INDEX-DIGEST

KEY NUMBER SYSTEM

THIS IS A KEY-NUMBER INDEX

It Supplements the Decennial Digests, the Key-Number Series and
Prior Reporter Volume Index-Digests

See Abatement and Revival; Dismissal and See Certiorari; Courts, 219–220; Criminal
Nonsuit.

46 (N.Y.) Equitable and legal causes join-15 (III.) Parties with separate conflicting
ed in same complaint.-Merry Realty Co. v.
Shamokin & Hollis Real Estate Co., 306.

65 (Ind.App.) Testimony of offer of buyer 23 (Mass.) Supreme Judicial Court will de-
made after seller's election and commencement

of action properly excluded.-Finch v. McClel-ed.-Jordan v. Ulmer, 71.
lan, 13.

termine jurisdiction, though question not rais-

9(2) (III.) Injunction to compel removal 41 (5) (III.) Extension during period of
of encroachment held proper.-Pradelt v. Lew-time previously granted runs from expiration
is, 785.
of previous grant.-City of Elmhurst v. Roh-
meyer, 761.

(945)

ed by declaration.-Walker Bros. Co. v. Cox, X. RECORD AND PROCEEDINGS 219.

220 (Mass.) Court cannot consider rulings refused by auditor, where question not raised on trial.-D'Urso v. Leone, 223.

Admissibility of testimony before auditor cannot be reviewed, where parties did not save question. Id.

237 (2) (Mass.) Party adversely affected should have moved to have hearsay evidence stricken.-Nugent v. Boston Consol. Gas Co.,

488.

(C) Exceptions.

RECORD.

NOT IN

(A) Matters to be Shown by Record. 496 (Ind.App.) Transcript without the complaint insufficient.-Ft. Wayne Transfer Co. v. Manier, 437.

497 (1) (III.) Assignments of error must be based on the record, and not argument of counsel.-Oden Coal Co. v. Industrial Commis

sion, 704.

502(3) (III.) Sufficiency of evidence to support verdict not considered, in absence of bill of exceptions containing motion for new trial.-Anderson v. Karstens, 338.

273(6) (Ind.App.) Exceptions to instructions held sufficient as not in gross.-Miller v.511(2) (Ind.) Filing exceptions during Kifer, 278. term must be shown by order book entry.-Patterson v. Dodson, 402.

273(10) (Ind.) Exception in general terms presents no question.-Roney v. Rodgers, 403.511(3) (Ind.App.) Notice necessary of

(D) Motions for New Trial. 294(1) (Ind.App.) Contention that material fact was not proved must be presented by motion for new trial.-Hines v. Drager, 654.

hearing on application for extension of time for filing bill of exceptions and bill must show notice.-State Board of Medical Registration and Examination v. Smith, 447.

(B) Scope and Contents of Record. 524 (Mass.) Letters excluded must be made part of exceptions.-Posell v. Herscovitz, 69.

301 (III.) Weight of evidence not considered, where not presented in lower court on motion for new trial.-Anderson v. Karstens, 338. 301 (Ind.) Causes for new trial not as- 527 (2) (Ind.App.) Request for special signable as error.-Peel v. Overstreet, 113. finding need not be shown, other than in finding.-Indianapolis Electric Supply Co. v. Lux, 153.

304 (III.) Weight of evidence not considered, where not presented and ruled on in lower court on motion for new trial.-Ander-528(1) (III.) Motion for new trial must son v. Karstens, 338. be contained in the bill of exceptions.-Anderson v. Karstens, 338.

(E) Cases and Questions

Certified.

Reserved or

314 (Mass.) Delay of more than year after time allowed by last special order for filing of draft report precludes report of case.-Porter v. Boston Storage Warehouse Co., 502.

VI. PARTIES.

327 (2) (Ind.App.) Parties to judgment, not merely parties to record, must be made parties to appeal.-Chicago Title & Trust Co. v. Gillett, 144.

Rule that only parties of record need be made parties to appeal has exceptions.-Id.

327 (7) (Ind.App.) Trustee appointed by judgment held necessary party to appeal by party denied appointment.-Chicago Title & Trust Co. v. Gillett, 144.

VII. REQUISITES AND PROCEEDINGS
FOR TRANSFER OF CAUSE.
(B) Petition or Prayer, Allowance, and
Certificate or Affidavit.

358 (Ohio) Affirmance of judgment render: ed after withdrawal of case from jury does not authorize petition in error as matter of right. -Keller v. Stark Electric R. Co., 508.

(C) Payment of Fees or Costs, and Bonds or Other Securities.

536 (Ind.App.) Unsigned bill of exceptions not part of record by filing.-State Board of Medical Registration and Examination v. Smith, 447.

(I) Defects, Objections, Amendment, and Correction.

659 (3) (III.) Refusal to permit appellant to supply record instanter held error.-Anderson v. Karstens, 338.

(J) Conclusiveness and Effect, Impeaching and Contradicting.

664 (2) (Ind.App.) Judge's certificate to bill must prevail over other parts of record. State Board of Medical Registration and Examination v. Smith, 447.

(K) Questions Presented for Review.

671(1) (Mass.) Excepting party must see that bill of exceptions includes necessary matter to enable court to decide questions complained of.-Posell v. Herscovitz, 69.

671(3) (III.) In the absence of certificate of evidence, errors occurring on the trial cannot be considered.-Owens v. Prudential Ins. Co. of America, 734.

690 (6) (Ohio.) Erroneous rejection of witness as incompetent prejudicial, though record contains no statement of facts.-Loney v. Walkey, 158.

386(1)(Ind.App.) Bond to perfect term time appeal must be approved during term.-692(1) (Mass.) Error not considered where Maune v. Miller & Co., 879. excluded letters not shown by exceptions.Posell v. Herscovitz, 69.

390 (11.) Joint appellants, who should have appealed separately, cannot have leave to file amended bond.-Legro v. Drainage Com'rs 694(1) (Mass.) Findings where evidence of Ashkum Drainage Dist. No. 1, 369. not reported must stand.-Clapp v. Gardner, 47.. VIII. EFFECT OF TRANSFER OF CAUSE 694 (1) (Mass.) Findings of fact cannot be OR PROCEEDINGS THEREFOR. reviewed in absence of evidence.-Linton v. Noonan, 170.

(A) Powers and Proceedings of Lower

Court.

694(1) (Mass.) Supreme Judicial Court performance warranting recovery on quantum cannot say auditor could not find substantial

443 (Ind.App.) Appeal from order disposing of goods deprived trial court of jurisdiction. meruit.-D'Urso v. Leone, 223. -Indianapolis Electric Supply Co. v. Lux, 153.695 (1) (Mass.) Findings of land court must

IX. SUPERSEDEAS OR STAY OF PRO

CEEDINGS.

460(1) (III.) Nature of "writ of error"

stated. Thompson v. Davis, 455.

460(1) (Ind.App.) Prayer for appeal does

stand where exceptions do not contain all evidence.-Murphy v. Hanright, 204.

(L) Matters Not Apparent of Record. 714(1) (III.) Supreme Court can look only not stay proceedings on judgment.-Chicago to record as made by parties.-Pasfield v. BauTitle & Trust Co. v. Gillett, 144.

mann, 739.

For cases in Dec.Dig. & Am,Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

714(1) (Ind.) Cause must be tried on record.-McDonald v. Short, 536.

757(1) (Ind.) Brief must contain substance of motion for new trial.-Peel v. Overstreet, 113.

853 (Mass.) Ruling unexcepted to became law of the case.-Prondecka v. Turners Falls Power & Electric Co., 386.

861 (N.Y.) On question certified whether newspaper could be designated as official paper, the question is one of law.-Finnegan v. Buck, 631.

(C) Parties Entitled to Allege Error.

877 (2) (II.) Parties cannot complain of decree in so far as it does not affect them.-Stevenson v. Stevenson, 771.

877 (2) (Ind.) Appellants cannot demand decision of question not affecting their rights. -Clinton Coal Co. v. Chicago & E. I. R. Co., 798.

877 (3) (Mass.) Defendant cannot complain of rulings in other action against other defendant.-Nugent v. Boston Consol. Gas Co., 488. 880(3) (Mass.) One defendant not entitled to complain of decree subrogating plaintiff to right of another defendant.-Ryder v. Brockton Sav. Bank, 102.

757(2) (Ind.App.) Issues presented by set-882(3) (I.) Devisee having sought to off not determined, in absence of statement in have land declared intestate property cannot brief as to contents.-Rayl v. Urmston Grain on error in Supreme Court claim land under Co., 126.

will.-Stevenson v. Stevenson, 771.

758(2) (Ind.App.) Omission in proper por-882(12) (Ind.App.) Invited error not retion of brief to disclose what objection made to versible.-Hines v. Nichols, 140. evidence cannot be supplied by argument.-Born v. Lafayette Auto Co., 149.

761 (Ind.App.) Assignments without points or authorities not considered.-Brown v. Peters, 155.

761 (Ind.App.) Statements under points that appellee was contributorily negligent and had assumed risk held insufficient to present question.-City of Linton v. Jones, 541. Statement that court erred in refusing to give an instruction held insufficient to present question.-Id.

773 (5) (Ind.App.) Appellee's failure to file brief and return record held a confession of error.-New York, C. & St. L. R. Co. v. Town of Mentone, 453.

XV. HEARING AND REHEARING.

832(4) (Ind.) Rehearing not granted to permit question not argued to be raised.-City of Princeton v. Williams, 122.

XVI. REVIEW.

882(12) (Ind.App.) Error invited not reversible.-Miller v. Kifer, 278.

882(14) (II.) Appellants cannot complain that jury were instructed on issue they joined in submitting.-Bundy v. West, 709.

(D) Amendments, Additional Proofs, and

Trial of Cause Anew.

889 (3) (Ind.App.) Complaint regarded as amended after verdict to correspond with undisputed evidence.-Arnott v. McClinock-Turnkey Co., 436.

(E) Presumptions.

900 (Ind.) Presumptions favor trial court. -Roney v. Rodgers, 403.

901 (Mass.) Burden to show error on excepting party.-Posell v. Herscovitz, 69.

907(2) (Mass.) In absence of report of facts, it is presumed judge acted on sufficient evidence.-Jordan v. Ulmer, 71.

007 (3) (Ind.App.) In absence of bill of exceptions decision of trial court presumed correct.-Anderson v. Hagenbuch, 440.

(A) Scope and Extent in General. 842(1) (Mass.) Finding specific perform-912 (Ind.) Motion for change presumed ance cannot be enforced held ruling of law. filed in good faith and not for delay.-Clinton Melamed v. Donabedian, 110. Coal Co. v. Chicago & E. I. R. Co., 798. 842(1) (Mass.) Question of delivery a916(3) (Ind.App.) Appellate Court cannot question of fact on conflicting evidence.-Mur- hold negligence existed as basis for holding phy v. Hanright, 204. complaint for equitable relief against judgment insufficient.-Hitt v. Carr, 1.

842(2) (Mass.) Finding of land court as to delivery of deed not a ruling of law.-Murphy v.927 (4) (Mass.) Verdict for defendant on Hanright, 204. plaintiff's opening admits facts which jury 843 (2) (Ind.) Equality of operation of in- would have been warranted in finding, if all valid ordinance need not be considered.-Park offers of proof true.-Donovan v. Walsh, 841. Hill Development Co. v. City of Evansville, 645. | 927(6) (Mass.) Direction of verdict appar843(2)(Ind.) Specifications that answers ently made with reference to pleadings not reto interrogatories were not sustained by evi-versible if correct in view of declaration.-Park dence not reviewable after judgment on gen- & Pollard Co. v. Agricultural Ins. Co., 208. eral verdict.-Talge Mahogany Co. v. Burrows, 929 (Ind.App.) Presumption that jurors use knowledge of human nature in weighing

865. 843 (4) (Ind.) Where ordinance is invalid, testimony.-Pittsburgh, C., C. & St. L. Ry. Co. question whether estoppel sufficiently pleaded v. Nichols, 546. need not be determined.-Park Hill Develop-930(1) (Ind.) In reviewing sufficiency of evment Co. v. City of Evansville, 645. idence favorable evidence considered.-Krauss

846(6) (Ind.App.) Unwarranted ultimate v. Weaver, 800. finding disregarded.-Husbands v. Indiana Trav-931 (1) (Ind.App.) No presumptions in faelers' Acc. Ass'n, 874. vor of a special finding.-Burkhart v. Millikan, 837.

850(3) (Ind.App.) Special findings not signed by judge or made part of record or 931 (3) (N.Y.) Findings implied only to aid brought in by bill of exceptions treated as gen- intention of trial court.-Burt Olney Canning eral findings.-Dulin v. National City Bank, Co. v. State, 574. 426.

931(4) (Mass.) Presumed that court found 853 (Mass.) Ruling of judge of land court that wife, signing mortgage, signed as accomunexcepted to is law of case.-Murphy v. Han-modation or as surety.-Ryder v. Brockton Sav. right, 204. Bank, 102.

931 (4) (Mass.) Finding that decedent's 1039 (8) (Ohio) No reversal for omissions declaration made in good faith held inferable in petition to which motion was overruled from its reception in evidence.-Murphy v. Han- where omitted facts were put in issue.-Putright, 204. man v. Board of Com'rs of Paulding County, 165. 933(4) (Ohio) When order based on one demurrer to ground, no presumption that other grounds are 1040(1) (Ind.) Sustaining considered.-State v. Court of Common Pleas pleading which should not be filed, is not availof Hardin County, 36. able error.-Clinton Coal Co. v. Chicago & E. I. R. Co., 798.

(F) Discretion of Lower Court. 959(1) (Mass.) Allowance of motion to amend bill for accounting of rents and profits matter of discretion.-Reed v. Chase, 257.

967 (2) (Mass.) Allowance of motion to recommit master's report for accounting of rents and profits matter of discretion.-Reed Chase, 257.

V.

970 (2) (Mass.) No reversal for discretionary exclusion of evidence.-E. P. Sanderson Co. v. Carroll Bros., 81.

1040 (6) (Ind.App.) Sustaining of defective demurrer to insufficient pleading harmless.Pattie v. State, 421.

1040 (7) (Ind.App.) Sustaining demurrer to paragraph of answer not reversible error when facts provable under other paragraphs.Arnott v. McClinock-Turnkey Co., 436.

1040(10) (Ind.App.) Error in overruling demurrer to complaint not reversible, where merits fairly determined.-Finch v. McClellan,

13.

975 (Mass.) Exclusion of documentary evi-1040(10) (Ind.App.) In view of fair determination of cause, overruling demurrer harmdence from jury as a matter of discretion not less.-Brown v. Ogle, 147. subject to exception.-Annawan Mills v. Man-1040 (10) (Ohio) No reversal for omissions gene, 77.

(G) Questions of Fact, Verdicts, and Findings.

in petition to which demurrer was overruled where omitted facts were put in issue.-Putman v. Board of Com'rs of Paulding County, 165. 1042(1) (Ind.) Rejection of plea not statdefense is harmless.-Kilty v. Michael, 531. 1043(1) (Ind.App.) Denial of motion make guardian's report more specific held 1000 (111.) Finding of chancellor and jury harmless.-Sohl v. Wainwright Trust Co., 282. not reversed unless against weight of evidence. 1050(1) (III.) Expert testimony as to ben-Campbell v. Freeman, 319.

996 (Ind.App.) Appellate Court will adopting inference drawn by jury if reasonable.-City of Linton v. Jones, 541.

1001 (1) (Ind.App.) Verdict sustained by any evidence not disturbed.-Miller v. Kifer,

278.
1001 (1) (Ind.App.) Verdict supported by
evidence not disturbed.-City of Linton v. Jones,
541; Same v. Maddox, 810.

1002 (111) Judgment on conflicting dence conclusive.-Bundy v. West, 709.

to

efit to objector's property from sewer improvement prejudicial.-City of Elmhurst v. Rohmeyer, 761.

1050 (I) (Ind.App.) Admission of parol evidence to determine what was adjudicated in former action held harmless.-Unger v. McManus, 146. evi-1050(1) (Ind.App.) Admission of testimony, constituting a matter of calculation from figures in evidence, harmless.-Brown v. Ogle, 147.

1004 (4) (Ind.App.) Damages must be outrageous to be reversible as excessive, though Appellate Court considers that they are too 1052(4) (Ind.App.) Error in admitting high.-Hines v. Nichols, 140. contract without proof of execution cured by 1009(1) (Mass.) Court not bound to fol- subsequent proof.-Finch v. McClellan, 13. low finding of fact repugnant to others.-Dan-1064 (1) (III.) Instruction as to weight and forth v. Chandier, 105. preponderance of evidence held erroneous and 1009(1) (Mass.) Decree dismissing bill prejudicial.-Noone v. Olehy, 476. must stand, unless clearly shown erroneous. 1064(1) (Ind.App.) Charge defining negliNew York, N. H. & H. R. Co. v. Plimpton, 498. gence as failure to act as reasonably prudent 1010(1). Finding conclusive, when support-person held harmless.-Pittsburgh, C., C. & St. ed by evidence. L. Ry. Co. v. Nichols, 546.

-(Ind.) Kilty v. Michael, 531;

1066 (Ind.App.) Instruction directing ver(Mass.) Commercial Credit Co. v. M. Mc-dict on finding of enumerated facts, omitting Donough Co., 179. an essential but undisputed fact, harmless.City of Huntingburg v. Hocker, 814.

P1012(1) (Ind.App.) Finding of trial court not sustained when contrary to the evidence. Holland v. Farrier, 823.

1017 (Mass.) Supreme Court cannot say auditor was wrong in finding builder was not required to furnish heating plant.-D'Urso v. Leone, 223.

1022 (1) (Mass.) Fact findings made on those of the auditor not reviewable on appeal. -Title Guaranty & Surety Co. v. Fred T. Ley & Co., 73.

(H) Harmless Error.

1071(1) (III.) Decree not reversed if sustainable on any finding.-Bundy v. West. 709.

1071(5) (Ind.App.) No harm from making special finding without request.-Indianapolis Electric Supply Co. v. Lux, 153.

(1) Error Waived in Appellate Court. 1078(1) (Mass.) Appeal waived when not argued.-Noon v. Bunker, 94.

1078(1) (Mass.) Defense not argued treated as waived.-Quincy Oil Co. v. Sylvester, 217. 1028 (Ind.App.) No reversal for interme-1078 (4) (Mass.) Exceptions, not argued, diate errors, in case of correct decision. not considered.-Howe v. Chmielinski, 56. 1078 (4) (Mass.) Requests not argued asHuntington v. Helma, 807. sumed to have been waived.-Dowd v. Lawlor,

1032(2) (Mass.) Burden on appellant to show prejudice from ruling.-E. P. Sanderson Co. v. Carroll Bros., 81.

674.

(J) Decisions of Intermediate Courts.

1033(1) (Ind.App.) Error favorable to appellant not ground for reversal.-City of Lin-1094(1) (III.) On review of judgments of v. Jones, 541.

ton

1033 (5) (Ind.App.) Charge that negligence could not be predicated on speed, but jury should consider public demands, favorable to railroad company.-Pittsburgh, C., C. & St. L. Ry. Co. v. Nichols, 546.

1033 (5) (Ind.App.) Defendant cannot complain of an instruction unduly favorable to it. -City of Linton v. Maddox, 810.

Appellate Court, questions of fact cannot be considered.-Wheeler v. City of Le Roy, 330. Determination of Appellate Court on fact questions binding on appeal.-Id.

1094(1) (II.) Appellate court's finding of fact conclusive on Supreme Court.-Anderson v. Karstens, 338.

1094 (2) (III.) On certiorari to Appellate Court question held whether there was evi

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

dence sufficient to support cause of action.-54 (N.Y.) Defendant released after execuWheeler v. City of Le Roy, 330. tion on bail in an insufficient amount may be 51094 (2) (1.) Supreme Court will not con- rearrested.-People ex rel. Wolfe v. Johnson, sider weight and sufficiency of evidence in cause affirmed by Appellate Court.-Carlin v. Chicago & W. I. R. Co., 371.

decree of restitution. See Drains, 70-82; Municipal Corporations, 438-489; Taxation, 318-496.

quired by order appealed from.-Indianapolis See Master and Servant, Electric Supply Co. v. Lux, 153.

1245 (Ind.App.) Breach of appeal bond

shown by complaint.-Indianapolis Electric Sup- See Garnishment. ply Co. v. Lux, 153.

33 (N.Y.) Defendant may be detained aft-92 (III.) Affidavit must conform strictly to er judgment until taken under final process.- statute.-Rabbitt v. Frank C. Weber & Co., People ex rel. Wolfe v. Johnson, 286.

39 (N.Y.) Constructive custody of bail at 122(1) (III.) Affidavit containing substantime of final judgment is equivalent to custody tial elements of statute and merely defective of sheriff.-People ex rel. Wolfe v. Johnson, is amendable.-Rabbitt v. Frank C. Weber & Co., 787.