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INDEX-DIGEST

KEY NUMBER SYSTEM

THIS IS A KEY-NUMBER INDEX

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

ABANDONMENT.

See Appeal and Error, 1090; Attorney and Client, 76, 145; Divorce, 37; Eminent Domain, 2; Husband and Wife, 302, 304, 313; Landlord and Tenant, 66; Limitation of Actions, 118; Pledges, 25; Seduction, 52; Street Railroads, 55, 60.

ABATEMENT AND REVIVAL.

III. DEFECTS AND OBJECTIONS AS TO PARTIES AND PROCEEDINGS.

39 (Tex.Civ.App.) Dissolution of a corporation under Vernon's Sayles' Ann. Civ. St. arts. 1206-1208, did not abate a suit pending against the corporation, or deprive the court of power to render judgment; the dissolution under such statutes being a qualified one.-Butcher v. J. I. Case Threshing Mach. Co., 207 S. W. 980. V. DEATH OF PARTY AND REVIVAL OF ACTION.

(A) Abatement or Survival of Action. 48 (Mo.) A judgment rendered against a party who died after citation and before verdict is absolutely null and void as to him, his heirs and devisees, under Rev. St. 1909, §§ 1916. 1921-1923. relating to revival of suits on death of party. Cole v. Parker-Washington Co., 207 S. W. 749, 766.

(B) Continuance or Revival of Action.

71 (Mo.) Where petition on special tax bills against lots named a wife as a party, probably on account of her dower rights, and the husband died after citation and before verdict, a judgment of foreclosure against the property was not binding on the wife or other person as to any interest left under a will of the husband, where the suit was not revived, as provided in Rev. St. 1909. §§ 1916. 1921-1923.-Cole v. Parker-Washington Co., 207 S. W. 749, 766.

ABORTION.

See Criminal Law, 1170: Homicide, 255; Husband and Wife, 171; Witnesses, mm 277.

ACCORD AND SATISFACTION.

(Tex. Civ.App.) When a statement is received by one party to a controversy from the other, showing the balance due, and payment of that balance is accepted, it constitutes "accord and satisfaction," and is settlement of the claims between the parties.-G. M. H. Wagner & Sons v. Harris, 207 S. W. 632.

tween the parties, constituted an accord and satisfaction, precluding plaintiff's subsequent recovery.-Id.

ACCOUNT.

See Guardian and Ward, 180; Limitation of Actions, 199; Tenancy in Common, 15; Trusts, 289.

ACKNOWLEDGMENT.

See Adverse Possession, 60; Deeds, C. 208.

II. TAKING AND CERTIFICATE.

38 (Mo.App.) Acknowledgment of corporation's chattel mortgage need not state it was executed by authority of its board of directors, that part of Rev. St. 1909, § 2799, prescribing the form that "may be used" in acknowledgment by corporations being permissive only, and it being enough that the acknowledgment would have been good before the statute.-P. R. Sinclair Coal Co. v. Missouri-Hydraulic Mining Co., 207 S. W. 266.

ACTION.

See Abatement and Revival.

III. JOINDER, SPLITTING. CONSOLIDATION, AND SEVERANCE.

50(6) (Ky.) Plaintiff cannot in the same action prosecute two defendants, for distinct torts, committed by each, independently, although the consequences of the tort of one defendant united with those of the tort of the other.-Stephens v. Schadler, 207 S. W. 704.

In view of Ky. St. § 68, providing "every person owning or harboring a dog shall be liable to the party injured, for all damages done by such dog," the owner and harborer, being each liable for the full damages, may be made joint defendants, regardless of whether the dog be vicious or of the owner's or harborer's knowledge thereof.-Id.

separate

57 (1) (Tex. Civ.App.) Whether suits for labor, which have been assigne 1, shall be consolidated or tried separately, is within the court's discretion under Rev. St. 1911, art. 2182.-Pena v. Baker, 207 S. W. 426.

57(2) (Tex.Civ.App.) Suits by separate plaintiffs, suing for separate demands, each case being dependent on issues entirely disconnected and distinct, are not within Rev. St. 1911, art. 2182, relating to consolidation of causes.-Pena v. Baker, 207 S. W. 426.

ADJOINING LANDOWNERS.

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 acceptance of a payment by defendant, with

ADMINISTRATION.

which was sent a statement of the accounts be- See Executors and Administrators.

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done upon land to affirmatively show that some one other than the legal title holder was in possession and claiming adversely, defendant did not acquire title thereto by adverse possession. -Sackett v. Jeffries, 207 S. W. 454.

