(1) Defects, Objections, Amendment, and Correction.

§ 644. The Supreme Court of its own motion may refuse to consider an appeal, where the abstract of the record proper shows neither filing of bill of exceptions, nor the filing and overruling of motion for new trial, though there is no objection by the parties.-Hutson v. Allen (Mo.) 121.

§ 659. Where an exhibit is omitted from the transcript of record, held, that an objecting party might, under Civ. Code Prac. $ 742. obtain certiorari to have the omitted exhibit transmitted by the clerk.-Settle v. Smith (Ky.) 757. (J) Conclusiveness and Effect, Impeaching

and Contradicting.

$ 664. Where the statements in a bill of exceptions are in conflict with the facts as set out in a statement of facts, they cannot be permitted to contradict the statement of facts.-A. Cohen & Co. v. Rittimann (Tex. Civ. App.) 59.

§ 664. In case of conflict as to the testimony of a witness, the agreed statement of facts controls the bill of exceptions.-Eastern Ry. Co. of New Mexico v. Montgomery (Tex. Civ. App.) 885.

(K) Questions Presented for Review.

$671. The reasonableness of the allowance of an attorney's fee will not be reviewed, where

a motion to set aside the order and to retax the fee was not copied into the bill.-Blanchard v. Dorman (Mo.) 395.

§ 730. An assignment of error to refusing to instruct held insufficient as a proposition of law in itself.-Gulf, C. & S. F. Ry. Co. v. Nelson (Tex. Civ. App.) 81.

of instructions is insufficient where the refused § 730. An assignment of error to the refusal

instructions are not set out, and the statement does not refer to any part of the record containing them.-Southern Pine Lumber Co. v. Arnold (Tex. Civ. App.) 1167.

§ 742. An assignment of error, not supported as required by Court of Civil Appeals rules, held not subject to consideration.-St. Louis, S. F. & T. Ry. Co. v. Birge-Forbes Co. (Tex. Civ. App.) 3.

§ 742. A point presented by a proposition under an assignment of error, but not presented by the assignment, cannot be considered.-Surghenor v. Ayers (Tex. Civ. App.) 28.

$742. Where a proposition contained in the brief is not germane to the assignment of error under which it is submitted, it cannot be considered.-Webster v. Frazier (Tex. Civ. App.)

G09.

§ 742. An assignment of error not followed by a statement or specification, as required by rule 31 (67 S. W. xvi), will not be considered.

§ 671. Matters raised by motions for new-Ripley v. Wenzel (Tex. Civ. App.) 897. trial and in arrest of judgment cannot be considered on appeal, where such motions are not copied into the bill of exceptions and no direction was given to the clerk to so copy them, pursuant to Laws 1903, p. 105.-Blanchard v. Dorman (Mo.) 395.

§ 742. On assignment of error in entering judgment upon inconsistent findings, held, that no reversible error could be predicated.-Ripley v. Wenzel (Tex. Civ. App.) 897.

$671. Defendant in error held not entitled to object on appeal to the consideration of the cause because the issuance of the writ of error was not shown in the abstract of the record, not having taken the steps pursuant to Rev. St. 1899, § 813. to have that fact shown in the abstract.-Blanchard v. Dorman (Mo.) 395.

§ 681. It cannot be said there was error in overruling the exception to an amended petition that it claimed damages to cattle not mentioned in the original petition, where the amended petition does not show such fact, and the original petition is not in the record.-Pecos & N. T. Ry. Co. v. Crews (Tex. Civ. App.) 1049.

§ 684. Where none of the evidence was abstracted, the Supreme Court cannot say that testimony desired to be presented by a witness in an application for continuance would be sufficient to alter the decree.-Dent v. People's Bank of Imboden (Ark.) 533.

(L) Matters Not Apparent of Record.

§ 714. Testimony not contained in the abstract of record cannot be considered on appeal. -Terry v. Glover (Mo.) 337.

XI. ASSIGNMENT OF ERRORS. $719. Findings of the trial court, not challenged, held conclusive on appeal.-London Guarantee & Accident Co. v. City of Beaumont (Tex. Civ. App.) 894.

§ 719. On appeal from a judgment entered upon special findings, held, that an assignment complaining of alleged erroneous special findings would not be considered.-Ripley v. Wenzel (Tex. Civ. App.) 897.

§ 719. Error in peremptorily directing a verdict is fundamental, requiring review on appeal without any specific assignment of error.

$742. Where no statement follows a proposition under an assignment, the proposition will not be considered on appeal.-Southern Pine Lumber Co. v. Arnold (Tex. Civ. App.) 917.

