author: RAINEY, C. J.

text:
    CITY OF DALLAS et al. v. GILL et al.
    (No. 7872.)
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 15, 1917.
    Rehearing Denied Jan. 19, 1918.)
    1. Municipal Corporations @=106(2) — Enactment of Ordinance — Reading Requirement — 1 ‘Franchise’ ’ — “License. ’ ’
    It was not necessary that an ordinance regulating jitney busses be read at three regular meetings of board of commissioners, etc., as required by city of Dallas charter in the case of ordinances granting franchises; such ordinance not granting a franchise but a mere license and not naming any certain persons or grantees, but the grant including all persons wishing to engage in such business. A “license” is an official permit to carry on a business or trade or perform other acts forbidden by law except to persons obtaining such permit. The term “fran-ehise” was not contemplated as applying to such regulation, as jitneys are not permitted to appropriate any part of streets to their exclusive use, as do railway, telegraph, telephone, and gas companies, to which the term “franchise” applies.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Franchise ; License.]
    2. Municipal Corporations <S=>61A-Regu-lation of Jitneys — Ordinance.
    Under City of Dallas Charter, art. 2, § 2, subd. 1, empowering such city to enact and enforce ordinances necessary to protect health, life, and property, etc., and article 2, § 3, subd. 24, granting power to license, tax, and regulate all trades, occupations, and callings and to require bonds in such cases, and article 2, § 3, subd. 33, permitting regulation of motor vehicles, and article 2, § 7, subd. 4, giving power to regulate use of streets and alleys, an ordinance regulating and licensing jitney busses and requiring a surety bond by the operators was valid, and the fact .that such ordinance prohibited passengers from riding, on the doors of motor busses and that it denied the transfer of a license to another bus did not invalidate it; the commissioners having the power to do anything respecting such subjects that the Legislature itself could do. The provision relating to the giving of a bond making the operators liable to third parties for damage, etc., was ilot derogative of the common law, which by Rev. St. 1911, art. 5492, is declared to be the law in so far as not inconsistent with state laws and Constitution unless later repealed by the Legislature, since the Legislature, having empowered the city to control streets and license persons doing business thereon for profit, in effect repealed the common law relating thereto.
    3.Constitutional Law @^>63(2) — Regulation of Jitneys — Legislative Power to Confer Authority.
    The Legislature had the power to confer authority on the city of Dallas to regulate and license jitney busses.
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Suit by D. H. Gill and others against the City of Dallas and others. Judgment for plaintiffs, and defendants appeal.
    Reversed, and judgment rendered for defendants.
    O. F. O’Donnell, G. C. Adams, L. R. Call-away, Lee Richardson, and Royal R. Watkins, all of Dallas, for appellants. W. L. Crawford, Dwight L. Lewelling, and Muse & Muse, all of Dallas, for appellees.
   RAINEY, C. J.

This was a suit instituted by D. H. Gill and some 163 other plaintiffs, whose names appear in-plaintiffs’ petition as owners and operators of motor busses in the city of Dallas, for an injunction to restrain Henry D. Lindsley, mayor, Otto H. Lang, Manning B. Shannon, A. C. Cason, and R. L. Winfrey, commissioners of the city of Dallas, C. F. O’Donnell, city attorney of the city of Dallas, and J. W. ¡Ryan, chief of police of the city of Dallas, and each of them, from enforcing the terms and provisions of an ordinance passed by the board of commissioners of the city of Dallas on the 5th day of January, A. D. 1917, prescribing regulations governing the operation of motor busses on the streets of the city of Dallas and prescribing regulations under which licenses for the operation of motor busses could be secured. On the 5th day of February, 1917, judgment was rendered by the Forty-Fourth judicial district court granting said injunction, enjoining and restraining defendants from enforcing, or undertaking, or attempting to enforce, any of the provisions of said ordinance, and decreeing and adjudging said ordinance to be void, and canceling and annulling the provisions thereof, to which action appellants duly excepted and gave notice of appeal.

The first proposition we will consider is the contention of appellees that the ordinance attacked constituted the grant of a franchise and was not passed in accordance with the provisions of the charter, because said ordinance was not read at three separate regular meetings of the board of commissioners, the last reading not to be less than 30 days from the first; that it was passed under the emergency clause, and went into effect at once. Said ordinance was passed as complained of, and the provision of the city charter regulating passage of ordinances granting franchises was not observed by the board of commissioners, and, if said ordinance grants a franchise in its strict sense as contemplated by the charter, then said ordinance was illegally passed and is therefore void; but the question arises: Is the ordinance a grant of a franchise, or is it a mere regulating ordinance for ■ the government of the operations of the so-called jitneys? We think the latter purpose was intended and there was no intention to violate the charter. Subsection 2 of section 8 of article 11 of the city charter reads as follows:

“The city of Dallas shall have the power, subject to the terms and provisions hereof, by ordinance to confer upon any person or corporation the franchise or right to use the property of the city, as defined in the preceding section, for the purpose of furnishing to the public any general public service, including heat, light, power, telephone service, refrigeration, steam, or the carriage of passengers or freight within the said city and its suburbs, over the streets, highways and property of said city, or for any other purpose whereby a general service is to be furnished to the public for compensation or hire, to be paid to the franchise holder, whereby a right to, in part, appropriate the streets, highways or other property of the city, is necessary or proper ; provided, that no franchise shall he granted by said city to any persons, firm or corporation to own, control or operate waterworks therein.”