57 (Ky.) One who asserts title by adverse possession must affirmatively show continuity of possession.-Sackett v. Jeffries, 207 S. W. 454.

(F) Hostile Character of Possession.

60(3) (Tex. Civ.App.) A person in possession of land, though acknowledging a better right in the state, may hold adverse possession as against true owner.-Masterson v. Pullen, 207

7(2) (Tex.Civ.App.) The S. W. 537. ten-year statute would begin to run in favor of plaintiff when he took possession of lands within a valid survey claiming title by virtue of a deed, although no patent had been issued to lands within the survey, since those claiming adversely to plaintiff by virtue of the survey could, in view of Vernon's Sayles' Ann. Civ. St. 1914, art. 7742, have maintained trespass to try title.-Spearman v. Mims, 207 S. W. 573.

13 (Ky.) Title by adverse possession can only be acquired by the actual holding and enjoyment of land under a claim of right which is opposed to or inconsistent with any other claim.-Sackett v. Jeffries, 207 S. W. 454.

(B) Actual Possession.

16(1) (Ky.) While one may enter upon land and acquire title thereto by occupying a portion of it, and claiming the remainder to a wellmarked boundary, such occupancy must be continuous, and of such a character as to apprise the owner of a hostile claim to the entire tract, hence the intermittent operation of a water mill on a small stream running through land, coupled with the occasional cutting of timber and the building of an unoccupied cabin, will not establish adverse title to a boundary marked out by the occupant.-H. F. Davis & Co. v. Sizemore, 207 S. W. 16.

Plaintiff, who took possession of land for purpose of acquiring land from state under belief that land was vacant, but who after being told that land was not vacant, and with knowledge of real owner, continued for a period of ten years to hold land and make substantial improvements in fence inclosing land, held to have held land adversely to true owner.-Id. 66 (2) (Tex.Civ.App.) An encroachment upon the land of another, due solely to a mistake in the location of the true boundary, is inconsistent with a claim of ownership to any portion of the land beyond the limits of the inclosure.-Boy v. McDowell, 207 S. W. 937.

An encroachment upon the land of another, due solely to a mistake in the location of the true boundary, may be converted into an adverse claim to land beyond the inclosure sufficient to mature into a title by limitation by acts showing a hostile intent, such as actual notice to the owner that legal title to the entire tract was claimed.-Id.

70 (Tex.Civ.App.) The grantee in possession under a deed, control of which the grantor retained during life, held not to trace his claim of title through a regular chain of transfers, etc., and so the three-year statute of limitation was not applicable in a suit by those claiming under the will.-Eckert v. Stewart, 207 S. W. 317. there-70 (Tex.Civ.App.) The mere holding of land, under the belief that the land is the state's and with the purpose of acquiring it lawfully at some future time, does not define the attitude of the possessor as hostile to the claim of the owner of whose existence he is ignorant.Masterson v. Pullen, 207 S. W. 537.

24 (Ky.) The mere building of an unoccupied cabin on land, the ranging of cattle on, or the occasional cutting of timber therefrom is not sufficient to show adverse possession.-H. F. Davis & Co. v. Sizemore, 207 S. W. 16.

(C) Visible and Notorious Possession.

28 (Tex.Civ.App.) One of the essentials required to perfect a title by limitation is that the adverse claim must be open and notorious in order to inform the true owner that his title is contested.-Boy v. McDowell, 207 S. W. 937.

30 (Tex.Civ.App.) Fence inclosing 360 acres of land was a sufficient notorious assertion of holder's adverse claim, though land was in a very rough, broken, uninhabited country.-Masterson v. Pullen, 207 S. W. 537.

31 (Ky.) To establish title by adverse possession, the evidence must show that the possession was open, notorious, exclusive, hostile, continuous, and adverse for 15 years before the bringing of the action, and to this end there must have been such acts of physical possession as would put the owner upon notice of the assertion of a hostile claim.-H. F. Davis & Co. v. Sizemore, 207 S. W. 16.

(E) Duration and Continuity of Posses

sion.

43(2) (Ky.) Different and distinct periods of possession cannot be added to establish a bar so as to constitute title by adverse possession.Sackett v. Jeffries, 207 S. W. 454.