§ 742. Assignments of error held to contain at least two distinct propositions, so that it was error to group them.-Southern Pine Lumber Co. v. Arnold (Tex. Civ. App.) 1167.

have been filed below nor to have been filed by $ 745. An assignment of error not shown to consent on appeal will not be considered.-Gulf, C. & S. F. Ry. Co. v. Nelson (Tex. Civ. App.)

81.

XII. BRIEFS.

$ 761. On appeal respondent is only required in his brief to meet the questions urged in the appellant's brief.-Stid v. Missouri Pac. Ry. Co. (Mo.) 172.

$ 772. Leave to file appellant's brief will be granted, though good cause for delay is not shown, where appellee will have ample time to answer before submission. Rule 39 (67 S. W. xvi).-John E. Morrison Co. v. Harrell (Tex. Civ. App.) 1166.

$ 773. A motion to dismiss will be granted where no briefs or assignments of error had been filed when the cause was called.-Denson v. Taylor (Tex. Civ. App.) 924.

§ 773. An appeal held not subject to dismissal for appellant's failure to file briefs in time. -Gibbs v. Eastham (Tex. Civ. App.) 1166.

XVI. REVIEW.

(A) Scope and Extent in General.

§ 854. If the court's action in excluding evidence without assigning grounds can be sustained on any legal ground, it must be sustained.-St. Louis Union Trust Co. v. Merritt (Mo. App.) 824.

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER

(D) Amendments, Additional Proofs, and plaintiff's evidence would not be reversed because

§ 1033. A defeated party may not complain
of instructions too favorable to him.-Scott v.
Missouri Southern R. Co. (Mo. App.) 259.
$1033. The exclusion of a deposition held
not harmful to plaintiff; the evidence therein
not being favorable to him.-St. Louis Union
Trust Co. v. Merritt (Mo. App.) 824.

§ 1033. Plaintiff cannot complain on appeal
in replevin that the judgment awarding the
property to defendant did not assess the value
of the property or damages.-St. Louis Union
Trust Co. v. Merritt (Mo. App.) 824.

§ 1040. The error in overruling exceptions to
allegations of the petition held harmless.-Win-
free v. Winfree (Tex. Civ. App.) 36.

§ 1043. Refusal to grant a continuance on
the filing of an amended complaint held not
prejudicial to defendant.-Southern Anthracite
Coal Co. v. Hodge (Ark.) 292.

§ 1043. Defendant held not prejudiced by
the denial of an application for a continuance,
or the absence of two witnesses whose expected
testimony would have been cumulative only.
Illinois Cent. R. Co. v. Ethridge (Ky.) 832.

§ 1053. In an action by a firm of architects
against a church congregation, admission_of
certain evidence held harmless.-Crescent Hill
Presbyterian Church v. McDonald & Dodd
(Ky.) 849.

§ 1053. The reception of certain evidence
after defendant's witnesses were excused, held
not prejudicial.-Crescent Hill Presbyterian
Church v. McDonald & Dodd (Ky.) 849.

§ 1053. Defendant cannot claim a reversal
because of evidence offered, where his objec-
tion was sustained, and it was ordered stricken
App.) 817.
from the record.-Jennings v. Appleman (Mo.

§ 1053. In an action against connecting car-
prejudicial error to admit testimony for plain-
riers for delay in transporting freight, held not
tiff as to notice given the local agent at the
destination.-Gulf, C. & S. F. Ry. Co. v. Nelson
(Tex. Civ. App.) 81.

§ 1047. On transfer of an equitable action in view of charge limiting the jury in the find-
§ 1053. Admission of evidence held harmless
to the ordinary docket, error in restricting a
party to the use of depositions held harmless.ing of damages.-Pecos & N. T. Ry. Co. v.
Lewis v. Helton (Ky.) 772.
Crews (Tex. Civ., App.) 1049.

§ 1050. In an action against an operator of
a sawmill for the destruction of property by
fire set by his refuse burner, the error in ad-
mitting evidence held not prejudicial.-Chicago
Mill & Lumber Co. v. Ross (Ark.) 632.

§ 1050. In an action for personal injuries,
statements of plaintiff as to his injuries, and
how they affected him, testified to by witnesses,
if erroneous, held harmless.-Broadway Coal
Mining Co. v. Southard (Ky.) 747.

Court can disregard incompetent testimony and
§ 1054. In an equity case, the Supreme
render such judgment as equity and justice
require upon the pleadings and the evidence
properly admitted.-Home Telephone Co. v. City
of Carthage (Mo.) 547.

exclusion of certain evidence held harmless er-
§ 1056. In a suit for trespass to try title the
ror.-McAllen v. Crafts (Tex. Civ. App.) 41.

