Sidebilder
PDF
ePub
[ocr errors]

(C) Trial, Judgment, and Review.

(H) Newly Discovered Evidence. $ 136 (Mo.App.) An act which all reasonable $ 102 (Ky.) Plaintiff was not wanting in diliminds would pronounce a culpable breach of gence barring a new trial for newly discovered duty is negligence in law, but, if there is any evidence, in that he failed to ask one of defenddoubt as to the facts and inferences to be ant's witnesses whether be heard defendant drawn therefrom, negligence is for the jury. - state his contract with plaintiff.-Nantz v. SizePontius v. Chicago, R. I. & P. Ry. Co., 161 S. more, 161 S. W. 552. W. 292.

§ 108 (Mo.) Alleged newly discovered evidence $ 136 (Tex. Civ.App.) Ordinarily, the question held of such slight probative force as to justify whether an injury should have been foreseen the denial of the motion for a new trial on the and was the proximate result of the negligence ground that it would not change the result. complained of is for the jury.-Ft. Worth Belt Lyons v. Metropolitan St. Ry. Co., 161 S. W. Ry. Co. v. Cabell, 161 S. W. 1083.

726. $ 141 (Téx.Civ.App.) An instruction, if plaintiff's negligence and defendant's negligence were

III. PROCEEDINGS TO PROCURE concurrent proximate causes of the injuries,

NEW TRIAL. plaintiff's damages should be diminished pro- $ 124 (Mo.) A motion for a new trial for newportionately to the amount of negligence at- ly discovered evidence, which neither stated the tributable to him held not affirmatively errone- evidence, gave the names of any witnesses, nor ous or misleading.–St. Louis, B. & M. Ry. Co. stated the diligence used before the trial, was v. Vernon, 161 S. W. 84,

insufficient.-Lyons v. Metropolitan St. Ry. Co.,

161 S. W. 726. NEGOTIABLE INSTRUMENTS.

$ 167 (Ky.) An action for a new trial was See Bills and Notes.

properly dismissed where it appeared that plain-
tiffs had no defense to the original action.-

Burks v. Douglass, 161 S. W. 225.
NEWLY DISCOVERED EVIDENCE
See Criminal Law, 88 938-958; New Trial, 8 NON OBSTANTE VEREDICTO.
102-124.

See Judgment, $ 199.
NEW MATTER.
See Justices of the Peace, s 174.

NONRESIDENCE.

See Constitutional Law, $$ 205, 312; Fish, 8 NEW PROMISE.

9; Game, $ 4; Judgment, g 17. See Limitation of Actions, & 141.

NOTES.
NEWSPAPERS.

See Bills and Notes.
See Estoppel, $ 119; Exemptions, 8 45.

NOTICE.
NEW TRIAL.

See Appeal and Error, $ 509; Brokers, 8 49; See Appeal and Error, $8 281-302, 533, 706, Chattel Mortgages, $$ 48, 204; Corporations,

724, 732, 742, 743, 854, 867, 933, 977, 979, § 18; Criminal Law, $ 1081; Execution, $ 1133, 1170; Criminal Law, $$ 938-958, 1064, 272; Executors and Administrators, § 362; 1124, 1134.

Highways, 88 30, 38, 41; Injunction, $ 115;

Insane Persons, $ 13; Insurance, SS 751, 756; II. GROUNDS.

Intoxicating Liquors, $ 36; Landlord and (B) Misconduct of Parties, Counsel,

Tenant, $ 120; Malicious Prosecution, $ 58;

Master and Servant, $$ 95, 125, 150, 155; $ 32 (Ky.) Alleged violation by plaintiff's at

Mechanics' Liens, & 132; Municipal Corpotorney of his agreement that, if defendant rations, $$ 110, 487, 791; Pleading, $ 330; would file no answer, he would take no action Process, $ 66; Railroads, $$ 275, 282, 356; in the case without notice to defendant, was Sales, $ 36; Schools and School Districts, ss not ground for new trial, where the answer ten

97-107, 135; Searches and Seizures, $ 2; dered was insufficient because not properly

Sheriffs and Constables, $ 153; Street Railverified.--Gahren, Dodge & Malthy_v. Farm

roads, $_81; Telegraphs and Telephones, $8 ers' Bank of Estill County, 161 S. W. 1127.

68, 73; Tenancy in Common, $ 15; Trespass

to Try Title, $ 41; Trial, $ 252; Vendor and (F) Verdict or Findings Contrary to Law Purchaser, &$ 229-243.

or Evidence. $ 72 (Mo.App.) It is proper to grant a

NOVATION trial on the ground that the verdict is against the weight of the evidence.-Clarkson v. Garvey,

$5 (Mo.App.) Where a bank agreed to an 161 S. W. 664.

arrangement whereby third persons were to pay The award of new trial will not be disturbed defendants' note, held that, as defendants were where there is substantial evidence in favor of not released, there was nó novation.-Citizens' or such as will sustain a verdict for the party Bank of Senath v. Douglass, 161 S. W. 601. to whom the new trial is granted.--Id. In an action against the business agent of a

NUISANCE. local union for conspiracy by threatening plain: țiff's employer with a strike, whereby plaintiff See Cemeteries, $ 3; Municipal Corporations, sş lost his job and also a subcontract, held, that

609, 623, 819, 821; Navigable Waters, &$ 19,

26. the court did not abuse its discretion in granting defendant a new trial.-Id.

II. PUBLIC NUISANCES. $ 78 (Mo.App.) Under Rev. St. 1909, § 2023, (B) Rights and Remedies of Private Perheld, that, if the court has set aside one verdict on the ground of insufficiency of the evidence, a $ 72 (Mo.App.) In an action for damages for second verdict cannot be set aside for the same the maintenance of a public nuisance, the plaincause.-Clarkson v. Garvey, 101 S. W. 664. tiff must show special damages different from

Under Rev. St. 1909, 8 2023, held, that the those incurred by the public generally.-Weller court may grant one new trial to either party v. Missouri Lumber & Mining Co., 161 S. W. for insufficiency of the evidence, regardless of 853. the number of new trials theretofore granted That the injury to plaintiff by a public nuito the same party upon other grounds.-Id. sance is greater in degree than that suffered by

or

Witnesses.

new

sons.

For cases in Dic. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (8) NUMBER

the public generally will not authorize the main V. DEFECTS, OBJECTIONS, AND tenance of an action where it is of the same

AMENDMENT. kind.-Id.

$75 (Mo.) In case a petition shows on its OBJECTIONS.

face a defect of parties, the defect may be See Appeal and Error, $8 193–232, 835; Crim- such defect on its face, the fault may be at

reached by demurrer, but if it does not show inal Law, $ 1054.

tacked by answer.-Norton v. Reed, 161 S. W.

842. OBLIGATION OF CONTRACTS.

Where a defect in parties or a misjoinder of See Constitutional Law, 88 42, 115–129.

causes of action are not taken advantage of

either by demurrer or answer, it is waived. OBSCENITY.

-Id.

$75 (Mo.App.) Where a defect of parties apSee Telegraphs and Telephones, 8 79.

pears on the face of the petition, it must, under

Rev. St. 1909, 8 1800, be taken advantage of OBSTRUCTIONS.

by demurrer; but, if not so appearing, it must, See Highways, $ 161; Navigable Waters, 88 19_under section 1804, be taken advantage of by 26; Waters and Water Courses, 88 118, 126. Co. v. 'Annan-Burg Milling Co., 161 S. W. 320.

answer, or the defect is waived.-Iroquois Mfg. OCCUPATION.

