text:
    JONES HARDWARE & FURNITURE CO. v. GUNTER.
    (No. 934.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 1, 1916.)
    1. Garnishment «=>178 — Answer—Effect.
    A garnishee, having appeared by answer to the "writ served on him, placed himself in court, and no commission was required to be issued to take his answer after his answers had been stricken out.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 329-334; Dec. Dig. «=>178.]
    2. Garnishment «=178 — Default Judgment —Setting Aside — Statute.
    Under Rev. St. 1911, arts. 281, 292, authorizing the rendition of judgment against the garnishee for the full amount of the judgment against the defendant in the proceeding in which the writ issued if the garnishee fails to make full answer to the interrogatories, a garnishee company which undertook to answer the interrogatories in a writ, and which without willful intent and through oversight failed to answer a question interlined in ink near the bottom of the page, which was faint, as to whether a defendant owned shares in the garnishee corporation, and which on its motion to set aside a default judgment showed that the defendant owned no shares, was entitled to have the judgment set aside, and to be allowed to file its answer.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 329-334; Dec. Dig. <^=178.]
    3. Garnishment «=>93 — Writ—Statute.
    Under Rev. St. 1911, arts. 275, 276, 284, and 287, requiring that it appear from the affidavit that the garnishee is a corporation and that the debtor lias shares therein, and, if otherwise, the writ cannot require the garnishee to answer as to the number of shares the debtor owns in the company, a writ purporting to recite the affidavit, not alleging that the judgment debtor owned shares in the garnishee corporation was faulty and calculated to mislead the garnishee.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 160, 174 — 180; Dec. Dig. «=>93.]
    Appeal from Roberts County Court; J. Kinney, Judge.
    Action by H. D. Gunter against W. H. Brown and another, with garnishment against Jones Hardware & Furniture Company. Judgment against the garnishee by default, motion to set aside judgment overruled, and the garnishee appeals.
    Reversed and remanded, with instructions to set aside the judgment and permit the garnishee to answer.
    Hoover & Dial, of Canadian, for appellant.. J. A. Holmes, of Miami, for appellee.
   HUFF, C. J.

H. L. Gunter obtained judgment in the county court of Roberts county, Tex., for the sum of $816.09, against W. H. Brown and M. Frankness Reed. In that suit Gunter filed his affidavit that he had reason to believe that the Jones Hardware & Furniture Company, a corporation, whose residence was alleged to be in the town of Canadian, Hemphill county, Tex., was indebted to W. H. Brown or had in its hands effects belonging to him, and that Brown is the owner of shares in the above-named corporation and had an interest therein. This affidavit is dated April 7,1915. On the 8th day of April, a writ of garnishment was issued by the clerk of the county court of Roberts county, directed to the proper officers of Hemphill county, reciting therein that Gunter had made affidavit to the effect that he had recovered judgment against Brown and Reed for $816.09 and $9.65 costs, “that said judgment still remains due and unsatisfiéd, and that defendant has not within the knowledge of affiant property, in his possession within this state subject to execution sufficient to satisfy said judgment, and that affiant has just reason to believe that the Jones Hardware & Furniture Company, a corporation duly incorporated, is indebted to the said W. H. Brown, or has effects of the said W. I-I. Brown in its hands, and has applied for a writ of garnishment against the said Jones Hardware & Furniture Company, a corporation duly incorporated,” directing that appellant be summoned to answer at the next term of the county court of Roberts county, at Miami, which convened July 5, 1915, what, if anything, it was indebted to Brown, and what when the writ was served, what effects, if any, of Brown it had in its possession and when the writ was served, and what other person, if any, within its knowledge, was so indebted, etc., “and, further, to answer what number of shares, if any, the said W. H. Brown owns in said company and owned when such writ was served.” This last clause is added after the interrogatories as to indebtedness, effects, and what others were indebted or had effects of Brown. The original writ is sent up in this transcript by order of the court. The interrogatory with reference to shares is interlined at the bottom of the writ by a typewriter, the ribbon of which was evidently badly in need of ink, as it is very dim, requiring close attention to read it. On July 5th the garnishee, appellant herein, answered, denying indebtedness to Brown or that it had any effects of his, etc., but failed to answer as to whether Brown had any shares in the corporation.

At the October term of the county court, on the 5th day of October, the appellee, Gun-ter, filed his exception to the answer of the garnishee, because it had failed to answer as to the number of shares, as required, and moved to strike out the answer upon that ground. The trial court sustained the motion and struck out the answer, and on the 5th day of October, 1915, rendered judgment against appellant for the full amount of the judgment theretofore rendered against Brown and Reed, for the sum above specified.

On the 7th day of October, 1915, appellant filed a motion to set aside the judgment by default, setting up several grounds, among which were that its failure to answer the writ as to the shares owned by Brown in its corporation was an oversight and a clerical error, and was not willfully made or omitted ; that, as a matter of fact, Brown did not own any shares in the corporation at the time of the service of the writ or at the time of making the motion, etc. The appellant offered evidence of O. O. Shaller, appellant’s secretary and treasurer, which evidence was rejected by the trial court. The evidence offered is to the effect that he (Shaller) prepared the answer, and that he faithfully undertook to answer the interrogatories, and, if any were left unanswered, he failed to see it; that the question unanswered was interlined down near the bottom of the page on the writ and was not very plain, and his failure to observe it was the cause of its not being answered; that he undertook faithfully to make answer to all the interrogatories; that his failure was not prompted by any desire to mislead or harass the appellee in any manner. He then testified that Brown owned no shares in the corporation, and fully negatived all the questions in the writ.

The trial court sustained objections to this evidence made by the appellee to the effect that the evidence was immaterial and irrelevant; that it came too late; that the garnishee had failed to answer, and was then attempting to get before the court another answer. The trial court refused to set aside the judgment by default, and overruled the motion of the appellant, to which action exceptions were taken and this appeal prosecuted.

The appellant assigns error on the part of the trial court in overruling and in not sustaining the motion, on the grounds above set out, because the allegations and proof offered raised the question as to whether Brown owned any shares, and whether or nor the failure of the garnishee to inset that fact in his answer was an oversight or a clerical error, and whether it was willfully made or omitted for the purpose of injuring the ap-pellee. The trial court in his conclusions of law filed herein says that, appellant having failed to answer the writ as required and having failed to appear and answer on appearance day, the appellee was entitled to recover, and that the motion to set aside the judgment was too late and should be overruled.

Appellant, having appeared by answer to the writ served on him, placed himself in court, and no commission was required to be issued to take his answer after his answer had been stricken out. Gay Ranch Co. v. Pemberton, 23 Tex. Civ. App. 418, 57 S. W. 71, and authorities cited.

Under articles 281 and 292, R. O. S., judgment may be rendered against the garnishee for the full amount of the judgment against the defendant in the proceedings out of which the writ issued, if the garnishee failed to make full answer to the interrogatories. Selman v. Orr, 75 Tex. 528, 12 S. W. 697; Helton v. Lewis, 74 Tex. 411, 12 S. W. 93; McDowell v. Bell, 46 S. W. 400. The question, however, remains: Did the court err in refusing to set aside the default under the facts of this case? There is no question raised but that the garnishee showed a meritorious defense, and that it was not liable for the debt. The mere omission to observe the interrogatory and a clerical mistake in drawing the answer which omitted to answer the interrogatory may not be sufficient ordinarily to excuse the omission. Appellee relies upon the case of Freeman v. Miller, 51 Tex. 443. In that case there was no motion made to set aside the default in the trial court, but it was sought to be corrected by appeal to the Supreme Court. The court therein said:

“If from accident, mistake, or other cause injustice has been done the garnishee, he himself must take the initiative, and, by motion made in due time, or other proper proceedings, seek to sot aside the judgment.”

