Under Rev. St. 1899, § 865, where no question
with reference to the admission of evidence of
injuries not pleaded was made at the trial, the
court will not reverse therefor.-Bragg v. Met-
ropolitan St. Ry. Co. (Mo. Sup.) 527.
In an action for injuries to plaintiff by the
negligent operation of defendant's steam street
roller, an erroneous instruction, requiring that
plaintiff show that the roller was operated
with "unusual" puffing and whistling noises,
held not prejudicial to defendant.-Phelen v.
Granite Bituminous Pav. Co. (Mo. App.) 440.
*Directing verdict for defendant held not
ground for reversal where evidence was insuffi-
cient to authorize a recovery. Siewerssen v.
Harris County (Tex. Civ. App.) 333.
Misjoinder of parties plaintiff held not inju-
rious to defendant.-Galveston, H. & S. A. Ry.
Co. v. Heard (Tex. Civ. App.) 371.
An erroneous instruction to the advantage of
defendant cannot be complained of by it on ap-
peal.-Galveston, H. & S. A. Ry. Co. v. Roberts
(Tex. Civ. App.) 375.
Harmless error in rulings as
to evidence.
*Where a cause is tried to the court, it must
be presumed that the court considered only the
competent evidence. Covington v. St. Francis
County (Ark.) 186.
*Any error in exclusion of evidence held cured
by evidence subsequently admitted.-Locke v.
City of Independence (Mo. Sup.) 61.
*Exclusion of evidence held harmless in view
of verdict.-Locke v. City of Independence (Mo.
Sup.) 61.
In an action for injuries held that plaintiff's
statement that she did not sign one of certain
written statements claimed to have been signed
by her held not prejudicial to defendant. Lat-
son v. St. Louis Transit Co. (Mo. Sup.) 109.
In an action for injuries, there was no error
in admitting testimony that plaintiff had visit-
ed certain places in an attempt to regain her
health. Latson v. St. Louis Transit Co. (Mo.
Sup.) 109.
*A judgment in equity case may be reversed
on the ground that the court admitted incompe-
tent evidence.-Russell v. Sharp (Mo. Sup.)
The admission of certain evidence out of its
proper order held not reversible error.-Wheeler
v. Reynolds Land Co. (Mo. Sup.) 1050 Fergu-
son v. Girard Trust Co. (Mo. Sup.) 1055.
In an action for killing cattle, the exclusion
of evidence held harmless error. Harris V.
Quincy, O. & K. C. Ry. Co. (Mo. App.) 1010.
In action on building contract providing
for liquidated damages, exclusion of evidence of
harmless.-Neblett V.
actual damages held
McGraw & Brewer (Tex. Civ. App.) 309.
The admission of a declaration of a servant
as res gestæ in an action for injuries, if error,
held not prejudicial to defendant.-Gulf, C. &
S. F. Ry. Co. v. Tullis (Tex. Civ. App.) 317.
*Admission of an ancient deed in evidence
which was not considered by the court in de-
termining the case held harmless.-Veatch v.
Gray (Tex. Civ. App.) 324.
In trespass to try title, the exclusion of cer-
tain evidence held harmless error.-Moore v.
Kempner (Tex. Civ. App.) 336.
Although the trial court permitted leading
questions to be asked and answered, appellant
has no just cause for complaint where it is
evident that the answers desired were not elicit-
ed from the witness.-Galveston, H. & S. A.
Ry. Co. v. Fitzpatrick (Tex. Civ. App.) 355.
*Although the trial court permitted a leading
question to be asked and answered, no injury
resulted therefrom where the answer stated
a fact which any jury of average common sense
know.-Galveston, H. & S. A. Ry. Co. v. Fitz-
patrick (Tex. Civ. App.) 355.
In an action on an express contract for serv-
ices, where the judgment was for the balance
due under the terms of that contract, the ad-
mission of evidence as to the reasonable value
of the services was harmless.-City of Houston
v. Potter (Tex. Civ. App.) 389.
*Judgment reversed for admission of incom-
petent evidence, although trial was by court.-
Texas & P. Ry. Co. v. Brashears (Tex. Civ.
App.) 594.
Exclusion of evidence held harmless.-San An-
tonio Machine & Supply Co. v. Josey (Tex.
Civ. App.) 598.
