text:
    BOLT et al. v. STATE SAVINGS BANK OF MANCHESTER, IOWA.
    (No. 8221.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    July 3, 1915.
    Rehearing Denied Oct. 16, 1915.)
    1. Alteeation or INSTRUMENTS &wkey;>20 — Bills and Notes &wkey;>378 — Bona Fide Purchasers — Defenses—Alteration.
    Any change by a party thereto without the consent of the opposite party in the personality, number, or relation of the parties to an instrument constitutes a material alteration, which will avoid the instrument, even in the hands of an innocent purchaser.
    [Ed. Note. — For other cases, see Alteration of Instruments, Cent. Dig. §§ 158-189; Dec. Dig. <S&wkey;20; Bills and Notes, Cent. Dig. §§ 985-992; Dec. Dig. &wkey;>378.]
    2. Pleading &wkey;>205 — Demurrer — Special Exceptions.
    Where, in an action on a note, the fourth paragraph of the answer alleged that the name of V. was added to the note after defendants signed it, that V. never signed the note and hence the note sued on was not the obligation of defendants, and that the note had been materially altered since its execution by defendants, an exception stating that plaintiff “specially excepts to the fourth section of said answer, * * * for the reason that the same as pleaded, constitutes no legal defense,” though special in the sense that it pointed out the particular paragraph of the answer to which it was directed, amounted to no more than a general demurrer, as it set up no specific reason why the answer failed to set up a defense.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 491-493, 495, 496, 498-510; Dec. Dig. <5&wkey;205.]
    3. Pleading &wkey;>34, 205 — Construction — Demurrer.
    As against a general demurrer, such paragraph of the answer was good, since, in passing upon a pleading as against a general demurrer, the court must consider everything as properly alleged which by any reasonable construction may be embraced within the allegations made, and the allegations that the alteration was not made with defendant’s consent, and that it was made by a party to the note, might be implied, if necessary.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 5%, 66-74, 491-493, 495, 496, 498-510; Dee. Dig. &wkey;34, 205.]
    4.Alteration of Instruments <&wkey;25 — Actions on Notes — Pleading.
    If a material alteration in a note after its execution was made with the consent of the makers or ratified by them, plaintiff, suing upon the note, should have presented such consent or ratification by a proper plea, it being in the nature of a plea of confession and avoidance, and the same was true if the alteration was not made by a party to the suit.
    [Ed. Note. — For other cases, see Alteration of Instruments, Cent. Dig. §§ 216-229; Dec. Dig. <S=c25.]
    5.Appeal and Error i&wkey; 1050 — Harmless Error — Admission of Immaterial Evidence.
    Though, in an action by a bank on a note purchased by its president, his testimony as to the extent of his powers might be objectionable, an inquiry into his powers was not apparently material, as the bank, by suing upon the note, ratified his act in purchasing it.
    [Ed. Note. — For other cases, see Appeal' and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dee. Dig. &wkey;1050.]
    6. Trial i&wkey;85 — Reception of Evidence-Objections to Evidence Good in Part.
    Assignments of error complaining of the overruling of objections to a witness’ answers must be overruled, where a part at least of the answers was admissible, and. the objections went to the entire answers.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 222, 223-225; Dec. Dig. &wkey;85.]
    7. Sales &wkey;>124r-REScissiON for Fraud — Return of Property Received.
    Persons induced by fraudulent and material misrepresentations to purchase a horse could sue for a rescission of the contract of sale, but must first return the horse or show good cause for their failure so to do.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 303-312; Dee. Dig. &wkey;124J
    8. Evidence <&wkey;434 — Sales &wkey;>355 — Parol Evidence to Vary Writing — Proof of Consideration.
    A purchaser of a chattel, when sued for the purchase price, may, in support of a plea of failure of consideration, rely upon material misrepresentations by the seller concerning the chattel, either express or implied, which were relied upon by him, and parol proof of such misrepresentations is not objectionable as varying the terms of the note given for the purchase price, as the consideration is always open to proof.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 2005-2020; Dec. Dig. &wkey;434; Sales, Cent. Dig. §§ 1025-1043; Dec. Dig. &wkey;> 355.]
    9. Sales <&wkey;428 — Action for Price —Defenses — Misrepresentations.
    Such misrepresentations can be invoked as a defense, not upon the theory of fraud and deceit practiced upon the purchaser, but because they are in law warranties and constitute a part of the contract of sale of which the note was also a part, and, if misrepresentations are warranties, they do not cease to be such, though fraudulently made.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1214-1223; Dec. Dig. &wkey;428J
    10. Evidence <&wkey;400 — Parol Evidence to Vary Writing.
    A seller may by a written contract with a buyer limit his warranty of the article sold, and, in the absence of fraud, accident, or mistake, parol evidence is not admissible to vary or contradict this contract.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1778-1793; Dec. Dig. &wkey;400.]
    11. Evidence i&wkey;441 — Exclusion of Oral Representations.
    If a written warranty by the seller of a horse was executed as a part of the contract of sale, and spoke the real agreement of the parties, a stipulation therein that it was the only contract or guaranty excluded any warranty not contained therein, and operated to exclude evidence that the buyers were induced to buy by false and fraudulent representations that the horse was young and sound.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§' 1719, 1723-1763, 1765-1845, 2030-2047; Dec. Dig. &wkey;441.]
    12. Sales <&wkey;251 — Action for Price — Defenses — Misrepresentations.
    In the absence of a written warranty constituting a part of a contract of sale, proof of material misrepresentations inducing the purchaser to buy is admissible, and it is immaterial whether such misrepresentations were fraudulently made, as they could be invoked and considered as warranties and equally binding upon the sellers, whether made in good faith or fraudulently.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 710; Dec. Dig. &wkey;251.]
    13. Sales <&wkey;124^REsrassi0N for FrIaud— Return of Property Received.
    While ordinarily, where a purchaser elects to rescind, he must return the property purchased, yet he need not do so if it be worthless.
    [Ed. Note. — For other cases, see Salés, Cent. Dig. §§ 303-312; Dec. Dig. &wkey;124.]
    14. Contracts &wkey;>10 — Warranties — Meeting of Minds.
    Where a warranty by the seller of a horse was not executed at the time of the execution of a note for the purchase price, but, without the knowledge and consent of the buyers, was merely deposited with a local bank by an agent of the seller, it had no binding effect; there being no meeting of the minds, and the seller having no legal right to impose a measure of damages to which the buyers never agreed.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 21-40; Dec. Dig. <5&wkey;10.]
    15. Sales <&wkey;38 — Warranties—Fraud.
    Though a warranty was executed at the time of the execution of a note for the purchase price of a horse, and therefore was a part of the contract of sale, its binding effect would be destroyed by extraneous fraud in the procurement of the note, as fraud sufficient to nullify the note would be equally as forceful as an avoidance of the warranty.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 65-77, 85; Dec. Dig. &wkey;38J
    Appeal from District Court, Nolan County; W. R. Spender, Special Judge.
    Action by the State Savings Bank of Manchester, Iowa, against R. K. Bolt and others. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded.
    See, also, 145 S. W. 707.
    Woodruff, Christian & Woodruff, of Sweet-water, for appellants. Beall & Douthit, of Sweetwater, for appellee.
   CONNER, C. J.

The State Savings Bank of Manchester, Iowa, instituted this suit against R. K. Bolt, C. Yoss, and nine others to recover upon a promissory note which, with its interest, aggregated the sum of $3,-646, at the date of the trial below. The note had been given for the purchase money of a horse that had been sold to Bolt and others by W. A. Lang & Co., to which company “or bearer” the note was made payable.

The defendants, among other things, answered, in substance, that the plaintiff bank was not the real owner of the note; that it had not paid any consideration therefor ; and that the suit by it was really for the benefit of W. A. Lang & Co. The defendants fur-thér alleged that the note had been fraudulently procured by W. A. Lang & Co. by means of certain false and fraudulent representations relating to the condition and quality of the horse which were set up in the petition. Among other things, it was charged that the horse was represented to be sound and free from disease; that this representation was false; and that, in fact, the horse was badly diseased and wholly worthless, having died some time after the purchase. The defendants further alleged that the plaintiff bank, if, indeed, it was the owner of the note, had full notice of the fraud alleged at the time of its purchase, if any. They also alleged that the note had been fraudulently changed and altered since its execution by them by the addition of the name of C. Yoss thereto. Other allegations and defenses need not be here mentioned.

The trial upon the issues indicated resulted in a judgment for the plaintiff bank, and the defendants have appealed.

Appellant’s first assignment of error complains of the court’s action in sustaining the plaintiff’s exception to paragraphs 3 and 4 of the defendants’ answer which set up forgery and alteration of the note upon which the suit was founded. The paragraphs of the answer mentioned are as follows:

“(3) Further answering herein, defendants say that the name of C. Yoss, alleged to have been signed to the notes herein sued, is a forgery; that defendant C. Voss never at any time executed said notes or either of them, nor authorized any one else to sign or execute same for him or sign his name thereto; hence defendant C. Voss says that he is not liable on the notes herein sued on, and in this prays judgment of the court.
“(4) These defendants further say that the name of C. Voss was added to said notes after they had signed the same; that C. Voss never signed the notes these defendants executed at all; hence the notes herein sued on were not the obligations of these defendants; that said notes had been materially altered since the execution of same by defendants, if defendants executed same at all, which they deny. And of this pray judgment of the court.”

To which the plaintiff urged the following exceptions, which were sustained hy the court:

“Plaintiff especially excepts to the third section of defendant’s said answer, and that part thereof attempting to set up the forgery of the name of O. Voss to the notes sued on herein, and because said 0. Yoss is no longer a party to this suit. Plaintiff specially excepts to the fourth section of said answer, and says that the same should be stricken out, for the reason that the same, as pleaded, constitutes no legal defense to the plaintiff’s cause of action.”