§ 75 (Mo.App.) Under Rev. St. 1909, $8 1800,

1804, where defect of parties was raised neither See Injunction, $ 99.

by demurrer nor answer, court held not to have

erred in refusing to permit amendment so as to OFFICERS.

allege such defect at the close of plaintiff's

evidence.-Sails v. Funk, 161 S. W. 1175. See Counties, $ 64; District and Prosecuting Attorneys; False Personation, $ 2; Justices

PARTITION. of the Peace; Mandamus, 88 57, 79, 98; Municipal Corporations, $8°°180, 292, 745; See Adverse Possession, $8 31, 79, 85; Appeal Schools and School Districts, $ 56; Seduction, and Error, 8 882; Evidence, 8_208; Quieting 8 46; Sheriffs and Constables; States, $8 66, Title, $ 50; Remainders, § 17; Tenancy in 137.

Common, 8 15.
III. RIGHTS, POWERS, DUTIES, AND

I. BY ACT OF PARTIES.
LIABILITIES.

89 (Mo.App.) Where land belonged to a mar 8110 (Tex.Cr.App.) It is the purpose and the ried woman and her brother as tenants in comory of the law that peace officers especially shall mon, a partition deed from the brother to her do everything necessary to prevent, suppress, and her husband was not a conveyance of title and punish crime.-Ex parte Preston, 161 S. W. to her husband, nor even to her, but was a mere 115.

setting off of the boundaries to the land she OPINION EVIDENCE.

owned.-Shull v. Cummings, 161 S. W. 360. See Criminal Law, 88 448 459; Evidence, S8

II. ACTIONS FOR PARTITION. 471-548.

(A) Right of Action and Defenses. OPINIONS.

8 12 (Mo.) Partition will not lie while the See Appeal and Error, $ 533; Courts, 88 106, homestead exists.-Armor v. Lewis, 161 s. w.

251. 107.

§ 13 (Mo.) A disseizure on actual adverse ORDINANCES.

possession destroys the unity of possession See Municipal Corporations, 88 63, 110, 591- among tenants in common and takes away the 623.

right of partition until the title is determined

by appropriate action.-Armor v. Frey, 161 S. PANDERING.

W. 829. See Prostitution.

8 22 (Mo.) An unperformed agreement to ar

bitrate the partition of certain real property PARENT AND CHILD.

held no defense to a suit for partition.-Ferrell

v. Ferrell, 161 S. W. 719. See Death, $ 32; Habeas Corpus, 88 85, 99, 113; Railroads, 8 304; Specific Performance,

(B) Proceedings and Relief. § 121; Wills, 8' 163; Work and Labor, $ 7. $ 34 (Tex. Civ.App.) Rev. Civ. St. 1911, art.

$9 (Tex.Civ.App.) A father may make a val-6097, providing a statutory mode of partition, id gift to his minor son in the absence of com

is not exclusive, and does not deprive the plaint by an existing creditor, without refer- courts of their equitable power of partition. ence to whether the son has been

emancipated. Gutheridge v. Gutheridge, 161 S. W. 892. --Burns & Bell v. Lowe, 161 S. W. 942.

§ 44 (Mo.) The right to partition being a

right common to both tenants, neither are bar. PAROL EVIDENCE.

red from asking that relief by reason of lapse

of time.-Armor v. Frey, 161 S. W. 829. See Evidence, 88 419 448.

8 55 (Tex.Civ.App.) Under the direct provi

sions of Rev. Civ. St. 1911, art. 6097, subd. 3, PARTIES.

a petition for statutory partition is insufficient See Appeal and Error, 88 334, 877, 879; Bail: the premises.-Gutheridge v. Gutheridge, 161

when not giving an estimate of the value of ment, $ 29; Contracts, $ 187; Highways, SS. W. 892. 161; Husband and Wife, 88 221, 270; Indictment and Information, g 124; Judgment, state the estimated value of the property.-Id.

A petition for equitable partition need not § 237; Partnership, $ 197; Process, § 31; Remainders, $ 16; Wills, $ 229.