Where, in trespass to try title, the undisputed
evidence showed that defendant had title to the
land by adverse possession, the admission in evi-
dence of an imperfectly acknowledged deed,
tending to show that plaintiffs had knowledge
of such possession, was harmless.-Yarborough
v. Mayes (Tex. Civ. App.) 624.
In an action for injuries to plaintiff through
alleged ill treatment of defendant's employés, ad-
mission of certain evidence held not prejudicial
to defendant.-Southern Pac. Co. v. Bailey
(Tex. Civ. App.) 820.
In an action for injuries alleged to have been
sustained by plaintiff as a result of ill treatment
by defendant's train employés, the admission of
evidence as to the character of the station at
which plaintiff was put off held not reversible
error.-Southern Pac. Co. v. Bailey (Tex. Civ.
App.) 820.
Asking a witness a certain question held not
reversible error, conceding that the question was
leading.-Chicago, R. I. & G. Ry. Co. v. Cal-
vert (Tex. Civ. App.) 825.
*The admission of evidence that certain of
defendant's servants, charged with negligence,
were new men, held not prejudicial where simi-
lar proof was given by other witnesses without
objection.-St. Louis Southwestern Ry. Co. of
Texas v. Bryson (Tex. Civ. App.) 829.
*The exclusion of evidence tending to show
the authority of an agent is not a material
error where such authority is otherwise in-
disputably established.-Flynt v. Taylor (Tex.
Civ. App.) 864.
In an action against a railway company for
injuries to a shipper of stock while riding on
the engine, error in admitting evidence held
harmless under the instructions.-Missouri, K.
& T. Ry. Co. of Texas v. Avis (Tex. Civ. App.)
877.
Harmess error in arguments
and conduet of counsel.
Misconduct of counsel in stating to the jury
that he wished he could inform them of ad-
missions of defendant's representatives held
harmless.-Campbell Turnpike Road Co. v.
Maxfield (Ky.) 1135.
Argument of counsel held not reversible
error.-Missouri, K. & T. Ry. Co. of Texas v.
Avis (Tex. Civ. App.) 877.
The argument of counsel held not error in
view of the instructions.-Missouri, K. & T. Ry.
Co. of Texas v. Avis (Tex. Civ. App.) 877.
*Point annotated. See syllabus.
error in instruc-§ 25.
tions to jury.
Where instructions given are erroneous in an-
nouncing the law in a certain respect, they
must be held to be prejudicial, although the
court in other instructions announces the law
correctly. Bayles v. Daugherty (Ark.) 304.
In an action for libel and slander, defendant
held not prejudiced by an instruction author-
izing a recovery if defendant used words con-
cerning plaintiff which amounted to a charge of
fornication without reference to whether they
were substantially the words alleged.-Miller v.
Nuckolls (Ark.) 759.
On change of a case from law to equity, the
chancellor's instructions are, in the absence of
material evidence, immaterial; the office of the
jury in such case being advisory only.-Bouton
v. Pippin (Mo. Sup.) 149.
In an action for injuries to a street car
passenger, a clause in an instruction not sup-
ported by the evidence held not misleading.
Brod v. St. Louis Transit Co. (Mo. App.) 993.
Where a verdict on the first count of a pe-
tition was for the right party, instructions
referring to such count will not be reviewed.-
Bradner v. Rockdale Powder Co. (Mo. App.)
997.
An instruction as to an alleged overcharge by
defendant vendor held harmless error.-Bor-
deaux v. Hartman Furniture & Carpet Co.
(Mo. App.) 1020.
In an action against a telegraph company for
delay in transmitting a message, the error in an
instruction held prejudicial.-Western Union
Telegraph Co. v. Campbell (Tex. Civ. App.)
312.
In an action for injuries to a locomotive
fireman, error in an instruction permitting a
verdict even though the defects found by the
jury were not those alleged was harmless where
no other defects were shown or in any manner
referred to.-Galveston, H. & S. A. Ry. Co. v.
Udalle (Tex. Civ. App.) 330.
It is reversible error to submit an i sue where
there was no testimony tending to sustain it.-
International & G. N. R. Co. v. Gonzales (Tex.
Civ. App.) 597.