44 (Ky.) Possession to give title by adverse possession must not only be actual but must be open, notorious, continuous, adverse, and peaceful for every hour of every day of the whole 15year period.-Sackett v. Jeffries, 207 S. W. 454. 46 (Ky.) Where defendant's possession of land was not continuous; the land at times being occupied by tenants and at other times being unoccupied, and where there was nothing

81 (Tex.Com.App.) Where the one-time owner had by prior conveyance parted with whatever title he had to the land, the claims of a subsequent grantee to title by virtue of the three-year statute of limitations cannot be sustained.-Raley v. D. Sullivan & Co., 207 S. W.

906.

85(1) (Tex.Civ.App.) Possession of premises usually carries with it the presumption of a claim of title.-Boy v. McDowell, 207 S. W. 937. II. OPERATION AND EFFECT.

(A) Extent of Possession. 100(1) (Tex.Civ.App.) When a deed is the basis of possession of land, it defines the extent of the hostile claim.-Boy v. McDowell, 207 S. W. 937.

100(4) (Ky.) If deed did not include all lands in survey, neither grantee nor his successors could acquire title by adverse possession to lands not included, where neither ever inclosed, improved, or in any wise exercised ownership over lands not included.—Combs v. Adams, 207 S. W. 691.

100(5) (Ky.) Where one having constructive actual possession of all lands within a survey sold all lands, purchaser, who entered thereon with intention to possess the lands to the extent of the survey, acquired actual possession to the extent of the boundaries of the survey and of his deed, which, if continued for 15 years, vested him with legal title, regardless of whether he had patent.-Combs v. Adams, 207 S. W. 691.

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

103 (Ky.) The patent, being junior to survey, was void to extent of interference, and an actual possession by patentee or his successors of lands covered by the patent outside of the lap did not give actual possession by construction of the lands within the lap regardless of intention.-Combs v. Adams, 207 S. W. 691.

Constructive possession under survey covered by lap of subsequent patent being in B., or his successors, patentee would have to take actual possession of lands within the lap by inclosing or making improvements to displace possession of B. or his successors.-Id.

The occasional cutting of trees within the lap by one who obtained patent overlapping prior survey, or by his successors, did not create an adverse holding.-Id.

III. PLEADING, EVIDENCE, TRIAL,
AND REVIEW.

115(1) (Ky.) Ordinarily the question of adverse possession is for the jury, but where the facts are admitted, and an ordinarily sensible man can draw only one conclusion therefrom, the question is for the court.-H. F. Davis & Co. v. Sizemore, 207 S. W. 16.

115(5) (Tex.Civ.App.) In trespass to try title, where defendant claimed title by adverse possession, whether defendant was a tenant of plaintiff held for the jury.-Dolen v. Lobit, 207 S. W. 143, 964.

AFFIDAVITS.

ANIMALS.

See Action, 50; Appeal and Error,
1051, 1071, 1234; Carriers, 32, 211-229;
Chattel Mortgages, 49; Criminal Law,
55; Evidence, 323; Explosives, 12;
Insurance, 181; Railroads, 350, 411-
419; Trial, 194, 240, 260, 350, 352.

50(2) (Mo.App.) Under Rev. St. 1909, § 787, authorizing formation of stock law districts by townships, a number of townships, whether in the same or in an adjoining county, may join an existing unit of five townships that have already adopted the law, although each of the townships does not adjoin the unit to be enlarged, provided the enlarged territory be in one body which adjoins the original unit.-Bever v. Smith, 207 S. W. 238.

Under Rev. St. 1909, § 787, providing for formation of stock law districts by five or more townships in one body in any county, all townships to be affected by any one election must be in the same county, whether voting as the original unit of five townships or as additions. -Id.

APPEAL AND ERROR.

See Costs, 231; Courts, 207; Criminal
Law, 1035-1186;, Mandamus, 4.
For review of rulings in particular actions or
proceedings, see also the various specific top-

ics.

III. DECISIONS REVIEWABLE. (C) Amount or Value in Controversy.

See Appeal and Error, 1056; Bills and Notes, 485; Evidence, 318; Injunc-64 (Tex.Com.App.) On appeal from the tion, 122; Pleading, 291; Venue,

70.

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judgment in an action to recover property of the value of $250 or its value, the judgment of the Court of Civil Appeals is final, and the Supreme Court cannot review the same on error. -Clay v. Marmar, 207 S. W. 84.

(D) Finality of Determination.

79(1) (Tex. Com. App.) Where the court overruled motion for continuance to bring in other parties as sought by cross-bill, such parties were not before the court, and it was not necessary, in order to be final, that the judgment dispose of them, or of any cause of action asserted against them.-Thompson v. Harmon, 207 S. W. 909.