The term “franchise,” as here used, was never contemplated by the lawmakers as applying to the regulation of jitneys operated over the streets of a city, for they in no wise are permitted to appropriate any part of the streets to their exclusive use. Street railways, telephone and telegraph, and gas companies, etc., appropriate certain parts' of the street for the laying of tracks, placing poles, and placing wires, and for said purposes the term “franchise” applies to them and like enterprises, and the law, we think, only applies to and intends to grant licenses to those between which there is a marked distinction.

As before said, it was never intended to grant a franchise to the jitneys. The ordinance passed is designated a “license” in caption for the regulation of motor busses, etc., which the city had the right to pass.

In McQuillin on Municipal Corporations, in speaking of franchises, it is said:

“The fact that an ordinance is called a franchise, and that it is couched in terms frequently used in granting franchises, is not conclusive as to its character, since, if the provisions themselves are simply police regulations, they do not become so because they are so called.” Section 1617.

In the same work it is also said:

“The term ‘franchise’ includes the term ‘privilege,’ but a privilege is not necessarily a franchise.” Section 1614.

Again, in footnote at page 3364, it is said:

“The word ‘franchise’ has various significations, both in a popular and in a legal sense. The relation in which the term is employed controls its meaning.” Lindsley v. Street Ry. Co., 200 S. W. 207, this day decided by this court.

In 19 Oye. p. 1460, it is said:

“Like every other kind of property, a franchise must have a certain owner; it can exist only by grant, 'and a certain grantee is essential to a grant.”

The ordinance here enjoined does not name any certain person or grantee, but its grant includes all persons who wish to engage in the jitney business. It imports to grant a license to any person so desiring and a “license” is defined by Bouvier, in his Dictionary (volume 1, 3d Ed.), as follows:

“A license * * * to carry on business or trade is an official permit to carry on the same or perform other acts forbidden by law except to persons obtaining such permit.” Hoefling v. City of San Antonio, 85 Tex. 228, 20 S. W. 85, 16 L. R. A. 608.

It follows, we think, that the commissioners never intended to grant a franchise for the jitney business to any particular person, but only intended to grant to any person a license for conducting such a business and regulate such business, which the ordinance clearly imports to do. Said ordinance was passed regularly under its charter, and because it did not observe the requirements for the passage of the franchise it is not void, but is enforceable.

The appellants group their first, fourth, fifth, sixth, seventh, and eighth assignments of error, and ask that they be considered together. The first is, in effect, that the court erred in holding that the ordinance assailed is null and void. Fourth, that the city of Dallas was without legislative power to require of the jitney operators a surety bond. Fifth, that the ordinance prohibiting passengers from riding on the doors of motor busses is unreasonable and discriminatory. Sixth, that the provision of the ordinance denying the transfer of a license to another bus is arbitrary, unreasonable, unjust, and the unlawful taking and confiscation of property. Seventh and eighth, granting an injunction restraining defendant from enforcing or attempting to enforce said ordinance. Under said assignments the first and second propositions are:

J‘(l) The city of Dallas holds the streets of the city in trust for the use of the public generally for the purposes for which they were dedicated, or otherwise acquired as public thoroughfares, and no person has a vested or property right to the use of such streets in the conduct of a private business for profit. (2) Under the express legislative authority conferred by the city charter, the city of Dallas has the power and authority to prescribe the regulations under which, its streets may be used in the conduct of a private business for profit.”

The city of Dallas is duly chartered by the Legislature of Texas, and was created by it a body politic and endowed with a municipal government subject to “all duties and obligations now pertaining to or incumbent upon said city as a corporation, not in conflict with the provisions of this act, and shall enjoy all the rights, immunities, powers, privileges and franchises now possessed and enjoyed by said city and herein granted and conferred.” By subdivision 1, § 2, art. 2:

The city of Dallas was empowered to “enact and to enforce ordinances necessary to protect health, life and property, * * * and to preserve and enforce good government, order and security of the city and its inhabitants, * * *and to enact and enforce any and all ordinances upon any subject; provided, that no ordinance shall be enacted inconsistent either with the laws of the state of Texas, or inconsistent with the provisions of this act; and provided further, that the specification of particular powers herein authorized shall never be construed as a limitation upon the general powers herein granted, it being intended by this act to grant and bestow upon the inhabitants of the city of Dallas full power of self-government, and it shall have and-exercise all powers of municipal government not prohibited by this charter, or by some general law of the state of Texas, or by the provisions of the Constitution of the state of Texas.”

