1. Where grantees of the fee of lands, timber rights in which had already been granted, brought actions of trespass against the timber grantee, con- tending that, as renewals had not been paid to them, the right of removal had expired, the pendency of such actions of trespass was no ground for sustaining a demurrer by the original grantors and the gran- tees of the fee to a complaint in another action brought by the timber grantees to deter- mine the rights to the renewal Richardson v. Cooler moneys. 102 et al.
1. Where the assignee of timber deeds, which reserved to the grantors payments to be made to procure extension, joined in one suit the grantors and the subsequent grantees of the fee, who claimed an interest in the the renewal money, to have Court decide conflicting claims, only one cause of action was stated, Richardson v. Cooler, et al .102
2. Where husband and wife con. on their veyed the timber separate lands, with provision for renewal of removal right on payment, etc., the joinder of both husband and wife in an action by the timber grantee against them and their children,
to whom they had conveyed the fee of the lands, was proper; it being impossible to determine whether tracts conveyed were not composed partly of lands belonging to both husband and wife, and the children claim- the renewal ing interest in ..102 money. Id.
3. Allegations of negligence, wil- fulness, wantonness, and reck- lessness in an action for per- death of sonal injury and plaintiff's intestate are appro- priate to an action ex delicto, and allegations as to a contract between the intestate and one of defendants merely prelim- inary to the action for tort do not make it an action for breach of contract and subject to an objection as not show- ing contract relations between intestate and one of defend- ants. Cabe, Admx., v. Ligon et .376 al
ADVERSE POSSESSION
1. Under Code Civ. Proc. 1912, sec 119, declaring that the objec- tion that the action was not time commenced within the limited can only be taken by answer, a demurrer to the com- plaint for partition, on the ground that the complaint showed that defendant had been in exclusive posession of the land long enough to presume a deed from his cotenants, was Fulmore properly overruled.
et al. v. Fulmore et al. ....213
1. Defendant having preferred a request with respect to the bona fide purchase without notice cannot assert that it was an equitable defense, not proper to be submitted to jury. Cathcart v. Matthews 1 2. Where demurrer to complaint is properly sustained ground that the action could not be maintained against de- fendant, reserving the right to further demur, if error, is harmless. Mullinax v. Ham- bright 2 3. In an action on notes, where on prior appeal the only ques- tion decided was whether cer- tain alterations were material, etc., the issue whether plain- tiff was a holder in due course, as defined in Negotiable In- struments Act, section 52, was not before the Court, and the Supreme Court did not de-
termine the question despite certain language in its opinion to render its decision on prior appeal res judicata of the point that plaintiff was a holder in due course. Commercial Security Co. v. Donald Drug Co. 48 4. An opinion unequivocally de- claring error in orders below renders unnecessary a distinct judgment of reversal, or modi- fication, especially in view of a mandate to proceed accord- ing to the views announced. Tedder et al. v. Tedder et 91
al. Where the necessary effect of an appellate decision was to vacate a lower Court's order appointing a receiver and enlarge the scope of the ref_ ence order to permit de- fendant's evidence of better- ments to lands sought to be partitioned, it was error to deny defendant's motion to re- commit to referee to take such evidence. Id. 91 6. It is incumbent on all parties, including the trial Court, to require further proceedings ac- cording to mandate, and was no more obligatory on defend- ants than on plaintiffs to call for prompt hearing, so that plaintiffs, primarily the actors, could not complain of defend- ants' delay. Id...........................91 In a partition suit plaintiffs' contention to obviate refusal of Court to recommit to refree on remand that some testimony as to betterments was taken without objection, and other testimony defendants desired thereon would have been taken
under the reference order, is not well taken, where there was doubt as to the order be- ing broad enough, and a motion to specifically allow such evi- dence was refused, and the order modified by giving "leave to report testimony in relation to any special matter arising under the decision of the Supreme Court herein," which decision did not relate to betterments. Id...............91 8. In a partition suit, it was error to conclude defendants would suffer no prejudice from re- fusal to recommit for further testimony as to betterments, evidence of which was before the Court for determining rents and profits, where there was no testimony of actual value of improvements. Id......... 91 9. In an action against a railroad for injuries at a crossing, where the Court charged at the request of defendant that as between defendant and Federal Director General any recovery by plaintiff would be paid by the United States Government, and not by de- fendant, any error in the case because the road at the time of the accident was under Federal control was harmless to it. Wyman v. A. C. L. R. R. 138 10. The lack of contributory neg- ligence should have been brought to the trial Court's attention by motion to direct verdict on such issue. Sandel v. State
to that fact, and, if they do not, the error is not reversible, so that an exception to in- structions because they sub- mitted an issue established by undisputed evidence cannot be sustained, where the record does not show that the atten- tion of the Judge was called to the objection. Hirschman & Sons v. Koester 202 12. The Supreme Court, having dismissed an appeal, has full jurisdiction to reinstate it, in its discretion. Dillishar et ux. v. Bell 258 13. In agent's action for commis- sions on sales of goods, where defendant claimed that agent had withheld money collected for defendant, but where de- fendant had been reimbursed by agent's surety, for the amount so withheld, refusal to permit defendant to amend answer by setting up counter- claim for amount withheld was harmless, where agent had as- signed the judgment recovered against defendant to surety to protect from loss by reason of the payments to defendant. McRae v. Bowser & Co. 262 14. Exclusion of evidence to con- stitute ground for reversal must be shown to have been prejudicial, by appellant.
Id. 262 15. In agent's action for commis- sions for selling goods, where- in defendant was given notice to produce its books and ac- counts, defendant, after re- fusal to produce its books, could not complain as to the indefinite nature of plaintiff's evidence as to the amount of Id.. the sales. .262
16. In an action for injuries to automobile struck by street car, instruction that jury
should consider the fact that a street car is confined to a track, and an automobile is not, held not prejudical, being a simple statement as to a well known fact. North State Lumber Co. v. Chas'n etc. Ry. Co. 267 17. In action for damage to auto- mobile struck by street car at street intersection at which traffic officer was stationed, refusal to instruct that it was the motorman's duty to look out for danger in spite of the order of the traffic officer, if error, was harmless, where automobile driver admitted that he crossed the intersec- tion without looking to the right or left, since it was as much driver's duty to look out for danger, as it was the duty of motorman. Id. 267 18. On motion to change the place of trial on the two grounds that county in which the action was brought was not the prop- er county, and that the con- venience of the witnesses and the ends of justice would be promoted by the change, the Court's refusal of motion will be sustained on appeal, if it can be sustained on either ground. Panama Real Estate Co. v. Dime Savings Bank 290 19. To secure reversal of the judg-
ment for denial of leave to amend the answer, appellant must satisfy the Court that the trial Judge erroneously ex- ercised his discretion. Trotti v. Neams
20. Where objections were made to questions asked witnesses, but Court made no ruling thereon, the Supreme Court cannot, on appeal from an directing a verdict against the party offering the evidence, hold that the answers to those questions were incom- petent. Murph v. Lincoln Reserve Life Ins. Co. ........318 21. Error of Court, if any, in im- pliedly threatening to keep jury together all night and perhaps longer on their in- ability to agree on a vedict, will not be permitted to dis- turb verdict, where, upon con- sideration of the evidence, the Supreme Court is satisfied that any fair jury would have found the same verdict, if there had been no error. Harper v. Abercrombie 360 22. In an action on an accommo- dation note, where there was a dispute as to whether cor- porate stock was pledged to secure such note or other notes of the accommodated party, and the court explicitly charged that if defendant's contention was true, plaintiff was bound to apply the collateral to the satisfaction of the defendant's note, a verdict for plaintiff concluded such issue against defendant. Enterprise Bank v. Lyles
which negligently constructed a bank, so as to overflow plaintiff's adjoining property exclusive of question asked by plaintiff of defendant railroad's superintendent of construc-
tion work as to whether or not the engineer advised the superintendent of defendant company that the bank should be done away with, though claimed to have been com- petent to show wilfulness, held harmless to plaintiff, where the jury rendered verdict for defendant showing he was not entitled to actual damages. Foreman v. Augusta- Aiken Ry. & C. Corp'n......400
25. Where the Supreme Court on declared appeal had a deed void on condition defendants pay a judgment and costs within 30 days, but otherwise confirmed the sale, defendant could have given notice and taxed all costs, or he could have made his own calculation of costs and tendered the cor- rect amount as provided for in the judgment of the Court, but, if he failed to comply with the condition, judgment was properly rendered against him. Miller v. Goodwin....410 26. Where appellants failed to satisfy the Supreme Court that a county Judge erro- neously exercised his discre- tion in refusing to grant an injunction pendente lite, the appeal will be dismissed. Frederick et al. v. Brown et .416
27. The finding of fact by the Circuit Judge on an equitable issue will be sustained, unless
28. In an action for breach of a contract for the sale of land where the defendant establish- ed his right to reform the contract to provide only for sale of the timber, but the Court erroneously decreed a rescission of the contract, and it appeared that the timber rights had been sold under a consent order and the pro- ceeds deposited to await the outcome of the suit, so that defendant was entitled to the fund which represented subject matter of the contro- contract versy, whether the was reformed and specifically enforced or was rescinded, the decree awarding the fund to him will be affirmed, regardless of error as to rescission. & G. Co.
29. Questions, argued but
passed on by the Circuit Judge, or covered by excep- tions, will not be considered on appeal. Bellinger v. U. S. F. & G. Co. 30. That the trial Judge assigned the wrong reason for an order is not reversible error if the order was right. Calhoun v. So. Ry. Co. .487 31. In an action against a railroad
company and its employees for the death of a passenger, where the judgment for puni- tive damages as against the railroad company was in effect judgment against the govern-
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