author: LOONEY, J.'

text:
    PEARCE et al. v. ATLANTIC LIFE INS. CO.
    No. 10965.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 28, 1931.
    Verne D. Adamson, of Marshall, for appellants.
    Leake, Henry, Wozencraft & Frank, of Dallas, for appellee.
   LOONEY, J.'

Gertrude M. Pearce, owner of a parcel of land in the city of Dallas, sued the Atlantic Life Insurance Company, appellee, and others, seeking to have canceled a trust deed claimed by defendants on the land, and its removal as a cloud on her title; to enjoin-a sale of the land under the trust deed advertised to take place September 2, 1930; to' prohibit defendants from asserting claim to' the land adverse to plaintiff; and to enjoin; them from collecting or attempting to collect rents fr.om tenants occupying the premises.

The court granted the temporary writ, and set the matter' for further hearing on September 12, 1930. On motion, the court dissolved the temporary writ, thereafter the property was readvertised, and sold by the trustee November 4, 1930, appellee becoming purchaser. In a cross-bill, appellee asserted title to the land acquired at the trustee’s sale, alleged that appellant and her attorneys, Whitehead and Adamson, were wrongfully interfering with its right to collect rents from tenants occupying the premises, by notifying them not to pay to appellee, and demanding that payments be made to her or her attorneys, thus preventing payments to appellee, and confusing tenants as to the ownership of the premises and the proper person to whom payments should be made; that unless appellants' were restrained, tenants would either pay rents to appellant of her attorneys, or else would fail to pay anyone; therefore, in order to prevent loss of rents altogether, appellee prayed for the issuance of a temporary writ, enjoining appellant and her said attorneys from in any 'manner interfering with its control of the property in collecting rents, and on final hearing that the temporary writ be made permanent, etc. The court granted the writ in accordance with the prayer.

In answer tó the cross-bill, appellant tendered the same issues as in her original petition, on which she sought injunctive relief, and by appropriate allegations also attacked the validity of the trustee’s sale under which appellee became purchaser of the land: and moved to dissolve the temporary writ granted on the cross-bill. The attorneys disclaimed any interest in the subject-matter of litigation, and joined in the motion of Mrs. Pearce for dissolution.

The motions to dissolve were heard on verified bill and answer, and overruled January loj 1931, from which this appeal was taken.

Appellants’ propositions, reduced, are these: That the court erred in refusing to dissolve the temporary writ, because their verified answer denied all material allegations of the bill; because appellee failed to show that appellant was insolvent and unable to respond in damages, or that its remedy at law was otherwise inadequate; and, further, that the temporary writ was in legal effect a mandatory injunction that compelled appellant to surrender possession of the property to appellee.

It is obvious that, in acting upon the motions to dissolve the two writs issued, the court passed upon the material issues twice; that is, on hearing the motion to dissolve the temporary writ issued in favor of appellant, and again on hearing her motion to dissolve the temporary writ issued at the instance of appellee. On the latter hearing, the court could consider as a fact auxiliary to the allegations of the bill, its former adjudication, in which the writ first issued was dissolved, and was authorized to find tentatively (it could not be other than tentative, as the case remains to be tried on its merits) that appel-lee was owner of the property in question. On this idea, appellee was entitled to collect rents from tenants occupying the premises.

The court’s finding brought the case under the provisions of subdivision 1 of article 4642, R. S., that authorize the issuance of an injunction where the applicant is entitled to the relief sought, and such relief, or any part thereof, requires the restraint of some prejudicial act. The right to an injunction under these circumstances is statutory, hence a showing that there existed no adequate remedy at law was not required. In the case of Republic Insurance Co. v. O’Donnell Motor Co., 289 S. W. 1064, 1066, this court had occasion to examine this subject and disposed of same with full citation of authorities using the following language: “Our statute has enlarged the rule at equity. Article 4642 (4643) (2989), Rev. St. 1925, subd. 1, provides that an injunction may be granted ‘where "the applicant is entitled to the relief demanded and such relief or any part thereof requires .the restraint of some act prejudicial to him.’ The authority to grant the writ in cases within the meaning of the quoted provision of the statute does not depend in any sense on a showing that there exists no adequate remedy at law. If a case comes within the meaning of the statute, the right to the writ is clear without such showing. * * *” We ■therefore overrule the contention that appel-lee was required, as a condition precedent to injunctive relief, to show that it was without adequate remedy at law.

But if our classification of the case is erroneous, that is, if it properly belongs to the general group provided for in subdivision 3 of article 4642, wherein provision is made for the issuance of injunctions in eases where the applicant shows himself entitled to relief under the principles of equity, yet, in all such cases, the courts have held that, notwithstanding a verified answer may unequivocally deny all material allegations of the bill, the granting or refusing to grant, dissolving or refusing to dissolve, temporary injunctions, are questions calling for the exercise of sound discretion on the part of trial courts, and before their action will be disturbed on appeal, abuse of such discretion must be shown; and, further, where it appears that a continuance of the temporary writ cannot 'prejudice or imperil the rights of the adverse party, but that its dissolution may seriously imperil the rights of the complaining party, a motion to dissolve should be denied. Hart v. Mills, 38 Tex. 518; Friedlander v. Ehrenworth, 58 Tex. 353, 355; Lone Star, etc., Co. v. Cole (Tex. Civ. App.) 131 S. W. 1180, 1183; Porter v. Johnson (Tex. Civ. App.) 140 S. W. 469, 471; Harris v. Thomas (Tex. Civ. App.) 217 S. W. 1068; Phoebus v. Connellee (Tex. Civ. App.) 223 S. W. 1019; City of Dallas v. Fry (Tex. Civ. App.) 263 S. W. 653, 654.

We are not unmindful, however, of the general rule urged by appellants that forbids the use of a mandatory injunction to dispossess one and place a rival claimant of land in possession, but this rule yields, if the exigency is sufficient. In Hudspeth v. Gugenheim (Tex. Civ. App.) 278 S. W. 952, 953, the court used language in point, as follows: “The general rule in this state is that a mandatory injunction -is not available for the purpose of dispossessing one who is in peaceable possession of land, pending an adjudication of the relative equities of those claiming the right of possession. But the rule is not so inflexible as to exclude all .exceptions, for it has been relaxed so as to permit such injunctions in extreme cases of pressing necessity, and where the complaining party shows himself entitled to the interference of a court of equity and is without adequate and practical remedy at law. Sumner v. Crawford, 91 Tex. 131, 41 S. W. 994.”

However, the gravamen of the complaint in the case at har is that the conduct of appellant prevents appellee from collecting current rents, and has produced such a situation as will result in tenants paying no one; hence the issuance of a temporary writ restraining appellants in the respects sought was necessary to prevent irremediable loss of rents to the party who may, on final trial, be adjudged entitled thereto. It is true, the temporary writ will, for the time being, shift possession and control of the premises from one to the other party, but this is an incident; a means to an end, and does not exhaust the purpose for which the injunction was sought.

The trial court was justified in concluding that, if appellee should prevail on final trial, nevertheless it would suffer loss in the meantime from the confusing and disagreeable situation produced by the rivalry of the parties in their efforts to collect rents, unless the injunction is continued, and further that th^ continuance of the injunction will not be prejudicial to appellant, in the event she wins the suit, because of the protection afforded by the injunction bond.

For reasons stated, we are of opinion that the court did not abuse its discretion in refusing to dissolve the temporary writ; hence its judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: SMITH, J.

license: Public Domain

text:
    AMERICAN LIFE INS. CO. v. MOYNAHAN et al.
    No. 8551.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 18, 1931.
    Rehearing Denied March 18, 1931.
    Eskridge & Groce, of San Antonio, for appellant.
    Boyle, Wheeler, Gresham & Terrell, of San Antonio, for appellees.
   SMITH, J.

This is an action to cancel an insurance policy issued by the American Life Insurance Company upon the life of Doc Nixon, whose death occurred within less than one year from the issuance of the policy. The insurance company brought the suit to cancel the policy upon the ground that the insured committed suicide, in which contingency there could be no recovery, as stipulated in the policy. The beneficiaries reconvened, and, upon a jury finding that the insured did not commit suicide, recovered judgment for the amount of the policy, with interest, penalty, and attorneys’ fees. The company appealed.

The controlling contention of appellant is that the evidence showed as a matter of fact that the insured’s death was intentionally caused by his own act; that he committed suicide by shooting himself with a pistol.

•At the time of his death insured was about 60 years old. He was survived by a brother and a grown son and daughter; his wife having died about five years prior to his death. In former years he had prospered moderately, but in later life had lost his property, after which he lived irregularly, spending some of thé time with his daughter, some of it with his son, and much of the last few years with a couple named Winters, who were not related to him. Apparently, he was always welcomed at the home of each of those mentioned, was respected generally, and had many friends. The evidence tended to show that he was of a cheerful jovial disposition up to the time of his death. His dead body was found lying on the ground under a tree near the highway, about a half mile north of the town .of Devine, at about 6 o’clock on a Thursday morning. He was last seen alive by any witness in the case at the preceding midnight, at the roadside about a half mile south of the town of Somerset, twenty miles north of where his body was found next morning. His movements in the meantime, how he got from Somerset to the place his body was found, are matters of the purest conjecture. That he walked the whole way from the one place to the other is wholly improbable. Prior to midnight he had gone into a roadside resort hear Somerset, bought and drank a Coca-Cola, paid for it out of a purse in which he had, and exposed to others, an undetermined sum of money, probably a very small sum. The owner of the roadhouse, one Spencer, and his wife were then preparing to close the place of business for the night, and, according to their testimony, the insured asked them to take him in their car to Somerset, to which they assented. They drove him to' a point indicated by him, which was near the home of George Winters, where he often spent the nights, and let him out by the roadside. He paid them 50 cents, which he took from his purse, which he opened in the car dash light, disclosing one or two bills and some change in the purse. The Spencers then turned their car around and drove away, leaving him by the roadside. He was seen no more alive. This was just before midnight. His dead body was found about five or six hours later, at a point near Devine, twenty miles away.