Under the head of “Police Powers,” art. 2, § 3, subdiv. 24, power was granted to said city of Dallas to license, tax, and regulate by ordinance all trades, occupations, and callings of any kind, and “to require the person or persons pursuing any business or occupation mentioned in this section to give all bonds in such amounts and under such conditions as the board of commissioners may prescribe.” By subdivision 33 of said article it is “to regulate the use of automobiles, motor cars, motorcycles or any motor vehicle.” By article 2, § 7, subdiv. 4, of said charter, the city of Dallas is given power to control and regulate the use of streets and alleys therein. In fact, it seems that the city is granted the right to make all laws or ordinances necessary for the government of said city that the Legislature of the state has the power to confer, not to conflict with the Constitution and other state laws. This being so, the trial court erred in holding the ordinance assailed as null and void. Such ordinance had for its object and purpose the regulation of the operation and use of jitneys over the streets in the city of Dallas. As said by Chief Justice Ely of the Court of Civil Appeals at San Antonio: '

“The cases with unanimity decide that the Legislatures of states have full and complete control over the highways, streets, and alleys, and that such control may be delegated to municipalities, and it follows from such complete control that the use of the streets for the prosecution of any private business may be wholly denied, or granted with such provisions and regulations as may be deemed proper by the municipality.”

The trial court erred in holding that the city of Dallas was without legislative power to enact an ordinance requiring a surety bond to be given by persons operating motor busses in the city of Dallas. We are of the opinion that this power was especially conferred by article 2, § 3, subdiv. 24. The court erred in holding that the provision of the ordinance was void for prohibiting passengers to ride on the door of cars and is unreasonable and discriminatory. The court also erred in holding that the ordinance was void in denying the transfer of a license for a motor bus to another and is arbitrary, unreasonable, and unjust and the unlawful taking and confiscation of property.

The following authorities by the Courts of Civil Appeals, and in most of which a writ of error has been denied by the Supreme Court of Texas, where similar ordinances containing similar provisions to the above, as also passed upon by the Court of Criminal Appeals, and as our statutes provide, that this court shall follow our Supreme Court,as well as our own judgment, we will adhere to said ruling as decisive of the questions there passed upon. Said authorities are: Booth v. City of Dallas, 179 S. W. 304; Greene v. San Antonio, 178 S. W. 6; Auto Co. v. Ft. Worth, 182 S. W. 685; Peters v. San Antonio, 195 S. W. 989; Southwestern Tel. & Tel. Co. v. Dallas, 174 S. W. 636; Brown v. Galveston, 97 Tex. 1, 75 S. W. 488. Many of the other states have passed upon ordinances regulating jitneys, and, as far as we have seen, the ordinances have been upheld. The authorities above named also uphold the legislative power of the city to pass such ordinances. In this connection, as said by the Supreme Court of West Virginia in Ex parte Dickey, 76 W. Va. 576, 85 S. E. 781, L. R. A. 1915E, 840:

“Under the broad power given by this charter, to grant, refuse, and revoke licenses to hotel keepers and operators of vehicles kept for hire, and to regulate them for the interest and convenience of the inhabitants of the city, the commissioners may do anything respecting these subjects that the Legislature itself could do, and, as we have shown, that power is almost unlimited.”

In reference to the provision of the ordinance requiring an indemnity bond of jitney operators, the appellees contend, in effect, that it is derogative of the common law for the city to require such a bond making the operators liable to third parties for damages, etc., and relies on article 5492, R. S., which provides in effect for the common law of England in so far as not inconsistent with the laws and Constitution of this state to be the rule of decision -unless altered or repealed by the Legislature:

The Legislature having given the city of Dallas power to control its streets and to license persons doing business thereon for profit, it, in effect, repealed the common law as such action is inconsistent with the common law. Besides, the charter of Dallas provides that such bond may be required by the commissioners in regard to granting licenses. Article 2, § 2, subd. 24. That tbe Legislature bad tbe power to confer 'sucb authority on tbe city we think there is no question. Railway Co. v. Levy, 199 S. W. 513, opinion by this court November 17, 1917; St. Railway Co. v. Rapid Transit Ry. Co., 133 Tenn. 99, 179 S. W. 635, L. R. A. 1916B, 1143, Ann. Cas. 1917C, 1045.

Tbe trial court erred in granting tbe injunction, and tbe judgment is reversed and here rendered for appellant.
      <§=oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: WILLSON, C. J.

license: Public Domain

text:
    DEBENHAM v. SHORT et al.
    (No. 1873.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 6, 1917.)
    1. Mechanics’ Liens <S=>10 — ‘“Café”—1“Res-taurant’ ’ — ‘ ‘Hotel’ ’ — ‘ ‘ Stoke’ ’ — “Shop. ’ ’
    Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5644, 5645, providing for a lien for employé’s performing services in any “store,” “hotel,” or .“shop,” etc., do not authorize a lien upon a" “restaurant,” since it is a place where, under proper conditions, one may demand that food be furnished him, while a “hotel” is a place where he may demand lodging, and “restaurant,” given its ordinary signification under article 5502 is not a “hotel,” in view of legislative policy indicated by articles 4536 and 5246a, nor does it become such because the proprietor kept a price list of the rooms in and instructed employes to recommend a nearby hotel, and the selling of cigars by a “café” or “restaurant” does not make it a “store” or “shop.”
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Hotel; Restaurant; Shop; Store.]
    2. Constitutional Law <®=>70(3) — Wisdom op Legislation.
    That no reason is apparent why the Legislature should have discriminated between em-ployés of hotels and of restaurants does not authorize a court to construe Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5644, so as to include both when the ordinary signification- of the language excludes the latter.
    Appeal from Harrison County Court; W. H. Strength, Judge.
    Suit by L. W. Debenbam against F. Short and another. Judgment for plaintiff for tbe sum claimed, but t refusing to foreclose a statutory lien. Plaintiff appeals.
    Affirmed.
    September 1, 1916, A. Demetrack sold tbe crockery, cutlery, tables, chairs, counters, mirrors, stoves, and other furnishings used in tbe operation of a restaurant in Marshall, known as tbe “Elite Café,” to F. Short for $800. Tbe sale was on credit; and to secure tbe payment of tbe purchase price Short, on tbe day it was made, executed and delivered to Demetrack a mortgage on tbe property, which tbe latter forthwith filed for registration in tbe office of the county clerk. Short employed one Brown as a cook and appellant and one Gilbert as waiters to assist him in tbe operation of tbe restaurant, and became indebted to them, respectively, in sums aggregating $111.45, which be failed to pay as agreed upon, whereupon each of them undertook by a compliance with tbe requirements of article 5645 Vernon’s Statutes, to fix a lien upon tbe property specified above. Brown and Gilbert thereafterwards duly assigned their claims to appellant, who by this suit sought a recovery of tbe $111.45 as against Short, and a foreclosure of tbe lien be claimed on tbe property as against Short and Demetrack. Tbe appeal is by ap-, pellant from a judgment in bis favor against Short for tbe $111.45, but refusing to foreclose tbe statutory lien be claimed against tbe property.
    C. E. Carter, of Marshall, for appellant. Bibb & Bibb, of Marshall, for appellees.
   WILLSON, C. J.

(after stating tbe facts as above).

Tbe question presented by tbe record may be stated as follows: Under article 5644, Vernon’s Statutes, does a lien for wages due exist on articles used in tbe operation of a restaurant in favor of one who, having served tbe owner thereof as a cook or waiter, has complied with tbe requirements of article 5645 of said statutes? Said article 5644 is, in part, as follows:

“That whenever any clerk, accountant, bookkeeper, artisan, craftsman, factory operator, mail operator, servant, mechanic, quarryman, or common laborer, farm hand, male or female, may labor or perform any service in any office, store, saloon, hotel, shop, mine, quarry, factory or mill of any character, * * * under or by virtue of any contract or agreement, written or verbal, with any person, employer, firm, corporation, or his, her, or their agent or agents, receiver or receivers, trustee or trustees, in order to secure the payment of tbe amount due or owing under such contract or agreement, written or verbal, the hereinbefore mentioned em-ployés shall have a first lien upon all * ⅜ ⅜ things of value of whatsoever character * * * that may be used by such person or persons, or necessarily connected with the performance of sucb labor or service, which may be owned by or in the possession or under the control of the aforesaid employer, person, firm, corporation, or his, or their agent or agents, receiver or receivers, trustee or trustees: Provided, that the lien herein given to a farm hand shall- be subordinate to the landlord’s lien now provided by law.”

It will be noted that persons hired to serve in a restaurant are not within tbe words of tbe statute. Appellant insists that be and his assignors nevertheless were within its terms, because, be asserts, tbe Elite Café as operated by Short was a “hotel.” If there was any testimony showing that Short operated tbe restaurant in a way different from the way restaurants ordinarily are operated, it was that disclosing that Short bad a list showing tbe prices at which the owner of tbe Lake House, a nearby hotel, let rooms, and that be, because be was friendly to the owner, instructed bis employés to recommend that hotel to patrons of tbe restaurant who inquired about lodging places. We do not think the testimony referred to is of importance in determining whether the Elite Café was a “hotel” within the meaning of the statute or not. Giving to the word “hotel” its “ordinary signification,” as we must (article 5502, Vernon’s Statutes), it does not mean a restaurant, and that it does not is recognized by the Legislature in other statutes. For instance, the statute authorizing members of the board of health to enter into and inspect certain places and houses .(article 4536, Vernon’s Statutes), and the statute limiting the time a female may be employed in certain places to 54 hours per week (article 5246a, Vernon’s Statutes), specify among other places, both “hotels” and' “restaurants.” As commonly used, the word “hotel” is understood to mean a place where, generally speaking, any person who conducts himself properly and is able and willing to pay for same has a right to demand that lodging be furnished him; and the word “restaurant” to mean a place where such a person has a right to demand that food be furnished him. In common parlance a restaurant is never denominated a “hotel,” nor a hotel a “restaurant.” As every reason why one who labors in a hotel should have a lien for wages due him applies as well to one who labors in a restaurant, we do not understand why the benefit of the statute should not have been conferred upon both alike. But that no reason is apparent why the Legislature should have discriminated between the two classes of employSs does not authorize a court to construe the statute so as to include both,. when it plainly appears, if the “ordinary signification” of the language of the statute is kept in mind, that one of the classes was excluded. Roberts v. Yarboro, 41 Tex. 449; Goldsticker v. Ford, 62 Tex. 385.

For a like reason, to wit, that a “restaurant,” notwithstanding cigars are sold in it, as they were in the Elite Café, is not a “store” or a “shop” within the popular .meaning of those words, we think the contention made by appellant to the contrary must be overruled. So far as the record shows to the contrary, selling cigars was a mere incident of the business to which the café was devoted, and we think, did not make it a “store.”

The judgment is affirmed.
      «gzsFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    HULL et al. v. FIRST GUARANTY STATE BANK OF OVERTON.
    (No. 1860.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 6, 1917.
    Rehearing Denied Jan. 10, 1918.)
    1. Venue <§==22(2) — Residence — Notes— Joint Liability oe Defendants.
    Under Rev. St. 1911, art. 1830, subd. 4, as amended by Acts 33d Leg. c. 177 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830), providing that suit may be brought in any county whore one of the defendants resides, but that no transfer of a note or chose in action shall give any subsequent holder the right to sue in any other county or justice precinct than if no assignment or transfer had been made, held, that by accepting a draft the drawee became jointly liable with the maker to the maker’s assignee under a new contract superseding the maker’s original debt, and that suit could be brought in the county where the maker resided.
    2. Bills and Notes <§=369 — Drafts — Oral. Acceptance.
    A verbal acceptance of a draft is sufficient.
    3. Bills and Notes <§=387 — Drafts—Implied Acceptance.
    A promise to accept a draft will, under certain conditions, be treated as tantamount to an acceptance.
    4. Judgment <§=3342(2), 464^Equitable Relief-Dismissal.
    A county court may at a succeeding term, in the exercise of its equity powers, reopen a judgment for such corrections as justice demands, and the court may thereupon dismiss the action.
    5. Judgment <§=3507 — Collateral Attack-Pleading.
    In a collateral attack by one not a party to a former judgment, the meritorious sufficiency of the grounds relied on in the pleadings will not be inquired into.
    •6. Judgment <§=3570(13) — Equity—Setting Aside — Res Adjudicata.
    Where judgment has, at a succeeding term, been reopened and dismissed, it does not preclude a party defendant thereto from being a proper party defendant to another suit on the same cause.
    7. Sales <§==202(6) — Operation and Effect-Completion of Sale.
    Where an agent had completed the purchase of two cars of cotton seed, and the terms and conditions of payment had been agreed on, and nothing remained for the buyer to do but honor the draft as their agent had promised, the sale was complete, and the fact that the bill of lading was attached did not affect such sale nor relieve the buyer from payment of agreed price.
    8. Set-Off and Counterclaim <§==23 — Tendency to Defeat Action.
    In a suit by the assignee of a draft for two cars of cotton seed against both maker and drawee and against a railroad for conversion of such seed, the claim of the railroad against the drawer for freight, had no connection with fixing the liabilities of parties to the draft, and was neither a counterclaim nor an offset.
    9. Appeal and Error <§==146 — Estoppel.
    Where appellants complain of a void judgment against a codefendant, which, if allowed to stand, would estop them in a controversy with such codefendant over the matter involved, they have a right to be heard, which right cannot be impaired by the dereliction of such codefendant.
    10. Appeal and Error <§=3l85(2V — Jurisdiction — When Question May be Raised.
    Where the amount in controversy was below the jurisdiction of the district court, its judgment thereon is void, and the want of jurisdiction may be raised for the first time on appeal.
    Appeal from District Court, Rusk County; Daniel Walker, Judge.
    Suit by the First Guaranty State Bank of Overton against B. H. Hull and others. Judgment for plaintiff against certain defendants, and for the defendant Hull against the Western Cotton Oil & Gin Company, and partners in such company, and for the receivers of the International & Great Northern Railway Company against Hull for freight charges. The Western Cotton Oil & Gin Company and members thereof appeal.
    Affirmed in part; reversed in part.

      T. J. Arnold, of Houston, Futch & Tipps and Strong & Stone, all of Henderson, N. B. Morris and N. B. Morris, Jr., both of Palestine, and Scott W. Key, of Haskell, for appellants. Chas. L. Brachfield and J. W. Mc-David, both of Henderson, for appellee.
   HODGES, J.

In December, 1913, B. H. Hull, one of the parties to this suit, drew two drafts against the Western Cotton Oii & Gin Company at Haskell, Tex., in favor of the First Guaranty State Bank at Overton, aggregating $655.25, which the drawees refused to pay. In March, 1914, the bank instituted a suit in the county court of Rusk county against B. H. Hull and the Western Cotton Oil & Gin Company to recover the amount due upon the drafts. In its petition the bank alleged that the Western Cotton Oil & Gin Company was a corporation. The case was called for trial, and a judgment rendered against the defendants. .In that suit Hull alone answered. It was afterwards discovered, however, that the Western Cotton Oil & Gin Company was not a corporation, but a partnership. Some time after the expiration of the term of court at which that judgment was rendered a motion was made by Hull to set it aside. Acting upon that motion the case was reopened and the suit was by agreement of Hull and the plaintiff therein dismissed. Thereafter, on November 23, 1915, the bank instituted this suit against Hull, the Western Cotton Oil & Gin Company, and the members composing it, consisting of J. C. Duke, D. C. Oogdell, J. H. Chancellor, and W. M. Butterworth. The Texas & Pacific Railway Company, the Witchita Valley Railway Company, and Cecil A. Lyon and James B. Baker, receivers of the International & Great Northern Railway Company, were also made parties defendant. Against Hull, the Western Cotton Oil & Gin Company, and the members composing the partnership, the plaintiff sought a recovery on the drafts. The railway companies and the receivers above mentioned were made parties defendant upon the ground that they had converted two carloads of cotton seed for the payment of which the drafts had been drawn and upon which a lien was claimed. In a trial before the court without a jury judgment was rendered in favor of the bank for the full amount of the drafts against Hull, the Western Cotton Oil & Gin Company, and the individuals composing the partnership, and in favor of Hull over against the partnership and partners for the amount for which he was held liable. The railway companies and the receivers were discharged from any liability. Upon proper pleadings, which will be referred to later, the receivers of the International & Great Northern Railway Company recovered a judgment against Hull for the sum of $148.27 as the amount due for freight and demurrage charges on the two carloads of cotton seed above referred to. Only the Western Cotton Oil & Gin Company and the individuals composing the partnership have appealed.

The findings of fact filed by the trial court are substantially as follows: During the latter part of the year 1913 one L. J. Sparkman was the agent in Rusk county of the Western Cotton Oil & Gin Company. Sparkman had authority to buy for his company cotton seed, and to pay therefor in money or by checks and drafts. Acting within the scope of his authority, he purchased for his principal from B. H. Hull at Overton, in Rusk county, two carloads of cotton seed, after inspection, agreeing to take the seed for the oil mill company at the shipper’s weights, and authorized Hull to draw drafts on the oil mill company for the agreed price of the seed, together with $2.50 additional for loading charges. Sparkman represented to the Guaranty State Bank that the drafts drawn by Hull on the oil mill company were good and would be paid when presented. The bank, acting upon the representations made by Sparkman, paid Hull the amount in cash called for by the drafts. It would not have done this but for the representations made to it by Sparkman. Those representations were honestly made by Sparkman, with the belief that his principals would comply with them. But the latter intended to deduct from the amount of the drafts the sum of $118, an indebtedness which they claimed was due them from Hull. The two cars of seed were transported to Haskell, but the Western Cotton Oil & Gin Company refused to accept them and refused to pay the drafts without a deduction of the $118. The railway company thereafter advertised and sold the seed, realizing $148 less than the amount of the freight, demurrage, and other expenses.

Among other defenses pleaded by the Western Cotton Oil & Gin Company was that of privilege of being sued in the county of their residence, and the refusal of the court to sustain that plea is assigned as error. It is undisputed that Hull was the only party to the drafts sued on which resided in Rusk county, where the suit was instituted. Subdivision 4 of article 1830, as amended by the Acts of 1913, provides:

“Where there are two or more defendants residing in different counties, in which case a suit may be brought in any county where any one of the defendants resides; provided, that the transfer or assignment of note or chose of action shqll not give any subsequent holder the right to institute suit on such note or chose of action in any other county or justice precinct than the county or justice precinct in which such suit could have been prosecuted if no assignment or -transfer had been made.”

If the liability of Hull was that of an assignor of a pre-existing debt, then clearly the suit could npt have been maintained in Rusk county against the appellants merely because it was the place of Hull’s residence. It appears from the evidence that the drafts were drawn by Hull in favor of the bank, and the facts warranted the conclusion that they had been orally accepted by a duly authorized agent of the drawees. It is well settled in this state that a verbal acceptance is good. Neumann v. Schroeder, 71 Tex. 81, 8 S. W. 632; Milmo National Bank v. Cobbs, 53 Tex. Civ. App. 1, 115 S. W. 345. It has also been definitely determined that a promise to accept will, under certain conditions, be treated as tantamount to an acceptance. Henrietta National Bank v. State National Bank, 80 Tex. 648, 16 S. W. 321, 26 Am. St. Rep. 773. See, also, notes collected in 11 Ann. Cas. page 284. If it is correct to say that the drafts were accepted by appellants through their agent, Sparkman, then the appellants became primarily liable for their payment to the bank, and the liability of Hull was that of a drawer. Kildare Lbr. Co. v. Atlanta Bank, 91 Tex. 95, 41 S. W. 64. The drafts became new and independent promises to pay money to the bank which superseded the original debt to Hull. The jurisdiction of the court must be tested by the liability of the parties on the new contracts. That being true, a suit might have been maintained in Rusk county against the appellants because of the joint liability to Hull thereon.

The appellants, however, insist that the judgment previously rendered against Hull in the county court eliminated Hull as a party to any further litigation founded upon the same cause of action, and that Hull was not a proper party to this proceeding. They contend that the judgment against Hull in that suit was final, and that the attempt of the county court to thereafter set it aside at a subsequent term was a nullity. It is stated as a legal proposition that a new trial cannot be granted after the adjournment of the term of the court at which the judgment complained of is rendered. That is correct as applied to those summary motions filed during the term and which contemplate action upon a judgment then rendered and before the term expires. The power of the county court, in an equitable proceeding, to set aside, open, or vacate a judgment rendered at a previous term is so well settled that we do not construe the argument of appellant’s counsel as calling it in question. When the jurisdiction of such court is properly invoked, it may, at a succeeding term, reopen the prior judgment in order to let the parties interpose new defenses, and to jpake such corrections as justice demands, and it may then render an entirely different judgment upon the same issues. The attack here made is a collateral one on the judgment of dismissal. If the court in that instance had the power to reform, set aside, or annul the former judgment, it also had the power, when properly invoked, to dismiss the former proceedings and to enter the necessary order. In a collateral attack by one not a party to the former judgment, the meritorious sufficiency of the grounds relied on in the pleadings will not be inquired into. The dismissal in this instance appears to have been by consent of all the parties then before the court. Campbell v. Upson, 81 S. W. 361; Hart v. Hunter, 52 Tex. Civ. App. 75, 114 S. W. 882. The county court of Rusk county therefore had the right, under proper proceedings instituted after the expiration of the term at which the judgment against Hull had been rendered, to reopen that judgment and annul or vacate it. We therefore conclude that the cause of action against Hull was not merged in the judgment of the county court, and that he was a proper party to this suit. The pleas of privilege were properly overruled.

There is no merit in the contention that the appellants were not liable for the debt. Their agent had completed the purchase, the terms and conditions of payment had been agreed upon, and nothing remained for the appellants to do but to honor the drafts which their agent had represented they would upon presentation. The fact that the bill of lading was attached did not make the sale incomplete, or relieve appellants from the obligation to pay the price agreed upon.

The record shows that the receivers of the International & Great Northern Railway Company, defendants in the court below, in answering the petition of the plaintiff, alleged that the two cars of seed in controversy were transported to Haskell, Tex., according to contract, and refused by the consignee; that the seed were subsequently sold to satisfy freight charges and other expenses; and that the proceeds realized from that sale lacked $148.27 of paying all that was due. The receivers asked for a judgment against Hull, their codefendant, for that sum. In a supplemental answer Hull asked for a judgment over against the appellants for any sum recovered against him by the receivers. The court concluded that Hull, as the consignor, was liable for the amount of the freight charges and other expenses incurred, but that he was entitled to reimbursement from the appellants, and included $148.-27 in the judgment rendered in favor of Hull against them. This portion of the judgment is assailed as error, on the ground that the amount was below the jurisdiction of the court. The contract under which the seed were transported and the freight charges incurred had no connection with that which fixed the liability of the parties to the drafts. As the shipper, Hull was liable to the railroad company for the freight charges; but he had a right to claim reimbursement from the appellants, his vendees, who had agreed to pay. those charges. This demand on the part of the receivers was neither a counterclaim nor an offset which might have been pleaded in this suit, but was an independent cause of action in favor of one defendant against a codefendant. It had no place in these proceedings.

If it be conceded that the claim for $148.27 asserted by tbe receivers was below tbe jurisdiction of tbe district court, and tbat tbe judgment in tbeir favor against Hull was void, does it follow tbat the appellants bave a right to complain of that invalidity? Tbe receivers make tbe contention in tbeir brief tbat Hull, tbe defendant in tbat judgment, is not asking for its reversal, but consents for it to stand, and tbat it is no concern of tbe appellants whether it is valid or not. We are unable to concur in that conclusion. It appears tbat Hull attempted in tbat proceeding to make any judgment tbat might be entered against him binding upon tbe appellants as to all the issues in the controversy between him and tbe receivers. Tbe fact that tbe appellants were parties to tbe suit would estop them, in a controversy with Hull, from again questioning tbe legal right of the receivers to demand and receive tbe balance claimed as freight charges and legitimate items of expense growing out of tbe shipment of tbe two carloads of seed. If tbe appellants are to be estopped in that manner it would be manifestly unjust to deny them the right to participate in the controversy in an effort to defeat, in whole or in part, the claim of the receivers. Clearly, then, they had the right to interpose against the receivers any legitimate defense which would prevent their recovery in that suit. This right could not be destroyed nor impaired by any inactivity or dereliction on the part of Hull.

Tbe want of tbe jurisdiction of the court was one defense which the appellants might have presented in the trial below, and by reason of its fundamental character is none the less available on appeal. The district court being without jurisdiction to determine the controversy between tbe receivers and Hull, its judgment therein was void.

Tbat portion of the judgment of tbe trial court will be reversed and tbe cross-action of tbe receivers dismissed without prejudice to tbeir right to sue thereon in a court of competent jurisdiction. In all other respects the judgment of the court below will be affirmed.
      SssjFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    SMELSER et al. v. HENRY.
    (No. 1852.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 30, 1917.
    Rehearing Denied Dec. 20, 1917.)
    1. Deeds <®=o8 — Interest in Estate During Lifetime of Person.
    Where no certificate entitling to land as a headright was issued to a woman previously to 1862, and there was no sale or transfer by her of any such certificate or of an interest therein to her heir, such heir had no right to pass any title from the woman through his deed dated 1854, 1862 being the earliest possible date for the woman’s death, since during the lifetime of a person no one can have a vested or certain interest in his estate.
    2. Evidence <§=»317(2) — Hearsay Statements by Living Third Persons as to Their Family Connections.
    Statements by a living third person concerning himself and family connections are hearsay.
    Appeal from District 'Court, Bowie County ; H. F. O’Neal, Judge.
    Action by J. H. Smelser and others against W. J. Henry and others. From judgment for defendant Henry, plaintiffs appeal.
    Judgment affirmed.
    Tbe action is by appellants in trespass to try title to 35 acres of land. Tbe defendant pleaded not guilty and tbe five and ten year statutes of limitation. Tbe defendant Henry is in possession of the land, claiming under a registered deed offered in evidence, but be failed to further sufficiently show limitation requirements. Tbe question alone is whether or not the plaintiffs have shown a legal title in themselves. Tbe court peremptorily instructed a verdict against the plaintiffs.
    Tbe chain of title offered by tbe plaintiffs was by registered conveyances as follows: (1) Patent from tbe state of Texas to tbe heirs of Mary Burnsides for about 3,000 acres of land, dated December 16, 1862; (2) warranty deed from Wm. Burnsides to A. R. Moores, dated October 31, 1854, to an undivided interest of 1,540 acres of tbe Mary Burnsides survey; (3) partition deed between D. L. Hogan, guardian of bis minor children Joseph and Betsy Hogan, heirs of Sallie Burnsides, deceased, and A. R. Moores, as-signee of Wm. Burnsides, and David Jarrett, locator of tbe land, dated September 25, 1859; (4) deed of assignment by A. R. Moores to J. B. Donaboe, as assignee, and tbe said as: signee’s deed to J. L. Carroll; (5) judgment of court in partition of J. L. Carroll v. M. E. P. & P. Railway Company; (6) deed of J. L. Carroll et al. to J. H. Smelser. In tbe partition. deed between Hogan, Moores, and Jarrett are tbe recitals:
    “Partition of land between the heirs of Mary Burnsides, deceased, to wit: David L. Hogan, guardian of his children Joseph and Betsy Ann Hogan, Anderson R. Moores, assignee of William Burnsides, and David Jarrett, locator of the land, do hereby make partition and division of a tract of land in the name of Mary Burn-sides, deceased, for 20 labors of land in Bowie county 12 miles east from Boston, as follows.”
    Then follows a description of tbe several tracts of land allotted in such partition to tbe several parties. In tbe description of lot No. 3, which was set apart to A. R. Moores, is tbe following recital:
    “Thence south, 2,456 vs. to Smither’s S. E. corner on the north line of Joseph and Mary Ann Hogan, 'minor heirs of Sallie Burnsides, deceased.”
    Tbe instrument then concludes:
    “Now in confirmation of the foregoing division of land the undersigned set their hands and seals this the 27th day of September, A. D. 1859. [Signed] D. L. Hogan, David Jarrett,

      A. R. Moores. Witnessed by J. W. Jarrett and S. L. Elliott.”
    The deed from Carroll et al. to J. H. Smel-ser conveyed “all our remaining interest in the headright survey, in same county, namely, Mary Burnsides and John Bassett, together with all and singular the rights, members, tenements, and appurtenances thereunto belonging.” The plaintiffs’ claim is under William Burnsides, A. R. Moores, and through the Carrolls.
    J. B. Manning and O. B. Pirkey, both of New Boston, for appellants. Wheeler & Wheeler and N. L. Dalby, all of Texarkana, for appellee.
   LEVY, J.

(after stating the facts as above).

The first deed in the chain of title offered by the plaintiff was that of William Burnsides to A. R. Moores, dated in 1854, and the next was that of a partition deed between Hogan, as guardian, and A. R. Moores and Jarrett, dated September, 1859, and the patent from the state to the land was not issued until December, 1862, and then to the heirs of M'ary Burnsides. There being no evidence in the record of a previously issued certificate entitling Mary Burnsides to land as a head-right, and of a sale or transfer by her of the certificate or of an interest therein to William Burnsides, there is failure of any right in William Burnsides to pass any title through his deed from Mary Burnsides. And as during the lifetime of a person no one can have a vested or certain interest in his estate (Clark v. Railway Co., 27 Tex. 100), it may not be said from the record here that the deed of William Burnsides in 1854, and of Hogan, as guardian, and Moores in 1859, passed, in the character of heirs, an interest in the Mary Burnsides estate. For from the record here it may not be said that Mary Burnsides died before 1862. The evidence in the record even challenges the inference of her death in 1862, for the witness Kinney testified:

“I came here with my stepfather in 1863, and I have lived in that country ever since. I don’t know whether William Burnsides is living or dead, and I don’t know whether Hogan is living or dead. Mary Burnsides was not dead at that time; I don’t know when she died.”

And there is no. evidence going to show that William Burnsides was a son or heir of Mary Burnsides so as to pass any after-acquired title in virtue of his-warranty deed in 1854. It is believed that the court did not err in giving a peremptory instruction, and the assignments are overruled.

In order for the testimony, of the witness Kinney, as complained of in bill of exception No. 1, to be admissible as evidence, it must appear that the declarant Burnsides is dead. 1 Greenleaf on Evid. § 114b; 16 Cyc. 1231; Wallace v. Howard, 30 S. W. 711. For statements by a living third person concerning himself and family connections are hearsay. Nehring v. McMurrain et al., 46 S. W. 369. And a presumption of the death of William Burnsides and Hogan may not be predicated, it is believed, upon the evidence in the record. Datham v. Toombs, 32 Tex. Civ. App. 270, 73 S. W. 1060; Wells v. Margraves, 164 S. W. 881.

The judgment is affirmed.
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