MEMORANDUM DECISIONS Prentice Oltorf, Judge. Allen Tisdole, alias ADAMS v. STATE. (No. 6738.) (Court of Criminal Appeals of Texas. March 8, 1922.) Appeal from Red River County Court; R. J. Williams, Judge. Porter Adams was convicted of misdemeanor theft, and appeals. AfAppellant was convicted firmed. R. G. Storey, Asst. Atty. Gen., for in the district court of Falls county of the ofthe State. MORROW, P. J. Conviction is for theft, a misdemeanor; punishment fixed at confinement in jail for 30 days and a fine of $150. The indictment is regular. No statement of facts or bill of exceptions accompany the record. The judgment is affirmed. ARMENTA v. STATE. (No. 6922.) (Court of Criminal Appeals of Texas. March 22, 1922.) Appeal from District Court, Webb County; J. F. Mullally, Judge. Santiago Armenta was convicted of murder, and he appeals. Appeal abated on appellant's motion. R. G. Storey, Asst. Atty. Gen., for the State. LATTIMORE, J. Appellant was convicted in the district court of Webb county of murder, and his punishment fixed at 30 years in the penitentiary. Appellant has filed an affidavit in due form asking that he be permitted to withdraw his appeal. The application is granted, and the appeal is ordered abated. BROOM v. STATE. (No. 6832.) (Court of Criminal Appeals of Texas. March 29, 1922.) Appeal from District Court, Sabine County; V. H. Stark, Judge. Adrian Broom was convicted of aggravated assault, and he appeals. Affirmed. R. G. Storey, Asst. Atty. Gen., for the State. fense of murder, and his punishment fixed at 15 years in the penitentiary. The record is before us without bills of exception or statement of facts. The indictment correctly charges the unlawful killing of one John Berry by then and there shooting him with a gun. The Icharge of the court submits fairly and fully the law of murder. Finding no error in the record, an affirmance will be ordered. GULF, C. & S. F. RY. CO. v. MORENO. (No. 6410.) (Court of Civil Appeals of Texas. HAWKINS, J. Upon indictment for assault Austin. Feb. 24, 1922. Rehearing Denied with intent to murder conviction for aggravat-March 29, 1922) Appeal from District Court, ed assault resulted; punishment being assess- Bell County; F. M. Spann, Judge. Action by ed at a fine of $250 and 90 days' imprisonment Feberico Moreno against the Gulf, Colorado in the county jail. The indictment, charge of & Santa Fé Railway Company. Judgment for the court, and judgment appear to be regular plaintiff, and defendant appeals. Affirmed. W. as found in the record, and no statement of W. Hair, of Temple, Terry, Cavin & Mills, of facts or bills of exception are brought forward. Galveston, and Lee, Lomax & Wren, of Fort The judgment of the trial court is affirmed. Worth, for appellant. A. L. Curtis, of Belton, and Winbourne Pearce, of Temple, for appellee. SMITH V. STATE. (No. 6744.) (Court of Criminal Appeals of Texas. March 8, 1922.) Appeal from District Court, Orange County; V. H. Stark, Judge. Grant Smith was convicted of unlawful manufacture of intoxicating liquor, and he appeals. Affirmed. R. G. Storey, Asst. Atty. Gen., for the State. KEY, C. J. Feberico Moreno brought this suit against the Gulf, Colorado & Santa Fé Railway Company, and recovered a judgment for $4,000, for personal injuries sustained by the plaintiff while in the employ of the defendant, and the latter has appealed. The charge of the court correctly defined negligence, contributory negligence, ordinary care, and proximate cause, and then submitted the case to the jury, upon special issues, and the jury having answered the same favorably to the plaintiff, judgment was rendered as heretofore stated. The jury found that the employés of the defendant caused a car, on which the plaintiff was riding in performance of his duties, to be suddenly and violently jerked, thereby causing him to be thrown from the car, and that the emTISDOLE v. STATE. (No. 6854.) (Court ployés were guilty of negligence in so jerking of Criminal Appeals of Texas. March 8, 1922.) the car, and that the plaintiff was not guilty of Appeal from District Court, Falls County; | contributory negligence. Appellant insists that MORROW, P. J. The conviction is for the unlawful manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year and one day. The indictment is regular. We find in the record neither statement of facts nor bill of exceptions. The judgment is affirmed. (238 S.W.) the testimony failed to show any negligence on, cording to appellee's version of the case, the the part of the appellant, or its employés, but shows that the plaintiff was guilty of contributory negligence, and that the trial court erred in not giving a requested instruction, directing the jury to find for the defendant. We have carefully examined the statement of facts, and while the evidence in support of the verdict is rather meager, we are not prepared to hold that the latter is without testimony to support it. All the other questions presented in appellant's brief have been duly considered, and are decided against appellant. No reversible error has been pointed out, and the judgment is affirmed. Affirmed. RUSSELL V. RUSSELL. (No. 2517.) (Court of Civil Appeals of Texas. Texarkana. March 2, 1922.) Appeal from District Court, Hopkins County; Geo. B. Hall, Judge. Suit by Mrs. Kate Russell against R. F. Russell for divorce. Decree for complainant, and defendant appeals. Reversed and remanded. Connor & Ramey, of Sulphur Springs, for appellant. Grover Sellers, of Sulphur Springs, and Sam. D. Stinson, of Greenville, for appellee. appellant had struck and mistreated her and had made improper accusations; but the uncontroverted evidence is that appellant made ample apologies, and the parties adjusted these troubles, and thereafter continued to live together as husband and wife until February, 1921. The trial court finds: "That after these incidents and many others shown by the testimony had occurred plaintiff and defendant continued to live together as husband and wife, and it appears that plaintiff, at least to some extent, condoned these things." But the court further finds that at the time of the next and last separation, in February, 1921, "other differences arose between them which would naturally arouse the feelings of plaintiff, and were such as to bring back afresh to the mind of plaintiff the treatment she had apparently condoned, and were such as to cause her to consider such matters anew as though they had not been condoned." These "other differences" were not such, we think, as to take the case out of the legal rule of condonation applicable to cruel treatment as a ground of divorce as laid down in the several cases cited in the briefs. Therefore we conclude that the evidence does not legally justify the decree of divorce. The judgment of the court below is reversed, and the cause remanded. STATE v. MEYERS. (No. 3122.) (Springfield Court of Appeals. Missouri. March 11, 1922.) Appeal from Circuit Court, Oregon County; E. P. Dorris, Judge. Annie C. Meyers was convicted of a misdemeanor in keeping a Affirmed. W. bawdyhouse, and she appeals. N. Evans, of West Plains, for appellant. J. D. Brooks, Pros. Atty., of Alton, for the State. LEVY, J. The action is for divorce, brought by appellee against her husband on the grounds of cruel treatment and outrages of such a nature as to render their living together insupportable. The appellant denied the allegations. The petition also sought a division and adjustment of the estate of the parties. The court, after hearing the evidence, granted a decree of divorce and of division and adjustment of the estate. The appeal is to revise the action of the court, both in granting the divorce and respecting the division and adjustment of the estate. The court did not err, we think, in the decree pertaining to the property rights of the parties, and the same should be affirmed, but for the fact that the decree of divorce cannot be, we conclude, legally sustained in the record. We will not undertake to set out the evidence pertaining to the grounds of divorce, as it would serve no useful purpose to do so. The evidence is conflicting concerning the acts of cruel treatment and outrages alleged. Ac-firmed. PER CURIAM. This appeal is here on the record only, which consists of the information charging this defendant and another with keeping a bawdyhouse under the misdemeanor section of the statute, the verdict of conviction of this defendant, and the judgment thereon. These are all regular on their face, and, there being no error apparent, the judgment is af END OF CASES IN VOL. 238 INDEX-DIGEST KEY NUMBER SYSTEM THIS IS A KEY-NUMBER INDEX It Supplements the Decennial Digests, the Key-Number Series and ABATEMENT AND REVIVAL. III. DEFECTS AND OBJECTIONS AS то (E) Duration and Continuity of Pos- 44 (Tex.Civ.App.) Not interrupted by inad- VI. WAIVER OF GROUNDS OF ABATE- (F) Hostile Character of Possession. MENT AND TIME AND MANNER OF 81 (Tex.Civ.App.) Charge items are v. Riley, 953. Co. Variation from due order of pleading may be ACTION. 64 (Tex.Civ.App.) Parol donee of land V. II. OPERATION AND EFFECT. See Abatement and Revival; Dismissal and Chapman, 481. III. JOINDER, SPLITTING, CONSOLIDA- EVIDENCE, TRIAL, AND 45(1) (Mo.) Petition relying on two dif- See Principal and Agent. III. DECISIONS REVIEWABLE. 71(3) (Ark.) Decree that temporary or- Failure to award costs held not to affect final- (E) Nature, Scope, and Effect of De- posses-113(2) (Ark.) No separate appeal from (1121) same term.-Pearce v. People's Sav. Bank & VIII. EFFECT OF TRANSFER OF CAUSE Trust Co., 1063. V. PRESENTATION AND RESERVATION (A) Issues and Questions in Lower Court. (B) Objections and Motions, and Rulings Thereon. 197(3) (Tex.Civ.App.) Variance amounting only to misdescription cannot be urged for first time on appeal.-Bland v. Cruce, 720. 204(1)(Tex.Civ.App.) Admission of testimony that would have been excluded on objection not ground for new trial.-Bland v. Cruce, 720. OR PROCEEDINGS THEREFOR. (A) Powers and Proceedings of Lower (A) Matters to be Shown by Record. 494 (Ky.) Record held not to show final judgment.-Phillips v. Green, 742. 515(2) (Ark.) Manner of preserving and incorporating oral and documentary testimony taken in open court.-McGraw v. Berry, 618. Transcribed stenographic notes must be filed during term in which case is tried.-Id. (B) Scope and Contents of Record. 216(3) (Mo.App.) Request by defendant unnecessary to show error in allowance of im-529(2) (Mo.App.) Facts not shown in bill of exceptions not considered.-Kirkman v. Steproper damages.-Yarde v. Hines, 151. 218(2) (Tex.Civ.App.) Failure to submit venson, 543. issue not considered where submission not requested.-Eastern Texas Electric Co. v. Baker, 335. (C) Exceptions. 259 (Mo.) Improper conduct of court to which no exceptions were saved not considered. -Friedman v. United Rys. Co. of St. Louis, 1074. (C) Necessity of Bill of Exceptions, Case, or Statement of Facts. 544(2) (Mo.) In absence of bill of exceptions, if pleadings authorize judgment, it will be affirmed.-Hawkins v. Hyde, 1082. (E) Abstracts of Record. 259 (Mo.App.) Alleged misconduct of court 581 (3) (Mo.App.) Abstract held to show not considered in absence of exceptions.-Ertl v. Wagner Electric Mfg. Co., 577. (D) Motions for New Trial. 281(1) (Tex.Civ.App.) Motion for new trial necessary to appeal except on fundamental error, and in certain cases stated.-Bland v. Cruce, 720. Court rule 71a applies where appealing party is relieved from preserving proceedings by bills of exceptions.-Id. sufficiently filing, etc., of bill of exceptions.Kammer v. Loschke, 1088. 585(1) (Ark.) Appellee supplying missing evidence cannot complain.-Phillips v. Ettenburn, 28. (H) Transmission, Filing, Printing, and Service of Copies. ed copy of abstracts, is not prejudiced by fail627(2) (Mo.) Respondent, who has receivure, to file copies with clerk.-Bennett v. Lohman, 792. 281(3) (Tex.Civ.App.) No motion for new trial in order for temporary injunction.-Bland (1) Defects, Objections, Amendment, and v. Cruce, 720. Correction. 282 (Tenn.) Motion for new trial neces-644(1) (Ark.) Order taxing stenographer's sary, to appeal from judgment on stipulated fees by consent of parties held not consent to filing of stenographic notes after adjournment. facts.-Rogers v. Colville, 80. -McGraw v. Berry, 618. 282 (Tex.Civ.App.) No motion for new trial in order for temporary injunction, cases tried 644 (2) (Mo.) Where appellees supply dewithout jury, etc.-Bland v. Cruce, 720. 291 (Ky.) Only question for court in ab- fects in abstract complained of, they waive their sence of a motion for new trial is the suffi- motion to dismiss.-Wimbush v. Danford, 460. copy of ciency of the pleadings to sustain verdict.-653(3) (Tex.Civ.App.) Where Whitmer v. Cardwell, 1048. statement of fact filed in Court of Civil Ap293 (Tex.Civ.App.) No motion for peals bore no indorsement of filing in lower trial in order for temporary injunction, judg-court, other copy duly filed ordered substituted. ment on special verdict, etc.-Bland v. Cruce,-Nemir v. Bennett, 998. new (J) Conclusiveness and Effect, Impeaching and Contradicting. 720. 301 (Mo.) Refusal of instruction not complained of in motion for new trial not considered.-Friedman v. United Rys. Co. of St. 662 (2) (Tex.Civ.App.) Recital in appeal Louis, 1074. bond does not establish fact of motion for new trial and order, if record silent thereon.-Bland v. Cruce, 720. VI. PARTIES. 334 (4) (Tex.Com.App.) Heirs, and not foreign administrator, proper parties to be substituted when domestic administration not necessary. Saner-Ragley Lumber Co. V. Spivey, 912. Appointment of administrator for deceased party cannot oust court of jurisdiction.-Id. VII. REQUISITES AND PROCEEDINGS FOR TRANSFER OF CAUSE. (A) Time of Taking Proceedings. 346(1) (Ark.) Time to appeal from decree not extended by pendency of petition to vacate order. Pearce v. People's Sav. Bank & Trust Co., 1063. 664(1) (Ark.) Recitals of decree as to evidence on which it was based held to prevail over clerk's certificate.-Toll v. Toll, 627. 665 (Mo.) Statements in appellant's abstract as to pleadings followed as against inconsistent statements in appellant's brief.-Pullen v. Hart, 437. 665 (Mo.App.) Abstract showing affirmatively bill of exceptions was not signed prevents recovery.-Simons v. Schibsby, 811. (K) Questions Presented for Review. 681 (Ky.) Refusal to permit amendment not made part of record not considered.-Lamkins v. Cambron's Adm'rs, 766. 351(2) (Ark.) Perfecting as well as grant-694(1) (Tex.Civ.App.) In absence of stateing of appeal must be within six months of de- ment of facts in record, findings of trial judge cree.-Pearce v. People's Sav. Bank & Trust conclusive.-Withers v. Fort Worth Gas Co., Co., 1063. 324. |