INDEX.

ABSTRACTS.

1. Defective Abstract of Record in Court of Appeals: New Abstract in
Supreme Court. Where the Court of Appeals (one judge dissent-
ing) held appellant's abstract of record failed to show that the
bill of exceptions was properly authenticated and therefore affirmed
the judgment and certified the cause to the Supreme Court on the
ground of conflict of opinion, the appellants had the right to file
in the Supreme Court, in due time, an abstract of record which
eliminated the question considered by the Court of Appeals. Wil-
liams v. Ry. Co., 11.

2. Commingling Matters of Record and Exception: Waiver. An ob-
jection that the record proper fails to show that the motion for a
new trial or the bill of exceptions was ever filed, and that such
showing is made to appear only from the bill of exceptions Itself,
is, in view of the amendment to Rule 13, waived, unless the respond-
ent serves his motion raising such objection within fifteen days
after the service of the abstract. Refrigerator Co. v. Light Co.,

3.

290.

: Meaning of Rule 13. The amendment to Rule 13 adopted
December 31, 1920, means (1) that the objection that record mat-
ter is by the abstract made to appear only as exceptions, or ex-
ceptions only as record matter, must be made in writing or print;
and (2) the objections may be set forth in the printed brief or in a
separate motion. Ib.

ACTIONS.

1. Joinder of Different Causes and Parties. The joinder of parties as
plaintiffs is permitted when the cause of action is common to all,
and the right under which they claim is the same as to each, and
the complaint of all is against the same defendant for the doing
of acts which affect all alike; but the joinder in one suit in equity
of legal claims for overcharges arising out of several contracts
made by the respective plaintiffs with the defendant, identical only
in the fact that they are all shipment contracts, and differing as to
places and times of execution, is not permitted. Ballew Lumber
Co. v. Mo. Pac. Ry. Co., 473.

2. Multiplicity of Suits. Equity will not interfere to prevent a mul-
tiplicity of suits unless the question involved are of equitable cog-
nizance. Community of interest in the questions of law and fact
presented, or in the form or kind of relief demanded, is not
enough. Ib.

3. At Law: Equitable Defense: Trial to Jury. The Interposition of an
equitable defense to an action at law, in the absence of a prayer
for affirmative relief based thereon, does not convert the action
into one in equity, and does not preclude a submission of the case
to a jury. Citizens' Trust Co. v. Going, 505.

4. Condemnation: Easement: Prohibition: Remedy Against Instruction
to Assess No Damage. Where the trial court has instructed the
commissioners appointed in a condemnation proceeding, to allow no

ACTIONS-Continued.

damage to the owner of an easement in a lot which has been in-
jured and damaged by the appropriation of other lots to a public
use, such instruction is in excess of the court's jurisdiction, and
not mere error, and such owner is entitled to a writ of prohibition
to prevent such trial judge from enforcing such instruction. Such
easement is property, and the Constitution says that no property
can be taken or damaged for a public use without the payment,
in advance, of its value if appropriated, or the damage thereto
if injured, and the trial court in instructing the commissioners
(who are the arms of the court) that they are to allow no dam-
age for such injury violates this constitutional right, and therefore
exceeds its jurisdiction. [Per GRAVES, J., concurring.]
v. Buckner, 618.

APPEALS.

Peters

1. Transfer From Court of Appeals: Jurisdiction of Supreme Court.
When a case is transferred to the Supreme Court by a Court of
Appeals on the ground, within the time and in the manner speci-
fied by the Constitution, the Supreme Court acquires jurisdic-
tion to hear and determine the cause, just as if it had come direct
to it by appeal from the trial court. Williams v. Ry. Co., 11.
2. Defective Abstract of Record in Court of Appeals: New Abstract
in Supreme Court. Where the Court of Appeals (one judge dis-
senting) held appellant's abstract of record failed to show that the
bill of exceptions was properly authenticated and therefore af-
firmed the judgment and certified the cause to the Supreme Court
on the ground of conflict of opinic., the appellants had the right
to file in the Supreme Court, in due time an abstract of record
which eliminated the question considered by the Court of Appeals.
Ib.

3. Rape: Capital Case: Defendant No Counsel in Supreme Court: Duty
of Court: In a prosecution for rape, where defendant was found
guilty and sentenced to death and on his appeal to the Supreme
Court was not represented by counsel, the court will make a thor-
ough examination of the law and facts to ascertain whether "de-
fendant has had a fair and impartial trial and to determine whether
he has been convicted upon substantial evidence. State v. Lee, 41.
: Indictment. In this case, while no assault has been made
upon the indictment, the Supreme Court examines the same and
finds it to be in proper form. Ib.

4.

5. New Trial: Weight of Evidence: Review by Appellate Court. Where
the trial court grants plaintiff a new trial on the ground that the
verdict for defendant is against the weight of the evidence, the ap-
pellate court, on appea! from the order granting a new trial, will
not interfere, if the record discloses any substantial evidence in
plaintiff's favor. But if the evidence is such that a verdict for plain-
tiff would not be allowed to stand, the order granting a new trial
will be reversed, even though such order was bottomed by the trial
court on the ground that the verdict was against the weight of the
evidence. Borack v. Mosler Safe Co., 82.

6. Second Appeal: Reconsidering Former Ruling: No Bill of Excep-
tions: Record Proper. In a mandamus suit to compel the issuance
to relator by the authorities of a city of the first class of certain
special tax-bills for the cost of certain public improvements, where

APPEALS-Continued.

7.

the Supreme Court, on the first appeal, had reversed the judgment
and remanded the cause with directions to the circuit court to try
a certain issue, the petition and writ to be considered as amended so
as to deal alone with that issue, and on a second appeal by relator
it appeared that the trial court followed the mandate of the Supreme
Court on the re-trial and rendered judgment for relator for all he
claimed, and relator filed no motion for a new trial, or in arrest and
no bill of exceptions, but merely an affidavit for an appeal, the only
thing before the Supreme Court on relator's appeal is the record
proper; and it appearing that the judgment gave him all he claimed,
relator is in no position to ask a re-consideration of the ruling of
the first appeal. State ex rel. Dolman v. Dickey, 92.

:

:

-: Proper Procedure. The Supreme
Court, in a few cases and when properly presented, on a second
appeal, has reconsidered its former ruling, but such practice is an
exception to the general rule, and is not to be encouraged; and
before such reconsideration will be made, it must appear on the
second appeal, that on the re-trial evidence was introduced as in
the first trial, instructions asked, and motion for new trial and bill
of exceptions filed, and the whole record must be brought before
the Supreme Court on the second appeal in an orderly and regular
way showing that all the matters complained of were again before
the court for its consideration. Ib.

8. Scire Facias: Forfeited Recognizance in Felony Case: Civil Pro-
ceedings: Jurisdiction of Appeal. A proceeding by scire facias
against a surety on a forfeited bail bond for the appearance of the
defendant in a prosecution for felony is a civil proceeding auxiliary
to the prosecution of the defendant for the felony, and therefore,
the Supreme Court has jurisdiction of an appeal from a judgment
against the surety, even though it be in an amount less than the
limit of the court's jurisdiction in an ordinary civil case.
State v.
Streutker, 156.

9.

:

:

: Compliance with Rules. Section
4106, Revised Statutes 1919, requiring the appellate court, on an
appeal in a criminal case, to consider errors whether assigned or
not, does not apply to an appeal by a surety from a judgment ren-
dered against him in a proceeding by scire facias on a forfeited bail
bond given for the appearance of a defendant in a prosecution for
felony, because such section applies only to appeals authorized by
Article 15, Chapter 25, Revised Statutes 1919; nor is such judg-
ment “on any indictment or information" within the meaning of
Section 4086 of said article; nor is such appeal by such surety an
appeal by the defendant in an indictment or information. Hence
on his appeal such surety must comply with the rules of the ap-
pellate court in order to secure a review of the proceedings against
him, and failing so to do, his appeal will be dismissed. Ib.

10. Abstract: Commingling Matters of Record and Exception: Waiver.
An objection that the record proper fails to show that the motion
for a new trial or the bill of exceptions was ever filed, and that
such showing is made to appear only from the bill of exceptions
itself, is, in view of the amendment to Rule 13, waived, unless the
respondent serves his motion raising such objection within fifteen
days after the service of the abstract. Refrigerator Co. v. Light Co.,

APPEALS-Continued.

11. Abstract: Commingling Matters of Record and Exception: Mean-
ing of Rule 13. The amendment to Rule 13 adopted December 31,
1920, means (1) that the objection that record matter is by the
abstract made to appear only as exceptions, or exceptions only as
a record matter, must be made in writing or print; and (2) the ob-
jections may be set forth in the printed brief or in a separate mo-
tion. Refrigerator Co. v. Light Co., 290.

12. Review of Referee's Findings: Action at Law. In an action at law,
the findings of the referee will on appeal be reviewed only to the
extent of determining whether there is substantial evidence to sup-
port them, and to support the trial court's approval or modification
of them. And an action by the county for the recovery of money
obtained by the superintendent of its county farm from the sale of
conn, mules and cattle, which he in his answer admits he did obtain,
but therein avers he paid it out, under authority of law and by di-
rection of the county court, for things which were properly charge-
able to the county, as shown specifically by an itemized exhibit
attached, being the averment of a counterclaim, is an action at law.
State ex rel. Saline Co. v. Wilson, 315.

13.

:

: Act of 1919: Invalid: Unreasonable Classification.
The Act of 1919, (Laws 1919, p. 213; Sec. 1444, R. S. 1919) declar-
ing that "on appeals in all cases, whether law or equity, in which
a referee has been appointed and made a report, the appellate court
shall, on exceptions properly preserved, review the evidence and
the findings of fact and conclusions of law of the referee and trial
court, and give such judgment as shall be comformable to the law
on the evidence," is invalid, in so far as it relates to actions at
law. It divides a natural class, namely, actions at law, into two
subdivisions, and requires the law to be administered in the ap-
pellate court in one way for one subdivision and in a different way
for the other; it requires the appellate court to try de novo all
actions at law in which a referee has been appointed, but leaves in
force the ancient rule applicable to all actions at law that, on appeal,
the findings of the jury, or of the judge sitting as a jury, will be
reviewed on appeal only so far as to determine whether they are
supported by substantial evidence. Such a classification is arbi-
trary, unreasonable and violative of constitutional inhibitions, and
it also offends the due-process-of-law provisions of the Constitution.
Ib.

14. From Action on Petition: Amended Petition. When an amended
petition is filed the original petition is merely an abandoned plead-
ing, and an appeal from a record showing "action by the court on
petition" is an appeal from the court's ruling on the amended pe-
tition. K. C. Rys. v. McCardle, 354.

15. Res Adjudicata: Vexatious Delay. Although the questions raised
on the appeal are res adjusticata, the appeal is not necessarily vexatious
and for delay. Water Co. v. Sedalia, 411.

16. Appellate Practice: Sufficiency of Evidence. It is not the province
of an appellate court to determine the weight of the testimony; in
deciding whether a demurrer to the evider.ce in a criminal case was
properly sustained, it searches the record only to the extent of
determining whether there was substantial evidence to support the
verdict. And judged by this rule, the evidence in this case was
amply sufficient to sustain the verdict that defendant was the per-

APPEALS-Continued.

son who, with gun in hand, robbed the prosecuting witness of
thirty dollars or more. State v. DePriest, 459.

ACCIDENT INSURANCE. See Insurance.
ALTERATION OF PAPER. See Spoliation.
ARGUMENT TO JURY. See Attorneys.

ATTACHMENT.

1. Justice Court: Entrance of Appearance. Where a defendant, sued
by attachment in a justice of the peace court, took an appeal to the
circuit court from a judgment rendered against him by the justice,
he thereby entered his appearance in the case in that court and
was in the court for all the purposes of his case in the circuit court,
even though in the latter court he attempted to appear specially in
a motion to discharge the garnishment and dismiss the case, and
after it was overruled attempted to appear specially in a plea in
abatement. After he had entered his appearance by taking such
appeal, these motions were utterly futile for the purpose of attack-
ing the jurisdiction of the justice court over his person or his
property brought before that court by garnishment under the writ
of attachment. Tobacco Co. v. Unverferth, 52.

2.

3.

: Jurisdictional Amount: Voluntary Credit: Tort. Where
plaintiff's claim, in a suit before a justice of the peace, is based upon
a tort, the jurisdiction of the justice court is determined by the
amount of the demand as filed, and it is immaterial that the plaintiff's
loss exceeded in amount the limit of the justice's jurisdiction. The
filing of the claim is a voluntary credit of all in excess of its amount
and a waiver by plaintiff of his right to recover therefor, to which
defendant cannot object. Ib.

: Evidence. In a suit by attachment based upon the ground
that the damages sued for arose from the commission of a felony,
where it appeared from the evidence that defendent was head stable-
man for plaintiff and lived over plaintiff's stables; that he was used
to receiving money from plaintiff's drivers and placing it for safe
keeping in sealed envelopes in a safe in the office of the plaintiff's
stables where he worked and to which he had access at all times;
that on the occasion in question he had received money and checks
in excess of $500 and put them in the safe; that he was the only one
present having keys to the inner door of the safe; that a vicious
watch dog was loose in the stables at night that would not permit
strangers to enter; that the regular watchman was on duty from five
o'clock in the evening before until after five o'clock the next morning
and did not leave the premises during the night, and saw no one ex-
cept defendant about the place, but did see him come down to the of-
fice about five o'clock on the morning the money was missing, which
was an hour earlier than he usually came; that a police officer saw
defendant about six-forty-five in the morning trying to open the
safe and afterwards saw him running away from the stables and
asked him what was the matter and he said that the money was
gone; that defendant gave several reasons for opening the safe;
that his rooms were searched but none of the money was found.
Held, that there was sufficient evidence to make a case for plaintiff
both on the merits and on the attachment. Ib.

See, also, Exemptions.