$837 (Tex.Civ.App.) In determining the pro- | for defendant, and a consultation with atpriety of the overruling of defendant's general torneys resulted in the suggestion that a perdemurrer, the evidence cannot be considered. emptory instruction should be given, and deInternational & G. N. Ry. Co. v. Owens, 166 fendant's counsel consulted with defendant and S. W. 412. announced that they had no objection, defendant consented to a peremptory instruction, and could not complain thereof.-Pope v. Commonwealth Bonding & Casualty Co., 166 S. W.

§ 854 (Mo.) A decree generally finding the issues in favor of defendant will be affirmed, where any one of the many defenses raised warranted it.-Phoenix Brick & Construction Co. v. Gentry County, 166 S. W. 1034.

§ 854 (Mo.App.) A party relying on some valid ground for sustaining a motion for a new trial other than that specified by the trial court must point out such ground.-Gabbert v. Evans, 166 S. W. 635.

1195.

(E) Presumptions.

§ 901 (Tex.Civ.App.) A party appealing from the judgment has the burden of showing that it is erroneous.-Burlington State Bank v. Marlin Nat. Bank, 166 S. W. 499.

§ 907 (Ky.) Where defendant, appealing from a judgment for injuries to a servant, prepared the record, the servant might insist that a diagram omitted therefrom would strengthen his theory.-Job Iron & Steel Co. v. Layne, 166 S. W. 978.

$854 (Mo.App.) Where the trial court granted a new trial solely on the ground of newly discovered evidence, and refused it on the ground that the verdict was against the weight of the evidence, the appellate court cannot, to sustain the order granting the new trial, weigh the evidence to determine whether the lower court's § 907 (Tex.Civ.App.) Where a judgment aporder could be upheld on the latter ground.-pealed from is supported by the findings of the Adam Roth Grocery Co. v. Hotel Monticello court and jury, it will be assumed on appeal, in Co., 166 S. W. 1125. the absence of the statement of facts, that the findings are supported by evidence.-August v.

(B) Interlocutory, Collateral, and Sup- Gamer Co., 166 S. W. 1197. plementary Proceedings and

Questions.

$909 (Tex.Civ.App.) Where the court found plaintiff's full claim to be a laborer's lien upon § 876 (Mo.) A plaintiff who treats an appli- property in the possession of defendant, notcation by defendant to vacate a default judg-withstanding plaintiff had extended the time ment as a motion, and who challenges the suffi- of payment of a part, it cannot be presumed ciency thereof by objection to evidence, is not that the legal process by which defendant acthereby precluded from questioning the suffi- quired possession, or the lien it asserted, was ciency of the motion on appeal from a judg-valid.-Carthage Ice & Light Co. v. Roberts, ment setting aside the judgment.-Jeude v. Sims, 166 S. W. 12. 166 S. W. 1048.

(C) Parties Entitled to Allege Error. § 877 (Mo.App.) On defendant's appeal from an order granting plaintiff a new trial on the ground of newly discovered evidence, the appellate court will not review the action of the trial court in denying plaintiff's motion on the ground of surprise; the decision being against plaintiff, who did not appeal, and depending on a question of fact.-Adam Roth Grocery Co. v. Hotel Monticello Co., 166 S. W. 1125.

§ 882 (Ky.) To error in the answers brought out by him on cross-examination, plaintiff could not object.-Reid v. Sun Pub. Co., 166 S. W. 245.

8917 (Tex.Civ.App.) Where the record shows no ruling on defendant's general demurrer, or that any was requested, it will be presumed that the demurrer was waived.-International & G. N. Ry. Co. v. Owens, 166 S. W. 412.

§ 927 (Tex.Civ.App.) On appeal from a judg. ment sustaining exceptions to a motion to retion, it could not be presumed that all of the instate a cause dismissed for want of prosecudefendants were given notice of the motion, where the judgment recited that certain defendants were not served with notice.-McAllen v. Crafts, 166 S. W. 3.

§ 933 (Mo.App.) On appeal from an order granting a new trial, it could not be assumed

that it was granted on the ground that the verdict was against the weight of the evidence to apply the rule that the court's discretion as to the weight of the evidence will rarely be interfered with.-Gabbert v. Evans, 166 S. W. 635.

