author: HARPER, C. J.

text:
    ÆTNA CLUB v. JACKSON.
    (No. 645.)
    (Court of Civil Appeals of Texas. El Paso.
    June 29, 1916.)
    1. Mandamus <&wkey;l — Purpose.
    The purpose» of mandamus is to require some inferior court or officer, etc., to do some particular thing specified in the writ which appertains to their office or duty, in aid of the jurisdiction of the court issuing the writ.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 1-3; Dec. Dig. &wkey;l; Action, Cent. Dig. § 115.]
    2. Appeal and Eeeoe &wkey;>458(3) — Supersede-as — Injunction. „ „„„„
    „ „„„„ Under Rev. St. 1911, arts. 2078, 2084, 2097-2101, providing for appeal to the Court of Civil Appeals from every final judgment of the district court in civil cases, stating how appeal may be perfected, and providing for appeal bonds or affidavits and supersedeas bonds,_ a prohibitory injunction may be suspended during appeal by supersedeas bond.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2223; Doc. Dig. <&wkey;458(3); Injunction, Cent. Dig. § 413.]
    3. Mandamus &wkey;>35 — Judicial Acts — Fixing Supersedeas Bond.
    Under such statutes, it is the duty of the trial court to fix the amount of such supersede-as bond, and it may be enforced by mandamus.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. § 67; Dee. Dig. <&wkey;35J
    Original application for mandamus by the ¿Etna Club against Dan M. Jackson.
    Application granted.
    Weeks & Owen, of El Paso, for relator. P. H. Marcum and C. W. Croom, both of El Paso, for respondent.
   HARPER, C. J.

This is an original application for writ of mandamus to require the trial judge to fix the amount of bond necessary to supersede the final judgment granting an injunction restraining appellant from operating its club under substantially the following allegations: Upon April 25, 1916, respondent, as judge of the Thirty-Fourth district, issued a temporary restraining order, enjoining defendant from dispensing liquor, and from keeping liquor upon its premises for sale, until May 1,1916, at which time the court heard the cause upon its merits, and upon the verdict of a jury rendered judgment, perpetuating said temporary injunction, and made the same final. A motion for new trial was overruled, .whereupon the ¿Etna Club filed motion, praying that the court enter an order fixing the amount of supersedeas bond necessary to suspend the execution of the said judgment, pending appeal; that the said Jackson, judge of the Thirty-Fourth district, in open court refused to fix any amount of bond, and refused to enter any order permitting defendant to supersede the said judgment and though the defendant offered to file any bond required. The respondent answered by exceptions to the sufficiency of the petition, and specially pleaded that relator was found guilts by a jury of selling liquor without license, that upon the verdict of the jury, the temporary order .was perpetuated, and that in the exercise of his judicial discretion, he refused to fix bond prayed for.

The purpose of this writ is to require some inferior court or officer, etc., to do some particular thing therein specified, and which appertains to their office or duty, in aid of this court’s jurisdiction. Article 2078, Revised Civil Statutes 1911, provides that:

“An appeal may be taken to the Court of Civil Appeals from every final judgment of the district court in civil cases.”

Article 2084 provides how an appeal may be perfected. Article 2097, Revised Statutes, reads:

“The appellant or plaintiff in error, as the case may be, shall execute a bond, with two or more good and sufficient sureties, to be approved by the clerk, payable to the appellee or defendant in ei-ror, in a sum at least double the probable amount of the costs of the suit in the Court of Civil Appeals, Supreme Court and the court below, to be fixed by the clerk, conditioned that such appellant or plaintiff in error shall prosecute his appeal or writ of error with effect, and shall pay all costs which have accrued in the court below, and which may accrue in the Court of Civil Appeals and the Supreme Court.”

Article 2098, Revised Statutes, reads:

“Where the appellant or plaintiff in error is unable to pay the costs of appeal, or give security therefor, he shall nevertheless be entitled to prosecute his_ appeal; but, in order to do so, he shall be required to make strict proof of his inability to pay the costs, or any part thereof. Such proof shall be made before the epunty judge of the county where such party resides, or before the court trying the case, and shall consist of the affidavit of said party, stating his inability to pay the costs; which affidavit may be contested by any officer of the court or party to the suit, whereupon it shall be the duty of the court trying the case, if in session, or the county judge of the county in which the suit is pending, to hear evidence and to determine the right of the party, under this article, to his appeal.”

Article 2099, Revised Statutes, reads:

“When the bond, or affidavit in lieu thereof, provided for in the two preceding articles, has been filed and the previous requirements of this chapter have been complied with, the appeal or writ of error, 'as the case may be, shall be held to be perfected.”

Article 2100, Revised Statutes, reads:

“The bond, or affidavit in lieu thereof, provided for in the three preceding articles, shall not have the effect to suspend the judgment, but execution shall issue thereon as if no such appeal or writ of error had been taken.”

And article 2101, Revised Statutes, reads:

“Should the appellant or plaintiff in error, as the case may be, desire to suspend the execution of the judgment, he may do so by giving, instead of the bond or affidavit in lieu thereof mentioned in the four preceding articles, or in addition to such bond, a bond -with two or more good and sufficient sureties, to be approved by the clerk, payable to the appellee or defendant in error, in a sum at least double tlie amount of the judgment, interest and costs, conditioned that such appellant or plaintiff in error shall prosecute his appeal or writ of error with effect; and in case the judgment of the Supreme Court or tlie Court of Civil Appeals shall be against him, ho shall perform its judgment, sentence or decree, and pay all such damages as said court may award against him.”

Whilst the latter statute is denominated “supersedeas bond,” it is in fact the kind of appeal bond to be executed when the appellant desires to suspend the enforcement of a judgment rendered against Mm. That it is simply an appeal bond is apparent from the first lines:

“Should the appellant or plaintiff in error, as the case may be, desire to suspend the execution of tlie judgment, he may do so by giving instead of the bond or affidavit mentioned in the four preceding articles, etc., * * * a bond,” etc.

When given, it entitles appellant to his appeal or writ of error, and also suspends the enforcement of the judgment.

It will be noted that the first quoted statute provides for an appeal from all final judgments, and that the latter provides for suspending the enforcement of all final judgments. Respondent urges that the latter statute does not apply to prohibitory injunctions, and that it .was a matter within the discretion of the trial court to allow or refuse to pjermit the suspension of the judgment pending appeal. Cases outside of Texas support this contention of the respondent, but we have found none in Texas which support it. But, on the other hand, the Legislature of this state has provided a way for an appeal “from all final judgments in civil cases,” and when appellant or plaintiff in error complies with the statutes, the trial court has no say, discretionary or otherwise. The Supreme Court in Waters-Pierce Oil Co. v. State, 106 S. W. p. 330 (several cases cited therein), in passing upon the latter statute quoted above, said:

“This is plain language that cannot be construed, because its meaning is as definite as could be expressed, to the effect that, when the appellant or plaintiff in error complies with the law, the judgment cannot be enforced during the pendency of the appeal.”

The latter statute quoted provides for the amount of the bond in cases of moneyed judgment, and the next statute provides for the amount of bonds in cases of judgments for lands, but does not provide an amount in any other case, so we come now to the real question and object of the application, Plow is the amount of the bond to bo determined? Unless it is the duty of the trial court to fix it, clearly, the writ prayed for .will not issue. Where there is a right there must be a remedy. We having concluded that the statutes give the right to appeal from and the right to supersede all final judgments in civil cases by a compliance with the law, we must look for a way for appellants to comply with the law. The appellate courts of this state have declared in many cases that where the statute prescribes no bond, then it is proper and necessary for the court to fix the bond. Hill v. Halliburton, 32 Tex. Civ. App. 22, 73 S. W. 21. See note 22 L. R. A. (N. S.) 1909, p. 316. The principle of judicial discretion does not apply in this sort of case. It was therefore the duty of respondent to fix the amount of the bond to be given upon appeal, and it is the duty of the clerk to approve same as to the sufficiency of the sureties and then to file it, and the court has no authority to order or direct the clerk to do otherwise.

For the reason given, the application is granted, and the clerk of this court is directed to issue the writ of mandamus, requiring respondent, Dan M. Jackson, Judge of the Thirty-Fourth District Court of Texas, to fix the amount of the bond for appeal and stay of judgment as prayed for.

Justice Walthall is of the opinion that this court is without jurisdiction to hear and determine the matters presented in this application for mandamus, no character of appeal bond having been filed with the clerk of the district.court or tendered for filing.
      <&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

license: Public Domain

text:
    WIGWAM BOWLING & ATHLETIC CLUB v. ESCAJEDA et al.
    (No. 651.)
    (Court of Civil Appeals of Texas. El Paso.
    June 29, 1916.)
    Mandamus &wkey;154(7) — Application — Demand and Refusal.
    On application for mandamus to require a clerk of court to approve and file a supersedeas bond, where the application does not show the clerk refused to perform his duty, the writ will not issue against Mm.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. § 308; Dec. Dig. <&wkey;154(7)J
    Original application for mandamus by the Wigwam Bowling & Athletic Club against J. A. Escajeda and another.
    Application granted in part, and denied in part.
    W. D. Howe, of El Paso, for relator. P. H. Marcum, of El Paso, for respondents.
   HARPER, C. J.

This' is an original application for writ of mandamus to require the trial judge of the Thirty-Fourth district to fix the amount of the bond upon appeal necessary to supersede the final judgment granting an injunction, and to require the clerk of the court to approve and file the same.

As to the district judge, this application is the same as to allegations as cause No. 045, Ætna Club v. Jackson, 187 S. W. 971, this day handed down, and this application is granted for the reasons given in said cause.

As to the clerk, the application does not show that he has refused to perform his duty, so the writ will not issue against Mm.
      <g^>Por other cases see same topic and KEY -NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    SOUTHWESTERN OIL & GAS CO. v. DENNY.
    (No. 8421.)
    (Court of Civil Appeals of Texas. Ft. Worth
    June 24, 1916.)
    Appeal and Error <&wkey;773(2) — Briees—Fail-ure to File — Dismissal.
    Under rules 42 and 43 (142 S. W. xiv), providing that, if appellant has failed to prepare his ease for submission, appellee may, before the call of the case, file in the appellate court a brief on which tlio court may affirm the judgment, upon failure of appellant to file brief and of appellee to file brief before submission of case, an appeal will be dismissed for want of prosecution.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108; Dec. Dig. 773(2).]
    Appeal from District Court, Montague County; C. F. Spencer, Judge.
    Action by Charles Donny against the Southwestern Oil & Gas Company. From a judgment for plaintiff, defendant appeals.
    Appeal dismissed.
    W. ,S. Jameson, of Montague, for appellant. J. H. Harper, of Waurika, Old., and H. C. Goodloe, of Ryan, OM., for appellee.
   BUCK, J.

In this cause the appellant has filed no brief. On the day of, but subsequent to, the submission of the case, appel-lee filed his brief and motion, consisting only of a statement of the nature and result of the action, and calling our attention to the failure of the appellant to file briefs, and praying for an affirmance with 10 per cent, damages.

Rules 42 and 43 (142 S. W. xiv), for the government of Courts of Civil Appeals, provide, in effect, that if appellant has failed to prepare his case for submission, the ap-pellee may, before the call of the case (italics ours) file in the appellate court a brief in the manner and form therein prescribed, and thereupon the court may, in its discretion, regard the statement by appellee as a correct presentation of the case and affirm the judgment. But, the appellee having failed to comply with the provisions of the rules as to the time of filing his brief, we are of the opinion that we cannot consider it as a sufficient invocation of our authority to affirm, either with or without damages. We think, under the circumstances, the proper disposition of the case is to dismiss the appeal for want of prosecution, and it is so ordered. Suderman-Dolson Company v. Carson et al., 122 S. W. 401.

Moreover, it may be noted with propriety that a motion to affirm with damages requires of an appellate court a careful examination of the record in order to determine whether or not the appeal was apparently for delay only. In the instant case, by reference to the record it appears that there were raised in appellant’s motion for new trial, and preserved in bills of exceptions, some questions which would be rather serious if properly presented and here urged, or if we were required to consider them by virtue of appellee’s motion to affirm with damages. But we do not think we are required to give such questions consideration, as presenting fundamental error, and have concluded that the dismissal of the appeal is the proper order.

Appeal dismissed.


author: DUNKLIN, J.

text:
    HOPE et al. v. SHIRLEY.
    (No. 8438.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    July 1, 1916.)
    1. Fraud <&wkey;47 — Action eor Damages — Pleading — Damages.
    A petition in an action for damages for fraud and deceit alleging that plaintiff employed a broker to sell land for $35 an acre and agreed to pay 5 per cent, of the amount to be realized on a sale at that price; that the broker negotiated with defendant regarding a sale of the land at such price; that defendant? then knew of the broker’s employment and the price at which the land had been listed for sale and the commission to be paid, and conspired with his codefendants to defraud the broker of his commission and buy the land for a price less than the listed price, and offered plaintiff $32.50 per aere net, which offer plaintiff accepted, and that the land was sold at that price; that plaintiff at the execution of his deed had no knowledge that the broker was the proouring cause of the sale and was compelled to pay the broker’s commission, and that but for defendant’s representations he would have demanded $35 per acre in order to pay the commission, but not alleging that defendants, in addition to the price, would pay any money which plaintiff might be liable to pay the broker, or that defendants would have purchased the land for $35 per acre, or that the price was less than its full market value, did not show that plaintiff sustained any damage from the defendants’ acts, and hence stated no cause of action.
    [Ed. Note. — For other cases, see Fraud, Gent. Dig. § 42; Dec. Dig. <&wkey;47.]
    2. Fraud <&wkey;25 — Damage as Element — Necessity.
    No action for fraud arises unless damage results therefrom.
    [Ed. Note. — For other cases, see Fraud, Gent. Dig. § 24; Dec. Dig. <i&wkey;25.]
    Appeal from Wichita County Court; Har-vy Harris, Judge.
    Action by B. F. Shirley against Alex W. Hope and others. Judgment for plaintiff, and defendants appeal.
    Reversed, and cause remanded for another trial.
    W. Lindsay Bibb, of Wichita Falls, for appellants. T. R. Boone, of Wichita Falls, for appellee.
   DUNKLIN, J.

Alex W. Hope, Joseph Long, and Charlie Word, defendants in the trial court, have prosecuted this appeal from a judgment rendered against them in favor of B. F. Shirley, plaintiff, for $261.50. On a former day of the present term of court all their assignments of error were, on motion of appellee, stricken out, except such as ehal-lenge the sufficiency of plaintiff’s petition to support tlie judgment.

In his petition, plaintiff alleged tliat lie employed J. L. Jackson, a real estate broker, to sell a tract of 136 acres of land for $35 per acre, agreeing to pay tide broker for such services 5 per cent, of tlie amount to be realized by a sale at that price, wliich commission was the customary commission for such services and was reasonable.

According to further allegations, Jackson then began negotiations with defendant Hope, looking to a sale of the lana to Mm for $35 per acre, Hope knowing, at the time, of Jackson’s employment and the price at which the property had been listed with him for sale and the amount of commissions which plaintiff had agreed to pay Jackson for negotiating a sale, and knowing further that 6 per cent, was a reasonable commission to the broker for negotiating such a sale. Thereafter, defendants Hope, Long, and Word conspired together for the purpose of defrauding the broker of Ms commissions on said sale, and for the purpose of buying the land for a price less than that at which it had been listed with the broker, and in pursuance of such conspiracy offered plaintiff the “sum of $32.50 per acre net” for the land, which offer was made in the name of defendant Chárlie Word for the sole use and benefit of Hope, and was accepted by plaintiff, and tlie land was sold at that pric-e.

According to further allegations in the petition, the efforts of the broker to sell the land to Hope were the procuring cause of the sale, but, at the time oi the consummation of the sale by the execution of the deed, plaintiff had no knowledge or notice of that fact. The deed so made was to Charlie Word who took title in his name, but in fact for the sole use and benefit of Hope, who paid the purchase price and for whom he acted as agent in the transaction; and defendant Joseph Long also as the agent of Hope aided and assisted in the purchase so made, wliich facts were likewise unknown to plaintiff at that time.

Eollowing are additional allegations M the petition:

“Plaintiff further alleges that he has been forced and compelled to pay to his agent, J. L. Jackson, of Wichita Falls, Tex., the sum of $221, together with $40.50 court costs.
“Plaintiff further alleges, but for the acts and representations on the part of these defendants, he would not have sold his land for $32.50, but would have requested of this defendant, Alex W. Hope, to pay him the sum of $35 per acre in order to pay the commission of his agent, J. L. Jackson.
“Plaintiff further alleges that all of these facts concerning the agency of J. L. Jackson and concerning the reasonable value of the services for the agent J. L. Jackson were, at the time of said deed, known to these defendants.
“Plaintiff further alleges that these defendants by virtue of the above facts are justly entitled to pay to tMs plaintiff the sum of $261.50.”

It thus appears that the suit was an action for damages for fraud and deceit. While it is alleged that the price offered and accepted was “$32.50 per acre net,” there are no allegations of any character that thereby it was understood and agreed that either of the defendants would pay to the plaintiff, in addition to the price of $32.50 per acre, any sum of money that he might be required to pay to Jackson by reason of said sale, and that defendants thereby became liable to plaintiff upon such a contract, either expressed or implied. The fact that Long was made a party defendant and a judgment sought against him and also against Word, as well as against Hope, the real purchaser of the property, by reason of an alleged fraudulent conspiracy of those two defendants with Hope, precludes any idea that the suit was predicated upon any other theory than that of fraud and deceit. Appellee has cited the cases of Mitchell v. Zimmerman, 4 Tex. 79, 51 Am. Dec. 717, and Texas El. & Com. Co. v. Mitchell, 7 Tex. Civ. App. 222, 28 S. W. 45, which announce—

“as a general rule, each party is bound, in every case, to communicate to the other his knowledge of the material facts, provided he knows the other to be ignorant of them, and they be not open and naked, or equally within the reach of his observation.”

Appellee insists that that rule is applicable to the facts of this case as alleged, and under its operation the defendants owed the plaintiff the duty to disclose the fact that Jackson had already negotiated with Hope to sell Mm the land, and that his efforts already made would be the procuring cause of the sale in the event the offer of $32.50 made by Hope, through Word, should be accepted by the plaintiff.

The petition contains no allegation that Hope would have purchased the land for $35 per acre if plaintiff had not agreed to accept rue offer of $32.50, nor any allegation that the prico for which the property was sold was less than its full market value, nor any allegation whatever relative to such market value. In the absence of such allegations, it does not appear that plaintiff sustained any damages by reason- of the alleged fraud and deceit on the part of the defendants, and hence it is unnecessary for us to determine whether or not Hope owed any legal duty to the plaintiff to make such a disclosure prior to Ms purchase; for it is well settled by the authorities that, even if a fraud be practiced, no cause of action arises unless some damages, which are legally recoverable as a result thereof, are alleged and shown. In 12 R. C. L. bottom p. 239, § 10, the following is said:

“The ground of the action of deceit is fraud and damage, and when both concur the action will lie. Moreover, both must concur to constitute actionable fraud; a common statement of the rule being that neither fraud without damage, nor damage without fraud, is sufficient to support an action.”

For the reasons noted, we are of the opinion that the plaintiff’s petition was insufficient to support the judgment rendered, and accordingly the judgment is reversed, and the cause remanded for another trial.
      <g=3S'or other cases see same topic and KE ST-NUMBER in all Key-Numbered Digests and Indexes


author: MIDDLEBROOK, J.

text:
    GULF COAST TRANSP. CO. v. DILLARD.
    (No. 23.)
    (Court of Civil Appeals of Texas. Beaumont.
    April 6, 1916.
    Rehearing Denied July 3, 1916.)
    Courts <&wkey;170 — Jurisdiction — County Court — Amount Claimed — Interest.
    While interest prayed for in a suit for damages is a part of the cause of action and included in determining the amount in controversy, where the county court properly acquired jurisdiction by the filing of the original petition in which the damages prayed for including interest was less than $1,000, the maximum jurisdiction of the court, it retained jurisdiction over an amended petition on remand of the case, although the amended petition asked for an amount, including interest, in excess of $1,-000, because it is the same causo of action originally filed.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 427; Dee. Dig. <&wkey;170.]
    Appeal from Liberty County Court.
    Suit by G. S. Dillard against the Gulf Coast Transportation Company. Judgment for piaintiff, and defendant appeals.
    Affirmed.
    A. W. Marshall, of Anahuac, for appellant. E. B. Pickett, Jr., of Liberty, for appellee.
   MIDDLEBROOK, J.

This is a suit filed in the county court of Liberty county June 7, 1912, plaintiff alleging in his petition that he was damaged in the sum of $313.07, with interest thereon from January 1, 1911, at 6 per cent, for damages to a shipment of rice which he delivered to appellant, a common carrier, about November 14, 1910, to be transported from Mont Belvieu to Houston, Tex.; alleging that, had the rice been properly and safely transported to Houston, its value would have been $2.75 per barrel, there being 608 barrels of rice in the shipment, worth $1,662, but that by reason of appellant’s negligence, the rice was damaged in transit, so that when it reached Houston, on or about December 20, 1910, it was worth only $1,-358.93 on the market, the damages alleged being the difference in the market value of the rice at the time it was delivered to the railroad company and the time it was delivered by the railroad company in Houston. The case was tried upon those pleadings, and judgment was rendered for the iilain-tiff in the sum prayed for. The defendant appealed from that judgment, and the cause was reversed and remanded. See 163 S. W. 635.

When the case came on to be tried a second time in the trial court, plaintiff, appel-lee herein, on the 19th day of October, 1914, filed his first amended original petition, which contained the same allegations that were contained' in the original petition with reference to the shipment of the 608 barrels of rice, and with reference to their being damaged by appellant in transit, hut alleged the market value of the rice to be $2.86 per barrel, and of a total value of $1,738.88, and that when the rice reached Houston, the market value thereof was not more than $1.50 per barrel, or the sum of $912, being $826.88 less than its market value at the time it was delivered to appellant, and in this supplemental petition, plaintiff prayed for $828.88 damages, with interest thereon from January 1, 1911, at 6 per cent, per an-num. The appellant answered the'amended petition by general demurrer and general denial. The case was tried on January 11, 1915, before the court, without the aid of a jury, and judgment was rendered in favor of the appellee for the sum of $379.95, with interest thereon from January 1, 1911, at 6 per cent, per annum, the total judgment being for the sum of $471.75.

The undisputed facts show that appellee received the sum of $1,358.93 for the rice in its damaged condition from the milling company. It shows also that $2.86 per barrel was the correct value of the,irice in good condition, as received by the railroad company, and that the 608 'barrels of rice were worth $1,738.88, and the judgment of the trial court is the difference 'between $1,738.-88, original market value of the rice, and $1,-358.95, the amount received by appellee for the rice in its damaged condition, to wit $379.95, with 6 per cent, per annum interest thereon from the 1st day of January, 1911, making the sum of the judgment $471.75.

The appellant assigns only one error in his brief, which is:

“The county court should have granted a new trial herein for the reason that the court had no jurisdiction to hear and determine this cause.”

His proposition of law under this assignment is as follows:

“The pleadings of the plaintiff must be looked to, to determine the jurisdiction of the court. The maximum jurisdiction of the court is $1,-000. In a damage suit, or any case except where by contract interest is provided fori if interest is recoverable at all, it is recoverable as a part of the damage itself, and is included in the amount determining the amount in controversy, and when plaintiff asked for judgment by pleading filed October 19, 1914, for the sum of $S26.8S, with 6 per cent, interest thereon from January 1, 1911, it amounting, at the time of the filing of the amended petition to the sum of $1,015.45, he was asking for judgment beyond the jurisdiction of the county court.”

Appellant’s assigned error is well taken, if the facts and proceedings in the trial court will sustain the assignment, and his proposition of law, as quoted above, is a correct and terse statement of the law governing petitions originally filed, in which the amount sought as damages, together with 6 per cent, per annum interest from any date prior to tlie filing of the suit, would make an amount, at tlie time of the filing of the suit, in a sum greater than the jurisdiction of the county court, to wit $1,000.

.In none of the cases cited by appellant, nor, so far as we have been able to find, is it held by our appellate courts, nor the Supreme Court, that accrual of interest in a cause of action, while the case is pending in the courts, will defeat the jurisdiction of tlie trial court; on the other hand, the rule is well established that if the trial court had jurisdiction at the time of the filing of the suit, for the amount prayed for in the petition, with legal interest added thereto up to the time of the filing- of the petition, and a judgment is rendered for an amount within the jurisdiction of the trial court, that the trial court had jurisdiction of the cause of action. On the day this suit was filed, June 7, 1912, the amount sued for in the amended petition, $826.88, with interest from January 1, 1911, at 6 per cent., to June 7, 1912, would have amounted to the sum of $898.15. Our courts have always held that interest prayed for in a suit for damages, although pleaded in verbage and terms as interest, is in fact a part of the cause of action, and the interest pleaded in the instant case, as stated by appellant, is a part of the cause of action; but '.the 0 per cent, added to the original amount pleaded at the time of the filing of the petition, as has already been shown, does not increase the original amount prayed for to a sum greater than the jurisdiction of the county court. We think, therefore, the trial court did not err in overruling appellant’s general demurrer, and in refusing a new trial on the grounds set out in appellant’s assigned error. S. A. & A. P. Ry. Co. v. Barnett, 27 Tex. Civ. App. 498, 66 S. W. 474; Rotan Grocer Co. v. M., K. & T. Ry. Co., 142 S. W. 623; St. L. S. W. Ry. Co. v. Dolan, 84 S. W. 393; Gulf, W. T. & P. Ry. Co. v. Fromme, 98 Tex. 459, 84 S. W. 1054.

The doctrine announced above, and in the authorities cited, is not vitiated on account of an amended petition filed during the pendeucy of the suit. The county court having acquired jurisdiction by the filing of the original petition, it retained jurisdiction over the amended petition, which was filed October 19, 1914, because it is the same cause of action originally filed, the pleadings so determined it, and the cause of action that was reversed by the Court of Civil Appeals here-inbefore cited. Ft. Worth & D. Ry. Co. v. Underwood, 100 Tex. 284, 99 S. W. 92, 123 Am. St. Rep. 806; Tolbert v. McBride, 75 Tex. 95, 12 S. W. 752. See, also, authorities cited in these cases. It would necessarily follow that after a court has once acquired jurisdiction, it must retain such jurisdiction, and render the judgment that is proper and just under the facts and pleadings of the case. Ablowich v. Greenville Nat. Bk., 95 Tex. 429, 67 S. W. 79, 881; Nashville, C. & St. L. Ry. Co. v. Grayson Co. Nat. Bk., 100 Tex. 17, 93 S. W. 431.

Appellee cites a number of other authorities in his brief, but for all issues presented to us for consideration, we think what we have said, and the authorities cited, make a full and complete disposition of the case, as it is presented before us.

No error appearing, the case should be affirmed ; and it is so ordered.
      ig^jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MiDDDEBROOK, J.

text:
    ROBERTS et al. v. McKINNEY.
    (No. 115.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 11, 1916.
    Rehearing Denied July 3, 1916.)
    Mines and Minehals <&wkey;97 — Paetnehship— Sharing Pboeits and Losses.
    Persons contributing labor, material, and cash to driving an oil well under agreement to incorporate and issue stock in proportion to their contributions, if the well comes in, otherwise each to lose what he puts in, are partners.
    [Ed. Note. — Eor other cases, see Mines and Minerals, Cent. Dig. § 222; Dec. Dig. <&wkey;>97.]
    Appeal from Jefferson County Court; D. P. Wheat, Judge.
    Action by Prank H. McKinney against I. D. Roberts and others. Prom a judgment for plaintiff, defendants appeal.
    Affirmed.
    W. .W. Cruse, of Beaumont, for appellants. David E. O’Eieí, of Beaumont, for appellee.
   MiDDDEBROOK, J.

This is a suit originally filed in justice court, precinct No. 1, Jefferson county, Tex., by Prank H. McKinney against B. F. Bowles, I. D. Roberts, J. Long, and Ed Wintz for the sum of $102 for 34 days work at $3 per day, the plaintiff alleging the defendants to be a partnership. The trial in the justice court resulted in a judgment for the amount sued for in favor of the plaintiff, and in due time appeal was taken to the county court, and upon a trial in that court the same judgment was secured, and the case is now properly before this court upon appeal.

Briefly stated, the facts pertinent to the assignments in this appeal are that B. F. Bowles, one of the defendants, about September or October, 1911, secured a lease from John W. Henderson and others for about one acre of land on Spindletop and was going to bore for oil. 1-Ie was not able to put down the well himself, and went to some of his friends and explained to them about the lease which he had, and told them he was sure of mailing a paying well, but that he would need some money to pay for oil and other small matters in the way of expenses which came up; that he had lumber for a derrick and machinery and labor already paid for, that is, they were to take stock in the well for their labor and material when the well was finished, and came in, at which time they were to incorporate a company with the well and the lease as the capital .stock, and issue stock to every one that was entitled to same, in proportion to the money, labor, etc., furnished. I. D. Roberts put $300 into the undertaking with the understanding that, when the well was brought in, it would be incorporated, and he was to have stock in proportion to the amount of money he furnished. Mr. Wentz, put in $200, and Mr. Long put in $100, and they each worked on the well while it was being bored, and it was agreed among the parties that if they got a well they would form a company and issue stock, and that if they did not get a paying well that each would lose the money and labor he put into the undertaking. They never did incorporate, because the well was worthless, terminating hi a salt water well. Mr. Roberts, while the work was in progress, bought some pipe and sent it out to the well, and it seems from the statement of facts that he loaned the pipe, and was to get the pipe back, and he was not to have any stock issued for the pipe loaned, but the pipe was left in the well. During the progress of the 'work, Bowles called on Mr. Roberts to pay for a fishing tool, which cost $28, and he paid for it. He also bought fuel oil and paid for it, and the testimony of all of the witnesses agrees that they -were taking a chance when they put in their money of losing it if no paying well was brought in, and if a paying well was brought in that each would share in the property in proportion to the amount of money or its equivalent put into the undertaking by each of them. There was some testimony to the effect that McKinney was to take stock for his work, but he disputed that, and said that Bowles tried to pay him off in stock at about the time the proposition was shown to be a failure, but he declined to take it. The judgment of the trial court disposes of this issue, and it is not necessary to notice it here, nor is there any assignment of error raising it. -The labor, for which suit was brought by McKinney, was performed by Ms minor son.

The first assignment of error is as follows:

“The court erred in finding that B. E. Bowles, I. D. Roberts, J. Long, and E. Wentz were partners at and during the time plaintiff’s son performed the labor for which this suit is maintained, because the evidence before said court fails to establish by a preponderance of the evidence that such parties were partners.”

The proposition following it is:

“The judgment in this case is not supported by a preponderance of the evidence, proving the partnership and employment of plaintiff’s son.”

The second assignment of error is:

“The court erred in rendering judgment against I. D. Roberts, J. Long, and E. Wentz as partners, because in law the facts proved upon the trial of this cause are insufficient in law to make them partners of B. F. Bowles, and that such judgment is contrary to and against the law.”

The third assignment of error is:

“The court erred in not rendering judgment for the defendants (appellants) upon a special plea of defense, because the great preponderance of evidence, undisputed, showed that the defendants advanced to B. F. Bowles money and labor on the well, which was being drilled on Spindletop, with the distinct agreement and understanding between them that if an oil well was made on said lease, producing oil, at the time of the bringing in of such well a company would be organized, or incorporated, with said lease and well as the capital stock, and each of these defendants, with other parties interested, would be issued stock in said company, in proportion as the amount of money and labor advanced by each, and if said well failed they would get nothing for their money and labor, and that said well did fail.”

The proposition of law presented under this assignment is:

“A mere understanding or agreement between two or more persons, even though money is advanced, that they will at a future time organize or incorporate, will not of itself create a partnership.”

It is clear that a disposition of either of these assignments contrary to the view of appellants will be a substantial disposition of all three of the assignments. In short, the only thing presented to this court for determination is: Do the facts presented make the parties defendant a partnership? If they do, the case should be affirmed. If they do not, the case should be reversed.

The undisputed facts show that Bowles was undertaking to put down a well, using his skill at such business, and that the other defendants, some of them were furnishing money and material, and some of them furnishing part money and part labor on the well, and that they had a common interest in the outcome of the undertaking; i. e., that if they brought in a successful well they would share in the stock to be issued by a company to be incorporated when the well was finished, in proportion to the amount of money, material,' and labor furnished by them, and, if no paying well was brought in, then each would lose what he had put into the undertaking. In Kelley Island Lime & Transportation Co. v. Masterson, 100 Tex. 38, 93 S. W. 430, Justice Brown, speaking for the Supreme Court, tersely lays down the rule determining partnerships under such conditions in this language:

“ ‘If one person advances funds, and another furnishes his personal services and skill in carrying on the business and is to share in the profits, it amounts to a partnership. It would be a valid partnership, notwithstanding the whole capital was in the first instance advanced by one partner, if the other contributed his time and skill to the business, and although his proportion of gain and loss was to be very unequal. It is sufficient that his interest in the profits be not intended as a mere substitute for a commission, or a lien of brokerage, and that he be .received into the association as a merchant and not an agent’ ” — citing Goode v. McCartney, 10 Tex. 193; Ball v. Britton, 58 Tex. 57.

In Ms opinion in this case, Justice Brown distinguishes the case of Buzard v. Bank, 67 Tex. 83, 2 S. W. 54, 60 Am. Rep. 7.

We think, clearly, under the facts of this case and the law applicable to partnerships, as announced by our Supreme Court, tbe defendants (appellants) constituted a partnership, and, so'thinking, the judgment of the court should be sustained, and the ease is therefore affirmed.
      <§n=jFor oilier cases see same topic and KEY-NUMBBR in all Key-Numborod Digests and Indexes


author: CONLEY, C. J.

text:
    SANTA FÉ TOWN-SITE CO. et al. v. NORVELL.
    (No. 149.)
    (Court of Civil Appeals of Texas. Beaumont.
    June 1, 1916.)
    1. Highways &wkey;>155 — Enjoining Obstruction — Private Party — Right unber Judgment.
    Plaintiff, having by the judgment in a prior suit against defendant been granted an easement in a road, need not have suffered injury or inconvenience differing from that suffered by other individuals and the public generally to maintain a suit in his own name to enjoin defendant’s interference therewith.
    [Ed. Note. — For other cases, sec Highways, Cent. Dig. §§ 432-436; Dec. Dig. <&wkey;155.]
    2. Highways <&wkey; 156 — Obstruction — Persons Enjoined.
    That plaintiff in a suit against T. had judgment requiring T. to lay out a road, and giving plaintiff an easement therein, gives plaintiff no right to have S. enjoined from obstructing the road where it passes through his property; it not being shown that title thereto was acquired against him.
    [Ed. Note — For other casos, see Highways, Cent. Dig. §§ 420-422; Dec. Dig.. <&wkey;156J
    3. Injunction <&wkey;143(2) — Ex Parte Order-Petition.
    To authorize the granting of an injunction on an ox parte hearing, the petition must not only show just grounds for relief, but must expressly negative any possible hypothesis on which defendant might lawfully do the act complained of, so that, not only the acquisition by plaintiff under a judgment of rights interfered with by defendant should be alleged, but it should be alleged that they are still existing or in force, or that plaintiff has not forfeited or otherwise relinquished them.
    [Ed. Note. — For other cases, sec Injunction, Cent. Dig. § 315; Dec. Dig. &wkey;143(2).]
    4. Injunction <&wkey; 143(2) — Ex Parte Order-Changing Status — Necessity.
    Granting an ex parte mandatory injunction changing the status quo is authorized only where great- and irreparable injury might follow delay for notice and hearing, and therefore not by inconvenience in having to travel by a less direct route.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 315; Dec. Dig. &wkey;143(2).]
    Appeal from "District Court, Hardin County ; L. B. Hightower, Judge.
    Action by W. J. Norvell against the Santa Fé Town-Site Company and others. From adverse orders, the named defendant and another appeal.
    Reversed and remanded.
    Oliver J. Todd and W. G. Reeves, both of Beaumont, for appellants. V. A. Collins, of Beaumont, for appellee.
   CONLEY, C. J.

This was a suit filed on the 19th of April, 1916, in the district court of Hardin county by W. J. Norvell against the Santa Fé Town-Site Company, J. L. Sei-bert, J. G. Reeves, and Sam Littlepage, for an injunction, and upon presentation of the application therefor to the judge of said court, and without previous notice or a hearing, a temporary injunction was granted, which injunction was subsequently modified and supplemented, also without notice, and from this action of the court the defendants Santa Fé Town-Site Company and J. L. Sei-bert appealed.

The petition, in substance, contains the following allegations: That plaintiff is the owner of property in what is known as South Silsbee, or Woodrow, in Hardin county, and therefore is interested, along with other citizens owning property and residing at Woodrow, in maintaining a public highway from said Woodrow to the nearest railroad station, which is the railroad station at Sils-bee ; that plaintiff and others had secured a decree of the district court of Hardin county against the defendant Santa Fé Town-Site Company, which decree was set forth in the petition, and which required said company to lay out a road, and that said road was laid out by said company and accepted by the commissioners’ court, and that the commissioners’ court assumed charge and control of the highway, appointing overseers therefor, which acts were alleged to have had the legal effect of effectually dedicating it as a public highway, and to all intents and purposes made said road a public highway of Hardin county; that said road had been graded, except through the property of the defendants John G. Reeves and Sam Little-page, and it was alleged that they, by threats of violence, had prevented the grading of the road through their property, and that the defendant J. L. Seibert, acting for himself, or for himself and the Santa Fé Town-Site Company, in utter disregard of the rights of the plaintiff and other citizens at Woodrow, had taken possession of the road and had obstructed the same, and, although often requested by the plaintiff and other citizens to remove said obstacles, had refused to do so. The petition also contains a meager allegation that by reason of the judgment that he (plaintiff) had acquired an easement in and to said road perpetual in its nature. An injunction was prayed for restraining further obstructions and preventing interference with the road, as well as a mandatory order commanding the removal of the alleged obstructions placed in the road by the defendant J. L. Seibert.

The court made an order ex parte that upon the plaintiff filing bond in the sum of $500 that the clerk was ordered to issue process restraining the defendants from further obstructing the road, and upon motion of plaintiff said order was supplemented by a peremptory mandatory injunction entered ex parte against the Santa Fé Town-Site Company and J, L. Seibert, which is as follows:

“That the Santa Fé Town-Site Company and J. Ii. Seibert and both of them, their agents and servants, are hereby directed and commanded by the court immediately to remove from and off of said road the fences and obstructions placed thereon by them, or either of them, or their agents or servants, and to restore said road to the status and condition in which it was when they so obstructed it.”

These proceedings all being ex parte, the defendants did not appear or answer, and the appeal is based solely on plaintiff’s petition and the orders entered thereon.

Appellants’ first assignment of error attacks the orders of the trial court upon the ground that the petition showed no right to the relief granted, in this: That the suit purports to enjoin an alleged interference with and to compel the opening of an alleged public highway, and avers no fact showing any injury peculiar to the plaintiff and different from that suffered by the public generally.

While it may be conceded as a general proposition of law that a private individual suffering no injury or inconvenience differing from that suffered by other individuals and the public generally cannot maintain a suit in his own name to redress an alleged interference with a public easement, still this suit is not entirely one of that nature. From the judgment set out in the petition it would appear that the plaintiff in this cause had obtained in a prior suit in the district court of Hardin county against the .Santa Fé Town-Site Company an easement in said road, and therefore his rights are not dependent upon any special injury suffered by him or an injury other than that suffered by the public generally. » His right in and to said road is -not based upon the right of citizens generally to use public roads dedicated by the duly constituted authorities for that purpose, but finds its support in the judgment of the court theretofore rendered, giving him a personal right to the use of said road. Any breach of that right by the Santa Fé Town-Site Company would be the basis for a suit.

The first assignment of error is therefore not well taken, and it is overruled.

Under the second assignment of error appellants contend that there were no allegations warranting the relief against the defendant J. L. Seibert, because it specially appears from the petition that he is not charged as having been a party or privy to the alleged judgment, by which the alleged road is averred to have been laid out, and it is not alleged that, in so far as his property is concerned, the same was ever condemned or otherwise acquired legally, or that he was compensated therefor. And he therefore had the right to fence his own property and exclude the public, and thereby prevent his title being acquired or claimed by prescription.

An examination of the petition discloses that the plaintiff merely alleged that the defendant Santa Fé Town-Site Company was compelled by a judgment entered in 1908 to lay out a road, and that under that judgment plaintiff had acquired a perpetual easement, that it did lay out the road, and that the commissioners’ court had assumed jurisdiction over it, and the public has used it since it has been laid out by the defendant Santa Fé Town-Site Company. It expressly appears from the judgment set forth in the petition that J. L. Seibert was not a party to that judgment, nor does it appear that he acquired the land from the Santa Fé Town-Site Company with notice of the easement fixed thereon by said judgment. No authority is shown on the part of the Santa Fé Town-Site Company by which it could have laid out a road to cross the defendant Sei-bert’s property. No condemnation proceeding, purchase, or other act acquiring his property is alleged, and, if the alleged adverse use had commenced and been continuous since the 28th day of April, 1908, when the alleged judgment was entered, no prescriptive right could have been acquired before the full expiration of the ten-year statute. There is no allegation of any kind in the petition which states any reason why the defendant J. L. Seibert should have been enjoined from inclosing his property and obstructing the road in controversy. Therefore appellants’ second assignment of error is well taken, and is sustained.

In the third assignment of error the contention is made that the court erred in granting the injunction against the Santa Fé Town-Site Company because the allegations are insufficient to show the legal laying out or acquiring by the public of any valid easement as against said Santa Fé Town-Site Company, and because the allegations do not negative the fact that said road may have been abandoned by the commissioners’ court in Hardin county, and does not allege a continuation or existence of the alleged rights if plaintiff had any rights under said judgment.

As heretofore stated, we think the judgment in favor of the plaintiff rendered in 1908 had the effect of granting to the plaintiff an easement in the road, and for that reason plaintiff’s rights are not dependent upon the legal laying out or acquiring by the public of any valid easement therein. However, the law seems to be well settled under the authorities in this state that in order for courts to lawfully grant an injunction upon an ex parte hearing the allegations must not only show just grounds for relief, but must expressly negative any possible hypothesis upon which the defendants might lawfully do the act complained of. Gillis v. Rosenheimer, 64 Tex. 243; Carter v. Griffin, 32 Tex. 213; Weaver v. Emison, 153 S. W. 923; King v. Driver, 160 S. W. 415; Kell Milling Company v. Bank of Miami, 168 S. W. 46.

In the case of Gillis v. Rosenheimer, supra, the Supreme Court said:

“The petition for injunction should state all and negative all which is necessary to establish a right. The rule is coriectly stated in Harrison v. Crumb, White & Wilson Circuit Court Appeals, § 992, as follows: ‘The rule of pleading that the. statements of a party are to be taken most strongly against himself is reinforced in injunction suits by the further requirement that the, material and essential elements which entitle him to relief shall be sufficiently certain to negative every reasonable inference arising upon thq facts so stated, and from which it might bo deduced that he might not, under other supposable facts connected with this subject, thus be entitled to relief.’ ”

The rule is further illustrated in the case of King v. Driver, 160 S. W. 416. In that case the court said:

“Appellees in their petition nowhere allege that the passage was or had not boon used by them ‘in a way to injure’ appellant’s property ‘or to annoy them or their tenants.’ The rule in Texas now is established that in petitions for injunction the allegations ‘must negative every reasonable inference arising upon the facts so stated from which it might be deduced that the petitioner might not under other supposable facts connected with the subject be entitled to relief.’ Sehlinke v. De Witt County, 145 g. W. 065, and cases cited. This writ of injunction was granted without a hearing, and must bo hero determined upon the pleadings alone. The above clause in the contract, set out in the petition itself, reveals the fact from which it is easily supposable that appellees were not entitled to the extraordinary relief sought, and the trial court should have refused the writ.”

Nowhere is it alleged in the petition that the rights acquired under the judgment of 1908 are still existing and in force and effect, or that plaintiff has not forfeited or otherwise relinquished his rights thereunder. Under the authorities above referred to this was a necessary and vital allegation.

It is also contended under this assignment of error that the facts alleged in the petition of the plaintiff do not show a valid easement against the Santa FS Town-Site Company, because the district court, in rendering the judgment of 1908, was without jurisdiction to lay out a road, and the laying out of said road under' compulsion could not amount to a valid dedication or the creation of a contract, and the alleged use is insufficient to have created an easement, even as against the Santa FS Town-Site Company.

An inspection of 'the recitations in the judgment of 190S supports the inference that it was rendered on a breach of a contract existing between the Santa FS Town-Site Company and the plaintiff in this cause, and. that the court was simply adjudicating individual rights based upon said contract, and was not usurping the jurisdiction of the commissioners’ court in laying out a public highway. However, the allegations in- the pleading on this subject, being meager, and the view which we take of the case making it unnecessary to decide the question involved, we do not at this time think it necessary to consider it. However, for the reasons herein stated, the third assignment of error is well taken, and the same is sustained.

Under the fourth assignment of error, it is contended:

“That the action of the learned trial court was further erroneous in this, that the said court, without citation or notice to the defendants without their appearance or answer, and without hearing said defendants, or giving them an opportunity to be heard, pronounced, in a preliminary ex parte hearing, a judgment divesting the possession of the defendant Seibert and commanding him to remove a fence inclosing his property, without cither allegation of any right on the part of the plaintiff as against said Seibert, or any allegation showing a wrong on the part of said Seibert, and without any allegation whatsoever showing any immediate necessity or irreparable injury to said plaintiff, if action had been postponed pending a hearing, and the effect of said judgment is to try the merits of the case prior to service and without a hearing.”

It is the spirit of our laws not to condemn a man without giving him his day in court. In many jurisdictions it is the settled rule that the right to grant an ex parte injunction is limited to the preservation of the status quo pending a hearing, and that the court is always without jurisdiction to grant ex parte and mandatory orders changing the status quo. This rule, however, in Texas has been modified to some extent, which allows the granting of such order under extraordinary circumstances, and whore great and ir-roparable injury might follow il’ delay was incurred by reason of giving notice and fixing a hearing on such order.

In the case of Chaison v. McFaddin, Wiess & Kyle Land Company, 56 Tex. Civ. App. 611, 121 S. W. 716, an irrigation canal was cut and obstructed, and through which canal the crops were to be irrigated, and, if such crops had not received water during the time pending a hearing, they would have been destroyed, and irreparable injury done. Under such circumstances it was held that the court was justified in entering an ex parte order mandatory in its nature, commanding the removal of the obstruction.

All of the subsequent cases involving the issuance of such injunctions have declared in no unmistakable terms that such injunction can only be issued “in strong and mischievous cases of pressing necessity.” Holbien v. De la Garza, 59 Tex. Civ. App. 125, 126 S. W. 43; Cartwright v. Warren, 177 S. W. 197; I. & G. N. Ry. Co. v. Anderson County, 150 S. W. 239.

The petition in this case does not disclose any reason why notice should not have been given before the issuance of so sweeping a writ as was ordered. It was aptly said by Judge Reese in the case of Holbien v. De la Garza, supra, that:

“ ‘Andi alteram partems’ is one of the maxims of the old civil law, and the doctrine that a man should not be condemned without a hearing is not only the instinct of justice, but this spirit breathes through the old system of common law, and especially through our system of equity, as distinguished .from law, which seeks to temper the harshness of the common law and bring it more in liarmony with the principles of abstract justice. It is rarely, under our equity procedure in regard to the issuance of injunctions, that it becomes necessary to issue a temporary writ of injunction, oven a merely-prohibitory writ, without a hearing. If it appears necessary from the allegations of the petition that a defendant be stopped at once and without the delay necessary to give notice and an opportunity to be hoard, a temporary restraining order may in all cases be issued compelling immediate cessation of the threatening injury until such time as may ho reasonably required to allow the defendant to present his side of the case, which may change the whole aspect of the controversy.”

The only “strong and mischievous case of pressing necessity” set forth in this petition calling for the issuance of so drastic a writ is simply the inconvenience that the plaintiff might suffer by reason of having to travel a road to the Silsbee depot, or other place or places by a route not as direct as the one in controversy. This inconvenience, wo believe, is not of such vital importance and so destructive of the plaintiff’s rights and so irreparable in its nature as to justify the learned trial court in granting all the relief prayed for ex parte and without permitting the defendants to present their side of the controversy.

The orders of the lower court heretofore entered in this cause are set aside and vacated, and this cause is remanded to the trial court; and it is so ordered.
      <§ni»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONNER, C. J.

text:
    TEXAS CENT. R. CO. et al. v. DRIVER et ux.
    (No. 8396.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 10, 1916.)
    1. TRIAL i&wkey;3'50(0) — Injuries to Passengers —Special Issues.
    Where the railroad offered evidence that its train stopped a few hundred feet from the station for an intersecting train, and that the conductor told all passengers to keep their seats unless they were changing to such train, and put down the step and assisted such passengers to alight, and waited ten minutes for others to do so, and then removed the step and went up to talk to the engineer, whereupon plaintiff tried to alight and was injured, the railroad was entitled to submission of the special issue whether a very prudent person under the circumstances would have foreseen the plaintiff’s act and her injury, since if the road einployés exercising the highest degree of care could not have foreseen the result, the road was not liable.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § S30; Dee. Dig. &wkey;350(6).]
    2. Trial <&wkey;314(l) — Conduct of Court — Comments.
    Where the jury in a civil case announced that it was divided nine to three and could not agree, it was improper for the court to emphasize the difference between civil and criminal cases, as to deprivation of liberty and money judgments, thus minimizing the importance of the case on trial.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 472, 473, 747; Dec. Dig. &wkey;314(l).]
    Appeal from District Court, Erath County ; W. J. Oxford, Judge.
    Action by E. D. Driver and wife against the Texas Central Railroad Company and others. Judgment for plaintiffs, and defendants appeal.
    Reversed and remanded.
    C. C. Huff, of Dallas, J. B. Keith, of Steph-enville, Spell & Sanford, of Waco, and A. II. McKnight, of Dallas, for appellants. E. E. Solomon, of Dublin, and Chandler & Pannill, of Stephenville, for appellees.
   CONNER, C. J.

Mrs. Willie Driver, joined by her husband, E. D. Driver, instituted this suit to recover damages for personal injuries to Mrs. Driver, alleged to have been proximately caused by the negligence of the railroad company at Waco, Tex., when and where Mrs. Driver was a passenger upon one of appellant’s passenger trains. Briefly stated, it was alleged that when the train upon which Mrs. Driver was a passenger arrived at Waco, at which point the necessities of her further journey required her to alight, she attempted to get off the train, and that in doing so she fell to the ground and received the injuries specified in her petition. It was charged that the company was negligent in failing to provide a. step placed upon the ground at the passenger coach upon which she might alight with safety, and also negligently failed to have any one stationed at the coach steps to assist her in alighting. The defendant pleaded the general denial and also that the plaintiff was guilty of contributory negligence in attempting to get off the train at the time and under the circumstances. The case was submitted to the jury upon special issues, in answer to which the jury found that the defendant was guilty of negligence as charged in the plaintiff’s petition. They further found that Mrs. Driver was not guilty of negligence, and assessed her damages at the sum of $1,000, for which the judgment was rendered, and the defendant has appealed.

A number of assignments of error have been presented, but we have found but two that, as we think' present errors for which the judgment must be reversed. Among other things, the defendant’ requested the court to submit the following special issues:

“Would the employes of defendants in the exercise of that degree of care and caution which a very prudent and cautious person would have exercised under the same or similar circumstances have foreseen that Mrs. Driver, under all the circumstances, and at the time and place in question, would attempt to alight from defendant’s train and fall and be injured?”

The court submitted in general terms the issue of whether the plaintiff was guilty of a want of ordinary care at the time and under the circumstances in attempting, as she did, to alight from the train, but, as it seems to us, under the evidence the special instruction requested should have been given. The defendant was entitled to have presented in an affirmative form the issue, and the evidence in behalf of appellant was to the effect that the train in stopping did so at a point a few hundred feet before it had reached the depot platform, because of the presence of a north-bound train; that when the train stopped upon which the plaintiff was riding, the conductor went through the train and informed the passengers generally that all persons who desired to take the north-bound train should then get off, but that others should remain where they were seated until the train pulled into the depot; that a number of passengers then did alight from the train, the conductor at the time going to the steps of the coach with a .stool and assisted a number of passengers, who were desiring to take the north-bound train, to alight; that he remained at the steps for the purpose of assisting passengers to alight for some ten minutes, and until all passengers intending to do so, as he supposed, had alighted, whereupon he placed the stool upon the platform of the car and went forward to speak to the engineer; and that it was during such absence on the part of the conductor that the plaintiff came out of the coach and attempted to alight, as she did, with the step removed.

In determining whether or not the defendant was guilty of actionable negligence as charged, a necessary element was whether the employes of the defendant in charge of the train could have foreseen, by an exercise of the highest degree of care, whether Mrs. Driver would, under the circumstances, attempt to alight from the train. Unless they could have .done so, it cannot be said that the negligence charged was the proximate cause of Mrs. Driver’s injuries, and, as it seems to us, defendant’s evidence raises this issue, and that therefore it was entitled to have the issue presented in its special request submitted. See T. & P. Ry. Co. v. Reed, 88.Tex. 439, 31 S. W. 1058; Washington v. M., K. & T. Ry. Co., 90 Tex. 314, 38 S. W. 764; Mex. Nat. Ry. Co. v. Mussette, 86 Tex. 708, 26 S. W. 1075, 24 L. R. A. 642.

The majority are also of the opinion that the court committed error, as assigned, in his remarks to the jury pending the jury’s consideration. The remarks will not be set out in full, but, in substance, it appears that after the jury had retired and deliberated from 3 o’clock p. m. on July 27, 1915, until 9:30 o’clock on the next morning, at w’hich latter time they reported to the court that they were unable to agree, and that interrogatories on the part of the court developed the fact that the jury stood nine to three, and that the jurors were divided “on everything in the case,” including the issue of liability and the weight to be given to the testimony, the jury further stated that they had gone over the case several times, and that they did not think they could ever agree. The court thereupon submitted to the jury a number of remarks emphasizing the difference between a criminal and a civil suit like the one before them, stating that in the one case it was a question of dollars and cents, while in the other a man’s liberty was at stake, etc. We are not agreed that of themselves the remarks indicated were sufficient to cause a reversal, but, as stated, the majority are of opinion that they gave too great an emphasis to the differences between a criminal and civil case and in their nature tended to minimize the importance of the issue in the case on trial; thus, perhaps, inducing a surrender of convictions on the part of one or more of the jurors that of right should not have been so surrendered. See G., C. & S. E. Ry. Co. v. Johnson, 99 Tex. 337, 90 S. W. 164; Pecos & N. T. Ry. Co. v. Finklea, 155 S. W. 612.

All other assignments of error are overruled, but for the errors indicated it is ordered that the judgment be reversed, and the cause remanded.
      cg^sFor other eases see same topic and KEY-NUMBER in all Kev-Numbered Digests and Indexes


text:
    SELF v. ALBANY NAT. BANK OF ALBANY.
    (No. 8390.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    June 3, 1916.
    Rehearing Denied June 24, 1916.)
    1. GuaRanty &wkey;j3G(3) —■ Construction — Scope of Liability — Guaranty of Draft.
    Where one Strong checked on defendant banker in favor of Williams, who indorsed the check to plaintiff, held that defendant was liable for the amount under a letter to plaintiff, promising to take care of Williams’ drafts on Strong up to $1,800.
    [Ed. Note. — For other cases, see Guaranty, Cent. Dig. § 39; Dec. Dig. <&wkey;>36(3).]
    2. Evidence <&wkey;461(l) — Surrounding Circumstances — Parol Evidence.
    Parol evidence of surrounding circumstances is admissible in determining whether a written guaranty is continuing or affects merely a single credit.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2129; Dec. Dig. <&wkey;461(l).]
    3. Guaranty <&wkey;38(l) — Construction—Continuing Guaranty.
    A banker’s letter that he would take care of one Williams’ drafts on Strong up to $1,800 held to be a continuing guaranty, where he had financed Strong’s business for several years.
    [Ed. Note. — For other cases, see Guaranty, Cent. Dig. § 47; Dec. Dig. <S&wkey;3S(l).]
    Appeal from District Court, Erath County; W. J. Oxford, Judge.
    Action by Albany National Bank of Albany, Texas, against A. L. Self and others. Judgment for plaintiff, and defendant Self appeals.
    Affirmed.
    E. E. Solomon, of Dublin, and Speer & Brown, of Ft. Worth, for appellant. A. A. Clarke and Walter B. Morris, both of Albany, for appellee.

      Application for writ of error pending in Supreme Court.

   BUCK, J.

The Albany National Bank sued W. E. Williams and C. H. Strong, doing business under the trade-name of Dublin Produce Company, and A. L. Self, doing business under the trade-name of Farmers’ Exchange Bank of Dublin (unincorporated), to recover the sum of $1,673.32, represented by a check drawn by Strong in favor of Williams, upon the Farmers’ Exchange Bank of Dublin, which check was indorsed by Williams, and upon presentation was cashed by plaintiff bank. Upon the cheek’s presentation to the Dublin bank payment was refused. Thereupon suit was filed against the defendants named at Albany, but upon Self’s plea of privilege, the cause was transferred to the district court of Erath county. Upon a trial before the court, the jury having 'been waived, judgment was rendered for plaintiff bank against all of the defendants, jointly and severally, in the sum of $1,736.74, including $63.42 interest. Judgment was also rendered in favor of W. E. Williams, as an indorser, against Self and Strong, jointly and severally, for whatsoever sum he might be compelled to pay under this judgment. Self alone appeals.

Plaintiff pleaded, upon information and belief, a certain agreement, arrangement, and course of business, between the defendant Strong and the defendant Self, originating as early as the first part of the year 1913, and continuing up to the occurrence of the transactions upon which this suit was predicated; that Self would pay all checks that Strong, or the Dublin Produce Company would draw against him, or the Farmers’ Exchange Bank of Dublin, in the course of the former’s business as a dealer in the buying and selling of poultry, eggs, and other like products, and that this agreement and understanding between Strong and Self was generally and publicly known, and that Self held himself out to the public as willing and able 'to cash all such checks as the said Strong should find it necessary to draw in the usual and ordinary conduct of his said business; that Strong, being a man of small means and no property subject to execution, would not have been able to carry on his said business and to obtain the credit necessary without this arrangement and understanding that he should have such credit with the defendant Self and his bank; that Williams also was a man of small means and no property subject to execution, and that in cashing the check presented to plaintiff bank by Williams, the plaintiff did so, relying, not upon the financial responsibility of Williams or of Strong, but upon the promise and agreement of Self to pay such checks as Strong should draw in the course and conduct of his business, and upon the special promise to the plaintiff bank on the part of Self, as hereinafter set out; that on or about January 14, 1914, plaintiff bank wrote a letter to the Farmers’ Exchange Bank of Dublin, the trade-name under which Self was doing business, asking if cheeks of the Dublin Produce Company or the drafts of the defendant Williams drawn on said produce company, would be honored by Self, or said Farmers’ Exchange Bank, and that in reply thereto Self wrote the following letter to W. G. Webb, cashier of the plaintiff bank, to wit:

“The Farmers’ Exchange Bank of Dublin (Unincorporated) Dublin, Texas.
“January 14, 1914.
“Mr. W. G. Webb, Cash., Albany, Tex. — Dear Sir: Replying to yours of oven date, herewith, beg to say that we will take care of Mr. W. E. Williams’ chicken drafts on Dublin Produce Company up to eighteen hundred dollars.
“Respectfully, [Signed] A. L. Self,
“President.”

Relying upon the promise contained in said letter, plaintiff was led to believe, and did believe, that the defendant Self would pay all such debts as the defendant Strong, acting under the said trade-name, might incur with the defendant Williams up to the sum mentioned; that said letter and the authority therein given, and the promise therein made, were never at any time recalled, revoked, or canceled by said Self until the dishonor of the check for the sum of $1,-673.32, which check was dated November 25, 1914, and payment thereon refused some days thereafter. Plaintiff pleaded that defendant Self was estopped from denying his liability because of the facts pleaded in plaintiff’s petition.

Defendant Self answered by general demurrer and general denial, and further specially demurred to plaintiff’s petition because it did not allege the acceptance of said check by the defendant Self or his bank. He further denied that he had, either verbally or in writing, ever agreed with C. H. Strong, or made any contract with said Strong, as an inducement for the said Strong to continue in business with him or his bank, to pay any and all checks that might be drawn by said Strong in the course of the latter’s business, but set out in his answer a copy of a certain mortgage lien contract made by said Dublin Produce Company, or said Strong, in favor of defendant Self, dated November 19, 1914, which was, in effect, a mortgage given by Strong, or the said Dublin Produce Company, to the said Farmers’ Exchange Bank, on certain tools, coops, pens, fixtures, turkeys, chickens, eggs, etc., then owned and held by said Strong, and on any other such property that might be acquired by said Strong during the continuance and operation of said mortgage, to secure to said Farmers’ Exchange Bank the payment of a certain note for $465, due December 1, 1914, and signed by said Strong under his said trade-name, and to secure the payment of any other indebtedness which might be thereafter owing by said Strong or the Dublin Produce Company to said Self or his bank.

But if the conclusions we have reached upon the issues presented are correct, it will not be necessary for us to further consider or discuss the nature and effect of this mortgage given by Strong to the defendant Selí and his bank, for said letter was a specific promise on the part of the defendant Self to honor and pay “W. E. Williams’ chicken drafts on the Dublin Produce Company up to eighteen hundred dollars.” There is no defensive plea that this promise had ever been withdrawn, nor is there any evidence to such effect. Therefore we have concluded that the plaintiff bank, in cashing the check of W. E. Williams to the amount of $1,073.32, had the right to rely on the written promise of defendant Self that such check would be paid. We are further of the opinion that the trial court was justified from the evidence in concluding, as he did and as in effect expressed in his fourteenth finding, that the letter of January 4th to the cashier of plaintiff bank constituted a continuing guaranty. Bajdies on Sureties and Guarantors (1881) p. 124, uses this language:

“The line of distinction between continuing and noncoutinuing guaranties cannot always be drawn with precision or accuracy; and in construing such contracts the courts look well to the object for obtaining the credit and the intent of the parties, as evidenced by the language of the guarani y and the surrounding circumstances. Parol evidence of surrounding circumstances is always admissible to aid in determining the question whether the obligation in dispute was intended as a continuing guaranty, or as a guaranty of a single credit, if the language of the instrument itself is ambiguous” (citing Bank of Buffalo v. Myles, 73 N. Y. 335, 29 Am. Rep. 157).

In the case cited by the author, the court said that where the intent cannot be ascertained by a mere perusal of the letter of credit, a resort may be had to the surrounding circumstances, the nature of the business in which the credit was to be used, the situation and relation of all the parties and their previous dealings, and the negotiations which led to the giving of the letter, to enable the court to ascertain what was meant by the letter. The terms of the letter cannot be changed by such evidence, and no additional language can be imported into it, but the evidence is proper to enable the court to understand the meaning of the language used. In the cited case, the plaintiff demanding. more security, the debtor obtained from his father-in-law the following letter:

“Please discount for Mr. Cramer to the extent of four thousand dollars. He will give you customer’s paper as collateral. You can also consider me as responsible to the bank for the same.”

'j his was held to be a continuing guaranty. In 20 Cyc. p. 1440, it is stated:

“When the amount of the liability is limited and the time is not expressly limited, the courts lean toward construing the guaranty as a continuing one” (citing Mathews v. Phelps, 01 Mich. 327, 28 N. W. 108, 1 Am. St. Rep. 581; Kimball Co. v. Baker, 62 Wis. 526, 22 N. W. 730).

“The liability under the guaranty will be regarded as continuing when by the terms of the contract it is evident that the object is to give a standing credit to the principal debtor to be used from time to time either indefinitely or until a certain period. So a guaranty may be construed as continuing where attendant circumstances strongly indicate that more than a single transaction was contemplated, especially if the right to recall the guaranty is expressly reserved. The use of tlio word ‘may’ with reference to the proposed transactions between the principal parties is held usually to indicate a continuing guaranty. So words guarantying payment for ‘any goods’ which may be purchased by the third person; or the payment of ‘any debt’ which may be contracted, up to a certain amount, are almost invariably held to indicate that the liability is intended to be continuing.”

The evident conclusion of the trial court that Self, himself, so regarded the guaranty made in the letter to the plaintiff bank is supported by the fact that on November 19, 1914, only six days before the giving of the check by Strong to Williams, the nonpayment of which is the subject of this controversy, the chattel mortgage heretofore mentioned was given by Strong to defendant Self; that a line of credit had been extended by Self to Strong for a period of some three years prior to this, during which checks and drafts aggregating many thousands of dollars were drawn by Strong on the defendant Self and cashed by the latter, in many instances such checks causing an overdraft, but Self charging Strong 10 per cent, interest on such overdrafts. It is further shown by the testimony of Williams, as well as other witnesses, that the transactions between him and Strong began back in 1912 or 1913, Strong purchasing from Williams turkeys, chickens, and other products and paying him therefor in checks and drafts drawn on the Farmers’ Exchange Bank, said shipments amounting in one instance to $2,500, and all of these checks were honored by Self’s bank, except the one in dispute; one check for $81.27 being drawn by Strong in part payment to Williams for the carload of turkeys for which the check in controversy was given, was also paid by Self’s hank. The cashier of the plaintiff bank testified that he would not have paid the check except for the letter from Self heretofore mentioned, and because of the fact that the checks drawn by Strong and made payable to Williams and deposited in the Albany bank had been theretofore honored by defendant Self’s bank. It is further in evidence that transactions of this character were conducted between the defendant Strong and the defendant Self for several months subsequent to the giving of the check in controversy, and that at the time of the trial Strong had paid Self the full amount of any overdrafts made. Hence we are of the opinion that, in view of the evidence stated and other evidence of similar import, the trial court did not err in holding appellant liable for the amount of the check in controversy with legal interest thereon. We hereby adopt the court’s findings of fact.

We think what we have hereinabove said disposes of the questions presented in all of appellant’s seven assignments, and said assignments are overruled, and the judgment of the trial court is hereby, in all things, affirmed.
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text:
    TANKERSLEY v. JACKSON et al.
    (No. 8419.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 24, 1916.)
    1. Mortgages <&wkey;295(4) — Equity of Redemption— Merger— Election by Mortgagee.
    Where a mortgagee took a deed of the mortgaged land from the mortgagor’in satisfaction of the secured note, and in ignorance of the existence of a vendor’s lien upon the land, made since the execution of the mortgage, the mortgage lien did not merge with the equity of redemption, but remained in effect and superior to the vendor’s lien, since the rule that the purchase by a mortgagee of the equity of redemption merges the two estates if an estate in fee simple would result is not invariably applied in equity; the mortgagee having an election in equity to prevent a merger and keep the equity alive.
    [Ed. Note. — Eor other cases, see Mortgages, Cent. Dig. § 821; Dec. Dig. &wkey;>295(4).]
    2. Appeal and Error &wkey;>934(2) — Review-Judgments.
    It is the duty of the court in réviewing proceedings to indulge in support of the judgment every reasonable inference arising from the facts proven.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3777; Dec. Dig. &wkey;934(2).]
    Appeal from District Court, Young County; J. W. Akin, Judge.
    Suit by R. L. Tankersley against W. E. Jackson and others. Erom a judgment for plaintiff, but in favor of the defendant John Pohlman, plaintiff appeals.
    Affirmed.
    Arnold & Arnold and Ered T. Arnold, all of Graham, for appellant. C. E. Marshall, of Graham, for appellees.
   CONNER, C. J.

The appellant instituted suit in the district court to recover upon six certain notes dated December 30, 1909, maturing December 1, 1910, 1911, 1912, 1913, 1914, and 19i5, respectively, and all aggregating $537.50. The notes had been executed by one W. E. Jackson as part of the consideration for a tract of land described in the petition sold by appellant, Tankersley, to Jackson on the same day the notes were executed. To secure the notes the vendor’s lien was retained, as a further part of tile consideration, Jackson also assumed the payment of a note for $200, executed by a former owner of the land and secured by a deed of trust thereon for the benefit of an insurance company. The plaintiff made, among others, John Pohlman, one of the appellees in this case, a party defendant, alleging that Pohl-man was the present owner of the land which was subject to the lien the plaintiff sought to foreclose.

Pohlman answered, among other things, to the effect that he had in due course of trade acquired the $200 note executed for the benefit of the insurance company, as above stated, and he sought to have foreclosed the mortgage lien given to secure the same, which was alleged to be prior in point of time and right to the vendor’s lien set up by the plaintiff. To this plea the plaintiff replied by supplemental petition to the effect that the note and debt evidenced thereby had been wholly canceled and extinguished.

The trial was before the court without a jury, and resulted in a judgment for the plaintiff for the amount of his debt, principal, interest, and attorney’s fees, with a foreclosure of the vendor’s lien as prayed for. It was further adjudged that the defendant John Pohlman was the owner of and entitled to recover upon the $200 note claimed by him, and the judgment established and foreclosed the mortgage lien referred to, making the same superior to that of the plaintiff. From the judgment so rendered, the plaintiff has appealed.

There is but little controversy in the facts, The evidence shows the execution of the notes declared upon by the plaintiff and the assumption of the $200 note by Jackson as the plaintiff alleged. It also shows that the $200 note and mortgage declared upon by the appellee John Pohlman had also been executed and acquired by Pohlman as he alleged in his answer; the assignment to him being upon the 5th day of January, 1914. It further appears that after Jackson’s purchase, to wit, on August 9, 1911, Jackson conveyed the land in controversy to one R. J. Johnson “subject” to all of the outstanding notes hereinbefore mentioned. It further appears that on March 8, 1915, Johnson conveyed the land to Pohlman, the deed containing the following recitation:

“It is especially understood and agreed by the grantor and grantee herein that this conveyance is for the purpose of cancellation of a certain deed of trust coupon note dated 28th day of January, 1909, in the sum of $200, given by W. G. Graham to Austin Eire Insurance Company in the city of Dallas, Tex., bearing 8 per cent, interest per annum from date and 10 per cent, additional as attorney’s fees, due November 1, A. D. 1913, and, further, that this deed of conveyance is for the purpose of satisfying said lien created by said deed of trust, and for the purpose of clearing any defect of title and to perfect the record title to the above-described land and premises, and to divest all of the right, title, and interest of the grantor heroin.”

On the same day that this deed from Johnson to Pohlman was executed, to wit, on March 8, 1915, Pohlman dismissed a suit he had theretofore instituted in the district court to recover upon the $200 note owned by him, and to foreclose the mortgage given to secure the same on the land in controversy. It further appears that later, to wit, in September, 1915, Pohlman reinstituted his suit in the district court against said R. J. Johnson and others, again declaring upon his $200 -note and mortgage. Pohlman also set forth in lais pleadings in that suit the deed from Johnson to him, and prayed for its cancellation, and on September 7th judgment was rendered in favor of Pohlman in accordance with his prayer, decreeing a foreclosure of the mortgage lien in favor of Pohlman and the cancellation of the deed from Johnson. In this suit, however, the plaintiff in the present action was not made a party.

Appellant’s contention upon this appeal is that the court erred in failing to find that the Pohlman note was not paid, and the Pohlman mortgage lien not canceled. It is evident from the evidence that these contentions have their basis upon the recitations above quoted in the deed from Johnson to appellee Pohlman. Pohlman in relation to this matter testified, among other things, to the effect that his note had never been paid; that he had never surrendered or canceled the note; that he did not so intend when his suit was dismissed; that at the time he accepted the deed from Johnson he did not know that Johnson had no right to convey the land; and that he did not then know of the existence of the notes declared upon by the plaintiff' in this suit. Johnson is not shown to have assumed the payment of the $200 note, and there is no proof tending to show that at the time appellee accepted the deed from Johnson any additional consideration was paid to Johnson. These facts, when considered in connection with the recitation in the Johnson deed that one of the purposes of its execution was to clear the title to the land in controversy and to divest Johnson of all his right, title, and interest, tend to show, as we think, that the conveyance from Johnson to Pohlman was intended, not as a bargain and sale, but as a short method of foreclosing the lien held by Pohlman to secure the $200 note owned by him. This inference is strengthened by the fact that Pohlman, upon the same day, dismissed the suit he had theretofore filed to foreclose his mortgage, and specifically testified that at no time did he surrender or intend to cancel his note or mortgage, and did not know of the existence of the appellant’s lien, never having examined, his title in fact. So that he may have reasonably supiiosed a conveyance from Johnson of all the right or title he had in and to the land would, in legal effect, extinguish .all outstanding title and accomplish all that could be effected by a successful prosecution of the suit which he dismissed. It is evident that Johnsbn owned, as against appellee Pohlman, the equity of redemption in the land under consideration, and ordinarily, where one holding a lien or mortgage upon premises purchases the equity of redemption, there is a merger of the two estates. Ordinarily in such case the conveyance by the one holding the equity of redemption vests in the mortgagee complete title, and puts an end to his right or title under the mortgage. But, as said in 27 Cyc. p. 1377, par. 2:

“To this end it is necessary that, holding the mortgage already, he should acquire nothing less than the complete legal title in fee, and that the two estates or interests should unite in the same person in the same right. Further, this rule (the rule of merger referred to) is not invariably applied in equity, but may be disregarded, and the fusion of the two estates prevented when, in the particular case, this is required by justice, the well-established principles of equity, or the intention of the parties; the mortgagee having an election in equity to prevent a merger and keep the mortgage alive.”

It is further said in the same authority (page 1379, par. “d”):

“The technical doctrine of merger will not be applied contrary to the agreement or the express or implied intention of 'the parties ; and therefore, in equity, there will be no merger of estates when a mortgagee receives a conveyance of the equity of redemption, when such a result would be contrary to his real intention in the transaction or to the bargain made by the parties at the time. This is the case where the mortgagee means to keep the security alive for his own protection as against other liens or incumbrances,’ and also where the conveyance is not intended by the parties to be in satisfaction of the mortgage debt, but only as additional security for it.”

The author cites numerous cases in support of the text which we will not take the time to scrutinize. But the principle embodied in the quotation was applied in the case of Hapgood Shoe Co. v. First Nat. Bank, 23 Tex. Civ. 506, 56 S. W. 995, with citation of numerous authorities. From all of which we feel unable to say, under the evidence, that the court erred in giving priority to appellee’s debt and mortgage.

It is our duty in reviewing the proceedings to indulge in support of the judgment every reasonable inference arising upon the facts proven, and, so considering the record in this case, we conclude that the judgment must be affirmed.

Affirmed.
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