Volume 229 — Mississippi Reports

<bold>1. Criminal law — confessions — admissibility — question for</bold> <bold>Trial Judge.</bold> Conflict in testimony as to whether alleged confession of defendant was free and voluntary and including fact that confession was made while the defendant was under arrest and confined in jail on suspicion without a warrant were questions for the Trial Judge on a preliminary hearing. <bold>2. Confessions — voluntarily made — admissible — evidence</bold> <bold>supported findings of Trial Judge.</bold> Evidence amply supported findings of Trial Judge that confession of defendant was voluntarily made and that it was not obtained by duress, threats and hopes of reward and hence was admissible. <bold>3. Larceny — definition of.</bold> Larceny is the taking and carrying away from any place, at any time, of personalty of another, without his consent, by person not entitled to possession thereof, feloniously, with intent to deprive owner of his property permanently, and to convert it to use of the taker. Sec. 2240, Code 1942. <bold>4. Larceny — abandonment of stolen property — as affecting</bold> <bold>question of intent.</bold> Act of abandonment of stolen property is not conclusive of the question of intent to permanently deprive the owner of the possession of the property and convert it to the use of the taker. Sec. 2240, Code 1942.<page_number>Page 16</page_number> <bold>5. Larceny — evidence — sustained conviction — notwithstanding</bold> <bold>abandonment.</bold> In prosecution for larceny of a truck of the value of $300 and seed cotton of the same value, evidence sustained conviction notwithstanding defendant abandoned the truck on outskirts of a small municipality since such fact was not conclusive of the question of intent as applied to truck, and especially where evidence disclosed that cotton of more than the value of $25, according to prior arrangement, had been carried to home of third person for the purpose of being sold by third person under third person's name and the sale proceeds divided between third person and defendant. <bold>6. Larceny — intent — instructions — properly refused</bold> <bold>defendant.</bold> Refusing instruction that if property stolen was taken openly and in the presence of third persons it carried with it only evidence of trespass was proper since manner of taking and disposition are facts to be considered by jury along with other evidence bearing upon the intent of the accused. <bold>7. Larceny — taking property openly in presence of third persons</bold> <bold>as evidence of trespass — instructions — properly refused</bold> <bold>defendant.</bold> Refusing instruction that if property alleged to have been stolen was taken openly in the presence of third persons it carried only evidence of trespass, was not error under the evidence. <bold>8. Instructions — not applicable to issues — properly refused.</bold> Instructions which were not applicable to the issues involved and had they been granted would only have confused the issues before the jury were properly refused. <bold>9. Criminal law — witnesses — expert opinion — plaster casts of</bold> <bold>tires and tire tracks.</bold> Where witness testified that he made plaster casts of tire tracks and also of the tires on the truck used in the larceny after the truck was found, testimony, though a mixed statement of facts and opinion, was properly admitted where the opinion part did not render the testimony incompetent, since the witness qualified as an expert on such matters. Headnotes as approved by Roberds, P.J.

<bold>1. Homestead — husband and wife — husband denied interest in</bold> <bold>home — conveyance in consideration of wife's agreement not to</bold> <bold>prosecute pending divorce action — divested husband of any</bold> <bold>interest in property — mortgage payments — rentals —</bold> <bold>adjusted.</bold> In suit by husband against former wife to establish his interest in home and for partition sale thereof, wherein former wife filed cross-bill claiming sole title, Supreme Court held that where husband had deeded his interest in homestead property to wife, in consideration of wife's agreement not to prosecute pending divorce action, and of her assumption of mortgage, deed validly divested husband of any interest in property, and wife who subsequently obtained Ohio divorce was entitled to property, but that husband, who had continued to occupy the homestead, as he had the right to do, following his wife's departure, could recover payments which he had made on mortgage prior to divorce, but husband would be liable to former wife for reasonable rental value of premises from and after date of divorce. Headnote as approved by Hall, J.