In an action for injuries to a servant, error in
a charge defining the character of the risks as-
sumed held harmless, where the servant was
injured through the negligence of a vice prin-
cipal.-Abilene Cotton Oil Co. v. Anderson (Tex.
Civ. App.) 607.
In trespass to try title, an instruction that
the record of the deed was notice of the adverse
character of the possession of the grantor there-
in held harmless if erroneous.-Yarborough v.
Mayes (Tex. Civ. App.) 624.
In an action against a railway company and
a sleeping car company for injuries to a passen-
ger, an instruction as to the degree of care re-
quired of the sleeping car company held not
prejudicial in view of the contract between it
and the railway company.-Pullman Co. v.
Norton (Tex. Civ. App.) 841.
In an action against a railway company and
a sleeping car company for injuries to a passen-
ger, an instruction held not prejudicial to the
sleeping car company under the evidence.-Pull-
man Co. v. Norton (Tex. Civ. App.) 841.
Harmless error in judgment
or order.
Rendition of judgment improper in form held
not reversible error, where it accomplishes the
same results as a proper judgment.-May v.
Vaughn (Ky.) 273.
Any error in a judgment held such as not to
warrant a reversal, under Rev. St. 1899, §
865.-Daggs v. Smith (Mo. Sup.) 1043.
§ 252.
Error waived in appellate
*A defect in an instruction not pointed out
by appellant in his argument and brief is
waived. Lange v. Missouri Pac. Ry. Co. (Mo.
App.) 989.
$26. Subsequent appeals.
*Where on a former appeal appellant obtained
a reversal because a certain charge was not
given, he cannot on the second appeal object
because the charge was given at the second trial.
-Galveston, H. & S. A. Ry. Co. v. Fitzpatrick
(Tex. Civ. App.) 355.
*The decision of a case on a former appeal
is decisive of the questions then in controversy
between the parties on a subsequent appeal.-
Nashville, C. & St. L. Ry. Co. v. Grayson
County Nat. Bank (Tex. Civ. App.) 1106.
§ 262. Determination and disposition of
A judgment of the Supreme Court becomes
final with the close of the term during which
it was rendered, and that court cannot there-
after modify or enlarge such judgment.-Collins
v. Hawkins (Ark.) 26.
A complaint held, under the mandate of the
Court of Appeals, properly dismissed.-Capital
Townsite Co. v. Denton (Înd. T.) 34.
Where an order granting a new trial was re-
versed with directions to enter judgment for
plaintiff, defendant had no right to interpose
an amended answer.-Esler v. Wabash R. Co.
(Mo. App.) 400.
A decision on appeal is res adjudicata as to
all matters embraced in the record.-Esler v.
Wabash R. Co. (Mo. App.) 400.
On appeal in equity, cause held presented for
examination de novo, so that decree cannot be
affirmed on admissions of the answer and a
recital in the decree, where record does not con-
tain bill or evidence.-Hearst v. Proffit (Tenn.)
207.
On reversal of decree on appeal by defendant.
where plaintiff has meritorious case, cause will
be remanded for rehearing.-Hearst v. Proffit
(Tenn.) 207.
Under the statute the appellate court on re-
manding a cause held required to pass on the
questions which may become useful to a future
disposition of the case.- -Worcester v. Galves
ton, H. & S. A. Ry. Co. (Tex. Civ. App.) 339.
Where a cause is tried by the court, the
Court of Civil Appeals on reversing the cause
should render such judgment as should have
been rendered by the trial court.-Cook v. Spen-
cer (Tex. Civ. App.) 813.
The appellate court will not interfere with a
verdict as excessive, and as being for vindictive
damages, unless it is in an amount grossly
disproportionate to the injuries.-Southern Pac.
Co. v. Bailey (Tex. Civ. App.) 820.
In an action for injuries, an instruction
authorizing the jury to award plaintiff the
reasonable value of medical bills made necessary Under Mansf. Dig. § 4029 (Ind. T. Ann. St.
held not prejudicial to defendant.-Dallas Con- 1899, § 2709), where a defendant, sued in at-
sol. Electric St. Ry. Co. v. Ely (Tex. Civ. App.) | tachment before a United States commissioner
887.
in the wrong district, appeared and had the
*Point annotated. See syllabus.
case continued, the court thereby acquired juris-
diction. Thompson v. Wood (Ind. T.) 36.