8 63. (Tex.Civ.App.) In a proceeding for the

partition of real estate, the question of value I. PLAINTIFFS.

should govern more than the item of quantity,

and a judgment rendered without any evidence (B) Joinder.

of value cannot be supported.-Gutheridge v. $14 (Mo.) All persons having an interest in Gutheridge, 161 S. W. 892. the subject-matter of a private civil action may $85 (Mo.) A tenant in common who makes be joined as plaintiffs.-Norton v. Reed, 161 improvements on the property in good faith, not S. W. 842.

for the purpose of embarrassing his cotenants,

or incumbering their estate, or hindering parti $ 218 (Tex.Civ.App.) In an action to recover tion, is, upon partition, entitled to compensa-possession of mules claimed to have been contion for such improvements.-Armor v. Frey, 161 verted by the defendant, whether defendant S. W. 829.

was a partner of plaintiff need not be submit8 85 (Mo.) Where a tenant in common in pos- ted; the evidence not showing a partnership.session places improvements on the land in Coody v. Shawver, 161 S. W. 935. good faith, he is entitled to an allowance upon A requested instruction submitting the issue partition for such sum as may be equal to the of partnership, was defective for not stating increase in the value of the land by reason of to the jury what would constitute a partnerthe improvements.-Armor v. Jester, 161 S. W. ship.-Id. 839; Same v. Kearney, Id. 840; Same v. Coop

An instruction that if the purchase of horses er, Id. 841.

by plaintiff was under an agreement by which § 114

(Mo.App.) Under Rev. St. 1909, 88 defendant was to have a third interest upon 2275, 2279, 2609, relating to costs in partition paying plaintiff a third of the price, unless he suits, held, that the fee of the attorney for paid within a reasonable time, he would not plaintiff need not be fixed by contract to au- be a partner, was not erroneous as authorizing thorize the trial judge to allow him a fee, and a finding that failure to so pay would dissolve that such rule applied where the parties form the partnership.-Id. ed a corporation and received stock therein in 8 220 (Tex.Civ.App.) Under Rev. St. 1911, proportion to their interest in the land.-Con- art. 3743, providing for levy of execution on por Realty Co. v. St. Louis Union Trust Co., the interest of a partner, a partnership cannot 161 S. W. 865.

enjoin such levy, though it would result in susIn partition involving mineral lands worth pending the partnership business.-J. M. Rad$24,000, where the desired result was accom- ford Grocery Co. v. Owens, 161 S. W. 911. plished by the formation of a corporation and the issuance of stock therein to the parties in- / VI. DEATH OF PARTNER, AND SURterested in the land, and where attorneys tes

VIVING PARTNERS. tified that 1,200 was a reasonable fee, the trial 8 246 (Mo.) While a partnership cannot hold court was justified in awarding a fee of $720 the legal title to land, yet equity recognizes to plaintiff's attorney.-Id.

the right of a firm in partnership land, and a

surviving partner has an equitable estate in PARTNERSHIP.

the land and the right to treat it as personalty

in order to wind up the affairs of the firm, See Replevin, $ 8; Set-Off and Counterclaim, though after the partnership demands are sat88 28, 33, 44.

isfied the surplus is treated as real estate. I. THE RELATION.

Armor v. Frey, 161 S. W. 829.

Where no creditors of a firm made any claim (A) Creation and Requisites.

to wild lands owned by the partners, and the $ 20 (Tex.Civ.App.) An agreement that one surviving partner before conveying the properof the parties thereto would furnish the mon ty obtained deeds from the executor and heirs ey to purchase horses would not of itself con

of the deceased partner, the surviving partstitute a partnership between the parties.- ner's conveyance of the property will not be Coody v. Shawver, 161 S. W. 935.

upheld as a conveyance to wind up the partner

ship affairs; it appearing that the conveyance III. MUTUAL RIGHTS, DUTIES, AND of the executor of the deceased partner was

LIABILITIES OF PARTNERS. insufficient to pass title.-Id.

(C) Actions Between Partners. § 108 (Tex.Civ.App.) The rule that one part

PASSENGERS. ner cannot sue another, except for dissolution See Carriers, 88 239_366. of the partnership and for a general accounting held to have no application to a suit between former partners after dissolution by consent.