<bold>1. Railroads — crossing accident — evidence — as to whether box</bold> <bold>cars obstructed view of motorist at time of accident — for</bold> <bold>jury.</bold> In action by widow for death of husband who was killed when his westbound pick-up truck was struck by northbound train, at railroad crossing, evidence as to whether box cars, which allegedly were in such position as to obstruct the view of motorist to the south at the railroad crossing at the time of the collision, were moved between time of the accident and time of the photographs, which disclosed that the box cars were some distance south of railroad crossing, was sufficient to present question for jury. <bold>2. Railroads — crossing accident — evidence — raised jury</bold> <bold>questions as to whether motorist's negligence was sole</bold> <bold>proximate cause and as to whether railroad's negligence was</bold> <bold>concurring or contributing cause.</bold> Evidence relating to truck driver's lookout and to obstructions of truck driver's view and to giving of signals by defendant<page_number>Page 140</page_number> and to speed of train raised questions for jury as to whether truck driver's negligence was sole proximate cause of accident and as to whether railroad's negligence was concurring or contributing cause. Sec. 7776, Code 1942. <bold>3. Railroads — crossing accident — fact that automatic flashing</bold> <bold>signal and bell were in operation at time motorist attempted</bold> <bold>to cross — not sufficient to require Trial Court to hold that</bold> <bold>failure of motorist to heed warning was sole proximate cause</bold> <bold>of accident.</bold> Fact that an automatic flashing signal and bell are in operation at a crossing at the time a motorist attempts to cross is not of itself sufficient to require Trial Court to hold as a matter of law that failure of motorist to heed such warning renders his act the sole proximate cause of accident. <bold>4. Railroads — crossing accident — evidence — on theory of</bold> <bold>entrapment — admissible on issue of whether or not motorist</bold> <bold>exercised care of reasonably prudent person on occasion in</bold> <bold>question.</bold> Admission in evidence of testimony of plaintiff's witnesses in regard to plaintiff's theory that deceased motorist was entrapped by confusion created by flashing of signals and sounding of bell thereon at times when no train was approaching crossing, was not error even though Trial Court rejected such theory of an entrapment, as such testimony was admissible on issue of whether or not motorist exercised care of reasonably prudent man on the occasion in question. <bold>5. Damages — earning capacity — is what a man is capable of</bold> <bold>earning — not what he is capable of saving.</bold> In determining damages, earning capacity of a man is what he is capable of earning and not what he is capable of saving. <bold>6. Damages — loss of companionship and society — largely matter</bold> <bold>for jury — review.</bold> The estimating of damages for loss of companionship and society of a decedent is largely a matter for the jury, and, unless verdict evinces passion and prejudice, Supreme Court must not apply its own judgment, but must accept the verdict of the jury. <bold>7. Railroads — damages — award of $25,000 — not excessive.</bold> Under facts of case, an award of damages of $25,000 to widow for death of husband, was not excessive. Headnotes as revised by McGehee, C.J.<page_number>Page 141</page_number>

<bold>1. Wills — bequests not to lapse in certain cases — descent and</bold> <bold>distribution.</bold> Where son died intestate prior to death of testatrix, and left surviving a son and daughter, son and daughter succeeded to share of their father in estate, under statute. Secs. 505, 660, Code 1942. <bold>2. Wills — construction — testator's intention — prime inquiry.</bold> In construing a will, the prime inquiry is the intention of the testator. <bold>3. Wills — construction — "interest of daughter".</bold> Under will providing that sons were to manage "interest" of daughter, and in event of her death, to continue as trustees for her child, and that named sons and daughter were to share equally in testatrix' interest in certain property interest, and that daughter was to have testatrix' interest in certain Pass Christian property, "interest" of daughter which sons were to manage meant entire interest provided for daughter under instrument as a whole, in absence of contrary intention appearing in instrument itself.<page_number>Page 235</page_number> <bold>4. Wills — construction — "my personal property, giving her</bold> <bold>brothers as she sees fit".</bold> Under will providing that daughter was to have "my personal property, giving her brothers as she sees fit", daughter acquired full title to personal property which she might dispose of to her brothers or keep as she determined. <bold>5. Wills — construction — "interest" in certain property</bold> <bold>included in trust estate.</bold> Under will providing that sons were to manage "interest" of daughter, and in event of her death, continue as trustees for her child, and that named sons and daughter were to share equally in testatrix' interest in certain property interest, and that daughter was to have testatrix' interest in certain Pass Christian property, Pass Christian property was included in "interest" embraced by trust estate, and daughter did not acquire fee simple title to that property. <bold>6. Wills — disposition of property located in foreign State —</bold> <bold>controlled by Mississippi laws — unless language of will</bold> <bold>indicates contrary intention.</bold> Where there is no language in instrument indicating intention to contrary, disposition of Louisiana property by testatrix would be controlled by laws of State of Mississippi. <bold>7. Wills — construction — daughter acquired fee simple title to</bold> <bold>Louisiana property.