Assault with intent to kill, see "Homicide,"
§§ 2, 4, 6.
Assault with intent to rape, see "Rape." § 1.
Harmless error, see "Criminal Law," § 21.
Liability of employer for defects, see "Master Instructions, in general, see "Criminal Law,"
and Servant," §§ 3, 6, 10.
Province of court and jury in general, see
"Criminal Law," § 8.
*An owner of an animal straying on the
premises of another is not justified in entering
on the premises and committing an assault on
the person in possession thereof, in the effort
to recover the animal.-Shellabarger v. Morris
(Mo. App.) 1005.
*In an action for assault and battery, im-
mediate provocation is admissible in evidence
in mitigation of damages.-Leachman v. Cohen
(Tex. Civ. App.) 809.
§ 2. Criminal responsibility.
*Facts held to justify an instruction that de-
fendant in a prosecution for assault and battery
began the difficulty, and was not therefore en-
titled to an acquittal on the ground of self-de-
fense.-Crowe v. Commonwealth (Ky.) 663.
instruction that, if defendant began the diffi-
*In a prosecution for assault and battery, an
culty by advancing on prosecutor with a hoe
held in a threatening manner, he was not en-
titled to acquittal on the ground of self-defense,
held not error.-Crowe v. Commonwealth (Ky.)
663.
*In a prosecution for assault, evidence held to
sustain a charge on provoking a difficulty.
-Coleman v. State (Tex. Cr. App.) 783.
In a prosecution for assault, an instruction
involving the truth of certain testimony given
by prosecutor against defendant held properly
refused as immaterial.-Coleman v. State (Tex.
Cr. App.) 783.
Of compensation for property taken for pub-
lic use, see "Eminent Domain." § 3.
Of damages, see "Damages," § 6.
Of expenses of public improvements, see "Mu-
nicipal Corporations," § 2.
Of tax, see "Taxation," § 1.
Of estate of decedent, see "Executors and Ad-
ministrators," § 1.
ASSIGNMENT OF ERRORS.
See "Appeal and Error," § 12.
As mortgage, see "Chattel Mortgages," § 1.
By wife to husband, see "Husband and Wife,"
§ 2.
Effect on usury of assignment to innocent pur-
chaser, see "Usury," § 1.
Fraud as to creditors, see "Fraudulent Con-
veyances."
Transfers of particular species of property,
rights, or instruments.
See "Bonds," § 1; "Covenants," § 2; "Patents,"
§ 2.
Admeasurement or assignment of dower, see
"Dower," § 2.
Bill of lading, see "Carriers." § 2.
Vendors' liens, see "Vendor and Purchaser,"
§ 5.
*Point annotated. See syllabus.
See "Beneficial Associations"; "Building and
Loan Associations."
Mutual benefit insurance associations, see "In-
surance," § 7.
ASSUMPSIT, ACTION OF.
See "Money Received"; "Work and Labor."
Of risk by employé, see "Master and Servant,"
§ 6.
Attorneys' claim under express contract for
the recovery of land for services held not
Liability of state asylum for torts of inmates barred by laches.-Lipscomb v. Adams (Mo.
or employés, see "States," § 1.
Sup.) 1046.
Exemptions, see "Homestead."
ATTORNEY GENERAL.
Right to maintain action for penalty for vio-
lation of anti-trust law, see "Monopolies," § 1.
In justices courts, see "Justices of the Peace," Of agent, see "Principal and Agent," §§ 1-3.
§ 2.
§ 1. Quashing, vacating, dissolution, or
abandonment.
Variance between affidavit for attachment
and amended petitions in amount claimed to be
due held not ground for quashing the attach-
ment.-Norvell-Shapleigh Hardware Co. v. Hall
Novelty & Machine Works (Tex. Civ. App.)
1092.
Of corporate officers or agents, see "Corpora-
tions," § 4.
Of justice of the peace, see "Justices of the
Peace," § 1.
Of officers in general, see "Officers," § 2.
See "Arbitration and Award," § 3.
On a motion to quash, the essential statements
in an affidavit for an attachment are not
traversable, but must, for the purpose of the mo-
tion, be taken as absolutely__true.-Norvell- Of passenger, see "Carriers," § 11.
Shapleigh Hardware Co. v. Hall Novelty &
Machine Works (Tex. Civ. App.) 1092.