Afterward the garnishee in the Freeman Case presented a petition for injunction, setting up that a justice of the peace drew up the answer, and it was alleged that he was ignorant of the law and inexperienced, etc. The trial court upon motion dissolved the injunction. From his order the ease was again taken to the Supreme Court (53 Tex. 372), and that court reversed the action of the trial court in dissolving the injunction. When the Freeman Case was first before the Supreme Court, the case of Dowell v. Winters, 20 Tex. 794, was cited as being in point upon the proper practice in a case of that character. In the case cited it is said:

“But where the trial has not been, delayed, and there is an affidavit of merits, we think the default should be set aside and the answer received, upon some showing by way of excuse for the failure to plead in time. The excuse proffered in this case was certainly very slight. But it appears that the counsel acted under a mistake of law, * ■ * * and there is reason to apprehend that, if not allowed to make defense, irreparable injury may be the consequence.”

In this case the motion to set aside the judgment .was timely, less than two days after the rendition of the judgment, and at the same term of court, and no serious delay could have resulted. It is stated there was an oversight in making the answer and a clerical error, and that there was no purpose to mislead or delay the plaintiff in this case. The grounds as an excuse is slight, and perhaps does not come up to that full measure required in showing no fault in failing to properly answer; but such an oversight can readily be understood when the writ itself is examined. It is on a printed form, with all the questions save the one not answered printed, and this one is crowded between the printed interrogatories and the direction to the officer to make return of the writ, and so dimly typewritten that it is difficult to perceive it. The party making the answer gives this as his excuse for not answering the interrogatory. In addition to the dimness of the interlineation, the writ purports to set out what the affidavit for the .writ states. The affidavit, according to the writ, did not state that affiant had cause to believe that Brown, the judgment debtor, owned shares in the appellant corporation. That was omitted from the writ in its recitation of the affidavit. Under articles 275, 276, 284, and 287, R. O. S., it must appear from the affidavit that the garnishee is a corporation or joint stock company, and that the debtor has shares therein; otherwise the writ is not authorized to require the garnishee to answer what number of shares the debtor owns in such company. Le Tulle, etc., v. Markham, etc., 94 S. W. 417. The writ recited what purported to be the contents of the affidavit, which, if true, did not require an answer as to the shares owned by Brown. The appel-lee at least .was in fault to the extent in procuring the writ which was calculated to mislead the garnishee, who was a nonresident to the county of the suit. In a suit against a garnishee for conversion of effects it is required that the facts relied upon establishing liability for such conversion be alleged. Holloway Seed Co. v. Bank, 92 Tex. 187, 47 S. W. 95, 516.

In this case the appellee, by procuring the writ issued which it did, notified the appellant that under the law it was not required to answer what shares Brown owned in the company. This writ, together with the interlined dim question, was reasonably calculated to procure the answer as made and to omit from the answer the shares owned or not owned by Brown. In the case of Jemison v. Scarborough, 56 Tex. 358, it is said, “The interrogatory not answered in form is misleading,” and for that reason it was suggested that the default should not be allowed. It is doubtless contended by appellee that appellant in -this case, being in court, by answer, should take notice of the affidavit, but, as the facts show, it was not personally present, and when it prepared its answer in another county it answered all the interrogatories the law required, under the recitation in the writ, and we believe that fact should be looked to on the question of its negligence. We think it may be said that the omission in the answer was not willful, but due to an oversight on the part of appellant, and, no delay which would have affected the rights of the parties appearing, the court ought to have granted the motion to set aside the judgment and to have permitted the appellant to file its answer. Bank v. Robertson, 3 Tex. Civ. App. 150, 22 S. W. 100, 24 S. W. 659; Simmons v. Ash, 1 Tex. Civ. App. 202, 20 S. W. 719; Capps v. Bank, 134 S. W. 808; Wood v. Edwards, 9 Tex. Civ. App. 537, 29 S. W. 418; Heath v. Jordt, 31 Tex. Civ. App, 535, 72 S. W. 1022.

The case will be reversed and remanded, with instructions to the trial court to set aside the judgment against appellant and to permit it to answer.

Reversed and remanded, with instructions.
      (S^AFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HODGES, J.

license: Public Domain

text:
    RILEY et al. v. TOWN OF TRENTON et al.

    (No. 1550.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 29, 1916.
    Rehearing Denied Feb. 3, 1916.)
    1. Municipal Cobpohations <@=>279 — Statutory Provisions — Adoption by Election— Necessity op Petition.
    Rev. St. 1911, art. 1016, providing that the benefits of that chapter should apply to any city when the governing body shall submit the question to the voters and the majority shall vote in favor thereof, and that whenever 100 qualified voters of any city shall petition for an election for that purpose, it shall be the duty of the governing- body to order it, does not make a petition by the voters a prerequisite to the calling of the election by the governing body.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 739; Dee. Dig. <@=> 279.]
    2. Constitutional Daw <@=363(2) — Statutes <®=>90(1) — Municipal Corporations — Legislative Control — Election — Constitutionality.
    Rev. St. 1911, art. 1016, authorizing cities-not incorporated under the title including that article to adopt by election the provisions of the chapter thereof relating to street improvements, is not a delegation of legislative power, and does not violate Const, art. 11, § 4, providing that cities and towns having a population of 5,000- or less may be chartered alone by general law any more than does article 1034, which provides for a vote by residents of a territory on the question of becoming incorporated, since-in both cases the law is already adopted and the vote merely brings about a condition to which by its terms .the law is made applicable.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 109, 111, 112, 114; Dec. Dig. <@=>63 (2); Statutes, Cent. Dig. § 98;. Dec. Dig. <@=390(1).]

      3. Constitutional Law <§=42 — Persons Entitled to Raise Question — Interest.
    Property owners cannot restrain a city from constructing a sidewalk in front of tlieir premises on property which is part of the public thoroughfare because of the unconstitutionality of the statute under which the city is proceeding, since no right of theirs is being invaded.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. I5ig. §§ 39, 40; Dee. Dig. <®=42.]
    Appeal from District Court, Fannin County.
    Suit by E. J. Riley and others against the Town of Trenton and others. Judgment for the defendants, and plaintiffs appeal.
    Affirmed.
    Cunningham & McMahon, of Bonham, for appellants. C. A. Wheeler and Rosser Thomas, both of Bonham, for appellees.

      Application for writ of error pending in Supreme Court.

   HODGES, J.

The conceded facts in this case show that the town of Trenton, one of the appellees, was incorporated in 1890 under the provisions of what is now known as chapter 14 of title 22 of the Revised Civil Statutes of 1911, relating to the incorporation of towns and villages. In 1915 the board of aldermen of the town of Trenton, acting without any petition therefor, ordered an election to be held by the qualified voters to determine whether or not the town of Trenton should adopt the provisions of chapter 11 of title 22 of the Revised Civil Statutes relating to the cities and towns. An election, the regularity of which is not questioned, was accordingly held, and resulted in favor of the adoption of those provisions of the statute. The article of the statute which is relied on as authority for this action is article 1016, a part of chapter 11, and contains the following provision:

“The benefits of the provisions of this chapter shall apply to any city, and the terms thereof be extended to the same, when the governing body thereof shall submit the question of the adoption or rejection hereof to a vote of the resident property taxpayers who are qualified voters of said city at a special election called for the purpose by said city.”

Then follow certain requirements as to the proceedings which shall be adopted in holding the election and making the returns. The article concludes with the following:

“Whenever the provisions of this chapter shall have been adopted by any city the governing body thereof shall have full power to pass all ordinances or resolutions necessary or proper to give full force and effect thereto and to every part thereof. Whenever one hundred qualified voters in any city shall in writing petition for an election to determine the adoption of this chapter, it shall be the duty of its governing body to order such election.”

