author: PLEASANTS, C. J.

text:
    PETTY et al. v. McREYNOLDS, Tax Collector.
    (Court of Civil Appeals of Texas. Galveston.
    April 16, 1913.
    Rehearing Denied May 15, 1913.)
    1. Counties (§ 192) — Validity oe Taxes— Abandonment oe Purpose Aeteb Bevied.
    An election held for that purpose having resulted in favor of the issuance of bonds by a road precinct for the construction of graveled and macadam roads, the county commissioners’ court ordered their issuance and levied a tax for the purpose of paying the interest and creating a sinking fund, and directed the county assessor to assess such tax for the year 1911, which tax was duly assessed. Before the time for the collection of such tax, a second election was held, at which it was voted to issue bonds for the construction of paved roads, and the commissioners’ court thereupon ordered the issuance of such bonds, to be dated Jan-nary 1, 1912, provided for the levy of a tax for the payment of interest and the creation, of a sinking fund, and annulled and rescinded its order, authorizing the first issue of bonds, except as to the levy and collection of the tax, the proceeds of which it ordered transferred to a special fund, for the purpose of paying the interest and creating a sinking fund for the bonds authorized at the second election. Held, that when the issuance of the bonds authorized at the first election was abandoned the levy previously made for their payment became invalid, and the attempt to transfer the tax, when collected, to a fund for the payment of the bonds authorized at the second election was unauthorized and void, as the commissioners’ court could not have levied a tax for the year 19ll for the payment of interest and creation of a sinking fund to meet bonds not to be issued until 1912; and Revised Civil Statutes 1895, art. 859, authorizing the commissioners’ court to transfer money from one fund to another, expressly applies only to money in hand.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 300-302; Dec. Dig. § 192.]
    2. Pleading (§ 210) — Demurrers — Requisites and Sufficiency.
    In an action to restrain the collection of a tax levied for the purpose of meeting bonds authorized at an election, on the ground that such issuance had been abandoned, and that the attempt of the commissioners’ court to transfer such tax to a fund for the purpose of paying bonds authorized by a second election was void, so-called special exceptions to the petition, because it affirmatively appeared therefrom that the taxes had been legally levied and assessed and were due and owing, because it appeared that it was defendant’s lawful duty to collect them, because it appeared that they could be lawfully collected under the first election and the order of the commissioners’ court declaring the result thereof, and making a valid tax levy, as well as a subsequent order reaffirming and ratifying such levy, because it appeared that the tax could be lawfully collected under the second election and the proceedings and orders thereunder, and because, if the order rescinding the order authorizing the issuance of the first bonds and transferring the tax was valid, the tax was collectible, and, if void, its validity under the first election was not affected thereby, were “speaking” general demurrers, and presented no question not raised by the general demurrer.
    [Ed. Note. — Eor other cases, see Pleading, Dee. Dig. § 210.]
    3. Counties (§ 196) — Enjoining Collection — Laches.
    Where, after the levy of a tax, the purpose for which it was levied was abandoned, and the commissioners’ court, without authority, attempted to- transfer the tax to a fund for another purpose, taxpayers did not lose their right to restrain a collection of the tax by delaying such action until the tax collector •attempted or threatened to enforce such collection.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. § 308; Dec. Dig. § 196.]
    4. Counties (§ 196) — Enjoining Collection-Parties.
    Where, after the levy of a tax, the purpose for which it was levied was abandoned, and the county commissioners’ court attempted to transfer the tax to a fund for another purpose, the county judge and county commissioners were not necessary parties to a suit against the tax collector to restrain the collection of the tax.
    [Ed. Note. — For other eases, see Counties, Cent. Dig. § 308; Dec. Dig. § 196.*]
    Appeal from District Court, Anderson County; B. H. Gardner, Judge.
    Action by W. R. Petty and others against J. A. McReynolds, tax collector. From a judgment dismissing the suit on demurrer, plaintiffs appeal.
    Reversed and remanded.
    W. R. Petty, of Palestine, for appellants. W. I. Sims and N. B. Morris, both of Palestine, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PLEASANTS, C. J.

This suit was brought by appellants, who are residents and taxpayers of road precinct No. 1 of Anderson county, against appellee, who is tax collector for said county, to restrain the collection of a tax of 17 cents on the $100 valuation of property in said precinct, levied by the commissioners’ court of said county to create a sinking fund and pay the interest on a proposed issue of road bonds for said precinct.

The court below sustained a general demurrer and various special exceptions to plaintiffs’ petition, and, plaintiffs declining to amend, their suit was dismissed.

The petition alleges, in substance, that an election regularly called and held for such purpose on June 24, 1911, in said precinct resulted in a majority in favor of the issuance of bonds in the sum of $150,000 for the purpose of constructing graveled and macadam roads in said precinct, and that on August 15, 1911, the commissioners’ court of said county canvassed the returns of said election and declared the result to be in favor of the issuance of said bonds, and entered an order authorizing their issuance and levying a tax of 17 cents on the $100 valuation of taxable property in said precinct, for the purpose of paying the interest on said bonds and creating a sinking fund for their payment at maturity, and directing the county assessor to assess said tax of 17 cents for the year 1911 against each $100 worth of taxable property in said precinct; that in pursuance of said order the county assessor has assessed said tax and placed the amount of said assessment against all of the taxable property of said precinct, including ttye property of plaintiffs, upon the tax rolls of said county; that said tax rolls have been approved and accepted by the commissioners’ court of said county and placed in the hands of defendant, the tax collector of said county, who is now demanding from plaintiffs the amounts so assessed against them. It is then alleged that no bonds were issued under the provision of said order of August 15, 1911, and no debt has been incurred by the county in pursuance of said election and order, but that such intention of the commissioners’ court has been abandoned, and that portion of the order providing for the issuance of said bonds has been rescinded by said court.

By trial amendment the facts in regard to change in the plans of the commissioners’ court and its abandonment of the intention of creating a debt and issuing bonds under said order are alleged, as follows:

“That the county commissioners’ court of Anderson county, and no other person with authority to do so, has or have, under the order of the county commissioners’ court of the 15th day of August, 1911, and under the election held on the 24th day of June, 1911, issued bonds of justice precinct No. 1 in any amount whatever. That said bond issue, as voted for on the 24th day of June, 1911, has been abandoned by the county commissioners’ court of Anderson county, and that said bonds will not in any event be issued. That the county commissioners’ court of Anderson county, on the 10th day of October, 1911, duly entered an order, ordering an election to be held on the 11th day of November, 1911, in justice precinct No. 1 of Anderson county, to determine whether or not bonds of the said justice precinct No. 1 should be issued, in the sum of $150,000, for the purpose of building and constructing paved roads and turnpikes in justice precinct No. 1 of Anderson county. That on the 11th day of November, 1911, the said election was held, as directed in said order of the county commissioners’ court, in justice precinct No. 1, and resulted in a majority vote for the issuance of the bonds of justice precinct No. 1 in the sum of $150,000, for the purpose stated and mentioned in said order of the county commissioners’ court. That on the 14th day of November, 1911, the county commissioners’ court of Anderson county canvassed the returns of said election held on the 11th day of November, 1911, and declared the result of said election to be for the issuance of bonds of justice precinct No. 1 in the sum of $150,000, and at the same time, on the 14th day of November, 1911, entered an order designating justice precinct No. 1 of Anderson county as road district No. 1 of Anderson county, and entered an order authorizing the issuance of bonds of justice precinct No. 1, designated as road district No. 1, in the sum of $150,000, said bonds to be dated January 1, 1912, and that said county commissioners’ court of Anderson county, on the 14th day of November, 1911, entered an order providing thereafter for the levy of a tax sufficient to create a fund for paying interest and creating a sinking fund to pay said bonds at the maturity thereof, when and after said bonds should be issued.
“That on the 13th day of November, 1911, the county commissioners’ court made and entered an order relative to the bonds voted for on the 24th day of June, 1911, and ordered issued by the county commissioners’ court of Anderson county on the 15th day of August, 1911, to wit: ‘Whereas, on the 24th day of June, 1911, a bond issue of $150,000 was voted in said justice precinct and the necessary order for the issue of the same was duly made and entered, and a tax of and at the rate of 17 cents on the $100 valuation of property within said justice precinct was levied and assessed, and is now being collected; and whereas, no bonds have been issued, but that the election of November 11, above mentioned, was designed to substitute the latter issue for the former: Now, therefore, it is hereby ordered by the court that the said former order authorizing the issue of the bonds in the sum of $150,000 to construct macadam and graveled roads be and the same is hereby in all things annulled and rescinded, except as to the levy and collection of said tax; and it is further here now ordered that the proceeds of said tax of 17 cents assessed value of all property in justice precinct No. 1, levied by the provisions of the former order, be and the same is hereby transferred, under the authority of article 859, to a special fund here created, to be known as road 'district No. 1 fund, for the purpose of paying the current interest on said bonds for the year 1912, and to create a sinking fund with which to redeem the same at maturity.’ Thereby meaning that the same was transferred to the fund for paying the last-mentioned bonds. That the county commissioners’ court of Anderson county have refused, .and now refuse and decline, to issue the said bonds as herein first described. That there is now no action pending against the said county commissioners’ court to compel them to issue said bonds herein first mentioned in plaintiffs’ original petition. That the issuance of the bonds mentioned in plaintiffs’ original petition and referred to herein have been abandoned and will not be issued. That by the provisions of said order of the county commissioners’ court the said issue of bonds voted for on the 24th day of June, 1911, and ordered issued on the 15th day of August, 1911, has been abandoned, and that said sum of 17 cents, levied for the purpose of paying off the bonds as stated, cannot, under the said order of the county commissioners’ court, be legally collected. That no bonds of any amount or in any sum, under either election mentioned in plaintiffs’ original petition and in this amendment, have been issued, executed, or sold, and that there is no legal debt against justice precinct No. 1 for which the taxes levied, as complained of in plaintiffs’ original petition and herein, have been created.
“That Z. A. McReynolds, tax collector of Anderson county, is now attempting to and insisting upon the collection of the 17 cents on the $100 levied to pay the bonds voted for on the 24th day of June, 1911, for the purpose of creating a fund out of which to pay the bonds which were voted for on the 11th day of November, 1911. That the said Z. A. McReynolds, tax collector of Anderson county, has no legal or lawful authority or right to collect from these plaintiffs and the taxpayers generally of precinct No. 1 of Anderson county the said sum of 17 cents on the $100 valuation of property, levied for the purpose of paying the interest and creating a sinking fund to pay the bonds first voted for on the 24th day of June, 1911.
“That the county commissioners’ court are now attempting to contract for sale the bonds of justice precinct No. 1, voted for on the 11th day of November, 1911, and ordered issued on the 14th day of November, 1911. That the taxable values of justice precinct No. 1, for the purpose of issuing bonds for building roads, will not and is insufficient to support both issues of bonds as herein and in the original petition of plaintiffs mentioned. That the applicants herein (plaintiffs) and all of the property taxpayers of justice precinct No. 1 of Anderson county are being unjustly taxed, and are being injured by the attempt to collect and demands for the payment of said taxes. Wherefore applicants sue.”

■Appellee’s (defendant below) exceptions and answer, filed in the trial court, are as follows, omitting the formal parts:

“First. Defendant excepts to plaintiffs’ original petition and to plaintiffs’ trial amendment, because the facts alleged are wholly insufficient to show any cause of action in favor of the plaintiffs against the defendant, and are wholly insufficient to show that the plaintiffs are entitled to any relief prayed for. Wherefore defendant prays judgment, etc.
“Second. Defendant specially excepts to plaintiffs’ original petition and trial amendment, because it affirmatively appears therefrom that the taxes, the collection of which is sought to be enjoined, have been legally levied and assessed, and are now due and owing from the plaintiffs, and each of them, and of this exception defendant prays the judgment of the court.
“Third. Defendant excepts specially to plaintiffs’ original petition and trial amendment, because it affirmatively appears from the averments thereof that it is the lawful duty of the defendant to collect the taxes sought to be enjoined, and of this he prays the court's judgment.
“Fourth. This defendant specially excepts to plaintiffs’ original petition and trial amendment, because it affirmatively appears from said petition and amendment that the taxes sought to be enjoined can be lawfully collected under the first election mentioned in said petition and amendment, and the order of the commissioners’ court. declaring the result thereof, and making a valid tax levy thereunder, as well as the subsequent order of the commissioners’ court reaffirming such levy and ratifying the same.
“Fifth. Defendant specially excepts to said petition and trial amendment, because it appears from the averments thereof that the tax sought to be enjoined can be lawfully collected under the second election referred to in said petition and amendment, and the proceedings and orders thereunder, and of this he prays the court’s judgment.
“Sixth. Defendant specially excepts to said petition and trial amendment, because if the order of the commissioners’ court of date November 13, 1911, set out in plaintiffs’ petition and trial amendment was valid, then defendant is entitled to collect the tax sought to be enjoined under the second election, and if void then said order did not affect the validity of the levy under the first election, nor the collection of the taxes thereunder.
“Seventh. Defendant specially excepts to said petition and trial amendment, because it affirmatively appears that the plaintiffs have not asserted any right with such degree of diligence as will entitle them to any relief in a court of equity.
“Eighth. Defendant specially excepts to said petition and amendment, because the county judge and county commissioners’ court of Anderson county are necessary parties to this suit.
“Ninth. Still insisting on the above exceptions, this defendant comes now and denies each and every allegation in plaintiffs’ petition and trial amendment contained, and demands strict proof.”

We think the trial court erred in sustaining the demurrer and exceptions to plaintiffs’ petition.

It is true that at the time the levy of the tax, the collection of which is sought to be enjoined, was ordered the commissioners’ court was authorized to make such levy, and the legality and regularity of the levy cannot be questioned; but thereafter, and before the collection of the tax so levied could be enforced, the voters of the precinct, at an election regularly called and held, repealed the authority under which the court acted in making said levy by voting to issue bonds for the construction of a different kind of,roads from those for which the first issue of bonds was authorized. In compliance with this mandate of the voters the commissioners' court rescinded the or,der theretofore made, providing for the issuance of bonds under the election of June 24, 1911. When the proposed issuance of the bonds was abandoned and the order providing for their issuance rescinded, the levy •of a tax to pay interest and provide a sinking fund for said bonds was no longer authorized, and the levy previously made for that purpose ^became invalid. That portion of the order of November 13, 1911, rescinding the order of August 15, 1911, providing for issuance of said bonds, which directs that the tax levy of August 15th should not ■be rescinded, but that said tax should bé collected and, when collected, should be transferred to the fund provided for paying the interest and creating a sinking fund for the redemption of the bonds issued under tite authority of the election of November 11, 1911, was unauthorized and void.

The bonds provided for under authority of the election of November 11, -1911, were not to be issued until January, 1912, and provision was made in the order of the commissioners’ court directing their issuance for the levy and collection of the tax sufficient to pay the interest and provide a sinking fund for the redemption of said bonds. We think it clear that the court could not have levied a tax for the year 1911 to provide for the interest and sinking fund of bonds which were not to be issued until 1912. If it could not have directly levied such tax, it could not do so indirectly by ordering the collection of a tax levied for bonds which could never be issued, and providing that such tax, when collected, be transferred to the fund provided for the bonds to be thereafter issued.

In the case of Nalle v. City of Austin, 42 S. W. 780, and 91 Tex. 424, 44 S. W. 66, it was held that the levy of a special tax to meet the interest and provide a sinking fund for an issue of municipal bonds was void, as that portion of the tax levied for the interest and sinking fund of bonds which had not been issued, and the collection of said portion of the tax was enjoined.

In the case of Jefferson Iron Co. v. Hart, 18 Tex. Civ. App. 525, 45 S. W. 321, and Ault v. Hill County, 102 Tex. 335, 116 S. W. 359, it is held, in effect, that a tax cannot be levied for a purpose authorized by law when it is not to be used for that purpose, but is intended, when collected, to be used for a purpose for which it could not legally have been levied.

The principles upon which these decisions rest are applicable to the instant ease, and sustain appellants’ contention that upon the facts alleged in the petition the tax in question cannot be legally collected.

Article 859 of the Revised Statutes, cited in the order of the commissioner^’ court as the authority under which the court acted in directing the collection of the tax levy of August 15, 1911, and its transfer to the interest and redemption fund of the bonds to be issued under the provision of the order of November 11, 1911, does not sustain the order of the court. That article, by its express terms, applies only to “money in hand,” and cannot be invoked to justify an attempt to enforce the collection of a tax levy which has become unnecessary, and therefore unauthorized, for the purpose for which it was made, and apply the tax so levied to a purpose for which it could not have been legally levied.

The so-called special exceptions to the petition, before set out, except the seventh and eighth, are but “speaking” general demurrers, and present no question that is not raised by the general demurrer.

There is no merit in the seventh exception, which assails the petition on the ground that plaintiffs have lost any right they might have in bringing this suit. Plaintiffs were not required to appeal to the courts to protect themselves against an illegal enforcement of said tax levy until an attempt or threat by the defendant to enforce the collection of the' tax. No rule of law or equity required that the suit be sooner brought.

The county judge and county commissioners of Anderson county are not necessary parties to this suit, and the eighth exception to the petition, on the ground that said officials were not made parties, should not be sustained.

It follows from the conclusions above expressed that the judgment of the court below should be reversed and the cause remanded ; and it has been so ordered.

Reversed and remanded.

McMEANS, J., not sitting.


source: Caselaw Access Project

author: KEF, O. J.

license: Public Domain

text:
    THOMPSON & SCOTT v. HART et al.
    (Court of Civil Appeals of Texas. Austin.
    April 9, 1913.
    Rehearing Denied May 7, 1913.)
    1. Continuance (§ 46)—Absence of Witnesses—Diligence.
    An application for a continuance, on the ground of the absence of witnesses, which fails to state in terms that due diligence was used, and which fails to show what efforts the applicant or his attorney had made to ascertain the whereabouts and secure the testimony of the absent witnesses, prior to the beginning of the attorney’s illness about two months after serving of citation on the applicant, and which fails to show what was done during the two months, is properly denied for failure to show due diligence.
    [Ed. Note.—Eor other cases, see Continuance, Cent. Dig. §§ 132-140; Dee. Dig. § 46.]
    2. Continuance (§ 20)—Grounds—Absence of Attoenby.
    Where the continuing of a case would have seriously interfered with the business of the court and no reason was shown why a member of the firm of a party’s attorneys could not have attended the trial, the refusal of a continuance on the ground of the absence of one of the attorneys, who was engaged trying a case in another court, was not an abuse of the trial court’s discretion.
    [Ed. Note.—Eor other cases, see Continuance, Cent. Dig. §§ 51, 53-57; Dec. Dig. § 20.]
    Appeal from District Court, Hamilton County; J. H. Arnold, Judge.
    Action by P. J, Hart against Thompson & Scott and another. From a judgment for plaintiff against defendants named, they appeal.
    Affirmed.
    In February, 1912, P. J. Hart commenced this suit against the firm of Thompson & Scott, and the Stephenville North & South Texas Railway Company, seeking to recover damages for personal injuries inflicted upon one Roland Hart, a minor. There was a jury trial, which resulted in a verdict and judgment ior the plaintiff against Thompson & Scott, and a judgment for the railway company, and Thompson & Scott have appealed.
    The only questions presented for our decision are the action of the trial court in overruling and refusing to grant an application for continuance, and in refusing to grant a new trial predicated upon the application for continuance. The application and the action of the court thereon are set out in the bill of exceptions, which reads as follows:
    “Be it remembered that when the above styled and numbered cause was called for trial in the district court of Hamilton county on the 2d day of September, 1912, the plaintiff announced ready for trial, and the defendants Thompson & Scott announced not ready for trial, and thereupon presented to the court their application for a continuance; the same being their first application for a continuance, and the said term of court being the appearance term of court, in so far' as the said defendants were concerned, and the said application being in words and figures substantially as follows:
    “ ‘P. J. Hart v. Stephenville North & South Texas Railway Company and Thompson & Scott. In the District Court of Hamilton County, Texas, September Term, 1912.
    “ ‘Now come the said defendants, Thompson & Scott, and say they are not ready for trial and cannot safely go to trial at this term of court, and for cause for an order granting them a continuance of this cause until the next term of court show: That upon the service of citation herein upon John P. Scott, a member of the defendant firm, in May of this year, the said defendants'employed the firm of Goodson & Good-son, of Comanche, Tex., to represent them in the defense of this suit. Said defendants say that they are nonresidents of this state and reside in the city of St. Louis, and state of Missouri, where their principal office is situate ; that not long since, by letter bearing date August 25, 1912, written by Mr. H. N. Goodson, the junior member of the firm of Goodson .& Goodson, they were informed of the serious illness of the senior member of the firm, G. H. Goodson, and that on account of the same the said G. H. Goodson would be unable to represent these defendants in the trial of this cause, and further that the illness of the said G. H. Goodson was of so serious a nature that the younger member of the firm, H. N. Goodson, who was a son of said G. H. Goodson, would be unable to leave his father’s bedside, and would.be unable to be present at the trial of this case at this term of court, and that by reason thereof the said firm withdrew from the case and informed the said defendants that they would be compelled to get another attorney. Thereupon, as soon as they could and heretofore, to wit, on the 26th day of August, 1912, the said defendants employed one Harry P. Law-ther, of Dallas, Tex., to represent them in the defense of this suit and turned over to the said Lawther all the facts in their possession relative to the nature of the accident and gave him the names of all the witnesses whose .testimony would be material to their defense.
    “ ‘Said defendants further show that from the facts given to the said Lawther by the said defendants, and from the allegations in plaintiff’s petition itself, it appears that one H. P. Cooper was the foreman in charge of the work at the time of the accident, and that it is charged that the accident and consequent injury to Roland Hart was due to his negligence. Said defendants show that the said H. P. Cooper is not now in their employ, and that they are informed and believe that he has since said accident and since he left their employ removed from the state of Texas and now resides in the town of Fairbanks, Ariz. Defendants say that since the employment by them of the said Lawther to defend this suit the time has been too short for them to propound interrogatories and take the depositions of the said Cooper; that the testimony of the said Cooper is material to their defense herein, and they cannot safely go to trial without the same; that they expect to prove by the said Cooper that on the day of the accident he was in charge of the work train on the Stephenville North & South Texas Railway, which was engaged in doing finishing work on said railway and was distributing ties off of a flat car on the train; that the train was moving along slowly at about five or six miles an hour; that he personally knew where the ties were needed, and himself was engaged in throwing the ties from the car; that he was ignorant that the said Roland Hart or any other employé was sitting upon the flat car upon which the ties were loaded; that the proper place for said employés to have been riding was in the tool car, and he had ordered them into the tool car before the train started and supposed they were there; that the tie which struck the said Roland Hart and inflicted the injury complained of was not thrown upon the said Hart by the said Cooper, nor was the said Hart struck by the same as it was thrown from the car, but that said tie, after it struck the ground, rebounded and struck the said Hart, inflicting the injury complained ■ of; that such an occurrence was an unusual one, not expected by the said Cooper, was unforeseen by him and unexpected, and was purely an accident; that the said Cooper did not know, as aforesaid, that the said Hart was on the car or was sitting in any position where he could possibly have been injured until he heard the said Hart cry out after the accident.

      “ ‘Said defendants further show that another witness whose testimony is material to their defense herein, without which they cannot safely go to trial, is W. J. Cavanaugh, who was the conductor on the train at the time of the accident; that the said Cavan-augh is at present temporarily residing in the county of Grimes, in the state of Texas, and that since the employment of the said Lawther by the defendants, the time has been too short for him to propound interrogatories and obtain the deposition of the said Cavanaugh; that said defendants expect'to prove by the said Cavanaugh that, as aforesaid, he was the conductor on the work train at the time the said Roland Hart was injured; that the said work train was engaged in distributing ties along the roadbed of the said Stephenville North & South Texas Railway wherever the same were needed in dressing the track; that before they started out the said Cooper, who was the foreman of the work, announced that they would distribute some ties along the track where they were needed, and that the manner of distributing the ties, to wit, throwing them from the flat car as the train moved slowly along, was well known to all the employes of the train and to the said Roland Hart; that the said Cavanaugh was standing beside the said Cooper when he threw off the tie, the collision with which by the said Roland Hart resulted in the injury complained of in plaintiff’s petition; that when the said tie struck the ground, for some reason which to said witness appeared to be inexplicable and which was unforeseen and unexpected by him, the said tie rebounded and struck the said Roland Hart on the leg where he sat on the side of the car and near the rear end of the car; that said tie was not thrown against said Hart by the said Cooper, nor did the same strike the said Hart as it left the car, but, as before stated, after it struck the ground it rebounded and struck the said leg of the said Roland Hart; and that the same was an accident, pure and simple, and was not due to the fault or negligence of any one.
    “ ‘Defendants further say that another witness whose testimony is material to their defense, and without which they cannot safely go to trial at this term of court, is H. Tyson, and that they are in receipt of a letter from one J. E. Tyson, the father of said H. Tyson, dated August 20, 1912, stating that his son H. Tyson resided in Indian Creek, Tex. Said defendants show that they expect to prove by the said Tyson substantially the same facts as will be testified to by the said Cooper and Cavanaugh. Said defendants say that since the employment of the said Lawther the time has been -too short for him to propound interrogatories and obtain the depositions of the said Tyson. Said defendants further show that they expect to procure the testimony of the said witnesses Cooper, Cav-anaugh, and Tyson by the next term of this court.
    “ ‘Said defendants further show that the serious illness of the said G. H. Goodson as aforesaid has prevented the said firm of Goodson & Goodson from making the proper preparations for the trial of this case and using the diligence required by the law for obtaining the testimony of the aforesaid witnesses ; that the same was entirely unexpected and unavoidable, and that the said defendants’ failure to have the said witnesses in attendance on this court, or to have their testimony, has been without any fault on their part or of their attorney; in fact, the same has been rendered impossible by the unfortunate and sad occurrence of the said serious illness of the elder Goodson, as aforesaid. Said defendants further show that this continuance is not sought for delay only, but that justice may be done.
    “ ‘Wherefore, the premises considered, said defendants pray the court to grant them a continuance of this cause until the next term of court. [Signed] Harry P. Lawther, Attorney for Defendants Thompson & Scott.
    “ ‘The State of Texas, County of Dallas.
    “ ‘Before me, the undersigned authority, upon this day personally appeared Harry P. Lawther, who being by me duly sworn, upon his oath says that the matters and things contained in the foregoing application for a continuance are true. [Signed] Harry P. Lawther.
    “ ‘Subscribed and sworn to before me this the 31st day of August, A. D. 1912. [Signed] Livingston M. Mays, Notary Public in and for Dallas County, Texas. [Seal.]’
    “In connection with the said application for a continuance, one L. M. Mays, Esq., the attorney who presented the same, informed the court that Mr. Harry P. Lawther, who was the attorney of record for the said defendants, was upon that day engaged in the trial of a case in the district court of Dallas county, and that by' reason thereof it was impossible for him to be in attendance upon the court on that day, and that it would be impossible for him to be in attendance on said court for two or three days; and the said Mays respectfully requested the court to pass the same until the said Lawther could get out to Hamilton county to attend the trial of said cause.
    “But the court, upon consideration of said application for continuance and of said request to postpone the trial of the cause for two or three days, overruled the said application for a continuance and refused said request to postpone, and thereupon the said cause proceeded to trial in the absence of said defendants’ attorney, the said Harry P. Lawther, and in the absence of any attorney to represent them and in their own absence, and in the absence of all of their material witnesses, and resulted in a verdict against these defendants in the sum of $6,-083, and to this action of the court in thns overruling said first application for continuance and in refusing said request to postpone for a few days the trial of said cause, the defendants, by the said L. M. Mays, who appeared only for the purpose of presenting said application for a continuance and presenting said request for postponement of trial, then and there excepted and now do here except, and pray that this, their bill of exceptions, may be approved and signed by the court and made a part of the- record herein, which is accordingly done.
    “-, Judge.
    “Harry P. Lawther, Attorney for Defendants.
    “I know nothing of this, but have no objection to bill. Marshall Ferguson.
    “In approving the above and foregoing bill of exception I desire to add the following explanation of my conduct'in overruling the application for a continuance in question:
    “First. The original answer of defendants Thompson & Scott was signed by the firm of ‘Lawther & Pope,’ and the said answer contained only a general denial and a general demurrer, and there was no plea alleging that Roland Hart had been guilty of contributory negligence.
    “Second. The application for a continuance did not show the date when the said Thompson & Scott had been served with citation, and the plaintiff in answer to the application for continuance called the court’s attention to the fact that the citation which was served on Thompson & Scott showed that the same was served on May 5, 1912, and the application for a continuance offered no explanation of why Thompson & Scott had not employed counsel to represent them at an earlier date and offered no explanation why the counsel they did employ could not and did not, if they desired the evidence of the witnesses named in the application for a continuance, prepare such depositions as should have been taken during the months of May, June, July, and up to August 23, 1912, and no explanation was offered why the said counsel so employed did not, if they desired the evidence of the said witnesses, exercise due diligence to secure their testimony during said months.
    “Third. No explanation was offered why the law firm Of Lawther & Pope did not prepare and have filed an application for a commission to take depositions' after they were employed; that the district court of Hamilton county convened on August 26, 1912, and on the 26th day of August, 1912, the attorney for Thompson & Scott, Mr. Harry P. Lawther, at the instruction of the court through the district clerk of Hamilton county, Tex., was informed that this cage was set down for trial on the 2d day of September, and had been so set for trial on said date at a former term of this court, and that the case would be called for trial on that day, and, the same being a jury case, that the court would expect said case to be tried on that date; that no explanation was offered in the said motion why other member of the firm of Lawther & Pope, to wit, Mr. Pope, defendants’ attorney of record, was not present and could not have been present to represent the firm of Thompson & Scott.
    “Fourth. No explanation was offered and no reason given by Mr. L. M. Mays, Esq., who presented the application for a continuance, could not and did not appear and represent the interest of the said Thompson & Scott on the trial of the case and at the time the court passed upon the application for a continuance; the court had no reason to believe that the said L. M. Mays would not continue to represent the said Thompson & Scott. In this connection I deem it proper to say that the said L. M. Mays did remain in Hamilton until after the testimony was introduced and the case submitted to the jury, although he was not in the courthouse and did not participate in the trial, stating to the court after the overruling of the application for a continuance that he did not' represent the defendants. In this connection, however, it is proper to state that Mr. Mays attended the court and presented the defendants’ application for a new trial and presented and conducted the case in the court op motion for new trial, interrogating witnesses on the hearing thereof, and he has also further represented the defendant to the extent of presenting and having approved this bill of exception. In this connection, I wish to say that Mr. Mays appears to be an exceedingly capable lawyer, and I am unable to see any reason why he could not have represented the defendants on the trial of the case in an efficient and able way.
    “Fifth. The motion for a continuance disclosed on its face that each and all of the witnesses on account of whose testimony a continuance was sought was present on the flat car at the time the plaintiff was alleged to have been injured, and would have testified to plaintiff’s injuries substantially as plaintiff did himself — that is, that plaintiff was injured by a tie being thrown by one Cooper, who was defendants’ foreman, from the fiat car in question while the train was moving — and apparently- the only difference in the absent testimony and that produced by the plaintiff was in the fact that the plaintiff’s testimony showed that he was injured by the tie after it was thrown by Cooper before it struck the ground, and the testimony sought by the defendant would have shown that he was injured by the tie striking him on the rebound after it had struck the ground. Inasmuch as defendants’ alleged act of negligence consisted in the act of their foreman throwing the- tie in question from the train while moving upon which Roland Hart was sitting, as it appears from the application that the defendants’ witnesses will swear, it does not occur to me to make material difference whether he was injured by the tie before or after it struck the ground.
    “Sixth. Prom the showing made in the application made for a continuance, the court was of the opinion that it was probably not true that Oooper did not know that Roland Hart was sitting on the flat car as testified to by him, for the reason that said application states that Cavanaugh and Tyson saw him struck with the tie ‘where he sat on the side of the car and near the rear end of the ear.’
    “Seventh. The motion for a continuance did not show that Cavanaugh and Tyson were not in the employment of the said Thompson & Scott, and it was not shown that the said Thompson & Scott had exercised the least diligence to secure the presence of the said W. J. Cavanaugh and H. Tyson.
    “Eighth. The motion for a continuance did not contain and was not supported by the affidavit of either G. H. Goodson or H. N. Goodson to the effect that the said Goodson & Goodson were employed to represent the said Thompson & Scott, and as a matter of fact on the hearing of the motion for a new trial it was disclosed by the affidavit of H. N. Goodson that the firm of Goodson & Good-son were employed by the .¿Etna Insurance Company or some insurance company, and not by Thompson & Scott, and no connection was shown on the hearing of the motion for a new trial or elsewhere in the record between the insurance company and said Thompson & Scott.
    “A jury was in attendance upon the court, and it would have seriously interfered with the business of the court to have dismissed the jury and either postponed or continued the case, and no good reason was shown to the court why both or at least one member of the firm of Lawther & Pope could not have attended said trial, or why the importance of this case was not of equal dignity or more importance than the one that Mr. Lawther was trying in Dallas. Furthermore, I do not feel that it is sufficient ground for a continuance that counsel is engaged in the trial of some other case in some other court. It was not shown but that the court in Dallas would have postponed the case there, if proper application had been made. It does affirmatively appear, however, that defendants’ attorney announced ready in said case at Dallas with knowledge of the fact that this ease had already been previously set.
    “With this explanation I approve the above and foregoing bill of exception and direct that it be made a part of the record in the above numbered and entitled cause.
    “J. H. Arnold, Judge Presiding.”
    The trial judge was mistaken in the statement that the original answer of Thompson & Scott was signed by the firm of Lawther & Pope. The transcript shows that it was signed by Harry P. Lawther, as attorney for Thompson & Scott; and there is nothing in the record to show that Mr. Lawther had a partner, as stated by the trial judge. It was shown that citation was served upon appellants on the 15th day of May, 1012, and that Goodscii & Goodson were employed to defend the case by the ¿Etna Insurance Company on June 28, 1912.
    Harry P. Lawther, of Dallas, for appellants. J. R. Stubblefield, of Eastland, for appellee.

      For other cases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   KEF, O. J.

(after stating the facts as above). We overrule appellants’ contention, and hold that no error was committed in refusing to grant the application for a continuance. In Hogan v. M., K. & T. Ry. Co., 88 Tex. 679, 82 S. W. 1035, a case somewhat similar to this, the rules relating to the question of diligence are discussed; and we refer to that case and the dissenting opinion in the Court of Civil Appeals, which was approved by the Supreme Court, in support of our conclusion in this case. The dissenting opinion referred to is reported in 30 S. W. 868. In the case at bar the application not only failed to state, in terms, that due diligence had been used, as required by the statute, but it failed to show what efforts Thompson & Scott or Goodson & Goodson had made to ascertain the whereabouts and secure the testimony of the absent witnesses prior to the beginning of Judge Goodson’s illness; which at the hearing of the motion for new trial was shown to have been about the middle of July. Appellants were served with citation about two months before the beginning of Judge Good-son’s illness; and it may be that, if proper diligence had been exercised, the depositions of the witnesses referred to could have been procured before Judge Goodson was taken ill. What, if anything, was done by the appellants or any one in their behalf during the two months’ time which elapsed between the service of citation and the illness of Judge Goodson, the application failed to show, and therefore it was insufficient. Therefore, conceding that Mr. Lawther exercised due diligence after he was employed, we feel compelled to hold that such diligence, prior to his employment, was not shown. Perhaps some of the other reasons stated by the trial judge were sufficient to justify his action. We also hold that the court did not abuse its discretion by trying the case in the absence of Mr. Lawther.

No error has been shown, and the judgment is affirmed.

Affirmed.


author: REESE, J.

text:
    CITY OF HOUSTON v. RICHTER et al.
    (Court of Civil Appeals of Texas. Galveston.
    May 8, 1913.)
    1. Appeal and Error (§ 622) — Record on Appeai^-Time op Filing.
    Where the record on. appeal from an order granting a temporary injunction was filed in the court on appeal within 15 days after the granting of the injunction, but more than 15 days after the entry of an order of injunction and to show cause why the injunction should not be perpetuated, the appeal would_ not be dismissed for failure to file the record in time.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2732-2735; Dec. Dig. § ■622.]
    2. Injunction (§ 105) — Restraining Criminal Prosecutions — Void Ordinances.
    The rule that equity will not by injunction prevent criminal prosecutions under a void city-ordinance is subordinate to the rule that equity will grant relief where there is not a plain, adequate, and complete remedy at law, and where it is necessary to prevent irreparable injury to property rights.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 178, 179; Dec. Dig. § 105.]
    3. Injunction (§ 105) — Restraining Criminal Prosecutions — void Ordinances.
    Where many journeymen plumbers of a city sue for themselves and others similarly situated to restrain a city from enforcing an ordinance requiring the journeymen plumbers to procure a city license and give a bond as a prerequisite to their exercising their calling in the city, and allege that they and the other persons have a common right, and they and each of them are threatened with prosecution under the ordinance unless they either cease to carry on their business or comply with the ordinance, which is illegal, and that each of them will be harassed with successive and continuous prosecutions, equity has jurisdiction to restrain by injunction the enforcement of the ordinance, if invalid, and thereby prevent a multiplicity of criminal prosecutions- and a destruction of the property rights of complainants and others similarly situated.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 178, 179; Dec. Dig. § 105.]
    4. Municipal Corporations (§ 592) — Ordinance — Regulation of Plumbing Business — Validity—“License.”
    An ordinance of a city, which requires journeymen plumbers to be examined and licensed by the examining board of plumbers to obtain a city license, and to give a bond as a prerequisite to their exercising their business in the city, conflicts with Acts 25th Leg. c. 163, as amended by Acts 31st Leg. e. 90, providing for the examination and licensing by a board of examiners of plumbers, and is invalid though the city may under its charter enact ordinances to protect the health, life, and property, and to preserve and enforce good government, order, and security of its inhabitants and to exercise all powers of municipal government not prohibited by the charter, a provision of which declares that no ordinance inconsistent with the laws of the state shall be enacted; a “license” being a formal permission from the proper authorities to perform certain acts, or to carry on a certain business which, without such permission, will be illegal.
    [Ed. Note. — For other cases, see Municipal Corporations, Gent. Dig. §§ 1311-1314; Dec. Dig. § 592.

    For other definitions, see Words and Phrases, vol. 5, pp. 4137-4141.]
    Appeal from District Court, Harris County; Win. Masterson, Judge.
    Suit by George Richter and others, suing for themselves and others similarly interested, against the City of Houston. From an order granting a temporary injunction, defendant appeals.
    Affirmed.
    J. B. Niday and T. L. Dunn, both of Houston, for appellant. Hutcheson & Hutcheson, of Houston, for appellees.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   REESE, J.

On October 17, 1910, the city of Houston, operating under a special charter, adopted an ordinance with regard to plumbing in said city, the material portions of which are as follows: “No person shall do any job of plumbing or drain laying or make any connection with, or opening into, any public sewer, or lay any drain or do any plumbing, although regularly examined and licensed by the examining and supervising board of plumbers, unless he shall possess also the license of the city of Houston, issued by the city engineer, said license to operate for one year, which shall be issued only on the applicant complying with the terms and conditions hereinafter stated, and any person who shall do any job of plumbing or drain laying in the city of Houston without having procured the license of the city of Houston, issued by the city engineer as required herein, without having filed the bond hereinafter required, shall be guilty of an offense and upon conviction thereof in the corporation court shall be fined in any sum not less than ($5.00) five dollars nor more than ($50.00) fifty dollars for each offense, provided that each separate job of work that is done without a license shall constitute a separate offense. No license shall be issued for the city of Houston by the city engineer to any plumber, unless he shall first exhibit to the city engineer a lawful license in full force and effect issued by the examining and supervising board of plumbers of the city of Houston, nor until he has given a good and sufficient bond, satisfactory to the mayor of the city of Houston, as follows: Each master plumber shall give a bond in the sum of two thousand dollars ($2,-000.00) and each journeyman plumber a bond in the sum of one thousand dollars ($1,000.00) and each drain layer shall give a bond in the sum of one thousand dollars ($1,000.00). Said bonds shall be conditioned upon the faithful performance and observance of all ordinances of the city of Houston pertaining to plumbing and drain laying, or excavations, and all rules, regulations and specifications established under said ordinance and conditioned further that said plumber or drain layer will indemnify and save harmless the city of Houston, and all other persons, against all accidents and damages caused by any negligence in protecting the work, or by any unskilled or unfaithful work done by themselves. Said bond shall be for the benefit of any person aggrieved or injured by reason of failure to properly observe the ordinances of the city in the execution of said work.”

George Richter and 45 others, journeyman plumbers in the city of Houston, suing for themselves and all others similarly interested, instituted this action in the district court of Harris county, to enjoin the enforcement of the provisions of this ordinance in so far as it requires them, as journeyman plumbers, and other journeyman plumbers of the city of Houston, as a prerequisite to their exercising their calling in the city of Houston, to give the bonds and procure the license of the city engineer as provided in said ordinance, on the ground that such ordinance was in conflict with the provisions of the act of 1897, c. 103 (chapter 13, R. S.), as amended by chapter 90, Acts of the 30th Legislature (Acts of 1909, p. 162). Temporary injunction was prayed for to be made perpetual on final hearing. This application, which was sworn to by all of the plaintiffs, was presented to the district judge, who set the same down for hearing three days later, in the meantime issuing a temporary restraining order until the hearing. On the hearing the application for temporary injunction was granted.. From this order the defendant appeals.

Motion to dismiss the appeal is made by appellees on the ground that the record was not filed in this court within 15 days after the entry of record of the order, as provided by statute. Motion is based on the following facts, which are shown by the record: The petition with the prayer for temporary injunction was presented to the district judge on May 18, 1912, whereupon he indorsed thereon the following order, which, with the petition, was filed the same day: “This petition for injunction having been presented to me on the 18th day of May, 1912, I hereby order that wHt of injunction as prayed for herein issue forthwith, restraining the city of Houston, its agents and representatives, from the attempted enforcement of section 2-A and section 3 of the plumbing ordinance of said city and that it be cited to appear before this court on the 21st day of May, 1912, at 4 p. m., and show cause why this injunction should not be perpetuated.”

Writ thereupon issued in the usual form restraining the defendant as prayed for “until the further orders of this court,” and the defendant was required to appear before said district court on the following Tuesday, May 21, 1912, at an hour named, “to then and there show cause why this injunction should not be perpetuated.” The defendant filed answer, and the matter came on for a hearing on said date, when the following order was made and duly entered of record the same day: “Be it remembered that on, to wit, the 21st day of May, 1912, parties complainant and the defendant having appeared before me, in obedience to the order entered in this cause by me on the 18th day of May, 1912, to show cause why the temporary restraining • order heretofore granted should not be continued in force, and an injunction granted as prayed, and having heard and fully considered the matters on said day, being of the opinion that plaintiffs are equitably entitled to the injunction as prayed by them, it is here now by the court so considered, and ordered, adjudged, and decreed that the defendant be and it is hereby enjoined from the attempted enforcement of section 2-A and section 3 of the plumbing ordinance of the city of Houston, and that upon the plaintiffs herein giving bond in the sum of $300, the clerk of this court issue a writ of injunction directed to the defendant, its agents and attorneys, commanding them to desist from in any manner enforcing or attempting to enforce the provisions of section 2-A and section 3 of the plumbing ordinance of the city of Houston, said injunction to continue in full force until, final hearing of this cause; all costs of this hearing to be borne by defendant, to which the defendant, city of Houston, in open court excepts and gives notice of appeal to the Court of Civil Appeals, Hirst Supreme Judicial District, at Galveston.”

The record was filed in this court June 3d, more than 15 days after the entry of record of the first order above referred to, but less than 15 days after the entry of the second. The language of the first order affords some basis for appellees’ motion to dismiss, but when we consider all the proceedings it seems to us clear that what the judge intended was to set the application for temporary injunction down for a hearing on the 21st and in the meantime to restrain the defendant until such hearing was had. The judge seemed to be aware of, and to recognize, the difference between the temporary injunction prayed for, the office of whieh when granted was to restrain the parties until a final disposition of the case, and the temporary restraining order to restrain them only until the hearing of the application for temporary injunction. It is simply a case of misuse of terms, whieh a little care would have prevented. The motion is overruled. Caswell v. Fundenberger, 47 Tex. Civ. App. 456, 105 S. W. 1017; Berger v. De Loach, 52 Tex. Civ. App. 242, 113 S. W. 557.

The case was heard on the sworn bill and the answer of defendant, which contains a general denial, and was sworn to. The assignments of error do not assail the truth of any of the allegations of the bill, but present only questions of law arising thereupon.

The petition alleges that the plaintiffs are all journeyman plumbers of the city of Houston and are and have been engaged in prosecution of the said calling in said city. The provisions of the act of the Legislature referred to herein are substantially set out, and it is averred that plaintiffs, and eaeh of them, have complied with each and every condition of said law to entitle them to prosecute the said business of journeyman plumbers in said city of Houston. The enactment of the ordinance hereinbefore set out is alleged, and it is averred that the city of Houston and its agents and representatives have in the past attempted, and are now attempting, and will in the future continue to attempt, to prevent plaintiffs from carrying on their lawful occupation as licensed journeyman plumbers and are threatening to arrest and prosecute plaintiffs and eaeh of them, and punish them by fine, as provided in said ordinance, unless plaintiffs comply with the provisions of said ordinance requiring them, in addition to the requirements of the said statute, to give the bonds provided in said ordinance and to procure a license from the city engineer which can only be granted after said bond has been given. It is further averred that complainants, and each of them, are threatened with arrest and punishment if they enter any premises for the purpose of pursuing their calling; that one of their number has been arrested, fined, and committed to prison for violation of said provisions of the ordinance, from which imprisonment he was released on habeas corpus; that, since this proceeding, warrants have been issued for the rest of journeyman plumbers not complying with the provisions of said ordinance, and several arrests have been made, which cases are now pending in the corporation court of the city of Houston. It is further averred that the provisions of the ordinance in question requiring journeyman plumbers to give bond and procure a license from the city engineer, and subjecting those of them who have complied with the state law to fine and imprisonment for pursuing their calling without first having procured said license and given said bond, are in conflict with the state laws and null and void, and that if the same are allowed to be enforced plaintiffs will be harassed by a multiplicity of suits and prosecutions (unless they comply with such void ordinance), and their business will be destroyed ; that if they give such bonds, in order to avoid arrest, they could only be relieved from liability from such unauthorized bonds by instituting many different suits to cancel the same, which would entail the necessity for a multiplicity of suits for that purpose. The necessity for the injunction is based upon the fact that plaintiffs’ business and substantial property rights will be destroyed, and that they will be subjected to a multiplicity of suits, unless defendant is enjoined from enforcing the said ordinance.

By the first and second assignments of error the judgment is assailed for want of equity in the bill and on the ground that the allegations of the petition, if true, do not entitle appellees to injunction, in that they have a plain, adequate, and complete remedy at law.

This presents a question which has been frequently passed upon, and upon which the decisions are not altogether in harmony. The general rule that equity will not interfere by injunction to prevent criminal prosecutions under a void ordinance of a city is subordinate, to the general principle that equity will grant relief when there is not a plain, adequate, and complete remedy at law, and when it is necessary to prevent irreparable injury. City of Austin v. Austin Cemetery Association, 87 Tex. 336, 28 S. W. 528, 47 Am. St. Rep. 114; Robinson v. City of Galveston, 51 Tex. Civ. App. 292, 111 S. W. 1076; Schlitz Brewing Co. v. City of Superior, 117 Wis. 297, 93 N. W. 1120.

The right to the writ of injunction to restrain the enforcement of criminal prosecutions under a void city ordinance, when such prosecutions would result in irreparable injury to property rights of the complainant, was upheld in all of the above cases-, and the Austin Cemetery Association Case is consid-i ered as having settled the law on this point in this state. But the rule as applied in that case is not authoritatively determinative of this case. In that case the cemetery association had acquired certain property which it was proposed to use as a burial ground, and. the purpose was to sell burial lots. The effect of the ordinance, the enforcement of which was sought to be enjoined, made it a penal offense, punishable, by fine, for any person to bury the dead in this cemetery. The ordinance was directed, not at the cemetery association as the owner of the property, but at other persons who might otherwise be disposed to purchase lots in its cemetery for burial purposes. Prosecutions under the ordinance would be directed against such persons. The reason upon which the general rule was based, that the law afforded a plain and adequate remedy against such prosecutions, in the right to set up the invalidity of the ordinance in defense, did not apply, as there was no way in which the association could control the actions of the persons threatened with prosecutions, who could be effectually prevented from using plaintiffs’ cemetery by - such threats, regardless of the invalidity of the ordinance. Thus the ordinance operated the destruction of plaintiff’s property by its mere unchallenged existence as an ordinance of the city, for which plaintiff had no remedy except the one sought by him. If the penalties of the ordinance had been directed at the owners of the cemetery, this rule would not have applied, as is shown by illustration used by the court, of an ordinance prohibiting the sale of butcher’s meat in a certain locality and also prohibiting the sale of meat to be there sold and the buying in such prohibited place. The person pursuing the occupation of selling meat in such place could enjoin the enforcement of such ordinance, if void, as his business would be destroyed. Persons would be prevented from selling meat to or buying from Mm. But, says the court, “if the penalty was denounced against no one but the market man who should sell, it would seem that his remedy would be to proceed with Ms business and defeat any prosecutions that should be brought against Mm for the infraction of the void ordinance.” It was by reason of this distinction that in the case of Robinson v. City of Galveston, supra, this court held that Robinson & Witte, the firm of contracting master plumbers, would be entitled to the writ of injunction, but not Alfred Robinson, against whom the penalties of the ordinance were directed, and who had an adequate remedy by defeating any prosecution brought against him. This remedy was not available to Robinson & Witte. The penalties ,of the ordinance were directed, not against them, but against journeyman plumbers who were prevented thereby from working for them.

TMs much will serve to show that the principle underlying the cases cited does not alone serve to support the present ease. We have the fact that the enforcement of the ordinance will injuriously affect, if not destroy, the business of plaintiffs as journeyman plumbers, a property, right as much entitled to protection, in a proper case, as a horse or a farm; but there is not the same ground of irreparable injury, as each of the plaintiffs could defend against any criminal prosecution, under the ordinance in question, on the ground that it was void. There is respectable authority, however, for the broad proposition that where property rights will be destroyed, for this reason alone unlawful interference by criminal proceedings under void law or ordinance may be reached and controlled by a court of equity. N. O. Baseball & Amusement Co. v. City of New Orleans, 118 La. 228, 42 South. 784, and cases cited.

There is another ground of equity jurisdiction under which the right to grant the injunction in the present case can be sustained. Plaintiffs, 46 in number, suing for themselves and all others similarly interested, allege that they and such other persons have a common right, and that they and each of them are threatened with prosecution under said ordinance, unless they either cease to carry on their business or comply with the illegal requirements of the ordinance, and that each of them will be harassed with successive and continuous prosecutions. It seems entirely clear that the only adequate relief, if not the only relief at all, from such successive prosecutions, is by the remedy of injunction. An investigation of the authorities leads to the conclusion that in such case, and especially when, as here, such prosecution will seriously impair, if not destroy, appellees’ property rights, equity will interfere by the writ of injunction to prevent a multiplicity of suits. To put each of the parties to Ms remedy of a defense to such prosecutions by setting up the invalidity of the ordinance does not, in fact, afford him full, complete, and adequate relief. In City of Tyler v. Story, 44 Tex. Civ. App. 250, 97 S. W. 856, from the Court of Civil Appeals of the Fourth District, cited and relied upon by appellant, referring to the general rule that equity will not interfere by injunction to restrain criminal prosecutions under a void ordinance, the court says that “it seems that the multiplicity or oppressiveness of criminal prosecutions also constitutes an exception to the rule and affords a ground for the interference of equity.” 1 Pom. Eq. § 255 et seq., § 261. The right to injunction on this ground is denied in the strongest terms by the Supreme Court of Alabama in Brown v. Birmingham, 140 Ala. 590, 37 South. 173, and Old Dominion Tel. Co. v. Powers, 140 Ala. 220, 37 South. 195, 1 Ann. Cas. 119; but the exception based on destruction or impairment of property rights is recognized in the former case. In the following cases the right to injunction on this ground is expressly affirmed: 1 Joyce on Inj. § 531; New Port v. Bridge Co., 90 Ky. 193, 13 S. W. 720, 8 L. R. A. 484; Schlitz Brewing Co. v. City of Superior, 117 Wis. 297, 93 N. W. 1120; Sylverton Co. v. St. Louis, 130 Mo. 323, 32 S. W. 649, 51 Am. St. Rep. 566; Rushville v. Rushville Natural Gas Co., 132 Ind. 575, 28 N. E. 853, 15 L. R. A. 321; City of Hutchinson v. Beckham, 118 Fed. 399, 55 C. C. A. 333; Chicago v. Collins, 175 Ill. 445, 51 N. E. 907, 49 L. R. A. 410, 67 Am. St. Rep. 224; Wilkie v. City of Chicago, 188 Ill. 444, 58 N. E. 1004, 80 Am. St. Rep. 182. The Wilkie Case last cited is in all respects on all fours with the present case. We think the petition presented proper grounds for the grant of the writ of injunction, assuming that the ordinance in question is void.

Under the remaining assignments of error appellant presents the propositions that the ordinance in question is strictly within the police powers of the city, and is expressly authorized and contemplated by the statute referred to and is not in conflict therewith.

The act of 1897 (chapter 13, R. S.) provides for the examination and licensing of plumbers in every city of tMs state by a board consisting of “a member of the board of health, the chief plumbing inspector, a master plumber of not less than ten years’ active experience, and a journeyman plumber of not less than five years’ active experience” ; the mayor and local board of health to make such appointment. It provides for the payment of fees for such examination, and for the issuance of license to such persons as pass such examination. By the act of 1909, section 11 of the act of 1897 was amended so as to make it applicable to cities organized under a special charter, as well as those chartered under general law. “License,” in the sense in which it is here used, is defined as “a formal permission from the proper authorities to perform certain acts or to carry on a certain business, which, without such permission, would be illegal.” It would have added nothing to the force of this term to have expressly provided that each licensed plumber should have the right to practice his calling in the particular city in which he receives his license. The terms of the ordinance of the city have been heretofore set out. The effect of its provisions is to prohibit, under penalty of fine, any plumber, who has received this license from the board of examiners under the provisions of the statute, from exercising the privileges given him by the statute, unless he further gives the bond provided by the ordinance and receives a further license from the city of Houston, issued by the city engineer. It is contended by appellant that power to enact such ordinance is conferred by provisions of the charter “to enact and enforce all ordinances to protect health, life and property and to preserve and enforce the good government, order and security of its inhabitants, and to protect the lives, health and property thereof,” and the further provision, “it being intended by this act to grant and bestow upon the inhabitants of the city of' Houston full power of self-government, and it shall have and exercise all powers of municipal government, not prohibited to it by this charter or by some general law of the state of Texas, or the provisions of the Constitution.” In addition to this latter limitation upon the powers granted by the charter, it is expressly provided by article 2 that “no ordinance shall be enacted inconsistent with the laws of the state of Texas, or inconsistent with the provisions of this act.” We think it is too clear for argument that the ordinance in question is inconsistent with the statute referred to. The precise question was decided in an able opinion by the Supreme Court of Illinois in Wilkie v. City of Chicago, supra. The same view was taken by this court in Robinson v. City of Galveston, supra, in regard to conflict between a similar ordinance of the city of Galveston and the statute in question. It was held, however, that the statute did not apply to a city acting under a special charter, which did not have the officers required to form the board of examiners provided by the statute. The amendment of 1909, passed after the decision of the Robinson Case, remedied this defect.

The general power given by the charter to the city over the matters of drainage, sewers, etc., is to be taken with the limitations in article 2, above referred to, and authorizes such regulations as may be deemed necessary or proper of the work to be done. This power can be exercised to the fullest extent without infringing upon the right of a licensed plumber under the statute to pursue his calling.

This disposes of all the questions presented by the brief of counsel, We find no error, and the judgment is affirmed.

Affirmed.


author: KEY, C. J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. SULLIVAN.
    (Court of Civil Appeals of Texas. Austin.
    Feb. 19, 1913.
    On Motion for Rehearing, May 7, 1913.)
    1.Depositions (§ 88) — Foundation—Proof.
    . Even though it were permissible, in offering the deposition of plaintiff’s wife in evidence, to show that she was unable to attend court on account of sickness, such proof should not have gone into details by showing that she had previously had two surgical operations performed and had been in the hospital.
    [Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 234-236)4, 242-245; Dec. Dig. § 88.]
    2. Appeal and Error (§ 1051) — Harmless Error — Admission op Evidence.
    Judgment will not be reversed for error in admitting evidence over objections, where the same facts were shown by the testimony of other witnesses without objection.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. § 1051.]
    3. Damages (§ 166) — Admissions.
    Where, at' the time a letter written to defendant by plaintiff’s attorneys, stating that plaintiff’s damages were $500, plaintiff had already suffered a considerable part of his injuries, and his attorneys must have known that he was entitled to compensation for future suffering, the letter was admissible in evidence in a subsequent action by plaintiff for $30,500 for such injuries.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 478, 479, 481; Dec. Dig. § 166.]
    4. Evidence (§ 213) — -“Compromise.”
    Plaintiff’s counsel, before the bringing of the present action, wrote to defendant stating that they thereby handed to defendant’s agent plaintiff’s claim and asked that the matter be taken up so as to give defendant an opportunity to settle it without suit, and that, if a satisfactory settlement was not had, they would be compelled to sue, and further stated, after reciting the nature of the injuries, that plaintiff had never fully recovered from the effects of-the injury, and alleged his damages to be $500, “which is offered as a compromise. Please have the company take the matter up with us if it desires to' make settlement.” Held,, that the letter was not an offer to compromise within the rule excluding it from evidence as such, since $500 was the full amount of the claim made therein, and the letter did not purport to offer to reduce such amount.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 745-751, 758; Dec. Dig. § 213. For other definitions, see Words and Phrases, vol. 2, pp. 1374-1375; vol. 8, p. 7609.]
    5. Appeal and Error (§ 1050) — Exclusion of Evidence — Reversal.
    Error in excluding a letter written by plaintiff’s attorneys to 'defendant railroad company before bringing the present action for $30,500 damages, stating that plaintiff’s claim was for $500 damages, required the reversal of a judgment for plaintiff for $8,400.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.]
    Appeal from District Court, Williamson County; Chas. A. Wilcox,' Judge.
    Action by S. D. Sullivan against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Alex S. Colee, of Dallas, Spell & Sanford, of Waco, and Duther Nickels, of Austin, for appellant. Nunn & Love, of Georgetown, for appellee.

      For other cases see same topic and section NUMBER in Deo. Dig. '& Am. Dig. Key-No. Series & Rep’r Indexes

      For ottier oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   KEY, C. J.

This is a personal injury suit in which the plaintiff laid his damages at $30,500. The substance of the pleadings of the respective parties is set out as follows in appellant’s brief: The plaintiff alleged: “That on the 15th day of November, 1910, he was a passenger on one of defendant’s passenger trains traveling from Temple, Tex., to Georgetown, Tex. That on the occasion of the arrival of the train at the latter place, and after the station had been announced and the train brought to a complete stop, and while the passengers thereon were preparing to leave and leaving the train, plaintiff arose from his seat preparatory to leaving the train when the train operatives suddenly, carelessly, and negligently, and without warning, caused the car in which plaintiff was riding to be suddenly and violently started, lurched, or jerked forward with great force and violence, and caused the plaintiff to be thrown or jerked backward with great violence against the arm of the seat in the rear of plaintiff,_ causing said arm of said seat to strike plaintiff below, on, and near and by the side of his anus, and on and by and near his coccyx, severely bruising, wounding, and injuring said plaintiff at and on said parts. That by reason thereof a large and painful abscess was caused to form at the place of said bruise or injury, and that by reason of said injury and abscess the tissues, ligaments, and muscles of plaintiff’s anus were broken down, consumed, and destroyed, and the tissues, ligaments, and walls of plaintiff’s rectum were broken down, consumed, and destroyed, and the fecal matter in plaintiff’s intestines is diverted from its natural channel and caused to exude from a channel formed by said abscess; and the fatty tissues and cushions and ligaments and muscles of plaintiff’s buttocks were and are destroyed and consumed and have perished, and plaintiff has permanently lost control of the sphincter muscle controlling his anus and his coccyx was fractured, dislocated, and permanently injured. Wherefore plaintiff has been seriously and permanently injured in the manner above alleged, and has been caused to suffer, and will as long as he lives continue to suffer, great physical and mental pain and anguish and has been forced to pay and become liable for the reasonable and necessary sum of $750 for medicine, medical attendance and attention, nurse hire, and hospital fees in caring for said injuries. The defendant answered with special exceptions and a general demurrer, which were overruled, with a general denial and special answers denying that it was' guilty of the acts of negligence and wrongs charged against it, alleging contributory negligence on the part of the plaintiff in arising from his seat before the train had come to a standstill and before the announcement of its arrival at the station for the disembarking of passengers as the proximate cause of his injury, and alleged that plaintiff’s injury, if any, was caused by the acts of the plaintiff long prior to the time of the accident, and were not caused by any negligence or want of care upon the part of the defendant.” There was a jury trial, which resulted in a verdict and judgment for plaintiff for $8,400, and the defendant has appealed.

Appellant’s brief contains 180 printed pages, and presents and discusses 17 different assignments of error, none of which, with one exception, point out sufficient reason for a reversal of the case. Many objections are urged against the court’s charge and the refusal of requested instructions; but the objections referred to are without merit. Considering the charge as a whole and in connection with certain instructions requested by appellant which were given, it presented the law of the case to the Jury with reasonably accuracy and with great fairness to appellant. Several assignments are predicated upon rulings made concerning the admissibility of testimony, but in this regard we find no reversible error.

However, we think the court should have sustained some objections that were urged to testimony as to the details of the ill health, present and past, of the plaintiff’s wife. Conceding that it was permissible, in offering her deposition in evidence, to show that she was unable to attend court on account of bad health, still the court should not have permitted the plaintiff to extend that proof as far as it went by showing that she had previously had two surgical operations and been confined in a sanitarium.

But, as these facts were, in substance, proved by the testimony of other witnesses that was not objected to, the case will not be reversed on account of the error referred to.

We sustain the thirteenth assignment of error, which complains of the ruling of the court in refusing to admit in evidence a certain letter addressed by the plaintiff’s attorneys to the defendant’s local agent at Georgetown, Tex. The letter referred to read as follows: “Georgetown, Texas, 1 — 19—1911. Mr. H. E. Pye, Local Agent M., K. & T. Ry. Co. of Texas- — Dear Sir: We ¿and you the following claim in favor of Mr. S. D. Sullivan of this county, and ask you to take the matter up with your company, and give the company an opportunity to settle same without suit; in the event it desires to do so. Of course, if a satisfactory settlement is not had, we will he forced to sue. Mr. Sullivan’s cause of action is as follows: That on or about the 15th day of November, 1910, in bringing his wife to this place from the hospital at Temple, he and his said wife became passengers upon one of your company’s trains. That upon reaching Georgetown, and after the station had been announced and the train had stopped and passengers had begun to alight, he got up with his baby in his arms and reached over to pick up his grip, and that while he was in this position the train was suddenly moved forward and the sudden movement threw him backward with considerable force, and he fell upon the arm of the seat, the said arm of the seat striking him just below and by the side of his anus, severely bruising him at said place; that although t¿e said injury pained him a great deal at the time, he did not at said time consider it a serious injury and he made no complaint, but that in a few days the place began to swell, and a great amount of pus to accumulate at the said place, and that within eight or nine days a very large rising had developed at the said place as a result of said bruise. That by reason thereof he had to take his bed and procure the treatment of a doctor for five or six weeks, during all of which time he suffered intense pain. He did not state to us the exact amount of his doctor’s and medical bill, but we inferred that it was something over fifty dollars; that he has never fully recovered from the effects of the said bruise; and that he alleges his damages to be the sum of $500, which is offered as a compromise. Please have the company take the matter up with us if it desires to make settlement. Tours very truly, [Signed] Nunn & Love, Attorneys for S. D. Sullivan.”

The plaintiff objected to the letter upon the ground of immateriality and because it was an offer of compromise, which objection was sustained. The plaintiff testified that he made no claim against the ^defendant until the date of the letter, January 19, 1911; stated that he had talked • with his attorneys, Nunn & Love, about making the claim, and the amount for which it should be filed, and instructed them to file the claim. In so far. as the record shows, this letter was the first notice the defendant had of the plaintiff’s injury, or that he was asserting any claim against the defendant therefor. According to the plaintiff’s testimony at the time this letter or claim was prepared he had already suffered a considerable portion of the injuries of which he complains; and his attorneys who prepared the document must have known that, if the defendant was liable, the plaintiff was .entitled to compensation, not only for the injuries that had accrued up to that time, but also for those which might result in the future. This being the ease, it was certainly very material, if the defendant could show that the plaintiff has admitted that $500 was all the damages he was entitled to ' claim. Hence we hold that the excluded testimony was material. But it is insisted on behalf of ap-pellee that the document referred to was properly excluded because it showed upon its face that it was an offer to compromise.

There is some plausibility in that proposition; but we do not think it will stand the test of correct analysis. We recognize the rule that when parties disagree, and one offers to take less than he claims, or the other offers to pay more than he contends he is liable for in order to prevent litigation, it is not permissible, upon a trial of the case, to prove that such offer to compromise was made. But this case does not come within that rule. At the time that this document was prepared and delivered to appellant’s agent, it does not appear that appellant had denied liability, or that there was any disagreement between the parties as to what sum would constitute adequate compensation. Furthermore, while it is stated on the face of the document that it was an offer to accept $500 as a compromise, it is manifest from the statement which immediately precedes that it was not, and could ’not be, an offer to compromise. The preceding statement was that the plaintiff alleged his damages to be $500. Now there can be no offer to compromise, by a plaintiff unless he makes a concession and offers to reduce -the amount of his claim, and no such offer was made in this ease. On the contrary,, the offer was to accept the full amount of damages to which the plaintiff stated he was entitled; and, for the reasons stated, this was no offer to compromise, although it was so denominated in the instrument. Considering all the testimony bearing upon the extent of the plaintiff’s injuries, present and prospective, we find that the verdict of the jury is large; but in saying this we do not mean to hold that it is excessive in the sense which would require a reversal.

What we do hold is that, on account of the size of the verdict, we think the exclusion of this material testimony requires a reversal. We do not hold that the excluded document is conclusive, because the plaintiff has the right, if he can, to explain why he fixed the amount of his damages at only $500 at that time, and to show, if he can, that in fact tjiey were in excess of that sum. Nevertheless, as it appears upon its face, the letter contains a written admission which he has made, and which it is the right of the defendant to have placed before the jury to be considered by them in determining how much, if any, the plaintiff should recover. In support of our ruling holding that this document is admissible, we cite 16 Cyc. p. 948; and we quote as follows from St. L. S. W. Ry. v. Smith, 33 Tex. Civ. App. 520, 77 S. W. 28: “Appellee caused to be made a detailed statement of the injuries inflicted upon his stock, and the amount of his damages in consequence, and presented the same to the Texas & Pacific Railway Company, one of the defendants in this suit. This was done at a time, it seems, when there had been no negotiations pending between the parties looking to a settlement, and the amount then claimed ($95) purported to be the entire amount of his damages. Although the appellee then and at the time of trial denominated the transaction an offer to compromise, it does not appear to have been such. As said in an Indiana ease: ‘A party cannot render an admission incompetent by testifying that he intended it to bring about a compromise, unless there was in fact an honest controversy between the parties and a treaty, pending or proposed, to settle it without resort to litigation.’ Steeg v. Walls, 4 Ind. App. 18, 30 N. E. 312; Hood v. Tyner, 3 Ind. App. 51, 28 N. E. 1033. The evidence was competent as tending to contradict appellee’s statements as to the extent of the injuries received and the amount of damages he had sustained. Ft. W. & D. C. Ry. v. Lock, 30 Tex. Civ. App. 426, 70 S. W. 456. And, being admissible, it was an invasion of the province of the jury for the court to say the evidence should have this or that effect. The jury, and not the court, should say whether, considering appellee’s other testimony explaining that the injuries to his stock had not developed at that time, his admissions were binding upon him, since, as we think, the evidence was more in the nature of an admission of fact than of an offer to compromise. Compromise involves the idea of making a concession for the sake of peace; but rendering a statement of one’s injuries, with a demand for the utmost farthing, is quite another thing.”

The assignments presenting other questions are overruled; but, on account of the error referred to, the judgment is reversed and the cause remanded.

Reversed and remanded.

On Motion for Rehearing.

After careful consideration of appellee’s motion for a rehearing, we have found no sufficient reason for changing the views expressed in our former opinion. We concede that our decision is in conflict with the decision of another Court of Civil Appeals in Railway Co. v. Kern, 100 S. W. 971, and we trust that the fact of sijch conflict will be held to confer jurisdiction upon the Supreme Court, where the question of law, upon which we hold that the case should be reversed, can be finally settled.

As to the true principle upon which the rule rests which excludes statements made while attempting to effect a compromise, and as to when that rule should be enforced, we concede that much contrariety of decision exists. Professor Wigmore, in his recent and valuable treatise on Evidence, says that the true reason for excluding an offer of compromise is that it does not ordinarily proceed from or imply a belief that a particular fact exists, but rather a belief that the further prosecution of the claim would in any event cause such annoyance as is preferably avoided by making a concession; and we quote as follows from that author: “By this theory the offer is excluded because, as a matter of interpretation and inference, it does not signify an admission at all. There is no concession of claim to be found in it, expressly or by implication. It would follow, then, conversely, that if a plain concession is in fact made, it is receivable, even though it forms part of an offer to compromise; and this much has long been well understood.” 2 Wigmore on Evid. § 1061.

A later, and equally valuable, treatise on the same subject uses this language: “The peace offer may have been made by a plaintiff who agrees to accept a payment of money or other act in discharge of his claim, not as constituting a measure of his true demand, but as a concession made as an inducement for the purpose of obtaining an adjustment. If such an offer should not be accepted by the alleged debtor, the fact of his concession on account of a consideration which has failed should not prevent the plaintiff, if forced, after all, to resort to legal proceedings, or to continue them, if already begun, from recovering on his entire claim with the same effect as if his suggestion in the interest of harmony had not been made. In other words, the party who declares that he is willing to accept a given equivalent for his claim is entitled to insist, if his offer be refused, that he shall not be prejudiced by having made it. Nor should he be permitted to suffer from having intimated a willingness to consider a peace offer if his adversary should see fit to make one. That the plaintiff should thus avoid the effect of his statement, it must affirmatively appear that a bona fide desire existed on his part to adjust a disputed claim in this way rather than to formulate a demand which was then^really relied upon by him as the limits of his just rights. Where the statement is made not for the purpose' of compromise, in the sense of buying immediate peace, but for attaining a different, though somewhat similar, object (e. g., to procure an arbitration), the statement is available as an admission. The typical peace offer is perhaps more frequently made by the debtor than by the creditor, by the defendant than by the plaintiff. Whichever party may make it, the rule of procedure is the same. Such an offer, or, in case something is actually claimed or conceded on account of its truth, so much of the offer as is made by tbe party, not because be believes it to be true and just, but because be hopes to avoid, by making it, tbe annoyance and expense of litigation, will be denied all evi-dentiary force as an admission. Tbe circumstances attending the making of such offer will not be permitted in any way to operate to bis prejudice.” 2 Obamberlayne on Evid. §§ 1445, 1446, 1447.

In tbe case at bar tbe plaintiff stated in tbe letter, which we held was admissible against him, that be alleged bis damages to be the sum of $500, which be offered to accept as a compromise. As stated in our former opinion, when the letter is put in evidence, tbe plaintiff will have tbe right to give testimony explaining to tbe jury why be fixed that sum as tbe total amount of bis damages; but tbe appellant will have tbe right to contend that it constituted a statement that he was only entitled to $500 as compensation for the injury which be bad sustained. We do not bold that tbe jury would be compelled to accept that sum as tbe total amount which tbe plaintiff is entitled to recover, if tbe defendant is held liable; but we adhere to our bolding that appellant has the right to have tbe jury consider tbe statement referred to in determining bow much the plaintiff is entitled to recover.

As shown by other sections in tbe textbooks referred to, tbe modern tendency is to depart from tbe strictness with which some courts have enforced tbe rule excluding such testimony, and to admit in evidence many statements formerly held to be inadmissible; and one of tbe authors referred to says: “As a matter of logic no reasonable question can exist as to tbe right of any litigant to seek to establish such a fact. If the claim of tbe party in question that be did not mean what be has said or intend tbe implications of what be has done is obviously a circumstance proper for tbe consideration of the jury, it may fairly be regarded as an in-firmative consideration affecting tbe weight of tbe evidence, viewed in its assertive capacity. Whenever it occurs that one of two equally legitimate inferences may rationally be drawn from tbe doing by a person of a given act, or tbe making of a particular statement, it is, in point of reason, proper to submit to tbe jury, under appropriate instructions, tbe question as to which is tbe proper conclusion for tbe mind to reach. Where tbe jury, as reasonable men, might find that a given statement now said by tbe declarant to have been made by way of compromise, was, in reality, an admission, an entire exclusion of tbe evidence is often far too severe an administrative expedient to be employed by a court of justice for tbe protection of a rule of public policy, however salutary. Tbe peculiarity of tbe procedural rule in question, therefore, is this: It absolves tbe declarant from any obligation to explain that he made bis concession of liability for tbe sake of buying peace, leaving to tbe jury to determine bow far such is tbe fact. Tbe rule refuses to recognize any logical or reasonable possibility that any other motive could have influenced the litigant’s conduct if tbe hope of buying peace might have done so.” 2 Obamberlayne Evid. § 1449.

Motion overruled.