</bold> Where earlier testamentary instrument did not deal with Louisiana property but dealt only with personal property of testatrix and real estate of testatrix in Mississippi, and by separate and subsequent testamentary instrument, testatrix devised Louisiana property to daughter in fee simple, and nothing in later instrument was repugnant to any of other testamentary instruments, daughter acquired fee simple title to Louisiana property, though under earlier instruments she had acquired only beneficial interest of trust estate for life. <bold>8. Life estates — oil in place — portions of oil produced —</bold> <bold>royalties — represent corpus or principal — life tenant</bold> <bold>entitled only to interest derived from investment of such</bold> <bold>funds.</bold> The oil in place is a part of the real estate, and cannot be withdrawn without injury to the inheritance, and portions of oil produced and paid as royalties represent principal or corpus, and only interest thereon derived from any investment of such funds should be paid to life tenant.<page_number>Page 236</page_number> <bold>9. Trusts — beneficiary of trust vested with life estate —</bold> <bold>entitled only to interest derived from investment of oil</bold> <bold>royalty funds.</bold> Beneficiary of trust vested with life estate is entitled only to interest derived from any investment of funds paid as oil royalties <bold>10. Trusts — same — not entitled to receive oil royalties</bold> <bold>derived from trust property pursuant to lease executed after</bold> <bold>death of testatrix.</bold> Daughter, who held beneficial interest in testamentary trust estate for term of her life, was not entitled to receive oil royalties derived from trust property pursuant to oil lease executed after death of testatrix. <bold>11. Wills — construction — to avoid intestacy if that can be</bold> <bold>reasonably done.</bold> A will is to be construed to avoid intestacy if that can be reasonably done, considering language employed in instrument and circumstances confronting testator at that time. <bold>12. Wills — construction — revocation — testamentary instrument</bold> <bold>did not constitute revocation of prior testamentary</bold> <bold>instruments.</bold> Testamentary instrument executed in 1939, and containing no disposition of property, did not revoke prior testamentary instruments and cause intestacy, in view of fact that statements in 1939 instrument to effect that testatrix had theretofore given to her executors elsewhere details of division of Louisiana and Mississippi properties had reference to testamentary details of prior instruments that indicated intent that she was not thereby revoking original or subsequent testamentary instruments disposing of her property, and also in view of reference in 1942 testamentary instrument to gift to son made by original instrument. <bold>13. Wills — construction — prior and subsequent testamentary</bold> <bold>instruments.</bold> Where 1933 testamentary instrument provided that trustees should hold and manage interest of daughter, and in event of daughter's death continue as trustees for daughter's son, and in event son should survive mother and die without children, interest should go to direct heirs of testatrix, and 1939 testamentary instrument eliminated condition with reference to son's death without children, and provided that upon death of son remainder would vest in direct heirs of testatrix, upon son's death, remainder vested in such direct heirs, whether son died with or without children.<page_number>Page 237</page_number> <bold>14. Wills — construction — revocation of provision by subsequent</bold> <bold>testamentary instrument.</bold> Where subsequent testamentary instrument devised Louisiana property to daughter without provision for postponement of enjoyment until certain time after death of son-in-law, testatrix thereby revoked such provision. <bold>15. Life estates — wills — courts — life tenancies not favored.</bold> Courts in construing wills do not favor the creation of life tenancies. <bold>16. Wills — estates — law favors early vesting.</bold> The law favors the vesting of estates created by will at the earliest possible moment. <bold>17. Wills — absolute devise — not to be reduced by succeeding</bold> <bold>language inferior in clarity.</bold> An absolute devise may not be reduced to a life estate by any succeeding language which is inferior in clarity or certainty in the devising estate. <bold>18. Wills — absolute devise to son in fee — not reduced to life</bold> <bold>estate by subsequent testamentary instrument.</bold> Where testatrix devised one-fourth interest in certain plantation to named son, but by subsequent testamentary instrument provided that it was understood that he would not convey property away from testatrix' blood, attempted restriction on alienation was insufficient to reduce estate to life estate, especially in view of absence of provision for reversion, and son acquired fee simple title upon death of testatrix. <bold>19. Descent and distribution — wills — vested interests.</bold> Where son, who died after testatrix, was devised fee simple title in certain property, his wife succeeded to that interest upon his death. <bold>20. Life estates — life tenant — obligation to make necessary</bold> <bold>repairs — to pay taxes.</bold> The life tenant is obligated to make ordinary repairs necessary to preserve property, and is also obligated to pay taxes on the property. <bold>21. Trusts — testamentary trustee — authorized to make ordinary</bold> <bold>repairs — pay taxes — from income derived from trust</bold> <bold>property.</bold> Trustee of testamentary trust would be authorized to make ordinary repairs to trust property, and to pay therefor, and<page_number>Page 238</page_number> to pay taxes, from rents, revenues and income derived from property. <center> ON MOTION TO CORRECT JUDGMENT</center> January 28, 1957 92 So.2d 245 <bold>22. Appeal — motion to correct judgment — sustained.</bold> Where Supreme Court's decision involved construction of will of decedent and determination of question of right of person during her lifetime to be paid royalties derived from oil lease executed subsequent to death of testatrix, and, except to extent that such decision might affect validity of any oil and gas lease executed by testamentary trustees, it was erroneous to incorporate in Supreme Court judgment a general adjudication of validity of leases, and, accordingly, motion to correct judgment by striking and eliminating therefrom such adjudication was sustained. Headnotes as approved by Holmes, J.

<bold>1. Criminal law — armed robbery — proof required of State —</bold> <bold>alibi — State did not have burden of proving alibi was</bold> <bold>untrue.</bold> In prosecution for armed robbery, where defense was an alibi, all that was required of State was that its evidence be such as to warrant jury in believing beyond a reasonable doubt that defendant was at scene of crime and committed the robbery and State did not have burden of proving that alibi was untrue.<page_number>Page 268</page_number> <bold>2. Criminal law — same — alibi — proof required of State —</bold> <bold>defendant's guilt or innocence for jury.</bold> In such case, where State's proof in chief was contradictory of defendant's proof of alibi, it was in province of jury to determine from evidence as a whole the guilt or innocence of defendant, and State was not required to rebut by other evidence the defendant's proof of alibi and thereby negative defendant's proof. <bold>3. Criminal law — alibi — instructions — that State must prove</bold> <bold>alibi was untrue.</bold> Where State's proof in chief was contradictory of defendant's proof of alibi, defendant's requested instruction that State must prove that the alibi was untrue was properly refused. <bold>4. Criminal law — same — same — refusal of defendant's</bold> <bold>instruction that if under evidence there was a probability of</bold> <bold>defendant's innocence, he should be acquitted — reversible</bold> <bold>error.</bold> Where defendant offered proof of an alibi, defendant was entitled to have jury instructed that if under evidence there was a probability of his innocence he should be acquitted, and refusal to give requested instruction to that effect was reversible error in view of weakness in testimony of State's only witness and strength of testimony in support of defendant's claimed alibi. <bold>5. Appeal — jury's finding — Supreme Court reluctant to disturb</bold> <bold>where evidence conflicting.</bold> Supreme Court is reluctant to disturb jury's finding on issues of fact where evidence is conflicting. <bold>6. Criminal law — instructions — alibi.</bold> Requested instruction that evidence in support of alibi need only exclude possibility of defendant's presence at time and place of crime was inaccurate and should have directed that evidence in support of alibi need only raise in minds of jury a reasonable doubt as to defendant's presence at the time and place of the crime. Headnotes as approved by Holmes, J.

<bold>1. Criminal law — order entered in Justice of the Peace Court —</bold> <bold>did not support plea of former jeopardy in bar of conviction</bold> <bold>and sentence on same charge in Circuit Court.</bold> Order entered in Justice of the Peace Court, reciting appearance of defendant for trial on charge of assault, failure of prosecution to appear with any evidence and that case was thrown out of court for want of prosecution, showed that defendant had not been prosecuted or put in jeopardy in Justice of the Peace Court on assault charge and did not support plea of former jeopardy in bar of conviction and sentence on same charge in Circuit Court.<page_number>Page 455</page_number> <bold>2. Assault and battery — evidence — presented issue for jury.</bold> In prosecution for assault, conflicting evidence presented a typical issue for jury to decide. Headnotes as approved by Gillespie, J.

<bold>1. Partition — amendments — dismissal — Chancery Court should</bold> <bold>have permitted amendment near conclusion of trial so as to</bold> <bold>more fully describe land involved.</bold> In suit for partition sale of house and lot, Chancery Court should have permitted complainants to amend the bill near the conclusion of the trial so as to embrace a more full and complete description of the land, and should not have dismissed the bill without prejudice, thus causing a further delay of the case and a possible injustice. Sec. 1302, Code 1942. Headnote as approved by Hall, J. <center> ON SUGGESTION OF ERROR</center> January 28, 1957 92 So.2d 255 <bold>2. Appeal — from order sustaining demurrer — statement in</bold> <bold>Court's opinion that complainants and defendants were tenants</bold> <bold>in common — not an adjudication on merits.</bold> Where appeal was from order sustaining demurrer to bill, statement in Supreme Court's opinion to effect that complainants and defendants were tenants in common was based on assumption that facts charged in bill were true, and did not constitute an adjudication on the merits. Headnote as approved by Gillespie, J.

<bold>1. Workmen's compensation — sharecropper while hauling his own</bold> <bold>cotton from leased farm to its owner's gin in owner's tractor</bold> <bold>and trailer — not employee of gin.</bold> A farm owner's suggestion or direction that sharecropper on farm bring cotton picked by him each day to such owner's gin, instead of leaving it exposed to elements in field, did not constitute such sharecropper an employee of gin, within Workmen's Compensation Act, when hauling his own cotton from field to gin with employer's tractor and trailer. Sec. 6998-01, et seq., Code 1942.<page_number>Page 554</page_number> <bold>2. Workmen's compensation — statutory exclusion of farmers and</bold> <bold>farm labor from coverage of Act — construed.</bold> The mere fact that a tenant farmer or day laborer on farm is under farm owner's direction and control as to all matters connected with farming operations and harvesting and marketing of crops does not take him out of statutory exclusion of farmers and farm labor from coverage of Workmen's Compensation Act. Sec. 6998-03, Code 1942. <bold>3. Workmen's compensation — sharecropper while hauling his own</bold> <bold>cotton from leased farm to its owner's gin in owner's tractor</bold> <bold>and trailer — not within exemption provision of act relative</bold> <bold>to commercial processing of agricultural products.</bold> A share cropper, while hauling his own cotton from leased farm to its owner's gin, was not engaged in processing of agricultural products commercially within provision of Act that exemption of farmers and farm labor does not apply to commercial processing of agricultural products. Sec. 6998-03, Code 1942. <bold>4. Workmen's compensation — statutory exclusion of farmers and</bold> <bold>farm labor from coverage of Act — construed.</bold> The provision of the Act exempting farmers and farm labor from coverage thereof excludes from such coverage all farmers or farm laborers whose injuries or death arise out of and in course of their farming operations, not merely those who do not also work for gin operators for a substantial portion of year. Sec. 6998-03, Code 1942. <bold>5. Workmen's compensation — death of sharecropper arose out of</bold> <bold>and in course of farming operations so as to exclude him from</bold> <bold>coverage of Act.</bold> Death of sharecropper as result of being thrown from and run over by farming tractor and trailer belonging to owner of leased farm while hauling sharecropper's own cotton to such owner's gin arose out of and in course of share cropper's farming activities, so as to exclude him from coverage under Workmen's Compensation Act. Sec. 6998-03, Code 1942. Headnotes as approved by McGehee, C.J.

<bold>1. Insurance — automobile fire policy — plea by insurer as to</bold> <bold>demand for an appraisal after loss and a refusal by insured to</bold> <bold>comply with appraisal provision — in nature of plea in</bold> <bold>abatement.</bold> A plea by insurer as to demand for an appraisal of the loss, and a refusal by insured to comply with the appraisal provisions in an insurance policy is in the nature of a plea in abatement which would not require a complete denial of insured's right to recover but which, if sustained, would require that action be abated and dismissed without prejudice without denying insured the right to institute another suit if and when an appraisement is had. <bold>2. Insurance — automobile fire policy — appraisal provisions —</bold> <bold>valid.</bold> Standard clause pertaining to an appraisal in event of damage or destruction to automobile contained in standard automobile policy insuring against fire and other perils, is valid. <bold>3. Insurance — appraisement — arbitration — distinguished.</bold> Arbitration is sometimes confused with appraisement, and while some of the rules of law that apply to arbitration apply in the same manner to appraisement, and the terms have at times been used interchangeably, there is a plain distinction between them, for in the proper sense of the term, arbitration presupposes the existence of a dispute or controversy to be tried and determined in a quasi judicial manner, whereas appraisement is an agreed method of ascertaining value or amount of damage, stipulated in advance, generally as a mere auxiliary or incident feature of a contract, with the object of preventing future disputes, rather than of settling present ones; and liability is not fixed by means of an appraisal; there is only a finding of value, price, or amount of loss or damage.<page_number>Page 736</page_number> <bold>4. Insurance — automobile fire policy — appraisal provision —</bold> <bold>denial of liability after insured's refusal to submit loss to</bold> <bold>appraisers — as not constituting waiver.</bold> Insurer would not be held to have waived appraisal provision in automobile policy by denial of liability after insured had refused to submit matter of his fire loss to appraisers as required by the policy. <bold>5. Pleading — statute abolishing pleas in Circuit Court — pleas</bold> <bold>made in answer — pleas in abatement.</bold> Statute, which abolishes pleas in Circuit Court and provides that every defense theretofore presentable by plea should be made in an answer, supplanted other statutes dealing with pleas in abatement and also supplanted the common law rules dealing with such pleas. Sec. 1475.5, Code 1942. <bold>6. Pleading — hearing insurer's plea in abatement which</bold> <bold>pertained to appraisal feature of policy together with</bold> <bold>insurer's other defenses proper where neither party requested</bold> <bold>separate hearing in advance.</bold> In action by insured and finance company against insurer for amount due under automobile fire policy, hearing of insurer's plea in abatement, which pertained to appraisal feature of policy, together with insurer's other defenses was proper where neither party requested a separate hearing in advance on the plea in abatement. <bold>7. Insurance — automobile fire policy — appraisal provision —</bold> <bold>insured required to make effort to comply with appraisal</bold> <bold>clause before proceeding against insurer.</bold> Where automobile fire policy contained provision for appraisal in event insured and insurer could not agree on amount of loss, before insured and finance company could proceed against insurer for amount allegedly due under fire policy following fire loss to automobile, they would be required to make an effort to comply with the appraisal clause. Headnotes as approved by Hall, J. <center> ON SUGGESTION OF ERROR</center> April 8, 1957 93 So.2d 848 <bold>8. Appeal — Supreme Court Rules — Supreme Court can relax or</bold> <bold>dispense with rules to prevent injustice.</bold> The Supreme Court can relax or dispense with Supreme Court Rules to prevent injustice, and it would be appropriate, where question of jurisdiction is involved, to dispense with rule prohibiting<page_number>Page 737</page_number> filing of a second suggestion of error and providing that a motion once disposed of will not be heard again. Rules 14(3), 16, 33, Supreme Court Rules. <bold>9. Courts — jurisdiction — question of may be raised at any</bold> <bold>stage of the proceedings — even by Court ex mero motu.</bold> Question of jurisdiction may be raised at any stage of the proceedings, even by the Court of its own motion. <bold>10. Appeal — furnishing corporation's counsel with copies of</bold> <bold>appellate papers and briefs — not a substitute for issuance</bold> <bold>and service of summons on corporation — legal process</bold> <bold>mandatory.</bold> Fact that corporation's counsel was furnished with copies of petition for appeal, notice to court reporter, and assignments of error, and briefs served only to show that corporation had knowledge of appeal and would not serve as substitute for issuance and service of summons on corporation to answer the appeal, and corporation's knowledge of the appeal would be of no avail in absence of a legal summons or appearance or waiver by a corporation. Secs. 1186, 1189, Code 1942. <bold>11. Corporations — filing of motion to re-tax costs after entry</bold> <bold>of judgment void for want of process — as not constituting a</bold> <bold>waiver or entry of appearance.</bold> Corporation's filing of a motion to re-tax costs after entry of judgment complained of could not serve to give validity to the judgment, if judgment was invalid for want of proper process, and contention that filing of such motion constituted an entry of appearance and waiver of process by corporation was without merit. Secs. 1186, 1189, Code 1942. <bold>12. Appeal — code sections pertaining to issuance and service of</bold> <bold>summons on appellee are jurisdictional.</bold> Code sections pertaining to issuance and service of summons on appellee in Supreme Court are jurisdictional. <bold>13. Appeal — jurisdiction — issuance and service of summons to</bold> <bold>answer appeal prerequisite to entry of valid judgment.</bold> Compliance with Code provisions pertaining to issuance and service of summons to answer appeal was prerequisite to entry of valid judgment against appellee corporation, in absence of entry of appearance by corporation or waiver of process by corporation, and, therefore, the Supreme Court was without jurisdiction over corporation's person to enter<page_number>Page 738</page_number> judgment against it for costs following reversal of judgment for corporation. Secs. 1186, 1189, Code 1942. Headnotes as approved by Holmes, J.

<bold>1. Physicians and surgeons — word "chiropractic".</bold> "Chiropractic" is a drugless method of treating human ailments, chiefly by manipulation of the spinal column with the hands. Secs. 2332, 8888, Code 1942. <bold>2. Physicians and surgeons — chiropractor — illegal practice of</bold> <bold>medicine — affidavits — not defective — statutes.</bold> In prosecution of chiropractor for illegal practice of medicine, affidavits which used words "or other substance", in place of statutory language "or other agency" was not defective, in view of fact that words used were equivalent in meaning to language of statute prohibiting one from willfully and unlawfully suggesting, recommending, prescribing and directing certain drugs, medicine or other agency. Secs. 2332, 8888, Code 1942.<page_number>Page 756</page_number> <bold>3. Affidavits — when sufficient.</bold> If the offense charged is certainly and substantially described in language equivalent in meaning to the language of the statute, it is sufficient. Secs. 2332, 8888, Code 1942. <bold>4. Affidavits — chiropractor — illegal practice of medicine —</bold> <bold>willful and unlawful attempt to diagnose alleged illness —</bold> <bold>affidavits tracking statute not fatally defective.</bold> In prosecution of chiropractor for illegal practice of medicine, affidavits were not fatally defective in charging willful and unlawful attempt to diagnose alleged illness of named person, where this language in affidavit was followed by language which substantially described offense in terms equivalent to terms of statute. Secs. 2332, 8888, Code 1942. <bold>5. Physicians and surgeons — chiropractor — illegally practicing</bold> <bold>medicine — injecting vitamins or penicillin by use of</bold> <bold>hypodermic needle for relief of ailment or disease.</bold> If chiropractor, for compensation, injected into body of patients by use of hypodermic needle vitamins or penicillin for relief, cure, or palliation of ailment or disease of the body, he would be guilty of illegally practicing medicine without license in violation of statute, even though use of hypodermic needle itself would not constitute illegal practice of medicine. Secs. 2332, 8888, Code of 1942. <bold>6. Physicians and surgeons — illegal practice of medicine —</bold> <bold>statutes — words "or other agency".</bold> The words "or other agency" in statute prohibiting the suggesting, recommending, prescribing, or directing for use of patient of a drug, medicine, relief or palliation of ailment or disease, would, under circumstances of appeal, be construed to mean other agency akin to or of like character with a drug or medicine. <bold>7. Criminal law — chiropractor — engaged in illegal practice of</bold> <bold>medicine — prescribing and administering vitamins to correct</bold> <bold>disorder or ailment in human body.</bold> Chiropractor, who administered vitamin injections to pregnant woman threatening to abort or miscarry, and suffering deficiency, thereby prescribed and administered vitamins as agency akin to medicine to correct disorder or ailment in human body which interfered with normal growth and was likely to produce disease, and engaged in illegal practice of medicine, within statute. Secs. 2332, 8888, Code 1942.<page_number>Page 757</page_number> <bold>8. Physicians and surgeons — illegal practice of medicine —</bold> <bold>statutes — word "medicine".</bold> The word "medicine", within statute regulating and requiring license to practice medicine, means, in its ordinary sense, something which is administered, either internally or externally, in treatment of disease or relief of sickness. Secs. 2332, 8888, Code 1942. <bold>9. Physicians and surgeons — illegal practice of medicine —</bold> <bold>statutes — substance akin in character to medicine as remedial</bold> <bold>agent.</bold> Fact that substance employed as remedial agent may have value as food, and tendency to build up and restore wasted or diseased tissue, will not deprive it of its character as medicine, if it is administered and employed for that purpose, within statute regulating and requiring license to practice medicine. Secs. 2332, 8888, Code 1942. <bold>10. Physicians and surgeons — illegal practice of medicine —</bold> <bold>statutes — substance akin in character to medicine as remedial</bold> <bold>agent.</bold> A substance which is administered for purpose of restoring vitamin deficiency and which has effect of restoring wasted tissues is remedial agent, and one for prevention of disease, and therefore one akin in character to medicine, and one within statutory definition of practicing medicine. Secs. 2332, 8888, Code 1942. <bold>11. Constitutional law — practice of medicine — statute</bold> <bold>regulating and requiring license — constitutional as applied</bold> <bold>to chiropractor — factual situation.</bold> Statute regulating and requiring license to practice medicine is constitutional, as applied, under circumstances, to chiropractor who administered vitamins or penicillin intravenously. Secs. 2332, 8888, Code 1942. <bold>12. Physicians and surgeons — illegal practice of medicine —</bold> <bold>power of State to regulate.</bold> The power of the State in the exercise of its police power to regulate physicians and surgeons has long been recognized. Secs. 2332, 8888, Code 1942. Headnotes as approved by Holmes, J.

<bold>1. Tax sales — statutes — failure to advertise — error in</bold> <bold>advertisement — not to invalidate sale made at proper time for</bold> <bold>taxes due and not paid.</bold> Under applicable statute, neither a failure to advertise, nor error in the advertisement will invalidate a sale made at proper time and place for taxes of any land on which taxes were due and not paid. Sec. 9923, Code 1942. <bold>2. Tax sales — statutes — redemption — notice to owner — failure</bold> <bold>of Chancery Clerk to give notice — not to affect or render</bold> <bold>title void.</bold> Chancery Clerk, under applicable statute is required to give notice to owner of land sold for taxes that title will become absolute in purchaser, unless redeemed by certain date, but a failure to give such notice does not affect or render the title void. Secs. 9744, 9941, 9942, Code 1942. <bold>3. Tax deeds — prima facie evidence — burden of proof.</bold> A tax collector's deed is prima facie evidence that all things essential to the collector's power to sell the land conveyed existed at the time of the sale, and upon the party impeaching<page_number>Page 785</page_number> the sale rests the burden of overthrowing this presumption. <bold>4. Adverse possession — void tax deed as color of title.</bold> Even if tax deed was defective or void, it operated as color of title and was sufficient basis on which adverse possession could ripen into title. <bold>5. Confirmation of title — defendants' title established —</bold> <bold>adverse possession — tax sale — tax deed — valid.</bold> In suit to cancel tax sale, and tax deed pursuant thereto as void for reason that sale was not advertised and complainant was not given notice as to redemption, and wherein complainant sought confirmation of title, and defendants filed cross-bill for confirmation of title to the land and minerals claiming under tax sale and by adverse possession, in view of complainant's admissions in his pleadings, evidence established defendants' title by adverse possession, and Chancellor's finding upholding validity of tax sale and confirming title in defendants and cross-complainants to their respective interests in land was proper under the evidence. Headnotes as approved by Lee. J. <center> ON MOTION TO REQUIRE RECORDS BE FILED ON APPEAL</center> September 24, 1956 89 So.2d 596 <bold>6. Appeal — moton to require original records sent up to Supreme</bold> <bold>Court for use on appeal — overruled.</bold> Where motion to require certain original records in offices of chancery clerk and sheriff of county sent up to Supreme Court for use on appeal did not state that such records had been introduced in evidence on trial of cause below or, if so, why it was necessary that the originals, instead of copies, be be sent up to Supreme Court, such motion would be overruled. Headnote as approved by Roberds, P.J.

<bold>1. Schools and school districts — trustees of municipal separate</bold> <bold>school district not agents for city in construction of school</bold> <bold>buildings — city not liable in damages allegedly resulting</bold> <bold>from their construction.</bold> Facts that trustees of municipal separate school districts were appointed by governing authority of city and city imposed and collected taxes of the district did not constitute the trustees agents for the city in erection and construction of school buildings, and did not render city liable for damages allegedly resulting from construction of school buildings. Secs. 201-205, 213-B, Constitution 1890; Secs. 6328-24, 6378, 6416, 6422, 6423(2, 13), Code 1942. <bold>2. Schools and school districts — municipal separate school</bold> <bold>district — separate legal entity from municipality.</bold> Generally, a school district, school board, or other local school organization is a separate legal entity, and is entirely separate and distinct from a city or town as well as from a township, borough, or county, which includes or is included in its territory, whether or not the two are coterminous, and even though they have some officers in common or an officer of one is an ex officio officer of the other.<page_number>Page 816</page_number> <bold>3. Schools and school districts — municipal separate school</bold> <bold>districts — trustees — agents of State in construction of</bold> <bold>school buildings and in preparation of school grounds — city</bold> <bold>not liable in damages allegedly resulting from such</bold> <bold>activities.</bold> Trustees of municipal separate school districts were agents of State and not of city, and in the construction of elementary and junior high schools and in preparation of school grounds, trustees were exercising the powers conferred on them by the Constitution and the Legislature and therefore they were not agents of the city, and city was not liable for damages to complainant landowners for damage to their land allegedly caused by construction of school and preparation of the school grounds. Headnotes as approved by Roberds, P.J.

<bold>1. Taxation — assessments — wholly erroneous reference to deed</bold> <bold>book and page contained in description under which land was</bold> <bold>assessed — sold to State and conveyed by State under forfeited</bold> <bold>tax land patent — as not furnishing clue.</bold> Wholly erroneous reference deed book and page contained in description under which land was assessed for taxes, sold to State for unpaid taxes, and conveyed by State by forfeited tax land patent was of no assistance whatsoever in determining what land was intended to be assessed, sold and conveyed.<page_number>Page 881</page_number> <bold>2. Taxation — same — same — erroneous description — assessments</bold> <bold>— sale — forfeited tax land patent — invalid.</bold> Where such land was otherwise described merely as a house and lot, 147 by 295 feet, on north side of railroad, in specified section, township and range, such tax sale and patent were invalid for insufficiency of description. <bold>3. Taxation — assessments — description — in order to be valid.</bold> A tax assessment in order to be valid must contain a description of the property assessed sufficient on its face or point to where such information may be obtained. <bold>4. Frauds, Statute of — contract for sale of lands signed by</bold> <bold>owner's brother — invalid without authorization in writing.</bold> Written contract for sale of land, signed by owner's brother as purported vendor, without authorization in writing to represent owner in the making of such contract, was unenforceable against owner under Statute of Frauds. Sec. 264, Code 1942. <bold>5. Principal and agent — contract for sale of lands signed by</bold> <bold>owner's brother — evidence failed to establish brother's</bold> <bold>lawful authority to make such contract.</bold> In suit to confirm title to land as against would-be purchaser under written contract for sale of such land signed by owner's brother as vendor, evidence established that brother had no lawful authority to make a contract for sale of such land binding upon owner, though brother had previously obtained offers for purchase of other lands belonging to owner, where offers previously obtained had been approved by owner and she had executed deeds conveying such lands pursuant to her acceptance of such offers. Sec. 264, Code 1942. Headnotes as approved by Hall, J.

<bold>1. Municipalities — zoning ordinance — defects and</bold> <bold>irregularities in mode of enactment — waiver — estoppel —</bold> <bold>laches — as precluding relief against.</bold> Notwithstanding defects and irregularities in the mode of enactment of a zoning ordinance, waiver, estoppel or laches may operate under certain circumstances to preclude relief against zoning ordinances or regulation. <bold>2. Municipalities — zoning ordinance — defects and</bold> <bold>irregularities in mode of enactment — ordinance upheld in</bold> <bold>action by city to enjoin defendants from operating commercial</bold> <bold>business in residential district.</bold> Although statutory procedure had not been followed in adopting zoning ordinance, where ordinance had been amended 32 times since adopted in 1940, population of city had more than doubled, 7,100 permits which reflected millions of dollars in expenditures had been issued under ordinance and amendments and defendants had obtained permits and licenses under ordinance, the ordinance would be upheld in action by city to enjoin defendants from operation of commercial business in residential district. Secs. 3592, 3593, Code 1942. Headnotes as approved by Arrington, J.