is not bound to move for a new trial after comes too late in Court of Civil Appeals.-Id. an interlocutory decree to preserve his right On 193(9) (Mo.App.) Failure to state a cause to have rulings of the trial court prior to the of action may be raised for the first time in interlocutory decree reviewed on appeal from the appellate court.-Luck Const. Co. v. Chi. the final judgment.Cole v. Parker-Washingcago & A. Ry. Co., 207 S. W. 840.

ton Co., 207 Š. W. 749, 766. em 205 (Mo.App.) Where question to defend- 285 (Mo.App.) A demurrer and the court's ant was offered on sole ground of proving that action thereon are matters of record proper, deceased had made no demand and testimony and as such are preserved for review in an apruled out for incompetency of witness, question pellate court without exceptions to ruling on as to defendant's competency to testify as to motion and without motion for new trial.-State transactions with deceased's son because son ex rel. and to Use of Mosberg V. Owens, 207 was his mother's agent was not raised, and S. W. 241. will not be considered by the court on appeal, In action against a constable and his sureties not having been passed upon by the trial court. a motion to strike out petition as being duplic-Grassmuck v. Ehrler, 207 S. W. 287.

itous not challenging its sufficiency as stating 209(1) (Tex.Civ.App.) The sufficiency of a cause of action, was not essentially a demurevidence to support a finding will not be con- | rer dispositive of whole case on a matter of sidered on appeal, where the submission of the law, as to which trial court's ruling might be issue was not objected to in lower court on reviewed on appeal, without exceptions to rulthe ground of insufficiency of evidence.-Gilles- ing on motion and without motion for new trial. pie v. Williams, 207 S. W. 975.

-Id. 213 (Tex.Civ.App.) Contention that court Cam 301 (Ark.) The trial court's ruling in modierred in overruling appellant's exception to fying one of appellant's prayers for instruction, main charge cannot be sustained. where bill of l not brought into the motion for a new trial, is exception discloses that objection was to omis- not before the Supreme Court on appeal.-Stallsion alone, since, under Vernon's Sayles' Ann. ings v. Bradshaw, 207 S. W. 435. Civ. St. 1914, art. 1985, failure to submit an mw 301 (Tex.Civ.App.) In case of a jury trial, issue is not ground for reversal, unless submis- where filing of motion for new trial is a prereq. sion was requested in writing.-Frick v. Inter- uisite to the right of appeal, Rule 24 of the national & G. N. Ry. Co., 207 S. W. 198. Court of Civil Appeals (142 S. W. xii) requires Com 216(1) (Tex.Civ.App.) Assignment of error assignments of error to be set forth distinctly complaining that court did not give special in- in motion for new trial, otherwise such assignstructions cannot be considered, where the ments as do not comprehend fundamental error court was not requested to give them.-Wilie will be treated as waived.-Celli v. Sanderson, v, Hays, 207 S. W. 427.

207 S. W. 179.


For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER Cw302(4) (Mo.App.) Where defendant's mo- (C) Necessity of Bill of Exceptions, Case, tion for new trial assigned as error the giving

or Statement of Facts. of improper instructions over the objection of m544(1) (Tex.Civ.App.) Although the effect of defendant, and the refusal of correct instruc- sustaining a plea of privilege is to change the tions offered by defendant, such assignments venue of the suit, a motion for change of venue are insufficient to be considered on appeal.- and a plea of privilege are entirely different proProbst v. St. Louis Basket & Box Co., 207 S. ceedings, and pleas of privilege are not included W. 891.

within district and county courts rule 55 (142 S. VII. REQUISITES AND PROCEEDINGS view rulings on change of venue.

W. xxi), providing for bills of exceptions to re

:-Valdespino v. FOR TRANSFER OF CAUSE.

Dorrance & Co., 207 S. W. 649. (A) Time of Taking Proceedings. Om544(1) (Tex.Civ.App.) Where no bill of exSmo 346(1) (Tex.Civ.App.) Where a temporary ceptions was reserved to the admission of tesinjunction was granted on September 18th, and timony, an assignment complaining of such teson October 30th a motion to dissolve was over

timony must be overruled.-Manton v. City of ruled, an appeal taken November 4th is too San Antonio, 207 S. W. 951. late, for under the statute an appeal from the em 544(2) (Mo. App.) Where it does not appear granting of a temporary injunction must be from the record as abstracted that a bill of extaken within 15 days, and the action of the ceptions was ever filed, the review must be court on October 30th in no way modified or

limited to matters arising upon the face of changed the original injunction, hence, appeal the record proper.-Johnson v. Crowley, 207 not having been taken in time, it must be dis. S. W. 235. missed.—Jowell v. Lamb, 207 S. W. 987.