PASSES.
Reeves v. White, 161 S. W. 43.

See Carriers, $ 307.
IV. RIGHTS AND LIABILITIES AS TO
THIRD PERSONS.

PASTURAGE. (A) Representation of Firm by Partner. See Adverse Possession, $ 22.

$ 141 (Tex.Civ.App.) A deed signed by partners, reciting that it conveyed all of the prop

PAYMENT. erty and assets of the company, includes only See Account, Action on, § 4; Bills and Notes, the partnership property and not the partners' individual estate.-Dye v. Livingston Lumber

$$ 429, 434, 499; Justices of the Peace, $ 158; Co., 161 S. W. 53.

Mortgages, § 463; Subrogation; Vendor and

Purchaser, $$ 175, 267, 315. (D) Actions by or Against Firms or Part.

V. RECOVERY OF PAYMENTS. 8 197 (Mo.App.) Actions by a partnership $ 82 (Ark.) Although an exaction is illegal, should be brought in the names of the individual yet, if voluntarily paid without any compulsion, partners, and if brought in the firm name there it cannot be recovered.-Williford v. Eason, 161 is a defect of parties.-Iroquois Mfg. Co. v. S. W. 498. Annan-Burg Milling Co., 161 S. W. 320.

8 86 (Ky.) A vendor repaying $1,500 to vendee 8213 (Tex.Civ.App.) The mere allegation in to enable him to perfect the title held entitled the petition of joint ownership of the mules to recover $500 of such amount paid by vendee sought to be recovered was not equivalent to to an attorney without vendor's knowledge.an allegation of partnership as to the mules.- Marrowbone Coal & Coke Co. v. Coleman, 161 Coody v. Shawver, 161 S. W. 935.

S. W. 238. $ 218 (Ark.) In replevin for the automobile $ 87 (Ark.) A payment of the fee claimed by claimed by plaintiff as the prize in the contest a deputy prosecuting officer not entitled therefor newspaper subscriptions, held on the evi- to, made while plaintiff was in the custody of dence that whether one interested with defend an arresting officer, and upon the assurance of ant in the sale of the car to the newspaper a justice of the peace that it was legal and company on commission had authority to de- could be enforced against him, held a payment liver it was for the jury.-Jones v. Burks, 161 under duress and hence recoverable.-Williford S. W. 177.

v. Eason, 161 S. W. 498. For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (8) NUMBER

ners.

8 89 (Ark.) In an action to recover à fee paid under. Rev. St. 1909, $ 8317, for producing an to a de facto prosecuting attorney not entitled abortion.-Id. thereto, submission of the case on the sole issue Under Rev. St. 1909, § 8317, a physician's whether plaintiff knew when he made the pay right to practice cannot be suspended because ment that the fee demanded was illegal was of a willingness or offer to produce an abortion. more favorable than defendant was entitled to. -Id. -Williford v. Eason, 161 S. W. 498.

Rev. St. 1909, $ 8317, relative to revocation

of licenses to practice medicine and surgery, PENALTIES.

held not to authorize the State Board of Health See Agriculture, $ 8; Jury, § 107; Robbery, 8 conduct on the part of a physician and sur.

to determine what shall constitute dishonorable 30; Statutes, § 241; Telegraphs and Tele

geon, in view of Const. art. 4, § 1, and article phones, $ 34.

3.-Id.

Assuming that the State Board of Health, PENDENCY OF ACTION.

under Rev. St. 1909, § 8317, may determine See Limitation of Actions, 105.

what shall constituté unprofessional conduct,

it could not suspend a physician for offering to PERJURY.

commit an abortion, where it had not pro

hibited such offers, in view of Const. art. 2, See Libel and Slander, &$ 7, 156; Witnesses, 8 / 8 15, prohibiting retrospective legislation.-10. 286.

8 24 (Mo.App.) In an action against a surgeon I. OFFENSES AND RESPONSIBILITY evidence held insufficient to go to the jury.

for damages for negligence in an operation, THEREFOR.