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) Nature, Scope, and Effect of Decision. alteration as will invalidate the instrument;100(2) (Tex. Civ. App.) Under Vernon's the purpose not being to give validity to a thing which never had any, but to preserve that which did have validity.-Citizens' State Bank of Greenup v. Johnson County, 207 S. W. 8.

9 (Ky.) The number placed on a bond forms no part of its obligatory terms, and an alteration of it, though fraudulent, would necessarily be immaterial.-Citizens' State Bank of Greenup v. Johnson County, 207 S. W. 8.

9(Tex.Civ.App.) The payee's detachment of a series of negotiable notes from a contract order permitting their detachment was not a material alteration rendering the notes void.-Com mercial Credit Co. v. Giles, 207 S. W. 596.

12 (Tex.Civ.App.) A contract order for the purchase of goods payable by a series of negotiable notes, providing that the payee might detach the notes from the order, being consistent, contemporaneous agreement, authorized the payee to detach the notes.-Commercial Credit Co. v. Giles, 207 S. W. 596.

Sayles' Ann. Civ. St. 1914, art. 4644, no appeal is allowed from a judgment denying a motion to dissolve a temporary injunction previously granted.-Jowell v. Lamb, 207 S. W.

987.

IV. RIGHT OF REVIEW. (B) Estoppel, Waiver, or Agreements Affecting Right.

153 (Ark.) Where sheriff, after rendition of judgment charging him with amount of county warrants not turned over to treasurer, sued the treasurer to recover the amount paid on the judgment and had judgment in trial court that treasurer, who had out of his own funds, turned over the amount of warrants not accounted for by sheriff to county, was reimbursed by warrants received in payment of judgment, did not estop him to appeal.-Cargill v. Matthews, 207 S. W. 225.

TION IN LOWER COURT OF
GROUNDS OF REVIEW.

16 (Tex.Civ.App.) Any material alteration V. PRESENTATION AND RESERVAof an instrument destroys its obligation and renders it unenforceable, and any alteration causing the instrument to speak differently in legal effect from that which it spoke originally is a "material alteration."-Commercial Credit Co. v. Giles, 207 S. W. 596.

(A) Issues and Questions in Lower Court.

171(1) (Mo.App.) An action must be heard and disposed of in the appellate court upon the

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171(3) (Mo.App.) Conceding that motion to set aside satisfaction of judgment and to order execution in favor of appellant claiming an attorney's lien required an answer where the motion was heard as if a denial of its allegations had been filed, failure to answer can avail appellant nothing.-Johnston v. United Rys. Co. of St. Louis, 207 S. W. 252.

219(2) (Tex.Civ.App.) Court on appeal is not authorized to consider assignments of error predicated on failure of trial court to find as facts certain matters, it not appearing from record that appellant requested trial court to so find.-Spearman v. Mims, 207 S. W. 573. 220 (Ky.) Objection to master's report not made in lower court will not be considered on appeal.-Hustonville & Coffey's Mill Turnpike Road Co. v. McAninch's Adm'r, 207 S. W. 458.

232(2) (Mo.App.) Where immaterial evidence was objected to on several good grounds, that its prejudicial nature was not called to the attention of the court did not make it any the less reversible error, where it was in fact prejudicial.-Sexton v. Lockwood, 207 S. W.

856.

(C) Exceptions.

172(1) (Tenn.) Where plaintiff was injured when she stumbled over lumber placed on a railroad right of way in such a manner that it obstructed an established path thereon, held that, where plaintiff relied on a prescriptive way, she could not on appeal change to the theory that a landowner, who expressly or by implication invites the public to come upon his land or use it as a pathway, cannot permit a 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, 207 S. W. 241.

(B) Objections and Motions, and Rulings Thereon.

184 (Ark.) Where no motion was made in trial court to transfer suit to law court, it is unnecessary to decide on appeal whether this should have been done.-Howell v. Walker, 207 | S. W. 41.

185(1) (Tenn.) Question as to whether, in bill to settle estate in chancery, clerk of county court can petition to collect inheritance tax, cannot be first raised on appeal.-Tate v. Greenlee, 207 S. W. 716.

193(1)(Tex. Civ.App.) Where defendant, by general demurrer and denials, merely joined issue on the facts, presenting in the Court of Civil Appeals for the first time question of the sufficiency of the pleadings, his action was permissible if the pleadings presented only one specific cause of action, and the judgment was founded on a fundamentally different one.Celli v. Sanderson, 207 S. W. 179.

Where averment of complaint was sufficient to admit certain necessary evidence, which, in fact, was admitted on trial without exception to the pleading or objection to the evidence, objection to the sufficiency of the complaint is not one going to foundations of action, and comes too late in Court of Civil Appeals.-Id. 193(9) (Mo.App.) Failure to state a cause of action may be raised for the first time in the appellate court.-Luck Const. Co. v. Chicago & A. Ry. Co., 207 S. W. 840.

256 (Mo.App.) In action against a constable and his sureties, a motion to strike out petition as being duplicitous, not challenging its sufficiency as stating a cause of action, was not essentially a demurrer dispositive of whole case on a matter of law, as to which trial court's ruling might be reviewed on appeal without exceptions to ruling on motion, and without motion for new trial.-State ex rel. and to Use of Mosberg v. Owens, 207 S. W. 241.

263(3) (Tex.Civ.App.) Refusal to give a correct charge in lieu of an erroneous one will not be considered, in the absence of a proper exception and assignment.-Texas Midland R. R. v. Brown, 207 S. W. 340.

270(3) (Mo.App.) Motion to quash, set aside judgment, and stay execution cannot be considered by the court on appeal, where neither the motion nor the action of the court on it are preserved by proper exceptions.-Val Reis Piano Co. v. Gordon, 207 S. W. 233.

(D) Motions for New Trial.

281(1) (Mo.) Under Rev. St. 1909, § 2038. one is not bound to move for a new trial after an interlocutory decree to preserve his right to have rulings of the trial court prior to the interlocutory decree reviewed on appeal from the final judgment.-Cole v. Parker-Washington Co., 207 S. W. 749, 766.

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, not having been passed upon by the trial court. -Grassmuck v. Ehrler, 207 S. W. 287.

209(1) (Tex.Civ.App.) The sufficiency of evidence to support a finding will not be considered on appeal, where the submission of the issue was not objected to in lower court on the ground of insufficiency of evidence.-Gillespie v. Williams, 207 S. W. 975.

213 (Tex.Civ.App.) Contention that court erred in overruling appellant's exception to main charge cannot be sustained, where bill of exception discloses that objection was to omission alone, since, under Vernon's Sayles' Ann. Civ. St. 1914, art. 1985, failure to submit an issue is not ground for reversal, unless submission was requested in writing.-Frick v. International & G. N. Ry. Co., 207 S. W. 198.

216(1) (Tex.Civ.App.) Assignment of error complaining that court did not give special instructions cannot be considered, where the court was not requested to give them.-Wilie v. Hays, 207 S. W. 427.

In action against a constable and his sureties a motion to strike out petition as being duplicitous not challenging its sufficiency as stating a cause of action, was not essentially a demurrer dispositive of whole case on a matter of law, as to which trial court's ruling might be reviewed on appeal, without exceptions to rul ing on motion and without motion for new trial. -Id.

301 (Ark.) The trial court's ruling in modifying one of appellant's prayers for instruction, not brought into the motion for a new trial, is not before the Supreme Court on appeal.-Stallings v. Bradshaw, 207 S. W. 435.

301 (Tex.Civ.App.) In case of a jury trial, where filing of motion for new trial is a prerequisite to the right of appeal, Rule 24 of the Court of Civil Appeals (142 S. W. xii) requires assignments of error to be set forth distinctly in motion for new trial, otherwise such assignments as do not comprehend fundamental error will be treated as waived.-Celli v. Sanderson, 207 S. W. 179.

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

(C) Necessity of Bill of Exceptions, Case, or Statement of Facts.

302(4) (Mo.App.) Where defendant's motion for new trial assigned as error the giving of improper instructions over the objection of 544(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 within district and county courts rule 55 (142 S. view rulings on change of venue.-Valdespino v. W. xxi), providing for bills of exceptions to reDorrance & Co., 207 S. W. 649.

W. 891.

VII. REQUISITES AND PROCEEDINGS
FOR TRANSFER OF CAUSE.

(A) Time of Taking Proceedings.

544(1) (Tex.Civ.App.) Where no bill of exceptions was reserved to the admission of testimony, an assignment complaining of such testimony must be overruled.-Manton v. City of San Antonio, 207 S. W. 951.