§ 2. Liabilities on bonds or undertak-
ings.
Where a replevy bond given in attachment
proceedings is not conditioned as prescribed by
Rev. St. 1895, art. 204, but is conditioned as a
sequestration bond under article 4874, the Court
of Appeals cannot, on reversing a judgment
quashing the attachment, summarily enter judg-
ment on the bond.-Norvell-Shapleigh Hard-
ware Co. v. Hall Novelty & Machine Works
(Tex. Civ. App.) 1092.
ATTORNEY AND CLIENT.
Argument and conduct of counsel at trial in
civil actions, see "Trial," § 3.
Attorney's fee in action for separate mainte-
nance, see "Husband and Wife," § 7.
Attorney's fees as costs, see "Costs," § 2.
Attorneys' fees as costs in suit for partition,
see "Partition," § 1.
Attorneys' fees as element of damages, see
"Damages," § 1.
Attorneys in fact, see "Principal and Agent."
Harmless error in arguments and conduct of
counsel, see Appeal and Error," § 23.
Harmless error in remarks of counsel,
"Criminal Law," § 21.
Legality of object of contract between, see "Con-
tracts," § 1.
Liability of decedent's estate for services of at-
torney, see "Executors and Administrators,"
§ 2.
Objections to argument of counsel for purpose
of review, see "Appeal and Error," § 4.
§ 1. In criminal prosecutions.
*Bail for one accused of homicide fixed at
$1,500.-Ex parte Harris (Tex. Cr. App.) 794.
See "Banks and Banking," § 1; "Carriers,"
§§ 2-5; "Depositaries"; "Warehousemen."
Embezzlement or larceny by bailee, see "Em-
bezzlement"; "Larceny," § 2.
§ 1. Rights, remedies, and discharge of
bankrupt.
Bankr. Act July 1, 1898, c. 541. § 67f, 30 Stat.
565 [U. S. Comp. St. 1901, p. 3450], relative to
avoidance of liens, held inapplicable to lien un-
der which creditor has obtained satisfaction of
his claim prior to the filing of the petition in
bankruptcy.-Farrell v. W. B. Lockett & Co.
(Tenn.) 209.
565 [U. S. Comp. St. 1901, p. 3450], avoiding
Bankr. Act July 1, 1898, c. 541, § 67f, 30 Stat.
liens obtained by legal proceedings against a
bankrupt within four months prior to the filing
tary as well as to involuntary petitions in bank-
of the petition in bankruptcy, applies to volun-
ruptcy.-Farrell v. W. B. Lockett & Co.
(Tenn.) 209.
Under Bankr. Act July 1, 1898. c. 541, § 16,
30 Stat. 550 [U. S. Comp. St. 1901, p. 3428],
discharge of husband in bankruptcy held not to
*Point annotated. See syllabus.
discharge wife from liability on judgment
against herself and husband.-Love v. McGill
(Tex. Civ. App.) 246.
Under Bankr. Act July 1, 1898, c. 541, § 17,
30 Stat. 550 [U. S. Comp. St. 1901, p. 34281,
as amended by Act Cong. Feb. 5, 1903, c. 487,
32 Stat. 798 [U. S. Comp. St. Supp. 1905, p.
684], a liability arising on obtaining property
through fraud held not discharged by a dis-
charge in bankruptcy, notwithstanding section
14 (30 Stat. 550 [U. S. Comp. St. 1901, p.
3427]), as amended by the act of 1903 (32 Stat.
797 [Ú. S. Comp. St. Supp. 1905, p. 684]).-
Katzenstein v. Reid, Murdock & Co. (Tex. Civ.
App.) 360; Same v. Austin, Nichols & Co. (Tex.
Civ. App.) 363.
A creditor, receiving a dividend in his debtor's
bankruptcy proceedings, held not prohibited un-
der the statute to sue for the balance of his
claim, created by the debtor's fraud.-Katzen-
stein v. Reid, Murdock & Co. (Tex. Civ. App.)
360; Same v. Austin, Nichols & Co. (Tex. Civ.
App.) 363.
BANKS AND BANKING.
Banks as depositaries of public funds, see
"Depositaries."
§ 1. Functions and dealings.