Boner v. Nicholson, 161 S. W. 309. $ 11 (Mo.) Evidence of false testimony before the grand jury as to whether a hotel proprietor

PLEADING. was running a bawdyhouse held material, within Rev. St. 1909, § 4344.-State v. Burnett, 161 | See Abatement and Revival, $ 54; Appeal and S. W. 680.

Error, 88 172, 173, 193, 194, 197, 254, 518, II. PROSECUTION AND PUNISHMENT.

544, 837, 882, 916, 1042; Attachment, § 211;

Bills and Notes, 88 462, 485, 489; Contracts, $ 32 (Tex.Cr.App.) In a prosecution for per 88 328, 335, 342; Corporations, &S 514, 518; jury in falsely testifying that accused had never Costs, $ 71; Damages, 88 141, 158; Death, been injured while working for another rail 47; Dismissal and Nonsuit, 8 60; Divorce, $3 road, parts of the transcript in such action, 104, 105; Drains, 8 57; Ejectment, $$ 65, 66, which showed that accused's counsel therein 69; Equity, § 241; Estoppel, $8 107, 112; withdrew from the case upon it appearing that Exceptions, Bill of, § 39; Fraud, $ 49; accused had testified falsely, were not admissible. Frauds, Statute of, § 150; Fraudulent Con--Key v. State, 161 S. W. 130.

veyances, 8 269; Guaranty, § 87; Highways, $ 32 (Tex.Cr.App.) In a prosecution for tes § 161; Injunction, $$ 118, 122; Judgment, tifying falsely before the grand jury as to his 948; Justices of the Peace, 88 44, 90_101, 141, brother's age, evidence that an action was pend 174; Landlord and Tenant, & 306; Libel and ing against the brother in the justice court, in Slander, $$ 80–100; Limitation of Actions, $ which he had entered a plea of minority and 123; Malicious Prosecution, $8 52, 55, 58; swore that he was only 19 years of age, was Master and Servant, &$ 256, 340: Money Lent, admissible, but the result of that trial was inad 8 6; Money Received, § 17; Municipal Cor missible.-Poulter v. State, 161 S. W. 475. porations, 816; Navigable Waters, & 26;

Testimony of grand jury men was admissible Negligence, $ 119; Parties, 8_75; Partition, to show that defendant acted deliberately and 55; Partnership, $_213; Process, 66; willfully and did not testify through misappre Quieting Title, 88 34-50; Railroads, $$ 114, hension or agitation.-Id.

439, 441; Rape, $ 66; Reformation of In

struments, $ 36; Sales, $ 446; Specific PerPERSONAL INJURIES.

formance, s 114: Street Railroads, $ 117;

Telegraphs and Telephones, $ 65; Trespass See Abatement and Revival, $ 54; Carriers, $$

to Try Title, $ 32; Trial, 88 139, 194, 250246, 280–347; Damages, $$ 130, 132, 166–

253, 397. 221; Death; Electricity, g 16; Evidence. $$ 471, 548; Master and Servant, $8 86–296; 1. FORM AND ALLEGATIONS IN GENMunicipal Corporations, $8 766-821; Negli

ERAL, gence; Pleading, $$ 34, 369; Railroads, $8

$ 8 (Ark.) Mere abstract conclusions of law 275–400;. Release; Street Railroads, $8 81118; Trial, $$ 84, 191, 194, 217, 229, 242, No. 2 of Conway County, 161 S. W. 1057.

may not be pleaded.--Wood v. Drainage Dist. 243, 250, 252, 260, 296.

The allegation that the delay in completing

work under a contract was negligent held a PETITION.

mere conclusion of law.-Id.

$ 8 (Mo.) An allegation that a certain deed See Pleading.

was ineffective is a conclusion of law and not an

allegation of fact.-Boothe v. Cheek, 161 S. W. PETIT LARCENY.