Some time after the election above referred to the board of aldermen of the town of Trenton ordered the construction of certain street improvements, consisting of sidewalks, on what is known as Pearl street. The character of the improvements was such as was authorized by the provisions of chapter 11, which had been adopted. The cost "of construction was assessed, in accordance with those provisions, against the owners of property abutting on the street. More than 20 days after these assessments had been made the appellants, claiming to be the owners of property on Pearl street, prayed for and obtained a temporary injunction restraining the town of Trenton and its officers from the further prosecution of the street improvements theretofore entered upon. The petition contains the following, among other averments:

“That plaintiffs are the owners in fee simple of land in said town of Trenton situated on Pearl street thereof; that defendants are illegally and unjustly depredating upon the premises of plaintiff, and are now engaged in digging the same up preparatory to laying a cement walk on same at points not on the street line, but in sucli a way as to leave land of plaintiffs between the actual street and the sidewalk as it is about to be constructed; that defendants, unless enjoined and restrained, will continue to depredate upon said land and complete the building of such sidewalk, to the irreparable injury of plaintiffs and their said property.”

The petition then proceeds to state that the defendants were claiming to act under the provisions of chapter 11, title 22; that the election ordered and the referendum vote taken were without constitutional authority and void. They further allege that no petition as required by law had been submitted asking for such an election, and for that reason the election was void.

On final hearing the temporary order theretofore granted was dissolved, and the perpetual injunction prayed for was refused. In their appeal from that judgment the appellants urge two grounds for a reversal. The first is that article 1016, by virtue of which the election was held, is in violation of the Constitution, which does not permit the Legislature to delegate any part'of its legislative functions. The second is that the election was void because ordered and held without a petition theretofore having been filed asking for such an election.

Of the second ground referred to it is sufficient to say that article 1016 is not susceptible of the construction placed upon it by the appellants. It does not provide, either expressly or by implication, that a petition is essential to authorize a submission of the question to the qualified voters of the city or town. That portion relating to a petition is merely designed to provide a method for compelling the proper authorities to submit the question to the voters when for any reason they have failed or refused to do so.

The next question then is: Has the Legislature the power to authorize cities and towns and villages incorporated under the general laws of the state to determine for themselves whether or not they will adopt any provisions of the statute relating to the incorporation of cities, towns and villages not otherwise expressly made applicable? Article il, section 4, of tlie Constitution contains the following:

“Cities and towns having a population of five thousand or less may be chartered alone by general law.”

Title 22, with its 17 chapters, contains the general laws enacted at different times by the Legislature in an effort to comply with that provision of the Constitution. The first 13 chapters 'of that title relate exclusively to cities and towns containing a population of 1,000 or over. Article 762, with which chapter 1 begins, provides:

“Any incorporated city, town or village in this state, containing one thousand inhabitants or over including those incorporated under chapter 14 of this title, or chapter 11 of title 18 of the Revised Statutes of 1895, and other laws general or special, may accept the provisions of this title relating to cities and towns, in lieu of any existing charter by a two-thirds vote of the council of such city, town or village,” etc.

The article following is as follows:

“The provisions of this title shall not apply to any city, town or village until such provisions have been accepted by the council in accordance with the preceding article.”

Chapter 11, which relates to street improvements, contains article 1010, which has been previously quoted, and which permits towns and villages that are unable or unwilling to avail themselves of all the provisions enacted for the benefit of cities and towns of 1,000 or more, to adopt the provisions of chapter 11 alone. The infirmity of the article assailed in this instance, if it has any, consists in the fact that it makes the application of the general law embraced in chapter 11 dependent upon the will of the people of a particular locality. The contention is that the Legislature alone has the power to say when, to whom, or to what conditions a law shall apply, or who shall be governed by its provisions. This objection, if tenable, will apply with equal force to article 1034, the only article now embraced in the statute which provides a method of procedure for becoming incorporated cities, towns, and villages under the general law; and Would render unavailable all the general provisions of title 22 not otherwise specially applied. By the terms of the law providing for the incorporation of municipalities, such as cities, towns, and villages, the initial steps and the essentials required to become subject to any general incorporation law are matters to be determined by the people of the particular territory by a referendum vote. If it can be said that the objection would not apply to the original formation of the corporation because of the constitutional provision quoted, it may with propriety be said that it should n'ot apply to those laws designed to enlarge or extend the corporate powers. These are also parts of the general law relating to the incorporation of cities and towns. If the Legislature, in the first instance, may permit the inhabitants of a given territory to determine for themselves whether they shall become incorporated and be subject to the duties and liabilities incident to incorporation as prescribed by tlie laws relating thereto, there seems to be no good reason why the Legislature may n'ot also provide a similar means for enlarging or extending the corporate powers. The article assailed is just as much a part of the general laws relating to the incorporation of cities and towns as any of the other provisions of title 22. In voting to adopt certain statutory provisions, the voters do not in reality adopt the law; they merely bring about a situation to which the law by its terms has been made applicable. The law is the finished product of the Legislature, and it only awaits the existence of the conditions to which by its terms it is made applicable in order to be enforced. We think the following authorities settle that proposition: Stanfield v. State, 83 Tex. 321, 18 S. W. 577; Johnson v. Martin, 75 Tex. 33, 12 S. W. 321; San Antonio v. Jones, 28 Tex. 31; Graham v. City of Greenville, 67 Tex. 62, 2 S. W. 742. To these may be added the cases collated in the notes of State v. Butler, 18 Ann. Cas. 489, and State v. Frear, 20 Ann. Cas. 633.

In Johnson v. Martin the controversy involved the right of the Legislature to authorize the commissioners’ courts of the different counties to order an election for a public weigher. After referring to some constitutional provisions, the court said:

“The law as it stands was enacted by the Legislature in accordance with constitutional form, and as a law was complete by the legislative enactment. The commissioners’ courts have no power to revise or modify the act in any respect. They' merely have the right to put the law in force by having an election; to organize by calling an election for the officer, who is to execute the law as it came from the hands of the Legislature. It might be said that the law is to take effect upon the happening of a subsequent event; that is, the decision of the commissioners’ courts that it is necessary in their respective counties. Such discretion to the council boards of subordinate branches or divisions of the government is not unusual and is not unconstitutional. It is allowed to them because in matters of local regulation it may be fairly supposed they are more competent to judge of their needs than a central authority. The Legislature cannot merely propose a law to be adopted for the people; but where there is affirmative, legislation its enforcement in counties, districts or towns, when the law so provides, may be left to the option of such localities. * * * The-privilege of the electors of a district to be affected by a law to say whether they will accept its provision^, the law giving them the right to-accept or reject, is now generally permitted and-regarded as constitutional.”

In Stanfield v. State the court had occasion to pass upon the validity of that provision of the statute which authorized commissioners’ courts to determine whether or not there should be held an election for a county superintendent. The authority was sustained, and the following argument was made:

“It will be seen that the act of the creation-of the office was made to depend in each county upon the action of its county commissioners' court as to its taking effect there, and we are-not able to see any material distinction in regard to their constitutionality between the act that authorized the county commissioners’ courts to bring the office into existence and the one that authorized it to abolish it. It has been said by this court in a general way that laws can only be made by the votes of the representatives of the people in their legislative capacity. State v. Swisher, 17 Tex. 448. There seems to be a well-recognized distinction in respect to the question under consideration between the laws affecting only the municipal subdivisions of the state and such as affect the state at large; and whatever differences of opinion there may be about the application of the rule to the general laws that affect alike the whole state, it seems to be well established that the maxim that the legislative power is not to be delegated and is not trenched upon when the legislation merely bestows upon the municipal organization of the state certain powers of local regulation. Cooley, Constitutional Uimitation, p. 143; Werner v. City of Galveston [72 Tex. 22], 7 S. W. 726 [12 S. W. 159]. Our Constitution, and statutes each provide for the adoption of laws in particular localities, according to and dependent upon the expressed will of the people to be affected, and such statutes have not in every instance been expressly directed by the Constitution. * * * A city containing one thousand inhabitants or over may by a vote of its council accept or reject the general incorporation law of this state for cities and towns. The inhabitants of the town or village may by vote accept or reject the incorporation act provided for them; and, having once incorporated such towns or villages may by their own vote, abolish the corporation, including the officers.”

The latter part of the paragraph quoted would seem to be directly in point, and unquestioned authority for the action of the trial court, if that particular provision of the statute had been under consideration. But as the reference was only in the way of an illustration, it is persuasive only. But we think it is in line with the principle announced as controlling the case there under consideration.

There is another reason, which was doubtless sufficient, to justify the court in refusing the writ of injunction, regardless of the validity of the statute assailed.' The petition is undertaking to restrain the municipal authorities from, constructing certain street improvements, not the assessment or collection of a tax. The conditions upon which they apparently rely for a right to maintain a suit of this character are the depredations, as they term the street improvement work, committed upon their land. The court in his findings of fact concludes from the evidence that the land upon which the street improvements were being made was a part of the public thoroughfare and had become such by limitation. It follows from this that no rights claimed by appellants were invaded, and for that reason they were not entitled to maintain a suit to enjoin the public officers from performing that character of work merely because they were exceeding their authority. In M., K. & T. By, Co. v. Shannon, 100 Tex. 379, 100 S. W. 138, 10 L. R. A. (N. S.) 681, our. Supreme Court says:

“The principle, as we understand it, is, that the courts have no power to enjoin the officers of a state from taking action under a statute claimed to be unconstitutional and deemed to be prejudicial to the complainants, unless the officers are about to do some act which, if not authorized by a valid law, constitutes an unlawful interference with their rights.”

See, also, Caruthers v. Harnett, 67 Tex. 127, 2 S. W. 523.

For reasons stated, the judgment of the district court is affirmed.
      <Sf=>Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ©=Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    HOUSTON E. & W. T. RY. CO. v. HOOPER et al.
    (No. 1567.)

    (Court of Civil Appeals of Texas. Texarkana.
    March 2, 1916.
    Rehearing Denied March 9, 1916.)
    1. Carriers <@=>320(1) — Taking Case prom Juey — Peremptory Instruction.
    In an action for injuries to a passenger in descending from the car platform, whore there was evidence sufficient to carry one of the alleged acts of negligence to the jury, the refusal of a peremptory instruction was not error.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1315, 1317; Dec. .Dig. <§=>320(1).]
    2. Appeal and Error <@=>1033(4) — Review— Harmless ErroRt — Request poi« Peremptory Instruction.
    The refusal of a peremptory instruction for defendant as to,one act of negligence alleged by plaintiff was not injurious, where the jury found for defendant on the issue.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4058; Dec. Dig. <§=>1033 (4).]
    3. Carriers <§=>318(11) — Injuries to Passengers — Action—Evidence.
    In an action for injuries to a passenger in descending from the car platform, evidence held. to authorize the jury to find that there was insufficiency of light which was the producing or proximate cause of the injury.
    [Ed. Note. — For other cases, see Carriers, Dec. Dig. ©=>318(11).]
    4. Appeal and Error <§=>237(6) — Presenting Questions to Trial Court — Setting Aside Finding.
    To predicate error on the refusal to set aside a finding of the jury, there must be a motion to set it aside.
    [Ed. Note. — For other cases, see Appeal.and Error, Cent. .Dig. § 1302%; Dee. Dig. <§=>237 (6).]
    5. Appeal and Error <§=>1170(10) — Review— Harmless Error.
    Under Court of Civil Appeals rule 62a (149 S. W. x), providing that no judgment shall ha reversed for error at the trial unless the appellate court shall be of opinion that the error amounted to such a denial of the rights of appellant as to probably cause the rendition of an improper judgment, where, after eliminating findings by the jury not sustained by the evidence, there still remain findings supported by pleading and evidence which in legal effect entitle appellee to the judgment rendered, the error in submitting the former issue does not warrant reversal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4066, 4544; Dec. Dig. <§=> 1170(10).]
    6. Appeal and Error <§=>1067 — Harmless Error — Submission op Issues.
    The refusal of a special charge as to contributory negligence was not error, where it assembled practically the same facts which the court authorized the jury to consider by a question submitted for finding.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. <§=54067; Trial, Cent. Dig. § 475.]
    Appeal from District Court, Cherokee County; L. D. Guinn, Judge.
    Action by Mrs. Lizzie Hooper and others against the Houston East & West Texas Railway Company. Prom a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Mrs. Lizzie Hooper was a passenger on appellant’s regular passenger train, and as she was alighting from the coach at nighttime at the station of her destination she fell from, or down, the steps of the coach and was seriously injured. She,- joined by her husband, brought the suit for damages, alleging that the injuries were proximately caused by the negligence of appellant (1) in failing to provide lights at or near the place of exit from the passenger coach to enable passengers in alighting to see sufficiently the several steps of the coach, (2) in failing to keep the steps of the passenger coach clear of obstructions that would cause passengers . to fall, and (3) in negligent failure of the porter and the conductor to assist her to get off the train. The defendant by answer denied any negligence, and pleaded, in a general way, contributory negligence on the part of Mrs. Hooper in alighting from the train. There was a trial before a jury on special issues, and the court, on the verdict of the jury, entered judgment for appellees.
    The evidence shows that the train reached Timpson, Tex., between 3 and 5 o’clock on the morning of December 18, 1914. It was a dark morning. When the train stopped at the station, Mrs. Hooper arose from her seat and came to the platform of the coach to alight therefrom, having in her hands a small lady’s handbag and a suit case filled with clothes and other articles. As she started down the steps of the coach, she suddenly fell down off the steps, striking her body against the steps, and thereby receiving severe bodily injury. According to the testimony of bystanders, Mrs. Hooper fell by reason of her foot overreaching or overstepping the second step of the coach. According to the evidence of Mrs. Hooper herself, it happened as follows:
    “As I started to get off, I stepped on something that rolled under my foot, and of course my foot slipped, and I did not have any way to catch myself, and I fell down the steps. * * * Whatever that was that I stepped on caused my foot to slip or roll from under me, and that caused me to fall. * * * I walked out and could see the step dimly and stepped on the first step, when ¡I stepped on something that slipped or rolled, and that caused me to fall.”
    There was evidence showing that one light was burning in front of the depot about 90 feet, and one at the baggage platform about 100 feet, from the place provided for passengers to get off and on the train, and that there were lights in the coaches of the train. The evidence, though, was conflicting respecting whether the lights were bright, and whether they lighted up or reflected on the platform and steps of the coach. There is sufficient evidence to support the finding of fact of insufficiency of light upon or reflected upon the platform and steps of the coach to permit appellee to safely descend the steps. Mrs. Hooper testified:
    “I think I remember about the condition out there as to whether it was light or dark. I remember that when I got out in the vestibule it was kind of dark. I could not See objects on the steps around me out there. * * * I could not see very well out there; it was not light. If there were any lights burning at all out there in the vestibule, it was very dim when I got out there. * , * * I was being as careful as I could in undertaking to get down those steps and off that train. I would guess that I saw the first step sufficient to put my foot on it. I could tell there was a step there — at least, enough to put my foot on it. I might not could have seen all of the entire steps, but I could see sufficiently to tell there were steps there. * * * I knew there were steps there, or just imagined they were there. I knew that steps were ordinarily on passenger coaches, and where they were located. * * * The lights wore not sufficient out there for me to tell how many steps there were, and I do not know how many. * * * I was looking down towards the steps to see if I could see them. I did not see them-. Of course, I could see them a little bit, but I could not see them plainly. I could not see them because it was dark out there and the lights were so dim. * * * Both of my eyes are good, and I was using both of them in undertaking to come down those steps.”
    The jury made answer to the special questions that Mrs. Hooper in attempting to alight from the passenger train at Timpson slipped and fell and was injured by reason of placing her foot, in descending the steps, too far forward on or on the outer edge of one of the steps, due to insufficient light to enable her to see her way down the steps; and that the failure to provide sufficient light at the place was an act of negligence, which was the direct and proximate cause of her injury. The jury further found as a fact that Mrs. Hooper was not guilty of contributory negligence in the manner and under the circumstances of alighting. The evidence supports these findings of • fact, and they are here adopted, and the evidence warrants the amount of the verdict.
    John T. Garrison, of Houston, and Guinn, Imboden & Guinn, of Rusk, for appellant. W. J. Townsend, Jr., of Jacksonville, W. M. Harmon, of Beaumont, and W. B. O’Quinn, of Lufkin, for appellees.

      Application for writ of error pending in Supreme Court.

   LEVY, J.

(after stating the facts as above).

The appellant requested, and the court refused to give, a peremptory instruction to return a verdict for the defendant company; and error is predicated upon the ruling of the court. Appellant bases the contention for error upon the insistence that the petition of appellee, properly construed, seeks recovery only upon the alleged act of negligence in permitting “some hard substance to be and remain upon the step of its passenger coach,” proximately causing her to slip or fall from the steps, Occasioning injury; and insists that the evidence fails to establish, as a matter of law, the alleged negligence, for that there is no evidence showing that such obstruction had been upon the step a sufficient length of time for the employés of appellant to have by reasonable care discovered same. It is believed the assignment of error should be overruled. The petition of appellee alleged three distinct acts of negligence, and there was ample evidence to carry the case to the jury upon one of the alleged acts, which was.the failure to provide sufficient light to enable passengers to descend the coach steps in safety. And viewing the instruction as asking the court to instruct a verdict only in respect to the alleged act of permitting obstruction on the step, it is thought reversible errors cannot be predicated on the refusal to give such information. The jury made the affirmative finding of fact that Mrs. Hoopér did not step on anything in getting off the coach, and that there was no obstruction on the platform to cause her to fall. The legal effect attaching to this finding was to find in favor of the defendant on this particular act of alleged negligence, and it must be assumed that the court gave that legal effect to the verdict, and did not rest the judgment for appellee upon that ground of alleged negligence. Consequently no injury would appear to the appellant by the refusal of the instruction.

By the second assignment of error it is contended that the appellant was entitled to a judgment in its favor on the finding of the jury that plaintiff did not slip upon or fall by reason of an obstruction on the step, because the other findings of the jury respecting the alleged acts of negligence were without any evidence to support them. It is believed the assignment should be overruled. It is not thought that there is insufficient evidence of an insufficiency of light and that such negligence proximately caused the injury. If the want of sufficient light, as appears, to enable the appellee to properly see the steps, caused her, in descending the steps, to place her foot on one of the steps as she did, whether on an obstruction or on the edge of the step, the jury were authorized to find, as they did, that the insufficiency of light was the producing or proximate cause of the injury.

By the third, fourth, sixth, eighth, and thirteenth assignments of error the appellant assails the verdict of the jury in respect to finding negligence proximately causing injury in not having sufficient light to enable appellee to alight safely, as being unsupported by and contrary to the evidence. It does not appear that appellant made á motion to set aside this finding of the jury, as must be done in order to predicate error on the action of the court in refusing to set it aside. Smith v. Hessey, 134 S. W. 256. And treating the assignments as a refusal of the court to grant a new trial upon the grounds stated, it is thought the assignments should be overruled, for there was sufficient evidence to support the finding of the jury, and the court would not be warranted in saying as a matter of law that there was no sufficient evidence to make an issue for the jury-

The fifth and ninth assignments of error pertain to the findings of the jury on the alleged act of negligence in not assisting the plaintiff from the train. We conclude that, had this been the only act of negligence alleged and proven, the appellee could not, on the record, sustain the recovery. Negligence is not, as a matter of law, in this respect proven. But eliminating these findings as not authorizing a recovery, there still remain findings of fact, supported by pleading and evidence, which in legal effect entitle appellee to the judgment rendered. The error of the court is therefore without injury to appellarit, and does not warrant reversal. Rule 62a (149 S. W. x).

The tenth assignment of error complains of the refusal to give a special instruction regarding contributory negligence of Mrs. Hooper in getting off the train. The special charge practically assembled the same facts that the court’s question authorized the jury to consider. The court submitted to the jury for finding, “Was the plaintiff Mrs. Hooper guilty of contributory negligence in attempting to alight from the said train in the manner and under the circumstances as she did?” The jury answered, “No.” The question as submitted was sufficiently broad enough and enabled the jury to consider all matters properly arising in the evidence. This station was the destination of Mrs. Hooper, and it was her duty to leave the train at that point, and in leaving the train she was required to take her grip with her. If contributory negligence arises at all, it was, as submitted, respecting the manner and conduct of Mrs. Hooper in descending the steps.

The eleventh assignment of error complaining of the action of the court in giving special issues 4, 5, and 6 should be overruled, for it does not appear that “the ruling” of the court was excepted to; and, if it had been excepted to, the evidence made the issues for decision by the jury.

The remaining assignments present no error, and it is concluded should be overruled.

The judgment is affirmed.
      <g£»For other cases see sam© topic and ICBY-NUMBER in all Key-Numbered Digests and Indexes


author: LANE, J.

text:
    OTTO v. WREN, County Judge, et al.
    (No. 6522.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 28, 1916.)
    1. Mandamus @=57(1) — Transcript —Duty op Court — Statute.
    Under Acts 32d Leg. c. 119, touching the duties of court stenographers, where plaintiff in an action filed an affidavit of inability to pay the costs of appeal or give security therefor, which affidavit the judge of the county court, upon contest, hold sufficient, correct, and true, and ordered that plaintiff be allowed to appeal on such affidavit without giving a cost bond, etc., it was the duty of such judge compellable upon refusal by mandamus, to order the special stenographer, appointed for the trial, to transcribe Ms shorthand notes of the proceedings without charge. ,
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 114, 115, 117-120; Dec. Dig. @= 57(1).]
    2. Mandamus @=57(1) — Courts Op Civil Appeals — Jurisdiction.
    Under Rev. St. 1911, art. 1592, conferring upon Courts of Civil Appeals the power to issue writs of mandamus to enforce jurisdiction, such a court has power to issue such writ to compel the official stenographer of a county court to prepare a transcript free of charge in connection with a pauper appeal, as required by Acts 32d Leg. e. 119.
    [Ed. Note. — For other cases, see Mandamus, ■Cent. Dig. §§ 114, 115, 117-120; Dec. Dig. @= 57(1).]
    3. Mandamus @=57(1) — Stenographer — Compelling Preparation op Transcript.
    A court stenographer may be compelled by mandamus to transcribe his shorthand notes of proceedings in court taken by him by virtue of his appointment.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 114, 115, 117-120; Dec. Dig. @= 57(1).]
    4. Mandamus @=57Cl) — Officers — Stenographer — Pauper’s Appeal — Preparation op Transcript.
    A special stenographer in a county court appointed under Acts 32d Leg. c. 119, to act in a .single case, who did so for three days, receiving his pay of $15 could be compelled thereafter by mandamus to prepare a transcript for the plaintiff, a pauper, free of charge, since under 'the statute it is the stenographer’^ legal duty to make such transcript, so that he does not cease to be an officer of the court when his pay ceases.
    [Ed. Note. — For other cases, 'Cent. Dig. §§ 114, 115, 117-126 57(1).] see Mandamus, ; Dec. Dig. @=
    Mandamus proceeding by H. B. Otto -against Clark C. Wren, County Judge, and others.
    Order made in favor of relator.
    Stanley Thompson, of Houston, for relator. Stevens & Stevens, of Houston, for respondents.
   LANE, J.

This is an original proceeding in this court, instituted by H. B. Otto as relator against Clark C. Wren, judge of the county court at law of Harris county, and O. R. Triay, appointed by the judge of said court, at the request of the defendant in a ■case pending in said court, wherein H. B. Ot'to, relator, was plaintiff, and Harris county et al. were defendants, to serve as court stenographer under the provisions of section 12 of an Act of the 32d Legislature of 1911, p. 264, H. L. Washburn, county auditor, and the county of Harris.

The undisputed and admitted allegations of the petition are that on the 18th day of November, 1915, at a regular term of the county court at law of Harris county, of which court the respondents Wren and Triay were judge and special stenographer, respectively, a certain cause, entitled H. B. Otto v. Harris County et al., was tried and judgment rendered in favor of said county, and against relator, Otto; that in due time relator filed and presented his motion for new trial, which was by the court overruled, at which time relator in open court excepted and gave notice of appeal to this court; that in due time relator filed his affidavit of inability to pay the costs of appeal or give security therefor, which affidavit was contested, and upon said contest respondent Clark C. Wren, judge, heard, held, and adjudged that said affidavit was sufficient, correct, and true, and that relator Otto could not pay the costs of appeal, or any portion thereof, and that he could not give bond to secure same, and ordered that H. B. Otto be allowed to appeal on his said affidavit without giving a cost bond; that the clerk of said court was directed to prepare a transcript of the record, as required in other appealed cases; that thereafter, in due time, relator made and filed his affidavit and motion asking respondent Clark C. Wren, said trial judge, to require the respondent C. R. Triay, special court stenographer, who had theretofore been appointed to report the proceedings of the trial of said cause under the Act of the 32d Legislature of 1911, p. 264, and who had accepted said appointment and made shorthand notes of said proceedings as required by law, and received $5 per day for such services as provided by said act, to make and file a transcript of notes of the testimony taken by him at said trial; that said motion was refused by respondent Wren, who caused an order to be entered in which he finds that relator is unable to pay said stenographer cash for his transcript and is unable to pay any part thereof, or to give security therefor; that the said stenographer was duly appointed to take the testimony in said cause, and did take the same; but that no oath of any kind was administered to or taken by said stenographer ; that he took no steps to qualify as official stenographer; that there is no provision of law authorizing the granting of said motion, and to this order relator, in open court, excepted. It is also alleged that said Triay, stenographer, has refused, and still refuses, to make said transcript of said notes and file it with the clerk of said court as required by law, unless relator pays for same, which relator is unable to do, as shown by his affidavit and the findings oí the trial judge. It is also alleged that it took three days to try said cause, and that a number of witnesses were examined and gave testimony, and a number of'documents were introduced in evidence, and that it is practically impossible for relator or his counsel to reproduce said testimony unless aided by the transcript of the notes of said stenographer; that he has a meritorious cause of action; and that unless he can have a statement .of facts before this court he cannot properly present the points relied upon by him for reversal of the judgment rendered against him in the trial court on his appeal in this court. He further alleges that he has no adequate remedy at law to enforce his rights. Upon the foregoing pleadings, he prays that this court order and direct respondent Clark C. Wren to issue an order to respondent C. It. Triay to forthwith transcribe his notes of the testimony taken by him at the trial of said cause without pay, and that said Triay be required to make said transcript in manner and form as required by law, and that the costs of these proceedings be taxed against respondents, etc.

Respondents Wren and Triay both admit all the material facts stated by relator’s petition, but assert that the $15 paid to said Triay for his services was paid by the defendant Harris county. Said respondents further answer as follows: That respondent Clark 0. Wren has judicially acted upon the matter in controversy, and that this court has no jurisdiction to issue a mandamus against him regarding the matter; that he acted purely within his judicial discretion, and that his acts cannot be corrected by mandamus proceedings; that a stenographer appointed under the provisions of the act of the Legislature, supra, is not a public officer within the meaning of the word “officer” ; that if it be held that he was a de facto officer his position as such de facto officer ceased to exist when he was paid his $5 per diem for his services in reporting said cause; and that, as he is no longer an officer (if indeed he ever was such), mandamus will not lie to compel him to perform an official act.

Section 4 of the Act of the Legislature of 1911, p. 264, known as the Stenographer’s Act, provides that it shall be the duty of the stenographer to take full shorthand notes of all oral testimony offered in every case tried in the c&urt wherein he is stenographer, etc., to preserve all such shorthand notes for future use or reference for f!?ur' years, and to furnish to any person a transcript in question and answer form of all such evidence or any portion thereof, upon payment to him of the compensation provided by law.

Section 5 of the same act provides that in cases appealed the stenographer shall transcribe the testimony taken by him in the case in duplicate, in the form of question and answer, certifying that such transcript is true and correct, and shall file the same in the office of the clerk of the court within such reasonable time as may be fixed by written order of the court; that he shall be paid 15 cents per folio of 100 words for the original copy and no charge shall be made for the duplicate copy; that the sum so paid shall be taxed as costs in the case.

Section 6 of said act provides that the stenographer shall, when requested by the-party appealing, prepare from the transcript filed by him, as provided by section 5, a statement of facts in narrative form, in duplicate, and deliver the same to the party appealing, for which he shall be paid by said party the sum of 15 cents per folio of 100 words for the original copy, and that no charge shall be made for the duplicate copy; that the amount so paid shall not be taxed as costs.

Section 8 provides that, in any civil case where the appellant or plaintiff in error has-made the proof required to appeal his case without bond, such appellant or plaintiff in error may make affidavit of such fact, and,, upon the making and filing of such affidavit, the court shall order the stenographer to-make a transcript as provided in section 5 of said act and deliver same as provided in. other cases, but the stenographer shall receive no pay for same.

Section 12 provides that, whenever either party to a civil case pending in the county court shall apply therefor, the judge of the court shall appoint a competent stenographer to report the oral testimony given in such case. Such stenographer shall receive compensation to be not less than $5 per day, which shall be taxed and collected as costs. In such case, the provisions of this act with respect to preparation of statement of facts * * * shall apply to all statement of facts in civil cases tried in the county court, and all provisions of law governing statement of facts * * * to be filed in district court and the use of same on appeal shall apply to civil cases tried in the county court.

Since it is shown by the undisputed and admitted facts that relator has filed such affidavits and proof as the law requires to-entitle him to have the benefits of the stenographer’s transcribed notes without first paying for or giving security for the payment of the fees due the stenographer for transcribing his shorthand notes of the proceedings had at the trial of his case, and that the trial judge had so found, the trial judge should have ordered the stenographer to-transcribe said notes on motion of relator. The trial judge having judicially found that relator had filed such affidavits as required by law in such eases, and that said affidavit was true and correct, the law directs that he shall order the stenographer to make a transcript of his notes. The law under such case left nothing further to the-discretion of the judge; but the declaration of law that he shall order the transcribed. notes is mandatory, and lie must make suck order and cannot be beard to say that be has acted judicially, and therefore cannot be compelled by mandamus to perform a mandatory duty. Middlehurst v. Collins, 100 Tex. 349, 99 S. W. 1025; Applebaum v. Bass et al., 113 S. W. 173; 26 Cyc. p. 208.

In tbe last case cited tbe court said:

“It is a general doctrine that mandamus will lie to prevent a failure of justice upon reasons of public policy and to enforce official action. Where a trial judge refuses to make and file a statement of facts for use on appeal, as required by statute, mandamus will lie to compel him to do so. Reagan v. Copeland, 78 Tex. 556, 14 S. W. 1031; Railway v. Lane, 79 Tex. 648 [15 S. W. 477], 16 S. W. 18: Osborne v. Prather, 83 Tex. 211, 18 S. W. 613; Guerguin v. McGown, 53 S. W. 585. The reason in support of the right of this court to issue mandamus is convincing. Having acquired jurisdiction of the case by appeal, and a completed record being the basis of the exercise of appellate jurisdiction, the Court of Civil Appeals would have power to issue the mandamus to compel the proper closing and completion of the record for appeal, because the restoration to the record for use, on appeal, of a statement of facts of the case, signed and certified by the trial judge as required by law, is a matter in furtherance of, and that affects the exercise of, its appellate jurisdiction. The statute clearly prescribes and directly creates the duty of the trial judge to approve a statement of the facts presented to him for use on appeal by the parties, or to make up and file one for use on appeal in case of disagreement of the parties.”

However, we think no good can be sub-served by tbis court in entering an order to respondent' Clark C. Wren, county judge, to direct and order C. R. Triay, stenographer, to perform a duty imposed upon bim by law, when tbis court bas tbe authority and power to directly order said stenographer to perform such duty (Rice v. Roberts et al., 177 S. W. 149; 26 Cyc. 208), and therefore we will not grant tbe .writ prayed for, as to respondent Wren.

That a court stenographer may be compelled by mandamus proceedings to transcribe his shorthand notes of tbe proceedings, taken by bim by virtue of bis appointment we think is no longer an open question. Rice v. Roberts et al., 177 S. W. 149; Routledge v. Elmendorf, 54 Tex. Civ. App. 174, 116 S. W. 156; 26 Cyc. 208, and authorities there cited.

Tbe respondent Triay, however, contends that, if be was an officer by reason of bis appointment as special stenographer, be was only a de facto officer, and that such office ceased to exist when be was paid bis per diem of $15 for bis three days of service. Tbis contention is not tenable. Tbe law under which respondent Triay accepted tbe appointment of stenographer, and as such performed services, provides, as bas already been shown, that when requested to transcribe his shorthand notes, under tbe facts of tbis case, it is bis legal duty to make such transcript; therefore be is in error in bis contention that when be received bis pay bis duties ceased. Tbe purpose of tbe law in requiring or permitting tbe appointment of a stenographer to take shorthand notes of tbe proceedings in any case is that tbe record of such proceedings might be preserved for tbe information of tbe court, jury, and parties to tbe suit, and it would be a narrow construction to put upon it to say tbe court has no moans by wbieb it, or the parties interested, could utilize tbe record so preserved for their information. Such construction would render tbe law, in many instances, worse than useless. We take it that no one would contend that should a court stenographer voluntarily resign, immediately after taking shorthand notes of court proceedings in his official capacity, tbe court, or parties to tbe suit, would be powerless to obtain tbe use of tbe transcript of such notes on tbe theory that tbe stenographer was no longer an officer, and therefore not subject to mandamus proceedings. Tbe act of transcribing bis shorthand notes, under certain conditions, is a continuing duty of tbe stenographer, and such duty may be enforced by mandamus proceedings. Middlehurst v. Collins, 100 Tex. 349, 99 S. W. 1025; Rice v. Roberts, 177 S. W. 149; Routledge v. Elmendorf, 54 Tex. Civ. App. 174, 116 S. W. 156; 26 Cyc. 208; State v. Supple, 22 Mont. 184, 56 Pac. 20.

In tbe case of Rice v. Roberts et al., supra, it is said:

“Nor is it any answer for the stenographer to say (which we grant as true) that any appellant has the right to prepare a statement of facts independent of the stenographer’s notes and transcript. While he has such right, he also has the right to have the benefit of the report of the ease made by the official stenographer during the trial to aid him in making a statement of facts. Besides, in this case it is stated in relator’s petition, and is not denied by either respondent, that it will be [practically] impossible to make a correct statement of facts without the aid of the stenographer’s transcript of his notes.”

Having reached a conclusion in support of relator’s application, it is ordered that respondent C. R. Triay transcribe tbe testimony in tbe form of questions and answers, and transcribe tbe other proceedings recorded by bim in tbe case of H. B. Otto v. Harris County et al., No. 12406 on tbe docket of tbe county court at law, of Harris county, tried during tbe month of September, 1915; that be certify that such transcript is true and correct, and file Qie same in tbe office of tbe clerk of said court within 20 days from tbis date. It is also ordered that tbe costs of tbis proceeding be taxed against respondent Triay.
      <@=3>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    KEPPLER et al. v. TEXAS LUMBER MFG. CO. et al.
    (No. 80.)

    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 17, 1916.
    Rehearing Denied March 16, 1916.)
    1. Appeal and Eeeoe <@=>1040(10) — Review — Harmless Eeeoe — Rulings on Pleadings.
    Overruling a special exception to the petition for its failure to set out the first link in plaintiffs’ chain of title was not prejudicial, where common source of title to the land in controversy was agreed upon by the parties at the trial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4098, 4105; Dec. Dig. <@=> 1040(10).]
    2. Stipulations <@=>14(0) — Teespass to Tex Title-Evidence.
    In trespass to try title, where the parties agreed that the parties might read from the county clerk’s or district clerk’s records any paper they desired to offer in evidence, and each waived the filing, three days’ notice, and affidavits of loss of originals, with the understanding that plaintiffs should furnish a list with book references in their chain of deeds 10 days before trial and file certain original powers of attorney, and the list of references was furnished as agreed, the admission of the title papers was not error, though the powers of attorney were not produced till the trial.
    [Ed. Note. — For other cases, see Stipulations, Cent. Dig. § 33; Dec. Dig. <@=>14(9).]
    3. Appeal and Eeeoe <@=>301 — Peesenting Questions in Teial Couet — Motion eoe New Teial.
    Where no complaint was made in a motion for new trial to the description of land in a power of attorney offered in evidence, the objection cannot be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1743, 1753-1755; Dec. Dig. <@=3301.]
    4. Pleading <@=>245(4) — Teial Amendment— Disceetion oe Couet.
    In an action of trespass to try title, where there was evidence that plaintiffs were innocent purchasers for value without notice, of deeds and conveyances, an allowance of a trial amendment, alleging that they were owners by virtue of being innocent purchasers for value without notice of any deeds or conveyances under which defendants claimed, was not an abuse of discretion of the trial court.
    [Ed. Note. — For other eases, see Pleading, Cent. Dig. §§ 660, 664-666; Dee. Dig. <@=> 245(4).]
    5. Appeal and Eeeoe <@=>662(4) — Recoed — Defects and Objections.
    A statement of facts prepared by the trial court, counsel having failed to agree on a statement, cannot be called in question as not stating the facts proven on the trial, and assignments challenging its correctness cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2852; Dec. Dig. <@=>662(4).]
    Appeal from District Court, Hardin County; J. Llewellyn, Judge.
    Action by the Texas Lumber Manufacturing Company and others .against Mrs. Julia A. Keppler and others. From a judgment for plaintiffs, defendants appeal.
    Affirmed.
    Smith & Kemble, of Waxahachie, and B. L. Aycock and A. M. Hill, both of Kountze, for appellants. Greer, Nall & Bowers and W. W. Crusé, all of Beaumont, for appellees.

      Application for -writ of error pending in Supreme Court.

   BROOKE, J.

This suit was filed on the 24th day of November, 1914, by plaintiffs, against Ida May Wingate, Walter Wingate, Mattie Wingate, Eula R. Davis and husband, Walter A. Davis, Jessie C. Billups and husband, W. F. Billups, Traynham Smith, Mrs. Julia A. Keppler in her individual capacity and as guardian of the person and estate of the said Traynham Smith, an idiot, and her husband, Charles E. Keppler, R. H. Smith, Mrs. Mamie Whitlock and husband, Arthur Whitlock, and the unknown heirs of R. I-I. Smith, deceased, their heirs or legal representatives, defendants, in trespass to try title for certain lands in Hardin county. Plaintiffs pleaded their title and prayed that they have judgment for the title and possession of the land and premises described, and prayed, further, that the cloud cast upon the .title by the alleged claim of the defendants be removed, and that the plaintiffs be quieted in their title to the property, and for rents and damages and costs of suit. Afterward the plaintiffs, in open court, announced that they would dismiss the suit as against the unknown heirs of R. II. Smith and the unknown heirs of James Walea, deceased. Judgment was taken by default against Ida May AVin-gate, Walter Wingate and Mattie Wingate. The defendants answered by special exception, to the effect that the original petition did not allege that “title accrued to the unknown heirs by death of ancestor dying intestate, or give otherwise the particulars of such accrual, or set out the consecutive chain of title from the sovereignty of the soil,” and by general denial and plea of not guilty, and answered, claiming title to three-eighths of the land in controversy'through R. PI. Smith. Evidence was introduced, and at the conclusion of thfe introduction of plaintiffs’ testimony, defendants filed a motion to strike out the evidence with reference to plaintiffs being innocent purchasers for value without notice of deeds and conveyances, which motion was sustained. Thereupon the court permitted the plaintiffs to file a trial amendment, alleging that they were the owners of the three-eighths interest in the land described, as claimed by the defendants, they being innocent purchasers of the same for value, without notice of any deeds or conveyances under which the defendants claim, which said action of the court in permitting the plaintiffs to file said trial amendment was excepted to by the defendants. After all the evidence was heard, the court instructed the jury to return a verdict for the plaintiffs, which was accordingly done, and the case is before this court for adjudication.

The action of the trial court, by the appellants’ first. assignment of error, is challenged as error in not sustaining defendants’ special exception to the original petition, because in setting out their chain of title the first link was omitted, failing to allege marriage or descent from James Walea, or showing any marriage or marriages, or wife or wives. Appellees alleged in their petition that the land was patented to James Walea, and then set out the names of the parties, saying they were heirs of James Walea, deceased. Appellees dismissed from their suit, as stated above, the unknown heirs of R. H. Smith, deceased, their heirs and legal representatives, and the unknown heirs of James Walea, deceased, their heirs and legal representatives, and upon the trial of the cause, common source of title to the land in controversy was agreed upon by appellants and appellees. Therefore, if error was committed by the trial court, it was not prejudicial. The first assignment is therefore overruled.

By appellants’ second assignment of error, it is complained that the court erred to defendants’ prejudice in that, over their objection, plaintiffs were permitted to introduce title papers, because the agreement to waive notice and filing of deeds was not complied with, in this: That the said agreement was signed by defendants’ counsel with the proviso that they should have the originals of certain powers of attorney filed at least 10 days before the trial, and that such title papers were not filed until announcement of ready for trial was made. The agreement was as follows:

“It is hereby agreed that either party hereto may, on the trial of this cause, read from the records in the office of the county clerk and the district clerk of Hardin county, Texas, any instrument or paper they desire to offer in evidence, and each party waives the filing,, three days’ notice and affidavits of loss of originals, subject, however, to relevancy and competency.
“[Signed by attorneys for plaintiffs and defendants.]
‘This is signed with the understanding that plaintiffs will furnish defendants’- counsel a list with book references in their chain of deeds ten days prior to the trial at the July term of the district court and file the original powers of attorney to Steve Chonault (if procurable) and case to stand continued after transfer to the Seventy-Fifth district.”

This agreement was filed in this cause. Appellees proved that they furnished defendants with a list of their title papers on March 16, 1915, in accordance with the agreement to read from the records, and produced the original powers of attorney upon the trial of the cause. It does not appear from appellants’ bill of exceptions or from this record that any injury resulted to appellants by the action of the lower court, and there is no intimation that appellants were not furnished a list showing the book and page where the said powers of attorney were recorded. We see no error in the action of the tidal court in this matter, especially as it is shown that the original instruments: were admissible without the filing and three days’ notice.

By the third assignment of error, appellants complain that the court erred because it permitted to be read the power of attorney of Michael Walea, over objection that the land described in said instrument did not describe the land sufficiently to authorize sale of any particular 1,500 acres of land in Hardin county, and that it was a patent ambiguity. The power of attorney is not incorporated in this record, and we have no means of arriving at the contents of the same, but no complaint was made in appellants’ motion for a new trial with reference to the description contained in said instrument; therefore we are constrained to overrule this assignment.

By their fifth and sixth assignments of error, the appellants complain of the action of the trial court in permitting the appellees to file their trial amendment after the evidence had been closed. It has been held that the pleadings may be amended by leave of the court after the opening argument had been made. Telegraph Co. v. Bowen, 84 Tex. 476, 19 S. W. 554; First National Bank v. Sharpe, 12 Tex. Civ. App. 223, 33 S. W. 676; Railway Co. v. Howe, 15 S. W. 198. It has also been held that the allowance or refusal of a trial amendment rests in the discretion of the trial judge, which will not be disturbed on appeal in the absence of abuse. Dublin v. Taylor B. & II. Ry. Co., 49 S. W. 667; Fields v. Rye, 24 Tex. Civ. App. 272, 59 S. W. 306; White v. Provident National Bank, 27 Tex. Civ. App. 487, 65 S. W. 498; Goodney v. International & G. N. Ry. Co., 51 Tex. Civ. App. 596, 113 S. W. 171; Hastings v. Townsend, 136 S. W. 1143; Gilliland v. Ellison, 137 S. W. 168; San Antonio & A. P. Ry. Co. v. Miller, 137. S. W. 1194. It has been held that the allowance of a trial amendment to the petition after the testimony was closed was not ground for reversal. Lewis v. Hoeldtke, 76 S. W. 309. It is also held that whether a party to a suit should be permitted to amend his pleadings, after the argument had begun, is a matter within the discretion of the trial court. St. Paul Fire & Marine Ins. Co. v. Cronin, 131 S. W. 649. Trial amendments to conform to the evidence were held not ground for reversal in Merchants’ Ins. Co. v. Reichman, 40 S. W. 831, also in the case of Fleming v. Pringle, 21 Tex. Civ. App. 225, 51 S. W. 553. No abuse having been shown of the discretion of the court in this record, the said assignment is overruled.

Counsel for appellants will understand that, the statement of facts having been prepared by the court, counsel for appellees and appellants having failed to agree on a statement, the said statement of facts, as prepared, cannot be called in question as not stating the facts proven on the trial of said cause, and purported assignments challenging the correctness of said statement of facts cannot be considered by this court.

We have carefully reviewed the record in this cause, and have considered the various assignments of error, as presented by appellants, and are of the opinion that the record shows no error such as would warrant a reversal of this cause. Therefore the judgment of the court below is in all things affirmed.

It is so ordered.
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