author: JENKINS, J.

text:
    BENSON v. ASHFORD et al.
    (No. 5678.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 6, 1916.)
    1. Contracts &wkey;>43 — Acceptance.
    A written contract is not completed until signed or accepted and acted upon by the party not signing.
    [Ed. Note. — For other cases, see Contracts, Dec. Dig. <¿=^43.]
    2. Mechanics’ Liens <&wkey;271(10) — Pleading.
    In suit to foreclose mechanic’s lien based on house-building contract signed by defendant alone, judgment for plaintiff was error where the complaint failed to allege plaintiff’s performance of the contract.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 504; Dec. Dig. <&wkey;271(10).]
    3. Judgment &wkey;>255 — Conformity to Pleadings.
    Facts not alleged, though proved, cannot form the basis of a judgment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 445; Dec. Dig. @=>255.]
    Error from District Court, McLennan County; E. J. Clark, Judge.
    Action by J. C. Ashford and others against Eula Benson. Judgment for plaintiffs, and defendant brings error.
    Reversed and remanded.
    H. C. Lindsey, of Waco, for plaintiff in error. Weatherred, Willis & Cole, of Waco, for defendants in error.
   JENKINS, J.

We were in error in stating in our former opinion that plaintiff in error specially excepted to the petition of defendants in error in that it did not allege performance of the contract on the part of defendants in error, and that opinion is here withdrawn. We, however, overrule plaintiff in error’s motion for rehearing, believing that the judgment should be reversed for fundamental error appearing upon the record.

Defendants in error brought suit to recover on certain notes executed by plaintiff in error, and also to foreclose a mechanic’s lien which they claimed to have by virtue of an alleged contract. The contract referred to purports to be the contract of both parties, but is signed by Eula Benson alone. The defendants in error did not allege that th'ey had performed any part of the contract, which provided that they should build a house for plaintiff in error according to certain specifications therein set forth. The alleged contract was attached as an exhibit to the petition.

“As a general rule, a written agreement cannot be said to be a completed contract until signed by all parties to it.” 9 Cyc. p. 299.

The exception t9 this rule is where the party not signing the contract Has accepted and acted upon the same. Martin v. Roberts, 57 Tex. 564; Campbell v. McFadin, 71 Tex. 28, 9 S. W. 139; 9 Cyc. p. 300. There is no statement of facts in the record, but, as defendants in error did not allege performance of the contract on their part, no evidence as to such performance could have been legally received, or, if received, could have been the basis of a judgment. Osvald v. Williams, 169 S. W. 185; York v. Lumber Co., 169 S. W. 187; Railway Co. v. Brown, 173 S. W. 943; Nalls v. McGrill, 184 S. W. 275.

The court rendered judgment foreclosing the mechanic’s lien, and, there being no pleadings upon which any evidence could have been introduced to sustain such judgment, the motion for rehearing is overruled, and the judgment of the trial court is reversed, and the cause remanded.

Reversed and remanded.
      <teoFor other oases see same topic anti KEY-NUMBER, in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: TALBOT, J.

license: Public Domain

text:
    MORRISON et ux. v. BROOKS.
    (No. 7655.)
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 2, 1916.)
    1. Appeal and Error &wkey;>389(2) — -Requisites for Transfer op Cause — Necessity op Security — Exemptions—Statute.
    Under the statute authorizing an appeal from the judgment of the lower court without bond, upon proof of inability to pay the costs or give security, before the county judge or the court trying the case, authority being conferred on the judge of a county court by virtue of his office, and not alone upon the court, where a case was tried in the county court, an affidavit that appellants were unable to pay the costs of an appeal or give security, made before the judge who tried the case during the term of the court, was sufficient, although it does not appear that the affidavit was made while the court was in open session.
    [E'd. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2074; Dec. Dig. <5&wkey;389(2).]
    2. Appeal and Error <&wkey;389(2) — Requisites por Transfer op Cause — Necessity op Security — Exemptions—Statute.
    Under the statute authorizing a party to appeal without bond upon proof of inability to pay costs of appeal or give security, an affidavit was not insufficient because sworn to by only one of two appellants.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2074; Dec. Dig. <&wkey;>389(2).]
    3. Executors and Administrators <&wkey;221(5) —Action to Establish Claim — Evidence— Sufficiency.
    In an action against the estate of a decedent to establish a claim for personal services rendered decedent, evidence held insufficient to support a finding disallowing part of plaintiff’s claim on the ground that a portion of the services were rendered punsuant to an agreement for neighborly services, etc., and that services outside the agreement were not rendered, except during the last 10 days of decedent’s life.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 903%, 1874, 1876; Dec. Dig. &wkey;221(5).]
    4. Costs <&wkey;231(3) — Appeal—Statute.
    Yernon’s Sayles’ Ann. Civ. St. 1914, art. 2046, provides that in cases of appeal by the party against whom judgment was rendered in the court below, if judgment of the court above be against him, but for a less amount, such party shall recover the costs of the court above, but shall be adjudged to pay the costs of the court below. Article 3451 provides that in a suit brought to establish a claim against the estate of a decedent after rejection, if he fails to recover judgment for a greater amount than was allowed by the executor or administrator, he shall be adjudged to pay the costs of such suit. Held that, in an action against an administrator to establish a claim, where plaintiff obtained judgment in a justice court, with costs, and on defendant’s appeal to the county court judgment was for plaintiff, but for a smaller amount, article 2046, and not article 3451, applies, and defendant was entitled to recover the costs of the county court.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 852, 853, 855, 872-875; Dec. Dig.'&wkey; 231(3).]
    5. Appeal and Error &wkey;>747(3) — Reservation of Grounds for Review — Cross-As-SI&NMENT OF ERROR.
    Where the record fails to show that a cross-assignment of error was filed in the court below, it cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3056; Dec. Dig. &wkey;747(3).]
    Appeal from Hunt County Court; H. O. Norwood, Judge.
    Suit by S. L. Morrison and wife against S. B. Brooks, as administrator of the estate of Mrs. Kate McDaniel, deceased. From a judgment of the justice court for plaintiffs, defendant appealed to the county court, in which judgment was rendered for plaintiffs, but with costs of county court taxed against plaintiffs. From order overruling motion to retax costs and motion for a new trial, plaintiffs appeal.
    Reversed and remanded.
    J. H. Morgan, of Greenville, for appellants. N. E. Peak, of Greenville, for appellee.
   TALBOT, J.

This suit was originally filed in the justice court of precinct No. 1, Hunt county, Tex., by the appellants, S. L. Morrison and his wife, against the appellee, Brooks, as the administrator of the estate of Mrs. Kate McDaniel, deceased, to establish a rejected claim of $101 against said estate. The claim is for alleged services rendered the deceased during her last sickness, consisting of cooking, washing, and ironing from February 18, 1915, to March 1, 1915, $11, and for nursing and continuous attention, including “the furnishing of all things desired by the said Kate McDaniel from March 1, 1915, to April 4,' 1915, $90, aggregating $101.” It does not appear that any written pleadings were filed. The claim sought to be established was presented to the administrator in the form of an open account properly verified, and by him rejected in whole. The account was then filed in justice court, and citation issued and served upon the defendant. The defendant appeared in the justice court, and denied under oath that said account, or any part thereof, was just or true. Upon a trial in the justice court, judgment was rendered in favor of the plaintiffs for $70 and costs of suit. From this judgment! the defendant, Brooks, as administrator, appealed to the county court of Hunt county, in which court the case was tried without a jury, and judgment rendered in favor of plaintiffs against the defendant, as administrator of the estate of the deceased, Mrs. McDaniel, for the sum of $15 and costs of the justice court, with costs of the county court taxed against plaintiffs. The plaintiffs filed a motion to retax the costs, and a motion for a new trial, and, both motions being overruled, they perfected an appeal to this court.

Appellee suggests that this court has not acquired jurisdiction of the case, and that therefore the appealj should be dismissed. The appellants bring the case to this court on an affidavit, in lieu of an appeal bond, stating that they are unable to pay the costs of the appeal or give security therefor. This affidavit was made by the appellant S. L. Morrison before the county judge of Hunt county, the judge who tried the case, and it appears by its date and file mark to have been made and filed on the 25th day o.f October, 1915. The caption of the transcript sent to this court shows that the term of the court at which the case was tried ended on the 30th day of October, 1915, and it does not appear in any manner that the affidavit was made before the county judge while the court was in open session. Appellee contends, in effect, that as the record discloses that the affidavit in question was made during the term of the court at which the case was tried, and before the judge who tried it, and fails to disclose that it was made in open court, it does not comply with the requirements of the law, and is insufficient to confer upon this court jurisdiction to entertain the appeal and revise the ruling of the trial court. Among others, cited by appellee in support of his contention, are the eases of Sanders v. Benson, 51 Tex. Civ. App. 590, 114 S. W. 435, and Fletcher v. Anderson, 145 S. W. 622, decided by the Courts of Civil Appeals for the Second and Seventh Districts, respectively. These decisions seemingly sustain the view taken in the present case by the appellee, but we are of the opinion that the cases cited by said courts, and upon which their decisions are based, do not authorize and support the rulings made.

