author: HAWKINS, J.

text:
    HOUSTON BELT & TERMINAL RY. CO. v. HORNBERGER.
    (Supreme Court of Texas.
    June 11, 1913.)
    1. Courts (§ 207*) — Jurisdiction—Courts of Civil Appeals — Power to Issue Injunctions.
    Under Rev. St. 1895, art. 997, giving the Courts of Civil Appeals authority to issue writs of mandamus and all other writs necessary to enforce the jurisdiction of the courts, such courts having no original jurisdiction may not issue an injunction, unless necessary to enforce the appellate jurisdiction of the court.
    [Ed. Note. — For other cases, see Courts, Dec. Dig. § 207.*]
    2. Appeal and Error (§ 454*) — 'Jurisdiction op Court.
    Where an appeal was properly taken from a judgment of the county court, which adjourned without modifying it, the jurisdiction of the whole matter vested in the Court of Civil Appeals.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2215; Dec. Dig. § 454.*]
    3. Courts (§ 207*) — Court op Civil Appeals — Jurisdiction — Right to Issue Injunction.
    Where the county court denied the right of a railroad to condemn a right of way, rendering judgment for defendant and awarding Mm possession, and an appeal was properly taken, the Court of Civil Appeals properly issued an injunction restraining defendant from enforcing the judgment, under authority given by Rev. St. 1895, art. 997, to issue such writ to enforce its jurisdiction, and if such writ was not issued the appeal, when decided, might well be merely the decision of an abstract question ; the subject-matter having practically been destroyed.
    [Ed. Note. — For other cases, see Courts, Dec. Dig. § 207.*]
    4.Appeal and Error (§ 45S*) — Possession Pending Appeal.
    Acts 26th Leg. c. 70, entitled “An act to amend article 4471” of the Revised Statutes 1895, so as to permit railroads and other corporations having the right of eminent domain to take possession of the property sought to be condemned pending litigation, provides that in no case shall a corporation be permitted to enter without first having paid the damages awarded and having deposited in the court a further sum equal to any additional damages awarded; and should it be determined on final decision that the right to condemn does not exist the property shall be surrendered, and the owner compensated for any damages, and if the cause shall bo appealed from the county court the appeal shall be governed by the law in other cases, save that such judgment shall not be suspended. Reid, that the provision that the judgment of the county court shall not be suspended cannot be' interpreted as meaning that an appeal by the condemning corporation will not have that effect; for the corporation is given the right to hold possession pending litigation until the final decision of the case.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2223, 2224; Dec. Dig. § 458.*]
    Error to Court of Civil Appeals of First Supreme Judicial District.
    Condemnation proceedings by the Houston Belt & Terminal Railway Company against Jacob Hornberger. There was a judgment of the county court for defendant, and plaintiff appealed, and the Court of Civil Appeals (141 S. W. 311) denied a motion to dismiss an injunction restraining defendant, and certified the case to the Supreme Court for decision on questions.
    Questions answered.
    See, also, 143 S. W. 272.
    Andrews, Ball & Streetman and A. L. Jackson, all of Houston, for appellant. Campbell, Sewall & Myer and Ross & Wood, all of Houston, for appellee.
   HAWKINS, J.

The Court of Civil Appeals for the First Supreme Judicial District has certified for our decision two questions, which, with its statement of the case, are as follows:

“Appellant, a terminal railway company organized and chartered under the laws of this state, and claiming as such the right of eminent domain, filed its application and statement with the county judge of Harris county, in accordance with the provisions of the statute, seeking to condemn for right of way purposes a strip of land 96.4 feet in width by 1,442 feet in length over and upon a tract of 75 acres of land near the city of Houston, in Harris county, Tex., belonging to appellee, Hornberger. Commissioners were appointed, as required by the statute, and the appellee being cited appeared and filed answer. Upon a hearing before said commissioners both parties introduced evidence of the value of the land sought to be condemned, and of the damages to the remainder of the land of appellee. After hearing and considering the evidence the commissioners, on July 2, 1910, found that the va'ue of the land sought to be condemned and the consequential damages to the remainder of appellee’s tract amounted to $1,600, and made, signed, and filed their findings in writing to that effect. On July 7, 1910, appellee filed his written objections and opposition to the award of the commissioners and gave notice of appeal to the county court of Harris county. Thereupon appellant tendered to the appellee the sum of $1,600, the amount of said award, and upon his refusal to accept same deposited said amount with the clerk of the county court of Harris county, subject to appellee’s order, and at the same time paid the cost adjudged against it, made the additional deposit, and executed the bond required by the statute to entitle it to take possession of said right of way. After fully complying with the statute, as aforesaid, appellant took possession of the strip of land sought to be condemned by it and constructed thereon its roadbed and track for permanent use in connection with the remainder of its track.

“Upon the trial of appellee’s appeal in the county court of Harris county, after rendering a judgment on April 3, 1911, on the verdict of a jury in favor of plaintiff for condemnation of the right of way, and in favor of defendant for damages in the sum of $7,-392.50, the court, on April 10, 1911, sustained a motion by defendant in arrest of judgment and entered a final judgment vacating the former judgment rendered on April 3d, and denying appellant’s right to condemn appel-lee’s property, on the ground that appellant is not a common carrier and not subject to regulation by the Railroad Commission of the state of Texas, and therefore the statute giving it the right of eminent domain is unconstitutional. This'judgment further decrees that appellee have a writ of possession for the right of way over his land now in the possession of appellant. From this judgment ap- ' pellant, having excepted thereto in open court and given notice of appeal, perfected its appeal to this court by filing in due time a supersedeas bond in an amount more than double the value of the property, the damages claimed by appellee, and the probable cost, and conditioned as prescribed by articles 1404 and 1405 of the Revised Statutes.

“Thereafter, on application to this court by appellant, it was made to appear that, notwithstanding said appeal and the filing of said supersedeas bond by appellant, appellee had procured, or was about to procure, the issuance of a writ of possession by the county clerk of Harris county, and to proceed thereunder to oust appellant from the possession of said right of way pending the decision of the appeal to this court. Upon this showing we ordered the issuance of a writ of injunction restraining appellee from executing the judgment of the court below pending the final decision of the appeal.

“This writ having been issued and served, appellee in due time filed and presented a motion to dissolve the injunction, on the ground that this court was witliout authority to grant such writ, because it was not necessary to enforce the jurisdiction of the court, and because the statute authorizing the filing of a supersedeas bond on appeal does not apply to condemnation proceedings when the right to condemn is denied by the judgment of the trial court, but that, on the contrary, the act of the Twenty-Sixth .Legislature, c. 70, p. 105, amending article 4471 of the Revised Statutes, expressly provides that an appeal shall not suspend the judgment of the county court in such case.

“We overruled the motion to dissolve, but a motion for rehearing is now pending, and because of the importance of the question involved and the fact that our decision is probably final, we think it best to certify the questions for your determination.

“Upon the foregoing statement we respectfully ask:

“First. Does the statute above mentioned deny appellant the right to suspend the judgment of the county court, awarding appellee his writ of possession, by appealing therefrom?
“Second. Did this court have jurisdiction to grant the writ of injunction?”

We answer the first certified question negatively and the second affirmatively, for the reasons and upon the grounds set forth in the lucid and able opinion of the Court of Civil Appeals in this cause, written by Chief Justice Pleasants, reported in 141 S. W. 311, which we approve.


source: Caselaw Access Project

author: BROWN, C. J.

license: Public Domain

text:
    PECOS & N. T. RY. CO. et al. v. COX.
    (Supreme Court of Texas.
    June 4, 1913.)
    1. Railroads (§ 33) — Actions — Process — Service on Agent.
    Service upon a railroad in this state, if upon an agent, must be made upon some one authorized to represent it in the transaction of its business done or to be done in the state.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 70, 71; Dec. Dig. § 33.]
    2. Railroads (§ 33) — Actions—Service or Process — Return or Service — Presumption.
    There is no presumption of agency to receive service of process for a foreign railroad corporation, and, where service is made on a person represented to be its agent, the return should not be held conclusive of the fact that the person served was its agent, but such fact may be put in issue by sworn plea.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 70, 71; Dec. Dig. § 33.]
    3. Carriers (§ 230) — Action for Injuries to Live Stock — Issues.
    Where a railroad, defendant in an action for damages to a shipment of live stock, under oath denied the plaintiff’s allegation of partnership with other roads, of which fact there was no proof, that issue should not have been submitted to the jury.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. § 230.]

      4. Areeal and Error (§ 1062) — Harmless Error — Submission oe Issues.
    Error in submitting the issue of the 'partnership of defendant railroads, _ in an action for damages to a shipment, of live stock, was immaterial where the finding was that they constituted an entirety.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. § 1062.]
    5. Courts (§ 97) — Authority oe Decisions —United States Supreme Court.
    A decision of the Supreme Court. of the United States upon a question as to which this court has concurrent jurisdiction is superior and will be followed by this court.
    [Ed. Note. — Eor other cases, see Courts, Cent. Dig. §§ 329-333; Dec. Dig. § 97.]
    6. Railroads (§ 33) — Relation between Defendants — Sufficiency oe Evidence-Partnership oe Roads — Process.
    Evidence, in an action against a railroad company, held not sufficient to support the allegation of .entirety or the existence of a partnership between defendants so as to make service on an agent of a state corporation legal notice to a foreign corporation.
    [Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 70, 71; Dec. Dig. § 33.]
    7. Carriers (§ 230*) — Carriage oe Live Stock — Action for Damages — Liability.
    Under a verdict entitling a shipper to judgment, but showing damages to shipments to have occurred beyond the line of a defendant carrier, not the initial carrier, and not showing the damages on its line, such defendant carrier was not liable.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 961, 962; Dee. Dig. § 230.]
    8. Carriers (§ 219) — Carriage oe Live Stock — Interstate Shipments — Liability oe Initial Carrier.
    Where all the shipments of live stock are not interstate shipments, judgment cannot be entered against the initial carrier for the whole amount of damages.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 950, 951; Dec. Dig. § 219.]
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Action by C. B. Cox against the Pecos &. Northern Texas Railway Company and others. From a judgment of the Court of Civil Appeals, Fourth District (1501 S. W. 265), affirming a judgment for plaintiff, defendants bring error.
    Judgments reversed, and case remanded to the district court for trial.
    Terry, Cavin & Mills, of Galveston, Roscoe Wilson, of Lubbock, Madden, Trulove & Kim-brough, of Amarillo, and E'. Graham, of Plainview, for plaintiffs in error. R. R. Plazlewood and A. A. Lumpkin, both of Amarillo, and Sam R. Merrill, of Houston, for defendant in error.

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

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

   BROWN, C. J.

The defendant in error having filed an answer to the application for writ of error, and this court having decided to grant the writ of error, we will finally dispose of the case.

C. B. Cox sued the Pecos & Northern Texas Railway Company and the Southern Kansas Railway .Company of Texas, both incorporated under the laws of this state and operated within the state, also the Atchison, Topeka & Santa Fé Railway Company, incorporated in Kansas and operated outside of this state but running trains to Amarillo, Tex. The object of the suit was to recover damages to cattle shipped from Plainview to Hale county, Tex., to different points in Kansas and to Kansas City, Mo., for which through bills of lading were issued by the Pecos & Northern Texas Railway Company; the cattle to be conveyed and transported over each of the three railroads named to their several destinations.

It is alleged, in substance, that in fact the three corporations constitute one company and constitute an “entirety” with their principal offices in the city of Amarillo, Potter county, Tex. It is also alleged that the said corporations constitute a partnership in the operation of the different railroads. Service was had upon the Texas corporations, which answered, each of which denied the partnership under oath. Service was made on T. W. White at Amarillo, Tex., as the agent of the Atchison, Topeka & Santa Fé Railway Company. White, as amicus eurise, filed an affidavit that he was not the agent of the Santa Fé Railway Company, and that company did not answer nor make any kind of appearance. The district court took no steps to ascertain whether or not White was the agent of the Santa Fé Company, but submitted the case against it as if it had been served. The jury returned a joint verdict against all of the defendants. The defendants prosecuted an appeal to the Court of Civil Appeals of the Fourth District, which affirmed the judgment.

It is not claimed that there was any evidence tending to prove that White was agent of the Santa Fé Company; therefore the service on him did not give the state court jurisdiction of the foreign corporation. Such service, if upon an agent, must be made upon some one authorized to represent the corporation in the transaction of its business done or to be done in the state. Peterson v. Chicago, Rock Island & Pacific Ry. Co., 205 U. S. 364, 27 Sup. Ct. 513, 51 L. Ed. 841; Green v. Chicago & Burlington Ry. Co., 205 U. S. 531, 27 Sup. Ct. 595, 51 L. Ed. 916. Upon facts much more significant than in this case, it was held in the first case cited that the service upon one engaged in transacting business which finally reached that company was not sufficient.

Before proceeding against the Santa Fé Company, the district court should have required proof of White’s agency. There was no presumption of such agency. G., H. & S. A. Ry. Co. v. Gage, 63 Tex. 568; Jones v. City of Jefferson, 66 Tex. 576, 1 S. W. 903. In the Gage Case the court said: “And we are of the opinion that, in all cases in which service is made on a person represented to be the agent of a corporation, the return should not he held conclusive of the fact that the person served was in fact the local agent, and that this fact may be put in issue by a sworn plea.”

The plaintiff’s petition charged that the three railroad companies formed a copartnership, and therefore claimed that judgment should be entered against all.

The Southern Kansas Railway Company of Texas haying filed a plea under oath, denying the partnership, and there being no proof of the partnership, the issue should not have been submitted to the jury; but the form of the verdict shows that the finding was not the issue of partnership, but that the three roads constituted an “entirety”; hence the error of submitting the issue of partnership1 is immaterial. The judgment cannot be sustained against the Santa Eé Company, unless the claim that the three roads were consolidated into one line of road was proved; therefore service on one was effective as to all.

The Honorable Court of Civil Appeals made no statement of the facts which established the consolidation of the lines. The attorneys for defendant in error have given no aid on this point, and we have been left to wade through a tangled, and often incoherent, mass of statements for evidence upon this very important point.

The charge of the court as to joint liability of all defendants reads: “If you find for the plaintiff, and further find that the defendants, the Atchison, Topeka & Santa Eé Railway Company, the Southern Kansas Railway Company of Texas, and the Pecos & Northern Texas Railway Company, are an entirety and constitute but a single line of railway, and that the parts of said line of railway extending from Higgins to Amarillo and the part extending from Amarillo to Plainview are operated by the Atchison, Topeka & Santa Eé Railway Company and are but subcorporations and agents of the Atchi-son, Topeka & Santa Eé Railway Company, then the form of your verdict will be: ‘We, the jury, find for the plaintiff against the defendants, the Atchison, Topeka & Santa Eé Railway Company, the Southern Kansas Railway Company of Texas, and the Pecos & Northern Texas Railway Company, in the sum of $5,509.56, and apportion the same as follows:’” The jury returned the following verdict: “We, the jury, find for the plaintiff against the defendants, the Atchison, Topeka & Santa Eé Railway Company, the Southern Kansas Railway Company of Texas, and the Pecos & Northern Texas Railway Company, in the sum of $5,509.56, and apportion the same as follows: $1,646.10 on account of the cattle shipped to Kansas City; $1,040 on account of the cattle shipped to Toronto; $2,735.46 on account of the cattle shipped to Hamilton; and $88 on account of the cattle shipped to Higgins.”

Assuming that in using , the word “entirety” the judge intended to submit the issue of the common ownership or joint operation of all three lines as one, or that the Santa Eé owned or operated the other two, the evidence is not sufficient to establish such relation between the' companies. The evidence shows that the Santa Eé ran trains to Amarillo, in Texas, and that cars loaded at Plainview were carried to Higgins by the other companies and thence by the Santa Eé to points on its line in other states, but these facts do not tend to establish joint ownership of all of the lines or the ownership or control of the fines in Texas by the Santa Eé. Peterson v. C., R. I. & P. Ry. Co., 205 U. S. 364, 27 Sup. Ct. 513, 51 L. Ed. 841. The ease cited was based upon much stronger facts than the case under consideration. The Honorable Court of Civil Appeals rested its decision upon a ease decided by this court, Buie v. Chicago, R. I. & P. C. Ry. Co., 95 Tex. 51, 65 S. W. 27, 55 L. R. A. 861. That case was decided upon practically the same facts as the Peterson Case. The Supreme Court of the United States did not mention the Buie Case in the Peterson Case, but the effect of the decision in the latter ease is to overrule the other. Upon that class of questions, the authority of the Supreme Court of the United States is superior, and this court acknowledges the decision in the Peterson Case as the law and will follow and enforce it. We hold that there was not sufficient evidence to support the claim of “entirety” or the existence of such partnership as made the service on an agent of the Texas companies legal notice to the Santa Eé. We therefore conclude that the judgment against the Santa Eé must be reversed, and the cause remanded as to that company, because itls a foreign corporation, and the evidence does not show that it is domiciled in or doing business in this state, as defined by the decision of the Supreme Court of the United States in the case cited above.

As to the Texas corporations, the joint liability seems to depend upon the issue of “entirety,” which was submitted, but no evidence has been pointed out, nor have we been able to discover any in the record that tends to prove more than that they are connecting lines over which trains pass with freight and passengers.

The verdict of the jury entitles the plaintiff to judgment for $5,509.56, but he has no right to judgment for any sum against the Southern Kansas Railway Company of Texas, because the verdict shows damages to have occurred on shipments beyond its line, and it was not the initial carrier, and therefore not liable' except for such damages as occurred on that line, which was not ascertained by the verdict.

We understand that Higgins is in Texas, and a portion of the cattle were shipped to that place; hence, all of the shipments not being interstate, judgment cannot be entered for the whole sum against the initial carrier.

The best solution of the matter is to reverse the judgments of the district court and Court of Civil Appeals and remand the case to the district court for trial, and it is so ordered. It is ordered that the plaintiffs in error recover from the defendant in error all costs of this court and of the Court of Civil Appeals.


author: HIGGINS, J. HIGGINS, J.

text:
    EL PASO ELECTRIC RY. CO. v. LEE.
    (Court of Civil Appeals of Texas. El Paso.
    April 24, 1913.
    On Rehearing, May 22, 1913.)
    1. Appeal and Error (§ 7439 — Assignments oe Error — Refeeence to Motion eob New Tbial.
    Assignments of error which merely state that error was complained of in appellant’s motion for a new trial, but do not refer to that part of the motion in which the error was complained of, as required by rule 25 of the Courts of Civil Appeals (142 S. W. xii), will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dec. Dig. § 743.]
    On Rehearing.
    2. Cotjbts (§ 92) — Rules op Decision — Obi-tee Dictum.
    Where the applicability of amended rule 24 for Courts of Civil Appeals (142 S. Wr. xii), amended January 24, 1912, was not presented by the record in a case in the Supreme Court, its discussion of the matter to which the rule related should be regarded as obiter dictum, and as such not binding on this court.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 335; Dec. Dig. § 92.]
    3. Appeal and Ebeob (§ 288) — Prerequisites — Motion poe New Tbial.
    Prior to the adoption of rule 71a for district and county courts (145 S. W. vii), amended January 24, 1912, and requiring a motion for a new trial to be filed in all cases on appeal unless the error complained of is fundamental, except in such cases as the statutes do not require a motion for a new trial, there was no necessity in any case to file such a motion when the grounds for reversal related to any ruling of the trial court, .though, in order that certain matters might be reviewed upon by appeal, they must have been called to the attention of the trial court by such a motion.
    [Ed. Note. — F’or other cases, see Appeal and Error. Cent. Dig. §§ 1673, 1676-1679; Dec. Dig. § 288.]
    4. Couets (§ 78) — Rules op Oouet — Authority to Make.
    Under the express provision of Rev. Civ. St. 1911, art. 1524, authority is conferred upon the Supreme Court to make, establish, and enforce rules of practice and procedure for the government of the various courts.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 274, 276-281; Dec. Dig. § 78.]
    5. Appeal and Ebroe (§ 281) — Prerequi- ' sites — Motion poe New Trial — Rules op Court.
    Rule 24 for Courts of Civil Appeals (142 S. W. xii) provides that assignments of error •shall distinctly specify the grounds of error relied on and set forth in the motion for a new trial, and that a ground of error not distinctly set forth in the motion shall be considered as waived unless it be fundamental error ; rule 25 requires that the motion shall point out the part of the record in which the error is complained of; and rule 71a for the district and county courts (145 S. W. vii) requires a motion for a new trial to be filed in all cases where the parties desire to appeal, unless the error is fundamental. Held, that the rules, considered together, were intended to change the rules of practice established by the former decisions of the Supreme Court, and especially the rule that the party need not call certain errors to the attention of the trial court in a motion for a new trial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1650-1661, 3024, 3281; Dec. Dig. § 281.]
    6. Appeal and Error (§ 281) — Presentment op Grounds op Review — Motion poe New Trial.
    Rule 71a for district and county courts (145 S. W. vii), requiring that a motion for a new trial be filed in all cases where parties desire to appeal, does not conflict with Rev. Civ. St. 1911, §§ 2061, 2062, dispensing with the necessity of taking formal bills of exception to the ruling of the court in giving, refusing, or qualifying of instructions and rulings and actions of the court which otherwise appear of record.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1650-1661, 3024, 3281; Dec. Dig. § 281.]
    7. Appeal and Ereob (§ 281) — Presentation op Grounds op Review — Motion poe New Trial — Statutes.
    The importance of rules 24 and 25 for Courts of Civil Appeals (142 S. W. xii), requiring assignments of error to distinctly specify the error relied upon and distinctly set forth in a motion for a new trial, on penalty of waiver, and providing that the motion shall point out the part of the record in which the error is complained of, and rule 71a for district and county courts (145 S. W. vii) making a motion for a new trial necessary in all cases of appeal fronj the judgment of a trial court, is not destroyed by Acts 33d Leg., approved April 4, 1913, amending Rev. Civ. St. 1911, art. 1612, providing that the appellant shall file with the clerk of the court below all the assignments of error, distinctly specifying the grounds on which he relies before he takes the transcript_ from the clerk’s office, and that where a motion for a new trial has been filed the assignments need not be repeated, since the amendment merely dispenses with the necessity of filing assignments when a motion for new trial has been filed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1650-1661, 3024, 3281; Dec. Dig. § 281.]
    Appeal from District Court, El Paso County; James R. Harper, Judge.
    Action by J. D. Lee against the El Paso Electric Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Davis & Goggin, of El Paso, and Baker, Botts, Parker & Garwood, of Houston, for appellant. W. B. Ware and Patterson & Wallace, all of El Paso, for appellee.

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

   HIGGINS, J.

This was an action for damages resulting from personal injuries sustained by appellee while in the service of the appellant as an electric lineman. From a judgment in his favor, this appeai is prosecuted.

Rule 25 for the government of the Courts of Civil Appeals (142 S. W. xii) expressly provides that assignments of error “must- refer to that portion of the motion for a new trial in which the error is complained of.” The Supreme Court has promulgated this rule for the government and guidance of the Courts of Civil Appeals, and, so far as this court is concerned, it is our purpose to enforce it.

The assignments of error in this case merely state that the error was complained of in defendant’s motion for a new trial, but fail to refer us to the portion of the motion in which the error was complained of. This does not comply with the rule which we have quoted, and the assignments will therefore not be considered. Railway Co. v. Ledbetter, 153 S. W. 646; Nunn v. Veale, 149 S. W. 758; Murphy v. Earl, 150 S. W. 486; Tiefel v. Maxwell, 154 S. W. 319; Railway Co. v. Gray, 154 S. W. 229; Konz v. Henson, 156 S. W. 593, recently decided by this court and not yet officially reported.

No fundamental error appearing, the judgment is affirmed.

HARPER, C. J., did not sit in this case.

On Rehearing.

HIGGINS, J.

The motion for rehearing herein has been carefully considered, and we adhere to the conclusion that the assignments should not be considered. It is perhaps advisable, however, to elaborate the reasons upon which such action is based.

From the authorities next cited, it will be noted that five of the various Courts of Civil Appeals have held that assignments cannot be considered unless the provision of rule 25, referred to in the original opinion, be complied with. Davidson v. Patton (Amarillo) 149 S. W. 757; Murphy v. Earl, (El Paso) 150 S. W. 486; Railway Co. v. Ledbetter (Dallas) 153 S. W. 646; Railway Co. v. Gray (Austin) 154 S. W. 229; Jones v. Edwards (San Antonio) 152 S. W. 727; Allen v. Kitchen (Austin) 156 S. W. 331.

Various of the assignments herein relate to the action of the court in giving and refusing charges; and, in declining to consider the same, we are not unmindful of the recent opinion rendered by the Supreme Court in Railway Co. v. Beasley, 155 S. W. 183, wherein it was held that the giving and refusing of charges need not be set up in the motion for new trial in order to assign error thereto upon appeal. It would of course logically and necessarily follow that, if it was not so necessary, then the provision of rule 25, to which we have referred, would at least have no application to any error in respect to such charges, or, indeed, to any other matter not necessary to be set up in the motion for new trial.

Rules 24 and 25 were amended January 24, 1912, and upon the same date the rules governing the district and county courts were radically amended and changed by the addition of rule 71a (145 S. W. vii) as follows: “A motion for a new trial shall be filed in all cases where parties desire to appeal from a judgment of the trial court, or sue out a writ of error in the cause, unless the error complained of is fundamental, except in such cases as the statute does not require a motion for a new trial.”

From the report of Railway Co. v. Beasley, it does not appear whether or nqt the amendments indicated were applicable there, but, from the knowledge which we have of the condition of the docket of the Supreme Court, it is quite evident that the case must have been tried and assignments of error filed long prior to January 24, 1912. The certified question discloses that the case was decided by the Texarkana court, and upon the motion for rehearing various questions were certified. By examining the table of cases in the various Courts of Civil Appeals in which motions for rehearing are pending, which tables appear in the advance sheets of the Southwestern Reporter, it will be noted that opinion in the case in the Court of Civil Appeals was rendered March 16, 1911, nearly a year before the amendments to rules 24 and 25 became effective, and the addition of 71a to the district and county court rules. Furthermore, inquiry develops that the record in the iBleasley Case discloses that the case was tried in the lower court on the 15th day of June, 1910, and assignments of error filed the 21st day of July, 1910. It is therefore perfectly patent that the old rules were applicable in the Beasley Case, and under the decisions construing same (W. U. Tel. Co. v. Mitchell, 89 Tex. 441, 35 S. W. 4; Clark v. Pearce, 80 Tex. 151, 15 S. W. 787) there was no necessity in the motion for a new trial of referring to the action of the trial court in the giving and refusing of instructions, and it is plainly apparent that amendment to rule 24, which became effective January 24, 1912, had no application. Since the applicability of the amended rule was not presented by the record, the discussion thereof should properly be regarded as obiter dictum. Hart v. Gibbons, 14 Tex. 213. As such this court is not bound to follow same. Ballard v. Carmichael, 83 Tex. 355, 18 S. W. 734.

Passing now to a consideration of the amendments to rules 24 and 25 for the government of the Courts of Civil Appeals, and the incorporation of 71a in the district and county court rules, we think that it was the evident purpose of the Supreme Court to thereby effect fan important reform and change in our practice and procedure relating to appeals; and, since they all relate to motions for new trial to be filed in the trial court, they should be considered together.

Prior to the adoption of rule 71a, there was no necessity in any case to file such a motion when the errors relied upon as ground for reversal related to any ruling of the trial court. In cases tried before a jury it has been the practice to file such motions; but we can find no rule, statute, or decision that the right of appeal- is conditioned upon the filing of same. In order that certain matters might be reviewed upon appeal, it is true they must have been called to the attention of the trial court in such a motion. W. U. Tel. Co. v. Mitchell and Clark v. Pearce, supra. But those authorities do not hold that the filing of such a motion is a prerequisite to the right of appeal, and the effect thereof is merely that the action of the trial court respecting certain matters would not be reviewed unless its attention had been called to the supposed error in a motion for a new trial. This being the rule of practice, it was certainly to be desired that a motion for a new trial should be required to be filed in all cases, and that in this motion all errors relied upon as grounds for a new trial should be set up.

The obvious purpose of the adoption of rule 71a was to require as a condition precedent the filing of a motion for a new trial in all cases where the parties desired to appeal or sue out writ of error, except in those cases where the filing of such a motion is by statute dispensed with; the obvious purpose of the adoption of the amendment to rule 24 by the insertion of the words, “not distinctly set forth in a motion for a new trial in the cause,” was to require the parties to distinctly call to the attention of the trial court all errors relied upon as ground for reversal, under penalty of having same considered waived, unless it was distinctly set forth in the motion; and the purpose of the amendment to rule 25 by the addition of the words, “and must refer to that portion of the motion for a new trial in which the error is complained of,” imposed the duty upon the Courts of Civil Appeals of declining to consider any assignment which did not so refer to the proper portion of the motion where the error was complained of, thus insuring that a motion for a new trial would be filed in the lower court prior to an appeal or the suing out of a writ of error, and that all grounds of error relied upon would be distinctly called to the attention of the trial court and opportunity there afforded of correcting the error and useless appeals avoided. It cannot be denied that the accomplishment of the purposes indicated is an important reform, obviating useless appeals, and thereby tending to expedite the business of the courts. The rules- indicated affect a question of practice and procedure only, and express authority is conferred upon the Supreme Court to make, establish, and enforce such rules for the government of the various courts. Article 1524, R. S. 1911. It would therefore seem that the amendments to rules 24 and 25 for the government of the Courts of Civil Appeals, and the adoption of rule 71a for the government of the district and county courts, was intended for the very purpose of meeting and changing the rules of practice and procedure established by the former decisions of the Supreme Court, and especially the rule established in W. U. Tel. Co. v. Mitchell and Clark v. Pearce to the effect that a party need not call certain errors to the attention of the trial court in a motion for a new trial, and yet assign the same in the appellate court as grounds of reversal. Under rule 24, as amended, they would now be treated as waived.

At a conference of the justices of the various Courts of Civil Appeals with the justices of the Supreme Court, held in the city of Austin in September, 1911, the advisability of changing the court rules in various respects was discussed, and among the changes discussed as advisable was one which would require parties desiring to appeal or sue out error to call to the attention of the trial court, in a motion for a new trial, all supposed errors which he desired to assign in the appellate court, thus affording that court an opportunity then and there of discovering and correcting its own errors.

The promulgation of rule 71a cannot be regarded as conflicting with articles 2061 and 2062, R. S. 1911, referred to in Railway Co. v. Beasley and W. U. Tel. Co. v. Mitchell. Those articles merely relate to and dispense with the necessity of taking formal bills of exception to the ruling of the court in the giving and refusing or qualifying of instructions and to rulings and actions of the court which otherwise appear of record. They in no wise undertake to specify whether or not a motion for new trial shall be filed as a prerequisite to the right of appeal, which is the question with which rule 71a deals.

In further support of the view expressed in this opinion relative to the necessity of filing motion for new trial since the adoption of rule 71a and the purpose thereof, see Railway Co. v. Emerson, 152 S. W. 469; Nunn v. Veale, 149 S. W. 758; Astin v. Mosteller, 152 S. W. 495; Wright v. Wright, 155 S. W. 1015.

For the reasons indicated, it is the opinion of this court that the amendments indicated were intended to effect an important reform in appellate practice and procedure; that the Supreme Court had full .authority and power to make and establish same; and that it is the duty of this court to rigidly enforce the same to the end that their purpose may be accomplished.

It has been suggested that the importance of the amendments has been destroyed by an act of the Thirty-Third Legislature, approved April 4, 1913, amending article 1612, Revised Statutes of 1911, so that the same should hereafter read as- follows: “The appellant or plaintiff in error shall in all cases file with the clerk of the court below all assignments of error, distinctly specifying the grounds on which he relies, before he takes the transcript of record from the clerk’s office: Provided that where a motion for new trial has been filed that the assignments therein shall constitute the assignments of error and need not be repeated by the filing of the assignments of error: And provided further, that all errors not distinctly specified are waived, but an assignment shall be sufficient which directs the attention of the court to the error complained of.” There is nothing, however, in this statute which makes it necessary to file a motion for a new trial, and, in so far as the statute is concerned, a party desiring to appeal or sue out error could omit filing a motion for new trial and file independent assignments of error, according to the old practice. In other words, so far as affects the question here considered, the amendment to article 1612 merely dispenses with the necessity of filing assignments when a motion for new trial has been filed. As has been seen, aside from rule 71a recently promulgated, there is no necessity in any wise to file a motion for new trial as a condition to the right to appeal, and therefore it is readily apparent that rule 71a and the amendments to 24 and 25 are still potent, and that it is important to enforce observance thereof.

The motion for rehearing is overruled.


text:
    IMPERIAL IRR. CO. et al. v. McKENZIE.
    (Court of Civil Appeals of Texas. El Paso.
    May 1, 1913.
    On Rehearing, May 22, 1913.)
    1. Appeal and Error (§ 743) — Questions Review able — Assignments oe Error — Sue-piciency.
    An assignment of error which does not comply with Courts of Civil Appeals rule 25 (142 S. W. xii), providing that an assignment of error must refer to that part of the motion for new trial in which the error is complained of, will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dec. Dig. § 743.]
    2. Appeal and Error (§ 759) — Questions Reviewable — Appellants’ Briee — Assignment op Error.
    Assignments of error incorrectly copied in appellants’ brief will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. § 759.]
    Appeal from District Court, Pecos County; W. C. Douglas, Judge.
    Action by T. N. McKenzie against the Imperial Irrigation Company and others. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    J. R. Hill and W. C. Jackson, both of Ft. Stockton, for appellants. Howell Johnson and Jno. R. Storms, both of Ft. Stockton, and J. F. Woodson, of El Paso, for appellee. |

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

   HIGGINS, J.

This was an action by the appellee against the Imperial Irrigation Company and others for damages arising from trespasses by said company upon lands owned by the appellee. Upon trial before a jury, verdict was returned, and judgment thereon rendered in favor of the appellee against the Imperial Irrigation Company for the sum of $2,000.

Rule 25 for the government of the Courts of Civil Appeals (142 S. W. xii) provides that an assignment of error must refer to that portion of the motion for a new trial in which the error is complained of. None of the assignments of error comply with this provision of the rule, and they will therefore not be considered. Railway Co. v. Ledbetter, 153 S. W. 646; Nunn v. Yeale, 149 S. W. 758; Murphy v. Earl, 150 S. W. 486; Tiefel v. Winn & Maxwell, 154 S. W. 319; Railway Co. v. Gray, 154 S. W. 229.

The assignments as copied in the brief cannot be considered for the further reason that they are not true copies of the originals appearing in the record, and this court has uniformly declined to consider assignments incorrectly copied in the brief. Mt. Franklin, etc., v. May, 150 S. W. 756; Biggs v. Miller, 147 S. W. 632; Horseman v. Coleman County, 57 S. W. 304; Martin v. Bank, 102 S. W. 131; Alexander v. Bowers, 79 S. W. 342; Railway Co. v. Adams, 55 Tex. Civ. App. 245, 118 S. W. 1155; Fessinger v. El Paso Times Co., 154 S. W. 1171, recently decided by this court and not yet officially reported.

No fundamental error appearing of recora, the judgment is therefore affirmed.

McKENZIE, J., was disqualified and did not sit in this case.

On Rehearing.

HIGGINS, J.

In opinion rendered upon rehearing in El Paso Electric Railway Company v. Lee, 157 S. W. 748, just filed and not yet officially reported, we at length state our reasons for declining to consider assignments of error which do not comply with that provision of amended rule 25 (142 S. W. xii), which requires the same to refer to that portion of the motion for a new trial in which the error is complained of. We here now refer to this opinion as stating in full our reasons for declining to consider the assignments in this ease as violative of such amended rule.


author: HIGGINS, J.

text:
    CAIN v. DELANEY.
    (Court of Civil Appeals of Texas. El Paso.
    May 15, 1913.)
    1. Appeal and Error (§ 743*) — Assignments oe Error — Reference to Motion for New Trial.
    An assignment of error not referring to that portion of the motion for a new trial in which the error is complained of, as required by rule 25 of Courts of Civil Appeals (142 S. W. xii), will not be considered.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dec. Dig. § 743.-)
    2. Appeal and Error (§ 732*) — Assignments oe Error — Specifications of Error.
    An assignment of error in overruling defendant’s motion for a new trial is too general to require consideration.
    [Ed. Note. — Por other eases, see Appeal and Error, Cent. Dig. §§ 3022-3024; Dec. Dig. § 732.*]
    3. Appeal and Error {§ 759*) — Briefs— Copying Assignments of Error.
    Assignments of error which are not true copies of the originals appearing in the record cannot be considered.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. § 759.*]
    4. Appeal and Error (§ 1135*) — Affirmance —Insufficient Presentation of Case.
    Where the assignments of error cannot be considered because insufficiently presented, and no fundamental error appears, the judgment will be affirmed.
    [Ed. Note. — Por other eases, see Appeal and Error Cent. Dig. §§ 4454, 4455; Dec. Dig. § 1135.*]
    Appeal from El Paso County Court; A. 5. J. Eylar, Judge.
    Action by J. P. Delaney against William H. Cain. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Jones & Jones, of El Paso, for appellant. Brown & Terry, of El Paso, for appellee.
   HIGGINS, J.

This was a suit by Delaney against Cain for commissions alleged to be due for certain services rendered. Upon trial before a jury, verdict and judgment was rendered in favor of the appellee in the sum of $290.25.

Rule 25 for the government of the Courts of Civil Appeals (142 S. W. xii) provides that an assignment of error must refer to that portion of the, motion for a new trial in which the error is complained of.- None of the assignments comply with this provision of the rule. They will therefore not be considered. Railway Co. v. Ledbetter, 153 S. W. 646; Nunn v. Yeale, 149 S. W. 758; Murphy v. Earl, 150 S. W. 486; Tiefel v. Maxwell, 154 S. W. 319; Railway Co. v. Gray, 154 S. W. 229; Imperial Irrigation Co. v. McKenzie, 157 S. W. 751, and Konz v. Henson, 156 S. W. 593; the last two cases cited having been recently decided by this court and not yet officially reported.

The last assignment of error reads as follows: “The trial court erred in overruling and refusing to sustain defendant’s motion for a new trial.” Under numerous decisions this assignment is not entitled to consideration for the further reason that it is too general.

A number of the assignments cannot be considered for the further reason that they are not true copies of the originals appearing in the record. Mount Franklin, etc., v. May, 150 S. W. 756; Biggs v. Miller, 147 S. W. 632; Horseman v. Coleman County, 57 S. W. 304; Martin v. Bank, 102 S. W. 131; Alexander v. Bowers, 79 S. W. 342; Railway Co. v. Adams, 55 Tex. Civ. App. 245, 118 S. W. 1155; Fessinger v. El Paso Times Co., 154 S. W. 1171, and Imperial Irrigation Co. v. McKenzie, 157 S. W. 751; the last two cited eases having been recently decided by this court.

No fundamental error appearing, the judgment is.therefore affirmed.

MeKENZIE, j., did not sit in this case.


author: MeKENZIE, J.

text:
    IRVING v. TEXAS & P. RY. CO.
    (Court of Civil Appeals of Texas. El Paso.
    May 8, 1913.
    Rehearing Denied May 29, 1913.)
    1. Appeal and Error (§ 743) — Briefs—Assignments of Error — Reference to Motion for New Trial.
    Assignments of error not referring to that part of the motion for a new trial in which the error is complained of, as required by rules 24 and 25 of Courts of Civil Appeals, as amended January 24, 1912 (142 S. W. xii), cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dec. Dig. § 743.]
    2. Appeal and Error (§ 1133*) — Affirmance —Insufficient Presentation of Case.
    Where assignments of error are not sufficient to present the case on appeal, and an examination of the record discloses no fundamental error, the judgment must be affirmed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4450-4453; Dec. Dig. § 1133.]
    Appeal from District Court, Reeves County; S. J. Isaacs, Judge.
    Action between J. B. Irving and the Texas & Pacific Railway Company. Judgment for the company, and Irving appeals.
    Affirmed.
    Hefner & Cooke and Parker & Palmer, all of Pecos, for appellant. Douthit & Smith, of Sweetwater, and Howard & De Armond, of Midland, for appellee.

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

   MeKENZIE, J.

This cause was tried by the court with a jury. Appellee in its brief objects to the consideration by this- court of any of appellant’s assignments of error, because the assignments as filed, which appear in the record, do not comply with rules 24 and 25 (142 S. W. xii) for the government of the Courts of Civil Appeals, as amended January 24, 1912.

The rules referred to are as follows:

“24. The assignment of error must distinctly specify the grounds of error relied on and distinctly set forth in the motion for a new trial in the cause, and a ground of error not distinctly set forth in a motion for a new trial in the cause and not distinctly specified in reference to that which, is shown in the record, or not specified at all, shall be considered as waived, unless it be so fundamental that the court would act upon it without an assignment of error as mentioned in rule 23.
“25. To be a distinct specification of error, it must point out that part of the proceedings contained in the record in which the error is complained of, in a particular manner, so as to identify it, whether it be the rulings of the court upon a motion, or upon any particular part of the pleadings, or upon the admission or the rejection of evidence, or upon any other matter relating to the cause or its trial, or the portion of the charge given or refused, the fact or facts in issue which the evidence was incompetent or insufficient to prove, the insufficiency of the verdict or finding of the jury, if special, and the particular matter in which the judgment is erroneous or illegal, with such reasonable certainty as may be practicable, in a succinct and clear statement, considering the matter referred to, and must refer to that portion of the motion for a new trial in which the error is complained of.”

It is apparent from examination of the assignments of error, as same appear in the record, that they do not make any reference to “that portion of the motion for a new trial in which the error is complained of.” The omission is a violation of the rules just quoted, and the assignments of error will be considered by this court as waived. Davidson v. Patton, 149 S. W. 757; Railway Co. v. Ledbetter, 153 S. W. 646; Railway Co. v. Gray, 154 S. W. 229; Imperial Irrigation Co. v. McKenzie, 157 S. W. 751; Konz v. Henson, 156 S. W. 593; Railway Co. v. Lee, 157 S. W. 748; and Cain v. Delaney, 157 S. W. 751. The last four cases are not yet officially reported, having recently been decided by this court.

An examination of the record fails to disclose any fundamental error, and the judgment must be affirmed.


author: HARPER, C. J. HARPER, C. J.

text:
    SOUTHERN PAC. CO. v. WALTERS.
    (Court of Civil Appeals of Texas. El Paso.
    May 1, 1913.
    On Rehearing, June 19, 1913.)
    Appeal and Ebbob (§ 743) — Questions Reviewable — Assignments of Ebbob — Rules of Court.
    Assignments of error containing no reference to the part of the motion for new trial in which the errors were complained of in the trial court, as required by Court of Civil Appeals Rule 25 (142 -S. W. xii), will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dec. Dig. § 743.]
    Appeal from District Court, El Paso County; Dan M. Jackson, Judge.
    Action by Mary Walters, temporary admin-istratrix of F. G. Walters, deceased, against the Southern Pacific Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    ■Beall & Kemp, of El Paso, William F. Her-rin, of San Francisco, Cal., and Baker, Botts, Parker & Garwood, of Houston, for appellant. Patterson, Wallace & Gardner, of El Paso, and H. M. Wurzbaeh, of Seguin, for appellee.

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

   HARPER, C. J.

This is a suit brought by Mary Walters, temporary administratrix of the estate of F. G. Walters, deceased, to recover damages for the death of said Walters. Case was tried before jury and resulted in a verdict against defendant for the sum of $5,000.

The assignments of error in appellant’s brief will not be considered by us because not in compliance with rule 25 for Courts of Civil Appeals' (142 S. W. xii), in that there is no appropriate reference to the part of the motion for new trial in which the error was complained of in the court below. The appellant’s motion for new trial was overruled December 5, 1912. The brief was filed in this court March 25, 1913. Parties to suit and their attorneys certainly have had ample time to familiarize themselves with the rules promulgated in January, 19jl2. Jones v. Edwards, 152 S. W. 727; Railway Co. v. Ledbetter, 153 S. W. 646; Nunn v. Veale, 149 S. W. 758; Murphy v. Earl, 150 S. W. 486; Tiefel v. Maxwell, 154 S. W. 319; Railway Co. v. Gray, 154 S. W. 229; Konz v. Henson, 156 S. W. 593, recently decided by this court and not yet officially reported.

No fundamental error appearing, the judgment is affirmed.

McKENZIE, j., did not sit in this case.

On Rehearing.

HARPER, C. J.

In opinion rendered upon rehearing in El Paso Electric Railway Co. v. Lee, 157 8. W. 748, just filed and not yet officially reported, we at length state our reasons for declining to consider assignments of error which do not comply with that provision of amended rule 25 (142 8. W. xii), which requires the same to refer to that portion of the motion for a new trial in which the error is complained of. We here now refer to this opinion as stating in full our reasons for declining to consider the assignments in this case, as violative of such amended rule; copy of said opinion being hereto attached.


author: McKENZIE, j.

text:
    SLAUGHTER v. KIRKPATRICK.
    (Court of Civil Appeals of Texas. El Paso.
    May 15, 1913.
    Rehearing Denied June 5, 1913.)
    Appeal and Error (§ 7431 — Assignments op Error — Reference to Motion eor New Trial.
    Assignments of error not referring to that part of the motion for new trial in which the error was complained of will be considered as waived.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dec. Dig. § 743.]
    Appeal from Martin County Court; A. C. Eidson, Judge.
    Action between C. C. Slaughter and L. C. Kirkpatrick. Judgment for Kirkpatrick, and Slaughter appeals.
    Affirmed.
    Howard & De Armond, of Midland, and G. G. Wright, of Dallas, for appellant. A. L. Green, of Stanton, for appellee.

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

   McKENZIE, j.

This is an appeal from the county court of Martin county. The cause was tried by the court and jury. The verdict and judgment was in favor of appellee, and appellant filed a motion for new trial.

We find from examination of appellant’s assignments of error, as filed in the trial court, that no mention or reference is made to the motion for new trial. This is not a compliance with the rules which govern this court, and the assignments will be considered as waived. Our holding herein is in conformity with the following authorities: Davidson v. Patton, 149 S. W. 757; Murphy v. Earl, 150 S. W. 486; Railway Co. v. Ledbetter, 153 S. W. 646; Railway Co. v. Gray, 154 S. W. 229; Imperial Irr. Co. v. McKenzie, 157 S. W. 751; Konz v. Henson, 156 S. W. 593; Railway Co. v. Lee, 157 S. W. 748; Cain v. Delaney, 157 S. W. 751; Irving v. T. & P. Ry. Co., 157 S. W. 752. The last five cases are recent opinions of this court and not yet officially reported.

An examination of the record fails to disclose error of a fundamental nature, and the judgment, accordingly, is affirmed.


author: TALIAFERRO, J.

text:
    BARGNA v. BARGNA.
    (Court of Civil Appeals of Texas. San Antonio.
    May 14, 1913.
    Rehearing Denied June 11, 1913.)
    Appeal and Error (§ 332*) — Writ oe Error — Death oe Plaintiee in Error — Ef-eect.
    Under Rev. Civ. St. 1911, arts. 1618, 2107, declaring that the death of any party in a cause taken to the Courts of Civil Appeals by appeal or writ of error, after the service of the writ of error and before decision of the case, shall not abate the case, and that on the death of any party entitled to an appeal or demurrer the same may be taken by his executor, administrator, or heir, a writ of error in the name of the defeated party must be dismissed for want of jurisdiction, where the party was dead at the time of the service of citation in error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1842-1845; Dec. Dig. § 332.*]
    Error to District Court, Bexar County; Claude V. Birkhead, Judge.
    Action between Marco Bargna and Mary Bargna. There was a judgment for the latter, and the former brings error.
    Dismissed.
    E. H. Booth, Anderson & Belden, and Se-lig Deutschman, all of San Antonio, fór plaintiff in error. E. C. Davis and Webb & Goeth, all of San Antonio, for defendant in error.
   TALIAFERRO, J.

This case is here upon writ of error from the district court of the Seventy-Third judicial district, and this is the second time the case has been to this court. For former opinion, see 127 S. W. 1156. The record reveals that the case was tried at the October Term, 1911, and final judgment entered as of November 13, 1911. On November 11, 1912, a petition for writ of error was filed, and on November 12, 1912, citation in error was served.

By sworn motion of defendant in error filed in this cause in the lower court on November 11, 1912, it is shown that at the time the citation in error was served Marco Barg-na was dead. Articles 1618 and 2107, R. S. 1911, provide as follows:

“Art. 1618. If any party to the record in any cause hereafter taken to the Courts of Civil Appeals, by appeal or writ of error, or transferred from the Supreme Court or Courts of Appeals, shall have died heretofore, or shall hereafter die, after the appeal bond has been filed and approved, or after the writ of error has been served, and before such cause has been decided, such cause shall not abate by such death; but the court shall proceed to adjudicate such cause and render judgment therein as if all parties thereto were still living; and such judgment shall have the same force and effect as- if rendered in the lifetime of all the parties thereto.”
“Art. 2107. In case of the death of any party entitled to an appeal or writ of error, the same may be taken by his executor, administrator or heir.”

It is clear that under these statutes this court‘has no jurisdiction- to determine this cause, and any judgment upon the merits of the case would be void. Conn v. Hagan, 93 Tex. 334, 55 S. W. 323.

The writ of error is dismissed.


author: RICE, J.

text:
    INDIANA & OHIO LIVE STOCK INS. CO. v. SMITH.
    (Court of Civil Appeals of Texas. Austin.
    May 21, 1913.)
    1. Insurance (§ 633) — Actions—PETITION-SUFFICIENCY.
    A petition, in an action on a policy on the life of a horse, which alleges that plaintiff was the owner of the horse at the time it was insured, that by reason of the policy and the death of the horse defendant became liable to plaintiff to the amount of the policy, that the horse died within the life of the policy, that all the premiums had been paid, that plaintiff furnished proof of loss with demand of payment, and that defendant was indebted to plaintiff in the amount of the policy, sufficiently alleges as against a general demurrer that plaintiff was the owner or had an insurable interest in the horse at the time of its death.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1594; Dec. Dig. § 633.]
    2. Pleading (§ 34*) — Petition—Demurrer.
    The court, in passing on a general demurrer to the petition, must consider everything as properly alleged which by reasonable construction is embraced within the allegations.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 5%,- 66-74; Dec. Dig. § 34,]
    3. Pleading (§ 212) — Petition—Demurrer —Waiver.
    Where the demurrer to the petition was not presented to or acted on by the court, it must be deemed waived.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 521-524; Dec. Dig. § 212.]
    4. Pleading (§ 433*) — Defects — Aider bt Verdict.
    A verdict for plaintiff cures all defects in the petition except a failure to state a cause of action.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1451-1477; Dec. Dig. § 433.]
    5. Insurance (§ 281) — Misrepresentations —“Material to Disk.”
    The term “material to risk,” in Rev. Civ. St. 1911, art. 4947, providing that false statements in an application for insurance shall not constitute a defense, unless the matter misrepresented was material to the risk, or actually contributed to the contingency on which the policy became due, means the making of some misrepresentation of fact which induced the insurance company to assume the risk, and where one procuring a policy on the life of his horse made misrepresentations as to the value of the horse and the consideration paid therefor and whether it was mortgaged, and the misrepresentations induced the insurance company to issue the policy, the misrepresentations were material and defeated a recovery on the policy stipulating that misrepresentations by insured should invalidate the policy.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 597-600; Dec. Dig. § 281.]
    Appeal from District Court, Milam County; J. O. Scott, Judge.
    Action by David P. Smith against the Indiana & Ohio Dive Stock Insurance Company. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    Robt. M. Lyles, of Austin, Geo. T. Moore, of Houston, and Dightfoot, Brady & Robertson. of Austin, for appellant. Henderson, Kidd & Gillis, of Cameron, for appellee.

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

   RICE, J.

Appellee on the 28th of June, 1910, was the owner of an imported German coach stallion, called Rigi, and took out a policy of insurance upon his life for a period of 12 months from said date in appellant company for the sum of $1,200, paying the required premium therefor. On the 4th of August next thereafter said horse died. Proof of loss having been made in accordance with the provisions of said policy, and appellant refusing to pay the same, this suit was brought to enforce collection thereon. Appellant pleaded in defense of said action that appellee, in his written application for said insurance, falsely and fraudulently represented the value of said horse to be $3,000, and that he had paid $3,000 therefor, and that there was no mortgage upon said horse; whereas, in truth and in fact, said horse was not worth [he sum of $3,000, and that appel-lee had not paid said sum therefor, but that he had only paid $1,260 therefor, $1,000 of which was in cash and the balance in a promissory note, and said horse was at the time of such application for insurance mortgaged, together with other property, for the sum of $2,500. Said policy, among other things, provided that it should be void “in the event the insured has concealed or misrepresented (in writing or otherwise) any material fact or circumstance concerning this insurance, or the subject thereof, or if the interest of the insured be other than the unconditional and sole ownership of the property, or in case of any fraud or false swearing by the insured, touching any matter relating to this insurance, or the subject thereof, whether before or after any loss.” The evidence sustains this defense. There was a nonjury trial resulting in behalf of appellee in the sum of $800, together with $120 attorney’s .fees and 12 per cent, damages thereon, with 6 per cent, interest from date thereof, from which this appeal is prosecuted.

The first assignment of error assails the sufficiency of the petition in that it 'is not alleged therein, either by direct averment or by reasonable intendment or by implication, that appellee was the owner of or had any insurable or other interest in said stallion described in said policy of insurance at the time of his death. We think the petition would have been good as against a general demurrer, because plaintiff alleged that he was the owner of the stallion at the time it was insured; that, by reason of the execution of the policy and the death of the stallion, defendant became liable to plaintiff in the sum of $1,200 thereon. It alleged his death within the life of the- policy, and that all premiums due thereon had been paid at that time; that plaintiff had furnished defendant proof of loss, with notice and demand of payment. It further alleged that defendant is now justly indebted to plaintiff I in the sum of $1,200; that he was compelled to employ attorneys to bring suit tbereon, and by reason of the company’s failure and refusal to pay said amount defendant'is liable under tbe law in said sum, with, interest, attorney’s fees, etc.

In the case of German Insurance Co. v. Gibbs, 35 S. W. 679, it was held that, where the petition alleged that the policy was issued to the plaintiff, it was equivalent to an allegation that he was the owner, as against a general demurrer. In Rutherford v. Smith, 28 Tex. 322, it was held that an allegation in the petition, in a suit on a promissory note, that the payee, for a valuable consideration, had transferred same to plaintiff by indorsement, was a sufficient averment of title in plaintiff.

In passing upon a petition tested by a general demurrer, the court should consider everything as properly alleged which by reasonable construction is embraced within the allegations contained therein. See Gibbens v. Bourland, 145 S. W. 275, and cases there cited. But, since the demurrer was not presented to or acted upon by the court, it must be regarded as waived.

This being true, an entirely different question is presented from that in which a demurrer was presented and overruled; because the verdict in such cases will cure all defects in the petition, except a failure to state a cause of action. See Grant v. Whittlesey, 42 Tex. 320; Schuster v. Frendenthal & Co., 74 Tex. 53, 11 S. W. 1051. Believing the petition sufficient, in the state of the record, we overrule this assignment.

The next question presented for consideration is raised by appellant’s third assignment, which, in effect, contends that notwithstanding the court found, as a question of fact, that the appellee made untrue statements in his application for insurance with reference to the amount paid for said animal and its value, as well as untrue statements with reference to the same having been mortgaged at the time the policy was issued, yet he found that neither the value of said stallion, the price paid therefor, the manner of payment, nor the mortgage thereon, nor any matter or thing concerning which said untrue statements in said. application were made, was material to the risk assumed by the defendant in issuing said insurance policy, or contributed ‘ to the contingency or event on which said policy became due and payable. It is contended on the part of appellee that under said findings these misrepresentations will not avoid the policy under our statute. The article referred to reads: “Any provision in any contract or policy of insurance issued* or contracted for in this state, which provides that the answers or statements made in the application for such contract, or in the contract of insurance, if untrue or false, shall render the contract or policy void or voidable, shall be of no effect, and shall not constitute any defense to any suit brought upon such contract, unless it be shown upon the trial thereof that the matter or thing misrepresented was material to the- risk or actually contributed to the contingency or event on which said policy became due and payable, and whether it was material and so contributed in any ease shall be a question of fact to be determined by the court or jury trying such case.” See article 4947, R. S. 1911.

In this connection, however, it must be-observed that the uncontradicted evidence shows that the misstatements with Reference to the mortgage, the value of the animal, and the amount paid by appellee therefor were material to the risk; not only so, but .it appeared that the policy itself would not have been written if the company had 'known that such untrue statements were made by appellee in said application. We think any fact which induced the company to assume the risk, and without which it would not have done so, must be regarded as material thereto. The expression “material to the risk” is not equivalent to “increasing the risk,” but necessarily means the making of some representation or misstatement of some fact which induces or causes the insurance company to assume the risk; and if, as in the present case, it be shown that there were misrepresentations of fact, and these facts not only induced appellant to write the contract, but also shows that it wholly relied upon the truth of these statements in entering into said contract, and that they were material inducements thereto, the same must be regarded as being embraced within and covered by said statute.

In Boggs v. American Ins. Co., 30 Mo. 63, it is said: “‘A material fact,’ as that term is used in the law of insurance, is defined by Mr. Angelí to be a fact ‘which if communicated to the underwriter would induce him either to decline an insurance altogether, or not to accept it unless at a higher premium.’ ” It is likewise said in Clark v. Union Mutual Fire Ins. Co., 40 N. H. 333, 77 Am. Dec. 721: A material fact is any fact, “the knowledge or ignorance of which would naturally influence an insurer in making the contract at all, or in estimating the degree and character of the risk, or in fixing the rate of insurance.”

The record disclosing, as it does, that the representations made on the part of appellee to secure the insurance were untrue and material to the risk, it vitiates said policy of insurance, for which reason appellee was not entitled to recover. It therefore becomes our duty to reverse and render the judgment in favor of appellant, which is accordingly . done.

Reversed and rendered.


author: JENKINS, J.

text:
    GRELL v. SAM HOUSTON LIFE INS. CO.
    (Court of Civil Appeals of Texas. Austin.
    May 14, 1913.)
    1. Instjbaiíce (§ 150) — Life Policy — Construction — Suicide Clause.
    Where a life insurance policy provided that the agreements, benefits, and privileges stated on subsequent pages were made a part ot the contract, and on the second page contained a heading “agreements, benefits and privileges,” a provision that, in case of suicide within one year, the company should be liable only for the premiums paid, stated under a subhead, “general provisions,” on the third page, is made a part of the policy.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 305-307; Dee. Dig. § 150.]
    2. Insurance (§ 151) — Life Policy — Construction — Application.
    In the absence of a statute, an application for life insurance, which contains a clause limiting the liability in case of suicide to the net reserve, is made a part of the policy by a clause therein that it is issued in consideration of the application.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 308-311; Dec. Dig. § 151.]
    3. Insurance (§ 134) — Life Policy — Construction.
    Under Rev. Civ. St. 1911, art. 4951, providing that every contract for life insurance, except those which are indisputable after two years or less, shall be accompanied by a copy of the application, a clause in a policy providing that “it shall be incontestable after one year,” provided the required premiums are paid, is free from conditions as to residence, travel, or place of death, does not impose an extra burden upon the insured, but frees him from those conditions, and the policy is within the exception contained in the statute.
    [Ed. Note. — For other cases, see Insurance, Cent Dig. §§ 214-217; Dec. Dig. § 134.]
    Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
    Action by Agnes Grell against the Sam Houston Life Insurance Company. Judgment for the defendant, and plaintiff appeals.
    Affirmed.
    Scott & Ross, of Waco, for appellant.

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

   JENKINS, J.

The appellee, on the 9th day of October, 1909, issued a policy upon the life of Frederick William Grell, husband of appellant, for her benefit, in the sum of $1,000. The premium was paid for the first year, and within said year the insured committed suicide. The trial court rendered judgment for appellee.

The following is written in the face of the policy: “The mutual agreements, benefits and privileges stated on the subsequent pages are hereby made a part of this contract, as fully as if recited at length over the signatures hereunto affixed.” On the second page, following the signatures of the parties to said agreement, is the following: “Suicide. In case of suicide committed while sane or insane, within one year from the date on which this insurance becomes effective, the limit of recovery hereunder shall be the premiums paid.” Appellant insists that this is no part of the insurance contract, for the reason that on the first .page is printed in capital letters, “agreements, benefits and privileges,” following wjiich on the second page is a subhead printed in capital letters, “general provisions,” and the suicide clause above quoted comes under the head of general provisions. Following the subhead “general provisions” is another subhead printed in capital letters, “protection to contract if insured is wholly disabled,” under which subhead are several clauses beneficial to the insured. Following the last-named subhead is another printed in capital letters, “special installment and trust fund options.” We are of the opinion that everything on each of the first, second, and third pages following the signatures of the officers of the company are included under the term “the mutual agreements, benefits and privileges stated on the subsequent pages.”

If, however, we are mistaken in this, the judgment of the court must be affirmed for the reason that the application for insurance, part one, and signed by the insured, contains the following clause: “I further agree that if I shall die by my own hand or act, whether I be at the time sane or insane, during two years next following the date of issue of said policy the company shall be liable only for the net reserve held against said policy reckoned according to the legal standard of Texas.”. And also in another part of the application for said policy signed by the insured there is the following clause: “I further agree that self-destruction, sane or insane, and death in consequence of violation of law within one year, are not risks assumed by the company in the policy.” In the face of the policy there is written the following clause: “This contract is issued in consideration of the statements and agreements made in the application therefor, which are hereby made a part hereof, and in further consideration of the annual premium,” etc. This statement written in the face of the policy makes the application a part of the policy by which it was avoided by the suicide of the insurer, unless it is prevented from being such by our statute, which reads as follows: “Policies of insurance to be accompanied by copy of questions, etc. Every contract or policy of insurance issued or contracted for in this state shall be accompanied by a written, photographic or printed copy of the application for such insurance policy or contract, as well as a copy of all questions asked and answers given thereto. The provisions of the foregoing articles shall not apply to policies of life insurance in which there is a clause making such- policy indisputable after two years or less, provided premiums are duly .paid.” R. S. 1911, art. 4951.

The policy sued on was incontestable after one year from the date of its issue, provided tiie premiums were duly paid. Neither written, photographic, nor printed copies of the application for such policy accompanied the same. Appellant insists that this provision of the statute is not applicable to the policy sued on, for the reason that it contains an additional provision more onerous than that required by the statute. This alleged additional provision is as follows: “And is free from conditions as to residence, travel or place of death.” Appellant insists that this means that not only must the premiums be paid, but that the insured must not have violated the provisions of the policy as to residence, travel, or place of death. The application for the policy contains the following : “I also agree that if during the two years next following the date of the issue of the policy of insurance for which application is hereby made I shall, without written permission granted by said company, travel or reside elsewhere than in those parts of the United States of America tying north of the torrid zone and south of the 16th parallel of north latitude, etc., policy shall be void.” Said application also contains the following: “I also agree that military and naval service in time of war are risks not assumed by said company, and are not intended to be covered by said policy, unless a written permit therefor at the company’s regular rate of extra premium shall be granted. And that if I shall engage in any such service during the continuance of said policy, without such a permit, no claim shall exist under said policy except for the net reserve held against it, reckoned according to the legal standard of Texas.” The full clause in the face of the policy with reference to these matters reads as follows: “This contract shall be incontestable after one year from the date of its issue, provided the required premiums are duty paid, and is free from conditions as to residence, travel or place of death. No permit or extra premium will be required for military or naval service in time of war or in time of peace.” As we construe this clause, instead of being an additional burden upon the insured, it freed him from the conditions as to residence, travel, place of death and of obtaining permission to engage in military or naval service and the payment of extra premiums by reason thereof.

Rinding no error in the record, the judgment of the trial court is affirmed.

'Affirmed.


author: PRENDERGAST, J.

text:
    COWSER v. STATE.
    (Court of Criminal Appeals of Texas.
    April 30, 1913.
    Rehearing Denied June 4, 1913.)
    1. Names (§ 16) — Idem Sonans — Amer—Armor.
    The names “Amer” and “Armor” are idem sonans. Hence in ‘a prosecution for incest, in which the defense was a former marriage with Amer C., a decree of divorce given to defendant from Armor O. -is admissible in evidence under proper instructions of the court as to burden of proof on the state to show the identity of the parties, etc.
    [Ed. Note. — For other cases, see Names, Cent. Dig. §§ 4, 12-14; Dec. Dig. § 16.]
    2. Witnesses (§ 193) — Husband and Wife —“Confidential Communications.”
    In a prosecution for crime committed with defendant’s stepdaughter, defendant’s confession in the presence of his wife and daughter is not a “confidential communication” within Code Cr. Proc. 1911, art. 794.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 740, 741; Dec. Dig. § 193. For other definitions, see Words and Phrases, vol. 2, pp. 1421, 1422; vol. 8, p. 7011.]
    3. Criminal Daw (§ 369) — Evidence—Other Offenses.
    In a prosecution for incest, prosecutrix may testify as to other acts of intercourse man those charged.
    [Ed. Note.' — For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369.]
    4. Criminal Law (§ 1169) — Appeal—Harmless Error — Evidence.
    In a prosecution for incest, that the prosecuting witness testified to other acts of intercourse, even if error, was harmless error, where defendant brought out the same facts on cross-examination of such witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent..Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]
    5. Criminal Law (§ 1169) — Erroneous Admission of Evidence — Action of Court.
    Erroneous admission of evidence is not error, where witness answered before objection could be made and the court on objection promptly struck out the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]
    6. Criminal Law (§ 598) — Continuance — Absent Witness — Dilisence.
    A continuance for the absence of a witness on a third trial is properly denied for lack of diligence; where on the first trial the witness had testified, and on the second trial, resulting in a hung jury, motion for continuance to procure this witness was denied.
    [Ed. Note. — For other cases, Law, Cent. Dig. §§ 1335-1341; 598.] see Criminal Dec. Dig. §
    7. Criminal Law (§ 595) — Continuance — Absent Witness.
    In a prosecution for incest with defendant’s stepdaughter, the testimony of a witness that he had seen a young woman and man in a compromising position at defendant’s house three months after the crime charged in the indictment is not of sufficient materiality to render it error to deny a continuance for the absenpe of such witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1328-1330; Dec. Dig. § 595.]
    Appeal from District Court, McCulloch County; Jno. W. Goodwin, Judge.
    W. H. Cowser was convicted of incest, and he appeals.
    Affirmed.
    J. E. Shropshire, of Brads’-, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, J.

Appellant was convicted of incest with a penalty of four years in the penitentiary.

As stated by appellant’s able attorney, there are but few questions to be decided in this case. The evidence of appellant’s guilt is clearly sufficient to sustain the verdict.

After the state, had introduced its proof clearly malting out the case against appellant, in order to defeat the state’s case and show that he was not legally married to the mother of the complaining witness and thereby show that she, in law, was not his stepdaughter, he introduced a properly certified copy of a marriage license from New Mexico with the return thereon showing that he was lawfully married on March 3, 1901, to Miss Amer Harvey, and rested. The state, in order to meet this, introduced appellant’s 15 year old son, who testified that his father called the name of that wife “Armor.” The state then introduced, over his objections a properly certified copy of a divorce decree from the district court of Hopkins county, showing that on August 27, 1907, appellant procured a divorce from Armor Cowser. His son also testified that his father moved from New Mexico to Hopkins county, and was living in Hopkins county at or about the time this divorce was obtained by him. He made no objection whatever to the testimony of his son. The court, in approving his bill to the introduction of said divorce decree, qualified it with this explanation: “The witness testified that he knew his father’s wife as Armor and that his father called her Armor; that defendant moved to Hopkins county, Tex., and lived there; and that his wife did not go to Hopkins county with defendant. The divorce was granted in Hopkins county, Tex. The court admitted the decree after the witness had testified as above stated, and iu the charge submitted the question of the identity of the parties named in the decree of divorce with defendant and his wife, Amer or Armor, See charge of court.” The court charged that: “The essential ingredients of the crime with which' the defendant stands charged are: First, the legal marriage of defendant to Mrs. A. C. Turn (Mrs. Turn was the mother of the prosecutrix by a former marriage). Second, that defendant while so married to Mrs. A. 0. Oowser (formerly Mrs. Turn) had sexual intercourse with Agnes Turn. Third, that Agnes Turn was the daughter of Mrs. W. H. Cowser by_ a former marriage. Fourth, that at the time defendant married Mrs. A. C. Turn, if he married her, her husband, A. O. Turn, was dead. Fifth, that at the time defendant married Mrs. A. C. Turn, if he married her, the marriage of defendant to Florence Dutton had been dissolved by the death of said Florence Dutton. Sixth, that at the time defendant married Mrs. A. G. Turn, if at all, the former marriage of defendant to Amer Harvey had terminated by divorce. And the burden of proof is on the state to prove beyond a reasonable doubt each and all the foregoing ingredients of the crime; and, if it has not been done so, it will be your duty to acquit defendant, or if you have a reasonable doubt whether or not the state has proven each and all the ingredients of said alleged crime, you will acquit the defendant.” Then, in addition, further charged as follows : “The state has introduced in evidence a certified copy of a judgment rendered by the district court of Hopkins county, Tex., in a ease entitled W. H. Oowser v. Armor Oowser. Unless you believe from the evidence in this case, beyond a reasonable doubt, that Amer Oowser, the woman to whom the defendant was married in New Mexico, was commonly called Armor Oowser, and that the Armor Cowser mentioned in said judgment was one and the same person as Amer Cowser, and that the W. H. Cowser mentioned in said judgment was one and the same person as the defendant, you will acquit the defendant.” Still, in addition, he charged that the burden of proof was on the state, and the presumption of innocence until guilt is established by legal evidence beyond a reasonable doubt, and if they had a reasonable doubt as to his guilt to acquit him. The court committed no error in permitting the introduction of said divorce decree under the evidence and the charge of the court. The names “Amer” and “Armor” are idem sonans. Feeny v. State, 62 Tex. Cr. R. 585, 138 S. W. 135; Gentry v. State, 62 Tex. Cr. R. 497, 137 S. W. 696; Smith v. State, 63 Tex. Cr. R. 185, 140 S. W. 1096; American Ins. Co. v. Rodriguez (Civ. App.) 145 S. W. 654; and authorities cited in said cases.

The act of sexual intfercourse by appellant with his said stepdaughter was alleged to have been committed on or about April 30, 1910, which was clearly proved. By this act of intercourse his stepdaughter became pregnant and she so advised him. He consulted a doctor soon afterwards, telling him that said girl had suppressed menses and consulted the doctor thereabout. He after-wards gave her some medicine to take, which she took under his direction for the purpose of bringing on her menses, or bringing on an abortion; but it had no effect. After the condition of the girl became such as to be noticed by ■ the family, they became uneasy about it and wanted to call in a local physician to examine her and determine what was the matter with her. Appellant vigorously opposed this and threatened personal violence to them or any physician who would there be called in for that purpose. After further consultation, with the family and appellant all present, it was determined to take the girl from Brady in McCulloch county to Ft. Worth and have her examined by a specialist to ascertain what was the trouble with her. Appellant wanted to take the girl himself alone. Her mother demurred to this and insisted upon going with them. He vigorously opposed this. However, he and the girl and her mother, together, proceeded to Ft. Worth. Upon reaching there the three went to a hotel, registered, got a room, and went to the room. He wanted to delay the consultation with a physician. The mother insisted that it should be had at once. After seeing that he could not prevent this, he then confessed to the mother and daughter, all three being present, that he was the author of the girl’s condition and that she was pregnant by him. Soon after this, his wife, the mother of the girl, procured a divorce from him. The court, over his objections, permitted the mother and girl both to testify to what he said to them in his confession in the hotel; appellant contending that the former wife was not a competent witness to testify to what he had confessed and told them at the time. The court, in approving his bill to the admission of this evidence by his former wife, qualified it as follows: “The court ruled that any conversation between defendant and his wife in the presence and hearing of a third party was admissible. The court did not rule that it would be admissible if a third party heard some of it. At the time this witness testified in this ease, the defendant and his wife, A. O. Cowser, had been legally divorced, and all the conversation admitted was in the presence and hearing of a third party or parties.” The court’s action in admitting this testimony was proper. Richards v. State, 55 Tex. Cr. R. 278, 116 S. W. 587; Cole v. State, 51 Tex. Cr. R. 89, 101 S. W. 218; Gant v. State, 55 Tex. Cr. R. 290, 116 S. W. 801.

This court, through Presiding Judge Davidson, in the Richards Case, supra, held: “Article 794 (774) of the Code of Criminal Procedure interdicts the admission of confidential communications between the husband and -wife, during or after the dissolution of the marriage. These statements were not confidential communications. They were made in the presence of others in a general running conversation, and were not of a confidential nature. This question, almost identically stated, was ruled favorably to appellant’s contention in Cole v. State, 51 Tex. Cr. R. 89 [101 S. W. 218]. The authorities are practically harmonious to the effect that confidential communications between husband and wife are not admissible^ either during coverture or after the dissolution of the marriage relation; but the authorities are practically harmonious to the effect that communications or statements made between the husband and wife, in the presence of others, are not privileged. Com. v. Griffin, 110 Mass. 181; State v. Hoyt, 47 Conn. 518 [36 Am. Rep. 89]. Statements of one spouse to the other in the presence of third persons may be proved by such persons. Rex v. Simons, 6 Car. & P. 540; Gannon v. People, 127 Ill. 507 [21 N. E. 525, 11 Am. St. Rep. 147]; Shuman v. Supreme Lodge, 110 Iowa, 480 [81 N. W. 717]; Jacquith v. Davidson, 21 Kan. 341; Bank v. Hutchinson, 62 Kan. 9 [61 Pac. 443]; State v. Gray, 55 Kan. 135 [39 Pac. 1050]; Fay v. Guynon, 131 Mass. 31; Long v. Martin, 152 Mo. 668, 54 S. W. 473; People v. Hayes, 140 N. Y. 484 [35 N. E. 951], 23 L. R. A. 830 [37 Am. St. Rep. 572]; Toole v. Toole, 109 N. C. 615 [14 S. E. 57]; Allison v. Barrow, 3 Cold. [Tenn.] 414 [91 Am. Dec. 291]; Queener v. Morrow, 1 Cold. [Tenn.] 123. These authorities support the decision of Cole v. State, supra. The same rule is laid down by Mr. Greenleaf in the first volume of his valuable work on Evidence, under sections 337, 338, and numerous authorities cited in the notes under these sections.”

In 40 Cyc. p. 2359, the law is stated as follows: “A communication between husband and wife in the presence and hearing of a third person is not so confidential as to be a privileged communication, unless such third person is a young child, or is otherwise totally incapable of comprehending what is being said, and either the husband or wife or the third person who was present may testify in regard thereto. A fortiori the privilege does not extend to communications by one spouse to a third person in the presence of the other spouse, or to a conversation participated in by husband and wife and a third person. Even though a conversation between husband and wife was intended to be confidential, a third person who overheard it may testify as to what was said” — citing authorities from several states, among them, from this state. The same doctrine is laid down in 10 Ene. of Ev. p. 194 (2). In fact, we think this doctrine is unquestionably well settled.

By another bill appellant complains of the action of the district attorney in asking the prosecutrix this question: “Q. How many times did he have intercourse with you, Miss Agnes?” To which she answered: “A good many times.” That the question was asked and the witness answered before he could object thereto. That he at once thereafter objected to the question and answer and to the conduct of the district attorney in asking this question and' getting this evidence before the jury. The courj; promptly instructed the jury to disregard both the said question propounded and answer. The court, in approving the bill, qualified and explained it as follows: “Defendant’s counsel on cross-examination of Agnes Turn propounded to her and elicited from her the following answers:. Q. When he (defendant) took you out of bed and did that way (had intercourse with her), you did not wake your sister up? A. No, sir; he wouldn’t let me. Q. Well, you did not wake your mother? A. No, sir. Q. Then it went on for a month or two after-wards and still you did not tell your sister or your mother; in fact, you never did tell your mother about it, did you, until after this prosecution, did you? A. No, sir. On re-examination- the district attorney propounded the question objected to with result stated in the bill. The attorney for defendant having proved that intercourse between these parties went on for a month or two, if there was error in the action of the district attorney, it was, in view of the foregoing, harmless.” There is no error presented by this. First, the testimony was admissible. Burnett v. State, 32 Tex. Cr. R. 87, 22 S. W. 47; Battles v. State, 63 Tex. Cr. R. 147, 140 S. W. 783, and authorities therein cited. Second, appellant himself, having, as shown by the qualification of the judge, proved the same thing by the witness, he cannot cpmplain, even if the question by the district attorney and answer thereto had been inadmissible. Third, and even if it had been inadmissible, the court, having promptly sustained the objection thereto and instructed the jury not to consider it, no reversible error would be shown.

The case had formerly been tried at a previous term. It is not certain whether a verdict was then returned against appellant, or a mistrial, because of a hung jury. Appellant’s witness Bud Sessom was present and testified at that time. At a subsequent term the case was again called for trial, the state announced ready, and the appellant made an application for a continuance on account of the absence of his said witness. The court overruled his application' that time and forced him to trial. That trial resulted in a hung jury. At the September term, 1912, the case was again called for trial, and appellant then filed his second application for continuance on account of the absence of said witness. That trial resulted in this conviction. The application for a continuance, we think, was properly overruled, because it did not show diligence by the appellant in attempting to secure the attendance of his said witness. Giles v. State, 148 S. W. 317, and authorities there cited. The .court, in approving appellant’s bill to the overruling of this application for a continuance, qualified and explained it as follows: ‘‘This witness on a former trial of this case before this court testified, and with the knowledge of what he had formerly testified, the motion was ruled upon. The testimony of the witness on the former trial was substantially as follows: Along in the latter part of July or August, I went to the defendant’s house east of town, selling some pears. There is a little frame house out to the east of the dwelling house, and when 1 drove up and hollered some one opened the door of this little house, and there was a couple in there. I saw a lady lying on the pallet and a young man looked like he was getting up from the pallet. The best I could tell, the young lady’s clothes were up. I didn’t know either one of these parties and never did know who they were. After I first saw them, they went to the back of the room, and I turned to get some pears out of the wagon, and when I raised up there were several people out at the wagon, but I could-n’t say whether this couple was out there or not.” Even if appellant had used sufficient diligence to get this witness, his testimony, as shown in the qualification by the judge, would not have been of such materiality as to authorize or justify this court to reverse the case. The offense was charged to have been committed on or about April 30, 1910. Even if this testimony would have tended to show that the prosecutrix was seen in a compromising position with another in the latter part of July, or August, following, or even that she had had intercourse with another at that time, it would have been no defense to appellant’s incestuous intercourse with the girl three or four months prior thereto.

No reversible error whatever is shown.

The judgment will be affirmed.