Parties in that vicinity saw a car parked by the roadside near where the body was found at about 4:30 that morning. Shortly after it was noticed there, this car moved on down the highway and disappeared, and no explanation of the incident appears in the record. When the body was found, the dead man’s purse and its contents, which he had when l&st seen alive, were missing and were never found.

i’The record is confusing concerning the dis-eo^éfy 9f the bqdy. It is not clear as to just who first saw1 it and approached it. The evidence is likewisefbqnfusing as to tracks lead-: ing to and from the body. One or two witnesses seem to have testified that the tracks of only one person led to the body, and that these tracks, made in soft sand, fitted the measurements of the deceased’s shoes. Other testimony had the effect of contradicting that evidence sufficiently, at least, to render it inconclusive.

When the coroner reached the body, it lay stretched full length on its back, the left arm, bent at the elbow, pressed the deceased’s hat to his side, with the hand resting on the body. The right arm lay, extended, upon the ground, the hand resting a few inches from a small, 22-caliber, pistol, identified as having belonged to the deceased. The only two shells in the pistol had been exploded, one of them apparently some time before, the other, resting under the hammer, but recently. A small bullet wound, surrounded by evidence of powder burns, was disclosed in the left breast, from which there had been a very slight flow of blood. No autopsy was had upon the body, nor was any search made for other wounds than that made by the pistol bullet, and no inference may be drawn from the evidence that other wounds were or were not on the body. There was no evidence of any struggle between the deceased and others, or of any writhings or paroxysms of the deceased. His body lay, simply, at full length in a composed and natural position. Grass burrs were clinging to the bottoms of his trouser legs, which were damp, as if from the dew, raising an inference that he had walked alongside or away from the paved highway at some time during the night.

We believe we have fairly set out the material evidence of the physical facts disclosed in the record. Undoubtedly the jury could have easily found it to-be a case of intentional self-destruction, some witnesses having testified to facts which, if found to be true; supplied motive and purpose. On the other hand, however, the theory of robbery and murder, and a cunning disposal of the body to conceal that theory, is supported by sufficient circumstantial evidence — it is a case purely of circumstantial evidence, of course — to warrant the jury in rejecting a finding of suicide. It is a travesty upon a wholesome respect for law and regard for human life and property, that the latter theory is rendered reasonable and plausible in these troublous times when murder and robbery and related crimes have become so common that no person’s life or person or property is surely safe in any lonely place, or anywhere else, for that matter,

The decedent had the Spencers drop him by the roadside, at a byroad leading to the nearby home of George Winters, where he usually spent his nights when in that vicinity. The jury could very reasonably have inferred that it was his intention to spend the night .with the Winters as usual. The-Winters, however, hacl other company that night, leaving no room for the decedent. If he approached the house, discovered the situation, and then started afoot down the highway towards his daughter’s home at Devine to spend the night-with her, is not shown, but such may be inferred. If he was taken aboard a passing car, at his own request or otherwise, and carried on towards his daughter’s home, is not shown,.but it is likewise infera-ble. If he did board another car, it is impossible to conjecture satisfactorily what happened to him. It is easily conceivable, from similar incidents daily reported in the newspapers of the land, that, traveling with strangers, he was assaulted, robbed, shot with his own pistol, and deposited in a carefully planned attitude by the roadside where his body was later found. It is by no means impossible to conjecture that he was stunned, or forcibly pinioned, by his companions, who, finding so little money on his person that they pressed his own pistol to his breast and shot him in resentment of the poor returns from their exploit, and, being done with him, carefully deposited him by the roadside. It is a matter of common knowledge, gained from almost daily reports of like incidents in the newspapers of the times, that bandits often become so incensed at the poverty of their victims that they often insult, sometimes beat, and in some instances kill them in resentment. But, aside from these unnecessary observations, the circumstances of this case warranted the jury in rejecting the suicide theory in favor of the theory that the decedent was robbed and slain by others, who placed him in the position in which he was found, and then drove on their murderous way. This theory is greatly strengthened, first, by the fact that in the short time av¿ilable he could not have walked all or a very substantial part of the way to his doom, but must have been driven all or part of the way by passing motorists, presumably not by friendly acquaintances ; second, by the presence of the mysterious car between 4 and 5 o’clock in the morning at the point where his dead body was found, with its pockets rifled, an hour or two later; and, third, by the implied jury finding, upon sufficient evidence, that the decedent had no motive for, or intention of, suicide.

Some witnesses testified that the decedent had been despondent for some time prior to his death, which they sought to attribute to his grief over his wife’s death five years befoi;e; that he had often expressed an intention to commit suicide, even with the very pistol found by his. dead body. This testimony was from the mouths of witnesses whose relations to the decedent were such, according to the evidence, as to create at least a trace of suspicion that they had a motive for bolstering the suicide theory. The effect of their testimony was contrary to the testimony of other witnesses. It was the peculiar province of the jury to resolve this conflict. The jury saw the witnesses, observed their conduct and manner on the stand, heard their testimony, weighed it in the balance with the testimony of other witnesses from the same stand. Obviously the jury were not impressed with the credibility of their testimony, and rejected it as being outweighed by the testimony of the other witnesses. In this the jury but exercised a prerogative inherently theirs, and this court nor the trial court may question their determination of the issue thus raised.

In short, appellant failed to show a motive or intention of suicide. We cannot say from a consideration of ail the evidence in the case that reasonable minds could not differ upon the issue of the cause of the insured’s death, and, the jury being in the best position to pass upon that issue, their finding thereon, being upheld by the trial judge, is conclusive upon this court.

The only other complaint urged by appellant is directed at the arguments of ap-pellees’ counsel to .the jury. This complaint does not in our opinion present reversible error. It appears that in his argument to the jury one of appellees’ counsel contended that the burden rested upon appellant to “prove” to the jury’s “satisfaction, according to a preponderance of the evidence,” that the decedent committed suicide; that, the ease being one purely of circumstantial evidence, it was the duty of appellant to make a complete chain of such evidence on the issue of suicide; that, if there was “one weak link, if there is one link missing in this chain,” the jury would not be justified in finding that the decedent committed suicide. Appellant urges reversal on account of this argument. We overrule the contention as being obviously without merit.

Appellant also complains- of certain strictures in the argument of appellees’ counsel upon the attitude assumed in the ease by the decedent’s son. We conclude that circumstances upon the trial, as disclosed in the record, warranted the speculation indulged in by counsel upon this subject, and overrule appellant’s objection thereto. No reversible error is presented concerning the remaining argument complained of.

The judgment is affirmed.


author: JONES, C. J.

text:
    AMERICAN EXCHANGE NAT. BANK v. JEFFRIES et ux.
    No. 10739.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 31, 1931.
    Rehearing Denied Feb. 21, 1931.
    Thompson, Knight, Baker & Harris and Goggans & Ritchie, all of Dallas, for appellant.
    Hare & Batsell and Webb & Webb, all of Sherman, for appellees.
   JONES, C. J.

Appellant, American Exchange National Bank of Dallas, trustee, as'assignee of the Eederal Mortgage Company, instituted this suit in a district court of Dallas county against appellees,' C. R. Jeffries and wife. Jewel Jeffries, to recover the balance due with interest and attorney fee on a note in the principal sum of $2,000, and to foreclose a deed of trust lien executed by appellees as security for such indebtedness. A judgment was rendered against appellees for the amount of indebtedness found to be due, with interest and attorney fee, but the right of foreclosure of the alleged deed of trust lien was denied. Appellant has duly perfected an appeal from that part of the judgment refusing the foreclosure of the lien. The following are the undisputed material facts:

Appellees are husband and wife and with •their two children on April 13,1925, moved on the property in question, -established a homestead thereon, and have continued to -live on such property as their homestead since said date. This property is located on Cherry street in Sherman, Tex. Appellees also owned another piece of resident property in Sherman, situated on Jones street, but never lived thereon and never in any way used such property as their homestead. On May 10, 1927, more than two years after the property was subjected to their homestead use, appel-lees executed the $2,000 note in question, which provided for its discharge by 120 monthly installments of $25.66 each, the first being due June 1, 1927, and one installment due on the first of each month thereafter until it should be discharged; the note had the usual provisions for attorney fee, and also provided that, if default should be made in the payment, or any part thereof, of a monthly installment, for a period of 20 days after its maturity, then, at the election of the holder of such note, the balance due thereon should become immediately payable. Default had been made in payment and the note declared due by appellant. On the same date of the note appellees executed a deed of trust on this property, in favor of Edward T. Moore, as trustee for the Eederal Mortgage Company, for the purpose -of creating a lien to secure the payment of-the note. The Federal Mortgage Company, on May 14, 1927, by written assignment, duly transferred’ -this note and lien to appellant for a consideration of $2,000 paid in cash. Contemporaneous with the execution of the deed -of trust, appellees duly made a written designation of their homestead and described in said designation the lot owned by them on Jones street; this designation was duly acknowledged by appel-lees and placed of record in tlie deed records of Grayson county, Tex.