Om544(2) (Mo.App.) The cause being before the

court on appeal without bill of exceptions, (B) Petition or Prayer, Allowance, and there is nothing to review except the record Certificate or Amdavit.

proper, and, since it shows no reversible erem 359, (Ky.) Where amount in controversy ror, judgment will be affirmed.-Yuede was only $188, with interest, that plaintiff was Funck, 207 S. W. 244. attempting to enforce a mortgage on real es- cm 544(3) (Tex. Civ. App.) Under Vernon's tate, and that trial court adjudged a lien, did Sayles' Ann. Civ. St. 1914, art. 2062, providing not confer upon appellants ipso facto the right that, where the ruling or other action of the of appeal, because the mortgage was not a court appears otherwise of record, no bill of exstatutory lien and the title to the real property ceptions shall be necessary to reserve an excepwas not directly involved within the meaning of tion thereto, an exception is not necessary where Ky St., g 930.-Phelps v. Johnson, 207 S. W. a plea of privilege was overruled and the evi453.

depce heard was incorporated in the record. -I trial court is without power to grant an ap- Valdespino v. Dorrance & Co., 207 S. W. 619.. peal where amount in controversy is less than 548 (4) (Mo.App.) No bill of exceptions hav$500, though over $200, unless title to land, ing been filed presenting the evidence adduced right to an easement in land, or the right to upon motion to set aside satisfaction of judgenforce a statutory lien on land are directly ment, etc., or an exception to the overrulinvolved, under Ky. St. $ 950.-Id.

ing thereof, it cannot be adjudged that trial If no appeal is attempted to be granted be court erred in overruling motion.—Johnston v. low, where the amount in controversy is less United Rys. Co. of St. Louis, 207 S. W. 252. than $500, or, having been granted, is abandon: Com555 (Tex.Civ.App.) Where the record shows ed, filing of the record in office of clerk of that appellants objected to the court's charge, Supreme Court will be treated as a motion for and the authentication of the judge shows that appeal, but if appellant relies upon an appeal these objections were presented and overruled, attempted to be granted below, dismissal will be and that appellants excepted to the action of granted without consideration of the merits of the court before the charge was read to the the case, under Ky. St. $ 950.-Id. Where an appeal is desired in a case where formal bill of exceptions was stricken out by

jury, an assignment is sufficient, although the the amount in controversy is less than $500, the proper practice is to ble the record in the order of this court. - Thomas v. Derrick, 207 S.

W, 140. office of the clerk of the Supreme Court and enter motion for appeal, which motion will be and the transcript only showed that a charge

Where the formal exception was stricken out, passed upon after examination of record and a consideration of the case on its merits, under that defendant excepted, as shown by the in

was presented to the court and refused, and Ky. St. $ 950.-Id.

dorsement of the judge on the special charge. X. RECORD AND PROCEEDINGS NOT the notation and authentication are insufficient IN RECORD.

to constitute an “exception" under the statute.

-Id. (1) Matters to be Shown by Record.

(E) Abstracts of Record. Os 499(1) (Mo.App.) A remark of the court referred to in a brief cannot be considered on

582(1) (Mo.App.) Abstract of the record is appeal, where it does not appear in the rec

insufficient to present bill of exceptions, where ord.--Algeo v. Algeo, 207 S. W. 842.

it contains a statement that a bill of excepOmw 511(1) (Tex.Civ.App.) There can be no re

tions was signed and filed, but does not show versal because of the overruling of a motion what the bill of exceptions contained.-Yuede of continuance, where no bill of exceptions to

v. Funck, 207 S. W. 244. such action appears in the record. -Ayo v.

(J) Conclusiveness and Effect, ImpeachRobertson, 207 S. W. 979.

ing and Contradicting. (B) Scope and Contents of Record. Om662(3) (Tex.Civ.App.) Where appellant acmw 524 (Tex.Civ.App.) Although record fails to cepted bill of exceptions as qualified by court, show that map was attached to findings of fact, he is bound by the court's statement therein, where there is a complete map among papers which will be presumed to be true. -Quanah, A. which were attached to statement of facts, and & P. Ry. Co. v. Lancaster, 207 S. W. 606. both parties rely on such map, it will be considered by court on appeal, there being no dis

(K) Questions Presented for Review. pute concerning fact that it is a part of state Cum 672 (Tex.Civ. App.) Assignment of ment of facts. -Summit Place Co. v. Terrell, presenting overruling of defendant appellant's 207 S. W. 145.

original motion for new trial as error, in that Cmw 527(2) (Tex.Civ.App.) Court's failure to file. verdiet and judgment were not sustained by conclusions of fact and law will not be consider- evidence, on its face invites examination of ened on appeal without a bill of exceptions.-Mas- tire record to determine sufficiency of eviterson v. Pullen, 207 S. W, 537.

Idence on each of the elements of fraud specified


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