791. See Larceny, 8 65.

$8 (Mo.App.) Averments in a petition, that

by obstruction of a stream plaintiff's sawmill PHYSICIANS AND SURGEONS.

was rendered wholly worthless, and he was

caused to move it, heid conclusions of the pleadSee Evidence, $8 317, 528, 548; Malicious Pros-er:--Weller v. Missouri Lumber & Mining Co., ecution, $ 71; Witnesses, $ 410.

161 S. W. 853. § 11 (Mo.) The right of a licensed physician

$ 8 (Mo. App.) The statement of a conclusion to practice is a valuable privilege which is pro- that, if defendant was negligent, the plaintiff tected by such safeguards as the Legislature was also guilty of negligence contributing therehas thrown around it.--State ex rel. Spriggs v.

to, held bad.-Johnson v. Springfield Traction Robinson, 161 S. W. 1169.

Co., 161 S. W. 1193. Rev. St. 1909, $ 8317, so far as it authorizes $ 8 (Tex.Civ.App.) An allegation that defendthe revocation of licenses to practice medicine ant became bound to pay plaintiff held a conand surgery, is highly penal and must be so clusion.-Baker v. Hahn, 161 S. W. 443. construed.-Id.

§ 34 (Mo.App.) The word “disease" as used in Evidence held insufficient to sustain suspen- an allegation of the answer, in an action for sion of physician by State Board of Health | the price of a jack, that the jack was not a good

to

breeder and sure foal-getter because of the dis- $ 214 (Mo.App.) A demurrer admits all facts ease, meant any derangement of the functions well pleaded and the inferences of fact which or alteration of the structure of the animal or- may be reasonably drawn therefrom, but not gans.-Perry v. Van Matre, 161 S. W. 643. conclusions of law nor the conclusions of the

$ 34 (Tex.) In action for death of an employé, pleader.-Weller v. Missouri Lumber & Mining where petition alleged that the floor was greasy Co., 161 S. W. 853. and slippery, but failed to show that any other 8 214 (Tex.Civ.App.) On demurrer the averperson was responsible for such condition, held, ments of the petition must be taken as true.that it would be presumed that the employé Dye v. Livingston Lumber Co., 161 S. W. 53. caused such condition.-Snipes v. Bomar Cotton 8 228 (Tex.Civ.App.) An exception

five Oil Co., 161 S. W. 1.

counts in a petition of reconvention was prop835 (Mo.App.) The words "a corporation,” | erly overruled where one of the counts stated appearing in the caption of a complaint after a proper counterclaim.-Gillispie v. Ambrose, the name of the plaintiff, may be disregarded 161 S. W. 937. as surplusage.-Iroquois Mfg.Co. v. Annan- Exception to five counts in plea of reconBurg Milling Co., 161 S. W. 320.

vention for misjoinder by which it was propos

ed to strike them out and permit other counts to II. DECLARATION, COMPLAINT, PE. remain, held properly overruled, as the entire TITION, OR STATEMENT.

pleading is to be stricken, leaving it to the

pleader to select such portions of the plea as he 848 (Ark.) Every essential element of the may see fit.-Id. cause of action must be stated in the complaint. -Wood v. Drainage Dist. No. 2 of Conway VI. AMENDED AND SUPPLEMENTAL County, 161 S. W. 1057.

PLEADINGS AND REPLEADER. 8 67 (Ky.) Plaintiff is only required to state § 237 (Mo.) In an action against a railroad in his petition facts making out a prima facie company by the former owner of the land of a case in his favor, and is not bound to anticipate street, which the company had appropriated the answers or objections which defendant may with the city's consent, held not error to permit intend to rely upon.-Flynn v. Barnes, 161 S. defendant to amend its answer to conform to the W. 523.

evidence, after the instructions were given.

Quinn v. St. Louis & S. F. R. Co., 161 S. W. III. PLEA OR ANSWER, CROSS-COM- 820. PLAINT, AND AFFIDAVIT

$ 243 (Ark.) Where no cause of action was OF DEFENSE.

stated in a complaint as distinguished from a (C) Traverses or Denials and Admissions. be amended. -Arkansas Life Ins. Co. v. Amer

cause of action defectively stated, it could not $ 126 (Ky.) An answer, denying that plain- | ican Nat. Life Ins. Co., 161 S. W. 136. tiff "on October 22, 1912, loaned defendants $ 257 (Ky.) In action on notes, every fact $5,000, which amount both jointly and severally provable under an amended answer stricken by promise to pay," held to admit a loan on some the court, alleging that, under contract by other day, for a different amount, and a promise which defendant, as plaintiff's agent, was to reeither joint or several.-Gahrep, Dodge & Malt-ceive $2.50 on each wagon shipped by plaintiff, by v. Farmers' Bank of Estill County, 161 S. 650 wagons were so shipped, held provable unW. 1127.

der the original answer, alleging that a large $ 127 (Ky.) An answer denying that on Octo-number, the exact number of which defendant ber 22d plaintiff loaned defendant $5,000, being could not tell, were shipped.–Taulbee v. Lewis, an admission of a loan on some other day, or for & Chambers, 161 S. W. 1100. a less sum, the consideration for the loan was admitted, so that the further answer that the VII. SIGNATURE AND VERIFICATION. debt was without consideration presented no $ 301 (Tex.Civ.App.) That a pleading defense.-Gabren, Dodge & Maltby v. Farmers' verified by a party before one of his attorneys in Bank of Estill County, 161 S. W. 1127.

the case was not ground for sustaining a spe$ 129 (Ky.). Where defendant's allegations of cial exception thereto.-Coody v. Shawver, 161 ownership of land and that a part of his S. W. 935. boundary was within a boundary claimed by plaintiff were not denied, no issue was raised as IX. BILL OF PARTICULARS AND to whether the lap was within defendant's

COPY OF ACCOUNT. deed.-Bassett v. Lush, 161 S. W. 227.

$ 330 (Tex. Civ.App.) That plaintiff was in

possession of the account books and would not V. DEMURRER OR EXCEPTION.

permit defendant, his former partner, to in$ 192 (Ark.) Where mere abstract conclusions spect them was a sufficient excuse for not par. of law are pleaded, the defect may be reached by ticularly itemizing the amount alleged by coundemurrer. - Wood v. Drainage Dist. No. 2 of terclaim to be due to defendant.-Reeves v. Conway County, 161 S. W. 1057.

White, 161 S. W. 43. $ 193 (Ark.) Failure to state every essential

XI. MOTIONS. element of the cause of action may be reached by demurrer-Wood v. Drainage Dist. No. 2 of $ 345 (Ky.) Judgment was properly directed Conway County, 161 S. W. 1057.

for defendant on the pleadings, where the peti$ 193 (Mo.) In case a petition shows on its tion did not aver that the death was accidental, face a misjoinder of action, the defect may be and the answer did not cure the error; the evireached by demurrer, but if it does not show dence not disclosing the manner of death other such defect on its face, the fault may be at than that it was by drowning.-Farnsley's tacked by answer.—Norton v. Reed, 161 S. W. Adm'r v. Philadelphia Life Ins. Co., 161 S. W. 842.

1111. $ 193 (Mo.App.) It is no ground for demurrer $ 355 (Ky.) In an action on notes, held, that in actions at law that the prayer for relief is the court properly struck an unverified answer not warranted by the averments of the petition. setting up counterclaim for defendant's failure -Weller v. Missouri Lumber & Mining Co., 161 to comply with an order requiring him to verify 8. W. 853.

was

it.-Taulbee v. Lewis & Chambers, 161 S. W. $ 214 (Mo.) A demurrer to the petition ad-1100. mits the truth of the allegations therein.-Mee. 8 356 (Mo.) The question whether an amend. han v. Union Electric Light & Power Co., 161 ment of the answer, intended to make it agree S. W. 825.

with the proof, was in fact warranted by the

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (8) NUMBER

161 S.W.-81

« ForrigeFortsett »