§ 882 (Mo.) In condemnation proceedings to acquire land for railroad terminals, defendant cannot complain of an instruction that in assessing damages the increased danger from fires, increased noise, and smoke, etc., could not be considered, where defendant's own instruc- § 934 (Mo.App.) Where, in an action tried to tion charged that damages common to other the court, no declarations of law were asked landowners of the neighborhood whose property or given, a judgment for plaintiff must be rewas not taken could not be considered.-Chica-garded on appeal as a final adjudication in his go Great Western R. Co. v. Kemper, 166 S. favor of every controverted issue of fact.-LowW. 291. enstein v. Old Colony Life Ins. Co., 166 S. W. 889.

§ 882 (Mo.) Defendant, having procured an instruction that the value of property sought to be condemned should be determined as of the date when the commissioners made and returned their assessment of damages, could not object to the refusal of an instruction that the value should be determined as of the date of the filing of the suit.-Kansas City Southern Ry. Co. v. Second Street Improvement Co., 166 S. W. 296.

§ 934 (Mo.App.) Where the court acts or proposes to act on a motion at a subsequent term, it will be presumed by an appellate court, in the absence of anything to the contrary, that the motion has been continued from term to term.-State ex rel. Lynch v. Taylor, 166 S. W. 1071.

§ 934 (Tex.Civ.App.) Where the trial court found that a life insurance company was ready $882 (Mo.App.) A party, procuring by his to issue stock, forming a part of an increase objection the exclusion of competent evidence of the capital stock of the company to a subproving a fact, cannot on appeal complain of scriber upon his paying the note given for the the insufficiency of the evidence, received with- purchase price thereof, it must be presumed, out objection, to establish the fact.-Minor v.in aid of the judgment against the subscriber, Woodward, 166 S. W. 855.

$882 (Tex.Civ.App.) A party who requested the court to submit a special charge on a point thereby waived error, if any, in admitting, over his objection testimony establishing the same fact.-Watson v. Rice, 166 S. W. 106. § 883 (Tex. Civ.App.) Where the court intimat

that the company had complied, or was ready to comply, with the statutory requirements for increasing its capital stock.-Cope v. Pitzer, 166 S. W. 447.

$937 (Tex. Civ.App.) Where a transcript was filed during vacation, it cannot be presumed that the clerk filed it by order of the court.

not allow punitive damages without also allowing actual damages.-Dees v. Thompson, 166 S. W. 56.

§ 1033 (Tex.Civ.App.) In an action by beneficiaries under a will to recover property devised, a charge that certain evidence was not to be considered as proof of the quantum of estate of plaintiff's mother, one of the devisors, held not prejudicial to defendant.-Larrabee v. Porter, 166 S. W. 395.

§ 1033 (Tex.Civ.App.) A contention that an instruction improperly cast too great a burden on defendant cannot be sustained where it was in appellant's favor and did not authorize a verdict for plaintiff under any circumstances.Johnson v. Čonger, 166 S. W. 405.

§ 1033 (Tex.Civ.App.) Where the facts pleaded and proved, on which plaintiff relied for a recovery, were grouped in a charge submitting the issues, defendant could not complain because it was not necessary for plaintiff to prove all the facts pleaded to obtain a verdict.-Dallas Consol. Electric St. Ry. Co. v. Stone, 166 S. W. 708.

§ 1036 (Ark.) A judgment will only be reversed for errors prejudicial to the appellant, and the fact that, in an action for the possession of mules, one having no interest therein was joined with the owner as plaintiff, was not prejudicial to the defendant.-Williams v. Williams, 166 S. W. 552.

of multiplicity of suits, was correct under the undisputed evidence, the appellant cannot complain of the transfer.-Yutterman v. Grier, 166 S. W. 749.

§1046 (Tex.Civ.App.) Error cannot be predicated on the refusal to permit counsel for interveners to open and close where there was no injury therefrom.-Cooper v. Marek, 166 S. W. 58.

§ 1048 (Ky.) Exclusion of question asked witness as to cost and selling price of nearby property held not prejudicial error, where the time of the purchase or sale was not fixed by the question, and it did not appear what the witness would have answered.-David v. Louisville & I. R. Co., 166 S. W. 230.

§ 1048 (Ky.) Defendant may not complain of plaintiff having been permitted to testify from a written memorandum, having itself been permitted to examine it, and offered it in evidence. Illinois Cent. R. Co. v. Doss, 166 S. W. 785. § 1048 (Ky.) Where witness testified that person seemed to be suffering, incidental remark that he said he was suffering, not called for by the question, held not reversible error.-Kentucky Midland Coal Co. v. Vincent, 166 S. W.

800.

§ 1048 (Tex.Civ.App.) While an answer to an interrogatory not calling for expert opinion should be stricken on motion if the answers to § 1039 (Ark.) The refusal to compel an elec-based on opinion and not knowledge, where the the cross-interrogatories show it to have been tion between causes of action for false impris- facts on which such an opinion was based were onment and for damages for unlawfully shackling a convict laborer is not prejudicial in view brought out on oral cross-examination at the of Acts 1905, p. 798, providing that the court trial, error, if any, in overruling a motion to may consolidate causes of like nature when it strike the answer was harmless.-Kansas City appears reasonable to do so.-Weigel v. Mc- Southern Ry. Co. v. Carter, 166 S. W. 115. Closkey, 166 S. W. 944. § 1050 (Ark.) In an action against a railroad $1040 (Tex.Civ.App.) Where, in an action for personal injuries to plaintiff, a logger, opfor injuries to a brakeman by defendant's vio-erating a hand car on defendant's track, testilation of the safety appliance acts, the court mony of one witness as to the custom of logsubmitted all the issues that could arise un-gers to use hand cars to haul feed to the log der the federal or state statutes, which are practically the same, defendant was not prejudiced by the sustaining of exceptions to the part of its answer pleading the federal law. San Antonio & A. P. Ry. Co. v. Wagner, 166 S. W. 24.

§ 1040 (Tex.Civ.App.) Error in overruling exceptions to a defense of failure of consideration for a note sued on by a bona fide holder, and in receiving evidence in support of such plea, was cured by peremptory withdrawal of such defense from the jury.-First Nat. Bank of Iowa City, Iowa, v. Dorsey, 166 S. W. 54.

§ 1040 (Tex. Civ.App.) The error in overruling exceptions to the petition in an action against a railroad company for injuries to animals frightened by a train, for failure to specify the date of the injury or identify the train, held not prejudicial, where the company procured the testimony of its engineers running trains on the date of the accident proved by plaintiff.-Chicago, R. I. & G. Ry. Co. v. Clark, 166 S. W. 129. § 1042 (Ky.) In an action for libel, it was not error to permit to remain in the answer pleas that the report had been current in the neighborhood, that it published it in good faith and without malice, and that plaintiff had never requested a retraction or explanation thereof, not covered by the instructions.-Reid v. Sun Pub. Co., 166 S. W. 245.

$1043 (Tex.Civ.App.) If the court abused its discretion in refusing a nonstatutory application for a continuance, it was not ground for reversal, where the application was based on the absence of a witness, who testified fully on a former trial, which testimony was admitted by agreement, and was to the same effect that the application stated he would testify-Kansas City Southern Ry. Co. v. Carter, 166 S. W. 115. § 1046 (Ark.) Where the decision in a suit to apportion accretion among several landowners,

camps, which did not tend to establish such a custom on defendant's road, held not prejudicial to defendant.-Jonesboro, L. C. & E. R. Co. v. Gainer, 166 S. W. 571.

Admission of evidence for plaintiff that, if there was any light at or any one on the flat cars in front of the engine, the witness did not see him or it held not prejudicial.—Id.

$1050 (Tex.) Where proof of the accident and injuries received by plaintiff's wife while a passenger on defendant's train rested upon the wife's testimony alone, the admission of hearsay statement by the husband which corroborated & T. C. Ry. Co. v. Fox, 166 S. W. 693. the wife's testimony was prejudicial.-Houston

§ 1050 (Tex.Civ.App.) The erroneous admission of evidence was not ground for reversal, where any finding of fact or conclusion of law based thereon was immaterial to the legal rights of the parties.-Castleberry v. Bussey, 166 S. W. 14.

§ 1050 (Tex.Civ.App.) Error in admitting evidence is not reversible, where it is apparent that it could not have had any effect on any issue in the case.-McKenzie v. Imperial Irr. Co., 166 S. W. 495.

§ 1050 (Tex.Civ.App.) Where, in an action for pasturing cattle, defendant reconvened for the conversion of cattle, and it was shown without objection that two of the cattle had died and that the others had escaped through the fault of third persons, the error, if any, in admitting evidence of custom that parties taking cattle for pasturage were not responsible for the loss thereof, was not prejudicial.-Barnard & Moran v. Williams, 166 S. W. 910.

objectionable because irrelevant, etc., its admis§ 1050 (Tex.Civ.App.) Though testimony was sion was not ground for reversal, where testimony to the same effect was admitted without objection.-Sockwell v. Sockwell, 166 S. W.

$1051 (Tex.Civ.App.) Where facts are proved without objection, the admission of improper testimony to prove the same facts cannot form the basis for an assignment of error.-Watson v. Rice, 166 S. W. 106.

§ 1051 (Tex.Civ.App.) In an action to recover a commission, where defendant admitted a telephone conversation with the broker, the admission of evidence of the broker's version of the conversation and his ex parte statement that he was talking to defendant, if erroneous, is harmless.-Spires v. McElroy, 166 S. W. 457. § 1051 (Tex.Civ.App.) Error in admitting evidence of a telephone conversation between a witness and decedent was harmless, where another witness testified for appellant that the former witness told him the same thing after decedent's death.-Amarillo Nat. Life Ins. Co. v. Brown, 166 S. W. 658.

§ 1054 (Mo.App.) Where evidence was admissi, ble on one cause of action alleged in the petition, but the court trying the case ignored the evidence in determining the other cause of action alleged, the admission of the evidence was not prejudicial.-Lindsay v. Smith, 166 S. W. 820.

§ 1056 (Ark.) Where the case presented a close question of fact as to whether the grading of a street caused any damage to an abutting owner by impeding the flow of water, the exclusion of competent evidence that ditches and tiling to carry off surface water had been put in was reversible error.-City of Jonesboro v. Pribble, 166 S. W. 576.

§ 1056 (Mo.App.) Where plaintiff, seeking to recover on the theory that defendants were partners, testified that the transactions relied on were had with only two of the several defendants and the jury found that the two were not liable, error in excluding evidence that the other defendants were partners was not prejudicial.-Smith v. Cain, 166 S. W. 653.

§ 1056 (Tex. Civ.App.) Where practically all of defendants' witnesses testified to receiving compensation for time and expense, exclusion of testimony that an expert witness not so interrogated was paid for testifying was not prejudicial.-Good v. Texas & P. Ry. Co., 166 S. W. 670.

$1057 (Ark.) Rejection of evidence, in an action for death of a white man, that the negro woman who was accompanying him was a strumpet was harmless; other evidence admitted tending as fully to show his dissolute character and depraved disposition.-Chicago, R. I. & P.. Ry. Co. v. Gunn, 166 S. W. 568.

§ 1060 (Ark.) Improper argument of counsel, the only injurious effect of which would be to enhance damages, will be deemed harmless; the verdict not being complained of as excessive. Chicago, R. I. & P. Ry. Co. v. Gunn, 166 S. W. 568.

$ 1060 (Mo.App.) Where a surety company was local, and had a large number of stockholders and employés in and about the place where a personal injury action was tried, it was not reversible error to permit plaintiff's counsel to ask the jurors on their examination whether they were interested in the company.— Burrows v. Likes, 166 S. W. 643.

$ 1062 (Ky.) Defendant cannot complain of the submission of an issue of defense unsupported by the testimony.-Keeton v. Smith, 166 S. W. 610.

§ 1064 (Ark.) An instruction on the measure of damages, erroneous because not telling the jury that their finding must be based on evidence, is not prejudicial error, as the oath of the juror is sufficient to compel him to conform his finding to the evidence.-Weigel v. McCloskey, 166 S. W. 944.

§ 1064 (Ky.) In a civil action for the killing of plaintiff's husband, an instruction on selfdefense held not prejudicial as leading the jury to believe the defendant would have been justified in killing deceased to protect himself from a slight or inconsequential injury.-Shields v. Neal, 166 S. W. 211.

§ 1064 (Mo.App.) An instruction long and verbose, tending to obscure the real issues, held not prejudicial error, where there was no inaccuracy or vagueness in the application of the legal rules to the ultimate evidentiary facts clearly and succinctly stated.-Roberts V. Trunk, 166 S. W. 841.

§ 1064 (Tex.Civ.App.) An instruction allowing plaintiff to recover for damages "suffered" by himself and wife by reason of injuries to the wife is not prejudicial because of the use of the. word "suffered" instead of "sustained."-St. Louis Southwestern Ry. Co. of Texas v. McNatt, 166 S. W. 89.

$1064 (Tex.Civ.App.) Where a charge submitting the question of a railroad company's negligence in suddenly moving its train, which had stopped to allow passengers to alight, could not have misled the jury, its inexact use of language was harmless.-St. Louis Southwestern Ry. Co. of Texas v. Farris, 166 S. W. 463.

§ 1066 (Ky.) In an action for injuries to a car cleaner, caused by the coach on which he was riding colliding with a car while being placed on a siding, the error in an instruction on contributory negligence held not prejudicial, in view of the issues.-Louisville, H. & St. L. Ry. Co. v. Armes, 166 S. W. 190.

§ 1066 (Mo.App.) Error in including, in an instruction on the measure of damages in an action for negligence in the operation of a private automobile, the penal features of Rev. St. 1909, § 5435, providing for penalty and damages in cases where one is injured by a public conveyance, and by section 8523, made applicable, as to damages, to injuries by an automobile was prejudicial.-Roberts v. Trunk, 166 S. W. 841.

§ 1066 (Tex.Civ.App.) In an action for injuries to a railroad construction employé, an instruction which required warning to be given by ringing the bell or blowing the whistle before a train was started, was not prejudicial, where there was no evidence that a warning was given in any other manner.-Angelina & N. R. R. Co. v. Due, 166 S. W. 918.

§ 1067 (Tex.Civ.App.) The verdict for a shipper held to raise a presumption that the jury found that the verbal contract, as claimed by the shipper, and not the written one governed, and hence the failure of the charge to submit issues presented by a written contract limiting the carrier's liability was harmless.-St. Louis, S. F. & T. Ry. Co. v. Gilliam & Jackson, 166 S. W. 706.

§ 1060 (Tex.Civ.App.) Remarks by plaintiff's counsel in his argument to the jury, which he withdrew upon objection, were not prejudicial, where the verdict did not indicate that they in any way affected the jury.-St. Louis Southwestern Ry. Co. of Texas v. McNatt, 166 S.-Martin v. Monger, 166 S. W. 566. W. 89.

§ 1062 (Ky.) Error in submitting the question of damages for loss to plaintiff's business in an action for breach of contract, was not prejudicial to defendant where the jury did not allow anything for loss to his business.-O'Hara v. Graham, 166 S. W. 233.

§ 1068 (Ark.) It being impossible to tell whether the verdict was based on an erroneous instruction, the giving of it requires a reversal.

§ 1068 (Tex.Civ.App.) Where the jury found that a purchaser was entitled to rescind on the ground of the vendor's fraud, the failure to submit any measure of damages for fraudulent representations, in the event the purchaser had delayed for an unreasonable time before complaining of the fraud, or had approved the purchase

(G) Jurisdiction and Proceedings of Appellate Court After Remand. $1221 (Ky.) Entry in the judgment of costs against defendant in prohibition, a judge, having been a clerical error, not having been directed in the opinion of the court on appeal, XVII. DETERMINATION AND DISPO- such part of the judgment will be set aside.Chesapeake & O. Ry. Co. v. Harmon, 166 S. W. 786.

§1127 (Tex.Civ.App.) A motion to affirm on certificate must be denied where the transcript See Bail, §§ 59, 75; Eminent Domain, § 185. accompanying the motion does not contain a copy of the judgment which the motion seeks to have affirmed.-Brightman v. Brightman, 166 S. W. 415.

§ 1140 (Ark.) Where no error has occurred except that judgment is excessive, it may be cured by reducing the judgment to such an amount as is warranted by the evidence; but, if improper See Payment, § 42. evidence is admitted or competent evidence excluded, that error can be cured only by placing a recovery limit so low that a jury of average

judgment on proper evidence could not have al- See Principal and Agent, § 8.

lowed plaintiff a less sum, or by granting a new trial.-Triangle Lumber Co. v. Acree, 166

Where, in an action for injuries to a servant See Waters and Water Courses, §§ 152, 240. by the breaking of both bones of one leg above the ankle, he was awarded $10,000, but testimony of physicians on an issue as to whether there had been union of the bones was errone

ously excluded, the judgment would be affirmed See Appeal and Error, § 1060; Criminal Law, for $2,000 or a new trial granted.-Id.

§ 1170 (Mo.App.) Where, in an action for personal injuries, there was evidence supporting a substantial recovery on every element of damage submitted in the instruction on the measure of damages, the error, if any, in the instruction, because not prescribing a limit of re- See Criminal Law, § 971; Judgment, § 259.

See Bail; False Imprisonment; Malicious
Prosecution, §§ 71, 72.

covery on each separate item, must, as required
by Rev. St. 1909, § 2082, be disregarded on ap-
peal.-Bell v. United Rys. Co. of St. Louis, 166