*A bank held bound to apply general deposits
to the payment of notes of the depositors in
behalf of a surety, though the deposit was not
made until after the notes matured.-Bank of
Taylorsville v. Hardesty (Ky.) 729.
A transaction in which a bank took part held
not within Rev. St. 1899, § 1291, prohibiting
a bank from employing its moneys directly
in trade or commerce by buying and selling
chattels.-Griffin v. Wabash R. Co. (Mo. App.)
A bank purchasing a note subject to certain
defenses in the hands of the payee is not bound
by the knowledge or information of such de-
fenses that may have come to its officers at a
time when they were not engaged in its business,
but when they were acting for themselves in-
dividually. Grayson County Nat. Bank v. Hall
(Tex. Civ. App.) 807.
In an action by a bank as assignee of a note
held that the court erred in refusing an instruc-
tion asked.-Grayson County Nat. Bank v. Hall
(Tex. Civ. App.) 807.
Of action by former adjudication, see "Judg-
ment," § 5.
Of action by limitation, see "Limitation of Ac-
tions," § 4.
Of dower, see "Dower," § 1.
See "Assault and Battery."
BENEFICIAL ASSOCIATIONS.
Building and loan associations, see "Building
and Loan Associations."
Mutual benefit insurance associations, see "In-
surance," § 7.
similarity of name.-Young Women's Christian
Ass'n v. St. Louis Women's Christian Ass'n
(Mo. App.) 171.
Provision of constitution of association of
locomotive engineers held not to authorize ex-
pulsion of member for going on the witness
stand and testifying against a railroad.-Thomp-
son v. Grand International Brotherhood of
Locomotive Engineers (Tex. Civ. App.) 834.
To make conduct of a fraternal association
in maliciously expelling a member actionable,
it is not necessary that hatred or ill will by the
association toward the member be shown.
Thompson v. Grand International Brother-
hood of Locomotive Engineers (Tex. Ciy. App.)
834.
In an action against a fraternal association
for expelling a member, the question of the
association's good faith and of the rightfulness
of the expulsion held one for the jury.-Thomp-
son v. Grand International Brotherhood of Lo-
comotive Engineers (Tex. Civ. App.) 834.
Fraternal association held liable for the
wrongful expulsion of member by subordinate
division of the association.-Thompson v. Grand
International Brotherhood of Locomotive Engi-
neers (Tex. Civ. App.) 834.
A member of a fraternal association wrong-
remedies within the order to correct its wrong-
fully expelled therefrom need not exhaust his
ful action before suing for damages.-Thompson
motive Engineers (Tex. Civ. App.) 834.
v. Grand International Brotherhood of Loco-
Publication by fraternal association of notice
of expulsion of member held legal or illegal in
accordance with the legality or illegality of the
v. Grand International
expulsion.-Thompson
Brotherhood of Locomotive Engineers (Tex. Civ.
App.) 834.
In an action against a fraternal association
for expelling a member, certain evidence held
proper on the issue of damages.-Thompson v.
Grand International Brotherhood of Locomotive
Engineers (Tex. Civ. App.) 834.
for expelling a member, certain evidence held
In an action against a fraternal association
not relevant to the issue of damages.-Thompson
v. Grand International Brotherhood of Loco-
motive Engineers (Tex. Civ. App.) 834.
In an action against a fraternal association
for expelling a member, certain evidence held
erroneously excluded on the issue as to the
rightfulness of the expulsion.-Thompson v.
Grand International Brotherhood of Locomotive
Engineers (Tex. Civ. App.) 834.
Member of fraternal association who is
wrongfully expelled held entitled to sue for dam-
ages.-Thompson v. Grand International Broth-
erhood of Locomotive Engineers (Tex. Civ. App.)
834.
*The association in expelling member must
act in good faith and in pursuance of by-laws
not violative of the laws of the land.-Thompson
v. Grand International Brotherhood of Loco-
motive Engineers (Tex. Civ. App.) 834.
Acceptance of, as ground of estoppel, see "Es-
toppel," § 2.
As affecting apportionment of levee taxes, see
"Levees."
Where certain persons petitioned to be incor-
porated as a Young Women's Christian Associ-
ation, another organization had no right to be-
come a party to the proceedings and object.
under Rev. St. 1899, § 1394, on the ground of See "Wills."
*Point annotated. See syllabus.
|