346(1) (Tex.Civ.App.) Where a temporary injunction was granted on September 18th, and on October 30th a motion to dissolve was overruled, an appeal taken November 4th is too late, for under the statute an appeal from the 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-544(2) (Mo.App.) The cause being before the missed.-Jowell v. Lamb, 207 S. W. 987.

(B) Petition or Prayer, Allowance, and Certificate or Affidavit.

S. W. 235.

court on appeal without bill of exceptions, there is nothing to review except the record proper, and, since it shows no reversible error, judgment will be affirmed.-Yuede V. Funck, 207 S. W. 244.

359 (Ky.) Where amount in controversy was only $188, with interest, that plaintiff was attempting to enforce a mortgage on real es-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., § 950.-Phelps v. Johnson, 207 S. W. a plea of privilege was overruled and the evi453. dence heard was incorporated in the record.--Valdespino v. Dorrance & Co., 207 S. W. 649..

A trial court is without power to grant an appeal where amount in controversy is less than $500, though over $200, unless title to land, right to an easement in land, or the right to enforce a statutory lien on land are directly involved, under Ky. St. § 950.-Id.

If no appeal is attempted to be granted below, where the amount in controversy is less than $500, or, having been granted, is abandoned, filing of the record in office of clerk of Supreme Court will be treated as a motion for appeal, but if appellant relies upon an appeal attempted to be granted below, dismissal will be granted without consideration of the merits of the case, under Ky. St. § 950.-Id.

Where an appeal is desired in a case where the amount in controversy is less than $500, the proper practice is to file the record in the office of the clerk of the Supreme Court and enter motion for appeal, which motion will be passed upon after examination of record and a consideration of the case on its merits, under Ky. St. § 950.-Id.

X. RECORD AND PROCEEDINGS NOT
IN RECORD.

(A) Matters to be Shown by Record.

499(1) (Mo.App.) A remark of the court referred to in a brief cannot be considered on appeal, where it does not appear in the record.-Algeo v. Algeo, 207 S. W. 842. 511(1) (Tex. Civ.App.) There can be no reversal because of the overruling of a motion of continuance, where no bill of exceptions to such action appears in the record.-Ayo v. Robertson, 207 S. W. 979.

548 (4) (Mo.App.) No bill of exceptions having been filed presenting the evidence adduced upon motion to set aside satisfaction of judgment, etc., or an exception to the overruling thereof, it cannot be adjudged that trial court erred in overruling motion.-Johnston v. United Rys. Co. of St. Louis, 207 S. W. 252.

555 (Tex.Civ.App.) Where the record shows that appellants objected to the court's charge, and the authentication of the judge shows that these objections were presented and overruled, and that appellants excepted to the action of the court before the charge was read to the formal bill of exceptions was stricken out by jury, an assignment is sufficient, although the order of this court.-Thomas v. Derrick, 207 S.

W. 140.

and the transcript only showed that a charge Where the formal exception was stricken out, that defendant excepted, as shown by the inwas presented to the court and refused, and dorsement of the judge on the special charge, the notation and authentication are insufficient to_constitute an "exception" under the statute. -Id.

(E) Abstracts of Record.

insufficient to present bill of exceptions, where 582(1) (Mo.App.) Abstract of the record is it contains a statement that a bill of exceptions was signed and filed, but does not show

what the bill of exceptions contained.-Yuede v. Funck, 207 S. W. 244.

(J) Conclusiveness and Effect, Impeaching and Contradicting.

662(3) (Tex.Civ.App.) Where appellant accepted bill of exceptions as qualified by court, which will be presumed to be true.—Quanah, A. he is bound by the court's statement therein, & P. Ry. Co. v. Lancaster. 207 S. W. 606.

(B) Scope and Contents of Record. 524 (Tex.Civ.App.) Although record fails to show that map was attached to findings of fact, where there is a complete map among papers which were attached to statement of facts, and both parties rely on such map, it will be con- (K) Questions Presented for Review. sidered by court on appeal, there being no dispute concerning fact that it is a part of state-672 (Tex.Civ.App.) Assignment of error ment of facts.-Summit Place Co. v. Terrell, 207 S. W. 145.

527(2) (Tex.Civ.App.) Court's failure to file. conclusions of fact and law will not be considered on appeal without a bill of exceptions.-Masterson v. Pullen, 207 S. W. 537.

presenting overruling of defendant appellant's original motion for new trial as error, in that verdict and judgment were not sustained by evidence, on its face invites examination of entire record to determine sufficiency of evidence on each of the elements of fraud specified

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