Appellees made a duly verified written application to the Federal Mortgage Company for tlie loan of $2,000 to ho secured by deed of trust on the Cherry street property, in which application they fully described the property and the improvements thereon and represented that such property was leased to a tenant at $40 per month, and that no part of such property was their business or residence homestead, and that they did not intend to make such property a homestead, and further designated and described the Jones street property as their existing homestead. 'The deed of trust also contained a recitation, to the effect that no part of the Cherry street property, described therein, was the homestead of appellees, and also that their homestead was on the Jones street property. An outstanding vendor’s lien existed against the Jones street property, but the Cherry street property was free from any incumbrance at the time of the execution of the deed of trust. No part of the $2,000, borrowed from the Federal Mortgage Company, was used or intended to be used for any of the purposes for which the Constitution permits the family homestead to be encumbered with a lien.

The Jones street property, designated as a homestead in the deed of trust, was occupied by the father of appellee C. R. Jeffries, and no rent was charged him for the use of the premises. An inspector of the Federal Mortgage Company, before the loan was accepted, inspected the premises, knocked at the door ■of the Cherry street house, but received no response, and concluded that the occupants of the house were absent. He made no inquiry from neighbors or any one else as to who occupied the premises at such time, and did not visit the Jones street property or make any inquiry as to its occupancy. The Federal Mortgage Company relied exclusively upon the homestead designation and the statements, respectively, in the deed of trust and the application for the loan as to the home■stead rights of appellees, though the physical facts showed that appellees were residing on the Cherry street property at the time the loan was executed, and were not residing on ■the Jones street property, designated as their homestead. When appellant purchased the note and lion in question, within four days after its execution, it relied solely on said written representations as to the status of the property with reference to homestead use, and did not investigate to see what the physical facts in this respect would show. Appel-lee C. R. Jeffries did not testify in the case, though the judgment recites that he was present. Mrs. Jeffries testified by deposition.

Except for a question on the admission of evidence, the sole issue presented by this appeal is whether a husband and wife are es-topped, by their statements to the contrary, from pleading and proving a homestead exemption in the property sought to be incumbered with the lien, when the physical facts showed that, at the time the loan was negotiated and the contrary statements were made, and the lien attempted to be created, by the execution of the deed of trust on such property, the borrowers were living upon the property sought to be incumbered, and were not living upon the property which they represented to be, and designated as, their homestead.

Section 50, art. 16, of our Constitution declares that: “No mortgage, trust deed, or other lien on the homestead shall ever be valid,except for the purchase money therefor, or improvements made thereon, as hereinbefore provided, whether such mortgage, or trust deed, or other lien, shall have been created by the husband alone, or together with his wife; and all pretended sales of the homestead involving any condition of defeasance shall be void.”

The undisputed evidence is that, for more than two years prior to the execution of this deed of trust and at all times since its execution, appellees with their children have lived upon this property as a homestead. The undisputed evidence also shows that the property on Jones street, designated in the deed of trust as their homestead, was never lived upon by appellees and was never in fact their homestead. Under the plain mandatory terms of the Constitution, this pretended lien is void and never had any existence in fact.

The fact that the lien is void is not necessarily conclusive of appellant’s right under this appeal. Appellant contends that ap-pellees have estopped themselves; under the facts of this case, from pleading and proving that the property in question was actually their homestead at the time of the attempted creation of the lien. If this contention should be sustained, then appellant should have had a judgment of foreclosure. Estoppel by reason of these statements, both in favor of the lender and in favor of appellant, the lender’s assignee, is well pleaded by appellant in a supplemental petition in answer to appellee’s homestead plea. It has been frequently declared by our Supreme Court, that, where homestead property, attempted to be encumbered with a deed of trust lien for a purpose not permitted by the Constitution, is actually in use for homestead purposes at the time of the attempted incumbrance, neither the contrary declarations of the husband or wife, or both, can change its character and make the homestead subject to the attempted lien. Medlenka v. Downing, 59 Tex. 40; Texas Land & Loan Co. v. Blalock et al., 76 Tex. 85, 13 S. W. 12, 13; Bayless v. Guthrie et al. (Tex. Com. App.) 235 S. W. 843. Under these decisions, it was the duty of the Federal Mortgage Company, and also of appellant, to see if the representations of appellees, as to the location of their homestead, were in conformity to the physical facts. Chief Justice Stayton, in the case of Texas Land & Loan Co. v. Blalock, supra, declares: “The fact of actual possession and use, as the home of the family, was one against which the lender could not shut its eyes. * * * Every person dealing with land must take notice of an actual, open, and exclusive possession; and when this, concurring with interest in the possessor, makes it homestead, the lender stands charged with notice of that fact, it matters not what declarations to the contrary the borrower may make.” As appellees were living on this property at the time the pretended lien was executed, and were in the exclusive possession of same, both the Federal Mortgage Company, as the original lender, and appellant, as such lender’s assignee, were charged by law with notice of the fact that •this property was in use by appellees as homestead property, and that the pretended lien is void because forbidden by the Constitution.

Appellant being charged with law of the physical fact of the occupancy of the property in question by appellees, at the time the lien it seeks to enforce was created, and at the time it took the assignment of the debt and lease from the Federal Mortgage Company, cannot rely on the untrue representations made by appellees in the deed of trust and in the homestead designation, so as to create against appellees an estoppel to prove the actual facts in respect to their homestead. This principle is clearly announced in Texas Land & Loan Co. v. Blalock, supra, in the following language:

“The constitution forbidding the fixing on the homestead of liens other than such as are thereby expressly permitted, no estoppel can arise in favor of a lender, who has attempted to secure a lien on homestead in actual use and possession of the family, based on declarations of the husband and wife, made orally or in writing, contrary to the fact. To hold otherwise would practically abrogate the constitution.”

The facts in the instant ease to support an estoppel are no more cogent than the facts in the reported case, from which quotations have been made; in fact, the learned Chief Justice states in such opinion that: “There is no doubt that the application for the loan, and the recitals and declarations in the trust-deed, that the property was not homestead, went as far as words could go to assure the lender that it might safely lend its money without fear that lien would be defeated by the existence of homestead rights. * * * ”

The case of Texas Land & Loan Co. v. Bla-lock, supra, has never been overruled, but has often been adhered to, and it announces the

law in this state on the questions here under review. Some of the cases citing it with approval on this question are: Lybrand v. Fuller, 30 Tex. Civ. App. 116, 69 S. W. 1005, 1008; Building, etc., Ass’n v. Guillemet, 15 Tex. Civ. App. 649, 40 S. W. 225, 227; Haswell v. Forbes, 8 Tex. Civ. App. 82, 27 S. W. 566, 568; Moerlein v. Scottish, etc., Investment Co., 9 Tex. Civ. App. 415, 29 S. W. 162, 165, 948; Western Mortgage, etc., Co. v. Burford (C. C.) 67 F. 860, 868; McGaughey v. American Nat. Bank, 41 Tex. Civ. App. 191, 92 S. W. 1003, 1009; Delaney v. Walker, 34 Tex. Civ. App. 617, 79 S. W. 601, 602; Hawes v. Parrish, 16 Tex. Civ. App. 497, 41 S. W. 132, 134; Freeman v. Hamblin, 1 Tex. Civ. App. 157, 21 S. W. 1019, 1020; Parrish v. Hawes, 95 Tex. 191, 66 S. W. 209; Bayless v. Guthrie (Tex. Com. App.) 235 S. W. 843; Hines v. Nelson (Tex. Civ. App.) 24 S. W. 541.

Appellant cites as authority on this question a number of cases in which there was an absolute deed of conveyance of the homestead placed of record, which deed of conveyance created a vendor’s lien against the property conveyed and in which cases it is held that the grantors were estopped to plead that such conveyance, though in form a deed, was in fact only a mortgage to secure the money represented by the vendor’s lien. In these cases it is held that although there was a secret agreement between the grantors and grantee that the conveyance of grantors’ homestead was made only to secure borrowed money and that the conveyance was, in effect, only a mortgage, nevertheless the grantors were es-topped to plead such secret agreement as against an owner of the vendor’s lien, without notice of such secret agreement, and that the mere fact that the grantors remained in possession after the conveyance was not notice to such innocent holder that the deed was otherwise than it purported to be. The distinction between such a case and the case at bar is that the sale of the homestead is not forbidden by law, and the fact that the grantors remained in possession of the premises after such sale is not inconsistent with the fact that the grantee in such sale is, as he is shown to be by the record, the' actual owner of the land; while in the instant case, the possession and residence of the parties on the property at the time of the execution of the deed of trust is inconsistent with the fact that the property is not their actual homestead. Again appealing to the case of Texas Land & Loan Go. v. Blalock, supra, Judge Stayton disposes of this question in the following language:

“It has been held that one remaining in possession of land, after having executed and permitted to be placed on record an absolute conveyance, could not rely upon his possession as notice of a secret agreement that the absolute conveyance, as between the parties to it, was only intended as a mortgage, and tiras defeat the right of a subsequent innocent purchaser. That, however, is not this case. Here nothing was hidden. Possession was open, certain, and in character in no respect ambiguous. It was such as gave homestead right, and the lender cannot he heard to say that it did not know it. * * * If property be homestead in fact and law, lenders must understand that liens cannot be fixed upon it, and that declarations of husband and wife to the contrary, however made, must not be relied upon. They must further understand that no designation of homestead, contrary to the fact, will enable parties to evade the law, and incumber homesteads with liens forbidden by the constitution. Mortgage Co. v. Norton, 71 Tex. 683, 10 S. W. 301; Pellat v. Decker, 72 Tex. 581, 10 S. W. 696; Kempner v. Comer, 73 Tex. 203, 11 S. W. 194.”

We therefore hold that the attempted lien on appellees’ homestead is void, and that, under the facts of this case, appellees are not estopped to plead and prove that the property in question was their homestead.'

Appellant raises a question as to the admission of evidence over its objection. Mrs. Jeffries was permitted to say by deposition, in response to an interrogatory by her attorney, that she claimed the Cherry street property as her homestead; and in response to another interrogatory, that she had claimed the property as her homestead since' the family had moved there in 1925. To each of these interrogatories, as shown by a bill of exception reserved to each, appellant timely interposed the objection that “said interrogatory called for a conclusion on the part of the witness.” The objection, in each instance, was overruled and the witness permitted to answer; The interrogatory was not subject to the objection made, that it called for a conclusion of the witness, because each interrogatory called for the statement of a fact. If the interrogatory had been as to whether the property was her homestead, then it might have been subject to such objection. In its assignment of error and its proposition under such assignment, appellant does not state the objection made in its two bills of exceptions, but impliedly states that the objection was that a married woman is not competent to testify over objections of adverse party, in a suit against her and her husband affecting property claimed to be homestead property, as to what property is claimed by her as her homestead. No such objection was urged and, of course, cannot be considered on this appeal. The assignment of error in respect to the admission of this evidence is overruled.

Finding no reversible error, we are of opinion that the judgment of the trial court must be affirmed.

Affirmed.


text:
    SUN LUMBER CO. v. HUTTIG SASH & DOOR CO.
    No. 10744.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 28, 1931.

      J. L. Zumwalt, of Dallas, for appellant.
    Fred J. Dudley and Wm. Madden Hill, both of Dallas, for appellee.
   JONES, C. J.

Appellant, Sun Lumber Company, a corporation, has appealed from an adverse judgment rendered by default. Appellee, Huttig Sash & Door Company, a corporation, instituted suit against appellant in a county court at law of Dallas county, to recover the sum of $285.96, as shown by a verified open account occasioned by the sale and delivery by appel-lee to appellant of “goods, wares and merchandise.” Appellee’s place of business is in the city of Dallas, and appellant’s place of business is in the town of Lindale, Smith county, Tex. Appellant was duly served with citation to appear and answer such suit at the term of the court beginning September 2, 1929. On September 3,1929, no answer to the suit appeared on file among the papers, and appellee caused judgment to be entered in its favor by default, for the sum of $285.96 with interest.

At noon August 31,1929, appellant’s general manager placed in the United States mails, in the post office on a railway train, a properly drawn plea of privilege. He had placed the required postage on the envelope inclosing such plea, also a special delivery stamp, and properly addressed same to the county clerk of Dallas county. At the same time, in an-' swer to a citation in a suit filed in a justice court in the Oak Cliff justice precinct of Dallas county, the manager placed in the same mail a plea of privilege properly addressed and stamped for special delivery to the justice of the peace of such precinct. The usual course for letters thus mailed is to reach Dallas within three hours after mailing on the train. September 2d was Labor Day, and the county clerk’s office in Dallas county was attended to only by a deputy, whose duties did not require him to open the official mail of the county clerk or to make any disposition of it. Those who were charged with this duty were observing Labor Day as a holiday.

The letter addressed to the justice of the peace, whose office is a greater distance from the post office in the city of Dallas than the county clerk’s office, was received on September 2, 1929, and duly filed on such day. The letter to the county clerk, inclosing the plea of privilege, was delivered by someone in the county clerk’s office to the deputy, who attended this county court at law on the morning of September 3d, and the date and hour of delivery was indorsed by him on the plea of privilege, and further indorsed as filed of that date. Previous to said deputy’s receipt of-the plea of privilege from the county clerk’s office, the judgment of default had been entered in the county court at law. Appellant did not inclose with the plea of privilege any answer to the merits of the case.

Appellant received no notice of the action of the court in entering judgment by default until it was notified by an officer of Smith county that an execution on the judgment had been issued out of the county court at law of Dallas county. Appellant’s general manager then came to Dallas and employed a lawyer to represent it, and on October 3, 1929, filed a duly verified motion for a new trial in the cause, alleging the fabts substantially as given above.

In its motion for a new trial, appellant alleged that the plea of privilege was placed in the hands of the county clerk of Dallas county on September 2, 1929, and that in law it was filed on said date. It further requested the court to require the clerk to place the proper file mark of September 2, 1929, on the plea of privilege.

Appellee filed an answer to this motion, in which is challenged the sufficiency of the motion on the ground that it did not allege that the plea of privilege was in proper form, and further on the ground that it did not allege that appellant had a valid defense to the suit, and entered a general denial. The answer was not verified. The court heard evidence on the issues made by these pleadings and entered an order overruling the motion for a new trial, and also a denial of the request that the clerk change the file mark on the plea of privilege.

We do not believe that there is any controverted issue of fact, and the judgment of the trial court, in overruling the motion for a new trial, necessarily is based on the legal effect of this undisputed evidence. While it is not directly testified to by any witness that the plea of privilege was received by the county clerk on September 2, 1929, the evidence is of such a conclusive nature in this respect that no other conclusion can be drawn; hence we conclude that the undisputed evidence shows that the plea of privilege was placed in the hands of a duly qualified deputy of the county clerk of Dallas county on September 2,1929.

An instrument is deemed in law filed at the time it is placed in the hands of the officer authorized by law to file same and left in his keeping, regardless of whether a file mark is placed on such instrument or not, and regardless of whether the file mark gives some other date of filing. Beal v. Alexander, 6 Tex. 541; Holman v. Chevaillier, 14 Tex. 339; Snider v. Methvin, 60 Tex. 487 — 494; Lessing v. Gilbert, 8 Tex. Civ. App. 174, 27 S. W. 751, 752; Pendleton v. Shaw, 18 Tex. Civ. App. 439, 44 S. W. 1002, 1010. One who has placed' a paper for filing with the clerk of a court is not prejudiced in his rights because of the omission of the clerk to indorse the proper date of filing thereon. Holman v. Chevaillier, supra; Johnson v. Smith, 14 Tex. 413; Turner v. State, 41 Tex. 552; Pennsylvania Fire Insurance Co. v. Wagley (Tex. Civ. App.) 36 S. W. 997, 998. The court should have construed the legal effect of the evidence to be that the plea of privilege was actually filed on September 2, 1929, and should have, required the clerk to place such file mark on the instrument in lieu of the erroneous one placed thereon.

The plea of privilege being in law filed on the day preceding the day of default, the court had no power to enter any character of judgment or order against appellant, but should have given appellee five days within which to file a controverting affidavit, set same for a hearing when such affidavit was filed, and then cause notice to issue to appel-lee of such date. Craig v. Pittman & Harrison Co. (Tex. Civ. App.) 234 S. W. 1112. When a defendant in a suit files a plea of privilege, he is not required to take further notice of the suit until he is served with notice of the day on which the issues made by the plea and the c&ntroverting affidavit will be heard. Appellant therefore was not guilty of laches in not making inquiry as to whether or not a judgment had been taken against it.

It is urged by appellee that appellant is not entitled to the relief sought, because it did not allege in its motion for a new trial that it had a valid defense to appellee’s cause of action. Ordinarily this contention would have to be sustained, for it states the general rule in respect to motions for a new trial where a judgment by default has been rendered ; but in the instant case we think such general rule does not apply. The court had no power to enter the judgment after the plea of privilege was filed. The case first to be tried under appellant’s plea of privilege was not the merits of the cause of action, but the issue made by the plea of privilege and the controverting affidavit to be filed- by appellee. The plea shows on its face that appellant is entitled' to the relief thus sought, and shows meritorious grounds on the venue issue thus raised, the only issue the court was empowered to try when the default judgment was entered. If appellant’s plea of privilege is good, it has the right to have a trial of every phase of the merits of the case in the county of its residence. This contention is overruled.

We are therefore of opinion that the court erred in refusing to grant appellant’s motion for a new trial, so that it could have a trial of its plea of privilege, seasonably filed, and the right to which it has been deprived, without its fault. The ease must be reversed and here rendered for appellant, setting -aside the default judgment and remanding- the case, for a trial on the issues of venue made by the plea of privilege, and it is so ordered.

Reversed and rendered.


author: SELLERS, J.

text:
    TAYLOR v. DUNCAN.
    No. 3977.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 19, 1931.
    E. Newt Spivey, of Texarkana, for appellant.
    Rodgers & Rodgers, of Texarkana, for ap-pellee.
   SELLERS, J.

This suit was originally filed in the county court of Bowie county on December 30, 1924, in which the plaintiff in the lower court, ap-pellee ih this court, sought to recover judgment against Robert Taylor, defendant in the lower court, appellant in this court, on a note in the sum of $225 and on a cheek in the sum of $98.30. The defendant in the lower court answered by general denial and by pleading an offset or counterclaim against said W. M. Duncan by an itemized account showing a balance due the defendant of $627.1S for which he prayed judgment. The county court of Bowie county, Tex., having been abolished, this case was transferred to the district court of Bowie county, Tex., and was submitted to the court on October 16, 1930. A jury being waived, all matters of fact as well as of law were submitted to the court, and, after hearing the evidence, the court rendered judgment in favor of the plaintiff, W. M.. Duncan, and against the defendant, Robert Taylor, in the aggregate sum of $497.95, to which judgment the defendant in open court excepted and has properly prosecuted his appeal to this court for review.

Appellant assigns as error the action of the court in refusing to allow appellant to introduce in evidence certain pages taken from his ledger which contained the itemized account he claimed due him by appellee.

We are unable to find in the record any bill of exceptions to support this assignment, in the absence of which there is nothing for this court to review.

We have carefully considered the evidence in this case and are of the opinion that same amply supports the judgment rendered by the court.

Finding no error in the record, the judgment of the trial court is affirmed.


author: ALEXANDER, J.

text:
    INTERNATIONAL-GREAT NORTHERN R. CO. v. REAGAN.
    No. 1013.
    Court of Civil Appeals of Texas. Waco.
    Feb. 12, 1931.
    Rehearing Denied March 12, 1931.

      J. L. Goodman, of Franklin, and Morris, Sewell, Taylor & Morris, of Houston, for appellant.
    J. Felton Lane, of Hearne, for appellee.
   ALEXANDER, J.

This suit was instituted in the district court of Robertson county by P. C. Reagan against International-Great Northern Railroad Company for damages for the alleged destruction of a part of his cotton crop during the year 1929. It is alleged that Mineral creek runs through appellee’s field and under appellant’s railway dump, and that appellant failed to construct and maintain the necessary culverts and sluices over ■ said creek, as the natural lay of the land required for the proper drainage of said landj and that as a result thereof the cotton crop on thirteen acres of appel-lee’s land was overflowed and destroyed.

A trial was had before the court without a jury and resulted in judgment for appellee. The railway company appeals. The trial court filed findings of fact and conclusions of law in which it was found that the railway company neglected, and failed, to construct and maintain the necessary culverts and sluices for the drainage of appellee’s land, and that as a result thereof the cotton crop on twelve acres of said land was destroyed, and that as a proximate result thereof appel-lee suffered actual damages in the sum of $288. These findings are challenged by the appellant.

Appellant, by its propositions 1 to 3, inclusive, presents the contention that the appellee based his right to recover damages herein solely on the ground that the appellant had violated the terms of Revised Statutes, article 6328, which requires railway companies in constructing their roadbeds to first construct the necessary culverts and sluices, and that since the roadbed in question was constructed prior to the enactment of this article, appellee had no right to recover for a violation thereof. Revised Statutes, article 6328, provides as follows:

“In no case shall any railroad company construct a roadbed without first constructing the necessary culverts or sluices as the natural lay of the land requires, for the necessary draining thereof.”

This article of the statute was enacted in '1S76. The evidence shows that the roadbed in question was constructed in 1872, or in 1873. It has been held that article 6328 is not retroactive and that it could not affect the rights of a railway comp’any whose roadbed was constructed prior to the enactment of that article. Galveston, H. & S. A. Ry. Co. v. Wurzbach (Tex. Civ. App.) 189 S. W. 1006. However, the mere fact that the appellant is not subject to the terms of the statute in question does not mean that it is not subject to the common-law liability for the negligent construction or maintenance of its roadbed. The statute in question merely relieved the injured party from the necessity of alleging and proving negligence, and made the railway company liable as a matter of law if it failed bo provide the necessary culverts or sluices, even though it exercised ordinary care in the construction of its roadbed. Under the common law and independent of the statute, a railway company is liable for the damages caused by it by the negligent construction and maintenance of its roadbed. H. & G. N. Ry. Co. v. Parker, 50 Tex. 330; G., C. & S. F. Ry. Co. v. Helsley, 62 Tex. 593; Barstow Irr. Co. v. Black, 39 Tex. Civ. App. 80, 86 S. W. 1036; M., K. & T. Ry. Co. v. Tolbert (Tex. Civ. App.) 134 S. W. 280 ; 33 C. J. 326. If it so constructs or maintains its roadbed as to obstruct the flow of a well-defined channel and is guilty of negligence in doing so, it is liable for the damages caused as the proximate result thereof. A railway company in the construction of its roadbed is bound to exercise ordinary care for the protection of the rights of others. The appellee did not rely exclusively on the above statute to fix liability. He alleged that the appellant negligently constructed its roadbed across Mineral creek and maintained the same several feet above the level of appellee’s land; that it negligently failed to provide the necessary culverts and sluices to permit the water to run off from the ordinary rainfall; and that said acts constituted negligence which proximately caused the injury to his crop. The trial court found that appellant was guilty of such negligence and that its negligence was the proximate cause of-the injury. These findings were supported by the evidence, and were sufficient to constitute a cause of action.

Moreover, the evidence shows that in 1926 appellant’s roadbed was raised several feet, but the opening under the bridge over Mineral creek was not materially enlarged. The fact that the roadbed had been so raised seemed to have been the contributing cause of the injury complained of. Even though the appellant may not have been subject to the provisions of article 6328 by reason of that article iiaving been enacted after appellant’s roadbed was constructed, yet, if appellant, after the enactment of that article, reconstructed and materially changed its roadbed over the creek in question, it would be bound by the terms of that article to provide the necessary culverts or sluices for the proper drainage of the adjoining land and would be liable in damages for its failure to do so. Clark v. Dyer, 81 Tex. 343, 16 S. W. 1061, 1062; International & G. N. Ry. Co. v. Glover (Tex. Civ. App.) 84 S. W. 604; St. L. S. W. Ry. Co. v. Jenkins (Tex. Civ. App.) 89 S. W. 1106.

The appellant, by its propositions 4 and 5, contends that the appellee failed to establish with sufficient certainty the amount of damages sustained by him. The evidence shows that the land in question had been planted in cotton. The cotton was up and had been plowed once before it was overflowed. Thirteen acres of the cotton was washed up. The court found that the cotton on one acre of this land would have been destroyed even though the railway company had not obstructed the flow of the water. The cotton on the other twelve acres was destroyed by the negligence of the railway company. The appellee after-wards replanted the land in cotton, but on account of the wet season he did not get it replanted until in June. The new crop of cotton produced 287 pounds of seed cotton per acre less than the old cotton in the same field that was not destroyed by the overflow. The cotton was worth 7 cents per pound in the seed. The appellee expended $86 for extra labor and seed in replanting the overflowed land, and in addition expended $15 in poisoning the young cotton. The trial court evidently took the difference between the value of the cotton per acre produced from the new cotton on the land that was overflowed and the value per acre of the cotton produced on the other land in the same -field that was not overflowed and in this way ascertained the amount of appellee’s loss per acre on the twelve acres in question. To this was added the cost of replanting and poisoning the new crop. There was no proof whatever of the cost of producing the crop on the land that was not overflowed, nor of the cost either by comparison or otherwise of producing the new crop on the land that had been overflowed.

In I. & G. N. Ry. Co. v. Pape, 73 Tex. 501, 11 S. W. 526, 527, the court said:

“It seems to us that, as a general rule, the most satisfactory means of arriving at the value of a growing crop is to prove its probable yield under proper cultivation, the value of such yield when matured and ready for sale, and also the expense of such cultivation, as well as the cost of its preparation and transportation to market. The difference between the value of the probable crop in the market, and the expense of maturing, preparing, and placing it there, will in most cases give the value of the growing crop with as much certainty as can be attained by any other method. But proof of the additional amount of cotton which the plaintiff would have made but for the overflow, and the value of such cotton when ready for market, without evidence as to the expense of cultivating, gathering, preparing it for and placing it in market, did not show the value of the crop at the time of the injury, and hence did not afford the proper means of increasing the plaintiff’s damage. The testimony, without the additional evidence of the expense of maturing the cotton and placing it in market, should ha-ve been excluded.”

The true measure of damages, where, growing crops have been destroyed, is the difference between what the crop would have produced, less the expense that would have been incurred in bringing the crop to maturity, and in gathering and marketing the same. Western Oil Fields Corporation v. Nowlin (Tex. Civ. App.) 288 S. W. 554, and cases there cited. The practical method for calculating such damages is to ascertain the value of the crop actually produced on similar land in the same neighborhood similarly cultivated, and from this deduct the cost - that wou-ld have been incurred in bringing the crop to maturity and in gathering and marketing the same. This will ordinarily fix the maximum amount of a defendant’s liability for such an injury. If the injured crop is not totally destroyed and some crop is afterward produced, the party inflicting the injury would be entitled to credit for the value of the crop actually produced less the cost of finishing and gathering such crop. Where it is practical to plant a new crop after the old one has been destroyed, the injured party should do so in’ order to minimize his damages. Where this is done, the party inflicting the injury is entitled to credit for the profit on the new crop; tfiat is, the difference between the value of such new crop less the cost of producing, gathering, and marketing the same.

In the case at bar, if the proof had shown that the cost of producing and marketing the new crop was the same that would have been incurred in finishing, gathering, and marketing the old crop, if it had not been destroyed, then the cost of producing the one would have offset the cost of the other and appellee’s damages would have been the difference between the value of the new crop when gathered and marketed and the value of the crop that would have been produced but for the overflow. Since there was no proof of the cost of producing the new crop nor of the amount that it would have been necessary to have expended in finishing the old crop and gathering the same, the court is unable to ascertain the damages sustained by appellee.

The judgment of the trial court is therefore reversed, and the cause is remanded for a new trial.


author: WADKER, J.

text:
    NACOGDOCHES INDEPENDENT SCHOOL DIST. v. ADAMS.
    No. 2070.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 18, 1931.
    Rehearing Denied March 18, 1931.

      Hodges & Greve, of Nacogdoches, for appellant.
    Adams & McAlister, of Nacogdoches, for appellee. ,
   WADKER, J.

The campus of the city schools of the city of Nacogdoches is a rectangle about 900 feet by 1,200 feet. On or about September, 1930, over the protest of appellee and many of the other property owners of the city of Nacog-doches, the board of trustees of the city schools contracted with Cyclone Pence Company to’ build a wire fence, mesh 1 or 1½ inches, 6 feet high, around the campus, with arms extending from the tops of the posts .upon which barbed wire was to be stretched. The contract provided for seven openings in the fence as it surrounded the campus. At that time appellee’s twelve year old son, and many other children similarly situated, were in attendance on this school and had been for several years and would continue as students of that school. Appellee’s homestead was adjacent to the campus of the city schools, separated from it by one of the city streets. This1 suit was brought by appellee against appellant to enjoin the building of the fence. Por grounds' of relief he alleged the building of the fence would (a) damage his property ; (b) create a dangerous condition for his son and other children similarly situated in entering and leaving the campus of their school; (cj detract from the value of the Old Stone Port as a historic relic, the allegation being that this old fort was located on the campus and was a matter of curious and historical interest to the citizens of Texas who go to Nacogdoches in large numbers to see the old fort; (d) the expenditure of the school funds' for the purpose of building this fence would be an unlawful diversion of the funds.

Appellant answered this petition by general and special demurrers and specially pleaded that the building of the fence was necessary (a) to protect the school property from vandals; (b) to protect the public morals ; and (c) to protect the life and limb of the children attending the school. The demurrers were overruled, to which appellant excepted, and the case went to the jury on the two following questions, answered as indicated:

“Special Issue No. Í.
“Do you find from the preponderance of the testimony that the building of the fence, as is now begun, will depreciate the plaintiff’s property?
“You will answer this ‘Yes’ or ‘No’ as you may find the facts to be.”
Answer: “Yes.”
“Special Issue No. 2.
“Do you find from the preponderance of the testimony that the building of the fence, as is now begun, will make it more dangerous for the plaintiff’s child in attending school?
“You will answer this ‘Yes’ or ‘No’ as you may find the facts to be.”

Answer: .“Yes.”

On this verdict judgment was entered perpetually enjoining the building of the fence.

Opinion.

Appellants advance twenty-six assignments of error complaining of the judgment appealed from. However, many of their propositions under these assignments cannot be reviewed for the following reason: Rule 30 governing the preparation of briefs in the Court of Civil Appeals is as follows:

“Following the statement of the case there shall be stated consecutively, separately subdivided and numbered, the propositions or points upon which the appeal is predicated. These shall be germane to one or more of the assignments of error or relate to fundamental error.

“The purpose of this rule is to enable counsel to state immediately and briefly, and without repetition, the questions in the case and to acquaint the court at once with the propositions presented for ’decision.” 230 S. W. p. VII.

Immediately following the statement of the nature and result of the suit, appellants, in their brief, have submitted fourteen propositions, stated consecutively and separately subdivided and numbered, prefacing, these propositions with the statement: “Propositions upon which this appeal is predicated.” Immediately following these propositions is the statement made by appellants in support thereof, together with their citation of legal authorities and argument. The first twenty-five pages of the brief are devoted to a discussion of these propositions. The remaining propositions are scattered through the1 brief without being consecutively stated or numbered. There is nothing in the introduction to the case, nor in the statement of the first fourteen propositions, advising the court as to the nature of these additional propositions. It is our conclusion that Rule 30 should be given a mandatory construction. It was promulgated to change briefing rules that had been in force for many years whereby the propositions were scattered through the brief and were not required to be “stated consecutively, separately subdivided and numbered.” The immediate purpose of the rule is stated in the rule itself-in the following language, again quoting from rule 30: “The purpose of this rule is to enable counsel to state immediately and briefly, and without repetition, the questions in the case and to acquaint the court with the propositions presented for decision.” Rule 30, in fact, accomplishes that purpose. To read into this rule a discretion on the part of counsel to obey its provisions, or on the part of the Courts of Civil Appeals to disregard its provisions, would absolutely nullify the rule and defeat its express purpose. For this reason we should not consider any of the propositions except the first fourteen.

Without quoting these propositions, many of them are too general to invoke the jurisdiction of the court, as appears from three of them which we set out in full:

“A petition for injuries, for injunction, should disclose injury likely to occur to applicant by reason of the proceeding sought to' be enjoined.”
“Injunction will never be granted unless- it appears from the allegations in the petition that injury will otherwise result to the applicant.”
“A petition for injunction which fails to allege that plaintiff had no remedy at law or that it was inadequate was fatally defective.”

Unquestionably these propositions must be stricken down under the principié rean-nounced by this court in Clevenger v. Burgess, 31 S.W.(2d) 675. However, the remaining propositions are sufficient to bring forward the following points: (a) The’ petition was subject to general demurrer because it appeared on its face that appellee had not apr pealed to the school authorities for relief against the alleged illegal actions of the trustees building the fence; (b) the petition was subject to general demurrer because it did not appear therefrom that appellee was without an adequate legal remedy; (c) the petition was subject to general demurrer because it appeared from the petition that in law the board of trustees was vested with the legal discretion to manage and control the property intrusted to their care as trustees, and that ' such discretion could not be reviewed by -a trial court. The language of the proposition being: “The exercise of this power is judicial, not ministerial, and rests- solely with them, and the exercise of this power cannot be inquired into by any legal proceedings.”

Appellants are in error in saying that appellee was required first “to appeal to the school authorities.” The purpose of appel-lee’s suit, as expressed by the petition, was the prevention of an alleged wrong against him by the board of trustees. The question presented is one growing out of the administration of the common law and not of school laws. Barton v. Vickery (Tex. Civ. App.) 189 S. W. 1103, and similar authorities, have no application.

We cannot agree with appellants in their construction of the petition on the point that appellee has not pleaded facts entitling him to equitable relief. Under the allegations of his petition the building of the fence under the plans and specifications provided for in the contract between the board of trustees and Cyclone Fence Company created a dangerous condition for his son and children similarly situated in entering and leaving the school campus. In law appellee had no adequate relief against that alleged wrong. Citing Marshall v. City of Dallas (Tex. Civ. App.) 253 S. W. 887, we think appellants have announced a sound legal proposition determining the result of this appeal, which is as follows: “The plaintiff must show that the fence complained of will be dangerous to life, or detrimental to health.” Under appellee’s. petition, the building of the fence complained" of, under the plans and specifications called for in the contract, would create a condition dangerous to the life of his son and children similarly situated, and, therefore, unlawful.

Solely upon the proposition that the building of the fence would subject his son and other children similarly situated to additional danger in entering and leaving the campus, we hold the petition was not subject to general demurrer. Beyond question, the trustees' of our public schools are vested with discretion in the management, control, and protection of the school property committed to tbeir care, and the courts should not review this discretion except upon a showing of abuse. But our schools are maintained for the education of the youth of the country, and it is the duty of the trustees to exercise their discretion to maintain the school property in a safe condition for the children. For them to create a condition, adding danger to the life and limb of the children, in entering and leaving the school premises, would be an abuse of the discretion vested in them for the orderly discharge of their fiduciary obligations. It is our conclusion that appel-lee’s petition stating this cause of action was not subject to general demurrer.

While not assigned, we think it apparent upon the face of the record that appellee was granted relief beyond the terms of his petition. At least the judgment is ambiguous and in the future might mislead the courts and interested parties as to the extent of the relief in fact granted appellee. Therefore, we reform the judgment appealed from and limit it merely to enjoining appellants from building tbe fence under tbe plans and specifications complained of. In doing tbis we are expressing no' opinion, because it is not. before us, of tbe power and authority of tbe board of trustees to build a lawful fence around tbe school campus. From what has been said it follows that tbe judgment of tbe lower court should be reformed and affirmed, and it is accordingly so ordered. Reformed and affirmed.

Because appellants did not assign error against tbe form of tbe judgment nor ask tbe lower court to make it conform to tbe pleadings, tbe costs of tbis appeal, though tbe judgment has been reformed, will be taxed against appellants.

On Rehearing.

Appellants have not assigned error against our construction of Rule No. SO, but insist that the following propositions should be reviewed as presenting fundamental error.

First. On the ground that tbe permanent injunction awarded appellee by tbe judgment of the lower court has no support in bis .prayer, appellants say: “Tbe trial court was entirely without jurisdiction to grant tbe permanent injunction.” Tbe prayer was as follows, which fully supports tbe judgment of tbe lower court: “Wherefore plaintiff prays for writ of injunction against tbe defendants, that tbe defendant, Nacogdoches Independent School District be enjoined and restrained from drawing out tbe funds as needed to pay for said fence, and that they be prohibited from carrying out said contract as is heretofore alleged, and that tbe defendant, Cyclone Fence Company, be enjoined from further erecting of said fence around said campus as aforesaid; that defendant be cited to answer tbis petition and that on final bearing said injunction be made perpetual and that plaintiff have judgment for general relief and for costs of suit and for such other and further relief as be may be entitled.”

Second. Appellants now suggest an additional proposition of fundamental error on tbe theory that appellee did not plead facts raising tbe issue that tbe construction of the fence would constitute a dangerous condition for bis child and for the other children similarly situated. On tbis issue appellee pleaded as follows: “That said school campus is surrounded on tbe north, south, east and west by streets of tbe City of Nacogdoches, and that on all sides there are many homes from which children go to said school campus, and that as it is now, the automobile traffic is fast and furious over and along said streets; and that as it now is, the plaintiff’s child with others can reach the school campus and go to the buildings from any direction and without being forced to travel down said streets distances of from 100 to 200 feet before having an entrance to said campus; that there are with the plaintiff’s child hundreds and hundreds of children that attend said schools on said campus and that for the protection of the plaintiff’s child and those that attend with him said schools it is for the plaintiff’s child’s safety as well as others that they be given the opportunity to enter on said campus as quickly as possible and avoid the chances of coming in contact with the rapid transit of modern day traffic on all the streets of Nacogdoches.”

This paragraph is followed by allegations describing the fence and the plans and specifications under which it was to be built. In this connection it was alleged that “the circuit of said school campus” was 4,200 feet, that only seven gates were to be built in the fence. The petition also contained the following additional allegations of danger to the school children: “That if said fence be built there is now left a space between where the fence would be built and the street outside of said fence six or eight feet in width and .that the plaintiff’s child with those coming from the northwest to enter said campus if fence were built would be caused to walk down Fredonia Street a distance of 600 feet or down Hughes Avenue 450 feet before entrance could be had to said campus for any purposes; those coming from the northeast to the school would be compelled to travel Hughes Avenue 450 feet or down Mound Street 600 feet to the entrance to said campus ; those coming from the southeast would be compelled to travel along Mound Street for a distance of 600 feet to the entrance or down Arnold Street 450 feet to said entrances; that Hughes, Mound, Arnold, and North Fre-donia are prominent Streets in the City of Nacogdoches and are traveled by thousands and thousands of automobiles during twelve months, and that the attendance for the Na-cogdoches Public Schools and especially that attendance of the central, grammar, and high schools is believed by the plaintiff to be from 1200 to 1500 pupils, one of which is the child of the plaintiff; and that this number will attend said school during the year 1930 and 1931. * ⅜ That the fence would congregate, force down the streets as aforesaid the plaintiff’s child with others along the streets hemmed in by said fence for the distance as aforesaid, and a probability of the. gate’s being locked and the children’s being congregated on the congested streets as aforesaid; that the children, when released from school at noon and in the afternoon, would be forced to make exit from said campus in the several openings as aforesaid and will imperil and endanger the life of plaintiff’s child with others in that emerging from the gates the plaintiff’s child is within 6 or 8 feet of the highly congested streets as aforesaid and makes the same dangerous to the plaintiff’s child and others with him, thereby endangering and keeping in fear plaintiff and his wife of the danger of plaintiff’s child’s being run over and killed in the congested streets as aforesaid.” It was further alleged that without the fence the conditions complained of do not exist. These allegations were sufficient to raise the issue submitted to the jury by question No. 2, as given in the original opinion.

Third. Appellants erroneously insist that to create a dangerous condition appellee should have alleged: “That the trustees were building a ‘pitfall’ in which students might fall and kill -themselves in going to and returning from school, or while at school, or that the proposed fence possessed daggers or spears -that might kill some of the students that might come in contact with it, or because of its peculiar attractiveness it would specially attract the students to it in such a way as to seriously injure their bodies or minds or that in some other way the fence would injure health or life or limb.”

Fourth. Answering appellants’ proposition .that the judgment is fundamentally erroneous because we have filed no findings of fact in support thereof, we adopt question No. 2 and the jury’s answer thereto as our conclusion of fact on the issue now under discussion. .As this finding has not been attacked by a proposition that we can consider, it is binding both upon us and upon appellants.

Being in doubt as to the extent of our holding, appellants say that the opinion “ought to be clear enough so that litigants may finally dispose of it at second trial.” Complying with this request, it is our conclusion that the only issue pleaded by appellee sufficient in law to sustain a permanent injunction against the building of the fence was, to quote from the jury’s verdict, that it would “make it more dangerous for the plaintiff’s child in attending school.” All other issues pleaded by appellee in the petition now before us were subject to appellants’ general demurrer. Thus, that the building of the fence would damage appellee’s property and detract from the value of the Old Stone Fort as a historic relic, and that the trustees were without authority to expend the school funds for the purpose of erecting the fence, did not constitute a cause of action. As against these allegations the building of the fence was not an unlawful exercise of the discretion vested -by law in the board of trustees in managing-the schools of Nacogdoches independent school district.

The motion for rehearing is overruled.


text:
    HAMVASY v. ALEXANDER FILM CO.
    No. 3984.
    Court of Civil Appeals of Texas. Texarkana.
    March 11, 1931.
    Rehearing Denied March 19, 1931.
    Reagan S. Wyehe, of Longview, and James D. Buster, of Sherman, for appellant.
    C. Huggins, of Sherman, for appellee.
   SELLERS, J.

This is an appeal from an order of the district court of Grayson county, Tex., denying appellant’s application for a writ of injunction restraining a judgment in the justice court of precinct No. 1 of Grayson county.

The suit was instituted in the justice court by Alexander Film Company as plaintiff upon a written contract and a verified account. Citation was duly issued and served upon E. P. I-Iamvasy, defendant, who resided in Gregg county, Tex. E, P. I-Iamvasy filed in the justice court of precinct No. 1 of Grayson county his plea of privilege, and it is the sufficiency of this plea which determines whether the appellant was entitled, to the relief sought in his application for the writ of injunction.

It appears from the statement of facts that the plea of privilege as filed by the defendant in the justice court did not allege in which justice’s precinct in Gregg county, Tex., the defendant resided. It is our opinion that such a plea does not meet the requirements of the statutes.. Patterson Produce Company v. Tombs (Tex. Civ. App.) 14 S.W.(2d) 959. And the court was authorized to overrule same without giving defendant any notice of a contest to said plea. Humble Pipe Line Co. v. Kincaid (Tex. Civ. App.) 19 S.W.(2d) 144.

But it appears in this case that the court went a great deal further than he was required to do under the law, and had citation served upon the defendant, citing him that the plea of privilege had been controverted on the ground that it was insufficient in law and did not meet tire requirements of the statutes; that this citation was duly served upon the defendant, citing him to appear on the 17th day of January, 1930, and on said date, the defendant failing to appear, upon a motion by the plaintiff, the court overruled the plea of privilege and entered a judgment by defdult for plaintiff for the amount sued for in the justice'court. Thereafter on January 22d, the defendant appeared in justice court through his attorney and gave notice of appeal to the county court of Grayson county, and ordered the justice of the peace to send up the transcript in the justice court to the county court. In compliance with this request, the justice of the peace made up the transcript and same was filed with the county clerk of Grayson county, and at a regular term of the county court both parties appeared and announced ready for trial; whereupon the plaintiff moved the court to dismiss the appeal, for the reason that no appeal bond had been filed. The court sustained the motion and dismissed the appeal.

Under this state of facts it is our opinion that it was conclusively shown that the judgment of the justice court is as legal as if no plea of privilege had ever been filed, and that there was no error by the district court in refusing the relief sought by appellant.

The judgment is affirmed.


author: HICKMAN, O. J.

text:
    EXPORT INS. CO. v. AXE et al.
    No. 798.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 6, 1931.
    Rehearing Denied March 13, 1931.

      Cox & Hayden, of Abilene, for appellant.
    Scarborough, Ely & King, of Abilene, for ap-pellees.
   HICKMAN, O. J.

The suit was upon a policy of fire insurance issued by appellant to appellees upon certain gin buildings and machinery. The different items of property were set out separately in the policy, and a specified amount of insurance provided as to each item. Four separate buildings were covered in amounts, respectively, of $2,000, $900, $500, and $100. The last two named buildings were not burned, and no recovery was sought or obtained therefor. Recovery was had for the first two named buildings and also for an engine insured for $4,250 and for machinery insured for $7,250. The case was submitted to a jury on three special issues, by its answers to which the following facts were determined: (1) The engine was a total loss as a result of the fire; (2) the reasonable cash market value of the engine immediately before the fire was $6,500; and (3) the reasonable cash market value immediately before the fire of all of appellee’s machinery, other than the engine, was $7,200. Upon these findings judgment was rendered for appellees for $14,400. This amount included the following items: $2,900 on the two houses destroyed; $7,250 on- the machinery other than the engine, and $4,250 on the engine. From this judgment appellant has perfected an appeal.

The controlling question relates to the action of the trial court in not sustaining appellant’s plea in abatement. The matters pleaded in abatement were also pleaded in bar to appellees’ right of recovery. These pleadings set up a provision of the policy, common to all standard policies of fire insurance, to the effect that, in the event of disagreement as to the amount of loss, the same should be ascertained by appraisers. Ap-pellees refused, after due demand, to submit the matter to appraisement, and rely for justification of their action on. the contentions, first, that all the property covered by the policy was real estate, and, second, that same was a total loss.

The rule is well settled that, by virtue of article 4929, R. S. 1925, if the property was real estate and the loss total, the stipulation in the policy for.an appraisement is not applicable. Ætna Ins. Co. v. Shacklett (Tex. Civ. App.) 57 S W. 583; Natl. Fire Ins. Co. v. House (Tex. Civ. App.) 197 S. W. 476; Am. Central Ins. Co. v. Terry (Tex. Civ. App.) 15 S.W.(2d) 81; Id. (Com. App.) 26 S.W.(2d) 162; 26 C. J. 417; 14 R. C. L. p. 1355, § 525.

The first question therefore for us to determine is, Was the property real estate? No contention is made that the buildings were not a part of the realty, but the insistence is that the machinery and engine were personalty. John Axe testified fully with regard to the character of this machinery, and his testimony was not disputed. It reveals that it was the ordinary machinery used in the operation of a cotton gin. “That machinery in the house, we attached that to the building as it naturally should be, to operate in that building. We put it in there stationary. When we put that machinery in that building we intended to operate it to gin cotton. We never did intend to take it out. I attached this machinery to the property with the idea of leaving it there as long as it was fit to use, — to leave it there. As to how that machinery, those gin- stands, were attached to the building, I will say the gin stands were attached to the sills in the floor. They were bolted down.”

Following this testimony the. witness described each item of the property, and then stated: “There was no part of that property that was not attached to the real estate. It was all attached as part of the real estate.”

The land upon which the gin was situated belonged to appellees. They had operated the gin for several years prior to the fire. Whether or not machinery is a part of the land does not depend alone upon whether the same is bolted or nailed to the building. Other familiar factors are determinative. Under this undisputed evidence all1 of the machinery would have passed under a deed conveying only the land. Citizens’ Nat. Bank v. Elk Mfg. Co. (Tex. Com. App.) 29 S.W.(2d) 1062; Jones v. Bull, 85 Tex. 136, 19 S. W. 1031; Brown v. Roland, 92 Tex. 54, 45 S. W. 795; Potter v. Mobley (Tex. Civ. App.) 194 S. W. 205 ; Alexander v. Anderson (Tex. Civ. App.) 207 S. W. 205; Ford v. Van Valkenburg (Tex. Com. App.) 228 S. W. 194.

Appellant insists that the status of the machinery as personalty was fixed by the following provision of the policy: “It is understood and agreed that each item or subject of insurance under this policy, (other than the building or buildings) is, for the purpose of this contract of insurance, to be treated and considered as personal property.”

The validity of this stipulation must be tested in the light of article 4929, R. S. 1925, reading as follows; “A fire insurance policy, in case of a total loss by fire of property insured, shall be held and considered to be a liquidated demand against the company for the full amount of such policy. The provisions of this article shall not apply to personal property.”

The case of Westchester Fire Ins. Co. v. Roan (Tex. Civ. App.) 215 S. W. 985, 986, is relied on by appellant to uphold the validity of the provision. That case does contain a statement upholding its validity, and a writ of error was refused therein by the Supreme Court. We are not advised as to which party prosecuted the writ of error, but from the nature of the judgment rendered in the Court 'of Civil Appeals it would appear likely that the writ was prosecuted by the insurance company, in which event the correctness of the ruling was not put in question. We note the following language in that opinion: “It is by no means clear from the evidence in the case before us that all of the machinery specified in the policy of insurance was so attached to the freehold, under familiar rules relating thereto, as to become part of the soil.”

That being the state of tiie record in that case, the question of the validity of the stipulation was not necessary for decision. This further observation regarding that authority is made: The opinion states that there was a conflict between the cases of Ætna Ins. Co. v. Lewis (Tex. Civ. App.) 204 S. W. 1170, upholding the validity of such stipulation, and the case of Ginners’ Mutual Underwriters v. Wiley & House (Tex. Civ. App.) 147 S. W. 629, condemning same, and that, since a writ of error was refused in the former case, same was regarded a? controlling. We observe that error was also refused in the latter case, and that, in our opinion, the question was not decided in the Lewis Case. We shall, therefore, look to other authorities than the one cited by appellant to determine the question here presented.

In the case of Queen Ins. Co. v. Jefferson Ice Co., 64 Tex. 578, the Supreme Court construed the article in this language: ?‘The language of the statute referred to is clear, and its purpose evidently was to make all policies on real property, in cases of total loss, valued policies, without reference to stipulations contained in them which would give them a different character but for the statute, which becomes a part of every such contract.” The same construction was given in Phoenix Ins. Co. v. Levy, 12, Tex. Civ. App. 45, 33 S. W. 992, Commercial Union Assur. Co. v. Meyer, 9 Tex. Civ. App. 7, 29 S. W. 93, and Sun Mutual Ins. Co. v. Holland, 2 Willson, Civ. Cas. Ct. App. § 443.

The exact question was presented in Ginners’ Mutual Underwriters v. Wiley & House (Tex. Civ. App.) 147 S. W. 629 (error refused), wherein it was held that it was not competent for the parties by agreement to impress realty with the character of personalty, for the reason that the effect thereof would be to contravene and evade the terms of the statute.

In the case of Havens v. Germania Ins. Co., 123 Mo. 403, 27 S. W. 718, 26 L. R. A. 107, 45 Am. St. Rep. 570, the Supreme Court of Missouri construed a like provision in an insurance policy in the ught of the valued policy article of the statutes of that state similar to article 4929, and held that to give effect to the stipulation in the policy would be permitting a contract to change the law. The stipulation was therefore held to be a nullity.

The same question was presented to the Supreme Court of Mississippi, which state also has a valued policy article in its statutes, in' the ease of Darden v. Liverpool & London & Globe Ins. Co., 109 Miss. 501, 68 So. 485, and , it was there held that the stipulation in the policy was against the statute and therefore void.

To the same effect is the case of Ins. Co. of N. A. v. Bachler, 44 Neb. 549, 62 N. W. 911; by the Supreme Court of Nebraska. The reasons for the holding are so clearly stated by the Supreme Court of Ohio in the case of Queen Ins. Co. v. Leslie, 47 Ohio St. 409, 24 N. E. 1072, 1074, 9 L. R. A. 45, that we quote at length,therefrom as follows: “The statute rests upon considerations of public policy: one of its purposes being to exact of insurance companies doing business in this state reasonable diligence and care to avoid improper risks and overinsurance, by requiring their agents to make personal examination of the property, and fix its insurable value, before writing the insurance. * * * Under the rule of liability thus established by the statute, responsible companies are less likely td take risks recklessly, or for a sum greater than the value of the property, and persons whose buildings are insured receive protection against the injustice resulting from merely technical defenses founded upon the many conditions inserted in the policy, formerly resorted to. The statute cannot be treated as conferring upon the assured a more personal privilege, which may be waived or qualified by agreement. It has a broader scope. It moulds the obligation of the contract into conformity with its provisions, and establishes the rule and measure of the insurer’s liability. Terms and conditions embraced in the policy inconsistent with the provisions of the statute are subordinate to it, and must give way.”

We conclude that it was not competent for the parties, by stipulation in the policy, to effect a change in the status of the machinery, and that- the stipulation having that purpose in view was and is null and void as contravening the statute.

The next question for determination is, Was the property a total loss? It is not contended that the buildings or the machinery, other than the engine, were not a total loss. The controversy is limited to the question of whether the engine could have been restored by making certain repairs thereto. It is well settled in this state that, in determining whether a building, which has been damaged by fire, is a total loss, within the meaning of a fire insurance policy, the true rule is whether, following the fire, there is some substantial portion of the structure remaining which a reasonably prudent owner, uninsured, would have used as a basis for restoring the said building to the condition in which it was before the fire. Royal Ins. Co. v. McIntyre, 90 Tex. 170, 37 S. W. 1068, 35 L. R. A. 672, 59 Am. St. Rep. 797; Fire Ass’n v. Strayhorn (Tex. Com. App.) 211 S. W. 447; American Central Ins. Co. v. Terry (Tex. Com. App.) 26 S.W. (2d) 162; Glen Falls Ins. Co. v. Rogers (Tex. Civ. App.) 33 S.W. (2d) 465. The same rule is applicable to an engine which has become a part of the realty.

Several witnesses testified that the engine was a total loss. Appellant’s witness, Dietz, testified that the engine could be repaired at a cost of $1,103.80. Appellees’ witness, Woody, testified: “As to this being a partial or total loss, for myself I would consider it a total loss, because the repairs on it would be what the engine is worth.” If the jury believed this evidence, it clearly supported the finding of total loss, as no reasonably prudent person would undertake to repair a burned engine when he could purchase a new one at the same price. Appellant’s witness, Dietz, also testified as follows: “I do not mean to tell the jury that a fire of this kind would burn there long enough to get the west side not only red, but white, would not effect that engine. I did not tell them that» I would not tell them that. If it did do that, I would tell them it could not be repaired.”

Appellee Carl Axe testified that he was present at the fii’e; that a tank of fuel oil was near the engine, the burning of which produced great heat for a long period of time, and that the engine “got awfully hot; it got white. It’s true that I said awhile ago that it was red hot, but it got both. It got both red and white.” The jury had the right to believe this witness, and, if his testimony is believed, the engine was a total loss under the testimony of appellant’s own witness. We therefore conclude, first, that the property covered by the insurance policy was all real estate, and that same was a total loss. It therefore follows that appellees were not required to have the amount of the loss submitted to appraisers.

Error is assigned to the action of the trial court in rendering judgment for $7,250 on the item of machinery when the jury found the value of such item to be $7,200. The assignment is overruled. The answer of the jury was immaterial, since the property was real estate and a total loss, and the court could not have consistently rendered judgment for less than the face value of the policy thereon. Neither this issue nor the third issue was material. If the property was a part of the realt», the value was unimportant; if personalty, the plea in abatement should have been sustained and no judgment rendered for appellees.

The seventh proposition is as follows: “Appellant having controverted the value of the engine in question and the value of the other machinery other than the engine, and the burden being upon appellees to establish said values, and the court having failed in its charge to place the burden of proof upon the appellees to establish said values, it was reversible error for the court to refuse to amend his charge and place said burden upon the ap-pellees when his attention was called thereto by an exception seasonably made.”

No error is presented by this assignment. It is not always necessary to give a charge on the burden of proof. The question involved was value, and on such issue no charge on burden of proof is required. Bernard’s, Inc., v. Austin (Tex. Civ. App.) 300 S. W. 256; Davis v. Hill (Tex. Civ. App.) 291 S. W. 681; T. & N. O. Ry. Co. v. Syfan (Tex. Civ. App.) 43 S. W. 551.

Further, since the question of the value of the property was immaterial, the findings with regard thereto were likewise immaterial. It follows that, if the court erred in this regard, same was harmless.

No reversible error is disclosed with regard to the admission of certain evidence given by the witness Tillett. Even if the evidence had been improper, it would not work a reversal, because the same evidence was elicited from the witness Dietz without objection. 3 Tex. .Tur. p. 190, § 126.

No error is disclosed in appellant’s bill of exceptions No. 3, regarding the admission of testimony of the witness Woody. The bill of exceptions was qualified by the trial court by setting out the question and answer form of the examination. When a party accepts a bill of exceptions which has been qualified by the trial court, he is bound by the qualification. 3 Tex. Fur. § 464. This bill, as qualified, discloses that the appellant’s grounds of objection and exception were not stated in the trial court. We would therefore not be warranted in reviewing the matter. 3 Tex. Jur. §§ 335 and 127.

No reversible error being disclosed, it is our order that the judgment of the trial court be affirmed.