§ 1056. Exclusion of admissible evidence
held not reversible error, where the fact sought
§ 1050. In an action for injuries to the fore-
to be shown thereby was proven by other evi-
man of a crew in razing a jail, certain evidence.-Ripley v. Wenzel (Tex. Civ. App.) 897.
dence as to the authority of the county build-
ing committee held not prejudicial.-Dyer v.
Pauly Jail Bldg. Co. (Ky.) 789.

§ 1050. In a suit for trespass to try title,
the admission of certain evidence held harmless
error.-McAllen v. Crafts (Tex. Civ. App.) 41.

§ 1057. The error, if any, in excluding evi-
dence merely cumulative of evidence abundantly
establishing the fact sought to be proved is not
prejudicial.-Nashville Lumber Co. v. Busbee
(Ark.) 301.

§ 1057. Where insured suing on a fire policy
§ 1050. Admission of evidence, in an action admitted the existence of other insurance, the
against defendants to enforce their liability on error in excluding the other policy was not
notes paid by the plaintiffs, held not prejudicial. | prejudicial.-Citizens' Fire Ins. Co. v. Lord
-Webster v. Frazier (Tex. Civ. App.) 609. (Ark.) 1114.

1050. Admission of certified copies of cer-
tain documents attached to a letter written
in defendant's interest held harmless where
defendant failed to deny the truth of any of
the statements contained therein.-Robertson v.
Brothers (Tex. Civ. App.) 657.

§ 1050. Unless the appellate court can say
that testimony improperly admitted did not
prejudice the rights of the complaining party,
the judgment must be reversed.-Wells Fargo
& Co. Express v. Mitchell (Tex. Civ. App.) 926.
§ 1051. The admission of a deed in evidence
held harmless, if erroneous.-Hunt v. Wright
(Tex. Civ. App.) 1007.

§ 1052. In an action for negligent death, the
error in admitting evidence held not prejudicial.
-Southern Anthracite Coal Co. v. Hodge (Ark.)
292.

§ 1052. In an action for personal injuries,
the error in a charge held not reversible.-South
Covington & C. St. Ry. Co. v. Hossfeld (Ky.)
1095.

§ 1052. In an action for destruction by fire
of grass on pasture land, the error in admit-
ting evidence held not prejudicial.-Ft. Worth
& D. C. Ry. Co. v. Worsham (Tex. Civ. App.)
927.

|

§ 1058. The exclusion of evidence afterwards
admitted is harmless error.-Gulf, C. & S. F.
Ry. Co. v. Kennedy (Tex. Civ. App.) 1009.

§ 1062. Erroneous submission of the defense
of champerty in ejectment held harmless, though
the verdict for defendant was general, on fail-
ure of plaintiff to show the land was within her
deed.-Abbott v. Perkinson (Ky.) 745.

§ 1064. An erroneous charge duly excepted
to held reversible error.-Louisville, H. & St. L.
Ry. Co. v. Roberts (Ky.) 1073.

§ 1064. An instruction that, if the jury
found for the plaintiff, they should assess his
damages at such sum, not exceeding $25,000 (the
amount claimed in the petition), as they might
believe from the evidence he had sustained,
held not reversible error.-Stid v. Missouri Pac.
Ry. Co. (Mo.) 172.

§ 1066. Instruction, in action under Rev. St.
1909, § 5425, as to the measure of damages
held reversible error.-Ervin v. St. Louis, I. M.
& S. Ry. Co. (Mo. App.) 498.

§ 1066. Submission of plaintiff's loss of time
as an item of damage in an action for assault,
where the value of his time was not directly
proved, held not reversible error.-Jennings v.
Appleman (Mo. App.) 817.

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER

§ 1066. In a suit for injuries to a servant, ment.-C. H. Albers Commission Co. v. Spencer
an instruction requiring too high a degree of (Mo.) 321.
care held not prejudicial to defendant.-Hous-
ton, E. & W. T. Ry. Co. v. Eddings (Tex. Civ.
App.) 902.

§ 1151. Where the damages for the wrongful
issuance of a temporary injunction, subsequent-
ly dissolved, include improper items not separ- § 1229. The obligation of a surety upon a
able from proper items, the assessment of dam- statutory appeal bond must be strictly constru-
ages must be reversed, but when separable the ed, as well as the statute providing for the
appellate court may render the proper judg-bond.-Hill v. Keller (Mo. App.) 523.

§ 1231. Where an appeal bond given under
Rev. Sts. 1909, § 2042, contained the statutory
condition that an appellant should prosecute
the appeal to a decision, a dismissal of the
appeal is a decision within the purview of the
bond.-Hill v. Keller (Mo. App.) 523.

§ 1231. The sureties on an appeal bond un-
der Rev. St. 1909, § 2042, held, in view of Rev.
St. 1899, §§ 812, 813, not to be liable thereon
as in case of an affirmance, on dismissal of the
appeal.-Hill v. Keller (Mo. App.) 523.

APPEARANCE.

I. CIVIL LIABILITY.

(B) Actions.

§ 28. In an action for assault, evidence of
epithets used by defendant concerning accused
on the day before the assault held admissible.-
Jennings v. Appleman (Mo. App.) 817.

sulting from mental suffering, though no bat-
$ 38. Defendant held liable for injuries re-
tery was committed.-Davidson v. Lee (Tex.
Civ. App.) 904.

II. CRIMINAL RESPONSIBILITY.
(B) Prosecution and Punishment.
See Appeal and Error, § 493; Judgment, § 151. $77. An essential element of assault and bat-
$9. Appearance to vacate a default judg-tery, as defined by Kirby's Dig. § 1584, held a
ment held a general appearance. Currey v.
battery.-Jones v. State (Ark.) 1126.
Trinity Zinc, Lead & Smelting Co. (Mo. Ápp.)
212.

APPLIANCES.

See Negligence, § 23.

APPLICATION.

See Continuance, $$ 37, 44; Criminal Law, §§
586, 594, 608, 1034, 1151; Life Estates, § 16;
Mandamus, § 14: Removal of Causes, § 79;
Wills, $$ 3711⁄2-384.

APPOINTMENT.

See Counties, § 63.

APPROPRIATION.

See Constitutional Law, §§ 54, 58; Statutes,
$$ 64, 102, 119.

ARBITRATION AND AWARD.

II. ARBITRATORS AND PROCEED-

INGS.

$ 32. Notice to a party agreeing to arbitra-
tion and to the arbitrator selected by him of a
meeting of the arbitrators is necessary, but such
notice need not be in writing.-Cravens v. Estes
(Ky.) 761.

$35. Where there has been an agreement to
arbitrate, the subsequent proceeding of one of
the arbitrators and the umpire to consummate
the arbitration by an award is unauthorized and
illegal.-Cravens v. Estes (Ky.) 761.

$ 39. "Umpire" in an arbitration proceeding
defined.-Cravens v. Estes (Ky.) 761.

ARCHITECTS.

See Contracts, § 287; Religious Societies.

ARGUMENT OF COUNSEL.

See Criminal Law, §§ 713-730, 1037; Trial, §
133.

ARREST.

See Homicide, § 23.

ARREST OF JUDGMENT.

See Appeal and Error, §§ 238, 671; Criminal
Law, $$ 969, 971; Judgment, §§ 259-266.

ASSAULT AND BATTERY.

See Appeal and Error, § 1066; Criminal Law.
$$ 825, 1019; Damages, $ 215; Indictment
and Information, § 191; Rape, §§ 53, 59.

$91. Evidence in a prosecution for assault
and battery held to sustain a conviction.-Rey-
nolds v. State (Tex. Cr. App.) 977.

ASSESSMENT.

See Constitutional Law, § 233; Damages, $$
208-217; Drains, § 88; Municipal Corpora-
tions, $$ 407-484; Taxation, §§ 317-466;
Venue, § 80.

ASSIGNMENT OF ERRORS.

See Appeal and Error, §§ 285, 289, 714-745,
773, 1078.

ASSIGNMENTS.

See Appeal and Error, § 1180; Carriers, § 58;
Champerty and Maintenance, § 6; Fraudu-
lent Conveyances; Insurance, §§ 122, 200,
212, 615; Specific Performance, § 17.

II. OPERATION AND EFFECT.

§ 88. A lumber company, to which all mon-
ey due under a building contract had been as-
signed, to secure it for advances, etc., held not
a trustee for subcontractors and materialmen,
nor required to pay their claims in preference
to its own.-South Texas Lumber Co. v. Con-
crete Const. Co. (Tex. Civ. App.) 913.

all money due to a lumber company to secure
$88. Where building contractors assigned
advances of material and money, the owner
could not be required to pay any of the money
to subcontractors or materialmen.-South Tex-
as Lumber Co. v. Concrete Const. Co. (Tex.
Civ. App.) 913.

IV. ACTIONS.

§ 121. Under the statute, an assignee of a
contract may sue thereon.-Birdsall v. Coon
(Mo. App.) 243.

§ 138. Whether a party to a contract assign-
ed it to a person suing the adverse party there-
on held, under the evidence, for the jury.—
Birdsall v. Coon (Mo. App.) 243.

ASSIGNMENTS FOR BENEFIT OF
CREDITORS.

See Bankruptcy; Banks and Banking, § 49.

ASSOCIATIONS.

See Insurance, § 691.

ASSUMPSIT, ACTION OF.

See Work and Labor.

ASSUMPTION.

See Trial, § 191.

Of risk, see Master and Servant, §§ 208-226,
295.

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER