author: LANE, J.

text:
    TURNER et al. v. TURNER et al.
    (No. 7364.)
    (Court of Civil Appeals of Texas. Galveston.
    March 26, 1917.
    Rehearing Denied April 26, 1917.)
    1. Appeal and Error <&wkey;759 — Beiefs — Assignments of Ebboe — Conformist to Motion fob New Trial.
    Under Acts 33d Leg. c. 136 (Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 1612), providing that, when a motion for a new trial has been filed, the assignments therein shall constitute the assignments of error; rule 24 for Courts of Civil Appeals (142 S. W. xii), requiring the assignment of error to distinctly specify the ground of error relied on, and distinctly set forth in the motion for a new trial, and providing that a ground oil error not distinctly set forth in such motion, and not distinctly specified in reference to that which is shown in the record, or not specified at all, shall be considered as waived unless fundamental; rule 25 (142 S. W. xii), as to pointing out the part of the proceedings contained in the record in which error is complained of; and rule 29 (142 S. W. xiii), confining the points relied on in the brief to the distinct specifications of error and to fundamental errors — assignments of error in the brief which are not copies of any paragraphs of the motion for a new trial cannot be considered.
    [Ed. Note. — Eor other cases, see Appeal and Error, Gent. Dig. § 3094.]
    2. Appeal and Error <&wkey;193(9) — Assignments in Trial Court — Necessity—Fundamental Eeroe.
    Objections that the petition is insufficient to entitle plaintiff to the judgment rendered or to entitle her to recover will be considered, though not assigned as error in the trial court, as they present a question of fundamental error.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1232-1236; Pleading, Cent. Dig. § 1366.]
    3. Insurance <&wkey;815(l) — Mutual Benefit Insurance — Actions—Sufficiency of Petition.
    In an action on a benefit insurance certificate, whore the petition, though crudely drawn and barely intelligible, alleged the issuance of a policy of insurance on the life of T., plaintiff’s husband, naming plaintiff as beneficiary; that, when T. subsequently directed a change in the beneficiary, he was an imbecile, insane, and without legal capacity to transact business or make such change; that the intei-veners named as beneficiaries in the new policy caused such change to be made fraudulently; that T. died on a date specified, and the society had caused to be issued a warrant payable to those named as beneficiaries in the new policy; _ and prayed that plaintiff be declared the legaT beneficiary, that the names of the interveners be stricken out, that plaintiff’s name be placed upon the voucher, and that the secretary of the society be ordered to pay the money to him — was sufficient to support a judgment for plaintiff, where no demurrer or exception was urged, and the society admitted its indebtedness on the certificate, and asked the court to determine to whom the money should be paid.
    [Ed. Note. — Eor other cases, see Insurance, Cent. Dig. § 1996.]
    4. Pleading &wkey;»34(3) — Construction on Demurrer.
    On general demurrer, a pleading should be liberally construed, and all reasonable inferences from the facts alleged in the pleading's as a whole should be made in aid thereof.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 69.]
    5. Pleading &wkey;>34(7) — Construction— Objections Raised on Appeal.
    In an action on a benefit insurance certificate, in which the original beneficiary claimed that insured was insane when a change of beneficiary was made, defendant’s objection on appeal that the petition did not entitle plaintiff to relief, because it showed on its face that the beneficiary had been changed, and that plaintiff had no standing to urge insured’s insanity, partook of the nature of a general demurrer, and in passing thereon the facts alleged as to insured’s insanity would be accepted as true.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 74.]
    6. Pleading &wkey;>214(4) — Admissions by Demurrer.
    A general demurrer to a petition admits the truth of all facts alleged and all inferences reasonably deducible therefrom.
    [Ed. Note. — For other eases, see Pleading, Cent. Dig. § 526%.]
    7. Insurance &wkey;>782 — Mutual Benefit Insurance — Change of Beneficiary.
    A change of beneficiary under a benefit insurance certificate, made at a time when the certificate holder was insane and without legal capacity to contract, was voidable at the instance of the original beneficiary.
    [Ed. Note. — Eor other cases, see Insurance, Cent. Dig. § 1948.]
    S. New Trial >&wkey;44(3) — Misconduct of Jury —Discretion of Court.
    The trial court did not abuse its discretion in denying a new trial, in an action between rival claimants to the amount due under a benefit insurance certificate, on the ground that one member of the jury was influenced to concur in the verdict by the statement of another juror that plaintiff had worked for deceased for 10 years, and that he, as an experienced insurance man, knew plaintiff was entitled to recover for that reason, though the motion was supported by the affidavit of the juror so influenced.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ S2-84.]
    Appeal from Galveston County Court; Geo. E. Mann, Judge.
    Action by Effie Turner against the Grand Order of Odd Fellows, in which Samuel Turner and another intervened. From a judgment for plaintiff, the interveners appeal.
    Affirmed.
    V. M. Clark and T. C. Turnley, both of Galveston, for appellants. J. Vance Lewis, of Galveston, for appellees.
   LANE, J.

Appellee Effie Turner instituted this suit in the county court of Galveston county against the Grand Order of Odd Fellows, one of the appellees, hereinafter called Grand Order, for the recovery under a fraternal benefit insurance certificate for $500 issued to her husband, Martin Turner, in his lifetime, claiming as the designated beneficiary therein. Appellee Grand Order answered that it held the sum of $500 as stakeholder, and that appellants Martha Willis and Samuel Turner, as well as Effie Turner, were claiming said fund, and it did not know to whom the same belonged, tendered it into court subject to the court’s decision, and asked to be discharged. Under order of the court, appellants Samuel Turner and Martha Willis intervened in the suit, and denied the allegations in plaintiff’s petition, and alleged that a second and new certificate was issued to said Martin Turner on March 22, 1916, in the sum of $500, in which appellants were named as beneficiaries in the sum of $24.9 each, and Effie Turner in the sum of $2, and prayed for the recovery of the sums- in their favor as stated.

The cause was tried before a jury, and upon a verdict “in favor of plaintiff” the court rendered’ judgment in favor of Effie Turner against appellee Grand Order for the sum of $500. From this judgment Samuel Turner and Martha Willis have appealed.

Appellants filed their motion for new trial in the trial court and therein assigned only four errors, none of which are copied in their brief, except the fourth, which is designated therein as assignment No. 11.

Assignments 1, 2, 3, 4, 5, 8, 9, and 10 in appellants’ brief are not copies of any paragraphs of the motion for new trial filed by appellants, and therefore cannot be considered. Chapter 136, Acts of 1913, p. 276; Vernon’s Sayles’ Statutes of 1914, art. 1612; Holloman v. Black, 188 S. W. 973; Cole v. K. of M., 188 S. W. 699; Shipp v. Cartwright, 182 S. W. 70; Overton v. K. of P., 163 S. W. 1053; Edwards v. Youngblood, 160 S. W. 288; Oil Co. v. Crawford, 184 S. W. 728; Hardy v. Lamb, 152 S. W. 650; rules 24, 25, and 29 for Courts of Civil Appeals (142 S. W. xii and xiii).

In the case of Edwards v. Youngblood, supra, the court held that the provision of article 1612, Vernon’s ■ Sayles’ Statutes of 1914, supra, that “where a motion for new trial has been filed * * * the assignments therein shall constitute the assignments of error,” is mandatory, and that assignments of error not the same in form as the assignments contained in the motion, except in few particular cases, should be stricken out and not considered. Such is the substance of the other authorities above cited.

By the sixth and seventh assignments it is insisted that the allegations of plaintiff’s petition are insufficient to entitle her to recover against said Grand Order or interven-ers, and that her prayer is not for judgment against said Grand Order, and therefore she is not entitled to the judgment rendered in her favor. While the matters here presented were not assigned as error in the trial court in any form whatever, we shall consider the assignments as they present a question 0f fundamental error.

While we find that the petition is crudely drawn and barely intelligible, we think it in effect alleges the issuance of a policy of insurance by said Grand Order on the 15th day of October, 1908, upon the life of Martin Turner, the husband of plaintiff, for the sum of $500, in which plaintiff is named as the beneficiary; that at the time it is alleged that the said Martin Turner directed said Grand Order in writing to issue a new policy, and to name Samuel Turner and Martha Willis beneficiaries therein for the sum of $249 each, and this plaintiff for $2 only, the said Turner was an imbecile, insane, and without legal capacity to transact any kind of business or to make such change in his said policy; and that while he was in this insane condition, and while of unsound mind, interveners, and others acting for them, fraudulently made or caused said change of the names of the beneficiaries in said policy. It is further alleged that Martin Turner is dead; that he died on the 15th day of April, 1916, and that since his death said Grand Order has caused to be issued á warrant in satisfaction of the .$500 due upon the policy of Bartin Turner, payable to those named as beneficiaries in said changed or new policy, as follows: To Samuel Turner, $249; to Martha Willis, $249; and to plaintiff, Effie Turner, $2; and has delivered the same to A. J. Johnson, secretary of said order. It is then alleged that the money for, which said warrant was issued is all due to plaintiff as the beneficiary named in said original policy’ of date October 15, 1908, and that plaintiff is the legal beneficiary named in said original policy. The prayer for relief is as follows:

“That on final trial you petitioner be declared legal beneficiary of said policy, and that the names of Sam Turner and Martha Willis be stricken out, and that the legal beneficiary, which is you plaintiff, be placed upon said voucher, and that the said A. J. Johnson (who held said warrant) by mid order of this court, instructing him, A. J. Johnson, to pay over the money to your plaintiff.”

No demurrer or exception was nrged to the petition in the lower court. Defendant Grand Order answered to the effect that it owed the money sued for, and deposited the same in said court, and asked the court to determine to whom the money should be paid.

We think the allegations of plaintiff’s petition and prayer for relief were sufficient to support the judgment rendered.

On general demurrer a pleading should be liberally construed, and all reasonable inferences from the facts alleged in the pleadings as a whole should be made in aid thereof. Ball v. Water Corporation, 127 S. W. 1068; Trezevant & Cochran v. Powell & Co., 130 S. W. 234; Watson v. Harris, 130 S. W. 237; Ry. Co. v. Gilbert, 130 S. W. 1037; Mack v. Ry. Co., 134 S. W. 846; W. B. Walker & Sons v. Fisk, 136 S. W. 101; Shelton v. Cain, 136 S. W. 1155; Gibbens v. Bourland, 145 S. W. 274; National Lumber & Creosoting Co. v. Maris, 151 S. W. 325; Hoechten v. Standard Home Co., 157 S. W. 1191.

Appellants also insist that the matters alleged in plaintiff’s petition do not entitle her to the relief decreed by the court, because it is shown on the face of the petition that the policy sued upon is a fraternal benefit insurance certificate for $500, issued to Martin Turner, in which plaintiff is named as beneficiary subject to the option of the insured to change the name of the beneficiary named therein; and that as the policy or certificate sued on was a fraternal benefit certificate, subject to surrender and change at the option of the insured without the consent of plaintiff, .and as the same did not become due until after the death of the insured, plaintiff had no vested right in said certificate at the time of the alleged change, and cannot urge as a defense the insanity and consequent incapacity of the insured at the time of said change as a defense against interveners’ cross-action. This ' assignment partakes of the nature of a general demurrer to plaintiff’s petition. Therefore, in considering the same, we must, for the purpose of considering the demurrer, accept as true and as admitted that Martin Turner was insane at the time the change in the name of the beneficiary in the policy was made, as alleged by plaintiff.

A general demurrer to a petition admits the truth of all facts alleged therein, and all inferences reasonably deducible therefrom, and, in testing the sufficiency of the petition on general demurrer, we must indulge in its favor every reasonable intendment arising from the allegations therein. State v. Racine Co., 134 S. W. 400; Western Union Tel. Co. v. Ashley, 137 S. W. 1165; Wiggins v. Bisso, 92 Tex. 219, 47 S. W. 637, 71 Am. St. Rep. 837; Comer v. Burton-Lingo Co., 24 Tex. Civ. App. 251, 58 S. W. 969; State v. Ry. Co., 99 Tex. 516, 91 S. W. 214, 5 L. R. A. (N. S.) 783, 13 Ann. Cas. 1072.

Assuming, then, that Martin Turner was insane and without legal _ capacity to contract and make the change of beneficiaries in the policy, as alleged by plaintiff, the question presented for our decision by this assignment is: Does the fact that Martin Turner, the insured, was insane, and without legal capacity to contract and make said change in his policy at the time of the alleged change, render such change voidable ‘ at the instance of plaintiff, who holds, and who has sued to recover, under the original policy, in which she is beneficiary? We answer this question in the affirmative. Martin Turner could no more, while insane and legally incapacitated to contract, make a valid and binding contract than if he were physically dead; and therefore the alleged change in said policy was void under the facts of this case, and being void, it left the original policy sued upon by plaintiff in force and effect at the time of the death of Martin Turner, and, as the beneficiary named therein, plaintiff became possessed of a vested right in said policy and may recover thereunder. We have carefully examined the authorities cited by appellants to support their contention under this assignment, and we do not think they have any application to the question presented. Appellants’ contention is overruled.

Appellants’ eleventh assignment is a copy of the fourth paragraph of their motion for new trial, and is as follows:

“The verdict and judgment should be set aside and new trial awarded to interveners because they show that after the jury went out to consider of their verdict at least one of the jury, to wit, Pat Smith; a member of said jury, was of the opinion that the interveners ought to recover the full amount of said certificate, and that he was of such opinion; and that one of the jurors, whose name cannot be learned, so that it can be sot forth herein, stated that the plaintiff had worked for ten years for deceased, and had carried slops for him, and that he, said juror, was an experienced insurance man, and knew that for that reason the plaintiff was entitled to recover; and said Smith, being ignorant of such matters, was induced to yield his opinion and agree to a verdict in favor of plaintiff, and he would not have done so but for the improper discussion of extraneous matters not in evidence, by said juror, and his improper statement regarding his expert knowledge of the matter under, question by said jury; and the affidavit of said Smith is herein attached and made a part hereof.”

The affidavit of the Juror Smith, in substance, as indicated in the above assignment, was attached to the motion for new trial.

We do not think the trial judge abused his discretion in not sustaining the motion for new trial on the grounds here presented, and we decline to interfere with his exercise of such discretion. We deem it unnecessary for us to go into a lengthy discussion of our reasons for sustaining the action of the trial court in not sustaining the motion for new trial. The assignment is overruled.

We find no error committed by the trial court, properly presented for our consideration, which should cause a reversal of the judgment of the trial court. Such judgment is therefore affirmed.

Affirmed.
      <§s»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: LEVY, J.

license: Public Domain

text:
    ROACH v. TEXAS EMPLOYERS’ INS. ASS’N et al.
    (No. 1771.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 23, 1917.
    Rehearing Denied April 26, 1917.)
    1. Pleading <&wkey;214(l) — Demurrer— Admission.
    Demurrer to the petition admits the facts alleged, and the Court of Civil Appeals must assume they are true.
    [Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 525, 529.]
    2. Master and Servant <&wkey;416—Workmen’s Compensation Act—Award oe Industrial Accident Board—Final Character—Statute.
    Under Workmen’s Compensation Act (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5246q), the parties interested in a claim may go or appeal to the courts for determination of the claim, or may, under the act, have the Industrial Accident Board make a final ruling and decision upon adjustment of the claim, when the parties consent for the board to proceed under the act, and finally determine the claim for compensation, and do not withdraw consent before there has been final ruling and decision by the board on the claim, then the decision of the board is final by the terms of the act, the statute requiring any party interested in the claim to exercise his option to resort or appeal to the courts before the board makes final decision upon adjustment of the claim, so that a decision or award of the board, made on consent of all parties, was final, and constituted the only remedy for the father of the deceased servant.
    3. Master and Servant &wkey;3385(20) — Workmen’s Compensation Act — Suit on Award —Recovery.
    In suit on an award of compensation under the Workmen’s Compensation Act by the Industrial Accident Board, plaintiff must recover on the award according to its terms allowing weekly sums, and not in a lump sum.
    4. Master and Servant &wkey;>396 — Suit to Enforce Award of Industrial Accident Board — Jurisdiction.
    In suit in the district court to enforce an award, under the Workmen’s Compensation Act, of the Industrial Accident Board, the court has jurisdiction if sufficient weekly installments are due at the time of suit to amount to the court’s jurisdictional amount.
    5. Master and Servant <&wkey;411 — Workmen’s Compensation Act — Enforcement of A ward — Remed y .
    In suit to enforce an award of compensation under the Workmen’s Compensation Act by the Industrial Accident Board, the remedy for enforcement of the award, if proven, is not by mandamus or mandatory injunction, but by execution.
    6. Master and Servant <&wkey;416 — Workmen’s Compensation Act — Award—Finality.
    Where, with consent of all parties, the Industrial Accident Board awarded compensation under the Workmen’s Compensation Act against the Employers’ Insurance Association, claimant had no cause of action against the employer; the award being final.
    Appeal from District Court, Hopkins County; Wm. Pierson, Judge.
    Action by T. W. Roach, against the Texas Employers’ Insurance Association and the Gulf Pipe Line Company. From a judgment for defendants, plaintiff appeals.
    Judgment, except as to the Gulf Pipe Line Company, reversed, and cause remanded for new trial, but affirmed as to Pipe Line Company.
    The minor son of appellant was in the employ of the Gulf Pipe Line Company, and in the course of his work received an injury which appellant claims ultimately caused his death; and the appellant filed a claim for compensation for the death of his son with the Industrial Accident Board against the Texas Employers’ Insurance Association as the insurer of the Gulf Pipe Line Company, a subscriber under the Employers’ Liability Act. On March 23, 1916, the Industrial Accident Board made its findings of fact and decision in favor of appellant. Appellant brings the present suit, based on the decision of the Industrial Accident Board, to have the court enter a decree thereon and to enforce the payment of the decree upon the ground that the said insurance association •has failed and refuses to pay the compensation, or any part of it, as provided in the decision of the said Industrial Accident Board, under the provisions of the Employers’ Liability Act. The plaintiff alleged that, after his claim was filed with the Industrial Board and notice thereof was given the insurance association, the said insurance association consented to submit all matters in dispute to the said Industrial Accident Board for final decision, and presented, as did the plaintiff, full evidence on the merits of the claim to the said board; and that thereupon the said board made final ruling and decision upon and adjustment of the claim. The petition pleaded in the alternative, in the event the court should hold that the decision of the said board may not be sued on and enforced, that, as an original cause of action and upon the facts specially set forth, the plaintiff have judgment against the said insurance company for the compensation provided by the act. The petition also contained a third count, as an alternative remedy, seeking, under common-law liability, to recover a judgment for damages against the Gulf Ripe Line Company. The Gulf Pipe Line Company presented a general demurrer and certain special demurrers to the petition as it relates to it, all of which were sustained by the court, and judgment was entered thereon for said defendant. And the insurance association presented, and the court sustained, a general demurrer and certain special demurrers to the petition as it relates to the proceedings and decision of the Industrial Accident Board set out in the first count. The case was tried before a jury on the second alternative count in the petition seeking to establish a recovery against the insurance association for the compensation allowed by the terms of the compensation act. The jury on special issues found that the deceased was injured while in the employ of the Gulf Pipe Line Company, but that his death was not due to injuries so received ; and on the verdict the court entered judgment for the defendant insurance association.
    R. D. Allen, of Sulphur Springs, for appellant. Harry P. Lawther, of Dallas, for ap-pellees.
   LEVY, J.

(after stating the facts as above). The appellant predicates error upon the ruling of the court in sustaining the demurrer to his first count in the petition seeking to have a decree entered and enforced by execution upon the decision or award as such of the Industrial Accident Board on the claim made under the liability act. According to the alleged facts, which we must assume as true, the plaintiff and the insurance association each consented for the said Industrial Accident Board to finally determine the claim for compensation, and neither of them withdrew consent to proceeding under the said act before there had been final decision by the board upon the claim made under the act. These facts, if proven, would seem to establish that the parties at interest exercised their option and agreed to a proceeding under the act, and that the claim made under the act had ripened into an award of compensation assessed by the act. In view of these alleged facts, there was error it is believed, in sustaining the demurrer. Article 5246q, Vernon’s Sayles’ Statutes, provides:

“All questions arising under this act, if not settled by agreement of the parties interested therein, shall, except as otherwise herein provided, be determined by the Industrial Accident Board. Any interested party who is not willing, and does not consent to abide by the final ruling and decision of said board on any disputed claim may sue on such claims or may require suit to be brought thereon in some competent court of competent jurisdiction, and the board shall proceed no further toward the adjustment of such claim; provided, however, that whenever any such suit is brought, the rights and liabilities of the parties thereto shall be determined by the provisions of this act, and the suit of the injured employs, or person suing o'n account of the death of such employs, shall be against the association, if the employer of such injured or deceased employé is at the time of such injury or death a subscriber, as defined in this act, in which case the recovery shall not exceed the maximum compensation allowed under the provisions of this act, and the court shall determine the issues in such cause instead of said board.”

And in the ease of Fidelity & Casualty Co. v. House,. 191 S. W. 155, we construed the above article, and still adhere to the interpretation of the article as there given. We there construed the article as providing by its terms that the parties at interest in the claim made under the act have the option to go or appeal to the courts for determination of the claim under the act, or may consent and take proceedings under the act and have the Industrial Accident Board make a final ruling and decision upon and adjustment of the claim under the act. , When the parties at interest in the claim made under the act consent for the Industrial Accident Board to take proceedings under the act and finally determine the claim for compensation under the act, and do not withdraw consent before there has been final ruling and decision by the said board upon such claim, then, in virtue of the exercise by the parties of their option, the decision of said hoard upon the said claim is, by the terms of the act, final. According to the language of the article “the board shall proceed no further toward the adjustment of such claim” when any interested party- in the claim “is not willing, and does not consent to abide by the final ruling and decision of said-' board on any disputed claim.” The “adjustment of such claim” that the board under the act may make consists merely in findings of fact. The compensation is fixed by the terms of the act. And such language would indicate the intention to require any interested party in the claim to exercise his option to resort or appeal to the courts before the board makes final decision upon and adjustment of the claim made under that act. Therefore, in this construction of the terms of the act, the decision or award sued on and as pleaded, if proven, would be final between the parties and constitute the only remedy for appellant in this suit.

It is concluded, though, that appellant would have to recover on the award according to its terms, and not in a “lump sum.” And as appellant may recover on the decision or award only such weekly sums as may be due, it is suggested that the question of jurisdiction of the district court is involved as to the amount in controversy. Jones et al. v. Dodd, 192 S. W. 1134. This question may not later arise if by the time of ihe next trial of this cause sufficient weekly amounts may be due as to give the district court jurisdiction and the petition is amended so as to include such amounts as are due.

The remedy for enforcement of the award, if proven, is, it is suggested, not by mandamus or mandatory injunction, but by execution.

The court did not err in sustaining the demurrer as to the alleged cause of action against the pipe line company.

The judgment of the district court, except as to the Gulf Pipe Line Company, is reversed, and the cause remanded for another trial. The judgment as to the Gulf Pipe Line Company is affirmed. The costs of appeal are taxed against the appellee Texas Employers’ Insurance Association except as to such costs as were incurred in the appeal by the Gulf Pipe Line Company, which will be taxed against the appellant.
      <§=»For other cases see same topic and KEV-NUMBER in all Key-Numbered Digests and Indexes

      c&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    INTERNATIONAL ORDER OF TWELVE KNIGHTS AND DAUGHTERS OF TABOR v. REYNOLDS.
    (No. 1781.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 17, 1917.
    Rehearing Denied April 26, 1917.)
    1. Insurance -<§=3771 — Fraternal Benefit Insukance — Beneficiary.
    If the beneficiary in a fraternal benefit certificate was eligible as being within one of the statutory classes of beneficiaries at the time he was designated as such, he may not be deprived of the rights acquired by him under the certificate, where there was no by-law requiring the beneficiary to belong to one of the specified classes at the death of the member.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1935, 1937.] .
    2. Appeal and Eeeoe <§^1011(1) — Review-Findings.
    A finding of the court upon conflicting evidence must be taken as a fact on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 39S3-398S.]

      3. Insurance <®=»770 — Fkíaternal Insurance — Beneficiary—Eligibility.
    Acts 31st Leg. (1st Ex. Sess.) c. 36, § 6, provides that -within the statutory restrictions each member of a fraternal order shall have the right to designate his beneficiary and to have it changed in accordance with the laws, etc., of the association. In July, 1612, the insured in a fraternal benefit certificate made a change of beneficiary with the consent of the local branch of the association, but the new certificate was' not issued until November 14, 1914. No rule or regulation of the order specifies the act which shall effectuate the change of a beneficiary. Meld that, as the statute only requires consent of the association.to a change of beneficiaries, the assured in July, 1912, having done all things required of her to effectuate a change, that date will control in determining the eligibility of the new beneficiary, and not the date of the issuance of the new certificate, which was only a ministerial act.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1933, 1937.]
    4. Insurance <§=^770 — Fraternal Insurance —Beneficiary—Statute .
    Yemen’s Sayles’ Ann. Oiv. St. 1914, art. 4832, providing that death benefits shall be confined to certain blood relatives or dependents, does not apply where a substituted beneficiary was eligible at the time of his appointment by the insured.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1933, 1937.]
    Appeal from Harrison County Court; Geo. L. Huffman, Judge.
    Action by Richard Reynolds against the International Order of Twelve ICnights and Daughters of Tabor and others, joined as defendants as adverse claimants, in which other parties filed a plea of intervention claiming the proceeds of the certificate. Judgment for plaintiff, and the named defendant appeals.
    Affirmed.
    Appellee, as beneficiary, sues appellant, a fraternal benefit association, upon a life insurance certificate for $300 issued by it to Nancy Lark, a member of said association. The petition joins two brothers of Nancy Lark, deceased, as defendants as adverse claimants of the proceeds of the certificate. Certain other brothers and sisters and nieces and nephews of Nancy Lark, deceased, filed a plea of intervention in the suit, claiming the proceeds of the certificate. The remaining four brothers and sisters of Nancy Lark, deceased, were impleaded as defendants. The defendant association answered, admitting that Nancy Lark was a member of the association, holding at her death a valid benefit certificate, and averred its willingness to pay the same to the persons legally entitled thereto. The case was tried before the court, and judgment was entered for the appellee. The defendant association only appealed, seeking to revise the judgment of the court.
    It appears that some time prior to January 1, 1912, a benefit certificate in the amount of $300 was issued by the appellant association to Nancy Lark, payable at her death to Bell Reynolds. Nancy Lark became feeble in health and financially unable to pay the assessments on her certificate. Prior to Nancy Lark’s sickness Bell Reynolds had been rendering her financial aid. Some time before July, 1912, Bell Reynolds, being afflicted with consumption, notified Nancy Lark that he could no longer render her assistance or pay her insurance premiums. Bell Reynolds died. Before the death of Bell Reynolds, and about July, 1912, Nancy Lark agreed with appellee, Richard Reynolds, as set out in the court’s finding of fact. The findings of the court are as follows:
    “(2) That the insured had become dependent upon the said Richard Reynolds, and that her earning capacity had become so small that she was no longer able to keep upi her dues or to pay the premiums on the said certificate; that Bell Reynolds, who was named beneficiary in the original certificate, and who had been assisting insured, became afflicted during the summer of 1912, and told the deceased that he was no longer able to pay her insurance; the insured and Richard Reynolds agreed that if he would keep up her premiums she would make him the beneficiary in the said certificate of insurance.
    “(3) That the said Richard Reynolds agreed to keep up the said premiums, in accordance with the agreement with the insured, Nancy Lark, and it was agreed between them that the beneficiary named in the certificate should be changed and Richard Reynolds named as beneficiary, the said Nancy Lark to have the advantage of the funeral benefit provided for in the policy, and the said Richard Reynolds to have the $300, the same being the amount of the policy, and that the local temple, Christian Herald Temple, No. 283, at Marshall, Tex., agreed to the change in beneficiaries; that the said Richard Reynolds did furnish the funds to keep all premiums paid up on said certificate; and that said Nancy Lark was in good standing at the time of her death.
    “(4) That- there was no evidence introduced to show, or tending to show, that the defendant or any of its officers (other than the officers of the local lodge) knew anything of the arrangement between Richard Reynolds and Nancy Lark by which he was to pay or furnish the funds with which to pay the dues and assessments of the said Nancy Lark, nor was there any testimony showing, or tending to show, that the officers of the. lodge or order knew that the said Richard Reynolds was not related to Nancy Lark.
    “(5) That the plaintiff was in no way related to Nancy Lark, and was not in any way dependent upon her, and never had at any time been so; that# the following persons were next of kin, being brothers and sisters, and children of brothers and sisters, of the said Nancy Lark: Si Mahaffey, Joe Mahaffey, George Mahaffey, Robert Mahaffey, Olay Mahaffey, Callie Rowell and husband, Melton Powell, Tom Mahaffey, Lillie Scott, Buddie Scott, Little Scott, Sarah Ann Phillips, George Scott, Mitchell Scott, Manson Scott, and Caroline Whittier; that Manson Scott, a half-brother, and Caroline Whittier, a half-sister, knew of the agreement between Richard Reynolds and Nancy Lark, and have filed in the court a written transfer of any interest they might have in the said certificate.
    “(6) That on the 14th day of November, 1914, a new certificate was issued, naming -the said Richard Reynolds as beneficiary, and that he furnished the deceased money with which to pay all dues and assessments on said policy up to the date of her death from and after the summer of 1912.”
    The certificate on its face does not stipulate any particular mode or way of changing a beneficiary, and there are no by-laws or constitution of the order in evidence.
    S. P. Jones and T. P. Harte, both, of Marshall, for appellant. Beard & Davidson, of Marshall, for appellee.
   LEVY, J.

(after stating the facts as above). The appellant by proper assignments of error makes the point that the appellee may not be allowed to recover the proceeds of the benefit certificate, because, according to the evidence, he does not come within the statutory classes of beneficiaries. It does not appear in the record that the laws of the association require the beneficiary to belong to one of specified classes at the death of the member. If, therefore, the plaintiff was eligible as a beneficiary, as being within one of the statutory classes of beneficiaries, at the time he was designated as such, he may not be deprived of the rights acquired by him under the certificate. According to the court’s finding of fact:

“The insured had become dependent upon the said Richard Reynolds, and her earning capacity had become so small that she was no longer able to keep up her dues or to pay the premiums on the said certificate.”

And this finding of the court that “the insured had become dependent upon the said Richard Reynolds” must be by this court taken as a fact; for the evidence in this respect is conflicting. The witness Joe Mahaffey, a brother of the deceased, testified:

That Nancy Lark “had lived with Bell Reynolds and Richard Reynolds for a number of years, and was in feeble health. About a month or so before her death she spent several weeks at his brother Olay’s. That her [insured’s] father and mother were dead.”

And the plaintiff testified that, besides paying the premium on the certificate, he did “other things in a financial way for her [insured’s] support and maintenance.” So this fact, if found by the court, that the insured was dependent for support and maintenance on the aid of plaintiff, would show that the appellee was in a class enabling the insured to name .him as a beneficiary under Acts 1909, p. 357. Section 6 of the said act especially provides:

“Provided, that if after the issuance of the original certificate the member shall become dependent upon the charity of an individual or of an institution, he shall have the privilege, with the consent of the association, to make such individual or institution his beneficiary. Within the above restrictions each member shall have the right to designate his beneficiary, and from time to time have the same changed in accordance with the laws, rules or regulations of the association, and no beneficiary shall have or obtain any vested interest in the said benefit unul the samé has become due and payable upon the death of the said member. Provided, that any association may, by its laws, limit the scope of beneficiaries within the above classes.”

It appears as a fact that after the issuance of the original certificate, and in July, 1912, the insured agreed with appellee to change the beneficiary and name him as her beneficiary. It further appears:

“That the local temple, Christian Herald Temple, No. 283, at Marshall, Tex., agreed to the change in beneficiaries.”

It does not appear from any finding of the court, and there is no insistence made, that the local temple was without authority to act for the association in assenting to the change of beneficiaries. Thus it appears that in July, 1912, the insured made a change in the beneficiary with the consent of the local temple of appellant association. The act of 1909 makes consent of the association necessary only in order to effectuate a change of beneficiaries. And there is no evidence of any regulation of the association which undertakes to fix, and the certificate in evidence does not fix, the time when a change in the- beneficiary shall become effective, or specify the act which shall effectuate the change. In these circumstances a valid change of the beneficiary was, it is believed, effectuated in July, 1912, and that date of eligibility as a beneficiary would control. The date of the issuance of the new certificate -on November 14, 1914, would not control over the date of July, 1912, at which time the appellee was designated as substituted beneficiary by the insured, with the consent of the association acting through its local temple. The insured in July, 1912, had done all the things required of her in order to effectuate a change of beneficiary, and the only thing lacking to complete such change was the performance of the ministerial act on the part of the association of making a proper record of the change, which it did here by issuing a new certificate in lieu of the original.

As there had been effectuated a change of beneficiaries in 1912, and at that time the appellee was eligible under the facts as a beneficiary, the Acts of 1913 (article 4832, Vernon’s Sayles’ Statutes) would not he applicable.

There being a valid change of beneficiary, the association will he protected in making the payment to appellee, and the judgment is affirmed.
      téroFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ©=s>Fqr other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WOOSTER et al. v. HOECKER.
    (No. 7317.)
    (Court of Civil Appeals of Texas. Galveston.
    March 13, 1917.
    Rehearing Granted in Part April 26, 1917.
    Rehearing of J. B. Arpin Dredging Company Denied May 10, 1917.)
    1. Partnership <®=3174^-Tobt of Fikm — Dia-bility of Subsequent Membosk.
    A person who became a member of a partnership long after it dug a ditch across another’s land, damaging it, was not liable individually for such damage.
    [Ed. Note. — Por other cases, see Partnership, Cent. Dig. § 306.]

      2. Limitation of Actions &wkey;>124 — Commencement of Action — Two-Year Statute —Addition of Parties.
    Defendant, member of firm which damaged plaintiff’s land, becoming such subsequent to damage, who was not made party to plaintiff’s suit against firm until more than two years after cause of action arose, and did not enter his appearance until after he was made a party, could rely on the two-year statute of limitations.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 541.]
    On Motion for Rehearing.
    3. Appeal and Error &wkey;5714(4) — Jurisdiction — Admission by Counsel.
    Where counsel who represented a firm admitted in writing on the firm’s appeal that the members of the firm, who were shown to have been such, authorized filing of the answer filed by attorneys, the admission on the part of counsel supplied and conceded all required to satisfy the Court of Civil Appeals that the firm was before the trial court and before the Court of Civil Appeals by the appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2962.]

      4. Appeal and Error &wkey;>878(l) — Appeal by Firm — Review of Judgment for Individual Members.
    Whore the appeal was by an individual defendant and by a defendant firm only, plaintiff not appealing from the judgment rendered in favor of two members of the firm, such part of the judgment is not before the Court of Appeals for review.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3573, 3574.]
    Error from District Court, Galveston County; Clay S. Briggs, Judge.-
    Suit by F. W. Hoecker against the J. B. Arpin Dredging Company and others. To review a judgment for plaintiff against the Dredging Company and another individually, the latter bring error.
    Judgment against the Dredging Company affirmed, and judgment against the individual reversed and rendered.
    Stewarts, of Galveston, for plaintiffs in error. James B. & Charles J. Stubbs and H. H. Treaccar, all of Galveston, for defendant in error.
   LANE, J.

This suit was originally brought by F. W. Hoecker against the Galveston county drainage district No. 1 and the J. B. Arpin Dredging Company, which was alleged to be a corporation for the recovery of certain land and for damages thereto. Service of citation was had upon one M. J. Bever, of Harris county, on August 17, 1912, who-, it was alleged, was the agent of said alleged corporation.

On the 10th day of September, 1912, the law firm of Gill, Jones & Stone, as attorneys for the J. B. Arpin Dredging Company, filed an answer for said company, neither admitting nor denying that said company was a corporation, as alleged by plaintiff. Said -answer consisted of a general denial, and specially pleaded:

“Further answering thereto, this defendant says that if it damaged the plaintiff in the respects mentioned that said damages were brought about under the following circumstances: That the board of commissioners of drainage district No. 1 of Galveston county, Tex., did through their civil engineer lay out the plans and specifications of the drainage ditches to be dug in said district, did indicate where said ditches should be placed on the ground, and did, by written contract, employ one J. C. Kelso, of Galveston county, Tex., to do said work under the supervision and superintendence of the said civil engineer; that defendant did said work and finished said ditch as subcontractor under the said J. 0. Kelso, but with the knowledge, acquiescence, and consent of the drainage commissioners of said district No. 1. Wherefore this defendant says it is not-liable in any respect, or to any extent, in the premises, and it therefore prays-that it may go hence with its costs.”

The cause was continued from term to term until the 16th day of January, 1915, at which time Judge W. B. Lockhart, as amicus curiae, submitted to the court that J. B. Arpin Dredging Company was never a corporation as alleged by plaintiff, but that it has always been a copartnership, composed of J. B. Arpin -and E. P. Arpin, residents of the state of Wisconsin, and C. M. Wooster, a resident of Harris county, Tex. The court’s attention was also called to the fact that the service of citation, upon M. J. Bever, as agent of J. B. Arpin Dredging Company, a corporation, was in no wise a service upon J. B. Arpin Dredging Company, a copartnership, and that -the said answer filed by Gill, Jones & Stone, was not an appearance of said J. B. Arpin, E. P. Arpin, or O. M. Wooster.

On the 4th day of February, 1915, by leave of the court, plaintiff filed his trial amendment, and alleged that by mistake he had alleged in his original petition that the J. B. Arpin Dredging Company was a corporation, but as a fact said company was not a corporation, but was a copartnership composed of J. B. Arpin, E. P. Arpin, and C. M. Wooster ; that said allegation in said original petition was not denied by said answer filed by Gill, Jones & Stone, attorneys for said company, nor by said company prior to the filing of such answer; that said answer did not disclose the identity of said company, but by said answer said J. B. Arpin Dredging Company fraudulently concealed its real legal identity; that more than two years elapsed from the filing of plaintiff’s original petition before said amicus curise made known to plaintiff the legal identity of said J. B. Arpin Dredging Company, and that such concealment of a matter required by law to be expressed was without the knowledge of plaintiff, and was an act of fraud upon plaintiff’s rights, and plaintiff is entitled to recover against the firm of J. B. Arpin Dredging Company and against the partners composing said firm, they having authorized -appearance in said suit, and later, and before trial, having voluntarily appeared and answered.

On the 4th day of February, 1915, defendants J. B. Arpin Dredging Company and C. M. Wooster filed their answer, disclaiming any interest in the land sued for by plaintiff, denying generally all other allegations of plaintiff’s petition, and by special plea they say :

“The defendants and each of them say that each and all of the acts complained of in the second amended original petition, and more particularly the acts complained of in paragraphs 1, 2, 3, 4, and 5 thereof, occurred, if at all, about or during the month of November, 1910, and that these defendants and each of them are now sued for the first time in this action, by the filing against them and each of them of the second amended petition on the 8th day of November, 1915; that such pleading was filed on the 8th day of November, 1915, more than two years and more than four years after the accrual of the cause of action set up therein; that these defendants and each of themi pleaded in bar of the cause and causes of action as set up in such second amended original petition, and each of them the statutes of limitation of the state of Texas in such cases made and provided.”

All issues between the Galveston county dredging district and other parties and the question as to the title to the land sued for were finally disposed of in the trial court and are not involved in this appeal; therefore no further mention of said drainage district nor of the land in question will be made herein.

The case was tried before the court without a jury, and judgment was rendered in favor of plaintiff, E. W. Hóecker, against defendant G. M. Wooster individually, and the firm of J. B. Arpin Dredging Company, for the sum of $200.10. O. M. Wooster and J. B. Arpin Dredging Company have brought the case before this court by writ of error.

Plaintiffs in error, C. M. Wooster and J. B. Arpin Dredging Company, insist that the court erred in rendering judgment against them, or either of them: First, because the evidence presented indisputably shows that neither of them were sued or made parties to this suit until more than' four years had elapsed since the accrual of the cause of action asserted by defendant in error against them, and that said! cause of action, if any, was barred by the statute of limitation pleaded by them; second, because the evidence presented indisputably shows that the J. B. Arpin Dredging Company, sued as a partnership; was not in existence at the time the injury or damage complained of by the plaintiff was done, to wit, on the 10th'day of November, 1910, and that C. M. Wooster was not at that 'time a partner of any copartnership doing business under the name of J. B. Arpin Dredging Company, or under any other name whatever.

The undisputed evidence shows that as a subcontractor J. B. Arpin, a resident of Wisconsin, for himself and for himself and another or others, dug, or caused to be dug, a ditch upon the land of plaintiff, F. W. Hóecker, on the 10th day of November, 1910, which caused the damage sued for by plaintiff; that said contract was made by J. B. Arpin under the name of J. B.. Arpin Dredging Company; that at the time said damage was done defendant C. M. Wooster was working for said J. B. Arpin or J. B. Arpin Dredging Company, for a salary payable monthly, and that Wooster was not a member of the firm of J. B. Arpin Dredging Company in the year 1910, at the time said damage was done; that he became a member of a firm or copart-nership composed of J. B. Arpin, E. P. Arpin, and C. M. Wooster some time in 1911, after said damage was done.

It is shown by the record that plaintiff, Hoecker, brought this suit against J. B. Ar-pin Dredging Company on the 22d day of June, 1912; that in his petition he alleged that said company was a Texas corporation, and that one M. J. Bever, of,,Harris'County, was its agent; that citation was issued in such suit and served upon said Bever on the 17th day of August, 1912, and that on the 10th day of September, 1912, Attorneys Gill, Jones & Stone, of Houston, filed an answer, which appears upon its face to be an answer of the J. B. Arpin Dredging Company, without any reference to whether said company was a corporation, as alleged by plaintiff, or a copartnership, or an individual only; that after such answer was filed the ease was continued from term to term to January, 1915, at which time the attention of plaintiff was called to the fact that said company was not a corporation, by amicus curiffi, Lockhart; that on February 4, 1915, after plaintiff’s attention had been called to such fact, he filed a trial amendment alleging for the first time that he had made a mistake in alleging .in his original petition that J. B. Arpin Dredging Company was a corporation; that in fact said company was a copartnership, composed of J. B. Arpin and E. P. Arpin, residents of the state of Wisconsin, and C. M. Wooster, of Harris county, Tex.; that by the answer filed by Gill, Jones & Stone for the defendant, within two years after the alleged damage occurred, he was fraudulently induced to believe that said company was a corporation, as originally alleged by him; that such answer was a fraudulent concealment of the legal identity of said company; and that by reason thereof he failed to sue J. B. Arpin, E. P. Arpin, and C. M. Wooster within two years after said damage occurred, which he would have done had he not been so deceived by said answer. There is no evidence conclusively showing who authorized Gill, Jones & Stone to file the answer filed by them. There is no evidence that C. M. Wooster employed said attorneys to file said answer, or that he in any way authorized its filing, but, on the contrary, he testified that he did not employ counsel for the J. B. Arpin Dredging Company, nor authorized the filing of such answer. He also testified that about the time said answer was filed J. B. Arpin was in Houston, and that he supposed that he, J. B. Arpin, or M. J. Bever employed counsel to file said answer, but that he did not know positively who employed said counsel, as he had not talked to them about the matter of employment or about the answer filed by them, nor did he know anything about the suit until he was served with citation in 1915.

From what has been said we think it clear that no recovery can be had against defendant O. M. Wooster for the alleged damage, because: First, his uncontradicted testimony shows that he was not a member of the firm which did the damage complained of until long after said damage occurred; second, that he was not made a party to this suit until February 4, 1915, more than two years after plaintiff’s alleged cause of action arose, and that it is not shown that he entered his appearance in any way in said cause until after he was made a party on February 4, 1915, and he has pleaded the two-year statute of limitation in bar of plaintiff’s right to recover against him.

We also think that no recovery can be had against the defendant J. B. Arpin Dredging Company, a copartnership, or against J. B. Arpin or E. P. Arpin, parties alleged by plaintiff’s trial amendment filed herein on the 4th day of February, 1915, to be members of said firm, in the.absence of proof that either J. B. Aipin, E. P. Arpin, or some one by them legally authorized, employed and authorized Gill, Jones & Stone to file the answer filed by them on the 10th day of September, 1912. These defendants were first made parties eo nomine to this suit by plaintiff’s trial amendment filed February 4, 1915, more than two years after the damage complained of was alleged to have occurred, and plaintiff’s cause of action is barred by the statute of limitation pleaded by said defendant J. B. Arpin Dredging Company, unless it be shown that the answer filed by Gill, Jones & Stone was authorized by either J. B. Arpin. E. P. Arpin, or by some one by therm-authorized so to do, hut in such event said answer would be an appearance of said copartnership and of such member or members of said copart-nership as authorized the filing of such answer, which was filed before the expiration of two years from the date of the damage complained of. In other words, if it had been shown that either J. B. Arpin or E. P. Arpin had in fact filed an answer on September 10, 1912, under the name of J. B. Arpin Dredging Company, the party or parties so filing such answer and the firm would be before the court, and a recovery agaipst such person and firm might have been had (Pickering Mfg. Co. v. Gordon, 168 S. W. 14), but it is not shown by the evidence that either J. B. or E. P. Ar-pin filed or authorized the filing of the answer by Gill, Jones & Stone, and until it is shown that said parties authorized the filing of such answer, no judgment can be had against either of them or the firm.

Defendant in error Hoeeker, however, contends that as he ■was deceived by the answer filed by Gill, Jones & Stone as to the legal identity of the proper defendant or defendants, as hereinbefore more fully stated, the statute of limitation did not begin to run against his cause of action until he was ad-. vised of the identity of said defendants by amicus curios, Lockhart, in 1915.

It is unnecessary for us to decide whether the answer filed by Gill, Jones & Stone was a fraud and in effect concealed from plaintiff the legal identity of the defendant, for the reason it is not shown that any of the parties sued authorized the filing of the same, and for the further reason that, if it were shown that any member of said firm of J. B. Arpin Dredging Company authorized the filing of such answer, such answer would constitute an appearance for such party and the firm, in the suit then pending,, upon a cause of action not then barred by the statute of limitation pleaded by defendants.

We reach the conclusion that there is no evidence to show that defendant Wooster was in any manner intérested in the contract made by J. B. Arpin for the construction of the ditch which caused the damage complained of by plaintiff at the time of such damage, but, on the contrary, it is shown by the uncontradicted testimony of Wooster that he had no interest in said contract. AVe also conclude that, if it were conceded that Wooster was interested in the digging of the ditch which caused the damage complained of, his plea of limitation should prevail, because the undisputed evidence shows that more than two years elapsed from the date of such damage before Wooster was made a party to the suit; that he filed no answer in said cause, nor made his appearance otherwise therein, until he filed his plea of limitation in February, 1915, more than two years after plaintiff’s cause of action accrued. We therefore reverse so much of the judgment of the trial court as decreed a recovery of damages against C. M. Wooster, and we here render judgment in favor of said C. M. Wooster against plaintiff, F. W. Hoeeker, for all costs by him incurred herein.

We also conclude that, as the pleading and the evidence show that neither J. B. Arpin, E. P. Arpin, or the J. B. Arpin Dredging Company, a copartnership, or either of them, were made parties to this suit until more than two years after plaintiff’s cause of action arose, their plea of limitation should prevail, unless it can be shown that either J. B. or E. P. Arpin authorized Gill, Jones & Stone to file the answer filed by them on the 10th day of September, 1912. There being no evidence that either of said parties authorized the filing of said answer by Gill, Jones ■ & Stone, we reverse so much of the judgment of the trial court as decrees a recovery of damages against the defendant J. B. Arpin Dredging Company, and-remand the ; cause for retrial of the issues involving the question of damages between the J. B. Arpin Dredging Company, J. B. Arpin, and E. P. •Arpin and plaintiff, HoeckerJ in the event it be shown that any member of said firm authorized the filing of Said answer filed by Gill, Jones & Stone.

The judgment of the trial court is reversed and remanded in part, and in part here rendered for appellant C. M. Wooster.

Reversed and rendered in part, and reversed and remanded in part.

On Motion for Rehearing.

In our original opinion we reversed so much of the judgment of the trial court as was in favor of E. W. I-Ioeeker against O. M. Wooster for damages, and rendered judgment for Wooster. We also therein held that, as there was no evidence to show that either' the J. B. Arpin Dredging Company, J. B. Arpin, or E. P. Arpin authorized the filing of the answer purporting to be the answer of the J. B. Arpin Dredging Company filed by Gill, Jones &. Stone on the 10th day of September, 1912, and as the evidence shows neither of the parties were otherwise served with citation, no recovery could be had against either of them for the damages sued for, and as to these parties we reversed the judgment and remanded the cause for another trial, upon the question of their liability for the alleged damages.

Since filing the original opinion counsel who represented the J. B. Arpin Dredging Company, and who presented oral argument in its behalf before this court, has filed a paper in this court in this case which he has indorsed, “’Suggestion of Amicus Curiae,” and in which it is suggested to this court that the answer filed by Gill, Jones & Stone was the answer of J. B. Arpin and E. P. Arpin, and that thereby they were before the trial court, and that judgment had been rendered in their favor by the trial court, to the entry of which no exception had been taken, nor appeal perfected, and that such judgment should be affirmed by this court.

Since the paper above mentioned has been filed appellee, I-Ioecker, has filed his motion for rehearing, and, among other things, contends that, since counsel who represented the J. B. Arpin Dredging Company has in writing admitted that J. B. and E. P. Arpin, who are shown to have been members of the firm of J. B. Arpin Dredging Company, authorized the filing of the answer filed by Gill, Jones & Stone, the said J. B. and E. P. Ar-pin, as well as the dredging company, were before the trial court, and that such admission on the part of counsel for said dredging company supplies and concedes all that was required to satisfy this court that said company and the members thereof were before the trial court, and that they are before this court by appeal.

We think this contention should be sustained in so far as it relates to the J. B. Ar-pin Dredging Company, but not as to the individual parties, as they were not brought before this court by the appeal. The appeal in this case was by C. M. Wooster and the J. B. Arpin Dredging Company only. Appellee did not appeal from the judgment rendered by the trial court in favor of J. B. and E. P. Arpin, and therefore that part of the judgment is not before us for review. But since it is admitted that J. B. Arpin Dredging Company was before the trial court, by answer authorized by the members of the firm, we think appellee’s motion for rehearing should be in part granted, and that so much of the judgment of this court as reversed the judgment of the trial court in favor of E. W. I-Ioecker against the J. B. Arpin Dredging Company should be set aside, and that the judgment of the trial court against the J. B. Arpin Dredging Company should be affirmed, and it is so ordered. We also set aside so much of our former judgment as reversed the judgment of the trial court in favor of J. B. and E. P. Arpin. As that part of the judgment of the trial court was not appealed from, it will remain undisturbed.
      ©scPor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      &wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    EASTMAN et al. v. TIGER VEHICLE CO.
    (No. 7789.)
    (Court of Civil Appeals of Texas. Dallas.
    April 21, 1917.
    Rehearing Denied May 26, 1917.)
    1. Commerce <&wkey;40(.l)— “Interstate Commerce” — What Constitutes.
    A corporation which manufactures goods out of the state, and ships them into the state to a commission agent, by whom they are sold, is engaged in interstate commerce, and not in transacting business in the state, within Rev. St. 1911, art. 1314, requiring licenses from corporations doing business within the state, nor did the unauthorized conversion of the goods by the agent change the character of the transaction.
    [Ed. Note. — Eor other cases, see .Commerce, Cent. Dig. §§ 29, 30.
    Eor other definitions, see Words and Phrases, Eirst and Second Series, Interstate Commerce.]
    2. Commerce <&wkey;40(l) — Interstate Commerce —What Constitutes.
    Nor when such corporation shipped vehicles into the state for exhibition at the state fair, where the agent sold and took orders for them, did it engage in intrastate commerce.
    [Ed. Note. — Eor other cases, see Commerce, Cent. Dig. §§ 29, 30.]
    Appeal from District Court, Dallas County; E. B. Meese, Judge.
    Action by the Tiger Vehicle Company against Charles Eastman and others. Judgment for plaintiff, and defendants. appeal.
    Affirmed.
    Ross M. Scott and Wl D. Cardwell, both of Dallas, for appellants. C. hi. Smithdeal and B. B. Stroud, Jr., both of Dallas, for appel-lee.
   RASBURY, J.

Appellee, a private corporation, secured verdict and judgment in the court below against appellants for $1,097.39, with interest and costs. The sole issue on appeal is the right of appellee to maintain the suit. Appellee’s contention is that the transactions between tbe parties forming tbe basis of its suit were interstate commerce. Appellants’ contention is that such transactions were intrastate commerce, and, it appearing from the record that appellee bad not secured the permit from tbe state authorities required by article 1314, Rev. Stats. 1911, it was not entitled under succeeding article 1318 to maintain the suit.

Tbe facts disclosed by tbe record bearing on tbe issue so raised are without dispute, and are in substance these: Appellants, who are Charles Eastman and B. T. Sneed, and appellee, an Illinois corporation, on August 4, 1914, entered into a contract in writing by which appellee employed appellants to solicit orders for and sell its vehicles in the states of Texas, Louisiana, and Arkansas. Upon all vehicles shipped upon orders secured by appellants, appellee agreed to pay them as compensation 7 per cent, of the invoice price thereof. Any money advanced appellants by appellee for expenses or otherwise was to be repaid, and could be deducted from any commissions or other money due appellants. Either party could terminate the agreement by giving to the other 30 days’ written notice thereof. While it is of no controlling force, it is proper to say that appellee advanced appellants $675 under the contract, and that appellee solicited orders from merchants in the state, securing but two, however, one only being approved. While appellants were in Freeport, Ill., presumably reaching an agreement with appellee, it was agreed between them that appellee would ship a car of its vehicles to Dallas for exhibition at the Texas State Fair, appellee to pay all legitimate expenses in that connection, such as floor space, display building, signs, etc. Appellants were to exhibit and sell the vehicles under the terms of the contract, accounting to appellee for the invoice price, plus the freight to Dallas, which was prepaid by appellee. The car of vehicles was shipped and received and placed on exhibition by appellants. The advertising matter at the exhibition arranged by appellants was in the name of Tiger Vehicle Company, Eastman & Sneed agents. Several of the vehicles were sold during the fair, but not delivered until the expiration thereof. Before the fair closed appellee suspended business, of which appellants were notified, and the contract terminated by the notice required thereby. The appellants disposed of all but five of the buggies, which were sequestrated in this suit, and appropriated the proceeds. The invoice price of the buggies, plus the freight and money advanced, less certain credits for expenses and commissions, constitute the verdict and judgment. Appellee did not secure the permit to transact business in Texas required by article 1314, supra.

We conclude this case should .be affirmed upon the authority of Miller & Co. v. Goodman, 91 Tex. 41, 40 S. W. 718; Allen v. Tyson-Jones Buggy Co., 91 Tex. 22, 40 S. W. 393; Lasater v. Purcell Mill & Elevator Co., 22 Tex. Civ. App. 33, 54 S. W. 425. In those-cases it is declared that a foreign corporation may sue in this state for the price of; goods manufactured by it in another state,, and sold through its agents in Texas, with-, out complying with article 1314, supra, on. the ground that such transaction is interstate commerce, and being so may not be-regulated by the state. The only difference-in the facts in the instant case and those in the cases cited is that appellee sued his. agents for the price of the goods shipped into the state to be sold, but which were appropriated by the agents. Such appropriation by the agents, however, could not change the character of 'the transaction. It is the-transaction and not the unauthorized acts of" the agents or others in reference to the property with which the parties are dealing-which determines its status. Appellants, by the contract and the course of dealing, were but agents for the sale of appellee’s vehicles,, which when sold were to be shipped from ap-pellee’s factory in Illinois. The fact that the-vehicles placed on exhibition at the Texas: State Fair were not sold in advance does, not affect the character of the transaction,, according to Miller v. Goodman, supra.

Appellants argue, however, that the agreement in reference to the exhibition, and the manner in which the vehicles were sold therefrom, changed the transaction from interstate commerce, as contemplated by ‘ the contract, to one of intrastate commerce. To support such contention, appellants rely upon Smythe Co. v. Ft. Worth G. & S. Co., 105 Tex. 8, 142 S. W. 1157; Buhler v. E. T. Burrowes Co., 171 S. W. 791; York Mfg. Co. v. Colley, 172 S. W. 206; Imperial Curtain Co. v. Jacob, 163 Mich. 72, 127 N. W. 772. Examination of those cases discloses transactions decidedly, distinguishable from those in the present case. Generally, they show a carrying on by the corporation of ■ its business or a portion thereof within the state. The first case cited, which is typical of the others, arose under a contract between a Pennsylvania corporation and a Texas corporation involving the erection of certain gas-producing machinery in the state of Texas, in the accomplishment of which it was necessary for the foreign corporation to employ local labor for a period of five weeks, and to purchase material of considerable cost to be wrought into the plant under the direction of an agent of the corporation on the ground. Such facts, it was declared, constituted in law the transacting of business in the state as distinguished from ordinary interstate commerce, such as the sale and delivery of any given commodity in the state. The facts disclosed by tbe present case we are constrained to believe fall short of any similarity to those in the cases cited. The only fact which distinguishes the instant case from the ordinary interstate transaction involved in the sale, shipment, and delivery of merchandise manufactured in one state and sent into another, upon orders solicited by agents, is placing.the vehicles on exhibition at the Texas State Pair, which could be sold by appellants under their contract. The most that can be deduced from that circumstance is that it was done in the furtherance of the business of the principal and agent by advertising the commodity. Appellee was not transacting its business at the exhibit. The only business transacted there was the agent’s business. Appellee was not selling vehicles there, for it is conceded by appellants that they were doing that under the terms of their employment, which, by the rule in Miller v. Goodman, did not change the interstate character of the transaction. Nor can the payment by appellee of the expenses incurred in arranging for the exhibit serve to change the actual transaction any more than could the payment by appellants of the freight thereon. Each perhaps assumed that the benefits arising from the exhibition would warrant the respective expenditures.

Por the reasons stated, the judgment is affirmed.
      <&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    SHAW et al. v. LINDSLEY.
    (No. 7857.)
    (Court of Civil Appeals of Texas. Dallas.
    April 28, 1917.
    Rehearing Denied May 26, 1917.)
    1. Municipal Corporations <&wkey;46 — Amendment of Charter — Constitution — “Majority Vote of the Qualified Voters of the City.”
    Const, art. 11, § 5, provides that cities having more than 5,000 inhabitants may, by a majority vote of the qualified voters of the city, at an election held for that purpose, adopt or amend their charters. Held, that the phrase, “majority vote of the qualified voters of the city,” means a majority vote of the votes polled at the election, though the number of qualified voters in the city can be shown by the tax collector’s records showing the number of poll tax receipts and exemption certificates issued.
    [Ed. Note. — Por other cases, see Municipal Corporations, Cent. Dig. §§ 123-125.
    Por other definitions, see Words and Phrases, Pirst and Second Series, Majority.]
    2. Municipal Corporations <&wkey;46 — Amendments of Charter — Home-Rule Bill — Porm of Ballot.
    Under Rev. St. art. 2971, providing that, in voting on amendments to the city charter, the form of the proposition shall be prescribed by the city authorities, where the official ballot at an election submitting proposed changes to the existing charter of a city under the Home-Rule Bill had printed on it, following the nine amendments, propositions relating to proposed ordinances granting franchises, the motive of the city council in placing such matter on the ticket being to ascertain the will'of the people in reference thereto, the printing of such matter on the ballot was not illegal, the people having had the opportunity before the election to understand what was contained in the ballot, article 3097, providing that no official ballot shall have on it any printed matter, except what is authorized by law, etc., having no application to the ballots used in such election.
    [Ed. Note. — Por other cases, see Municipal Corporations, Cent. Dig. §§ 123-125.]
    3. Municipal Corporations <&wkey;46 — Election under Home-Rule Amendment — Majority in Pavor of Each Amendment— Statute.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. lOOCb, section 2 of the Home-Rule Amendment, requiring a majority vote to carry proposed charter amendments in cities of over 5,000 inhabitants, where, at an election wherein proposed changes to the existing charter of a city were submitted under the Home-Rule Bill, the first amendment proposed received 6,208 votes for it, while 6,116 votes were against it, and the fifth amendment received 6,157 votes for it and 6,047 votes against it, such amendments were properly declared carried, though there were 12,721 votes east at the election, since each amendment is separate, and the result as to each must be determined from the votes cast for or against it.
    [Ed. Note. — Por other cases, see Municipal Corporations, Cent. Dig. §§ 123-125.]
    4. Municipal Corporations <&wkey;46 — Contest —Charter Amendments.
    Where a copy of the ballot was mailed to each votdr 30 days before an election in a city wherein proposed charter changes under the Home-Rule Amendment were determined, it could not be said, after the election, in suit to contest it, that the voters did not act with a clear understanding of the scope and character of each amendment.
    [Ed. Note. — Por other cases, see Municipal Corporations, Cent. Dig. §§ 123-125.]
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Suit to contest an election by W. A. Shaw and others against Henry D. Lindsley. Prom a judgment for defendant, contestants appeal.
    Affirmed.
    K. R. Craig, Lawther, Pope & Mays, W. W. Nelms, Crane & Crane, and S. A. Charlton, all of Dallas, for appellants. C. P. O’Donnell, J. E. Cockrell, R. V. Davidson, and C. P. Greenwood, all of Dallas, for appellee.
   RAINEY, C. J.

The appellants, as contestants below, brought this suit to contest an election held in the city of Dallas, Tex., on April 4, 1916, in which certain proposed changes to the existing charter of the city of Dallas were submitted under the Home-Rule Bill (Laws 1913, p. 307). The said election was held on the same day as a general election in said city, wherein a president and members of a school board were to be selected. After notice of contest, given in accordance with law, in due time this suit was instituted in the court below to contest such charter election, on two grounds — the propositions submitted failed to secure the number of votes necessary to their adoption, and the ballot was improper and illegal in several respects, and the officers of the election should not have counted the votes cast upon said illegal and outlawed ballots. There were nine proposed amendments, and the proper city officials canvassed the returns, and declared all such propositions carried except the fourth. The contestee below filed answer in said contest, questioning the jurisdiction of the court, and asserting the validity of the election and the declared result in all things. The case was tried before the court, and judgment rendered for the con-testee, sustaining the declared result and the election in all things, and overruling all demurrers of both sides, and holding the court had jurisdiction, and contestants appealed the cause to this court.

The first assignment of error is as follows:

“The district court erred by not sustaining the contestants’ contest to, and holding invalid and setting aside the declared result of, the election as to all the charter amendments submitted at the election under the propositions numbered, respectively, first, second, third, fifth, sixth, seventh, eighth, and ninth, on the official ballot, on the ground that no one of said proposed amendments received in favor of its adoption the vote of a majority of the qualified voters of the city of Dallas, as prescribed by section 5 of article 11 of the Constitution of the state of Texas; that fact being established and not controverted.”

Which assignment is submitted as a proposition, under which we are called upon to construe the following language, “by a majority vote of the qualified voters of said city, at an election held for that purpose,” found in article 11, § 5, Constitution of Texas, which reads:

“Cities having more than five thousand (5,000) inhabitants may, by a majority vote of the qualified voters of said city, at an election held •for that purpose, adopt or amend their charters, subject to such limitations as may be prescribed by the Legislature, and providing that no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the state, or of the general laws enacted by the Legislature of this state. * * * ”

It was agreed on the trial that the records of the county tax collector’s office for Dallas county, Tex., would show that between October 1, 1915, and January 81, 1916, there had been issued, in poll tax receipts and exemption certificates 20,467 to persons claiming to be resident citizens of the city of Dallas, Dallas county, Tex., during the year 1915, and up to January 31, 1916; and that before the 1st of April, 1916, the county collector of taxes delivered to the board of the city of Dallas charged with furnishing election supplies separate certified lists of the citizens of each precinct who had paid their poll tax or received their certificate of exemption between the 1st day of October and 1st day Of February preceding, and in the manner and form prescribed by article 2961 of Revised Civil Statutes of Texas, and in all respects complied with article 2961, and that the foregoing may be used in evidence in lieu of records of said office. It is further agreed by said counsel that the poll lists used in the April election in 1916, which is mentioned and described in plaintiff’s petition, will show that there were deposited in the ballot boxes on said day, by persons qualified to vote therein, 12,721 ballots. The official returns show that all of said amendments, except the fourth, were carried by a majority of the votes cast in the election. We are of the opinion that a majority of the votes were cast for the amendments, as shown by the official returns, and the amendments became part of the charter of said city.

The authorities of other jurisdictions are in conflict as to the proper construction to be placed on the language, “majority vote of the qualified voters of the city,” but we think the great weight of authority, those of our courts of this state being among them, is with the majority, that to carry a proposition a majority vote of the votes polled is all that is necessary.

Counsel for .both parties have cited quite an array of authorities, but we think all that is necessary for us is to cite a few which are in accord with our views. Alley v. Denson, 8 Tex. 297; Werner v. City of Galveston, 72 Tex. 22, 7 S. W. 726, 12 S. W. 159; School Dist. v. McElroy, 103 Tex. 64, 123 S. W. 117; Bradshaw v. Marmion, 188 S. W. 973; Ft. Worth v. Davis, 57 Tex. 225; Carroll County v. Smith, 111 U. S. 556, 4 Sup. Ct. 539, 28 L. Ed. 517; 15 Cyc. § 388; McCreary on Elections, § 208; Day v. Austin, 22 S. W. 757; Dillon, Mun. Cor. vol. 1, § 383 (5th Ed.).

In Werner v. City of Galveston, supra, where the city by an act provided that “a tax shall be levied if two-thirds of the taxpayers voting shall vote in favor thereof,” and election was held thereunder, and a majority voting in favor of a school tax at an election therefor, said act was attacked as being “unconstitutional, because * * * the constitution ordains that the tax may be levied ‘if * * * two-thirds of the taxpayers of such city or town shall vote for such tax,’” it was held, Mr. Justice Gaines speaking for the court, that such election was valid.

In Bradshaw v. Marmion, supra, where similar language as here used was construed, it was held that the election was valid, quoting Cyc. and McCreary, supra, and further:

“While there are cases in which it has been held that an affirmative assent must be given by the requisite majority of voters, by going to the polls and voting, yet the great weight of authority supports the text cited. It has been so held in Texas, and, in view of such holding, a review of the conflicting cases from other states would be profitless.”

It is insisted by appellant that by the tax collector’s records it can be shown the number of poll tax receipts and exemption certificates issued, thereby showing the number of qualified voters in the city of Dallas, and that when this can be done a different construction should be placed on the language considered, and authorities are cited from other states where registration of voters is provided for when such construction as contended for is placed upon said language.

In Carroll County v. Smith, supra, where the United States Supreme Court passed upon a case from Mississippi, where registration existed, registration of voters is discussed and combated, and it is held:

“In our opinion, the Constitution of Mississippi did not mean, in the clause under consideration, to introduce any new rule. The assent of two-thirds of the qualified voters of the county, at an election lawfully held for that purpose, to a proposed issue of municipal bonds, intended by that instrument, meant the vote of two-thirds of the qualified voters present and voting at such election in its favor, as determined by the official return of the result. The words ‘qualified voters,’ as used in the Constitution, must be taken to mean not those qualified and entitled to vote, but those qualified and actually voting. In that connection a voter is one who votes, not one who, although qualified to vote, does not vote.’’

Believing the foregoing views are sound, we overrule the first assignment of error.

Appellant’s second assignment of error is:

“The district court erred by not sustaining contestants’ contest to and holding invalid and setting aside the declared result of the election as to all the charter amendments submitted under propositions numbered, respectively, first to ninth, inclusive, on the official ballot, on the ground that the official ballot containing said propositions, which was used and which was the only ballot used by the voters at said election in voting on said propositions, had and carried on its face printed matter not authorized by law.”

On the official ballot furnished the voters, and used at the election, was printed thereon, following the nine amendments to the city charter, several propositions relating to proposed ordinances granting franchises, one to the street railway company consolidated, and the other for the grant of a franchise to the electric light company; also a proposition for the consolidation of the street railway companies. We apprehend the motive that actuated the city council in placing said matter upon the ticket was to ascertain the will of the people in reference to same, so if their adoption came before the council they could act in relation thereto and in accord with the will of the people. No other end could possibly be subserved, as the printing of said matter on the ballots had no binding force on the council or people.

It is insisted by appellant that:

“The printed matter appearing on said ballot with reference to the proposed franchises was placed thereon with intent to deceive and defraud the voters into voting for the charter amendment embraced in the first proposition, for that the board of city commissioners did not intend to grant the franchises proposed, but to use the authority, given by the adoption of first proposition, in the grant of entirely different franchises, as shown by subsequent events of which this court has judicial knowledge.”

The form of the ballot was prepared and presented by the city authorities, and a copy of same was mailed to each voter residing in Dallas before the day of election, and within the time prescribed by law. This being so, and while the printing of said matter on the ballots served no legitimate purpose, we are unable to say that it was fraudulent and illegal. The people had the opportunity, before the election, to examine and understand what was contained therein, and were evidently not misled by the ballot. The law provides, in voting on amendments to the city charter, that the form in which such proposition shall be voted on shall be prescribed by the city authorities. R. S. art. 2971. The different amendments or propositions were orderly arranged on the ballot, and stated in intelligent terms, with no confusion therein, and the printed matter complained of, as we understand it, did not affect the result of the vote on said amendments. Under the circumstances of this case, the law does not hold that the ballots should not be counted. We therefore hold that said ballots were valid and were properly counted.

Article 3097, R. S., provides:

“No official ballot, either for a primary or general election, shall have on it any symbol or device or any printed matter, except that which is authorized by law; and no ballot cast in violation of this article shall be counted for any candidate,” etc.

This article has no application to the ballots used in this election, but applies only to ballots cast in primary and general elections when candidates are to be voteu for, and tue reason for applying it to this case is not the same as when candidates are balloted for. Wallis v. Williams, 101 Tex. 395, 108 S. W. 153; Durham v. Rogers, 48 Tex. Civ. App. 232, 106 S. W. 906; Walker v. Mobley, 105 S. W. 61; Algelt v. Callaghan, 144 S. W. 1166.

The third assignment of error is:

“The district court erred by not sustaining contestants’ contest to, and holding invalid and setting aside the declared result of, the election as to the charter amendments submitted at the election under propositions numbered, respectively, first and fifth on the official ballot, on the ground that neither of said propositions received in favor of. its adoption the vote of a majority of the qualified voters voting at said election.”

The first amendment proposed received 6,208 votes for it, and against it was 6,116 votes, this being a majority of the votes cast on said proposition. On the fifth proposition there were 6,157' votes cast for and 6,047 cast against said proposition, being a majority vote for said fifth proposition. The proper city official counted the election returns, and declared the first and fifth propositions duly carried.

Under article 1096b, Vernon’s Sayles’ CiV: Stats., which is section 2 of the act of the Legislature of 1913, c. 147, known as the Home-Rule Amendment, as we construe it, said first and fifth propositions having received a majority of the votes cast on said propositions, they were properly declared carried, although there were 12,721 votes cast at said election. We conclude from the authorities that each amendment is separate, and the result as to each is to be determined from the votes cast for or against it.

We have considered the fourth and fifth assignments of error, which, in effect, insist that propositions first and second, as framed and submitted, were not in such terms as to give the voters a clear idea of the scope and character of the proposed amendments. A copy of the ballot having been mailed to each voter 30 days before election, it was for the purpose of giving to the voter an opportunity to study and analyze the amendments, and ,we conclude that it cannot now be said that the voters did not act with a clear understanding of the meaning of each proposition. Such a plea cannot now be urged for setting aside the election.

The judgment is affirmed.
      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    BOYD et al. v. URRUTIA.
    (No. 683.)
    (Court of Civil Appeals of Texas. El Paso.
    April 26, 1917.
    On Rehearing, May 31, 1917.)
    1. Appeal and Error t&wkey;>158(l) — Right op Review — Judgment — Purchase op Judgment by a Dependant.
    The act of a defendant in purchasing and taking a transfer of a judgment for plaintiff was not such a satisfaction of the judgment as to preclude the appellate court from entertaining an appeal, since the other defendants, at least, have the right to appeal.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 973, 977.]
    2. Judgment i&wkey;139 — Default Judgments— Setting Aside — Discretion op Court.
    The question of setting aside default judgments is largely a matter of discretion upon the part of the trial court.
    ■ [E'd. Note. — For other cases, see Judgment, Cent. Dig. §§ 265-268.]
    3. Appeal and Error &wkey;>957(2) — Appeal — Motion to Set Aside Default Judgment-Discretion op Court.
    Where defendants in an action, because of pending negotiations between the parties, did not believe it was necessary to file an answer, there being no promise that judgment would not be taken in case of a failure to answer, the trial judge did not abuse his discretion in refusing a motion to set aside default judgment two days after it was rendered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3823.]
    4. Appeal and Error <&wkey;1173(l) — Discharge op Cause — Modification op Judgment.
    Where by motion for rehearing on appeal appellants dismissed as to a defendant who was not properly served with citation, an affirmance will be granted as to the others instead of reversing the judgment for such defect.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4562-4567, 4569, 4656.]
    On Rehearing.
    5. Bills and Notes <&wkey;121 — Construction-Parties — Principal and Sureties.
    The fact that notes were given as part payment upon a joint contract of sale and lease of a ranch by plaintiff to the defendant constitutes a defendant and alleged surety on one of the notes a principal maker.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 255, 256.]
    6. Bills and Notes <&wkey;121 — Indorsers — Rights.
    Where one who was not a mere indorser, but a principal maker, places his name upon a note to serve purposes of his own, he is not entitled to the rights of a mere indorser or surety.
    [Ed. Note. — For other eases, see Bills and Notes, Cent. Dig. §§ 255, 256.]
    Appeal from District Court, El Paso County; Ballard Goldwell, Judge.
    Suit by Sabino Urrutia against A. I. Boyd and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Jones, Jones, Hardie & Grambling, of El Paso, for appellants. Winter, MeBroom & Scott, of El Paso, for appellee.
   HARPER, C. J.

This suit was instituted by Sabino Urrutia against A. I. Boyd, J. G. D. Boyd, and L. E. Booker to recover the unpaid balance of a note, interest, and attorney’s fees executed by A. I. Boyd and at the time (before delivery) of its execution indorsed upon the back by L. E. Booker and J. G. D. Boyd.

A judgment by default for the amount sued for was entered by the trial court which recites:

‘‘The defendants, though each and all of them were duly cited and served with process in terms of the law, came not, but each and all of said defendants wholly made default.”

Preliminary to passing upon the merits of this appeal appellee urges by motion that the appeal as to him should be dismissed for the reason that appellant Booker, upon compromise, has paid the judgment. The affidavits simply show that Booker purchased the judgment and took a transfer of it to himself. This is not such satisfaction of the judgment as precludes the appellate court from entertaining the appeal, because the other appellants (and it has been held that the party paying the judgment) have the right to appeal. Norris Implement Co. v. Ogden, 147 S. W. 279.

The second assignment is:

“The court erred in refusing to sustain appellants’ motion to set aside the default judgment against them, and grant them a new trial, because the same was filed within two days after the rendition of said default judgment, and showed that appellant Booker, for himself and the other appellants, on the 2d day of September, 1916, telephoned W. H. Winter, one of the attorneys for plaintiff, and made a proposition of settlement to the said Winter, and as to which proposition of settlement said W. H. Winter agreed that he would see his partners and have them see the said Sabino Urrutia, the plaintiff, and see whether or not he would accept the said offer of settlement. The offer of settlement made by the said Booker consisted of an offer on the part of the said Booker and his codefend-ants to transfer to said Sabino Urrutia about 109 acres of land known as the Norwood Hall land, located across the river, about 3 miles above the town of Canutillo, that by reason of said negotiations the said appellants were under the belief and impression that it would not be necessary for them to employ attorneys to represent them, and they believed that before any judgment could be taken against them their offer of settlement would be either accepted or rejected, and that, if rejected, they would have ample opportunity in which to employ counsel to represent them, and that said offer of settlement was never rejected by plaintiff, or by his attorneys, until after judgment had been obtained against these appellants, and these appellants were misled by the pending negotiations.”

First proposition under second assignment of error is:

“Appellants, having filed their motion within two days after the rendition of said default judgment, and having shown an equitable defense, and having brought themselves within the rules governing the granting of new trials, were entitled to have said judgment by default set aside.”

In their motion appellants set up the facts relied upon for an excuse for not filing answer, and .allegations constituting meritorious cause of action or defense and attached affidavits in proof of said allegations.

The plaintiff, in reply thereto, 'denied that there was any excuse for not filing answer, denied that there was a meritorious cause of action or defense, and attached controverting affidavits. We see no reason to copy either or quote therefrom.

The question of setting aside default judgments is largely a matter of discretion upon the part of the trial court, and in this instance we are of the opinion that this discretion has not been abused. We see nothing in the facts set up by appellants which authorized appellant to conclude that a judgment would not be taken in case of failure to answer. There is no charge that any such promise was made, and the controverting affidavits negative the idea that such a promise was intended. Besides, the facts are such as to justify a finding that there was no meritorious defense to the action. These matters having been determined against appellants, this court will not disturb the findings.

Upon a former day of this term, in passing upon the above case, we entered our judgment and rendered opinion reversing and remanding the cause for imperfect service of citation upon J. G. D. Boyd. The appellants, now, by motion for rehearing, dismiss as to said defendant, and ask an affirmance as to the others, which is granted. O’Donnell v. Kirkes, 147 S. W. 1167; McDonald v. Cabiness, 100 Tex. 615, 102 S. W. 721; Kuykendall v. Coulter, 7 Tex. Civ. App. 399, 26 S. W. 748.

The said former judgment is therefore set aside, the opinion then rendered withdrawn, and, finding no error in the record, the assignments are overruled, and cause affirmed as to L. E. Booker and A. I. Boyd and cause dismissed as to J. G. D. Boyd.

On Rehearing.

Appellant calls our attention to the-fact that this suit was to collect the balance of two notes, instead of one note, as'stated in the original opinion. The opinion is corrected in that respect.

Appellant urges as one of his grounds for rehearing that the record discloses that Booker was simply a surety upon one of the notes sued on, and J. G. D. Boyd one of the principals; that there was no showing that said Boyd was insolvent; therefore it was error to dismiss as to the latter. The record in fact discloses that the notes were given as part payment upon a joint contract of sale of cattle and lease of ranch by Urrutia to the defendants. Booker so declares in his motion for' new trial filed in the trial court, and by his affidavit attached thereto. This constitutes him a principal maker.

The record clearly shows that he (Booker) placed his name upon the note to serve purposes of his own, and therefore is not entitled to the rights of a mere indorser or surety. Jones v. Lynch, 137 S. W. 395; Latham v. Flour Mills, 68 Tex. 127, 3 S. W. 462.

The motion is therefore overruled.
      ifcooPor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes