author: LANE, J.

text:
    RALSTON v. STAINBROOK et al.
    (No. 7225.)
    (Court of Civil Appeals of Texas. Galveston.
    May 26, 1916.)
    1. Executors and Administrators &wkey;>250— Claims Against Estate — Jurisdiction — Probate and District Courts.
    The probate court has exclusive, original jurisdiction in a pending administration of claims and liens against the estate, and the remedy upon the administrator’s rejection of a lien is in that court, and the district courts have no jurisdiction over the management of the estate, except on appeal.
    [Ed. Note. — For'other eases, see Executors and Administrators, Cent. Dig. §§ 893-895; Dec. Dig. 4&wkey;250.]
    2. Executors and Administrators t&wkey;435— Claims Against Estate — Jurisdiction — Statutes.
    Under Rev. St. arts. 3443, 3446, 3452, 3450, 3457, and 3488, relating to the presentation of money claims against the executor of an estate, the allowance of such claims, and judgment and execution thereon, the administrator’s refusal to recognize a lien upon a part of the land, if a money claim had been allowed, does not authorize the claimant to sue in the district court to subject the land to the payment of the claim.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1716-1725; Dee. Dig. &wkey;>435.]
    3. Executors and Administrators <&wkey;431(2) —Claims Against Estate — Jurisdiction-Probate and District Courts.
    The district courts have no jurisdiction of suits against the estates of deceased persons pending administration, unless the claim is for such an amount as would give such court jurisdiction, and not then unless such claim has been first presented to and rejected by the administra-
    tor, or unless the claimant has some legal or equitable right connected with his claim for the adjudication of which the power of the probate court is inadequate.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 764, 767, 819; Dec. Dig. &wkey;>431(2).]
    Error from District Court, Matagorda County; Samuel J. Styles, Judge.
    Suit by Joseph- Stainbrook and others against John Ralston, administrator of the estate of Lyda L. Williams, deceased, in which A. M. Walker intervened. Judgment for plaintiff and for intervener with a foreclosure of their respective liens, directing that an order of sale might issue, and the administrator brings error.
    Reversed, and cause dismissed.
    Krause & Wilson, of Bay City, for plaintiff in error. J. W. Conger, of Bay City, for defendants in error.
   LANE, J.

This suit was originally instituted by Joseph Stainbrook on the 15th day of September, 1914, against John Ralston, administrator of the estate of Lyda L. Williams, deceased, to recover upon a note executed and delivered to him by said Lyda L. Williams on the 17th day of April, 1911, for the sum of $2,200, for interest and attorney’s fees as provided for in said note, and for foreclosure of a lien on certain real estate belonging to the estate of Lyda L. Williams created by a deed of trust executed by Lyda L. Williams to secure the payment of said note.

On the 5th day of January, 1915, A. M. Walker intervened in the suit, and alleged that said Lyda L. Williams had on the 24th day of February, 1912, executed and delivered to him her certain promissory note for the sum of $265.74, and that to secure the payment of the same the said Lyda L. Williams had also executed and delivered to him a deed of trust on 4% acres of the same property on which plaintiff Joseph Stain-brook has a lien. He also alleged that “on the - day of -, 191 — ,” after default had been made in the payment of his said note, the trustee named in said deed of trust had made a legal sale of said 4% acres of land under the powers conferred upon him by virtue of said deed of trust, that intervener had purchased said land at such sale for $315.50, and that he is the owner of the same subject only to the prior lien of plaintiff Stainbrook. He concludes with a prayer that a sale of all other lands upon which plaintiff Stainbrook has a lien be first made before resorting to a sale of said 4% acres claimed by him, and that in the event said 4% acres is finally sold under said Stainbrook’s foreclosure, then that any surplus of the proceeds of such sale remaining after Stainbrook is paid be paid upon his debt against said estate of Lyda L. Williams, and that, if said proceeds be not sufficient to pay his debt in full, then and in that event he prays that he have judgment for any balance so unpaid against said estate.

It is shown by the petition of plaintiff Stainbrook that Lyda L. Williams 'died on the 24th day of January, 1914, and that defendant, Ralston, duly and legally qualified as administrator of her estate at the February term, 1914, of the county court of Mata-gorda county; that he (Stainbrook) had thereafter in proper time and proper manner presented his claim and lien to the administrator, Ralston, for approval; that said administrator had approved and allowed said claim in full, but had expressly refused to recognize his lien. The record does not disclose whether or not intervener presented his claim to the administrator for approval.

John Ralston, administrator, answered, admitting the execution and delivery of the note and deed of trust as alleged by plaintiff Stainbrook, admitted that he had approved said claim in full as a just claim against said estate of Lyda Williams, but refused to approve the lien asserted by plaintiff, for reasons set out in such written refusal.

Upon the foregoing pleas and admissions the case was submitted to the trial court without a jury. Judgment was rendered for both plaintiff and intervener for the amounts prayed for against John Ralston, as administrator of said estate, and for a foreclosure of their respective liens, set up in their pleadings, making intervener’s lien subordinate to that of the plaintiff. Said judgment also directs that an order of sale may issue for the seizure and sale of the lands in question, or such parts of the same as is necessary to pay the debts of plaintiff and intervener, etc. From the foregoing judgment John Ralston, administrator, has appealed.

Appellant presents four assignments,. all of which may be disposed of by a proper disposition of the first two. Assignments 1 and 2 are as follows:

No 1. “The district court was without original jurisdiction to hear and determine this cause, and for that reason the judgment rendered and entered therein is void.”
No. 2. “The district court erred in entertaining said cause and proceeding to judgment, because it lacked jurisdiction in that plaintiff sued defendant as administrator upon an allowed claim against the estate of his intestate, and for foreclosure of a mortgage lien, which was rejected, when such lien could only be enforced in the county court.”

There is nothing in the record by plea or otherwise tending to show that intervener, Walker, ever presented his claim to the administrator for approval. Appellee Stain-brook specially and specifically alleges that his claim had been fully allowed by the administrator in writing prior to the institution of this suit, and bases his right to bring this suit in the district court solely upon the grounds that the administrator refused to approve his asserted lien.

The probate court in a pending administration has exclusive original jurisdiction over claims and liens against the estate. The remedy, upon rejection of the lien by the administrator, is in the probate court. The district courts have no jurisdiction over the management of an estate in administration except on appeal. Moore v. Glass et al., 6 Tex. Civ. App. 308, 25 S. W. 128; Western M. & I. Co. v. Jackman, 77 Tex. 622, 14 S. W. 305.

The law applicable to the present case is to be found in the following articles of the Revised Civil Statutes which read as follows:

“Art. 3443. When any claim for money against an estate shall be presented to the executor or administrator, if the same be properly authenticated in the manner required by this .chapter, he shall indorse thereon or annex thereto a memorandum in writing signed by him, stating the time of its presentation, and that he allows or rejects the claim, or what portion thereof he allows or rejects, as the case may be.”
“Art. 3446. All claims that have been allowed by the executor or administrator and entered upon the claim docket for the period of ten days shall be acted upon by the court at a regular term, and either approved in whole or in part or rejected, as to the court may seem right, and they shall also at the same time be classified by the court.”
“Art. 3452. The action of the court in approving or disapproving a claim shall have the force and effect of a final judgment, and when the claimant, or any person interested in the estate, shall be dissatisfied with such action, he may appeal therefrom to the district court, as from other judgments of the county court rendered in probate matters.”
“Art. 3450. No execution shall be issued on a judgment obtained in any such suit, but a certified copy of such judgment shall be filed with the clerk of the county court where the estate is pending within thirty days after the rendition of such judgment, and entered upon the claim docket, and shall be classified by the county judge, and have the same force and effect as if the amount thereof had been allowed by the executor or administrator, and approved by the county judge.”
“Art. 3457. No judgment shall be rendered in favor of a claimant upon any claim for money which has not been legally -presented to the executor or administrator, and rejected by such executor or administrator, either in whole or in part.”
“Art. 3488. Any creditor of a deceased person holding a claim secured by mortgage or other lien, which claim has been allowed and approved cr established by suit, may obtain at a regular term of the court, from the county court of the county where the letters testamentary or of administration were granted, an order for the sale of the property upon which he has such mortgage or other lien, or so much of said property as may be required to satisfy such claim, by making his application in writing and having such executor or administrator cited to appear and answer the same. And, in case the mortgage or other lien shall be upon real property, the same notice shall be given of said application as is required to obtain an order for the sale of such property.”

In the case of Western M. & I. Co. v. Jackman, 77 Tex. 622, 14 S. W. 305, our Supreme Court held that:

“The refusal of an administrator to recognize a lien upon a part of the land claimed to be subject to a mortgage, the claim for money being allowed, did not authorize the holder of the secured claim to sue in the district court to subject the * * * land to the payment of the debt secured by the mortgage.
"Under the Revised Statutes it is only where a claim for money against the estate of a deceased person has been rejected by the administrator that the holder of the claim is entitled to bring an independent suit for its establishment.
“A claim for money means literally the claim that a debt exists. A claim for a lien is something more — a claim not only that there is a debt, but also that a lien exists for its enforcement.
“Upon the approval of a claim for money against the estate the law classifies it with others, and the probate court, upon application of the holder of such claim, will make the necessary orders to enforce payment by sale of property which may then be held subject to such claim.
“The power of an administrator extends no further upon claims presented to him than to allow or to reject; he can pass only upon the question of indebtedness.
“The district court has no jurisdiction in a suit by the holder of an approved claim seeking an order subjecting mortgaged lands to the claim upon the rejection of the lien in part by the administrator.”

See, also, Whitmire v. Powell, 117 S. W. 433, and George v. Ryon, 94 Tex. 317, 60 S. W. 427.

It seems to be well settled that the pro-hate court has exclusive original jurisdiction over claims and liens against estates of deceased persons pending administration, and also that the district courts have no jurisdiction to entertain suits against such estates, unless the plaintiff’s claim is for such an amount as would give such court jurisdiction, and not then unless such claim had been first presented to the administrator and by him rejected. The district court may, however, in cases where the claimant has some legal or equitable rights connected with his claim for the adjudication of which the powers of the probate court are inadequate, maintain such actions, but only in such cases can such suits be brought in the district courts. Cannon v. McDaniel, 46 Tex. 303; George v. Ryon, 94 Tex. 317, 60 S. W. 427. But there is nothing in the present case which cannot be adjudicated in the probate court; hence the district court had no jurisdiction over the subject-matter of this suit, and the judgment rendered thereby is void.

Having reached the conclusion that the district court of Matagorda county has no jurisdiction over the subject-matter of this suit, and that therefore said judgment rendered in said court is void, such judgment is here reversed, and said cause dismissed.

Reversed and dismissed.
      <&wkey;>Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BUCK, J.

license: Public Domain

text:
    WICHITA FALLS TRACTION CO. v. BERRY et ux.
    (No. 8369.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    May 13, 1916.
    On Rehearing, June 10, 1916.)
    1. Carriers <&wkey;314(5) — Personal Injury— Sufficiency of Petition.
    A petition in an action for personal injury while alighting from a ear, alleging negligence on the part of defendant and its employés in not providing a safe place to alight, that the stop of the car was 3% feet from the ground, that the box on which plaintiff stepped turned over because it was almost square and was placed directly under the step, and that defendant negligently permitted dirt to be washed away from the track under and near the step, and permitted her to step on the box without warning as to its unsafe condition, stated a cause of action.
    [Ed. Note. — Ifor other cases, see Carriers, Cent. Dig. §§ 1273, 1275, 1275%; Dec. Dig. &wkey;314(5).]
    2. Carriers &wkey;>320(28) — Personal Injury-Question for Jury.
    On the evidence in a passenger’s action for personal injury while alighting from a car held that whether the defendant’s employés knew that the box on which plaintiff stepped had been placed on the side of the car track when plaintiff alighted, or by the exercise of ordinary diligence could have known that the box was not a safe and suitable step to use in alighting, was for the jury.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1244; Dee. Dig. &wkey;320(28).]
    3. Carriers &wkey;>284 (2) — Passengers—Acts of Third Party — Liability.
    While a carrier is not ordinarily liable for the unauthorized acts of third parties, non-employes, it may become liable for negligence in permitting such acts to be done or the consequences thereof to continue, if knowledge has been brought to its servants.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1128-1129, 1132, 1173; Dec. Dig. &wkey;284(2).]
    4. Appeal and Error <&wkey;722(l) — Assignment of Error — Sufficienoy—Rules of Court.
    An assignment of error in the main charge as more fully shown by the written objections thereto, made and filed after it had been submitted to opposing counsel and before the charge was read to the jury “as is more fully shown by defendant’s bill of exception No. 2 which is here referred to and made a part thereof,” in view of the absence of any bill of exceptions No. 2, eo nomine, in the transcript, did not comply with rules 25 and 26 for Courts of Civil Appeals (142 S. W. xii), prescribing the form and contents of assignments of error, and hence did not require consideration.
    [E'd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2990, 2994-2996; Dee. Dig. &wkey;722(l).]
    5. Trial <&wkey;85 — Reception of Evidence-Evidence Admissible in Part — Objection to Whole.
    Where a part of the testimony objected to as a whole was not subject to the alleged vice of being hearsay, the objection was ineffectual to reach any part of the evidence to which it might be pertinent.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 222-225; Dec. Dig. &wkey;>85.]
    6. Evidence <&wkey;314(l) — Hearsay—Related Facts.
    In a passenger’s action for personal injury while alighting from defendant’s car when a box used for her to step upon overturned, testimony of a witness, who learned of the accident from his wife and thereby fixed the date of the accident with reference to the time when he saw a box on the side of the street, which he sometimes used to alight from the car and which he had used two days before he heard of the accident, that it was low and shaky, without showing that it was the same box as that used by the plaintiff, was not inadmissible as hearsay; since a witness may date a fact which he knows by relating it to the time when he heard another fact, and, in so doing, may state what the fact heard was to inform the jury of his reason for observing and remembering facts about which he testifies from personal knowledge.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1168; Dec. Dig. <&wkey;314(l).]
    7. Carriers <&wkey;320(28) — Personal Injury-Question for Jury.
    In a passenger’s action for personal injury while alighting from a car, held, on the evidence, that whether a box about which a witness testified was the same box used to assist plaintiff to alight was a question for the jury.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig.' § 1244; Dec. Dig. <&wkey;>320(28).]
    8. Damages <&wkey;132(7) — Excessive Damages —Personal Injuries.
    A verdict for $1,125 awarded to plaintiff, a woman of 40, who had previously done the cooking and household work for six people, for injury to her knee, hip, and back, tearing the ligaments, causing swelling and keeping her in bed for over two weeks resulting in a weakening of the leg and knee and pain after working and walking, was not excessive.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 378; Dee. Dig. &wkey;132(7)J
    9. Appeal and Error <&wkey;1069(l) — Harmless Error — Misconduct oe Jury.
    In a passenger’s action for personal injury where it appeared that some members of the jury had been in court and heard the trial of an-other case against the same defendant, and that the attorney representing plaintiff had also represented the plaintiff in that case, that it was charged in the first case that plaintiff was feigning injury, and that there was testimony that plaintiff’s counsel had stated that she was not hurt, the statement of at least one juror that he did not believe defendant had treated plaintiff’s counsel right in the other trial, the statement of another juror that it made no difference what their verdict was as defendant would get a new trial on appeal, and the statement of another that he thought the defendant had framed up the first case to make the jury believe that plaintiff was not hurt, in view of the jurors’ testimony that such remarks had no effect on the verdict, were not prejudicial to defendant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4136; Dec. Dig. &wkey;> 1069(1).]
    On Rehearing.
    10. Carriers <S&wkey;318(ll) — Personal Injury-Sufficiency of Evidence.
    Evidence in a passenger’s action for , personal injury while alighting from a street car held to sustain a finding that the defendant and its conductor knew that the box on which plaintiff stepped in alighting had been placed on the ground under the step.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1307, 1314; Dec. Dig. &wkey;318 (11).]
    11. Evidence <&wkey;588 — Weight of Evidence —Credibility.
    A juror is not required to believe a witness, although he makes a plain statement of what is not impossible and is neither impeached or contradicted by direct evidence, but may discredit him on account of the manner of testifying and attendant circumstances.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2437; Dec. Dig. &wkey;>588; Witnesses, Cent. Dig. § 1164.]
    Appeal from District Court, Wichita County; E. W. Nicholson, Judge.
    Action by C. W. Berry and wife against the Wichita Falls Traction Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Huff, Martin & Bullington, of Wichita Falls, for appellant. W. F. Weeks, of Wichita Falls, for appellees.

      Application for writ oí error pending in Supreme Court.

   BUCK, J.

This suit was filed in the district court of Wichita county by C. W. Berry and wife against the Wichita Falls Traction Company, alleging damages in the sum of $5,000 for personal injuries to Mrs. Berry, alleged to have been sustained by her while alighting from one of the defendant’s cars. At the time of the alleged injury, the car on which Mrs. Berry was riding was standing at a switch, awaiting another ear. Mrs. Berry, in alighting from the car, stepped on a box which had been placed in position on the ground near the step a few minutes before by another passenger in order for a lady, who desired to board the car, to do so with greater safety and convenience. The box gave way, causing Mrs. Berry to fall, and she alleges that she received injuries in her knee, hip, and back therefrom. Plaintiff alleged negligence on the part of defendant and its employSs in not providing a safe place for Mrs. Berry to alight in safety, the bottom step being some 3% feet from the ground, and in failing to provide a safe means for her to alight. That the box turned over because of the fact that it was almost square and was not placed directly under the step by the conductor and that, at the direction of the conductor, Mrs. Berry stepped near the corner of the box, but, because of the ground being sloping, the box turned to one side, causing Mrs. Berry to fall. It was alleged further that defendant was negligent in permitting dirt to be washed away from said track and under and near the step where plaintiff alighted, and in permitting Mrs. Berry to step on the box without warning as to its insecure condition.

Defendant denied any liability because of the alleged injuries and specially averred that, if plaintiff was injured by the fall, such fall was caused through no neglect of defendant or its conductor; that the conductor did not know at the time plaintiff alighted from said car that said box had been placed near the step, and that it was guilty of no negligence because the conductor failed to warn Mrs. Berry of the presence or condition of said box, nor was it guilty of negligence because its conductor failed to know of the presence of said box and its condition.

The case was submitted, on special issues, and the jury found as follows:

(1) That the defendant company and its employés knew that said box had been placed on the side of the street car track at the point where plaintiff alighted from said car, at the time she did alight therefrom.

(2) That plaintiff fell while alighting from said ear by reason of stepping on said box, and was injured thereby.

(3) That defendant’s employes were guilty of negligence in allowing the box mentioned to be placed alongside of its street car track and to be used by plaintiff to step on while alighting from its car.

(4) That defendant and its. employés in the exercise of ordinary diligence should have known that said box was not a safe and suitable step for plaintiff to use while alighting from the car, and was guilty of negligence in permitting plaintiff to step on the box at the time she did, and that such negligence was the proximate cause of plaintiff’s injuries.

(5) That the box in question was not suitable and safe as a step for plaintiff to use while alighting from said car.

(6) That plaintiff was not guilty of contributory negligence in stepping on the box, or in not stepping upon the center of said box.

(7) That $1,125 was the sum of money which- would fairly and reasonably compensate plaintiffs for the injuries received by Mrs. Berry.

Judgment having been entered for plaintiffs in the sum found by the jury, the defendant appeals.

We think the court properly overruled defendant’s motion for a peremptory instruction, and that plaintiffs’ petition showed a cause of action, and that whether or not the evidence sustained the allegations of negligence made therein was a question for the jury.

Appellant predicates its contention that it was not negligent principally upon the asserted ground that the conductor of the car in question did not know that the box upon which Mrs. Berry alighted was there, and did not know of its unsafe and unstable condition; but we are of the opinion that the evidence is sufficient to sustain the findings of the jury that the conductor did know, or should have known in the exercise of that high degree of care due a passenger, that said box had beep placed near the track and immediately under and in front of the step prior to Mrs. Berry’s stepping thereon, and that the box was not safe for the purposes and uses to which it was put. Mrs. Nettie Davis, a witness for defendant, testified, in part, as follows:

“I remember along about July 19, last, being out near wliat they call Field’s Switch, between here and the factory district. I got on the street car Sunday morning before this lady, Mrs. Berry, got off; this street car stopped there at the switch, and I got on the ear at the switch — I got on just before this lady got off. * * * Our friends were out to see us; Mr. Denton and his wife and I were going to the lake that day. I always got up that way without any box. Ma\ Denton insisted upon putting a box there; the box was lying out in the street. He got it, and got it so that I could get up; that was an old box, rickety, and I stepped carefully right across the corner so that I would not fall. He went out in the street and picked up this box and set it down by the street ear, just as a step for me to get up. I do not know whether the conductor had him to bring the box up or not. He brought the box up there and set it down just before I got on the car. My son got on the car after I did. * * * He (Denton) did not get the box before the ear stopped. When the car stopped and he saw how high it was from the step down to the ground, he got the box; but I told him that he need not get it for I had gotten on the car that way. He did get it. I used it, but I was careful how I used it, for it was an old rickety thing-. It was a dangerous box to step on, and my friend put it there, and I stepped right across the corner this way.”

Lewis Davis, a witness for defendant, and the son of Mrs. Nettie Davis, testified in part as follows:

“I saw this lady as she stepped off of the car. The conductor had hold of her arm as she went to get off of the car. I do not know whether any one on the ground also had hold of her arm or not; I observed the conductor. * * * Job Denton brought the box there that my mother used to get upon the car. - The box was a tolerably long box, an old, rickety box. I do not know as to the material that it was made out of; I never paid no attention to the box much. It was just an old rickety box, that is just about all that I know about it. * * * The box that Mr. Denton got was laying out there in the street. * * * He went a distance of 20 or 30 feet of where the car stopped to get the box. The reason that he went there and got the box was because that was a pretty high step. It was somewhere near 3% feet from the ground to the step; it was a very high step for a lady to make. Mr. Denton got the box and moved it up there by the side of the car as soon as it came. * * * The conductor was standing there where he always stands when this fellow put that box there; right there on the back platform. The conductor helped my mother on, and then I got on. Job Denton and his wife also got on the car. * * * I saw the conductor take Mrs. Berry by the arm and assist her down on this box. * * * It had been several days before that that I had seen that box.”

The conductor, O. Gibbs, another witness for defendant, testified in part as follows:

“I did not see the box before, until they had it up there. I seen it when she stepped off. I helped Mrs. Davis to get on, but I never noticed the box. I never noticed Mrs. Davis step upon this box and get on. I do not know what was to keep me from seeing it; I had hold of Mrs. Davis’ arm helping her up. The box was right there; it was a good-sized box; it was what lard comes in. I guess that it was about two feet across on top. Two feet one way and about 2y2 feet the other. I expect something like that. I did not see that box when Mrs. Davis stepped on it. I do not think that I am blind. I saw the box when Mrs. Berry stepped down on it. I was just as close to it in helping Mrs. Davis on as I was in helping Mrs. Berry off. But I was not looking down when Mrs. Davis was getting on. * * * With reference to when I first discovered the box, Mrs. Berry was in the car and I went to assist her down when I saw the box. Mrs. Berry was getting off when I first saw that box. I do not remember whether she was on the top step or on top of the car, or on the bottom step of the car when I saw the box. * * * There was nothing- to keep me from examining that box to see what kind of a step I was putting my passengers down on."

Other testimony was introduced to the effect that a box, similar to the one used at the time of Mrs. Berry’s alleged accident, had been frequently used for some time prior to this by passengers in boarding and alighting from the car at this switch, and that the box was allowed to remain out in the street or at the side of the street, and that another box was used for the same purpose at the place of stoppage of the car coming from the other direction and in the same block; this box, so used by the passengers boarding or alighting from the ear at this place, was left in full view where it could have been seen by the conductors and motormen in charge of the cars, and that it had been in an unstable and “rickety” condition for some time. We think the court was justified in submitting to the jury the question as to whether or not the defendant’s employes knew that said box had been placed on the side of the street car track at the point where and at the time when plaintiff alighted from the car, and whether or not said employes knew, or could have known by the use of “ordinary diligence” (finding of jury, paragraph 4), that said box was not a safe and suitable step for plaintiff to use while alighting from the car, and that the finding by the jury favorable to plaintiff on both issues is supported by the evidence.

We do not think that the instant case presents a phase similar to that disclosed in the case of Railway Co. v. Phillips, 32 Tex. Civ. 238, 74 S. W. 793, cited by appellant. In the cited case, a passenger was killed while looking out of a window of a coach by his head coming in contact with the swinging gate of a stock pen belonging to the carrier, and the Court of Appeals for the Third District held that a charge tendered by the defendant, in effect instructing the jury that if the defendant company had fastened the gate with appliances reasonably sufficient to hold it, and that the gate was caused to swing loose by the act of some person other than an employe of defendant, and without the knowledge of defendant, that they should find for the defendant, was improperly refused. Nor do we think the facts shown in the instant case are analogous to those disclosed in the case of Cary v. Los Angeles Ry. Co., 157 Cal. 599, IOS Pac. 682, 27 L. R. A. (N. S.) 764, 21 Ann. Cas. 1329, in which a passenger seeking to recover for injuries received on account of the car starting while she was alighting therefrom, due to the act of a fellow passenger in ringing a start signal to the motorman, was denied a recovery. While a carrier is not ordinarily liable for the unauthorized acts, or the consequences which may flow from such acts, of third parties, nonemployés, yet it may become liable for negligence in permitting such acts to be done, or in permitting the consequences of such acts to remain or continue after knowledge has been brought to the carrier’s servants. Eor instance, if a passenger should be injured by falling over baggage left in an aisle by another passenger, the carrier would not ordinarily be liable for injuries resulting therefrom, unless knowledge of the presence of the baggage in the aisle was brought to or should be imputed to the servants of the carrier in charge of the train before the accident occurred. Miscreants place an obstruction on the track which causes a derailment; the liability vel non of the carrier for any damages sustained would depend on whether or not the engineer or fireman was guilty of negligence in failing to discover the obstruction in time to have prevented the accident, or in failing to use every reasonable means at their command to prevent the accident after such discovery. In the instant ease, by a large preponderance of evidence, the box used as a step at the time of plaintiff’s alighting from the car was shown to be “rickety” and unsafe. Defendant’s own witnesses testified to such condition. Mrs. Davis testified that she stepped on the corner of the box in boarding the car because she saw its rickety condition. The conductor is shown to have been on the back platform where he could have seen, and in the exercise of perhaps even ordinary care would have seen, the placing of the box by the witness Denton, and the condition of the box with reference to its being safe or not. The jury have found that he did in fact see it and know its condition, or should have done so in the exercise of that degree of care owing to plaintiff. Hence, we conclude that the court did not err in refusing to give the peremptory instruction requested, and appellant’s first assignment is overruled.

Appellant’s second assignment is as follows:

“The court erred on the trial hereof, in his main charge to the jury, as more fully shown by the written objections to said charge made and filed with the court, after the same had been submitted to the opposing counsel and before the charge of the court had been read to the jury, as is more fully shown by defendant’s bill of exception No. 2, and which is here referred to and made a part thereof.”

We think that this assignment is too general and vague in meaning to require consideration by us, and does not comply with rules 25 and 26 for the government of Courts of Civil Appeals (142 S. W. xii). By reference to the transcript no “bill of exception No. 2,” eo nomine, is to be found, but on page 19 is found “defendant’s objection and exception to charge of the court,” which concludes in the form of a hill of exception, and is probably the instrument to which reference is made in this assignment. Yet in this instrument are urged several objections to the charge, and neither the assignment nor the proposition thereunder points out specifically which one of the objections contained in the said instrument is relied on under the assignment. If, by grace, the so-called hill of exception itself should be taken as an assignment, it certainly is multifarious. But in any event, we do not think any error is disclosed, either in the assignment or the proposition thereunder; the latter, in effect, attacking the action of tbie court in submitting to the jury special issues requiring findings as to whether or not the box had been placed with the knowledge of the defendant, or its employes, and whether or not the defendant was guilty of negligence in allowing the box to be placed along its street car track where passengers were being discharged. Prom the evidence quoted and referred to hereinabove, we hold that the issues were properly submitted to the' jury. M., K. & T. Ry. Co. v. Redus, 55 Tex. Civ. App. 205, 118 S. W. 208 (writ denied); M., K. & T. Ry. Co. v. Dunbar, 57 Tex. Civ. App. 411, 122 S. W. 574 (writ denied); Freeman v. Kennerly, 151 S. W. 586; Ry. Co. v. Wininger, 151 S. W. 580; Railway Co. v. Davis, 4 Tex. Civ. App. 351, 28 S. W. 737; Railway Co. v. Kennedy, 12 Tex. Civ. App. 654, 35 S. W. 335; Blair v. Railway Co., 141 App. Div. 843, 126 N. Y. Supp. 466. In the last-cited case the street car company was held to be liable to a passenger injured while alighting from a ear, said injury being caused by a premature starting of the car on a signal given by another passenger, it appearing that the conductor, though on the platform, was counting transfers and paying attention to nothing else, and that passengers had given the signal before on that trip. To a like effect is the case of Nichols v. Railway, 168 Mass. 528, 47 N. E. 427.

Plaintiff’s third assignment is directed to the admission over objection of certain testimony of the witness W. P. Carr, to the effect that he rode back and forth on the street ear line from Avenue K (near where the accident occurred) to the factory, and saw a box on several different occasions, and that sometimes he used the box for the purpose of boarding or alighting from the car; that he had used the box two days before he heard of the accident to Mrs. Berry; that the box that he used and saw was low on one side and shaky, and looked—

“like one of these meat boxes turned upside down, * * * it looked like an old soft bacon box about 8 or 10 inches deep and about 18 inches wide and about 2 feet long. It .appeared to be weak. I saw this box about two days before I heard of the plaintiff’s injury. I do not know whether this was the same box that plaintiff used when she was injured or not. I never saw but one box there, and it was either this box or one similar to it. They were thrown on the right-hand side going to the factory.”

The objection was made to all of this testimony on the ground that it did not show with any degree of conclusiveness that the box seen by the witness was the same box as used by Mrs. Berry, and because the evidence was immaterial, irrelevant, and hearsay,, “and because the negligence of the witness in the use of said box could not be attributed to the street car company and could not bind it in any way.” Certainly, a portion of this testimony is not subject to the vice of being hearsay, or to any of the other objections made; and the objections going to the whole would be ineffectual to reach any portion of said testimony to which they might be pertinent. But we are of the opinion that the testimony was admissible and not subject to the objection of being hearsay. The fact that the witness had learned of the accident from his wife, and that thereby he had fixed the date of the accident to Mrs. Berry with reference to the time he saw a box, and the only box on the side of the street. and in the block where he lived or boarded the car, would not make such testimony hearsay. A witness may date a fact which he knows by relating it to the time when he heard another fact; and, in so doing, he may state what the fact heard was, in order to let the jury see what reason.he'had for observing and remembering the fact about which he testifies from personal knowledge. Harris v. Cent. R. Co., 78 Ga. 525, 3 S. E. 355; Wigmore on Evidence, vol. 1, §§ 655 and 730; vol. 2, Wigmore on Evidence, § 1791; 1 Thompson on Trials, § 374.

Or differently stated, for the purpose of identifying the time of facts about which he testified, with reference to some other fact, and when no issue is involved as to the date of the other fact, a witness may state that he heard of the other fact, and that the matters about which he testifies of his own personal knowledge occurred ¡before or subsequent thereto.

This witness testified, further, that, for several days prior to the time Mrs. Berry fell:

“I saw a box there and used it myself several times; I rode back and forth a good deal to my work.”

We think it was for the jury to decide whether or not the box about which the witness Carr testified was the same box used at the time of Mrs. Berry’s fall, and that the objection that it was not shown with any degree of conclusiveness that the two boxes were the same goes rather to the weight than to the admissibility of the testimony. In the case of By. v. Dunbar, supra, it was held that, where a passenger was injured by the upsetting of a step box placed on a 'rough pavement as a means of alighting, he might testify that step boxes used at the station had upset on other occasions when passengers stepped on them. Railway v. Evansich, 63 Tex. 54; Railway v. Richards, 49 S. W. 687. Therefore, this assignment will be overruled, and likewise the fourth, which urges the insufficiency of the evidence to sustain the finding of the jury to the effect that the defendant and its employés were guilty of negligence in allowing the box mentioned to be placed alongside of its street car track, and to be used by plaintiff to step on while alighting from the car.

The fifth assignment urges the excessiveness of the verdict and judgment for $1,-125. Mrs. Berry, the plaintiff, testified:

“When I got to my daughter’s, I went to bed pretty soon, in just a little while; I stayed there a little while. I ate my breakfast. Well, I sat in a rocking chair a little while until my limb was swelling so I had to have a doctor, and they summoned one. For a good while, they packed ice on my limb. I was in bed two weeks, if not several days over. I could not swear how many days over two weeks. I suffered during that time with my left limb and with my back. I suffered with the lower part of my back, and those ligaments here were torn loose, and my knee and my hip in the .-joints — in the .joints of my knee and hip, and those ligaments. They kept ice on my knee the first night and day, all night and part of the next day, before they could put liniment on it. It swelled up very much indeed. I am still affected in my knee, in walking out straight it pains — in walking out straight any distance. * * * I cannot step down on anything too low on account of my knee. I cannot bend it back this way very much. It is weak and I suffer from, it; there is groat pain when I bend it clear back. * * * I still suffer with my back; it is weak; I have not any strength in it much. I am not able to do my household duties and do my work like I used to do. There is a whole lot of difference. My limb, when I do very much work, or walk just a little piece, I suffer with it then at night; there is a weakness all the time in my back, and in my knee and those ligaments. I suffer with them all the time, and now, just the going up those steps and the little walking I have been doing this evening, I feel it yet. It is not so much about my hips; my back was hurt there, got such a wrench, it just threw me this way and my weight fell to my left side, and those ligaments in here, that is the torn part.”

It was further shown that Mrs. Berry was some 40 years of age at the time of the accident, and prior thereto had done the cooking and household work for six people. It is time that on cross-examination it was developed that for some years before her injury she had suffered from ill health and was at times incapacitated for work, but she testified that for the two years immediately preceding the accident she had been entirely well and strong, and this testimony seems to be uncontradicted. Dr. Lee, the physician who was called in to treat plaintiff, testified that he made three visits to see her, on Sunday, Monday and Tuesday following the accident, and that on his first visit he found plaintiff complaining of pain in her knee and that the knee was sprained or swollen, but there were no contusions', bruises, or abrasions; that he put her knee in adhesive plaster to keep her from moving it, and ordered an ice pack used on it. That he gave her a hypodermic the first night to relieve .pain; that subsequent to his last visit plaintiff’s daughter called him .up and reported that her mother was getting along very well, and that she did not think it was necessary for him. to see her any more. That at the time of his last visit the knee was not fully well. That the swelling was there for three or four inches in a contusion of the joints; that a sprain is really a contusion of the joints; that is, a strain of the ligaments. That falling from the step of a street ear and careening to one side might produce an injury like plaintiff had. Dr. Lee testified that plaintiff made no complaint to him of any other injury than that to the knee. We conclude that this assignment must be overruled.

Appellant’s sixth and last assignment complains of the alleged misconduct of the jury while deliberating on their verdict, in the following particulars: That some of the members Of said jury, being on the jury for the week, had two days before been in the courtroom and heard the trial of another case against the defendant in this case, and that the attorney representing the plaintiff in the first case also represented the plaintiffs in the instant case. That evidence was introduced in the first case tending to show, and .the charge was made that the counsel for plaintiff was feigning injury, and that the statement w>as made during the progress of said first trial; and, in the course of the proceedings which resulted therefrom, it was testified that the counsel for plaintiff had stated that Mrs. Berry, who was his client in the instant case, was not hurt. It is urged and was shown that, during the course of the jury’s deliberations, some of them discussed the facts and features developed and disclosed during the trial and subsequent proceedings hereinabove mentioned, and that one juror, at least, stated that he did not believe defendant had treated plaintiff’s counsel right in this other trial, and that another juror stated that it did not make any difference what verdict they would render, that the traction company could get a new trial by appealing, and that another juror stated that he thought the traction company had framed up this first case in order to make the jury believe that Mrs. Berry was not hurt.

Several of the jurors were examined in the investigation had by the court on the' motion for a new trial, and all of them testified that each time any of the matters referred to were mentioned by any juror that the foreman cautioned them against discussing any such matter or considering it, and each juror testified that nothing that occurred, during the deliberations, of the character mentioned influenced him in the least, in rendering the verdict that was finally rendered; that he agreed to said verdict rendered because in his opinion it reached the truth and justice.

We do not believe that any prejudice to defendant’s rights has been shown. It was held by this court in the case of G., O. & S. F. Ry. Co. v. McKinnell, 173 S. W. 937, that a jury who, while deliberating on a verdict, discussed the proposition that plaintiff would be required to pay a large sum to his attorneys for services rendered, and it appearing that by reason thereof a larger verdict was rendered than otherwise would have been rendered, were guilty of misconduct necessitating the setting aside of the verdict. This holding was based on the affidavit of one of the jurors that such discussion was had and. that he was influenced thereby to agree to a verdict in a considerably larger amount than lie would otherwise have been willing to agree to. In tbe case of W. U. Tel. Co. v. Tweed, 138 S. W. 1155, tbe Court of Appeals for tbe Dallas District, while reversing tbe judgment on other grounds, commented on tbe fact that tbe evidence adduced on tbe hearing of tbe motion for new trial showed that tbe jurors were influenced by, and resented what they believed to be, tbe action of tbe defendant company in employing a detective to watch tbe jury pending a trial, with a view of detecting any misconduct on their part, and to see that their verdict was not affected by any undue or improper influence brought to bear upon them, and that probably tbe jury were influenced to award a larger sum in damages than it otherwise would had it not been for this feeling of resentment. But as in the instant case tbe jury was selected with a knowledge on tbe part of both parties litigant and their counsel that the members of tbe panel, or at least some of them, bad been present in the courtroom when tbe transactions and proceedings alleged to have been discussed by tbe jury during their deliberations occurred, and since appellant and its counsel accepted these jurors, knowing this fact, and since upon tbe investigation each juror testified that none of .the happenings of which complaint is made influenced him in the least in reaching the verdict rendered, we conclude that no reversible error is shown in this assignment, and it is, therefore, overruled.

Judgment affirmed.

On Rehearing.

In its motion for rehearing appellant calls our attention to the fact that appellee in her pleadings failed to allege negligence on the part of appellant and its employes, in failing to know or discover that the bos had been placed beneath the step where appellee alighted from the car, and therefore that we were not justified in using the following language in our original opinion, to wit:

“Appellant predicates its contention that it was not negligent principally upon the asserted ground that the conductor of the car in question did not know that the box upon which Mrs. Berry alighted was there, and did not know of its unsafe and unstable condition; but we are of the opinion that the evidence is sufficient to sustain the finding of the jury that the conductor did know, or should have known in the exercise of that high degree of care due a passenger, that said box had been placed near the track and immediately under and in front of the step prior to Mrs. Berry’s stepping thereon, and that the box was not safe for the purposes and uses to which it was put.”

But the jury found, in answer to Special Issue No. 1, that the defendant company and its agents (including the conductor) did know that the box had been so placed. While the conductor testified that he did not know that the box had been so placed, we conclude, from the evidence quoted in the original opinion, that the jury were' justified in finding as they did. The conductor was on the rear platform when Mrs. Davis boarded the car, she using the box as she got on; and he testified that he assisted her in getting on, and there being nothing to prevent the conductor from seeing Denton as he got the box and placed it for Mrs. Davis to use. While there is no positive and direct evidence that the conductor saw the box so placed, the circumstances shown are sufficient to sustain the finding of the jury upon this issue. A jury is not required to believe a witness, although he makes a plain statement of what is not impossible, and is neither impeached nor contradicted by direct evidence, but may discredit him on account of the manner of testifying and the attendant circumstances. G., H. & S. A. Ry. Co. v. Murray, 99 S. W. 144, and cases there cited. We withdraw, as inappropriate in the connection used, so much of our language, quoted above, as reads as follows, “or should have known in the exercise of that high degree of care due a passenger,” but otherwise we adhere to the conclusion stated.

Counsel for appellant seems to fail to understand the application of the language used in our original opinion in discussing the assignment directed to the admission of the testimony of W. F. Carr, for, in this motion, he says:

“Appellant does not dispute the correctness of the language of the court in stating that if the purpose of this testimony had been to fix the date of the accident to Mrs. Berry, or to fix the date when he heard some other fact, or to impress the jury with his capacity for remembering certain facts about which he testifies, that it would not be open to the objection urged by appellant that it was hearsay,” etc.

It is true that Carr’s desired testimony was not directly upon the accident to Mrs. Berry, but rather to show that, at or about the time and prior to said accident, he, Carr, had seen a box at the side of the street near the track, and that said box had been used frequently by passengers in boarding and alighting from the car. He could not be permitted to testify that it was the same box involved in this controversy, but he could describe the location of the box, the kind of box it was, and the time he saw it, and it was for the jury to determine whether or not it was the same box as used at the time of the accident to Mrs. Berry. In order to fix the time when he saw the box with reference to Mrs. Berry’s accident, the date of which was not in dispute, we held that he could testify that he had been informed by his wife of Mrs. Berry’s accident.

As to other matters urged in appellant’s motion, we think they have been sufficiently discussed in the original opinion.

The motion for rehearing is overruled.
      iS^sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§=^>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    BIRCHFIELD et al. v. BOURLAND.
    (No. 8526.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 29, 1916.
    On Application for Writ of Prohibition, May 20, 1916.)
    1. Appeal and Error <&wkey;874(2) — Review — Injunction.
    Since an order refusing to dissolve a temporary injunction is not appealable, no proceedings on the hearing at which such order was made can be considered on appeal from the order granting the injunction.
    [Ed. Note. — For other cases, see Appeal and Error, "Cent. Dig. § 3538; Dee. Dig. @=3874(2).]
    2. Appeal and ERROR <&wkey;837(3) — Review — Injunction — Record.
    An appeal from an order granting a temporary writ of injunction will be determined upon the allegations of the petition, in the absence of any denial thereof at the time of granting the writ.
    [Ed. Note. — For' other cases, see Appeal and Error, Cent. Dig. § 3263; Dec. Dig. <&wkey;>837(3).]
    3. Injunction <&wkey;118(3) — Petition—Irreparable Injury — Sufficiency.
    Allegations of threatened ouster from a farm and destruction of growing crops held sufficient allegations of irreparable injury to authorize a temporary injunction.
    [E'd. Note. — For other cases, see Injunction, Cent. Dig. § 235; Dec. Dig. <&wkey;>118(3).]
    4. Injunction <&wkey;14 — Grounds—“Ibrepara-ble Injury.”
    An “irreparable injury” is one which cannot be fully compensated in damages or cannot be measured by any certain pecuniary standard.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 14; Dee. Dig. <&wkey;>14.
    For other definitions, see Words and Phrases, First and Second Series, Irreparable Injury.]
    5. Injunction <&wkey;l — Statutory Remedy — Rules of Practice.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4643, authorizing a writ of injunction where it appears that applicant is entitled to relief which requires the restraint of some prejudicial act, the right to injunction is not confined to rules of equity jurisprudence.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 1; Dec. Dig. &wkey;?l.]
    6. Injunction <&wkey;118(l) — Petition — Sufficiency.
    In a petition for injunction, the averments of material and essential elements must be suffi-eiently certain to negative every reasonable inference of the existence of facts under which petitioner would not be entitled to relief.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 223-232, 234; Dec. Dig. &wkey; 118(1).]
    7. Injunction <&wkey;118(l) — Petition — Sufficiency.
    In petition for injunction, allegations that plaintiff was lawfully in possession of land, and that defendants unlawfully entered and forcibly ejected him therefrom, are mere conclusions of law and insufficient to authorize injunction.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 223-232, 234; Dec. Dig. <&wkey;> 118(1).]
    8. Injunction <&wkey;118(2) — Petition — Sufficiency-Construction.
    A petition for injunction, alleging that plaintiff’s lessor was formerly the owner in fee simple for the year 1916, must be construed as implying that he was not the owner of the land and had no legal right to lease to plaintiff, and is therefore insufficient to sustain a writ of injunction restraining the ejectment of plaintiff.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 233; Dec. Dig. @=>118(2).]
    9. Landlord and Tenant &wkey;>75(3) — Sublet-tins Premises — Consent of Landlord.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5489, a tenant has no right to sublet premises without the consent of his landlord.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 229; Dec. Dig. &wkey;>75(3).]
    On Application for Writ of Prohibition.
    10. Appeal and Error <&wkey;420 — Review—Injunction — Notice of Appeal.
    Though the notice of appeal recited that appeal was taken from an order dissolving an injunction, but both parties on hearing treated the appeal as from original order granting injunction, the appellate court had jurisdiction to review such original order; no notice of appeal, as required by Rev. St. 1911, art. 2084, in ordinary cases, being necessary in appeals in injunction suits under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4643, 4044.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2147; Dec. Dig. &wkey;3420.]
    11. Appeal and Error &wkey;>384(l) — Review— Appeal Bond — Clerical Defect.
    Clerical defects in an appeal bond in reciting the number of the judicial district of a county named in which the action is pending do not deprive the appellate court of jurisdiction to hear the appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2049, 2056; Dec. Dig. <&wkey;> 384(1).]
    12. Prohibition <&wkey;5(3) — Acts Prohibited —Injunction—Second Writ.
    A writ of prohibition will issue to a lower court to prevent a second writ of injunction on a petition alleging only such facts as were averred or should have been averred on the first application.
    [Ed. Note. — For other cases, see Prohibition, Cent. Dig. §§ 24-29; Dec. Dig. <&wkey;>5(3).]
    13. Injunction <&wkey;8 — Second Injunction-Grounds.
    Where an injunction has been dissolved, complainant by amendment or by supplemental bill may procure a second injunction, but not upon grounds set up in the first bill or which should have been set up therein.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 7; Dec. Dig. &wkey;>8.]
    14. Appeal and Error &wkey;>436 — Effect of Appeai^-Power of Lower Court.
    An appeal or writ of error clothes the appellate court with exclusive jurisdiction of the case, and the lower court has no authority to make any orders in reference thereto excepting such as may be necessary to protect the subject of the appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2191, 2192; Dee. Dig. >&wkey;> 436.] •
    15. Courts <&wkey;207(l) — Jurisdiction on Appeal — Enforcement.
    An appellate court to protect its jurisdiction and enforce its mandates may resort to mandamus, prohibition, or any other appropriate writ.
    [Ed. Note. — For other cases, see Courts, Dec. Dig, &wkey;207(l).]
    Appeal from District Court, Tarrant County; J. W. Swayne, Judge.
    Suit by John Bourland against G. W. Birchfield and another. From an order granting a temporary injunction, defendants appeal.
    Reversed, and injunction dissolved.
    After reversal, plaintiff presented an amended petition to the district judge, wlio again ordered a writ of injunction, which was issued, and defendants apply for a writ of prohibition against plaintiff and the judge of the district court to restrain further action until the original action can he heard on its merits. Writ granted, and second writ of injunction dissolved.
    Robert G. Johnson, and Wade & Smith, all of Ft. Worth, for appellants. Cummings & Whiteside, of Ft. Worth, for appellee.
   DUNKLIN, J.

John Bourland instituted this suit aginst G. W. Birchfield and Terry Allen to restrain the defendants from molesting plaintiff in his possession of a certain farm consisting of 120 acres, and for a mandatory injunction directing and commanding the defendants to deliver to plaintiff the possession of same. A temporary writ of injunction granting the relief prayed for was issued by the trial judge upon an ex parte hearing of said petition, and from that order the defendants have appealed.

Plaintiff alleged in his petition that he leased the farm for the year 1916 from J. A. Younce, paying a cash consideration therefor of $100; that the lease was in writing and duly recorded; that immediately thereafter he went into the possession of the farm and planted about 70 acres in corn and moved his household goods upon the premises and held possession from March 20, 1916, to April 4, 1916, when the defendants unlawfully and forcibly ousted plaintiff of possession; that at the time he was so ousted plaintm. was arranging to move his cattle upon the farm and to cultivate, use, and enjoy the same for the year 1916. As a further ground for the issuance of the temporary writ of injunction, it was alleged that during the pendency of the suit plaintiff’s crop which had already been planted would go to waste, and his crop for the year would be lost, and he would thereby suffer irreparable injury, unless the defendants were restrained from molesting plaintiff in his possession and he he permitted to continue in possession of the farm for the purpose of cultivating it. It was further alleged in the petition that the farm was “formerly owned by J. A. Younce; * * * that plaintiff leased the same from the said J. A. Younce, who was the owner in fee-simple title for the year A. D. 1916.”

We find in the record an answer filed to plaintiff’s petition after the temporary writ was granted, also a motion to dissolve the writ, together with a statement of facts showing the evidence introduced on the hearing of that motion, and the order of the trial judge overruling that motion, all of which proceedings were had some days after the granting of the temporary writ. We also find in the record an agreement by counsel for all parties, approved by the trial judge, in effect, that the hearing by the court of defendant’s motion to dissolve might be considered by this court as if it were a hearing for the purpose of determining whether or not the temporary writ of injunction should issue in the first instance.

The statute does not permit an appeal from an order refusing to dissolve a temporary writ of injunction, and as the present appeal is not from that order, but from the order granting the writ, none of the proceedings had subsequent to the granting of the writ can be considered by us, notwithstanding the agreement of counsel referred to, and the merits of this appeal will be determined upon the allegations of the petition, which, in the absence of any denial thereof at the time the writ was granted, must be taken as true. Holbein v. De La Garza, 59 Tex. Civ. App. 125, 126 S. W. 45.

We are of the opinion that the allegations referred to above to show irreparable injury were suffiicient for that purpose. In the case of Green v. Gresham, 21 Tex. Civ. App. 601, 53 S. W. 382, this court, through Justice Stephens, said:

“Besides, to prevent threatened waste injunction has long1 been a familiar remedy. See Hammond v. Martin, 15 Tex. Civ. App. 570, 40 S. W. 347.”

In 22 Oye. p..813, the following is said:

“Where the injury is of such a nature that it cannot be fully compensated in damages, or cannot be measured by any certain pecuniary standard, it is irreparable, and the trespass may be enjoined.”

By article 4643, 3 Vernon’s Sayles’Texas Civil Statutes, it is provided that a writ of injunction may issue:

“(1) Whore it shall appear that the party applying for such writ is entitled to the relief demanded, and such relief or any part thereof requires the restraint of some act prejudicial to the applicant.”

And it has been held by numerous decisions of this state that by virtue of that statute the right to an injunction is not confined to the rules obtaining in equity jurisprudence. Sumner v. Crawford, 91 Tex. 129, 41 S. W. 994; Holbein v. De La Garza, 59 Tex. Civ. App. 125, 126 S. W. 45; Mitchell v. Burnett, 57 Tex. Civ. App. 124, 122 S. W. 937.

In Gillis v. Rosenheimer, 64 Tex. 246, our Supreme Court said:

“The rule is correctly stated in Harrison v. Crumb, 1 White & W. Civ. Cas. Ct. App. § 992, as follows: ‘The rule of pleading, that the statements of a party are to be taken most strongly against himself, is re-enforced in injunction suits by the further requirement that the material and essential elements which entitle him to relief shall be sufficiently certain to negative every reasonable inference arising upon the facts so stated, from which it might be deduced that he might not, under other supposable facts connected with the subject, thus be entitled to relief.’ See Carter v. Griffin, 32 Tex. 212; Martin v. Sykes, 25 Tex. Supp. 197; Forbes v. Hill, Dallam, Dig. 486; Ballard v. Rogers, Dallam, Dig. 460; Smith v. Frederick, 32 Tex. 256.”

Allegations contained in plaintiff’s petition, suck as that he was lawfully in possession of the farm, and that the defendants unlawfully entered into and forcibly ejected him therefrom, are mere conclusions of law, and entirely too general of themselves to show a right to the relief prayed for. Holbein v. De La Garza, supra.

The allegation that J. A. Younce was formerly the owner of the farm implies that he did not own the title thereto, at the time of the lease to plaintiff, and the inference must be indulged that he was not such owner. The further allegation that J. A. Younce “was the owner in fee-simple title for the year A. D. 19X6” also implies that title to the property was not vested in Younce, for the ownership of land for one year only is wholly inconsistent with any conception of fee-simple title.

Applying the rule of construction laid down by our Supreme Court and noted above, the allegations in the plaintiff’s petition must be construed as implying that Younce did not own title to the property at the time he leased it to the plaintiff. If he was not the owner of the title, then he was either a trespasser or a tenant. If he was a trespasser, clearly he had no right to lease the property to the plaintiff. If he was a tenant, and in the lawful possession of the farm, as alleged, then he had no legal right to sublet the same to the plaintiff without the consent of the landlord, and, in the absence of some allegation of such consent from the landlord, the petition shows no right in plaintiff as a subtenant. Vernon’s Sayles’ Texas Civil Statutes, art. 5489. The petition contains no showing in whom the fee-simple title is vested, but it does contain allegations that defendants are each claiming some interest in the property, and there are no allegations that the fee-simple title is not vested in them.

For the reasons indicated, we are of the opinion that the petition was insufficient to warrant the issuance of the temporary writ, and for that reason the order granting the writ is reversed, the writ dissolved, without prejudice to plaintiff’s right to a trial upon the merits, and this order will be certified to the trial court for observance.

On Application for Writ of Prohibition.

CONNER, C. J. On April 4, 1916, the ap-pellee instituted this suit against appellants G. W. Birchfield and Terry Allen to recover possession of 120 acres of land described in the petition, and from which it was alleged he had been ejected by force, and he prayed for a mandatory injunction commanding the defendants to forthwith deliver to the plaintiff possession of the land. On the same day the petition was presented to the Honorable Jas. W. Swayne, judge of the Seventeenth judicial district of Tarrant county, who without notice or hearing, and upon the allegations of the petition alone, ordered the issuance of a writ of mandatory injunction as prayed for. It further appears that the defendants Birchfield and Allen on the 5th day of April, 1916, filed an answer, among other things denying the facts as alleged in plaintiff’s petition, and praying for a dissolution of the injunction that had been in the meantime issued. Upon this motion for a dissolution, testimony was heard, and it was agreed, in substance, by counsel for all of the parties, which agreement was approved by the trial judge, that the evidence on hearing before the judge of the defendant’s motion to dissolve might be considered bjr this court as if the hearing had been for the purpose of determining whether or not the issuance of the original order for the writ of injunction was authorized.

Upon an appeal from the original order, it was held by us, as will be seen from the opinion written by Mr. Justice Dunklin, 187 S. W. 423, on April 29, 1916, not yet officially published, that we could not consider the proceedings upon the motion to dissolve in aid of the averments of the original petition, and further concluded that the allegations of the original petition were insufficient to authorize the issuance of the mandatory writ, as ordered by the judge on said 4th day of April, 1916, and, accordingly, ordered its dissolution.

It was made to further appear in the application now before us that without any motion for a rehearing in this court on the part of the appellee Bourland, and without the issuance of a mandate, the said Bourland prepared an amended petition and presented the same on, to wit, the 1st day of May, A. D. 1916, to the district judge before named, who again, without notice and without a hearing of any kind, ordered the issuance of a writ of injunction as prayed for in the amended petition, restraining and prohibiting the defendants Birchfield and Allen from in any manner dispossessing the plaintiff during the penden-cy of the suit, and directing said defendants to restore possession of the premises to the plaintiff, etc. A second writ of injunction was forthwith issued in accordance with the order made upon the amended petition, and the defendants Birchfield and Allen presented to this court, on, to wit, May 4, 1916, an application for the issuance of a writ of prohibition, or such other writ as may be appropriate, commanding the said John Bourland and the said Hon. Jas. W. Swayne, as judge of the district court, and all others from further disturbing the possession of appellants Birch-field and Allen to the land described in ap-pellee’s original petition, and from otherwise disturbing them, until such time as the original action can be heard upon its merits. We ordered the filing of the application and the issuance of notice to the apixellee and to the said judge to appear before us on May 12th, and show cause, if any there was, why the writ of prohibition should not issue as prayed for. At the time and place designated, all parties appeared, and the matters involved were duly submitted, and the application was on, to wit, May 13, 1916, granted, and we now present and order filed our reasons for the order last made.

The appellee Bourland insisted that we “are wholly and entirely without jurisdiction’’ to grant the relief now sought, for the reason that the appeal to this court herein-before mentioned was from the order of the court dissolving the injunction, and not from the original order granting the prayer of the petition. This contention is based upon the fact that the transcript contains a minute entry of the notice of appeal given at the time of the hearing on the motion to dissolve, and which notice on its face purports to be from the order of dissolution. But it is manifest from a consideration of the record as a whole that the appeal was not from the refusal of the court to dissolve, for in that connection the parties formally agreed, as before stated, that the proceedings upon that hearing should be considered in aid of the original petition, and all parties on said original hearing before this court treated the appeal as from the original order. It was further contended in effect, that, if the appeal is to be considered as from the original order of the judge, then this court was without jurisdiction for the want of a notice of appeal; it being apparent that the notice appearing in the franseript was from the order of the court refusing to dissolve the original injunction. There is nothing in this contention, however; for, as will be seen by reference to the statutes relating to the subject, writs of injunction may in a proper case be issued by a district or county court “either in term time or in vacation.” See Vernon’s Sayles’ Texas Civil Statutes, art. 4643. And an appeal may be prosecuted from such orders upon the execution of the necessary bond provided the transcript shall be filed with the clerk of the Court of Civil Appeals not later than 15 days after the entry of record of the order of judgment granting, refusing, or dissolving the writ. See article 4644. In none of the provisions relating to the particular subject is a notice of appeal prescribed, and in many instances it is evident that a notice of appeal “in open court,” as required by article 2084 of the Revised Statutes, and generally applicable, could not be given; for instances are easily conceivable where the order granting the writ was made by the judge in chambers or vacation, and where a regular term of the court would not convene until after the expiration of the 15 days within which the statute provides that the appeal from the order must be prosecuted. Moreover, it has been expressly held that no notice of appeal is required in such cases, and we approve the holding. See Young v. Dudney, 140 S. W. 802, and authorities therein cited.

It was further insisted that we were without jurisdiction, in that the appeal bond executed on the appeal from the original order recites that the cause was “pending in the Forty-Eighth district court of Tarrant county” instead of in the Seventeenth judicial district. It is evident however, that the recitation quoted is a mere clerical error, for the bond is properly entitled and numbered, and specfically refers to and is made payable to the proper parties, and further recites that the appeal is taken from the said order of the “4th day of April” granting the writ of injunction.

The foregoing conclusions brought us to the question of whether, under the allegations of the application, we were authorized to issue the writ of prohibition, as prayed for. That the power exists in a proper case was expressly upheld by this court in the case of Cattlemen’s Trust Co. of Ft. Worth v. Willis, 179 S. W. 1115, and we need not repeat what we there said. The further vital question, however, now presented, is whether a district or county court may, upon an amended petition, direct the issuance of a second writ of injunction after a previous order by the same judge or court has been dissolved. That this may be done- under certain exceptional circumstances not necessary now to notice and not here involved, we do not doubt; but, under the circumstances here presented to us, we are of the opinion that it cannot lawfully be done. The record clearly shows that the amended petition, the prayer of which for the second writ was granted by the Honorable Jas. W. Swayne, as hereinbefore stated, contained no new matter not available to the plaintiff in the suit at the time the original order for the writ of injunction was granted. The amended petition merely contains, in substance, what was originally alleged, with added allegations of the facts the appellee attempted to establish upon the motion to dissolve.

It is said in 22 Cyc. p. 780, par. “h,” that:

“Where the complainant has obtained an injunction which has later been dissolved, he may be entitled to a second injunction if he amends his bill or files a supplemental one; but he is not entitled to a second injunction on grounds that were set up in his first bill, or should have been set up.”

The author cites in support of the text decisions from Georgia, Kentucky, Louisiana, New Jersey, New York, and Ohio. To the same effect are numerous eases cited in 27 Cen. Edition of the American Digest, § 343 of title Injunctions. We approve this line of authorities. Indeed, as we think, the principle was directly involved and determined by our Supreme Court in the case of Hovey et al. v. Shepherd, 105 Tex. 237, 147 S. W. 224. In that case, as shown by the records of this court, and by the facts recited in the opinion, the Honorable Jas. Shepherd granted the petition for a second writ of injunction upon, facts substantially embodied in or available at tbe time of tbe issuance of a former writ of injunction, wbicb bad been dissolved, and tbe Supreme Court with evident emphasis and promptness ordered tbe issuance of a writ of prohibition as prayed for in that case. If upon an amended petition of the character here under consideration a second writ of injunction may be granted after tbe dissolution of a prior one by this court, of what avail to a litigant is -our order or jurisdiction? We dissolved the original injunction for want of sufficient allegations in tbe petition upon’ which it was granted. Tbe necessary allegations were available and could have been made in the first instance as well as at the time of the amendment. Let us suppose that the appellants should prosecute an appeal from this second order, and we should a^ain hold the petition insufficient and dissolve the second writ of injunction. Should it be said that appellee could further amend and include some necessary allegation pointed out by this court in its determination and again secure a third writ of injunction? Should such a course be maintainable, it is evident that, by amendments and additional writs of injunction, orders on the part of this court might be rendered entirely nugatory, and appellee would or could get all the relief originally sought, and appellants perhaps suffer irreparable injury. The appeal from the original order vested in this court full jurisdiction over the question therein involved, to the exclusion of the lower court.

As said, with citation of numerous authorities, in 3 Corpus Juris, p. 1255, and following:

“As a general rule, when an appeal or writ of error is perfected, the cause becomes one for the cognizance of the appellate court, and for that court alone; the authority of the lower court is terminated, and it cannot proceed in the cause, at least as to the subject-matter of the appeal or writ, until the appeal or writ of error is heard and determined. So, pending an appeal from a decree in chancery, the chancellor has no power to render any further decree or order affecting the rights and equities of the parties. The appellate court acquires jurisdiction in all matters pertaining to the subject-matter of the appeal or writ of error itself and to the proper hearing thereof, and also in regard to all applications which, by statute, may, after the taking of the appeal or suing out of the writ, be made to such court, and the lower court cannot proceed in any manner so as to affect the jurisdiction acquired by the appellate court, or defeat the right of appellant or plaintiff in error to prosecute his appeal or writ of error with effect, although it may make such orders or decrees as may be necessary for the protection and preservation of the subject of the appeal, and which do not destroy or impair the same. Unauthorized proceedings in the lower court under the original judgment are generally held to be void.”

And. in speaking of tbe effect of an appeal and of its power to enforce its orders, our Supreme Court said:

“So soon as the jurisdiction attaches under an appeal or writ of error, this court has full control of the cause, and can make such orders concerning it as may be necessary to preserve the rights of the parties and enforce its. mandates. This jurisdiction continues until the case, as made by the appeal or writ of error, is fully determined by this court and its judgment is completely executed by the court below. If the judgment below is affirmed, or reversed and rendered or reformed, this court can see that the party in whose favor its decision has been given has the benefit of all proceedings below necessary to enforce its judgment. If remanded for a new trial, it retains control until the new trial is allowed in accordance with its mandate. If reversed and sent down to have some special judgment rendered by the court below, jurisdiction remains until that particular judgment is entered up, and the mandate of the court obeyed. For the purpose of enforcing all such orders coming within the appellate jurisdiction of the court, it may resort to the writ of mandamus, or any other appropriate writ known to our system of jurisprudence.” Wells v. Littlefield, 62 Tex. 30, 31.

We approve what is said in tbe authorities quoted, and on the whole conclude that appellants’ application for a writ of prohibition should be granted, and that the said second writ of injunction issued upon the said amended petition on the 8th day of May, 1916, should be dissolved and appellants restored to tbe possession originally held by them if in the meantime they have been disturbed. It is further ordered that appel-lee, his agents and attorneys, and the said the Honorable Jas. W. Swayne, as judge of the Seventeenth judicial district, are enjoined and prohibited, until such time as appellee’s case against the appellants may be tried upon its merits, from further interfering with or disturbing the appellants as complained of. This opinion, however, is not to be construed as denying the right of injunction upon final hearing if upon the facts proven it should be proper, or as denying tbe issuance of a further temporary writ upon sufficient facts not- heretofore available to the plaintiff.
      &wkey;5Eor other oases see same topic and KEY-NUMBER in all ICex-Numbered Digests and Indexes


author: McMEANS, J.

text:
    PICKETT et al. v. MICHAEL.
    (No. 7190.)
    (Court of Civil Appeals of Texas. Galveston.
    April 28, 1916.
    Rehearing- Denied May 25, 1916.)
    1. Judges <&wkey;lo(l) — Disqualification—Special Judge.
    The selection of a special judge by agreement of tbe parties, after the trial had proceeded for several days -before the regular judge, and upon his statement, as he was about to prepare his instructions, that he would have to undergo a surgical operation the following day, was a nullity, as the regular judge was not disqualified merely by absence, and the acts of the special judge were void.
    [Ed. Note. — For other cases, see Judges, Cent. Dig. §§ 48-50; Dec. Dig. &wkey;15(l).]
    2. Judges <&wkey;19 — Special Judge — Jukisdiction — Estoppel to Deny.
    Where the parties elect a special judge where the regular judge is not disqualified, but is absent from any cause, they are not estopped from denying the special judge’s jurisdiction.
    [Ed. Note. — For other eases, see Judges, Cent. Dig. §§ 64-67; Dec. Dig. &wkey;>19.]

      Appeal from District Court, Harris County; John A. Bead, Judge, and W. J. Howard, Special Judge.
    Action between A. B'. Pickett and others and Charles L. Michael. Judgment for Michael, and Pickett and others appeal. Reversed and remanded.
    ■Stanley Thompson, of Houston, for appellants.
   McMEANS, J.

The trial of this 'case was begun before the Honorable John A. Read, judge of the Sixty-First judicial district court of Harris county, with the assistance of a jury, on the 6th day of May, 1915, and evidence was introduced on the 6th, 7th, and 8th days of May, 1915. At about 11 o’clock a. m., on the 8th, the court excused the jury from further attendance at the trial until the following Monday morning at 9 o’clock, in order that Judge Read might, with the suggestion of counsel for both parties, prepare his instructions to the jury in the form of special issues, which were accordingly prepared. Thereupon Judge Read informed counsel for both parties that on the next day he would have to undergo a surgical operation, and requested them by agreement to select some member of the bar to preside during the rest of the trial, whereupon the parties, upon the following Monday morning, agreed upon and selected the Honorable W. J. Howard as special judge to preside during the further trial of the case; and Judge Howard consenting to so -act, the oath required by law was duly administered to him, and the trial proceeded. Judge Howard then-read to the jury the charge prepared by Judge Read, presided during argument of counsel, and thereafter received the verdict of the jury, but did not enter judgment thereon, but this was done several days later by Judge Read after he had sufficiently recovered from the effects of the operation to permit him to resume the bench. All these facts are substantially shown by the recitals in the judgment rendered in the case.

This case is. before us, in part, upon a suggestion by the appellants of fundamental error apparent upon the face of the record; the contention being that the selection of a judge by agreement of the parties in any case other than where the regular judge is disqualified is a nullity, and that the acts of the judge so selected are without judicial authority and void. It is further contended that when the parties select a special judge, where the regular judge is not disqualified, but is absent from any cause, they are not estopped from denying his jurisdiction. Both these contentions are sustained by the cases of Dunn v. Home National Bank, 181 S. W. 699, and Summerlin v. State, 69 Tex. Cr. R. 275, 153 S. W. 890, and we refer to those cases for the reasons, which, we think, fully sustain the appellants’ contentions.

In delivering the instructions to the jury, in presiding over the deliberations of the trial during the argument, and in receiving the verdict, Judge Howard performed material and essential judicial duties in the trial of the case; and we cannot well distinguish this case in its essential features from the cases above referred to.

The judgment must -be reversed, and the cause remanded for a new trial. This action obviates the necessity of passing upon the question as to whether the failure of appellants to obtain a statement of facts entitles them to a reversal.

Reversed and remanded.
      cS^oFor other oases see same topic and .KEY-NUMBER in all Key-Numbered Digests and Indexes