While the authorities are not entirely harmonious, we think it may be stated that very generally, and particularly in this state, the rule is that any change by a party thereto, without the consent of the opposite party, in the personality, number, or relation of the parties to an instrument, constitutes a material alteration which will avoid the instrument, even in the hands of an innocent purchaser, and it was specifically held in Harper v. Stroud, 41 Tex. 367, that the fraudulent addition of a name to a promissory note by the holder without the consent of the other party to the note constituted a material alteration, the court there stating, among other things:

“We think the modern authorities; with but few exceptions, agree that the addition by the payee or holder of a name of a person as joint and several maker of a note, after it has been completed, issued, and negotiated, without the consent of the original makers, discharges them from liability on the note” — citing a number of authorities.

See, also, to the same effect, Daniel on Negotiable Instruments, vol. 1, §§ 806-809; Id. vol. 2, § 1373 ; Ford v. First Nat. Bank of Cameron, 34 S. W. 684; Matson v. Jarvis, 133 S. W. 941; Rhodes v. Turpin (Tenn.) 57 S. W. 354; Texas Printing & Lithographing Co. v. Smith, 14 S. W. 1074; Adams v. Faircloth, 97 S. W. 507.

While appellee insists that the exceptions quoted are special, it seems quite manifest to us that they amount to no more than general demurrer. They are special alone in the sense that they point out the particular paragraphs of the defendants’ answer to which the complaint is directed, but no specific reason is set up why the answers fail to set up a defense, and, as against a general demurrer, we think the answers were good, and that the court erred in his ruling. The answer made by the appellee in its brief is to the effect that there was no error in the ruling complained of, for the reason that “C. Voss was not a party to the suit, by reason of a formal dismissal, which was evident of record,” and that “a forgery neither adds to nor takes from, and could not in any way affect the liability on the obligations of appellants on the notes.” It must be conceded, we think, that neither the exceptions nor the reply of appellee gives light on the specific reasoning of the trial court which led to the ruling under consideration. The undoubted rule is that, in passing upon a pleading as against a general demurrer, it is the duty of the court to consider everything as properly alleged which by any reasonable construction may be embraced within the allegations made. See Gibbens v. Bourland, 145 S. W. 274; Hoechten v. Standard Home Co., 157 S. W. 1191.

In the fourth paragraph of the defendants’ special answer it was distinctly alleged that the alteration complained of had been made since the execution of the note by the defendants, and that the alteration consisted of the addition of the name of O. Yoss. It may possibly have been thought that it should have been alleged that the alteration had not been made with the consent of the defendants, and had been made by a party to the note, but appellee urged no such objections in its exceptions, nor here, and, as against the general demurrer, we think these allegations, if necessary, are to be implied. If, in fact, the material alteration was made after the execution of the note, as alleged, and the defendants consented thereto, or ratified it, the answer setting up such consent or ratification would be in the nature of a plea of confession and avoidance, which it would be necessary for the plaintiff to have presented by proper plea, and the same general proposition seems applicable to a want of a specific allegation that the alteration was made by a party to the suit. It is said in 2 Cye. p. 232, note 27:

“Upon an alteration after execution the presumption is that it was made by a party claiming under the instrument. Therefore it is not necessary that the answer should allege what is thus presumed.”

On the whole, we conclude, as before stated, that the court erred in the ruling discussed, and that because thereof the judgment must be reversed, and the cause rémanded.

The numerous remaining assignments, we think, may be disposed of in a brief and general way. L. Matthews testified that he was the president of the plaintiff bank, and, as such, had purchased the note in controversy; that he was the only officer of the bank who had anything to do with the purchase; that he had full power to make the purchase; and that no other officer of the bank knew anything about the circumstances of the purchase. While, under certain circumstances, it might be objectionable for a witness to state the extent of his powers, yet in the present case, whatever may have been the powers of the president originally, the bank sues upon the note, thus ratifying the act of the president in the purchase, and an inquiry into his original powers is not now apparently material. It may be, and possibly should be, said to be objectionable for the witness to have undertaken to state that he knew the knowledge possessed by other officers of the bank, or to state, either directly or indirectly, the contents of the letters or written communication upon which the plaintiff relied as showing its good faith in the purchase, without accounting for their nonproduction; yet the objections urged went to the entire answers, part of which, at least, we think, was admissible, and, the objection not being good as to the whole, the assignments relating to these questions must be overruled.

The fifth, ninth, tenth, eleventh, thirteenth, fifteenth, seventeenth, and eighteenth assignments of error in some form relate to a warranty purporting to have been executed by W. A. Lang & Co., and, among other things, pleaded by the defendants. In view of the fact that the defendants did so plead the warranty, the majority wish to express the view that, if through fraudulent and material misrepresentations the purchasers were induced to purchase the horse, they could have sued for a rescission of the contract of sale. If they had elected to pursue that remedy, it would have been incumbent upon them to first return the horse, or else show good cause for their failure so to do. But they did not elect that remedy. They elected to stand upon the contract and plead a failure of consideration of the note. According to the weight of the authorities, a purchaser of a chattel, when sued for the purchase price, may, in support of a plea of failure of consideration, rely upon material misrepresentations by the seller, either express or implied, concerning the chattel, which were relied upon by the purchaser, and parol proof of such misrepresentations is not objectionable as varying the terms of the promissory note given for the purchase price of the article, since it is but proof of the consideration of the note; the consideration of a conveyance being always open to proof. 3 Ruling Case Law, p. 947, § 143. But such misrepresentations so relied upon by the purchaser can be invoked by him as such a defense, not upon the theory of fraud and deceit practiced upon' him, but because they are in law warranties, and constitute a part and parcel of the contract of sale, of which the purchaser's note was also a part. Essentially the purchaser is allowed to offset damages for breach of the seller’s contract against the seller’s demand for the purchase price of the chattel If such misrepresentations are warranties, they do not cease to be such, even though they were fraudulently made. 35 Oyc. 378, 379. By reason of the fact that such misrepresentations are warranties, it is held in some of the states that they cannot be pleaded as constituting a failure of consideration of the contract for the purchase price, but, in order to be available to the purchaser when he has elected to abide by the contract as made and is sued for the purchase price, must be pleaded as a counterclaim for damages. See Pryor v. Ludden & Bates Southern Music House, 134 Ga. 288, 67 S. E. 654, 28 L. R. A. (N. S.) 267, and notes.

It is also well settled that the seller may, by written ‘ contract with the buyer, limit his warranty of the article sold, and that, in the absence of pleading and proof that, though fraud, accident, or mistake in the drafting or in the execution of the contract, it does not speak the real agreement of the parties, parol evidence is not admissible to vary or contradict its terms. 35 Cyc. 379.

If the written warranty given by the seller of the horse and pleaded by defendants was executed as a part of the contract of sale, and if it speaks the real agreement of the parties thereto, then the stipulation therein reading, “This is the only contract or. guarantee given us,” would, even if this suit was by the payees of the note, exclude any warranty not contained in that instrument, and hence would operate to exclude any evidence that the defendants were induced to buy the horse by representations that the horse was sound and young, etc., and that the same were false and fraudulently made.

Even if such written warranty was not a part of the contract of sale, while proof of material misrepresentations which induced defendants to buy would be admissible against plaintiff if it was not a bona fide holder of the note for value and before maturity, yet whether such misrepresentations were fraudulently made would be immaterial, since they could be invoked and considered as warranties, and therefore equally as binding upon the sellers, whether made in good faith or fraudulently.

But on this subject the writer wishes to say that the warranty extends only to the general fitness and capacity of the horse to perform the purpose for which he had been purchased. Lang & Co. were not made parties, nor any recovery against them sought. The plaintiff bank was not a party to the warranty, and no recovery on the warranty was prayed for, and the purpose of the defendants in pleading the warranty is not very clear. But the pleading as a whole clearly manifests that the defendants were not “standing on the contract” of seeking its enforcement! in any of its phases, but, on the contrary, were repudiating the contract in toto on the ground of fraud. The plaintiff bank, however, seems to have availed itself of the warranty in support of the contention that the warranty provided the only measure of damages available to the defendants in this case, and the writer thinks perhaps it will be sufficient to say on this subject in a general way that, in the absence of fraud, if the representations relied upon amount merely to a mistaken assertion of the horse’s condition and capacity as asserted in the warranty, then the warranty, it seems under the following cases, will constitute the defendants’ measure of damages, and their only relief would be to avail themselves of the remedy the warranty provides, which was the return of the horse and the acceptance of another in his place. See Oltmanns Bros. v. Poland, 142 S. W. 653; Wisdom v. Nichols, etc., Co., (Ky.) 97 S. W. 18; Shearer v. Gaar, etc., Co., 41 Tex. Civ. App. 39, 90 S. W. 684; Walters v. Akers (Ky.) 101 S. W. 1179; Holbert v. Sanzenbacher, 159 S. W. 1054; Haynes v. Plano Mfg. Co., 36 Tex. Civ. App. 567, 82 S. W. 532; Crouch v. Leake, 108 Ark. 322, 157 S. W. 390, 50 L. R. A (N. S.) 774. But the writer thinks that we are prevented from now so declaring the law, for the reason that defendants alleged fraud in the procurement of the note upon which the plaintiff sued that extended beyond the limits of the warranty, and, the jury in their verdict, in answer to special issues, expressly so found. In this view of the case the warranty will not prevent the relief sought by the defendants in this case in event it should be found that the plaintiff was not a purchaser before maturity and for value and without notice of fraud, for in such event the defendants might elect to affirm the contract and sue upon the warranty, or, as they do, seek to defeat the recovery upon the note by reason of the fraud committed in its procurement. As stated in Blythe v. Speake, 23 Tex. 430, quoting from the headnote:

“A party defrauded in a contract has his choice of remedies. He may stand to the bargain and recover damages for the fraud, or he may rescind the contract, return the thing bought, and recover hack what he has paid.”

See, also, cases cited in 15 Ency. Dig. Tex. Rep. 453, § O; 3 Ruling Case Law, p. 947, § 143.

In this connection it will perhaps be well to add that, while ordinarily, where the purchaser elects to rescind, he must return the property purchased, yet he need not do so if it be worthless. Wintz v. Morrison, 17 Tex. 372, 67 Am. Dec. 658. It should perhaps be further said that the defendants, among other things, pleaded to the effect that the warranty, in fact, had not been executed at the time of the execution of the note; that, without their knowledge and consent, it had been merely deposited with a local bank by the agent of W. A. Lang & Co. If this allegation be true, the warranty would have no binding effect in any event; as in such case there would be no meeting of the minds of both parties to the contract, and the vendor would have no legal right to impose a measure of damages to which the defendants never agreed. Even should it be found, contrary to the contention of the defendants, that the warranty was executed at the time of the execution of the note, and therefore part of the contract declared upon, then also its binding effect would be destroyed by the establishment of extraneous fraud in the procurement of the note; for fraud sufficient to nullify the note would be equally as forceful to operate as an avoidance of the warranty part of the same contract.

No other assignment presents questions we think it necessary to discuss, but, believing that what we have said constitutes a sufficient guide upon another trial, it is ordered that for the errors first discussed the judgment must be reversed, and the cause remanded.
      <@x=oFor other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes

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source: Caselaw Access Project

author: CONNER, C. J'.

license: Public Domain

text:
    PHILLIPS v. NEWSOME.
    (No. 8281.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 26, 1915.)
    1. FIXTURES <&wkey;21 — STATIONARY ENGINE.
    Where defendant bought real estate on which was a cotton gin, and at the time of such purchase there was in the building a stationary engine bolted to a concrete bed five feet deep, which had been prepared for that purpose, the shaft from the engine being attached to the building, the engine was a fixture, title to which passed to defendant with the land.
    [Ed. Note. — For other cases, see Fixtures, Cent. Dig. §§ 47-56; Dec. Dig. &wkey;>21.
    For other definitions, see Words and Phrases, First and Second Series, Fixture.]
    2. Fixtures &wkey;>21 — Bona Fide Purchases— Chattel Mortgage — Reooed Not Binding.
    Defendant, having purchased land without knowledge of a recorded chattel mortgage on an engine, permanently attached to the ground, held by the seller of the engine to defendant’s grantor, took clear title to the engine upon purchasing the real estate without searching the chattel mortgage records, since it is the policy of the law that title to real estate shall appear upon the records designated for that purpose.
    [Ed. Note. — For other cases, see Fixtures, Cent. Dig. §§ 47-56; Dee. Dig. <£&wkey;21.]
    3. Fixtures <&wkey;27 — Contract against Fixation-Validity.
    The mortgagor and mortgagee of personal property can, as between themselves, validly contract that such property shall not become a fixture on its attachment to real estate.
    [Ed. Note. — For other eases, see Fixtures, Cent. Dig. §§ 5, 22, 25, 44, 45, 54; Dec. Dig. &wkey;27J
    Appeal from District Court, Bosque County.
    Action by D. F. Phillips against J. L. New-some. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Oarlock & Oarlock, of Ft. Worth, for appellant. H. B. Trippet, of Hico, for appellee.
   CONNER, C. J'.

This is an appeal from a judgment perpetuating a temporary writ of injunction issued out of the district court of Bosque county to restrain the sale of a certain stationary steam engine, alleged to constitute a part of the permanent fixtures of certain gin property and lots owned by the appellee, Newsome. The levy and threatened sale was by the appellant, Phillips, as constable of precinct No. 2 of Bosque county, by virtue of an order of sale issued out of a justice court in favor of the Southern Trading Company and against the Eubanks & Henry Gin Company, the order having been issued in accordance with the terms of a judgment foreclosing a chattel mortgage upon the engihe mentioned.

There is but little, if any, conflict in the material facts. In substance, they are that in August, 1911, the Southern Trading Company of Texas sold tlie engine in question to tlie Eubanks & Henry Oin Company, tlie latter company at the time executing a chattel mortgage upon the engine to secure the payment of part of the purchase money. The mortgage, among other things, contained a recital that the engine—

“shall not become a fixture attached to any realty but shall remain as personal property, the title to remain in the Southern Trading Company of Texas until fully settled for as herein provided.”

The mortgage was seasonably and duly recorded in the chattel mortgage record of Bosque county, to which the Eubanks & Henry Gin Company took the engine and used it in the construction and operation of a cotton gin on lots 1, 3, 4, 5, 6, 8, 9, 11, 12, 13, and 14, in block 5, in the town of Iredell. Later, to wit, in 1912, the Eubanks & Henry Gin Company not having paid their mortgage debt at its maturity, the Southern Trading Company of Texas instituted its suit against the gin company in the justice court of precinct No. 2 of Bosque county, and prosecuted it to a judgment in their favor, foreclosing the mortgage before mentioned; and, as stated, it is by virtue of this judgment that the enjoined order of sale was issued. In August, 1912, however, prior to the1 entry of the judgment above mentioned in favor of the Southern Trading Company, the appellee, J. L. Newsome, purchased the lots and gin property before mentioned, paying a valuable consideration, and received a warranty deed. At the time of this purchase he was without any actual notice of the claim of the Southern Trading Company, or of its chattel mortgage.

In reviewing the proceedings below we are called upon, by the assignments of error, to determine whether the engine at the time of appellee’s purchase of the gin was personal property, as appellant contends, or whether it constituted a part of the realty, as appellee insists, and this question depends upon the further question of whether, at the time of appellee’s purchase, the engine had become so attached to the real property as to become a fixture thereon. The evidence may be said to be conflicting upon this point, but, tested by the ordinary rules, we can but think that the evidence fully sustains the trial court’s holding, to the effect that the engine had become a fixture and constituted a part of the real property upon which it was situated. The appellee testified that the engine upon which the levy had been made was a part of the gin machinery at the time he bought the gin; that it was pointed out to him as a part of the gin and connected therewith at the time; that it was bolted to the floor, that is, bolted to the concrete foundation; that if the engine was taken out of the gin, it would destroy the usefulness of the gin; that a concrete foundation, thought to be five or six feet in the ground, had been prepared for the bed of the engine, and that the engine is fastened to the concrete foundation by bolts; that the shaft that runs from the engine is fastened to the house. The evidence as a whole undoubtedly tends strongly to show that the engine was originally attached to the other gin property with a view of its permanent location, and, unless it must be otherwise held because of the record of the chattel mortgage in favor of the Southern Trading Company, there can be no question but what the engine in controversy became a permanent fixture upon the lots upon which the gin property was located so that the title and possession of the same passed to the appellee with the deed that he received therefor. See Tiedeman on Real Property (3d Ed.) § 13; Jones on Chat. Mortgages (5th Ed.) § 128; Brown v. Roland, 11 Tex. Civ. App. 648, 33 S. W. 275; Jones v. Bull, 85 Tex. 136, 19 S. W. 1031; Watson v. Markham, 33 Tex. Civ. App. 476, 77 S. W. 660; Sinker v. Comparet, 62 Tex. 476; Cole v. Roach, 37 Tex. 419 ; McJunkin v. Dupree, 44 Tex. 501.

AYe also think that the court below properly concluded that appellee was not affected by the terms of the mortgage under which the Southern Trading Company claimed, or of its record. AYhile as between the parties to the mortgage it is undoubtedly true that the character of the property may be fixed by a contract, that is, the purchaser may estop himself from claiming the property as a part of the realty by reason of a subsequent attachment thereof to the soil, but appellee was not a party to the mortgage contract under consideration. He was not affected by the provision that the engine should not become a part of the realty, and was without knowledge of it. As against the mortgagor, appellee was a purchaser in good faith and without notice and had the right to view the property in accord with its apparent condition and character at the time of his purchase. Among other things, after a review of the authorities, it is said in the case of Ice, Light & Water Co. v. Lone Star Engine & Boiler Works, 15 Tex. Civ. App. 694, 41 S. W. 835:

“The better opinion is that a purchaser of the realty is bound only to take notice of the record title of the realty, and is not in any way bound to examine the records for chattel mortgages, for he is not affected by the record ■ of the chattel mortgage upon fixtures on such realty.”

The case of Tibbetts v. Horne, 65 N. H. 242, 23 Atl. 145, 15 L. R. A. 56, 23 Am. St Rep. 31, is a case quite similar to the one now under consideration, and it is there said:

“There is no principle of public policy to be subserved by fostering the claim of one man to the enjoyment and exercise of a right and interest in and over the real estate of another, at variance with the record title and apparent ownership. But, on the other hand, the policy of the law of this state is that the public records * * * should show the true state of the titles. * * * AVhatever may be the rights or the nature of the interest in respect to such property * * * as between the original parties to the contract, * * * it seems to be well settled that a building, erected as the one in question was, could become a fixture, and a part of the freehold, so as to pass by the deed of the owner of the land to a bona fide purchaser without notice.”

In this state, as in other jurisdictions, the policy of our law is that the title to real estate shall appear upon the records designated for that purpose, so that all may know in whom the legal title is vested, and ap-pellee, haying purchased in good faith and without actual notice of the trading company’s mortgage or claim, was not bound to search the chattel mortgage records. He, therefore, took the engine in controversy free from the claim now asserted against him. See, in addition to the cases cited, Jones on Chattel Mortgages (5th Ed.) § 127; Ginners Mut., etc., v. Wiley, 147 S. W. 632; Taylor v. Lee, 139 S. W. 910; Hopwell Mills v. Savings Bank, 150 Mass. 519, 23 N. E. 327, 6 L. R. A. 249, 15 Am. St. Rep. 235; Binkley v. Forkner, 117 Ind. 176, 19 N. E. 753, 3 L. R. A. 33.

We conclude that all assignments of error must be overruled, and the judgment affirmed.
      cgnroFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CARL, J.

text:
    TEXAS FIDELITY & BONDING CO. v. BROWN et al.
    (No. 5532.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 10. 1915.)
    1. Appeal and Erbob <&wkey;578 — Record — Statement op Facts — Supplemental Statement.
    A statement of facts was approved in time. A supplemental statement of facts disclosing that the court in rendering judgment considered testimony admitted over objection, and without any ruling thereon, was made without any motion in the trial court to correct the statement of facts, but a motion was filed in the court on appeal for an order permitting; the supplemental statement to be filed and considered as a part of the statement of facts. Held, that the supplemental statement could not be considered, for a party is entitled to know what is considered by the court, and to have an opportunity to preserve proper bills of exception thereto.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2572; Dee. Dig. <&wkey;>578.]
    2. Mechanics’ Liens <&wkey;313 — Building Conteacts — Bonds—Liability.
    A stipulation in a building contractor’s bond that, if the obligee receives notice of the fact that any claims for labor or materials remain unpaid, he shall withhold payment from the principal of any money due or to become due until payment of such claims, is for the protection of the surety and does not empower the obligee to pay such claims as he sees proper to pay, whether there is liability therefor or not, and charge the same to the surety.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 656; Dec. Dig. &wkey;»313.]
    Appeal from District Court, Bexar County; W. F. Ezell, Judge.
    Action by A. A. Brown against J. J. Law-ler and others. There was a judgment for plaintiff against defendants, and in favor of defendants Texas Fidelity & Bonding Company and another, against defendant named, and the Bonding Company appeals.
    Reversed and remanded for another trial.
    Hertzberg, Barrett & Kercheville, of San Antonio, and Bebout & Penland, of Waco, for appellant. John Sehorn, of San Antonio, for appellees.
   CARL, J.

Appellee, Dr. A. A. Brown, sued J. J. Lawler, Abraham Schroeder, and the Texas Fidelity & Bonding Company, alleging: That Brown, on August 24, 1912, entered into a written contract with Lawler by the terms of which Lawler undertook to furnish all labor and material and to erect and complete for Brown a two-story house in San Antonio; the consideration to be paid Law-ler therefor being $4,250. That to secure the faithful performance on the part of said Lawler to erect and complete said building in accordance wtih the plans and specifications, Lawler, as principal, and the Texas Fidelity & Bonding Company and Abraham Schroeder as sureties, on August 28,1912, executed to Brown a certain bond in the penal sum of $1,400, conditioned, in substance, that should he, the said Lawler, erect and complete said building in accordance with the plans and specifications, then the obligation was to be void, etc. That thereafter Lawler began the work of erecting the aforesaid building and partially completed the same, but on October 12, 1912, abandoned the work of erecting said building and refused to continue the job. That at the time said Lawler abandoned the job, Brown had paid him on said contract the sum of $1,348. That on October 14, 1912, Brown notified the Texas Fidelity & Bonding Company and Abraham Schroeder, sureties, of the default on the part of Lawler, and called upon them to erect and complete the building, which they refused to do. Whereupon said Brown undertook to finish the work of completing the building. That in doing this finishing work Brown expended the sum of $4,342.70, the said Brown claiming damages in the sum of $1,486.20, being the difference between the contract price therefor and what it cost plaintiff to complete the building. The Texas Fidelity & Bonding Company answered, alleging that they were not liable because the plaintiff had not been damaged in any amount, and denied that the expenditures made by Brown were reasonable and necessary to complete the building, alleging that plaintiff did not carry out the conditions of his building contract with Lawler, overpaid him, made changes in the plans, alleging that the sums spent by Brown in completing the building was greatly in excess of the reasonable value of said services and material, and alleging further that the suit was filed more than six months after the date fixed for the completion of the work; that said Brown paid out amounts to Lawler, or to others for Lawler, for which no lien could have been fixed against tbe property and for wbicb tbe said Brown was not personally responsible.

Said Scbroeder answered, denying all of tbe allegations contained in plaintiff’s petition. Said Lawler answered, alleging changes in tbe plans and specifications after bis abandonment, wbicb increased tbe cost of tbe building and further alleging:

“That he fully performed his contract, and that plaintiff refused to permit him to finish the building' under the plans and specifications.”

Tbe cause was tried before tbe court without a jury, January 6, 1915, and judgment rendered in Dr. Brown’s favor against Law-ler, Scbroeder, and tbe surety company, jointly and severally, for $1,400, the amount of the bond, and for $20.24 against Lawler. The bonding company and Schroeder were given judgment over against Lawler for any sums they might have to pay. The bonding company has perfected this appeal.

It was shown that it cost to complete the house, according to the statement of facts, the sum of $4,728.55, or $478.55 more than the contract price. Appellant therefore contends that tbe judgment is unsupported by the evidence at least to the extent of the difference between $478.55 and $1,400, the amount for which judgment was given. But while E. P. Behles, the architect, was on the stand, objection was made to his testifying to certain accounts and vouchers as to time of labor and amounts due therefor because it was shown that there was a foreman, and it was urged that he was the proper man to make such proof. The court thereupon said he would permit the witness to testify that he (architect) approved those accounts and issued vouchers on them. Behles then said be signed tbe pay sheets; that every laborer and carpenter signed his name to the amount shown on the pay sheets. Objection was made to the witness testifying that these accounts and pay sheets were correct, because the witness testified that he did not keep the time, but same was taken from the foreman’s book. These accounts total about $1,-010.25. After some furthen colloquy, the court said:

“We will just withhold the admission of those at this time. * * * Mr. Sehorn: But, your honor, we have not g'ot the foreman here. Mr. Hertzberg: We have him here. Mr. Se-horn: The contract specifies that Mr. Behles shall do those things. The Court: I am inclined to think it is sufficient, but will withhold it until the foreman testifies. And thereafter M.i T. Ecldes, the witness referred to in the foregoing testimony as the foreman in charge of the work, was placed upon the stand by the defense, but no questions were asked him by either party, concerning the pay rolls and the amount paid laborer’s. In rendering the judgment herein, the court considered the foregoing testimony of the witness Behles as sufficient evidence of the amount expended by the plaintiff, Brown, for labor in the completion of the building mentioned in 'the pleadings, and the judgment of the court was based upon the fact that the foregoing- sums of money mentioned in the vouchers copied hereinabove were expended by plaintiff Brown for labor in the completion of the building.”

Tbe above matters do not appear from tbe statement of facts wbicb was approved by tbe trial court on April 29, 1915, and filed in this court on April 80-, 1915, but appear from matters sent up to this court in which the trial court certifies that same took place as a part of tbe trial and same were considered in arriving at tbe judgment entered. This supplemental statement of facts has not been filed in this court, but a motion has been filed asking that we enter an order permitting same to be filed and to be considered as a part of the statement of facts. It does not appear that any motion was filed in tbe trial court to correct tbe statement of facts, or that any order to that effect was ever made, but it is sought to in-graft tbe same upon tbe statement of facts upon the certificate of tbe trial judge. That certificate says:

“Counsel for defendant knew the papers were omitted, but was of the opinion they were not introduced, and still contends they were not, but counsel for plaintiff overlooked the fact that they were not copied in the statement of facts when he agreed to and signed the same, and the statement of facts had been so agreed to by the parties, when presented to me and was therefore approved by me without examining the same.”

■If a statement of facts can be corrected by timely proceedings in tbe trial court, that has not been done in this instance; and tbe injurious consequences of such proceeding as this need no more concrete example than this furnishes, for tbe parties were cut off from tbe opportunity to further urge their objections or to preserve a bill of exception. Certainly litigants have a right in every instance to know what is considered by tbe court and to have an opportunity to preserve proper bills of exception thereto. As tbe record stands, tbe judgment is unsupported by tbe evidence. This makes it necessary for us to reverse tbe judgment and z-emand tbe cause for trial.

Another matter is urged upon wbicb we will express our opinion, in view of another trial. It is contended that, after Lawler quit this job, Brown voluntarily paid a number of bis debts for material, etc., wbicb were not capable of being fixed as liens against tbe property, and that no attempt bad been made to fix them as liens upon tbe property; also, that tbe property was tbe homestead of Dr. Brown and no such liens could have been fixed upon it for that reason.

Appellee contends that, even if tbe claims could not have been fixed as liens, they were at least capable of being made liens upon tbe balance of tbe funds remaining in tbe owner’s bands under tbe building contract. But appellant asserts that if tbe owner pays debts voluntarily, after abandonment by the contractor, and wbicb debts of the contractor so paid could not have been fixed as liens against tbe property, tbe owner makes such payments at bis own peril and cannot charge the same against .the contractor’s bondsmen. This is what the courts have held. First Baptist Church v. Carlton, 173 S. W. 1179; Slade v. Amarillo Lumber Co., 93 S. W. 475; Lonergan v. S. A. Loan & Trust Co. et al., 101 Tes. 63, 104 S. W. 1061, 106 S. W. 876, 130 Am. St. Rep. 803; 27 Cyc. pp. 304, 307; Am. & Eng. Ency. Law, vol. 20, pp. 491, 492.

The bond contains, as a proviso before liability shall attach, this clause:

“If, at any time during the prosecution of the work specified in said contract to be performed, there comes to the notice or knowledge of the obligee, the fact that any claim for labor performed or for materials or supplies furnished to said principal in or upon said work, remain unpaid, * * * the obligee shall withhold payment from the principal of any money due or to become due to the principal under said contract until the payment of such claims.”

It is clear that this clause was placed there for the protection of the bonding company and certainly did not clothe the owner of the building with the power to pay such claims as he saw proper to pay, whether there was liability therefor or not. The bond was given to protect the owner against the legal claims for which he or his property might become liable, and was never intended to clothe the obligee therein with power to go out and pay debts for which neither he nor the bonding company was liable and then charge that up to the bonding company.

The judgment of the trial court is reversed, and the cause is remanded for another trial.
      <®^>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    FINNIGAN-BROWN CO. v. ESCOBAR et al.
    (No. 488.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 11, 1915.
    On Rehearing, Nov. 24, 1915.)
    1. Aupeal and Ebbob &wkey;>79 — Decisions Reviewable — Necessity oe Final Determination — “Final Judgment.”
    Where a corporation sued two persons to recover title and possession of goods, which persons answered denying the allegations of the petition, and averring by cross-action that the goods were the property of another, for whom they were holding as bailees, such other and another person intervening, claiming’ the goods, judgment, making no disposition, either directly or by implication, of plaintiff’s claim to the goods, being merely that it take nothing against an original defendant, and proceeding to adjudicate the rights of the interveners and defendants, could not be appealed from, since such judgment was not a “final judgment,” which is the awarding of the judicial consequences attached by the law to the facts, a final determination of the rights of the parties resulting from the ruling made, from which alone an appeal will He, except in instances especially provided by law granting the right to appeal from certain interlocutory orders and judgments.
    [Ed. Note. — For other cases, see Appeal and Error, Cene. Dig. §§ 459-462; Dec. Dig. <&wkey;> 79.]
    2. Appeal and Error &wkey;>79 — Decisions Reviewable — Necessity oe Final Detebmi-natton — Finality Through Verdict.
    Where, in suit to recover title and possession of personalty, in which defendants and in-terveners claimed interests in the property, the judgment failed to adjudicate, directly or by implication, as to the plaintiff’s claim to the goods, the fact that the verdict of the jury determined such claim did not by impHcation render, the judgment an appealable final determination, since the verdict was not sufficient for that purpose and must have been followed by the judgment pronouncing its legal consequences.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 459^462; Dec. Dig. <&wkey;> 79.]
    Appeal from District Court, El Paso County; Dan M. Jackson, Judge.
    'Suit by the Finnigan-Brown Company against Leon Escobar and another to recover title and possession of goods. From a judgment that plaintiff take nothing against Es-cobar, and adjudicating the rights of' inter-veners, plaintiff appeals.
    Appeal dismissed.
    Finnigan-Brown Company, a corporation, filed suit against Leon Escobar and T. J. Woodside to recover title and possession of certain hides and skins. A writ of sequestration was sued out by plaintiff, and the property seized thereunder. In due time the same was replevied by plaintiff. Woodside and Escobar answered, denying the material allegations of the petition, and by cross-action averred that the hides and skins were the property of Wineeslao Garcia, for whom they were holding it as bailees, and asked judgment over against the Finnigan-Brown Company and the sureties upon its replevin bond for the value of the property. Woodside thereafter filed a disclaimer of any interest in the property, except a lien thereon for freight and customs duties paid out by him upon the importation of the same from Mexico, and aslced that upon trial he be decreed a Hen to secure the moneys so expended. Victor Martinez intervened, claiming a portion of the hides and skins sued for by plaintiff, and asked that he have judgment therefor or their value. Garcia likewise intervened, claiming all of the hides and skins, and prayed judgment therefor or their value. The jury, by its verdict, found that the Fin-nigan-Brown Company was entitled to certain of the hides and skins of the value of $6,994.81; that Martinez was entitled to some of the hides and skins, valued at $3,-S95.57, and that Garcia was entitled to some of the skins, valued at $6,804.23. It appears from a recital in the judgment that the hides and skins were sold after replevy, and the proceeds thereof were in the hands of the Finnigan-Brown Company.
    Judgment was entered as follows: (D That the Finnigan-Brown Company take nothing against Escobar. (2) That Martinez and Garcia respectively recover of the Fin-nigan-Brown Company and the sureties upon its replevin bond, the value, with interest, of the hides found by the jury to belong to them respectively. (3) That Woodside recover certain amounts against the Finnigan-Brown Company, Martinez, and Garcia; the amounts ■adjudged against the respective parties being in proportion to their ownership of all of the property in controversy; the judgment reciting that it was agreed by the parties that judgment should be so rendered in Woodside’s favor for the moneys paid out by him. (4) That Martinez, Garcia, and Wood-side take nothing against Escobar. From the judgment so rendered this appeal is prosecuted.
    Coldwell & Sweeney, of El Paso, for appellant. C. L. Yowell, Walthall & Gamble, and T. O. Lea, Jr., all of El Paso, for appel-lees.
   HIGGINS, J.

(after stating the facts as above). 1. The appeal must be dismissed for want of finality in the judgment. The rule is that appeals lie only from final judgments. The only exception is in some instances specially provided by law, granting the right to appeal from certain interlocutory orders and judgments. See cases cited, 1 Michie, Ency. Dig. 394, 395. A judgment is not final so as to authorize appeal therefrom unless disposition has been made of all of the parties; all issues raised determined, and the ease disposed of as completely as the court had power to do. See cases cited, 8 Michie, Ency. Dig., pp. 156 and 161.

A final judgment is the awarding of the judicial consequences which the law attaches to the facts. It is final' only when the decision or sentence of the law is pronounced by the court upon the matter contained in the record. Eastham v. Sallis, 60 Tex. 576. No complete disposition is made, directly or by implication, of the issue raised by the Finnigan-Brown Company’s suit for the hides and skins. The judgment in favor of Martinez and Garcia only disposes of the proceeds of those the jury found belonged to them. It does not adjudge to the Finnigan-Brown Company the hides the jury found belonged to it, nor the proceeds thereof; neither does it adjudge the company not entitled thereto. Unless this be done, directly or by necessary implication, the judgment cannot be final. The hides having been sold and the proceeds thereof being in the hands of the Finnigan-Brown Company, it followed upon the jury’s verdict that it was entitled to judgment for its share of such proceeds. But:

“It is not enough to make a final judgment that we can see that the court ought to have rendered one. What the court did must have amounted to a final determination of the rights of the parties resulting from the ruling made.” Land & Loan Company v. Winter, 93 Tex. 560, 57 S. W. 39; Trammell v. Rosen (Sup.) 157 S. W. 1161.

It is argued by appellees that this case is analogous to those authorities which hold a judgment final which disposes of an issue by necessary implication only; for example, a cross-action not expressly mentioned and adjudicated. Trammell v. Rosen, supra, and cases there cited; also Davies v. Thomson, 92 Tex. 391, 49 S. W. 215. We can see no similarity between this line of authority and this case. There is nothing in this judgment from which it could be in any wise inferred that the court had judicially found for or against the Finnigan-Brown Company the right to any part of the hides or their proceeds. The verdict of the jury alone was not sufficient. It must have been followed by the judgment of the court pronouncing the legal consequence of the verdict. Trammel v. Rosen and Land & Loan Co. v. Winter, supra.

Appellees also request, if it be determined the judgment is not final, that this court reform the same and make it so. This cannot be done. The defect affects the jurisdiction of this court, and we must dismiss the appeal.

2. In view of what has been said, it is unnecessary to determine whether or not it is essential to the finality of the judgment that judgment should likewise have been entered upon Woodside’s disclaimer that the Finnigan-Brown Company take nothing against him. It may be said, however, in view of further proceedings in the case, that it is best and proper to do so. Gullett v. O’Connor, 54 Tex. 408; Mignon v. Brinson, 74 Tex. 18, 11 S. W. 903.

In Gullett v. O’Connor, supra, it was held under the facts there presented, that it would be presumed the cause had been dismissed as to a defendant who had disclaimed and as to whom no disposition was made in the judgment. But upon the facts reflected by the record here it may well be doubted whether any such presumption could be indulged. Mignon v. Brinson, supra.

Dismissed.

On Rehearing.

In the original opinion it was said:

“In view of what has been said, it is unnecessary to determine whether or not it is essential to the finality of the judgment that judgment should likewise have been entered upon Woodsida’s disclaimer that the Finnigan-Brown Company take nothing against him.”

In this sentence the word “recover” should have been used for “take nothing.” It is accordingly now so corrected, and with this correction the motion for rehearing is overruled.
      (g=»Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. ASTON.
    (No. 7394.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 16, 1915.
    Rehearing Denied Nov. 20, 1915.)
    1. Railroads <§=>390 — Injury to Person on Track — Discovered Peril.
    Where a pedestrian stepped in front of a train approaching a depot without realizing its nearness to him, and in attempting to escape fell, and his left leg was cut off by the wheels of the engine, and where the engineer, though he saw the pedestrian fall and applied the emergency brakes, acted on the assumption that he had not been struck and released the. brakes, in consequence of which the train continued to move forward, and mangled the right leg so as to necessitate its amputation, the railroad company was liable, under the doctrine of discovered peril, for loss of the right leg.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §| 1324, 1325; Dec. Dig. &wkey;390.]
    2. RailRoads <&wkey;390 — Injury to Person on Track — Discovered Peril — Knowledge— Evidence.
    The evidence in an action for such injuries was sufficient to charge the engineer with negligence, where it showed that he saw plaintiff fall to the ground or lying on the ground in close proximity to the track and train, and knew before the right leg was run over that he was in peril, and failed to use the means at his command to stop the train and avoid the injury, though it did not show that he knew that plaintiff would certainly be injured unless the train was stopped.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1324, 1325; Dec. Dig. &wkey;390.j
    3. Negligence <&wkey;83 — Discovered Peril-Knowledge.
    The doctrine of discovered peril has no application, in the absence of actual knowledge by the person inflicting the injury of the peril of the person injured in time to avoid the injury by use of the means at hand.
    [Ed. Note. — For other cases, see Negligence* Cent. Dig. § 115; Dec. Dig. <S&wkey;83.]
    4. Negligence &wkey;»134 — Proof—Conjecture.
    Negligence cannot be established by mere conjecture without evidence of actual negligence or of facts from which it can be inferred.
    [Ed. 'Note. — For other cases, Cent. Dig. §§ 267-270, 272, 273; 134.] see Negligence, Dec. Dig. i&wkey;>
    5. Trial &wkey;>260 — Injury to Person on Track — Refusal of Instruction Covered.
    Where, in a pedestrian’s action for loss of both legs from being run over by a train at a depot, the court instructed that, if plaintiff attempted to cross the track directly in front of the train, and the engineer did not see him until the front of the engine had passed him, that if the engineer then applied the brakes, and that if, after plaintiff fell, it appeared to the engineer that he was in the clear, and not in further danger, and the engineer used the care of a person of ordinary prudence, he could not be held to have discovered that plaintiff was in imminent peril, it was not error to refuse an instruction that if plaintiff attempted to cross in front of the moving train, and the engineer did not see him until the pilot beam of the engine was about even with him, that if it then appeared that he was falling away from the engine, and not in danger, and that if the engineer thereupon released his brake, allowing the train to continue moving forward, and in so doing acted as a man of ordinary prudence, he could not be held to have discovered that plaintiff was in imminent peril; the instruction given being substantially the same as the one refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. &wkey;260.]
    6. Trial &wkey;>263 — Requests for Instructions — (Jiving One of Several.
    Where a party requests two special instructions on the same issue, and the court selects and gives one, the party cannot complain of the refusal of the other.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 662, 663; Dec. Dig. &wkey;263.]
    7.Appeal and Error &wkey;>1060 — Harmless Error — Argument of Counsel.
    In an action for injuries from being run over by a train, argument of plaintiff’s counsel to the effect that the reason why the engineer and fireman were not present as witnesses was because they could not explain why they did not stop the train when they knew that plaintiff had fallen in front of 'same, and that “the engineer saw plaintiff when he was down on the rail * * * in front of the engine,” if improper, did not require a reversal, where it did not appear that defendant was injured thereby.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. <&wkey;>1060.]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Action by Tom Aston against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    E. B. Perkins, of Dallas, Walter Collins, of Hillsboro, and Scott & Ross, of Waco, for appellant. Shurtleff & Cummings, of Hills--boro, for appellee.
   TALBOT, J.

This suit was brought by the appellee to recover damages for personal injuries inflicted upon him through the negligence of appellant’s servants in charge of and operating one of its trains. By an amended petition filed May 22, 1914, appel-lee alleged, in substance, that he was injured while crossing the appellant’s railway track in the town of Hubbard City, on or about the 26th day of January, 1914, the injury consisting of the loss of both of his legs. He alleged in said petition facts which would constitute him a licensee on appellant’s track at the time and place of the accident, and that the defendant’s employe's were guilty of negligence in approaching said place at an unusual rate of speed, and in failing to ring the bell on the engine as it approached said place where appellee was injured, the same being at its depot in said town of Hubbard City; that after he got upon the track he observed that the train was not running at the usual and customary rate of speed, but was running at a high and unusual rate of speed, and that on account of that fact he was in imminent peril of being struck by said train; that when he realized his position he became greatly frightened and excited, and in- attempting to get off the track fell and attempted to fall off of said track; and that his body did fall over the rail, but his feet and legs were cut off at or near the knees. 1-Ie further alleged that at the time he fell the engine ran over only one of his legs, and that said injured leg remained upon the track, and that the engine and tender and the trucks of one of the coaches passed over said leg; that in an effort to remove his body from the track, and in throwing his body and limb around, his other foot and leg, which up to that time had remained uninjured, was thrown, upon the track, and before the train stopped the wheels of one of the coaches passed oyer said limb and injured it so that it was necessary to have the same amputated. He further alleged that the engineer in charge of said train saw him fall in front of said engine by the side of the track, and therefore knew of his perilous position by said track, and continued to move the said engine and train after the perilous position of the said plaintiff was known to said engineer, when the said engineer could, by the use of the means at his command, have stopped the said engine and train with safety to himself and to said train and to those on board the same, and that, if said engine had been stopped after the engine and tender alone had passed over plaintiff, one of his limbs would have been saved, but that the said engineer, knowing the perilous position of plaintiff, continued to cause said engine and train to move, although he well knew that the plaintiff had fallen in front of said engine and was in a position of imminent peril, and would likely be injured, unless said train was stopped; that the failure to stop said train after discovering the perilous position of the appellee was the proximate cause of the loss of his right leg. Defendant answered, denying each and all of the allegations of negligence set forth in plaintiff’s petition, and averred that on the occasion in question it operated its train in the usual and customary manner at the usual and customary rate of speed at the time and place in question, and arrived at the station in question on its schedule time; that the plaintiff, Tom Aston, with a full knowledge that the defendant’s said train and locomotive was approaching said place, deliberately stepped upon its said railroad track upon which said train and locomotive was running, in front of said moving locomotive, at a distance not more than eight or ten feet in front thereof; that said Aston was guilty of contributory negligence in going upon said railroad track at said time and place; that he was so close to the moving locomotive at the time that he entered upon said railroad track that it was impossible for those in charge of its locomotive to have stopped the same before reaching a point where the said Aston entered upon said track; that it rang its bell, sounded its whistle, and had its electric headlight burning as it approached said station in the usual and customary manner; that said Aston both saw and heard said train, and knew that it was approaching said station at said time; and that he recklessly, and without due regard for his own safety, and with a full knowledge of the danger which he would encounter by going upon defendant’s track in front of its engine, deliberately went upon said track. The defendant railroad company specifically denied that its engineer in charge of said train knew of plaintiff’s perilous position at the time he saw plaintiff at the side of the track, and it denied that plaintiff was in á position of peril at said time, or that it continued to operate and cause said locomotive and train to move with any knowledge of the plaintiff’s being in a position of peril, and it denied that said engineer at any time after the locomotive passed the plaintiff lying upon the ground by the side of the track possessed any knowledge that he was in a position where he would likely be injured unless the train was stopped. Plaintiff, by supplemental petition, denied the affirmative facts alleged by the defendant railroad company. The record discloses that both of plaintiff’s feet and legs were crushed, the left by being run over by the engine drawing defendant’s train and the mail and baggage car, and the right by other coaches in the train in the rear of said engine, mail and baggage cars. The case was submitted to the jury impaneled to try the same upon special issues, and their findings were such as to preclude a recovery, except those upon the issues submitted in relation to discovered peril. They found, and the evidence warranted such findings, that the defendant’s engine injured one of the plaintiff’s legs, the left leg; that after the engine drawing defendant’s train passed plaintiff the plaintiff was in a position of imminent peril, and that the defendant’s engineer operating the engine was aware of plaintiff’s position and imminent peril; that after said engineer discovered and became aware of the position and imminent peril of the plaintiff, he could have stopped the train by the use of the means at his command with safety to himself and to his train and to those on board of said train in time to have avoided injury to plaintiff’s other foot— right foot; that the failure of the defendant’s engineer to stop the train in time to avoid injury to plaintiff’s right foot and leg was negligence and the proximate cause of the injury to said right foot and leg; that at the time plaintiff was lying upon the ground near defendant’s railroad track, and was observed in that position by defendant’s engineer as the engine passed plaintiff, said engineer realized that, if plaintiff remained in the position he was then in, he would probably be injured by the wheels of one of the rear cars if the train did not stop at that time and place; that plaintiff’s right foot and leg were so injured by being run over by defendant’s cars that it became necessary to amputate the same; and that plaintiff had sustained damages thereby in the sum of $10,-000. The jury further found, in response to question asked by the court, that the plaintiff was not guilty of negligence which contributed to his injury.

' Appellant groups in its brief its sixteenth, eighteenth, twenty-eighth, twenty-ninth, and thirtieth assignments of error. These assignments assert respectively that the trial court erred in refusing a special charge requested by defendant directing tbe jury to return a verdict in its favor, in overruling its objections to tbe court’s charge in submitting tbe issue of discovered peril, in overruling a motion made by defendant to bave judgment entered in its favor upon tbe findings of tbe jury, in overruling a motion made by appellant to set aside tbe findings of tbe jury upon tbe issues submitted in relation to discovered peril, and in granting tbe plaintiff’s motion to bave judgment entered in bis favor upon tbe findings of tbe jury. Appel-lee objects to a consideration of tbe assignments and propositions thereunder, for the reason claimed, among others, that they present different questions of law, and are not followed by such statement as is required by the rules. Tbe statement in support of tbe assignments does not strictly comply with tbe requirement of tbe rules, but we think tbe assignments themselves and the propositions propounded thereunder present tbe same question of law for our decision, and, especially in view of the fact that we have reached tbe conclusion that tbe judgment of the lower court should be affirmed, tbe assignments will be considered.

It is claimed that the court erred in tbe several rulings complained of by tbe assignments because tbe evidence was insufficient to authorize tbe submission to tbe jury of the issue of discovered peril, and does not sustain the findings of tbe jury upon that issue. In this view of the evidence we do not concur.

Tbe plaintiff testified:

“When I reached that gravel walk that night and saw the train down south of me, there was no alarm or signals of any kind given. It was a dark night, and I could not tell by looking at the headlight of the train or any part of it that I could see where the train was. * * * When I stepped into the track, I noticed the train was right on me. I could see the pilot right at me, it seemed to me. It scared me so bad I could not hardly tell you what happened. I fell off from between. the tracks; fell out on the east side of the track. When I first fell, the train caught my left leg and cut it off or run over it. My leg was on the east rail. The engine and tender and the mail car and the baggage car passed over it, and the front end of the negro coach struck my right leg. The negro coach was behind those other cars. I could not explain how it got caught. I hardly know what I was doing at the time it got caught. I was lying with my head from the track, and when it struck my right leg it just changed ends with me and threw my head back toward the track. I cannot say how come me not to get off the track when my first log was cut. I made an effort to get off. I was not able to get away. When this last coach I have testified about caught me, it caught the right leg. The right leg was last cut. It was run over and just mangled from my ankle, plumb up close to my knee. That knee was afterwards amputated.”

E. Peeot, tbe appellant’s fireman on the engine which ran over appellee, testified by deposition as follows:

“In coming into the station with my train beaded toward Corsicana on tbe night of the accident, I would be on the left side of engine, on the side next to the station. I first noticed Tom Aston on the night before he was injured when he attempted to cross the track. He was about three feet from the left rail when I first saw him.. When I first saw him standing up, I do not _ remember the distance he was from the engine. I saw him before he attempted to cross. He was. on the left side of the track, and we were going north. The engine was just a short distance, probably 20 feet, from him when I saw him standing there. I saw him when he stepped upon the track. My engine was about 8 or 10 feet from him when I saw him step upon the track. The .engine and train went to the street crossing just north of the depot before it stopped; that is the engine’s stopping place. When I say.be stepped upon the track, 1 meant he stepped immediately in front of the engine, between the two rails. I holloaed to the engineer to stop her at that time. The engineer applied his emergency brakes, but the train did not stop entirely. When I holloaed to the engineer to stop her, he immediately applied his emergency brakes, which of course, gradually brought the engine to a stop. Of course, the engine did not come to a standstill, but gradually got slower, and I asked him [the engineer] if he hit a man, and he said not.”

This witness further testified, in. effect, that after he called to tbe engineer to stop and tbe speed of tbe train was slackened, tbe engineer released tbe air brake, and tbe engine and train moved about tbe distance of two or three coach lengths, and stopped at tbe regular stopping place at tbe station; that there were five cars in the train: and that when tbe train stopped be immediately took bis torch, and, in company with tbe engineer, who slightly preceded him, went back and found tbe plaintiff, who bad attempted to cross' tbe railroad track, lying on the ground on tbe opposite side of tbe track from the side be got upon it.

T. Stovall, the appellant’s engineer, in charge of tbe engine which injured appellee, testified by deposition as follows:

“I could not say that I saw Tom Aston before he was injured. I first saw him when he fell out on the ground. The engine at that time was south of the Main street crossing. That is north of the depot down about the freight house between the two crossings. My engine was about 2yz or S coaches from the ticket office at the time that occurred. Tom Aston was in the neighborhood of 30 feet from me when I first saw him. Aston had fallen out when I first saw him. I do not know whether he had been struck at all by the engine when I first saw him. I recall the fireman saying something just before I reached there. I set my emergency brake immediately after that. That was all I could do.”

He also testified:

“With reference to what rate of speed my-train was moving that night after I passed the first crossing south of the depot, I will say I made application there for the station stop. I had braked applications for station stop; enough to,make the regular station stop. I had my engine under full control. When I saw Mr. Aston, he was on the right-hand side of the track. 1-Iis body was not on the ground, but it was going to the ground. He was not standing erect; he was down. Just about the time I saw him, Mr. Pecot said, ‘Did you hit that man?’ * * * I saw Mr. Aston, and that made me apply the brake. * * * My train very nearly stopped when I applied my air brake at that time. I moved about three ears’ length, I suppose, from where Aston was on the ground. At the time I saw him on the ground I thought he had not been struck or run over. That was tbe reason that I released my brakes. As soon as my engine stopped, I saw Mr. Aston. I immediately lit my torch and ran back to see if the man had been hurt.”

R. D. Horn stated, in substance, that he lived at Hubbard City, and was working at the ice factory stationary engine when the accident in question occurred, and that he was at the depot that night; that as the appellant’s train approached the station he noticed the engine coming to a stop; that it was slowing down too much to stop at the regular stopping place; that he then heard the engineer when he pushed the air in emergency, and heard him when he released the air; that he slowed down almost to a stop, and then released the air and worked steam up to the regular stopping place. He further said that, according to his estimate, the train was going from the time it crossed the street up to the point where it struck the plaintiff between six and seven miles an hour, and that it was going slow after the emergency brakes were put on; that h’e did not know it to be true as an engineer that the emergency applied to a train of that character running only six or seven miles an hour would stop the train instantly almost; that when the air is put in emergency it won’t stop the train immediately. He stated, however, that the application of the emergency brakes would stop a train of five or six coaches on a level track running five, six, or seven miles an hour in about eight or nine feet; that the engineer in charge of the engine that struck the plaintiff could have stopped the train in a distance of nine feet after striking him if he had wanted to do so.

Thus it appears that, when the appellant’s ■engine struck appellee, h'e fell to the ground, and that after so falling, or as he was in the act of falling, to the ground, the engineer operating the engine saw him; that at this particular instant the engineer could have stopped the train in a distance of nine feet hy application of the emergency brakes, but that, instead of making use of such brakes, upon the assumption that the plaintiff had not been struck, he released the air and allowed the train to move two or three car lengths to the usual stopping place at the railway station. The engineer said himself that he had his engine under full control. He further said, as has been shown, that:

When he first saw the plaintiff, he was about 30 feet from him; “that he was on the right-hand side of the track; that his body was not on the ground, but it was going to the ground. He was not standing erect, he was-down.”

Again he said:

“At the time I saw him [plaintiff] on the ground I thought he had not been struck or run over. That was the reason that I released my brakes.”

Had the engineer made use of the means at his command after plaintiff’s left foot and leg had-been crushed by the engine, it is clear-that the train would have been stopped m such time as to have avoided the injury to his right foot and leg, -and, according to the findings of the jury upon questions not involved in the issue of discovered peril, a recovery precluded. But such means were not used, and as a result thereof plaintiff’s right foot and leg, evidently in his efforts and struggle to free himself from the perilous position in which he was placed, got upon the iron rail of the railroad track and was crushed and injured to such an extent that amputation was necessary.

The contention of appellant, as we understand, is to the effect that, although the engineer saw the appellee falling to the ground immediately at the railroad track about the front of the engine, yet there is nothing in the evidence to justify the conclusion that he realized that appellee would be injured if the train was not then stopped, and hence the doctrine of discovered peril does not apply. And the propositions, among others, are asserted:

That “the engineer must have realized that, if Aston remained in the position he was then in, he would be injured, unless the train was brought to an immediate stop,” and “that the engineer in charge of defendant’s locomotive, at the time and place in question, did in fact realize that Tom Aston was in peril as he lay by the side of defendant’s railway track when the engineer was passing him, cannot be shown or established by mere conjecture, nor inference; and when such fact is shown only by conjecture or inference, no liability is shown, and the issue of discovered peril does not arise.”

It is well settled that:

The doctrine of discovered peril “has no application in the absence of actual knowledge, on the part of the person inflicting the injury, of the peril of the party injured, in time to avoid the injury by the use of the means and agencies then at hand. If he had no such knowledge, the new duty was not imposed, though it be clear that by the exercise of reasonable care he might have acquired same.” Railway v. Breadow, 90 Tex. 20, 36 S. W. 410;

It is also well-established law that, where there is no evidence of negligence or fact from which negligence can be inferred, it is not permissible to indulge in mere conjecture. But to state broadly, as in effect appellant does in his second proposition quoted above, that it cannot be established by inference that the appellant’s engineer on the occasion in question realized that the plaintiff, Aston, was in peril as he lay by the side of appellant’s railway track when the engineer was passing him is not, in our opinion, sound. Mere conjecture cannot be indulged, but, if there are facts in evidence from which negligence reasonably can be inferred, a finding of negligence will be authorized and supported by the evidence. It was not necessary to sustain a charge of negligence on the part of the appellant on the doctrine of discovered peril that its engineer actually knew or realized that injury would result to appellee if the train was not stopped. The duty to use the means at his command to stop the train with the view of avoiding injury to appellee instantly arose when the engineer discovéred that he was .in a position of such danger as that he would probably be injured if the train was not then stopped. That the engineer did not make use of the means within his power consistent with the safety of the train and those aboard of it to then stop the train is conclusively shown by the testimony, and from the facts and circumstances in evidence it is clear that the jury was authorized to infer and find that the engineer, having seen appellee falling to the ground, or lying on the ground, in close proximity to the railroad track and moving train, knew or realized, before appel-lee’s right foot and leg were run over and crushed, that he was in peril of being injured by the moving train, and guilty of culpable negligence in failing then to use the means at his command to stop the train and avoid such injury. The facts were sufficient to charge the engineer with knowledge or realization of the perilous position of the appellee, and it was not essential to appel-lee’s right of recovery on the issue of discovered peril that the engineer knew that he would certainly be injured unless the train was stopped. Railway Co. v. Vallejo, 102 Tex. 70, 113 S. W. 4. In the case just cited the Supreme Court held that there was no duty on the part of the railway' employes discovering a small child about the railway tracks of the appellant, but in no danger in its position from the moving train, to stop same and remove the child to a place of safety, but in discussing the question of the railway company’s duty said:

“If there had been probability that by the continued movement of the train injury would be inflicted on the boy the duty to stop the train would have arisen, but no such result was indicated by the facts.”

In the case at bar the engineer knew of the dangerous proximity of the appellee to its moving train, and the facts in evidence were sufficient to indicate to the engineer at the time he saw appellee falling to the ground that he would probably be injured by a continued movement of the train.

The next assignments of error present the same questions of law just discussed, and are disposed of by what we have already said.

The twenty-third assignment of error complains of the court’s refusal to give the following special charge:

“If you believe from the evidence in this cause that- plaintiff attempted to cross defendant’s track directly in front of its moving train, and that defendant’s engineer did not see plaintiff until he was about ovén with the pilot beam or cylinder of the engine, and that at the time the plaintiff appeared to the engineer to be falling away from the engine, and that said engineer in charge of the engine thought that plaintiff fell away from the track and was not in danger of being run over by the train, and if you further believe that said engineer thereupon released his brake and allowed the train to move on to its usual stopping place, and after the engineer first saw the plaintiff he acted as a man of ordinary prudence and care would have acted under the same or similar circumstances, then the engineer cannot be held to have discovj ered the plaintiff in ‘imminent peril.’ ”

There was no error in refusing to give this charge. At the request of the appellant the court charged the jury as follows:

“If you believe from the evidence in this case that the plaintiff attempted to cross defendant’s track directly in front of its moving train, and that defendant’s engineer did not see plaintiff until the front of the engine had passed him, and he was in a falling position, and that the engineer immediately, upon seeing plaintiff applied his brakes, and if you further believe from the evidence, that after plaintiff fell it appeared to the engineer that he was in the clear, and was not in danger of being struck or further injured by the train, and after seeing the plaintiff the engineer used such care as a person of ordinary prudence would have used under the same or similar circumstances, then you are instructed that the engineer could not be held to have discovered plaintiff in imminent peril.”

The special charge requested and given is equivalent to or practically the same as the one requested and refused, and appellant has suffered no injury by the refusal of the one made the basis of this assignment of error. Besides,, it is a well-established rule of practice in this state that, if two special charges are requested covering the same issue, and the court selects one and gives it in charge, the appellant is in no position to complain of the refusal of the other. Railway v. Ford, 118 S. W. 1137.

The two remaining assignments of error are grouped and complain of certain remarks of counsel for the appellee in his closing argument to the jury. These remarks were, in substance, that the reason why the engineer and fireman were not here as witnesses so the jury could look at them was because they could not explain why they did not stop the train when they knew plaintiff had fallen down on the track in front of the moving train, and that “the engineer saw plaintiff when he was down on the rail of defendant’s track in front of the engine.” We are not sure that, under the facts of this case, the remarks of counsel here complained of were not within the scope of legitimate argument, but, if they were not, we are not prepared to say that they resulted in such injury, if any, to appellant as to authorize a reversal of the case. The assignments are therefore overruled.

We think the evidence supports the findings of the jury upon which the judgment appealed from was based, and that no material or reversible error is appointed out by the assignments.

The judgment of the court below is therefore affirmed.

Affirmed.
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author: WILDSON, C. J.

text:
    JOSEY et al. v. MASTERS.
    (No. 1512.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 4, 1915.)
    1. Sequestration <@=313 — Right to Property — Claimant — Jurisdiction—Waiver op Objection.
    Where, in an action brought in T. county for the title possession of a horse, plaintiff alleges that the horse is in the possession of defendant S. in D. county, and one J. presents, to the officer levying the writ of sequestration in D. county, his affidavit and claim bond to try the right of property in the horse, which the officer then delivers to him as expressly authorized by Vernon’s Say les’ Ann. Civ. St. 1914, art. 7769 et seq., it is the duty of J., if the property is not in his possession _ when levied on, to see to it that the affidavit and claim bond are returned to a court in D. county as required by articles 7776 and 7777; and when he neglects this duty he will be deemed to have waived his light to object that these papers were not returned to the proper court, and that judgment was taken against him and tho sureties on his bond in the action in T. county.
    (Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 17-20; Dec. Dig. <@=>13.]
    2. Appeal and Error <@=934 — Presumption —Jurisdiction — Possession op Pboperts.
    On appeal in such case, after it has been taken from the justice court to the county court by certiorari, it will be presumed, if necessary to support the trial court’s ruling, that J. admitted that the property was in the possession of S. when levied on, where the application for writ of certiorari is not a part of the record.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3777-3782; Dee. Dig. <@= 934.]
    3. Sequestration <@=>20 — Claimant—Notice.
    In such case, J. and his sureties were chargeable with knowledge that the officer had sent such papers to the justice court in T. county, from which the writ of sequestration was issued, instead of to a court in D. county, and also with the fact that such justice court had jurisdiction under Vernon’s Sayles’ Ann. Civ. St. 1914, article 7778, to hear and deter-mino the case, where the assessed value of the property did not exceed $200.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 42-49; Dec. Dig. <@=>20.]
    4. Courts <@=>24, 25 — Jurisdiction — Consent.
    Jurisdiction of the subject-matter cannot be conferred by the consent of parties, but where the court has jurisdiction of the subject-matter the parties may by consent confer jurisdiction over their persons.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 76-80; Dec. Dig. <@=>24, 25.]
    Appeal from Titus County Court; Sam Porter, Judge.
    Action brought in justice court by T. T. Masters against R. H. Josey and others. From a judgment for plaintiff in the county court, defendants appeal.
    Affirmed.
    Seb F. Caldwell, of Austin, for appellants. T. C. Hutchings, of Mt. Pleasant, for appellee.
   WILDSON, C. J.

Appellee sued one Scul-lin in a justice court of Titus county for the title possession of a certain horse, which he alleged was in Scullin’s possession in Dallas county. A writ of sequestration issued out of said justice court at appellee’s instance was levied on the horse in Dallas county. Appellant Josey thereupon presented to the officer (the sheriff) who levied the writ his affidavit and claim bond, with appellants J. O. Hart and D. A. Bradshaw as sureties, for the purpose of trying the right of property in the horse, which the sheriff then delivered to him, as authorized by the statute. Article 7769 et seq., Vernon’s Statutes. The affidavit and bond were not returned by the officer, with a copy of the writ, to a court in Dallas county having jurisdiction to try the question as to the right of property in the horse, as required by the statutes (articles 7776, 7778), but same were by the sheriff returned with the original writ to the justice court of Titus county, where judgment by default was rendered in favor of appellee against Josey, and also against the other appellants as the sureties on his claim bond. The cause having been removed to the county court of Titus county by means of a writ of certiorari issued at the instance of appellants, it was there tried de nova, and judgment was rendered in appellee’s favor against appellant. Josey for the horse and against Josey and the appellants J. O. Hart and D. A. Bradshaw as sureties on his claim bond, and against J. E. Hart and H. A. Hood, sureties on the certiorari bond, $200 and $20 additional as a penalty allowed thereon by law.

The only issue tendered by appellants in the county court, so far as the record before us shows to the contrary, was one questioning the jurisdiction of the justice court of Titus country to try the right of property in the horse, on the ground that, the writ having been levied in Dallas county, the courts of that county alone had power to try that question. The contention presented by the issue tendered was based on article 7776, Vernon’s Statutes, which required the officer who made the levy in Dallas county, when he received Josey’s affidavit and claim bond, to indorse on the bond the value of the property as assessed by himself, and then to return same with a copy of the writ to a court in Dallas county “having jurisdiction according to the value of the property as assessed by said officer,” and article 7777 of said Statutes, which required said officer to return the original writ to the justice court of Titus county after indorsing thereon that claim to the property had been made and oath and bond given, “stating by whom, the names of the sureties, and to what justice or court the bond had been returned.” Appellee excepted to the issue tendered, on the ground that, using his language, “the defendants invoked the jurisdiction of this court and caused this ease to be brought to this court and caused this plaintiff to be cited to appear and prosecute this suit in this court.” The court below sustained the exception. Whether he erred in so doing or not, is the only question presented in appellants’ brief.

The claim bond as approved by the sheriff contained a recital that he had assessed the value of the horse at $200.

In the affidavit for the writ of sequestration it was alleged that the horse was in the possession of Seullin, the defendant in the suit, and in the writ of sequestration he was described as being in Scullin’s possession. Otherwise there is nothing in the record sent to this court showing who had possession of the horse at the time he was levied upon. If he was not then in appellant Josey’s possession, it was Josey’s duty, as determined by the Supreme Court in Zurcher v. Krohne, 63 Tex. 122, to see to it that the affidavit and claim bond were returned to the proper court. And see Chappell v. Ferrell, 54 S. W. 1074; and Deware v. Elevator Co., 17 Tex. Civ. App. 394, 43 S. W. 1048. As appellants in their application for the writ of certiorari which is not a part of the record sent to this court, may have admitted that the horse was in Scullin’s possession at the time he was levied upon, this court should assume, if it is necessary to do so to support the ruling made by the trial court, that they did make such an admission. If it was Josey’s duty to see to it that the papers were sent to a court in Dallas county having power to hear and determine the question as to the right of property in the horse, appellants were chargeable with knowledge of the fact that the sheriff had not done that, but, instead, had sent same to the justice court in Titus county from which the writ of sequestration was issued. They also were chargeable with knowledge of the fact that said justice court had jurisdiction to hear and determine such a question where the assessed value of the property did not, as in this instance, exceed $200. Article 7778, Vernon’s Statutes. It is well settled that, if a court is without power because of the subject-matter thereof to hear and determine a suit, the parties thereto cannot by consent confer jurisdiction on it to try same; but it is well settled that, if a court has jurisdiction of the subject-matter, the parties may by consent confer on it the power over their persons necessary to enable it to try the cause. It appears from the record before us that the affidavit and claim bond were returned to and filed in the Titus county justice court June 29, 1914; that no action in the cause was had in that court until the September term thereof, when it was continued to the October term; and that at the October term it was continued to the November term, when the judgment appealed from was rendered. Under these circumstances, we think the trial court was warranted in the conclusion he must have reached that appellants were in the attitude of having waived the right they had to have the cause tried in Dallas county, and, having waived the right, were not entitled to complain because it was tried in Titus county. Therefore the judgment is affirmed.
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