The statute of this state, authorizing a party to appeal from the judgment of the lower court without bond, requires Trim to make proof of his inability to pay the costs of the appeal, or to give ■ security therefor before the county judge of his residence, or in the court trying the case. This proof may consist of the affidavit of the party, and manifestly may be made before either the county judge or the court trying the case. The cases mentioned and relied on by appellee as authority for his contention that the affidavit made by appellant in the present case was insufficient to confer jurisdiction upon this court were cases tried in the county court, but all those cited to sustain the ruling therein made were cases tried in the district court. In such cases—that' is, cases tried in the district court—the proof of inability to pay the costs, or to give security therefor, must be made in open session of the court, unless the appellant elects to make such proof before the county judge. This is true, because the judge of the district court “has nothing to do with such matters, except when he is presiding over the court in session,” and if he hears such proof at a place other than that provided by law for the holding of his court, or when such court is not in open session, he acts without authority of law. Sidoti v. Rapid Transit Ry. Co., 35 Tex. Civ. App. 131, 79 S. W. 326; Smith v. Buffalo Oil Co., 99 Tex. 77, 87 S. W. 659. Not so when the proof is made before the county judge, for authority to hear such proof is conferred upon him, to be exercised by virtue of his office, and not alone upon the court over which he presides. This being so, it is -quite clear, we think, that when the case is tried in, the county court the authority of the county judge to hear proof of the appellant’s inability to pay the costs of the appeal or to give security therefor may be called into requisition, either when the court over which he presides is in session or when it is not in session, and that it is not essential, in order to maintain his appeal, that such proof was made when such court was in open session. The distinction we seek to draw between the eases cited in support of the decisions rendered in the cases of Sanders v. Benson and Fletcher v. Anderson, supra, probably did not occur to the learned judges rendering the opinions in said cases; but, if it did, and said eases were decided regardless of such distinction, then we are unable to agree with them, and must decline to follow them.

The contention that the affidavit was insufficient, because not sworn to by both of the appellants, is without merit.

Again, appellee contends that the assignments of error are not in compliance with the rules, and should not be considered. Wa think the assignments so substantially comply with the rules as to require their consideration, and this contention will therefore be overruled. Among other things the trial court found:

That the “plaintiffs agreed to live with Mrs. McDaniel and be company for her, in consideration of house rent of the value of $8 per month, and that plaintiffs received $12 house rent, besides a new coat suit for one of the plaintiffs and one rick of stove wood”; that “it was in the minds of the parties that plaintiffs would be neighborly with one another; that there would be little neighborly acts for which there could be no legal charge against her estate; that all the acts of plaintiffs for which claims are made come under this class, unless it be for the last 10 days of her life, during which time there was possibly some service beyond the contemplation of the parties; that there was a part of the last 10 days of Mrs. McDaniel’s sickness, and possibly all of the 10 days, when the conditions were more than ordinary.”

Upon the findings made, the court Seems to have concluded that plaintiffs were entitled to recover the sum of $15, and rendered judgment establishing the claim sued on for that amount, and directed that it he paid in due course of administration. The appellants assign these findings of the court and the judgment rendered as error, and contend, in effect, that under no theory of the ease and evidence adduced could such a judgment be properly rendered. This view, we think, must be sustained. The evidence is practically undisputed that plaintiffs rendered the services claimed to have been rendered by them, and that such services were reasonably worth considerably more than the amount of the judgment awarded them. It also appears practically without dispute that Mrs. Kate McDaniel, on the 18th day of February, 1915, or at least about one month before she died, became sick with pellagra; that for at least 30 days next preceding her death her condition was serious, and that she required constant care and attention, such as appellants claim to have rendered her; that the nature of the disease affected the bowels, and caused them to act very frequently; that Mrs. McDaniel’s condition was such that it required the services of one of the appellants for the most part of the day, and the other very frequently at night, to carry out vessels, keep her bed clean, make fires, and administer medicine to her; that in addition to such services it was necessary for the appellant Mrs. Morrison to do cooking and washing for Mrs. McDaniel, and that service was in fact rendered; that during the time these services were being rendered Mrs. McDaniel was confined to her bed, or only able to sit up a short time, or move about her room with assistance, and practically helpless. Touching the value of the services rendered by appellants, Dr. Gregory and two. or three experienced nurses testified that, from the case as stated to them, $101 would be a reasonable charge, and as we understand the testimony all of it shows that such services were worth considerably more than the amount of the judgment rendered in favor of appellants. The witnesses were in accord that the nursing of one afflicted with pellagra was worth more than that of ordinary diseases.

In reference to the court’s, findings to the effect that it was in the minds of the parties that there would be little neighborly acts performed by the appellants for Mrs. MeDam iel, for which there could be no legal charge against her estate, etc., and that it was only during the last 10 days of Mrs. McDaniel’s life that her condition could be regarded more than ordinary, requiring services beyond such as were contemplated by the parties, we think it must be said that such findings are not supported by, a preponderance of the evidence. On the contrary, we think the greater weight of the testimony tends to show that such “neighborly acts” as may have been in the contemplation of the parties did not comprehend the character of services for which appellants sue. It shows that Mrs. McDaniel developed a case of pellagra for at least 30 days before her death, and that the care and attention required by her during such time was decidedly more than that called for in a less loathsome and serious disease. But if Mrs. McDaniel’s condition for the last 10 days of her life, because of the disease with which she was suffering, required more than ordinary care and attention, and was beyond that contemplated by the parties when they moved into her house and undertook to become a “companion” to her, still the undisputed evidence, as we construe it, entitled appellants to a judgment for more than the trial court recognized as due them and allowed. Indeed, we are unable to discover in the record any specific testimony authorizing a judgment for the amount awarded by the court. The testimony is undisputed that Mrs. McDaniel, about 2 weeks before her' death, gave the coat suit referred to in the court’s findings to Mrs. Morrison, and we have found no testimony in the record that would warrant the conclusion that Mrs. McDaniel, or any one else for her, furnished appellants the “rick” of wood, also mentioned in said findings. If appellants received a “rick” of wood, for which they should be charged in this suit, there is no evidence showing its value..

The trial court did not err in overruling appellants’ motion to retax costs. Article 2046 of Vernon’s Sayles’ Texas Oivil Statutes, providing that in cases of appeal by the party .against whom the judgment was rendered in the court below, if the judgment of the court above be against him, but for a less amount, such party shall recover the costs of the court above, but shall be adjudged to pay the costs of the court below, applies, and not article 3451 of said statute. As has been seen, the appellants recovered a judgment in the county court for a less amount than they recovered in the justice court, and under said article 2046 appellee was entitled to recover the costs of the county court.

The appellee presents in his brief a cross-assignment of error, to the effect that appellants, under the evidence, were not entitled to recover anything, and that the judgment of the court below should be reversed, and here rendered for appellee; but the record fails to show' that such cross-assignment was filed in the court below and it cannot therefore be considered. If, however, we were authorized to consider the said assignment, what we have already said disposes of it adversely to appellee’s contention.

We conclude the judgment should he reversed, and the cause remanded; and it is accordingly so ordered.
      ernoFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HENDRICKS, J.

text:
    PANHANDLE & S. F. RY. CO. v. BELL.
    (No. 1064.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 22, 1916.)
    1. Caerieüs &wkey;>218(10) — Interstate Shipment — Oral and Written Contracts.
    The written contract for an interstate shipment, contemplated by Carmack Amendment (Act Cong. June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 595 [TJ. S. Comp. St. 1913, § 8592]) being free from fraud, prevails over the precedent oral contract, so that provision of the written contract for notice of claim of damages, if reasonable, controls.
    [Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 674-696, 947; Dec. Dig. &wkey;218(10).]
    2. Carriers <&wkey;218(3) — Live Stock Shipment —Notice op Claim op Damages.
    As regards a claim for shrinking of live stock in transit, provision of.contract for interstate carriage, for notice of claim before removal from destination, is reasonable.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674r-696, 938; Dec. Dig. &wkey; 218(3).]
    3. Carriers <&wkey;218(5) — Live Stock Shipment —Contract—Separable Provisions.
    The provisions of a contract for live stock shipment for notice of claim for damages and that the stock shall not be removed for three hours after notice are separable, so that any invalidity in the provision as to removal does not excuse the shipper from giving notice.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696; Dee. Dig. &wkey;218(5).]
    4. Carriers &wkey;>218(10) — Live Stock Shipment-Notice op Claim.
    Damage from decline in market price during delay in transportation of live stock is not within the provision of the contract of shipment for notice of claim for loss or injury to stock during transportation.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696, 947; Dec. Dig. &wkey; 218(10).]
    5. Appeal and Error <&wkey;1066 — Prejudicial Error — Instructions.
    A charge submitting the issue of fraud on facts pleaded as such, insufficient to constitute fraud, is prejudicial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. <g=w!066.]
    6. Courts <&wkey;121(6) — Jurisdiction—Amount in Controversy — Partial Elimination.
    The amount sued for being enough to give the trial court jurisdiction, elimination of one of the items by the judgment on appeal will not affect the jurisdiction of the trial court on a new trial as to the remaining item.
    [E'd. Note. — For other eases, see Courts, Cent. Dig. § 421; Dec. Dig. &wkey;121(6).]
    7. Tuial <£=3253(6> — Instructions—Applicability to Evidence — “Sheep.”
    The term “sheep” including ewes and lambs, a requested instruction requiring a finding that there 'was no decline in market value of sheep, when there was such evidence as to either ewes •or lambs, is erroneous.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. § 618; Dec. Dig. &wkey;253(6).
    For other definitions, see Words and Phrases, First and Second Series, Sheep.]
    Appeal from Deaf Smith County Court; Jas, A. Hughes, Judge.
    Action by A. G. Bell against the Panhandle & Santa Fé Bailway company. Judgment for plaintiff, and defendant appeals.
    Be-versed and remanded.
    Terry, Cavin & Mills, of Galveston, Madden, Trulove, Byburn & Pipkin, of Amarillo, and Gilliland & Estes, of Hereford, for appellant. Bussell & Dameron, of Hereford, for appel-lee.
   HENDRICKS, J.

This is a suit for damages alleged to have accrued on account of an interstate shipment of ten cars of sheep, from Hereford, Tex., to Kansas City, Mo. It was alleged that the sheep were delayed and held in the pens at Waynoka, Okl., some 30 hours without proper feed and water, and were also held some 10 hours at said point on the cars.

The elements of damage alleged were on account of shrinkage and injury to the sheep, amounting to $825, with the further demand of a loss of $170, arising on account of a decline of market between different dates. The shipments moved under a written contract, executed September 24, 1914, providing for the transportation of the sheep at a lower rate and likewise for the transportation of two caretakers, who accompanied the stock to destination.

Paragraph 8 of the livestock contract, pleaded by the defendant railway company, stipulates as follows:

“Eight. In order that any loss or damage to be claimed by the shipper may be fully and fairly investigated and the fact and nature of such claim or loss preserved beyond dispute and by the best evidence, it is agreed that as a condition precedent to his right to recover any damages for any loss or injury to his said stock during the transportation thereof, or at any place or places where the same may be loaded or unloaded for any purpose on the company’s road, or previous to loading thereof for shipment, the shipper or his agent in charge of the stock will give notice in writing of his claim therefor to some officer of said company, or to the nearest station agent, or, if delivered to consignee at a point beyond the company’s road, to the nearest station agent of the last carrier making such delivery, before such stock shall have been removed from the place of destination above mentioned, or from the place of delivery of.the same to the consignee, and before such stock shall have been slaughtered or intermingled with other stock, and will not move such stock from said station or stockyards until the expiration of three hours after the giving of such notice; and a failure to comply in every respect with the terms of this clause shall be a complete bar to any recovery of any and all such damages.”

The plaintiff replied to this pleading that the shipping contract was presented to him for signature when the train was ready to depart, and was not offered in time within which to read it; that he was led to believe that the shipment would not move unless he signed the contract, and, though he had been shipping for years, he did not know the contents of the same, but thought it was for transportation for himself and caretaker; that the same is unjust, unreasonable, and illegal, and that his shipment was in reality made under a verbal contract consummated before the written contract was signed, and that he was not bound by said written contract.

Plaintiff testified:

“That is the contract [indicating the shipping contract] which I signed and shipped this shipment on; at the time I signed that contract the agent said nothing about two different rates; I was in the freight office when I signed that contract; the contract was not explained to me, as I have before stated, but I understood it; we always sign those contracts.”

The trial court in part charged the jury in substance that if they believe that the contract was a voluntary and mutual agreement between the parties, fixing their rights and liability under the shipment, and further believed that the terms contained therein with reference to notice of a claim for damages were reasonable, and fchat the plaintiff gave no notice, to find for the defendant. He further charged:

“But, on the other hand, should you believe from a preponderance of the evidence that the stipulations in said written instrument are unreasonable, or that said instrument was procured from plaintiff Boll, through the fraud of the defendant, or was without consideration, as alleged by plaintiff, in that at the time said cars were ordlred no written contract was demanded”

—and that the cars were furnished and the sheep loaded therein under a verbal order, and that the written instrument was presented to plaintiff after the sheep were loaded and immediately before the train departed, and that plaintiff had no time in which to read the same and did not know the contents thereof, and signed it under such conditions, the written instrument would not be the contract, and the agreement to give notice of damage would not be binding.

It was proven at the trial that Mr. Brooks, the general livestock agent of the Santa Eé, had his office in the Livestock Exchange Building in Kansas City, Mo., and that Bell knew of it. It is also shown that the delivering carrier at Kansas City had a station agent at that place. The plaintiff failed to give any notice of claim of damages imposed by the particular provision.

The defendant asked for a peremptory instruction, which was refused by the trial court; and also objected to the charge of the court submitting to the jury the question whether or not the contract was procured to be signed by Bell, through the fraud of the defendant, in that there is no evidence whatever of fraud practiced on Bell in procuring his signature to said contract.

The trial court also stated in his charge that:

“Plaintiff answers * * * by plea that such contract was a fraud on him, that he did not know its contents and terms, and had no opportunity to read and understand same before signing it, and is not bound by its terms.”

Defendant also objected to this statement, claiming that the same is erroneous—

“in that said supplemental petition, although it charges that defendant did practice fraud on plaintiff, charges the facts upon which the alleged fraud was based, and such facts so charged do not constitute fraud, and said charge in that respect assumes an issue not presented by the pleading nor by the evidence.”

The record shows that the injury to the sheep, aside from the damages claimed on account of a decline of market, occurred in transportation on the line of connecting carrier. We would seriously doubt, upon this record, without viewing the Carmack Amendment to the Hepburn Act, as controlling the shipment, whether a preliminary oral contract for) through transportation was sufficiently proven for the purpose of invoking. the liability of the initial carrier for the negligence of a connecting carrier, and as an avoidance of the written contract.

“It is a general rule of law, supported by the weight of authority and by sound reasoning, that in the absence of an agreement or course of business to the contrary, the initial carrier is bound only to safely carry and deliver to the next carrier. * * * A local * * * agent of a railroad company ordinarily has no authority to bind the corporation to carry freight beyond its [own] line.” Railway Co. v. Jackson & Edwards, 99 Tex. 347, 89 S. W. 969.

Because the initial carrier receives goods marked for transportation beyond its own line or quotes the rate of freight over the whole distance, or because previous to the shipment there was proof of one shipment over the same road to the point of destination and arrangements for cars and rates, and the fact that through freight was collected at the destination, are insufficient to prove authority on the part of the local agent to make a contract to transport over other lines of road. Blackburn v. Railway Co., 52 Tex. Civ. App. 444, 445, 115 S. W. 874 (writ of error refused); Hunter v. Railway, 76 Tex. 196, 13 S. W. 190; also Miller v. Texas & N. O. Ry. Co., 83 Tex. 519, 18 S. W. 954, and Gulf, C. & S. F. Ry. Co. v. Baird, 75 Tex. 259, 12 S. W. 530; Hutchinson on. Carriers, §§ 145, 170.

The Supreme Court of the United States, in the case of Railway Co. v. Myrick, 107 U. S. 102, 1 Sup. Ct. 425, 27 L. Ed. 325, held that an agreement for through transportation will not be inferred from doubtful expressions' or loose language, and what constitutes 'a contract of carriage for through transportation was a matter of general law, upon which that court would exercise its own judgment.

But, arguing the case from another angle: It is apparent that the charge of the court conveys the idea that the alleged fraud submitted by him to the jury consisted of the matters stated in said charge surrounding the execution of the bill of lading. It is true our courts have previously argued and decided that an element of duress enters into the execution of live stock contracts under the conditions stated in the trial court’s charge; also, where a previous consummated oral contract has been made for the shipment, they have asserted a failure of consideration for the written contract, and permitted recoveries upon such antecedent oral agreement. This court now concludes that a written contract, if unobjectionable in other respects, signed by the shipper and the agent, with reference to transportation, where the subject is interstate, as applied to damages accruing on the line of a connecting carrier, control the liability, and the oral, contract is superseded.

The undisputed evidence in this ease shows a special consideration for the limited liability, based on the lower of two rates as applied to the shipment of sheep, as per published tariffs on file at Hereford. We are not holding that such a special consideration is necessary as applied to the provision with reference to the notice of claim for damages at destination, but such an element may, to some extent, be appropriately mentioned as aiding this argument.

One of the dominating features of the Car-mack Amendment is the prescribed issuance by the carrier to the shipper of a written bill of lading, or receipt; for the goods by the initial carrier. Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 151, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257.

Justice Van Devanter of the United States Supreme Court, in passing upon a provision in a live stock contract, requiring notice in writing of the claim before the stock had been removed from the place of destination, said that the laws in force at the time of the execution of the contract, affecting its validity, performance, and enforcement, form a part of the contract, as if they were expressly referred to or incorporated in same. He also said:

“A bill of lading is a contract and within this rule, The Carmack Amendment, * * * which was in force when this bill of lading was issued, directs a carrier receiving property for interstate transportation to issue a through bill of lading therefor, although the place of destination is on the line of another carrier. * * * This bill of lading was issued under that statute and should be interpreted in the light of it.” Northern Pac. Ry. Co. v. Wall, 241 U. S. 92, 36 Sup. Ct. 495, 60 L. Ed. 905.

It is not an open question but what, if any loss on account of the death of any of the sheep had occurred in the course of transportation, the limitation of agreed value with the initial carrier, for the purpose of securing the lower of the two rates of freight, would have been binding upon the plaintiff on account of the Carmack Amendment. Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. B. A. (N. S.) 257; Carl Case, 227 U. S. 639, 33 Sup. Ct. 391, 57 L. Ed. 683; Harriman Case, 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690.

The connecting carrier, participating with the initial carrier in the lower freight rate, necessarily would only have been bound to that extent; the Carmack Amendment makes the connecting carrier respond to and reimburse the initial carrier for the loss or injury recovered against said initial carrier, on account of the latter’s negligence, and the bill of lading for through transportation, which the law requires the initial carrier to issue, if it were to provide for a shipment under a lower freight rate, based on filed tariffs, the agreed value would be the criterion and measure of the damages. Santa Fe Ry. Co. v. Robinson, 233 U. S. 173, 34 Sup. Ct. 556, 58 L. Ed. 901.

The Bobinson Case, supra, is an interesting and instructive case where the market value, instead of the agreed value, was contended for as the measure of damages, because a consummated oral contract was made previous to the shipment and the written contract — the plaintiff alleging in substance what is alleged here. The stock, a valuable race horse, was shipped on a lower freight rate, based on filed freight rates. The federal Supreme Court said, after citing numerous cases by that court:

“We regard these cases as settling the proposition that the shipper as well as the carrier is bound to take notice of the filed tariff rates, and that so long as they remain operative they are conclusive as to the rights of the parties, in the absence of facts or circumstances showing an attempt at rebating or false billing. Great Northern R. Co. v. O’Connor [232 U. S. 508, 34 Sup. Ct. 380, 57 L. Ed. 703], supra. To give to the oral agreement upon which the suit was brought the prevailing effect allowed in this case by the charge in the trial court, affirmed by the judgment of the Supreme Court of the state, would be to allow a special contract to have binding force and effect, though made in violation of the filed schedules which were to be equally observed by the shipper and carriel’. If oral agreements of this character can be sustained, then the door is open to all manner of special contracts, departing from the schedules and rates filed with the commission. Kansas City Southern R. Co. v. Carl, 227 U. S. 652, 33 Sup. Ct. 391, 57 L. Ed. 688. To maintain the supremacy of such oral agreements would defeat the primary purposes of the Interstate Commerce Act, so often affirmed in the decisions of this court, which are to require equal treatment of all shippers and the charging of but one rate to all, and that the one filed as required by the act.”

The question varies only in form from that case to this; the principle is equally applicable. If the precedent consummated oral contract would not prevail over the written contract as to agreed value, as held in the Bob-inson Case, supra, it would not prevail over it for any purpose if the contract was reasonable.

The cases of Railway Co. v. Dettlebach, 239 U. S. 588, 36 Sup. Ct. 178, 60 L. Ed. 453, and Railway Co. v. Prescott, 240 U. S. 632, 36 Sup. Ct. 471, 60 L. Ed. 836, followed by this court in the case of Railway Co. v. Smyth, 189 S. W. 70, decided by this court October 18, 1916, are also profitable on this subject. The Smyth Case suggests the same conclusion as in this case — the facts, however, are different.

There is really no pretension of fraud in regard to the signature of Bell to the written contract, nor any overreaching by the agent with reference to its execution, and we are convinced that the Supreme Court of the United States, especially applicable to a record of this character, wholly excludes any proposition of a lack of consideration of the written contract because an oral contract had previously been made; hence the provision with reference to notice of a claim for damages, if reasonable, should control.

As applied to the shrinkage of the sheep, and the accruéd damages ascertainable at destination, arising in transportation, we interpret the case of Railway Company v. Wall, supra, by the Supreme Court of the United States, as either determining, or strongly persuasive, that provisions of this character requiring notice of a claim for damages before the cattle are removed from destination, are reasonable. Upon the first consideration of the instant case we were concerned with the clause requiring the shipper not to remove the cattle for three hours after the notice of claim was given. It was thought perhaps that such a provision would either be reasonable or unreasonable, according to conditions, and hence a jury question; and that if a jury were to decide that as-applied to this character of shipment that a three hours’ retention'of' the Sheep in the stock pens- after such notice was. given would be unreasonable, then the other duty devolving upon the shipper to give notice -in the first instance might also be void"; that the good and the bad were blended and intertwined to that extent that they could not be severed, and the whole provision ■ would fail. The case of Railway Co. v. Evans-Snider Buel Co., 42 Tex. Civ. App. 63, 93 S. W. 1025, is an aid to such a contention; the provision under- consideration in that contract being exactly the same as in this case. It was said:

‘The parts and requirements specified in this * * * contract are so interdependent that they become inseparable,- and as a whole are unreasonable and void:”

The Supreme Court of the state, however, granted a writ of error, disagreeing with such holding, but affirmed the cause .because the application for the writ of error did not raise the particular question. P. & N. O. Ry. Co. v. Evans-Snyder Buel Co., 100 Tex. 191, 97 S. W. 466.

The case of Gulf, Colorado & Santa Fe Ry. Co. v. Hume Bros., 87 Tex. 219, 27 S. W. 112, is clearly distinguishable from this case. Chief Justice Brown stated the rule in the Hume Case as:

“When one for a legal and valuable consideration agrees to perform two acts which are sev-erable, one of which is lawful and the other unlawful, the contract may be enforced as to that for which it was lawful to contract, and held void as to the other.”

The Supreme Court of the United States, in speaking of certain provisions of a contract claimed to be invalid, said:

“Conceding this to be so, they are clearly separable and severable from the other parts which are relied upon. The rule in such cases, where there in no imputation of malum in se, is that the bad parts do not affect the good. The valid may be enforced.” Gelpcke v. Dubuque, 1 Wall. 221, 222, 17 L. Ed. 519, 520.

See particularly Haswell v. Blake, 90 S. W. p. 1127, and citation of numerous authorities (writ of error denied by the Supreme Court).

As stated, besides other considerations, there is a special consideration that the shipment was based upon a lower freight rate. The two things imposed upon the shipper— 'first, the giving of the notice of the claim for damages; and, second, refraining from removing the cattle for three hours, after the notice was given — are clearly separable, though it- were said that the second provision was unreasonable. The shipper would not be excused from giving the notice.

The damages arising on account of the decline in the market do not come within the purview of this particular contract as to the notice of claim for damages. Railway Co. v. Evans-Snyder Buel Co., 100 Tex. 191, 97 S. W. 467. As to a contract using exactly the •same language as used in this, the Supreme ■Court said:

“Such damages could not in any just sense 'be, considered as embraced'in the language ‘loss ¡or injury to his said stock.’ ”

We are not sustaining the assignment •based upon the peremptory instruction. It .could not have been given because it would ¡have excluded the damages based on the decline in the market value of the sheep as to which the notice would not be required. However, the assignments based upon the statement in the court’s charge, as reflecting the supplemental petition as to the issue with reference to fraud, and the particular paragraph of his charge submitting such- a question to the jury, both challenging the same as erroneous, will, have to be sustained. Railway Co. v. Sage, 98 Tex. 440, 441, 84 S. W. 814.

Under the opinion of the state Supreme Court,, supra, we feel that we are required to hold that such a charge must be regarded harmful. , The jury could very well have considered that the elements set out in the charge, alleged to have been surrounding the parties when the contract was signed, constituted'fraud'sufficient to" overthrow the written contract. Such an instruction is prejudicial. Railway Co. v. Sage, supra.

If the railway company continues to interpose the provision of its contract as a defense, in regard to a failure to give a notice of claim for damages accruing on account of the loss from injury to the stock, in transportation, the trial court is instructed, upon the same state of facts, to sustain the same. This would leave in the petition the damages, alleged to be $170, on account of the decline in the market value of the sheep, and upon the question of jurisdiction, we think the case of Cattlemen’s Trust Co. v. Blasingame, upon motion for rehearing, 184 S. W. 570, 580, and the Supreme Court case of Railway Co. v. Grayson Co. Nat. Bank, 100 Tex. 17, 93 S. W. 431, control, and that the county court would continue to have jurisdiction of the question of decline in market value, and the amount remaining therein to be litigated.

Appellant’s requested charge No. 2, as applied to this record, in using the term “sheep,” in failing to draw any distinction between ewes and lambs, was too general. There was testimony 'at least of the decline in the market value of one class, and under the requested charge the jury was directed to find there was no testimony as to both; the term “sheep” includes both ewes and lambs. The remaining assignments are unnecessary to discuss, and are overruled.

Reversed and remanded.
      otner cases see same topic and KEY-NUMBER in all Key-Numbered Digests and. Indexes


text:
    ROBERTS et al. v. ABNEY.
    (No. 5673.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 1, 1916.
    Rehearing Denied Dec. 6, 1916.)
    1. Contracts @=>10(5) — Unilateral CharacTER.
    Where defendant sold land to plaintiff, as a material consideration, agreeing to erect a pumping plant capable of supplying sufficient water to irrigate the land, which would have materially and permanently increased its market value even though plaintiff did not use the water, such contract was not unilateral because it provided that plaintiff should pay annually for water a certain amount per acre for each acre of land watered, but did not bind him to use any water or to water any land.
    [Ed. Note.- — For other cases, see Contracts, Cent. Dig. § 89; Dec. Dig. @=>10(5).]
    2. Venue @=>22(1) — Residence of a Defendant.
    In suit on a cause of action jointly and severally against all defendants, brought in the county of a defendant’s residence, the court properly overruled the plea of privilege of other defendants to- be sued in the county of residence of one of them.
    [Ed. Note. — For other cases, -see Venue, Cent. Dig. § 35; Dec. Dig. @=>22(1).]
    3. Parties @=>26 — Joindér—Assumption of Indebtedness — Suit by Creditor.
    If, for a valuable consideration, a party assumes the indebtedness of another to a third party, the third party may sue'his debtor and the party assuming the debt jointly; or either of them separately, as a party has -a cause of action on a promise.made for his benefit though he be a stranger both to the promise and to the consideration.
    [Ed. Note. — For other cases, see Parties, Cent. Dig. §§ 32-34; Dee. Dig. @=>26.]
    4. Appeal and Error @=^>877(o) — Harmless Error — Failure to "Find 'Against De-pendant.
    In an action for breach of contract against the original contractor and parties who assumed his liability, if the jury’s failure to find against the original contractor was an error of which plaintiff might have complained, it furnished no ground of complaint to the other defendants, where the original contractor pleaded over against them, but they asked no relief against him.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. 877(5).] 3562, 3568; Dec. Dig. @=>
    Appeal from District Court, Lampasas County; John D. Robinson, Judge.
    Suit by W. B. Abney against P. Z. Davis, Ingham S. Roberts and others. From a judgment for plaintiff against Roberts and the others, except Davis, they appeal.
    Judgment affirmed.
    John B. Warren, of Houston, for appellants. M. M. White and Matthews & Browning, all of Lampasas, for appellee.
   Statement of the Case.

JENKINS, J.

This is the second appeal of this case. A full statement of the case will be found in our former opinion herein (160 S. W. 409-410), which we here adopt with this modification: Before the trial herein appellee filed an amended petition, in all respects similar to that referred to in our former statement, except he claimed as his only measure of damages the difference in the value of his land as it would have been had the contract set out in our former opinion been complied with, and its value at the time of the trial, which he alleged to be $3,600.

Findings of Fact.

On May 21, 1906, P. Z. Davis conveyed to appellee three contiguous tracts of land on the Colorado river, adjoining the Chadwick mill, then owned by said Davis and operated by -water power created • by a dam across said river. On the same day, and as a part of the same transaction, and as a material consideration moving appellee to purchase said land, appellee and Davis entered into a written contract, which is fully set forth in 166 S. W. 409, and to which reference is here made for all purposes, the main feature of which was that Davis would, on or before January 1, 1907, erect at said dam a pumping plant, by means of which it was contemplated by the parties that about 80 acres of said land would be rendered irrigable. Davis made some effort to comply with said contract during the years 1907, 1908, and 1909, but did not succeed in doing so. In 1909 appellee extended time for compliance to April 1, 1910. On July 1, 1911, Davis con veyed the mill property to B. E. Frymeier, Sr., for the consideration, among other things, that he would fulfill said contract. On August 8, 1911, B. F. Frymeier, Sr., for the consideration, among other things, that they would comply with said contract, conveyed the mill property to B. F. Frymeier, Jr., and Ingham S. Roberts. On February 21, 1912, appellee filed suit against Davis, the Fry-meiers, and Roberts, to recover damages for the breach of said contract, which, as before stated, he alleged to be the difference in the value of said land as it would have been had said contract been complied with and its value 'at the time the suit was brought. The jury returned a verdict against appellants for $1,000, which, under the charge of the court, necessarily implies that said contract was never complied with by any of the defendants. The evidence is sufficient to sustain such finding. The jury returned no verdict against Davis, but the court entered judgment as to him that he go hence without day. This action of the court is not complained of on this appeal. The appeal is by B. F. Frymeier, Sr., B. F. Frymeier, Jr., and Ingham S. Roberts.

Opinion.

The brief of appellants contains 15 assignments of error, but their contentions thereunder may be stated as follows: (1) That their objections to the venue should have been sustained; (2) that their exceptions to the petition should have been sustained; and (3) that the verdict of the jury is not supported by the evidence.

The contention of appellants as to their exceptions is that the same should have been sustained because plaintiff’s measure of damages, if any, as shown by his petition, was not the difference in the value of his land by reason of the failure to erect the pumping plant, but the difference in'the rental value of the land for the years that defendants failed to comply with their contract. This was passed upon by us on the former appeal hereof; and, after again fully considering this matter, we adhere to our former opinion.

The contention that the contract pleaded is unilateral was also considered-by us on the former appeal, and we have not changed our views on this point.

The ground of appellants’ contention that the contract is unilateral is that it provides that appellee shall pay annually for water $1.66% per acre, for each acre of land watered by him, but does not bind him to use any water, or to water any land. Had the contract been merely to furnish water to be used by appellee in irrigating his land, there would be much force in this contention. But the main feature of the contract was that Davis would erect a pumping plant, capable of supplying a sufficient quantity of water to make appellee’s land irrigable, which the, evidence, shows would, have ,ma-. terially and permanently increased its market value, even though appellee might not have utilized the water. If he did not choose to farm his land, he could have sold it for its market value, as thus increased, by reason of its having been rendered susceptible of irrigation. Appellee did not sue for damage to his crops by reason of failure to furnish water, but for the permanent injury to his land by reason of the failure to make it irrigable.

The court did not err in overruling appellants’ plea of privilege' to be sued in the county of the residence of one of them. B. F. Frymeier, Sr., resides in McLennan county, and B. F. Frymeier, Jr., and Ingham S. Roberts reside in Harris county, but Davis resides in Lampasas county, where the suit was brought. Appellee’s allegations, and the evidence adduced, show a cause of action jointly and severally against all of the defendants, in that it was alleged and shown that B. F. Frymeier, Sr., as part of the consideration for the deed executed to him by Davis, and that B. F. Frymeier, Jr., and Ingham S. Roberts, as a part of the consideration for the deed executed to them by Frymeier, Sr., assumed the obligation of Davis to erect the pumping plant. If A. is indebted to B. and for a valuable consideration C. assumes such indebtedness, B. may sue A. and C. jointly, or either of them separately, for such debt; the American rule being that one has a cause of action upon a promise made for his benefit, though he be a stranger, both to the promise and the consideration. Allen v. Traylor, 174 S. W. 924; Spann v. Cochran, 63 Tex. 242; Martin v. Tel. Co., 1 Tex. Civ. App. 150, 20 S. W. 862; Schneider v. Roe, 25 S. W. 59; Ward v. Green, 28 S. W. 576; Gay v. Pemberton, 44 S. W. 401; Book Concern v. Carswell, 46 S. W. 859.

It would serve no useful purpose to discuss in detail the evidence which supports the verdict and judgment herein. The contract called for pumping 350 gallons per minute. One test showed 185 and another 200 gallons per minute, and during the short time that water was pumped into the reservoir the maximum, according to the testimony of Davis himself, was 250 gallons per minute. 'During the greater part of the time the dam and the pipe which Davis was to furnish were washed out Appellants insist that the failure of the enterprise was on account of the leakage of the reservoir built by appellee. It is true that the reservoir leaked when water was first pumped into it. Appellee offered to concrete it, but Davis .said that was unnecessary, as the sediment from the water when the river was up would stop the leakage. Two practical irrigation farmers in. that vicinity testified that such- would have been the ease if the water had been pumped into the reservoir. It is true that when this suit was filed there were leaks in the pipe, furnished by appellee. On a former occasion lie Rad promptly mended such leaks, and Re testified tRat Re would Rave done so again Rad appellants been, ready to pump. It would Rave been useless for Rim to Rave done so wRen tRere was neither dam nor connecting pipes.

Appellants insist that this case should be reversed, because the jury did not find against Davis. If this was an error of which appellee might Rave complained, it furnishes no ground of complaint to appellants. Davis pleaded over against them, and Rad the verdict and judgment herein been against Rim, Re might have obtained judgment against them, but they asked no relief against Rim. If it can be said that the verdict'shows bias in favor of Davis, or caprice on the part of the jury, this, in the absence of injury to appellants, would be no ground for reversal. Railway Co. v. James, 73 Tex. 19, 20, 10 S. W. 744, 15 Am. St. Rep. 743.

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

Affirmed.
      @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    BARTON et al. v. VICKERY et al.
    (No. 7785.)
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 2, 1916.)
    1. Schools and School Districts <@=>111— Location of Buildings — Appeal.
    Where the aggrieved patrons of a school district complained to the school board, appealed to the county superintendent, then to the state superintendent and then to the state board of education, without rehef, for relief against alleged illegal action of the board of trustees, the district court had jurisdiction to supervise the acts of the trustees if they abused their discretion.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 265-268; Dec. Dig. <@=>111.]
    2. Schools and School Districts <@=>111— Location of Buildings — Injunction — Plead in g — Sufficiency .
    A petition, showing that school district trustees intend to spend unnecessarily $200 of school funds in buying a new site, which would inconvenience a majority of the patrons, and which was not at the population center, and that the trustees did not act fairly or justly, but for their own pecuniary advantage, makes sufficient showing to warrant exercise of jurisdiction of the court, by a stay of proceedings at least.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 265-268; Dec. Dig. <@=>111.]
    Appeal from District Court, Henderson County; John'S. Prince, Judge.
    Injunction by O. N. Barton and others against J. T. Vickery and others, as the Board of Trustees of Common School District No. 47%, Henderson County. From a denial of the writ, complainants appeal.
    Reversed and remanded.
    Miller & Miller, of Athens, for appellants. E. A. Landman, of Athens, for appellees.
   RAINEY, C. J.

Appellants, taxpayers and voters and patrons in common school district No. 47%, Henderson county, Tex., complaining of the appellees, constituting the board of trustees of said common school district, sought a writ of injunction to prevent the building of a schoolhouse on a certain location. Appellants’ petition for an injunction was presented to the honorable district court of said county then in session, and, coming on for Rearing, the judge held that:

“The district court has no jurisdiction to determine the location of a schoolhouse, under the facts set up in this petition,” and “that it does not appear that the trustees have abused their discretion.”

The injunction was denied, and this appeal taken for review of the court’s action.

No facts seem to Rave been introduced, nor Rave the appellees filed any brief, and the cause is presented here as to the sufficiency of the petition for injunction. The petition, in effect, alleges that appellants first presented their complaint of the site selected to the board of trustees for said district, which was denied, whereupon they appealed to the county superintendent, who held with appellants, when the trustees appealed to the state superintendent of public instruction, who reversed the decision of the county superintendent, and the case was then carried to the state board of education, which sustained the state superintendent denying the complaint. The petition further alleges that the cite selected by the trustees for the location of the schoolhouse is in the northwestern portion of said district, and from one-half to three-fourths of a mile from the north boundary line, which is far removed from the center of population of said district, compelling some of the scholars to walk from 3 to 3% miles, and would cost $200, while a site near the center of population could be procured without cost to the trustees, and be more convenient to a majority of the pupils; that appellants were informed that the trustees intended to discontinue the school at the present site, situated about the middle of the district north and south, but about one-half mile from the eastern boundary line, and locate it at Opelika, a small village which is located in the northwestern portion of said district and about 3% miles from the southern boundary line, when they immediately secured a petition signed by a majority of the patrons of said school, taxpayers, and voters, to locate it at Lutrick, and presented it to the trustees with the result as. above stated. It is further alleged that:

“Plaintiffs show to the court that the north portion of said school district No. 47% is in the Bottoms, and that no people are living along the north fine, and that the citizens and residents live about one-half mile south of the north line of said school district, and hence the center of the population of said school district is at the Lutrick site. Plaintiffs further show to the court that they have exhausted all of the remedies furnished them by the school laws of Texas, that they have complied strictly with all of the requirements of the state school law, and that their rights have been denied them. Plaintiffs further show to the court that it will be to the best interests of all the patrons and pupils of said school district No. 47% to erect a school building and conduct a school on the tract of land herein described and known as the Eutrick tract'; that the lot selected by the plaintiffs, and which they here now tender deed to said school district No. 47%, and known as the Eutrick tract is near the center of said school district, and is the center of the population and of the district, and said Lutrick tract is easy and accessible to all the pupils of said district; that the lot or site selected by the defendants is entirely out of reach of a majority of the pupils and patrons of said district, and that it will be unjust and unfair to the patrons of said district to be burdened with taxes for the erection of said school building and the maintenance of the school while they are deprived of all the benefit that would naturally accrue therefrom; and that said Lutrick site will be convenient to a majority of the patrons and pupils of said district. Furthermore, this condition would destroy the school spirit of this community, and would practically deprive the pupils of the southern portion of district No. 47% of attending the school or getting any benefits from same; that it will be impossible for a large number of the pupils of said common school district No. 47% to attend any school at all, and thereby be deprived of the benefits of a free school education, or, in any' event, it would be impossible for a great number of the patrons and pupils of said district to comply with the compulsory education law of this state, if said building is located and school maintained on either of the lots proposed by the defendants; that the defendants, the trustees herein, are acting arbitrarily in this matter, and are not exercising any discretion, but on the contrary, they are arbitrarily and ruthlessly disregarding the rights of these plaintiffs and the pupils who desire to attend said school; that the defendant trustees own real estate at or near each of the sites proposed by them, and they are undertaking to use the power of their oifice as trustees to enhance the value of said real estate, in absolute disregard for the educational interests of said common school district No. 47%; that the defendant J. T. Yickery is a merchant and operates a general store at Opelika, which said store is near the site proposed by the said defendants, and it is his purpose to use the office of school trustee for his own private gain by building up a better trade for his store, and not to upbuild the school interests of the district he represents; that the acts of the trustees herein are simply an outrage, and a violation of their duty to the public or said school district, and that their acts herein are unjust, unfair, and arbitrary, and without any discretion whatever, and without any regard for the plaintiffs’ rights; that' the Opelika lot is out of reach of all the pupils of the said district except a very few. Plaintiffs further show that the defendants, as trustees of said common school district No. 47%, are about, and threatening, to locate said school building and school upon the tract of ground called herein the John Hatton tract, and they are demanding of said’ superintendent of instruction of Henderson county, Tex,, to issue a permit for the building of said building to approve voucher for the purchase of said Hatton lot and all vouchers necessary for the carrying out of their purchase to locate said school building upon the Hatton lot; and plaintiffs charge that if defendants herein are permitted to establish said school upon said tract of ground, they, as patrons of said school and the pupils thereof and the community in which said school is maintained, to wit, district No. 47%, will suffer irreparable loss and injury, unless plaintiffs be granted an injunction herein, restraining the defendants from purchasing said Hatton lot and from making contract, or contracts, for the erection of said school building at any other place than the lot herein called the Eutrick lot. Plaintiffs say that they have no adequate remedy at law, and thus they pray an order be granted, restraining the acts of the defendants as aforesaid. Plaintiffs charge that if the defendants are not restrained, their loss and injury will be irreparable.”

The appellant having petitioned for relief through all the school authorities as provided, the district court had jurisdiction to supervise the action of the school trustees of a common school district when they abused their -discretion and failed to act in regard to the best interests of the school district. In Caswell v. Fundenberger, 47 Tex. Civ. App. 456, 105 S. W. 1017, it is said:

“We think that it was the intention of the school laws to place such matters primarily under the control of the school authorities, subject, of course, to the final control of the courts in a proper case” (citing Nance v. Johnson, 84 Tex. 401, 19 S. W. 559).

Then does the act of the trustees as alleged by the petition show such a want of discretion and such disregard for the interests of the patrons of the school as to warrant the supervision of the district court? We think so. It shows their intention to spend unnecessarily $200 of the school money in buying a new site on which to erect a school building, which would inconvenience a majority of the patrons, and which is not in the center of the population, and that the trustees were not acting fairly and justly, and that they were acting from mercenary motives, in that some had land that would be benefited by the selection of the site proposed and one of them, being in the mercantile business, would profit thereby, which, if true, shows a spirit that should not be indulged, and prevents unbiased action by one holding a trust capacity.

The court should, at least, have stayed proceedings until the defendants could have been notified and the facts heard, and, if sustained, the injunction should have been granted.

The judgment is reversed, and cause remanded.
      <@=oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HERRING et ux. v. HERRING.
    (No. 7640.)
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 2, 1916.)
    1. Appeal and Error @=>1039(2) — Harmless Error.
    Where a petition in suit on a written contract and to foreclose a mechanic’s lien was filed in the district court and defendant cited to appear therein, and judgment by default was rendered, the fact that the petition was addressed to the judge of the county court and filed therein and was later withdrawn to be filed in the district court was a mere irregularity, and not reversible error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4075; Dec. Dig. @=>1039(2).]
    2. Mechanics’ Liens @=>271(10) —Action to Foreclose — Petition.
    A petition to foreclose a mechanic’s lien based on a note mentioning a contract for mechanic’s lien for labor to be performed and improvements to be made, which failed to allege that the labor had been performed and improvements made as contracted for, was defective.
    [Ed. Note. — For other eases, see Mechanics’ Liens, Cent. Dig. § 504; Dec. Dig. @=>271(10).]
    3. Mechanics’ Liens @=>291(2) — Action to Foreclose — Deeaudt Judgment — Evidence.
    Awarding default judgment, in action to foreclose a mechanic’s lien based on a note mentioning a contract for mechanic’s lien for labor and material and improvements made, was improper, where the mechanic’s lien referred to was not introduced in evidence, and there was no evidence that material was furnished or improvements were made as contracted for.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 600; Dec. Dig. @=>291(2).]
    Error from District Court, Limestone County; C. S. Bradley, Special Judge.
    Action by Mrs. Y. Z. Herring against Levi Herring and wife. Judgment for plaintiff, and defendants brings error.
    Reversed and remanded.
    C. D. Spann, of Glen Rose, for plaintiffs in error.
   RAINEY, C. J.

Defendant in error sued plaintiffs in error on a written contract and to foreclose a mechanic’s lien on a certain house and lot for the sum of $497.93. Plaintiffs in error, although duly cited, did not answer, and judgment by default was rendered against them for said sum and a foreclosure of the mechanic’s lien. Plaintiffs in error sued out a writ of error, and the case is here for review.

From the agreed statement of facts found in the record it appears that on the trial of the case the only evidence introduced and upon which a judgment was based is the written contract sued on, which is as follows: “$450.00. Glen Rose, Texas, Jan. 10, 1912.

“On the 1st day of November, 1912, we promise to pay to the order of I. H. Herring the sum of four hundred fifty and no/100 dollars for value received, with interest at the rate of 10 per cent, per annum from date. Said four hundred fifty and no/100 dollars to be paid in monthly installments of twenty and no/100 dollars each, save and except the last installment, which shall be in the sum of two hundred seventy and no/100 dollars; said monthly installments to be due and payable February 15, 1912, and each month thereafter, except the last installment, which is due and payable on November 1, 1912, both principal and interest is payable at Mexia, Tex. Failure to pay these notes or any installment of interest thereon when due shall at the option of the holder mature these notes and each of them and all other notes this day given by Levi Herring and wife, G. B. Herring, to said I. H. Herring, and the holder thereof may in such event proceed to collect the same in the manner as if the full time period in said notes have expired. It is hereby expressly agreed and understood that these notes are given in part payment for labor and material to be performed and improvements to be made upon the following described property, situated in the town of Glen Rose, Somervell county, Tex., being block No. 21 as appears from the official map and plot of the said town of Glen Rose, of record in Book 2 at page 71 of the Deed Records of Somervell county, Tex., under contract of even date herewith between Levi Herring, party of the first part, and J. M. Simpson, party of the second part, and for the payment hereof, together with all interest according to the tenor hereof, a mechanic’s, materials, laborer’s and contractor’s lien is retained in said written contract, and is hereby acknowledged. In case those notes or either of them is placed in the hands of an attorney for collection, or suit is brought on same, we promise to pay 10 per cent, additional on the amount of principal then due as attorney’s fees. [Signed] Levi Herring.

“G. B. Herring.”

Said instrument showing credits on the back thereof, to the effect that the first three of the monthly installments of $20 each, amounting to the sum of $60 had been paid, together with all interest due upon said note up to the 31st day of December, 1913.

The first assignment of error complains that the petition is defective and is not sufficient to warrant the judgment by default. (1) “That the same shows it to have been presented in and to the county court of Limestone county, Tex., and is addressed to the judge of said court.” The petition is so addressed and shows that it was filed in the county court, but was withdrawn and filed in the district court, and the citation shows that plaintiffs in error were cited to appear in the district court, where judgment by default was rendered. This is but a mere irregularity, but not such an error as to cause a reversal. (2) The next objection is that' it fails to show the existence of any mechanic’s lien in favor of plaintiff in any other person, and that no proper steps were taken to create a mechanic’s lien of any kind that warranted a judgment by default.

Under this assignment the proposition is submitted that the written instrument upon which the suit is based merely mentions a contract between Levi Herring and one J. M. Simpson for a mechanic’s lien for labor and material to be performed and improvements to be made (on certain described property) which is recorded in Somervell county, and there is no allegation of! the consummation of a contract for said lien. In the respects stated we are of the opinion the petition is defective; for it fails to allege that the labor had been performed and the improvements made as contracted for.

The second assignment of error complains:

“That the evidence upon which said judgment was predicated was wholly insufficient to support a judgment by default, and to foreclose a lien upon the real estate described herein.”

The instrument shows upon its face, which is all the evidence introduced, that it was given in part payment “for labor and material to be performed and improvements to be made” upon certain real estate, describing it, under contract between Levi Herring and one J. M. Simpson, and for which a mechanic’s lien was retained and acknowledged. This mechanic’s lien contract was not introduced in evidence; nor was there any evidence that any material was ever furnished or any improvements ever made by said Simpson or any one else. This evidence should have been produced before defendant in error was entitled to recover, and, not having been introduced, defendant in error was not entitled to recover.

