author: WILLS ON, C. J.

text:
    SPEARMAN v. MIMS et al.
    (No. 2005.)
    (Court of Civil Appeals of Texas. Texarkana.
    July 9, 1918.
    On Appellees’ Motion for Rehearing, Oct. 10, 1918.)
    1. Trial <@=>395(5) — Findings of Fact — Including Evidence.
    The court’s findings should be of facts, and should not include evidence which it thought established, as facts, findings made.
    2. Appeal and Error <@=>219(2) — Failure to Make Findings oe Fact — Review.
    Court on appeal is not authorized to consider assignments of error predicated on failure of trial court to find as facts certain matters, it not appearing from record that appellant requested trial court to so find.
    3. Adverse Possession <@=>7(2) — 'Under Ten-Year Statute — Unpatented Band.
    The ten-year statute would begin to run in favor of plaintiff when he took possession of lands within a valid survey claiming title by virtue of a deed, although no patent had been issued to lands within the survey, since those claiming adversely to plaintiff by virtue of the survey could, in view of Vernon’s Say les’ Ann. Civ. St. 1914, art. 7742, have maintained trespass to try title.
    On Appellees’ Motion for Rehearing.
    4. Boundaries <@=>3(3) — Distance Versus Objects.
    Where calls of survey were for objects specified as on the ground at distances indicated, the fact that survey may not have closed according to a calculation made of distances called for in the field notes would not render survey void as distances called for would be extended to reach the objects.
    Appeal from District Court, Marion County; J. A. Ward, Judge.
    Suit by Robert Spearman against Charlie Mims and others. The trial court rendered judgment against plaintiff for the land he sued for, but rendered judgment in his favor for other lands, suit for which he abandoned when he filed amended petition, and plaintiff appeals.
    Judgment reversed, and cause remanded for new trial.
    The suit was by appellant against appel-lees, Charlie Mims, R. B. Rogers, Elva Johnson, and Will Johnson. As made by the amended petition filed December 11, 1917, on which the trial was had, it was to recover of appellee Mims 49½ acres of the Robert Mason survey in Marion county, and of said Mims and the other appellees the value of timber it was alleged they had cut and removed from the land.
    Appellant relied solely upon the statute of limitations of five and ten years for title. The trial was by the court without a jury. He found as facts the following: . One Hoyt by a deed dated February 23, 1874, conveyed to appellant 10 acres of the W. C. Johnson survey on which appellant then resided as Hoyt’s tenant, and undertook to convey to appellant a tract of 110 acres by a description not definite enough to identify same. In buying the 110-acre tract, appellant thought he was acquiring the Curtis Morris survey of about 61½ acres, a large part of which was then fenced and in cultivation. A few years (how many not stated) after Hoyt made the deed to appellant, the latter moved the fence inclosing land in the Morris survey so as to include 5 to 10 acres of the Robert Mason 99 acres survey lying immediately south of the Morris survey. Appellant used and cultivated the 5 to 10 acres for a period of at least 20 years after the date of Hoyt’s deed to him, but he did not know that said 5 to 10 acres was a part of the Mason survey until one Brashier surveyed it and the Morris survey about five years before the date of the trial of the case. Shortly after Brashier surveyed said surveys as stated, appellant applied to appellee Mims for permission to allow the fence he had moved so as to inclose with land on the Morris survey 5 to 10 acres of the Mason survey, as stated above, to remain as it then was until such time as he could conveniently remove it from the Mason land. Appellant rendered 49½ acres of the Mason survey for taxes ¡from about the year 1904 to the date of the trial, and paid the taxes assessed against same during that time. Field notes of the Mason survey made May 24,1861, purported to contain 99 acres, and the correct field notes made November 80, 1910, on which •the survey was patented to Mason’s heirs February 23, 1911, contained 99 acres. Appellant was not in possession of any part of said Mason survey long enough after it was •corrected by field notes made November 30, 1910, as stated, to perfect title in him under the ten-year statute of limitations.
    The trial court’s conclusions of law on the facts he found were:
    (1) That the deed from Hoyt to appellant was void as a conveyance of the 110 acres mentioned in it, because said 110 acres were not sufficiently described therein.
    (2) That appellant, having failed to show that he was claiming the land in controversy under •a deed conveying same to him, was not entitled to recover under the five-year statute of limitations.
    (3) “That,” quoting, “since the state had not parted with its title to said Robert Mason survey by patent, and since the heirs of Robert Mason and their assigns have been in no position prior to the 30th day of November, 1910, to maintain an action of trespass to try title •against the plaintiff or any other trespasser •on said land, or mandamus against the Commissioner of the General Land Office to compel ■the issuance of patent, that limitations did not begin to run prior to that time, and therefore ■the plaintiff cannot recover upon his plea of ten-year statute of limitations.”
    On said findings and conclusions the trial ■court rendered judgment against appellant for the land he sued for, as shown by the •amended petition on which the trial was had; but at the same time rendered judgment in his favor for 10 acres of the Wm. Johnson survey and all of the Curtis Morris survey, suit for which he abandoned when he filed said amended petition.
    T. D. Rowell, of Jefferson, for appellant.
    Sehluter & Singleton, of Jefferson, for ap-pellees.
   WILLS ON, C. J.

(after stating the facts as above).

Of the seven assignments in appellant’s brief, five are pre'dicated on the failure of the trial court to find as facts certain matters specified. The complaints are on the theory that it was the duty of that court in making findings of fact to include “every particle,” quoting from the brief, “of material testimony in aid of limitation title.” It not only was not the duty of the court to do that, but it was his duty not to do it. His findings should have been of facts only, and should not have included evidence which he thought established as facts findings he made. Oldham v. Medearis, 90 Tex. 506, 39 S. W. 919; Thompson v. Mills, 45 Tex. Civ. App. 642, 101 S. W. 560; Gordon v. McCall, 20 Tex. Civ. App. 283, 48 S. W. 1111; Lumber Co. v. Hare, 61 Tex. Civ. App. 509, 130 S. W. 864; Barnes v. Riley, 145 S. W. 292. But, if the rule were otherwise, we would not be authorized to consider appellant’s complaints, because it does not appear from the record that he requested the court to make the findings he says the court should have made. Veatch v. Gray, 41 Tex. Civ. App. 145, 91 S. W. 324; Caplen v. Cox, 42 Tex. Civ. App. 297, 92 S. W. 1048; Hatton v. Lumber Co., 57 Tex. Civ. App. 478, 123 S. W. 163; Oil Co. v. Oil Co., 137 S. W. 171; Merriman v. Blalack, 57 Tex. Civ. App. 270, 122 S. W. 403.

The other assignments are predicated on the trial court’s conclusions of law. We think the conclusion reached by the court that the deed from Hoyt to appellant was ineffective as a conveyance of the 110 acres mentioned therein, because it did not sufficiently describe the land, was warranted by the testimony. But we think the conclusion that the ten-year statute of limitations did not in any event begin to run in appellant’s favor until the Mason survey was corrected by the field notes made November 30, 1910, was incorrect. And, as it appears the action of the court in finding against appellant’s claim under that statute may have been due entirely to the erroneous view he took of the law, we think the judgment should be reversed and the cause remanded for a new trial. It appears from the record that the 49½ acres sued for were embraced in the original field notes of the Blasón survey made (May 24, 1861,. and in the corrected field notes made November 30, 1910 on which the patent issued. We see no reason why the ten-year statute of limitations should not have commenced to run in appellant’s favor when he took possession of the land, claiming to own it by virtue of the deed made to him by Hoyt, nor why, if he continued there-afterwards to occupy or use it, claiming it as his own, for a period of ten years, he did not acquire the title thereto. The reason stated by the trial court was that the heirs of Mason and their assigns were “in no plosition prior to the 30th day of November, 1910 (the date when the corrected field notes were made), to maintain an action of trespass to try title against the plaintiff or any other trespasser on the land.” The contrary of the trial court’s view seems to he the law. Article 7742, Vernon’s Statutes; Udell v. Peak, 70 Tex. 547, 7 S. W. 786. In, the case cited the court said:

“Appellant contends that the statute of limitations could not commence to run against his title .until the patent issued in September, 1882, on the ground that the title remained in the state until that time. The land was surveyed by virtue of the Squire Mays headright certificate in 1841, and the patent finally issued for the land embraced in this survey. The original survey segregated the land from the public domain, and the state was ever afterwards powerless to resume control of it, and it having been appropriated by virtue of a valid certificate the equitable title was in the owner of the certificate, and the statute of limitation would run against such title.”

The judgment will be reversed, and the cause remanded for a new trial.

On Appellees’ Motion for Rehearing.

Prom findings of the trial court it appears that there was a notation, in pencil on the field notes of the Mason survey made May 24, 1861, as follows: “Does not close — error north 20 varas, error west 47 varas. October 8, 1861.” It is insisted that it therefore appeared that the survey was not then a valid one, and hence that the conclusion of the trial court that the statute of limitations of ten years did not begin to run in appellant’s favor until the survey was corrected by the field notes made November 30, 1910, was correct, because within the rule announced in Von Rosenberg v. Cuellar, 80 Tex. 249, 16 S. W. 58. But we think the fact that the survey may not have closed according to a calculation made of distances called for in its field notes would not have rendered it inr valid. The calls were for objeetsi specified as on the ground at distances indicated. If the objects would not have been reached at the distances called for, the survey would not for that reason have been invalid; but the distances called for would have been extended so as to reach the objects and so close the survey.

The motion is overruled.
      ©=>For otlior cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: WILLSON, C. J.

license: Public Domain

text:
    DUKE v. HATCHER.
    (No. 1987.)
    (Court of- Civil Appeals of Texas. Texarkana.
    Oct. 31, 1918.)
    1. Appeal and Error <§=>1170(9) — Review-Harmless Error.
    In a suit for eviction from a farm, refusal of instruction that it was the tenant’s duty to procure other land to lessen the damages, or after having failed to procure such land to seek other employment, if error, held harmless, where no complaint is made of excessive verdict in view of Court of Appeals rule 62a (149 S. W. x).
    2. Appeal and Error <§=>1068(5) — Review-Objections Waived.
    Objection that refusal of instruction was prejudicial, thereby increasing amount of verdict, cannot be sustained, where appellant does not' claim on appeal that verdict is excessive.
    Appeal from District Court, Cass County; H. E. O’Neal, Judge.
    Suit by C. T. Duke against H. S. Hatcher. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    This was a suit by appellant against ap-pellee to recover possession of a tract of land in Cass county which appellee claimed he had rented of appellant for the year 1915. At the time he commenced his suit, to wit, March 30, 1915, appellant procured the issuance of a writ of sequestration, by virtue of which he had appellee evicted from the land April 20, 1915. By a cross-action against appellant, appellee sought a recovery of actual damages in the sum of $1,288.83 which he claimed he suffered by reason of appellant’s breach of the alleged rental contract and his eviction from the land, and also sought a recovery of $1,000 as exemplary damages. The trial resulted in a judgment in appellant’s favor for the land, and in ap-pellee’s favor for $200 as actual damages he was entitled to recover of appellant.
    Appellee testified that crops he had planted were growing on the land at the time he was evicted therefrom. He further testified that, had he not been evicted, his part of crops he would have grown on the land would have been worth', after deducting the cost to him, aside from the value of his own labor and that of members of his family, about $700. He further testified that he endeavored, after he was evicted, to rent other land to cultivate during the year 1915, but could not, except that he worked 17 days at the rate of $35 a month. Appellee’s testimony as to the crops he would have grown on the land, and their value, if he had been permitted to grow them, was hot disputed by any other testimony, but to some extent was corroborated by testimony admitted. His-testimony as to efforts he made to secure-other land to cultivate after he was evicted- and to secure other employment seems to-have been neither affirmed nor denied by other testimony.
    The court instructed the jury as follows:
    “If you believe from a preponderance of the evidence that the plaintiff, C. T. Duke, entered into a contract with the defendant, W. S. Hatch-er, by which the plaintiff, O. T. Duke, rented to-the defendant about 50 acres of land for the year 1915, for which the defendant was to pay to the plaintiff one-third of the corn and one-fourth of the cotton raised thereon, and you further believe that thereafter the plaintiff in violation of said contract (if there was one) on, to wit, the 31st day of March, 1915, wrongfully caused a writ of sequestration to be levied on said 50 acres of land, and the defendant was wrongfully dispossessed of said land, and that by reason of the wrongful levy of such sequestration he was unable to make a crop during said year 1915 on said premises, and that by reason thereof he was damaged, then you will find for the defendant such damages as will reasonably compensate him for his being deprived of the right to occupy, cultivate, and use said premises for said year 1915. In considering such damages for the wrongful dispossession of a tenant, you may take into consideration the tenant’s part of the market value of the crops he would reasonably be expected to raise on the premises during the said year 1915, less the expenses necessary in planting, cultivating, harvesting, and marketing the said crops.”
    The court refused the request of appellant that he instruct the jury as follows:
    “If you find from a preponderance of the evidence that the defendant, W. S. Hatcher, was wrongfully ejected from the premises in controversy, by the plaintiff, and he was damaged thereby, then you are further charged that it was the duty of the defendant, W. S. Hatcher, to use reasonable diligence to procure other land upon which to plant and make a crop during the year 1915 and thereby lessen the damages ■sustained, if any. You are further instructed that if, after having used due diligence to procure other land upon which to make a crop during the year 1915, if such diligence has been shown, the said defendant, W. S. Hatcher, failed to procure same, it was his further duty to diligently seek such other employment, and in estimating damages sustained by the defendant, if any, you will take into consideration the amount that he earned, or by .reasonable diligence could have earned, after being ejected from the premises in controversy by virtue of the writ of sequestration issued herein.”
    The contention on this appeal is that the trial court erred when he refused to give the requested special charge just set out above.
    O. O. Hines, of Jefferson, and O’Neal & Allday, of Atlanta, for appellant.
    Bartlett & Lincoln, of Linden, for appellee.
   WILLSON, C. J.

(after stating the facts as above).

It may be conceded that the measure of damages applicable to the case made by the testimony was as appellant claimed it to be, and therefore that it was error for the trial court to refuse the special charge set out in the statement above. Lott v. Ballew, 198 S. W. 645; Pressler v. Warren, 57 Tex. Civ. App. 635, 122 S. W. 909; Brooks v. Davis, 148 S. W. 1107; Smith v. Milam, 143 S. W. 293; Miller v. Oil Co., 166 S. W. 1182; Ry. Co. v. Norton, 188 S. W. 1011; Ins. Co. v. Griffith, 185 S. W. 335. But it does not follow that the judgment should therefore be reversed. To accomplish that the action of the trial court must not only have been erroneous, but it must appear from the record sent to this court that the error was one calculated to cause, and which probably did cause, the rendition of an improper judgment. Rule 62a for the government of Courts of Appeals (149 S. W. x). The only effect the error (if it was one) could have had prejudicial to appellant’s rights was to cause the jury to find in appel-lee’s favor for a sum in excess of that they otherwise would have found.

Keeping the testimony in mind, we do not think it at all likely it had that effect. And it seems that appellant took the same view of the matter, for he does not complain here, as he must to be entitled to relief on that account, that the verdict and judgment are excessive. Ry. Co. v. Stewart, 164 S. W. 1059; Ry. Co. v. Goff, 146 S. W. 573; Ry. Co. v. Sears, 155 S. W. 1003.

The judgment is affirmed.
      ©a»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    McBRIDE v. KAULBACH et al.
    (No. 388.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 28, 1918.
    Rehearing Denied Jan. 8, 1919.)
    1. Trial <§=>85 — Outer oe Evidence — Evidence Inadmissible in Part.
    Offer of evidence in part consisting of hearsay is properly rejected when offered as a whole.
    2. Judgment <§=>335(3) — Vacation — Evidence-Sufficiency.
    In a bill of review to set aside a judgment, evidence that the children of defendant in the judgment had no knowledge that defendant had been served with citation was too remote to show absence of such service.
    3. Process <§=>149 — Return of Service-Setting Aside — Evidence.
    Two witnesses are required to set aside a deputy sheriff’s return on a service of citation, or one witness corroborated by strong, clear, and satisfactory circumstances.
    4. Judgment <§=>335(3) — Vacation — Absence of Service — Evidence — Sufficiency.
    In a bill of review to vacate a judgment, on the ground that citation had not been served on defendant, in order that negative testimony, that witnesses did not know that the citation had been served, may be given probative force, positive facts that, if service had been made, witnesses would necessarily have known it, must be shown.

      Appeal from District Court, Jefferson County; E. A. McDowell, Judge.
    Bill of review by Stephen McBride against H. B. Kaulbaeh and others to set aside a judgment. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Davis, Johnson, Golden & Handley, of Dallas, for appellant.
    Smith & Crawford and John Hancock, all of Beaumont, for appellees.
   BROOKE, J.

The plaintiff, appellant here, Stephen McBride, of Newton county, Tes., filed a bill of review in the Sistieth district court of Jefferson county, numbered 13193, styled Stephen McBride v. H. B. Kaulbaeh et al., seeking to have canceled, annulled, vacated, and set aside judgment against the said Stephen McBride entered on the 4th day of April, A. D. 1911, in cause No. 8277, styled H. B. Kaulbach v. E. F. Montgomery, W. C. Lenahan, and Stephen McBride, in the said Sistieth district court of Jefferson county, Tes. The judgment entered was for the sum of $6,030, interest, and costs. The case was tried before a jury, and on January 15, 1918, the court instructed the jury to return a verdict for the defendant H. B. Kaulbaeh. Plaintiff requested the court to submit the case to the jury on special issues, and the court refused said request. Judgment was entered in favor of Kaulbaeh and against McBride on the verdict of the jury. The case is now before this court for consideration.

The first assignment of error is that the trial court erred in sustaining the objections of defendants to and in failing and refusing to permit the plaintiff to introduce in evidence the testimony of Charley McBride, Penny McBride, and Susie Lewis, all on the question and issue of whether or not the sheriff of Newton county, Tex., by his deputy, T. H. Hext, served the said Stephen McBride with citation and copy of petition out of cause No. 8277, H. B. Kaulbach v. E. F. Montgomery et al., Sixtieth judicial district court of Jefferson county, Tex., as shown by plaintiff’s bill of exception. ,

The propositions under this assignment are:

“(1) The testim’ony of adult children having to do with the business and affairs of, and living near and with, an old and partially blind parent, is admissible in evidence on the issue as to whether or not said parent was served with citation in a particular suit in the district court; and, with testimony of parent that he was not served, raises an issue of fact to go to the jury.
“(2) Where an old and partially blind' parent testified that he was not served with citation in a particular suit, but the return of the officer shows that he was served, and the testimony of adult children having to do with the business and affairs of, and living near and with, said parent, is to the effect that he was not served, such testimony of said children con-1 stitutes strong corroborative circumstances, corroborating the testimony of the parent that he was not served-in fact with citation, and the testimony should be admitted as part of the record, and the same should be submitted to the jury to determine this issue of service or no service.”

On the contrary, it is urged that, when any portion of testimony offered as a whole is "objectionable and inadmissible, the court does not err in sustaining objections to and in excluding all of the testimony offered of which said objectionable testimony forms a part.

It seems that the entire testimony offered of said witnesses, in substance, is to the effect that they lived near. S. McBride, and were occasionally with him and read to him at times, and had a general knowledge of his business; that they never heard of his (McBride’s) being served with citation issued out of the Beaumont case, and were told by said McBride that he was never served. The deposition of Susie McBride contained the following:

“I know this was the first time he (meaning McBride) ever knew of the suit No. 8277, H. B. Kaulbach v. E. F. Montgomery, W. C. Lena-han, and S. McBride, because I came directly on to his house and asked him about the, whole matter, and he told me then and there that this was the first time he ever heard of or knew anything about the suit at Beaumont. When I went to my father about the matter, he told mo he never heard of the Beaumont suit.”

The deposition of Charley McBride contained the following:

“I never heard anything about the suit at Beaumont, Tex., styled H. B. Kaulbaeh v. E. F. Montgomery, W. C. Lenahan, and S. McBride, until we, including myself, was served with citation by the sheriff of Newton county, Tex., in about August 3, 1917. If he (meaning 8. McBride) had been served, I would have known about it. My father would have told me, and I know he was not served.”

The tendered deposition of Penny McBride contains the following:

“And was with him (meaning McBride) in February, 1911, before that time, and since that time, and never heard of any such thing as my father being served by Mr. Hext with á citation.”

S. McBride testified that in 1910 and 1911 he was traveling around generally, signing notes and deeds and attending to his own business. It appears that appellant offered all of the depositions of the witnesses Charley McBride, Penny McBride, and Susie Lewis together, which contained testimony, which, in our judgment, was hearsay. Upon objections urged by appellee, the entire deposition offered was excluded, and appellant refused to tender only the remaining portions after eliminating the hearsay testimony. W|e are of opinion that this testimony was not admissible, and in our judgment, when testimony contains objectionable parts, the whole of such offered testimony is inadmissible, and, in order to introduce the admissible portions, it is the duty of the party offering the same to separate the good from the bad and to offer the good alone. The whole of such testimony would not be admissible. Robinson v. Stuart, 73 Tex. 267, 11 S. W. 275; Cole v. Horton, 61 S. W. 503; Hill v. Taylor, 77 Tex. 295, 14 S. W. 366. Furthermore, we might say that the fact that, his grown children knew nothing about the service of the citation on him is too remote and indefinite to prove as a fact that he was not served. What they knew, and not what they did not know, is what would tend to give support to the testimony of their father. W'e have examined the matter presented, and we are of opinion that there was no error in the action of the court in this matter, and the assignment is therefore overruled.

The second assignment of error complains that the trial court erred in giving to the jury a peremptory instruction as follows:

“You are charged that the evidence in this cause as a matter of law fails to show that plaintiff is entitled to recover, and you are instructed to return a verdict for the defendant' H. B. Kaulbach”

—for the reason that the pleadings of the parties and the testimony introduced and offered to be introduced by the plaintiff in this case raise issues of fact as to whether or not the return made by the sheriff of Newton county, Tex., by and through his deputy, T. H. Elext, was true or not, and whether or not Stephen McBride was actually served with citation and copy of petition, or either of them, in case No. 8277, H. B. Kaulbach v. E. F. Montgomery et al., Sixtieth judicial district court, Beaumont, Tex.; and whether or not the said notes sued on by H. B. Kaulbach in said cause No. 8277 were signed by Stephen McBride or by his authority; and whether or not the right of said Stephen McBride to pursue his remedy herein by bill of review is barred by the statutes of limitation; and said issues of fact should have been submitted to the jury for determination. •

The propositions under this assignment are:

“Where it appears that the return on the citation shows service on_ a defendant in a suit and judgment by default was taken, but said defendant testifies that he was never served and knew nothing about the suit or the transactions covering the subject-matter of the suit, and where it further appears that the officer making the return lived for many years during his childhood near the defendant and has known said defendant since said time, and yet such officer does not remember to have ever served said defendant with citation in the particular suit mentioned or in any other suit — such conditions and facts constitute strong corroborative circumstances supporting the testimony of the party claiming and testifying that he was not served, and the issue of service or no service should be submitted to the jury for determination.
“Where a party, in a bill of review seeking to set aside judgment by default on notes alleged to have been executed by him, denies that he was served with citation or notice of said suit, and denies under oath the execution of said notes by himself or by his authority, and gives testimony in support of his sworn plea, the issue of a meritorious defense to said original suit is raised, and such issue should be submitted to the jury.”

And also:

“Limitation will not begin to run against the right of a party to file and prosecute a bill of review until he knew that a cause of action existed.”

On the contrary, it is urged that two witnesses are required to set aside an officer’s return, or one witness corroborated by strong, clear, and satisfactory circumstances; and that the witness S. McBride, who testified that he was not served with citation in the year 1911, is not corroborated by strong, clear, and satisfactory circumstances by the testimony of his adult children, who reside in the same community, to the effect that they had a general knowledge of their father’s business, had read for him at times and were occasionally'with him, and did not know and had never heard of their father being served with citation, and that during said time their father was traveling over the country generally and attending to his own business and signing notes, etc.; and further that the trial court did not err in instructing the jury to return a verdict for the appellee, because, under the facts admitted and the pxcluued testimony, had it been admitted, the verdict is supported by an overwhelming preponderance of the testimony and no other verdict would be permitted to stand.

The officer’s return of the citation shows that a copy of citation and a certified copy of plaintiff’s original petition was delivered to S. McBride in Newton county on February 18, 1911, by T. H. Hext, Deputy Sheriff. T. H. Hext testified:

“I made this return and it speaks the truth. As to whether I delivered said citation addressed to S. McBride to any other person except himself, I answer that I did not. I delivered as stated in my return on the citation to S. McBride. I never made a return of a citation while I was serving as deputy sheriff of Newton, Tex., stating that I had served a defendant in person with citation, when in truth and in fact I did not do so.
“The notary public taking-my deposition has shown me a letter dated March 22, 1911, written from Newton, Tex., as follows:
“ ‘Mi-. Geo. D. Anderson, Beaumont, Texas: Yours of the 20th to hand and in reply will say, we served those citations immediately after we received them, and send you our returns. Got service on all three of the men named, E. F. Montgomery, and W. O. Lenehan, S. McBride.
“ ‘Thanking you for past favors, we are “ ‘Your friend, T. H. Hext, Deputy.’
“I wrote this letter, and the facts stated in said letter are true. I signed the letter myself.”

The authorities seem to be in support of the proposition that two witnesses are required to set aside an officer’s return, or one witness corroborated by strong, clear, and satisfactory circumstances. Randall v. Collins, 58 Tex. 231; Gatlin v. Dibrell, 74 Tex. 36, 11 S. W. 908; Swearingen v. Swearingen, 193 S. W. 442; Connell v. Galligher, 36 Neb. 749, 55 N. W. 232; Matchett v. Liebig, 20 S. D. 169, 105 N. W. 170; Godshalk v. Martin, 200 S. W. 535. Our Supreme Court, in the case of Randall v. Collins, supra, said that there should be two witnesses, or one witness with strong corroborating circumstances, and in the case of Swearingen v. Swearingen, the Court of Civil-Appeals said:

“The evidence must be clear and satisfactory; also, that there should be two witnesses, or one witness with strong corroborating evidence.”

In the case of Pierce-Fordyce Oil Co. v. Staley, 190 S. Wl. 814, there is a very clear discussion of the proposition. The court says:

“That part of the opinion, that evidence to set aside a judgment must clearly and satisfactorily contradict the sheriff’s return, seems to be the general rule, without any opposing authority that we are able to find, in other jurisdictions. * * *
“The Supreme Court said, relative to the impeachment of the return of citation: ‘It is not like an ordinary issue of fact, to be determined by a mere preponderance of testimony.’ We admit, of course, that the obligation of the rule would, not require uncontradicted proof, and, necessarily, it is hard to determine and enunciate just what quantum of proof would meet the rule so as to demonstrate an equitable application to a record except one of exclusion.”

From what has been quoted above, it will be seen that all of the authorities uniformly support the proposition that a mere preponderance of the testimony is insufficient to set aside an officer’s return, but the evidence must be certain, clear, satisfactory, and convincing, with no uncertainties and with no presumptions in support of same. It does not require that the proof be beyond a doubt, neither will uncertain and unsatisfactory circumstances raising a doubt or suspicion be sufficient to corroborate a witness who contradicts the officer’s return. The rule of law being as above stated, the facts in the instant case, after being inquired into, will show that the witness S. McBride, who is 83 years of age and blind and bedridden for two years, testifies that seven years ago he was not served with citation. At that time he was active and was traveling over the country attending to his own business and signing deeds, notes, etc. In the same community with him resided his three grown children, who testify that they had a general knowledge of their father’s business, read papers for him at times, but they were only occasionally with him, and that they did not know of such service of citation and had never heard of same. These are the only circumstances offered, save and except the fact that the deputy sheriff, Hext, had no individual recollection of making the service. Hext did testify that he made the return and wrote a letter within a few days after the return, and that the facts stated in the return and the letter were true.

In the case of Pierce-Fordyce Oil Co. v. Staley, supra, a like (question was under discussion, and the court says:

“Homer Evans, the constable of Staley’s precinct in Wilbarger county, though he had no independent recollection of the fact of personal service upon the defendant Staley, positively testified that it’ was his official signature to the return on the citation, and that, as constable, he personally served all papers. It is clearly deduced from his testimony that from those facts he knew that he served the writ and made the return thereupon; otherwise, his signature thereto would not have been in existence. Without citing the authorities on evidence, this is clearly original and probative testimony of the fact recited in the instrument.”

Therefore, in our judgment, in order for negative testimony of tbi-s character to be given any probative force, it is necessary, in connection therewith, to offer positive facts showing that had the service been made the witnesses would necessarily have known it, and in our judgment it is not sufficient that they might have known of it, or that they would probably have known it.

The Supreme Court, Judge Gould delivering the opinion, in the case of Randall v. Collins, supra, used the following language:

“Leaving out of view the evidence corroborating the return, we are of opinion that the evidence tending to show that Collins was not cited falls short of what the law requires in such cases. In effect that evidence amounts to this: That the officer by whom the service purports to have been made — testifying twice, eight and nine years after the transaction — at first could not recollect any such service, and because he kept memoranda of his official acts, and had none of this, and further because by agreement with his principal (an agreement which he acted on) he was not to execute process in that part of the county, he did not believe that the process was served by him. Subsequently, however, his memory having been refreshed, he changes his opinion, and admits having some recollection of serving some process on Collins.
“The sheriff testifies to the same agreement, and further that he required his deputies to report their official acts to him, and he kept a record of all such acts in a book, but found no record of such service. To this it is to be added that Collins was a man of prudence and good business knowledge and habits, one likely to know and avail himself of the defense that he had not been sued in time to bind him as indorser. Beyond this there is nothing else. These are circumstances which might throw some doubt or suspicion on the question of service, but they are circumstances insufficient to establish satisfactorily that Collins was not served.
“Even prudent men and officers are liable to forgetfulness and negligence; and if the judgments of our courts may be set aside, after having stood for years, on such evidence, there will indeed be no end to litigation, no certainty arrived at by an adjudication. This is a case where the jury have erred in matter of law, and, notwithstanding this is the third verdict, we think that the judgment should be reversed and remanded.”

We are of opinion that the case of Kempner v. Jordan, 7 Tex. Civ. App. 275, 26 S. W. 870, does not support appellant’s proposition. The assignment is overruled, and, after a careful examination of the record, we are of opinion that the case has been correctly tried, and that the court committed no error, and therefore the judgment of the court below is in all things affirmed.
      ©ssFor other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    TEXAS & P. RY. CO. et al. v. DUFF.
    (No. 8125.)
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 7, 1918.
    Rehearing Denied Jan. 11, 1919.)
    1. Judgment ¡s=443(l) — Equitable Relief— Power of Court.
    District courts may grant relief against a judgment by re-examining the case on its merits, when it appears that the judgment has been obtained by fraud, mistake, or accident without any want of diligence on the part of the person against whom rendered.
    2. Judgment <§zz>335(3), 956(5) — Bill of Review-Grounds for Relief — Evidence.
    In bill of review, seeking a revision and cancellation of a judgment for personal injuries held that issues presented had been decided in suit for damages.
    3. New Trial <§=»104(1) — Newly Discovered Evidence.
    New trials are not to be ps^unaS upon newly ■discovered evidence which is merely cumulative.
    4. Judgment <®=3335(2) — Bill of Review-Cumulative Evidence.
    The principle that new trial will not be granted upon newly discovered evidence which is merely cumulative applies to a bill of review, seeking a review and cancellation of judgment after term time.
    5. Judgment <S^=514 — Collateral Attack-Fraud.
    A judgment cannot be questioned for fraud in its procurement in an independent suit between the same parties, when the judgment was entered after due notice and upon evidence offered pro and con.
    Appeal from District Court, Van Zandt County; J. R. Bond, Judge.
    Bill of review by the Texas & Pacific Railway Company and others, seeking a revision and cancellation of a judgment rendered against the- Railway Company and in favor of R. L. Duff. Bill dismissed, and plaintiffs appeal.
    Affirmed.
    F. H. Prendergast, of Marshall, and J. A. Germany, of Wichita Falls, for appellants.
    Wynne, Wynne & Gilmore, of Wills Point, for appellee.
   TALBOT, J.

The appellee, R. L. Duff, on February 26, 1916, brought suit in the district court of Van Zandt county against the appellant the Texas & Pacific Railway Company, to recover damages for personal injuries received as a result of the negligence of the appellant. This suit was numbered 3689, and the pleadings and proof of the ap-pellee therein showed that he was standing ■near the appellant railroad track at a public crossing when a freight train of appellant passed, and that a lump of coal fell or was thrown from the tender of the engine drawing the train, struck him on or near the shoulder, knocked him down, and dislocated his hip and otherwise injured him. The appellant railway company pleaded, among other things not necessary to state, the general issue, and specially, in substance and effect, that appellee’s injuries were feigned and his suit for damages fraudulent. The case was tried, and on August 10, 1916, a jury verdict in favor of appellee, ¡Duff, for the sum of $5,000 was rendered, and judgment thereupon duly entered. Later this judgment, according to the pleadings of the appellants, was affirmed on appeal (195 S. W. 1169) and writ of error denied by the Supreme Court. On March 2, 1918, the appellant herein the Texas & Pacific Railway Company, joined by R. H; Stewart and J. Dabney Day, sureties on the supersedeas bond, given by said railway company in its appeal from the judgment rendered on said cause No. 3689; and J. L. Lancaster and Pearl Wright, as receivers of appellant railway company, filed in the district court of Van Zandt county a bill of review, seeking a revision and cancellation of the judgment rendered in said cause No. 3689, and an injunction restraining the enforcement and collection of said judgment; This relief was asked upon allegations charging, in substance, that appellee, Duff, alleged, in his suit No. 3689 for damages, that prior to the accident resulting in the injuries of which he .complained he had been a strong, able-bodied man, capable of doing any kind of work, but that since tbe accident, on account of injuries to his hip and other injuries received at that time he was a confirmed cripple; that upon the trial of said cause appellee procured and introduced false evidence to prove the allegations of his petition, and testified falsely himself as to the extent of his injuries and as to the previous condition of his hip; that he testified that he had never suffered a dislocation of his hip prior to the time of the accident in question ; that he never had any trouble with his hip or back before that time; that while he could, at the date of the trial, walk without his crutch and the brace on his hip “some piece” without falling, provided he walked “right straight and easy” and did not put too much weight on his leg, yet “if he made any kind of a turn he would go down”; that the gravamen of appellee’s “cause of action was an initial dislocation of the hip of which he complained, and that the effect of his testimony and all thereof was that prior to the injury his hip was sound, and that he never suffered any inconvenience therefrom, or a dislocation thereof prior to the accident” ; that all of the testimony given by appellee himself and introduced at his instance was in support of that theory and contention; that appellant has reason to and does believe, and avers the fact to be, that said “testimony was perjured and false”; that appellee knew at the time it was given that it was false, and that it was given for the fraudulent purpose of deceiving the court and jury to the end that appellee might procure a false and fraudulent verdict from the jury against appellant; that in truth and in fact there was no initial dislocation of the hip as the result of the accident alleged to have occurred, but that said hip was unnatural, and had been for a number of years at least, and probably during appellee’s entire life, to the extent that he could at will throw the same out of place or joint and replace the same without pain or inconvenience. The appellants further allege in their bill of review the investigation and efforts made before the trial of appellee’s suit for damages to obtain information as to the cause of the accident complained of, the result thereof, and of appellee’s physical condition prior thereto. It is then alleged that appellant was wholly unable to learn any fact upon which to base the conclusion that appellee had, prior to the injury complained of in said damage suit, any trouble with his hip, or that the same was abnormal in any l-espect, and that appellants had no knowledge at the time of the trial of any fact leading to that conclusion, but that, on the contrary, all the information procured was to the effect that prior to the alleged accident appellee’s hip was normal, and had never then been out of place. It is further alleged that immediately after the trial of appellee’s said suit for damages, appellant proceeded to make investigation into' the truth of the testimony of appellee, “of which it had no information prior to the trial, and none at the trial, save and except logical inferences,” by employing one E. A. Long to learn, if possible, the truth, to the end that it procure justice; that said Long did procure information which confirmed appellant’s belief that the said testimony of appellee was false and fraudulent; that thereafter it employed one Hiram Apel to make further and a more thorough investigation, and that he procured the affidavits of numerous persons to the effect that appellee Duff had, on many occasions, exhibited his ability to dislocate the hip charged to have been injured in the accident in question with scarcely any effort and wholly without pain.

Upon the presentation of appellant’s bill and application Hon. Joel R. Bond, judge of Eighty-Sixth judicial district of Texas, in vacation, granted and directed the issuance of the injunction prayed for upon applicants giving bond in the sum of $12,000, payable and conditioned as required by law. On April 4, 1918, appellee, Duff, filed a motion to dissolve the injunction granted, and prayed that appellant’s bill be dismissed. On hearing in chambers appellee’s motion and prayer were granted, the injunction dissolved, and the bill dismissed. From this action of the court this appeal is prosecuted.

The appellants contend: (1) That “the court erred in dissolving the injunction because the allegations in the bill and exhibits showed a fraud had been committed -and the injury would be irreparable”; (2) that “the court erred in dismissing the bill and not continuing the same over for hearing on its merits.” To these contentions appellee replies: (1) That the issues presented in appellant’s bill of review, whether or not ap-pellee was a contortionist and could, before the accident and trial of the original suit, throw the alleged injured hip out of joint and replace it at will, and that he had falsely testified that he had not suffered a dislocation of said hip prior to the accident complained of, were, upon pleadings and evidence raising those issues, tried and determined against appellant on the trial of said suit, and could not be raised and opened up on alleged newly discovered evidence, especially when such evidence would be merely cumulative; (2) that because of appellants’ negligence in failing to discover the alleged newly discovered evidence before the trial of the original suit for damages or in time to present in the district court, during the term at which the judgment now sought to be set aside was rendered, a motion for a new trial based upon such evidence, appellants cannot maintain this proceeding, and therefore the court did not err in dissolving the temporary injunction and dismissing tlie bill of review.

The law is well settled in this state “that the district courts in the exercise of their equitable powers may grant, by re-examining the case on its merits, such relief as equity and justice may demand when it is made to appear that a judgment has been obtained by fraud, mistake, or accident without any want of diligence on the part of the person against whom rendered.” This general rule does not seem to be denied by the appellee, but, as indicated, he contends, in effect, that the pleadings, evidence, and charge of the court in the original suit for damages show that the issue raised in appellant’s bill of review was presented and decided in said original suit, and that appellants, because of their lack of proper diligence, are not entitled to relief in equity.

We have arrived at the conclusion that the court did not err in dissolving the injunction and dismissing the bill. In reaching this conclusion we have not been unmindful of the fact that the rule, which denies to a party the right to relitigate a matter once in controversy and decided by a court having jurisdiction, 'assumes that there has been a trial to which the respective parties have had an opportunity to fully present their claims, and that it was said in McMurray v. McMurray, 67 Tex. 665, 4 S. W. 357, that the rule ought not to be given application when it is clearly made to appear that one party has, by his own false evidence, knowingly given, or by the evidence of others by him introduced and known to be false, obtained a judgment against his adversary which gives to him something which truth and justice would deny. That the issue raised in appellant’s bill of review was presented and decided in appellee’s suit for damages is, we think, manifest. Appellee’s claim for damages, as set forth in his petition in the original damage suit, was based upon the alleged fact that through the negligence of the appellant the Texas & Pacific Railway Company a lu,mp of coal fell from one of its passing trains and struck appellee while he was standing near the railroad track at a public crossing; that the blow knocked him down, causing his hip to strike a piece of coal lying on the ground, dislocating the hip and otherwise injuring him. Among other defenses the appellant railway company pleaded, in effect, that appellee was not struck and his hip dislocated in the manner alleged by him, and that his alleged injuries were feigned, and his suit brought for the purpose of defrauding the railway company. Upon the issue thus drawn the parties went to trial, and the allegations of ap-pellee’s petition sustained by his own testimony and the testimony of other witnesses.

In relating the nature of his injuries and the consequences thereof appellee testified that as a result of being struck by the lump of coal which fell from the railway company’s train his shoulder and breast were injured and his hip dislocated; that when he was knocked down his hip struck a piece of coal lying on the ground; that he discovered the dislocation of his hip and reduced it by manipulation and pressure with his hands; that the accident occurred about 7 or 8 o’clock in the evening, and that after he replaced his hip he started home, distant about six miles, in company with his father-in-law and brother-in-law, reaching there a little before daylight; that on his way home his hip came out of joint and was replaced 16 or 18 times in walking the first four miles, and that he thought it came out of joint 16 times while walking the last two miles of the distance. The foregoing testimony of the appellee, Duff, as to his being struck by a lump of coal falling, from the railway company’s train and resulting in the dislocation of his hip is corroborated by the testimony of J-. L. Phillips, appellee’s father-in-law, and in some degree by his brother-in-law. There was also testimony offered in the trial of the original damage suit to the effect that appellee, 'Duff, prior to being struck by the lump of coal which fell from the railway company’s train, was a strong healthy man, capable of doing hard work, and had never complained of anything being the matter with his hip joint.

The railway company, in the trial of the said original suit for damages, offered testimony to show that appellee was not struck by a lump of coal hurled from its train, or, if he was, that his hip was not dislocated thereby, and that, if injured at all, the injury was very slight. It also called several physicians as expert witnesses, whose testimony was to the effect that, if appellee suffered an initial dislocation of the hip joint as a result of the lump of coal striking him, it was practically impossible for him to have replaced or reduced it as he said he did. In this connection Drs. Brandon, Cosby, and Cox testified, to substance, that there is a condition of the hip joint that is called a hereditary dislocation, that is, a condition which, perhaps, comes from birth, where the joint is not properly developed and the ligaments are not properly developed or are elongated, producing what is called an habitual dislocation or partial dislocation, in which condition a man can put his joints in or out at will; that it is common to find people who can dislocate various joints in the body at will; that if a man can throw the hip joint out at will the main ligament that holds it to place necessarily must be elongated so it will stretch, and that it is not true that if a man has a hip joint of that kind he could not bear any weight on it; that the hip- joint is the most important joint and strongest in the human body.

Dr. Carroll testified tliat the first time he met the appellee was about two weeks prior to the date of the trial of the case, and that he then made an examination of him; that appellee’s hip at the time he began the examination was not dislocated, but that subsequently it became dislocated; that from the complete examination made, it was his opinion that the dislocation occurred from ap-pellee “putting pressure on the foot and twisting his body, throwing the head of the bone out of the cavity.” He further said that it was his opinion that appellee could throw his hip joint out at will. At the request of the appellant railway company the court, evidently in recognition of the issue, raised by the pleadings and evidence that appellee’s hip joint was not dislocated as a result of the falling of the coal upon him, charged the jury to the effect that, if they believed from the evidence that appellee had suffered an injury to his hip prior to the accident in question, and that such injury resulted directly in the condition his hip was in at the time of the trial, or that if they believed from the evidence that the condition of his hip was the result of natural causes, appellee could not recover.

The basis for equitable relief in the present proceeding of appellants is, in substance, that subsequent to the trial and judgment rendered in the original damage suit, they have discovered testimony of which they were unavoidably ignorant before and at the time of the trial of said suit that shows that the appellee in said trial falsely testified that he had never had any trouble with his hip, and had never suffered a dislocation of his hip joint prior to the accident in which he claims it was injured, whereas, in truth and in fact he was before and at the time said accident occurred, as shown by said newly discovered testimony, a contortionist, and could and had on numerous occasions thrown his hip joint out of place and replaced it without pain or injurious consequences.

In support of this theory and contention, appellants attached to their petition for the relief prayed for separate affidavits of 15 or 16 persons, in which each of them, or the most of them, severally deposed, in effect, that he had seen Duff prior to the date of his alleged injury throw his shoulder, wrist, and fingers out of joint, and some of them that they had seen him throw his hip joint out of place and replace it. These affidavits were introduced in evidence on the hearing of appellee’s motion to dissolve the temporary injunction theretofore granted and to dismiss appellants’ bill, and constituted the only evidence offered by appellants on said hearing. The appellee, in rebuttal thereof, introduced affidavits and other evidence in a great measure contradicting said affidavits offered by appellants, and the case presented does not, in our opinion, call for an application of the established principle of jurisprudence that courts of, equity and justice have power in a proper proceeding to set aside or amend their judgments whenever it appears that an innocent party without notice has been aggrieved by a judgment obtained against him without his knowledge or fault by the fraud of the other party. The record very clearly shows, we think, that the issue, whether or not Duff was a contortionist and could throw his hip joint out of place at will before and at the time he alleges he was hurt by the lump of coal falling on him, and therefore a malingerer and the alleged injury to his hip feigned, was by the pleadings, evidence, and charge of the court presented and decided in the original suit for damages brought by the appellee.

The newly discovered evidence upon which appellants seek a reopening of the case and trial of that issue is merely cumulative of that introduced in the original trial, and new trials are not to be granted upon newly discovered evidence when such evidence is merely cumulative. This is clearly so when the application for a new trial is made during the term at which the' judgment sought to be set aside was rendered, and the same principles govern when a petition, to vacate a judgment, as in the present case, which is in the nature of a motion for new trial, is filed after the term. Vardeman v. Edwards, 21 Tex. 737.

Again, a judgment cannot be called in question on the ground of fraud in its procurement in a separate and independent suit subsequently brought between the same parties, when it appears that said judgment was entered after due notice to the adverse party, followed by an adjudication upon the evidence offered pro and con upon the issues involved in the first suit. Greene v. Greene, 2 Gray (Mass.) 361, 61 Am. Dec. 454. The expert testimony referred to above would have justified the conclusion that appellee was a contortionist, and the verdict of the jury necessarily embraces a finding that he had not falsely testified in relation to the manner and extent of his injury. So that to reopen this case and allow appellants to re-litigate the issue of whether or not appellee could throw his hip joint out of place at will, and that the injury to his hip was feigned, would not only contravene the rule that new trials are not to be granted upon newly discovered evidence when such evidence is merely cumulative, but also the principle announced in the ease cited.

The action of the court in dismissing appellants’ bill is not in conflict with any decision cited by them in which it was held that, notwithstanding the dissolution of the temporary injunction which had been granted, the plaintiffs were entitled to a trial upon the merits of the case.

For the reason indicated, the judgment is affirmed.
      tgxxoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    HULSHIZER v. FIRST STATE BANK OF ROBSTOWN.
    (No. 6098.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 27, 1918.
    Rehearing Denied Jan. 15, 1919.)
    1. Evidence <S=>317 (5) — Hearsay — Ownebship.
    In a garnishment proceeding where the judgment debtor had deposited money in the name of his wife, the bank will not be permitted to prove that it did not owe the judgment debt- or by introducing in evidence hearsay statements of the judgment debtor and his wife concerning the ownership of the money.
    2, Garnishment <S=»164 — Deposits in Bank —Evidence.
    The fact that money was deposited in the name of another, when standing alone, will make a prima facie case of ownership by such other; but where it appears that control of deposit .was reserved by an agreement that it was to be paid out on checks drawn by the depositor as agent for the other, and the depositor on being garnished hastily withdrew the deposit and transferred it to the name of still another person, the court will find, in a garnishment proceeding, that the money belonged to the depositor.
    Appeal from District Court, Nueces County.
    Garnishment suit by Geo. L. Hulshizer against the First State Bank of Robstown, garnishee. Judgment in favor of garnishee, and plaintiff appeals.
    Reversed and remanded.
    H. M. Holden, of Corpus Christi, for appellant.
    Kleberg, Stayton & North, of Corpus Christi, for appellee.
   MOURSUND, J.

This is a garnishment suit instituted on September 27, 1917, by appellant against appellee for the purpose of impounding money to pay a judgment obtained by appellant on September 5, 1916, against J. E. Noyes for $807.12-, on which there was a credit of $15. On September 29, 1917, ap-pellee filed an answer alleging that it was not indebted to Noyes. On the first day of the following term of court, plaintiff excepted to that answer on the ground that it was filed prematurely, and, the exception being sustained, appellee filed an amended answer on January 16, 1918, denying that it was indebted to Noyes or was when the writ was served on it. On the same day plaintiff filed a controverting answer, alleging that garnishee was indebted to Noyes when the writ was served upon it, and that it has been indebted to him since the service of such writ, and at the time it was commanded to answer.

Judgment was rendered in favor of garnishee.

The only finding of the- court material under the pleadings, upon which could be based a judgment in favor of appellee, was that the appellee was not indebted to J. E. Noyes at any time during the period it was required to answer for under the statute. At the time the writ of garnishment was served, September 27, 1917, there was on deposit with appellee the sum of $1,907.70 in the name of M. J. Noyes, the wife of J. E. Noyes; the deposit having been made by J. E. Noyes, with instructions to charge against the same all checks signed by J. E. Noyes, agent. On September 28, 1917, J. E. Noyes checked out the balance in the account of M. J. Noyes," and on September 29,1917, he deposited with appellee $1,980 to the credit of J. R. Noyes, with the understanding that checks drawn by J. E. Noyes, as agent, would be honored by payment out of said funds. The cashier testified that, when the account of M. J. Noyes was transferred to the credit of J. R. Noyes, it was done by J. E. Noyes in person. W. H. Dainwood, the cashier of the Guaranty State Bank of Robstown, testified that on or about September 27 or 28, 1917, his bank presented a check for $275, signed by J. E. Noyes to appellee, and appellee paid it;, also, that about October 4 or 5, 1917, a check for $1,145, signed by J. E. Noyes, agent, was paid by appellee. J. E. Noyes claimed that J. R. Noyes was his brother, but the cashier of appellee had never seen such a person as J. R. Noyes and knew nothing about him, although he had known J. E. Noyes for six or eight years. All the money placed in the two accounts was deposited by J. E. Noyes. Appellee’s cashier also testified that “the J. R. Noyes account was closed out by J. E. Noyes as agent for M. J. Noyes.’’ He testified that he knew “the account after-wards transferred to the J.' R. Noyes account was the M. J. Noyes account.” There was no testimony concerning the ownership of the money thus deposited in the names of M. J. Noyes and J. R. Noyes, except that the appellee’s cashier, over appellant’s objection, was permitted to testify that J. E. Noyes and his wife had made statements to him to the effect that the money had been inherited by Mrs. Noyes and was her separate property. The admission of this testimony is complained of by appropriate assignments of error, and such assignments, numbered 1 to 5, inclusive, are sustained.

The appellee cannot be permitted to prove that it did not owe J. E. Noyes anything by introducing in evidence the hearsay statements of said Noyes and his wife con-cérning the ownership of the money. Aside from the testimony which was improperly admitted, there is no evidence tending to show that J. E. Noyes was not the owner of the deposit, except the fact that he deposited the money in his wife’s name, and after the garnishment writ had been served drew it out and deposited it in the name of J. R. Noyes. The fact that money is deposited in the name of another, when standing alone, will make a prima facie case of ownership by such other; but, when it appears that the control of the deposit is reserved by an agreement that it is to be paid out on checks drawn by the depositor, it appears that he is using the name of the other person as a subterfuge to conceal his ownership of the money. The fact that a person deposits money in the name of another does not give him authority to withdraw it, and, when he' so deposits it with the understanding that he can withdraw it, his exercise of control over it is consistent only with the theory that he is the real owner. The act of J. B. Noyes in hastily withdrawing the deposit in his wife’s name and transferring it to his brother’s name tends strongly to show that the use of his wife’s name as depositor was made to conceal his ownership, and that fear that his creditors might reach it, even if in his wife’s name, prompted him to place it in the name of J. R. Noyes. The control exercised by J. E. Noyes over the money and his acts with reference thereto indicate his ownership so strongly that the evidence, other than the hearsay statements, would have required the court to find that the-appellee’s answer was not true. It was the duty- of appellee, under the facts disclosed, to hold the money and make answer, setting up the facts, and let the court pass upon the issue of whether or not it was indebted to J. E. Noyes. It failed to do this and must pay plaintiff’s claim if in fact J. E. Noyes owned the deposit.

The judgment is reversed, and the cause remanded. -
      ig^For other cases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    DOWNEY v. DOWELL et al.
    (No. 2003.)
    (Court of Civil Appeals of Texas. Texarkana.
    July 10, 1918.
    Rehearing Denied Oct. 10, 1918.)
    1. Logs and Logging ©=>5 — Constructive Severance of Timber.
    Though standing timber is generally regarded as part of the realty, the owner by contract can constructively cause a severance, and for purposes of mortgage or sale ■ convert it into personalty.
    2. Homestead <©=>117 —Sale oe Standing Timber by Husband Alone.
    Sale of standing timber on homestead lands of husband and wife, made by husband alone, wife not joining in conveyance, passed title as against subsequent buyer of timber from husband’s grantee of lands; use of lands as home-' stead not having been interfered with or value impaired by sale of timber.
    Error from District Court, Marion County; J. A. Ward, Judge.
    Suit by Jeff Dowell against D. W. Downey and another. To review judgment for plaintiff, defendant named brings error.
    Affirmed.'
    Armistead & Benefield, of Jefferson, for plaintiff in error.
    T. D. Rowell, of Jefferson, for defendants in error.
   HODGES, J.

Defendant in error Jeff Dowell sued the plaintiff in error in the court below, and recovered a judgment; against him for $120 as damages for the value of timber converted. The facts found by the court are, in substance, as follows: The tract of land on which the timber in controversy stood was formerly owned by Jabe Dickson, who sold it to his son, John Dickson. During the time the latter owned the land he sold the timber to Dowell, the defendant in error, and conveyed it by an ordinary bill of sale. At the time the sale was made the land was occupied by Dickson and his family as a homestead, and his wife did not join in the conveyance. After selling the timber, Dickson conveyed the land to his father, Jabe Dickson, without any reservation of the timber rights. Some time thereafter Jabe Dickson sold the timber to the plaintiff in error, Downey, who cut and removed that for which this suit was instituted. In the conveyance from John Dickson to the defendant in error, the latter was given five years in which to remove the timber, and his purchase was limited to'that portion which was -above eight inches in diameter. The court found, also, that both Jabe Dickson and the plaintiff in error; Downey, at the time of their respective purchases, knew of the previous sale made by John Dickson to the defendant in error.

If is here insisted that the bill of-sale from John Dickson to the defendant in error was void, because the land on which-the trees were then standing was the homestead of Dickson, and his wife did not join in the conveyance. While it is true that standing timber is generally regarded as part of the realty, yet the owner may by contract constructively cause a severance, and for the purpose of a mortgage or sale convert it into personalty. Boykin v. Rosenfield, 69 Tex. 118, 9 S. W. 318; Montgomery v. Peach River Lumber Co., 54 Tex. Civ. App. 143, 117 S. W. 1061; 3 Washburn on Real Property, p. 301. It has also been held that the husband alone may convey an easement in the homestead, provided it does not materially interfere with the use and enjoyment of the homestead. Randall v. T. C. Railroad Co., 63 Tex. 586; C. T. & M. C. Ry. Co. v. Titteringron, 84 Tex. 218, 19 S. W. 472, 31 Am. St. Rep. 39; Purdie v. Railway Co., 144 S. W. 364. There is nothing in the evidence in this case that requires the finding that the use of the land as a homestead was interfered with or its value impaired by the sale of the timber to the defendant in error.

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


author: LEVY, J.

text:
    EDMONDSON et al. v. JOHNSON.
    (No. 2009.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 29, 1918.
    Rehearing Denied Dec. 19, 1918.)
    Marriage <§=>20(1) — Common-Law Marriage —Mutual Agreement.
    An agreement between a man and a woman then to become and thence afterwards to he husband and wife is the gist of a common-law marriage.
    Appeal from District Court, Red River County; Ben H. Denton, Judge.
    Proceeding by Ida Johnson to probate the will of T. C. Edmondson, deceased, contested by Baura Edmondson and others. Decree for proponent, and contestants appeal.
    Reversed and remapded.
    Lennox & Lennox, of Clarksville, for appellants.
    J. Q. Mahaffey, of Texarkana, for appellee.
   LEVY, J.

An application was made by the appellee to probate an instrument alleged to be the last will of T. C. Edmondson, deceased. A contest was filed by the appellants to the probating of the will, alleging the incapacity of the testator to make a will, and also the execution of the same through fraud and undue influence practiced upon him.

As a basis for the right to contest the probating of the will the contestants averred that Mrs. Laura Edmondson was the common-law wife of the testator, and T. C. Edmondson, Jr., a son in virtue of such marriage. If the testimony was sufficient, under proper instructions, to authorize the jury to find there Was such a marriage, then the action of the court was error in peremptorily instructing a verdict in favor of the proponent, and the judgment should be reversed; otherwise it should be affirmed. The testimony of a number of witnesses was offered to prove habit and repute of marriage between deceased and Mrs. Laura Ed-mondson in the community where they for a long time resided. The reputation of marriage thus sought to be established was shown to be a divided one. And the appellants read in evidence the ex parte depositions of Mrs. Edmondson on the issue of the common-law marriage. The jury giving full credence, as in their province, to all her evidence, it is believed that they may have concluded that her undertaking and conception in the first instance of the relationship entered into between her and the deceased was not something different from the legal relation of man and wife. And properly reconciling all her evidence, it is concluded that the jury may have reasonably found that there was in fact an agreement in 1876 between Mrs. Laura Edmondson and the deceased then to become and thence afterwards to be husband and wife. This is the gist of a common-law marriage. Simmons v. Simmons, 39 S. W. 639; Cuneo v. De Cuneo, 24 Tex. Civ. App. 436, 59 S. W. 284; Schwingle v. Keifer et al., 105 Tex. 609, 153 S. W. 1132; and other cases.

As the question here considered should have been passed to the jury for decision, the judgment is reversed, and the cause remanded for trial.