Therefore the judgment is reversed, and cause is remanded.
      @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RIGE, J.

text:
    ATER v. ROTAN GROCERY CO.
    (No. 5667.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 1, 1916.
    Rehearing Denied Dec. 13, 1916.)
    1. Bills and Notes @=>375 — Issue oe Stock for Note — Constitution — Holder for Value.
    Under Const, art. 12, § 6, providing that no corporation shall issue stock or bonds except for money paid, labor done, or property actually received, and all fictitious increase of stock or indebtedness shall be void, a note given in payment for increased stock was void even in the hands of an innocent purchaser for value before maturity and without notice.
    [Ed. Note. — Eor other cases, see Bills and Notes, Cent. Dig. §§ 971-981; Dec. Dig. @=> 375.]
    2. Bills and Notes @=>537(1) — Directed Verdict-Conflicting Evidence.
    In an action on a note, where the evidence was conflicting on the issue of whether the note was given for stock in a corporation, it was error to peremptorily instruct a verdict for plaintiff.
    [Ed. Note. — Eor other cases, see Bills and Notes, Cent. Dig. §§ 1862, 1871-1875, 1891-1,893; Dec. Dig. @=>537(1).]
    Appeal from District Court, Bell County; John D. Robinson, Judge.
    Suit by the Rotan Grocery Company against J. M. Ater. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    A. W. Gibson and Lewis H. Jones, both of Rogers, for appellant. Hair & Woodward, of Temple, and J. D. Williamson, of Waco, for appellee.
   RIGE, J.

This suit .was brought by appel-lee against appellant to enforce the collection of a promissory note for $1,300 executed by him on the 26th day of December, 1912, due December 1, 1915, payable to the order of the J. A. Copeland Mercantile Company (a corporation), and bearing interest at the rate of 10 per cent, per annum from date until paid, with usual attorney’s fees clause. It was alleged by plaintiff that after the execution and delivery of the note, and before maturity thereof, for a valuable consideration, the same was transferred and delivered by the mercantile company to it, by reason of which it became the holder thereof for value, praying for judgment thereon.

Appellant answered, alleging that the note so executed was void on account of the fact that it was executed for stock in the J. A. Copeland Mercantile Company, a corporation.

Appellee by supplemental petition pleaded that it was an innocent purchaser before maturity for value, and that the note in question was not given for new stock to be issued at the time of the increased capital stock of the corporation, but that at the time of the execution of said note the appellant received stock in the then existing corporation, which had been fully paid for.

The case was tried by a jury, the court peremptorily directing a verdict in behalf of appellee, from which this appeal is prosecuted.

But one assignment is presented, which urges that the court erred in directing a verdict for appellee, because the evidence adduced upon the trial of this case was conflicting as to whether the Copeland Mercantile Company issued its increased capital stock in exchange for the note sued upon, or that the consideration for such note was capital stock previously owned by J. A. Copeland and A. A. Gunn, and which had been fully paid for; and the evidence is also conflicting as to whether or not, at the time the note sued upon was transferred by the ■Copeland Mercantile Company to plaintiff, its officers and agents knew that the consideration for this note was increased capital stock of said mercantile company theretofore issued and delivered to this defendant,' contending that both of these issues should have been submitted to the jury under proper instructions from the court.

It is elementary that, whenever the evidence is conflicting upon a material issue, it becomes the duty of the court to submit such issue for the consideration of the jury; and to direct a verdict, under such circumstances, is error. See Johnston et al. v. Drought, 22 S. W. 290; Waters-Pierce Oil Co. v. State, 19 Tex. Civ. App. 1, 44 S. W. 936; Heatherly v. Little, 40 S. W. 445; Harris v. Higden, 41 S. W. 412; Bonn v. G., H. & S. A. R. Co., 82 S. W. 808; Hicks v. Armstrong, 142 S. W. 1195; Cement Co. v. Kezer, 174 S. W. 661; Hodge v. Toyah Valley Irr. Co., 174 S. W. 334.

Without discussing the evidence in detail, we are of opinion that it was conflicting upon the main issue presented by the pleadings, to wit, as to whether the note in question was given in payment for increased stock issued by the Copeland Mercantile Company. If so, then the note, as well as the stock, was absolutely void under article 12, § 6, of our state Constitution, which is as follows:

“No corporation shall issue stock or bonds, except for money paid, labor done or property actually received, and all fictitious increase of stock or indebtedness shall be void.”

In discussing the validity of a note given for stock in a corporation, in Commonwealth Bonding & Casualty Insurance Co. v. Curry, 183 S. W. 4, Mr. Justice Hall says:

“If it was understood that the note was taken in payment for the stock, both the note and the stock are clearly void, under the Constitution”— citing Mason v. Bank, 156 S. W. 366, and Sturdevant v. Falvey, 176 S. W. 908; San Antonio Irrigation Co. v. Deutschmann, 102 Tex. 201, 105 S. W. 486, 114 S. W. 1174.

And this, we think would be true notwithstanding the fact that appellee was an innocent purchaser before maturity for value, without notice. See Insurance Co. v. Smyer, 183 S. W. 825; Jones v. Abernathy, 174 S. W. 682, and cases there cited. See, also, Gilder v. Hearne, 79 Tex. 120, 14 S. W. 1031; 8 Cyc. 46; 3 Ruling Case Law, p. 1017, § 225. The same rule is announced in Bank v. Falvey, 175 S. W. 833. See, also, Jefferson v. Hewitt, 103 Cal. 624, 37 Pac. 638; 1 Daniel on Negotiable Instruments (6th Ed.) §§ 197, 198, and 807.

Because in our judgment the evidence was conflicting upon the issues presented by the pleadings, it was improper for the court to peremptorily instruct a verdict in behalf of appellee. It therefore becomes our duty to reverse the judgment and remand the case for another .trial, which is accordingly done.

Reversed and remanded.
      di=>For other oases "re same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    JONES v. BARTLETT et al.
    (No. 7586.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 28, 1916.
    Rehearing Denied Dec. 16, 1916.)
    1. Appeal and Error <@=>1011(1) — Scope — Conflicting Evidence.
    The finding of the trial court upon a direct conflict in the evidence is binding upon the court on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3988; Dec. Dig. <@=> 1011(1).]
    2. Divorce <§=>327 — Foreign Divorce — Full Faith and Credit — Collateral Attack.
    In spite of Const. U. S. art. 4, § 1, as to full faith and credit, a decree of divorce in one state may be attacked in the courts of another, if pleaded or presented therein, by a showing that the court which rendered it had no jurisdiction.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 831-834; Dec. Dig. <@=>327.1
    3. Executors and Administrators <@=>178— Allowances to Widow.
    The reasonableness of allowances to the widow from the estate of the deceased husband is not affected by the question whether the estate will ever be sufficient to pay them.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 667, 668; Dec. Dig. <@=>178.]
    4. Executors and Administrators <@=>194(6) —Allowance to Widow — Interest—When to be Taxed.
    Where the husband had secured a decree of divorce in another state, on published notice without sufficiently establishing residence, and on his death had made his mother independent executrix of the estate, and the former wife sued for her allowance, claiming the decree void, and it was adjudged to be void, she should not be allowed interest as a personal judgment against the executrix, since the executrix could not legally have paid her an allowance, or determined whether she was entitled to it, since that depended on the validity of the divorce decree.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. § 721; Dec. Dig. <@=>194(6).]
    Appeal from District Court, Dallas County ; Kenneth Foree, Judge.
    Suit by Bettie Bartlett and another against Juliette A. Jones, individually and as independent executrix of the estate of Charlie Jones, deceased. Decree for complainants, and defendant appeals.
    Reformed and at-, firmed.
    A. H. Mount, of Dallas, and. Sherrill & Starnes and J. P. Yates, all of Greenville, for appellant. Lee R. Stroud, of Kaufman, and T. B. Ridgell, of Rockwell, for appellees.
   RASBURY, J.

This suit originated in Rockwall county, but by agreement of the parties the venue was changed to Dallas county. The suit is by Bettie Bartlett, ap-pellee, formerly Bettie Jones, widow of Charlie Jones, deceased, against Juliette A. Jones, appellant, mother of Charlie Jones, individually and as independent executrix of the estate of said Charlie Jones. The purpose of the suit is to fix and set aside to Bettie Bartlett, appellee, as the widow of- Charlie Jones, reasonable allowances in lieu of the specific statutory exemptions not found among the effects of her deceased husband, and to establish the amount so ascertained as an equitable lien against certain lands inherited by appellant from said Charlie Jones by the will of the latter, subject to the superi- or life estate of appellant therein. Due to the fact that by Charlie Jones’ will he appointed his mother independent executrix of his estate, the stdt is cognizable in the district, court.

At the trial the following undisputed facts in substance were adduced: Charlie Jones and Bettie Browning were married in Rock-wall county, Tex., February 5,1911. A. separation occurred either in July or August of the same year, Bettie returning to her parents. Erom the day of their marriage until the subsequent separation they lived at the home of Jones’ mother in Rockwall county. On April 11, 1912, on the petition of Jones, he secured divorce from his wife in the district court of Murray county, Okl. The suit was based upon citation by publication. By the laws of Oklahoma the plaintiff in an action for divorce must have been an actual resident in good faith of the state for one year next preceding the filing of the petition and a resident of the county at the time of such filing. From the time of the marriage and the entry of the decree divorcing the parties, Bettie Bartlett, appellee, was a citizen of Rockwall county, Tex., and continuously during said period resided therein. On March 9, 1913, Jones died testate in Rockwall county, Tex. By his will he devised his entire estate, after payment of his debts and the cost of a monument to mark his resting place, wholly to his mother, Juliette A. Jones, appellant, naming her independent executrix. The will was probated, and appellant acquired the appointment as executrix, and took possession of his estate, and denied any interest therein to Bettie Bartlett, appellee. Jones’ interest in the lands so devised to his mother was an undivided one-fourth interest in remainder in the estate of his deceased father in approximately 567 acres of land, a life estate therein having been by Jones’ father devised to the latter’s wife, remainder to his four children. After the death of Charlie Jones, and before commencement of the instant suit, Bettie married C, C. Bartlett, her present husband.

There was a conflict in the evidence on trial of the case on the issue of whether Charlie Jones was a citizen of Murray county, Okl., or of Rockwall county, Tex. The evidence of appellant tended to show that Jones took up his residence in Murray county, Okl., in the year 1910, and continued to reside there until the granting of the divorce. His stay in Texas, including the period from the time, of his marriage in February, 1911, to the separation in the following August, was claimed as temporary visits. The testimony of appellee tended to show that Jones had at all times been a citizen of Rockwall county, Tex., and that his stay in Oklahoma preceding his marriage was for his health, and that his stay after the separation was for the purpose of securing the divorce in order to avoid his marital obligations. Appellant adduced testimony tending to show that appel-lee received actual notice of the citation by publication, and appellee that she did not. The court, by its judgment, found all conflicting issues of fact in favor of appellee. There is evidence to support the finding, and accordingly we are bound thereby. Upon the evidence ■ adduced the trial court held the Oklahoma divorce decree void as to appellee, fixed the appellee’s allowances at $6,000, and declared the same an equitable lien against the lands inherited by appellant from her son, Charlie Jones, subject to appellant’s superior life estate, and ordered same sold. The court also rendered judgment against appellant individually for interest on the amount of the allowances from the date of her denial of appellee’s right thereto to the date of judgment, amounting to $461. From the judgment outlined, this appeal is taken.

Counsel on both sides have, with great care and much particularity, briefed the issues raised in the court below. For the sake of brevity, however, we refrain from considering the propositions and counter propositions seriatim, but will confine ourselves to the issues as such.

The important and controlling question arises over the action of the trial court in holding the divorce decree of the Oklahoma court void. If that decree is a valid one, appellee is not entitled to any allowance in lieu of exemptions, since she would not have been the wife of Charlie Jones at the time of his death. The position of counsel for appellant, stated in our own language; is in substance that by the provisions of section 1, art. 4, of the federal Constitution, commonly known as the full faith and credit clause, and by the rule announced in our own courts, the judgment of a sister state may not be collaterally attacked or the recitations thereof contradicted for the purpose of showing that it did not have jurisdiction to render the decree it did render. On this point a late and accepted authority states the rule to be that:

“When a judgment recovered in one state is pleaded or presented in the courts of another state, whether as a cause of action, or a defense, or as evidence, the party sought to be bound or affected by it may always impeach its validity, and escape its effect, by showing that the court which rendered it had no jurisdiction over the parties or the subject-matter of the action.” 23 Cyc. 1578, and cases cited.

The author of the treatise in Oyc. from which we have just quoted is Mr. Black, the eminent author of Black on Judgments. It is further declared by the same authority that:

“Although many of the cases, particularly the earlier ones, refuse to permit a defendant, denying the jurisdiction of a court in another state, which rendered the judgment in question, to present evidence contradictory of the recitals in the record on the subject of jurisdiction, yet the preponderance of authority, following the lead of the United States Supreme Court, is now in favor of the doctrine that the record in such a case is not conclusive on this point, but may be directly controverted by,extraneous evidence.” 23 Cyc. 1580, and cases cited.

Much cannot be added to what is quoted, since, as stated, the rule is that the judgment may, on jurisdictional grounds, be attacked when sued on, offered as defense, or as evidence, which is, in the last two instances, but attacking it collaterally. From the other extract quoted it will also be seen that on jurisdictional grounds the very recitals of the judgment may in that respect be contradicted. There is on analysis, much of reason and justice in the rule, for, as said by our Supreme Court:

“It is a plain and undeniable principle that, to give any binding effect to the proceedings of a court, it must have jurisdiction of the person of the defendant and of the cause or subject-matter. The want of jurisdiction makes the judgment utterly void and unavailable for any purpose.” Mitchell v. Runkle, 25 Tex. Supp. 132.

Applying the rule to the facts of the present cáse, it inevitably follows that the Oklahoma court was without jurisdiction to enter the decree, since by the finding of the district court of Dallas county he was not at any time a citizen of Oklahoma, but at all times of Rockwall county, preceding and during the pendency of the suit for divorce. It is to be remembered that the evidence of the appellant tended to show that Jones took up his residence in Oklahoma in the year 1910, which was prior to his marriage. Had that issue been sustained by the findings of the trial court, the Oklahoma court, waiving all other issues, would have had jurisdiction, on the theory that the legal residence of ap-pellee would have followed1 that of her husband to Oklahoma. The court, however, as we have said, found that Jones had never in fact been a citizen for any period in Oklahoma.

Application of the rule cited was made in the case of Morgan v. Morgan, 1 Tex. Civ. App. 315, 21 S. W. 154, where the facts were quite similar to those in the cases at bar. Morgan and wife both resided in Parker county from the year 1859 to Morgan’s death in 1887. Prior to Morgan’s death, and in- 1870, he and his wife separated and discontinued their marital relations. In -the year 1876, Morgan, haying been denied a divorce in this state, obtained one in the state of Utah, without having acquired a domicile therein. Morgan again married. After his- death a controversy, assuming the shape of a suit in trespass to try title, arose between his first and second wives as to the ownership of certain lands acquired by Morgan before his second marriage. One of the issues was the validity of the Utah divorce, and in the attack thereon evidence was offered tending to show that Morgan never was in fact domiciled there. Objections to the admission of the evidence on the ground that it was 'a collateral attack upon the judgment being overruled, the issue was presented on appeal, where it was held, first, that the judgment could be on jurisdictional grounds collaterally attacked, and, second, that the judgment was a nullity, for the reason that Morgan, the plaintiff therein, never had been domiciled in Utah, but at all times had his domicile in Texas. In League v. Scott, 25 Tex. Civ. App. 318, 61 S. W. 521, wherein writ of error was denied by the Su-preme Court, it was also ruled that, in order to show that .the court rendering the judgment was without jurisdiction, the judgment could be collaterally attacked. Thus it seems clear that our courts do follow the later rule as stated in the text from Cye.

Some distinction, as affecting the right to attack the judgment collaterally, is sought to be made between a suit for divorce and suits affecting property rights of the parties, and out of which may grow .the rights of third parties, on the ground that a proceeding for divorce is quasi in rem, since it has some resemblance to those suits which only affect particular property and persons found in the jurisdiction of the court. It does seem that Legislatures and courts have so treated the marital status. However, and pretermitting a discussion of that subject, since the case of Haddock v. Haddock, 201 U. S. 562, 26 Sup. Ct. 525, 50 L. Ed. 867, 5 Ann. Cas. 1, our Courts of Civil Appeals, which have final appellate jurisdiction in such cases, have followed the rule of matrimonial domicile as therein announced. Montmorency v. Montmorency, 139 S. W. 1168, will be found to be a close analysis of Haddock v. Haddock, and its application to decrees awarding divorce upon citation by publication. By that opinion it is held that, generally speaking, the domicile of the husband is the domicile of the. wife, and that a divorce granted upon citation by publication in the state of his domicile would be effective in that state, and, so granted, would, as to other states, depend, upon their laws and the application of the rule of comity. By the same opinion it is further ruled that, where the husband abandons his wife in order to avoid his marital obligations, the state to which he flees does not become a new domicile of matrimony, for the reason that he does not, being a deserter of his marital obligations, take with him the marital relation, status, or res. Hence notice by publication would not bring the wife constructively before the court of such state on the theory that the domicile of the husband is the domicile of the wife. To the same effect is the holding of this court in Griffin v. Griffin, 54 Tex. Civ. App. 619, 117 S. W. 910. The difference ,in the facts ip the instant case and those in Montmorency v. Montmorency, supra, is that in the case cited the domicile was actually acquired, but was ineffective to draw with it the matrimonial domicile, because wrongfully acquired, while in the ease at bar domicile never was acquired., Hence it can be said with much greater force in this case that the matrimonial domicile at. all times remained in the state of Texas, under the finding of the trial court that Jones never did acquire a domicile in Okláhoma. The rule being as stated, and the evidence being sufficient to sustain the finding of the court that Jones was a resident of Texas, there was no error in the court’s’ holding that the Oklahoma divorce decree was void.

It is- also contended that the court erred, in" ..fixing appellee’s allowances in lieu of the specific exemptions at the sum of $6,000, for the reason that appellee’s ultimate interest in the estate of her deceased husband is not probably that much, in view of the evidence relating to the value of the estate. As we have said at another place in this opinion, appellant has a life estate in all the lands owned by appellee’s husband at his death, superior to appellee’s allowances which cannot be disturbed. If at the conclusion of her life estate, or pending her use of the lands, they will not sell for sufficient to pay such allowances, the same will be reduced in that proportion. The allowances are reasonable. Whether the estate will ever pay them does not constitute error in their allowances, nor affect their reasonableness.

It is further contended that the court erred in rendering judgment against appellant personally for $461. Said sum represents 6 per cent, per annum interest on $6,-000, the amount of appellee’s allowances, from the date of filing the suit to the date of the court’s judgment. This sum was awarded on the theory that appellant had wrongfully withheld the estate of appellee, consisting of the allowances, and that appellant was liable for so doing as in case of money or property wrongfully withheld. While it is true that appellant was independent executrix of the will of Jones, and hence free from interference on the part of the probate court, in the ordinary administration of the estate, at the same time we seriously doubt whether the executrix could have made an allowance in lieu of exemptions which would have been valid or binding on either party, save in case of mutual agreement. The appellant could not have assumed the authority to declare the Oklahoma decree void, since that is a judicial function, to be exercised by a court of competent jurisdiction. Neither could she, in our opinion, have determined what were reasonable allowances, since that is also a judicial function, to be exercised exclusively by the probate courts, and not to be exercised by individuals, in the capacity of an independent executrix. If there was no right to fix and create the estate on the part of the appellant, she as a consequence could not deliver same, because it was not created until the judgment in the present case was entered. Accordingly we conclude the court erred in rendering personal judgment against appellant for $461, as entered.

There are a number of assignments arising on the pleading and the admission of testimony, but the issues so presented become immaterial, in view of our conclusion that the Oklahoma divorce decree is void.

The judgment in this ease should bear interest from the date of same until its satisfaction in full or otherwise is had by exhausting Jones’ estate. The personal judgment against appellant for $461, as said, is erroneous, and the judgment in that respect is reversed, and rendered for appellant. As reformed, the judgment will be affirmed.
      «EtesFor other,'cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes