text:
    LUTTRELL et al. v. CLICK.
    (No. 298.)
    (Court of Civil Appeals of Texas. Beaumont.
    Jan. 2, 1918.
    Rehearing Denied Jan. 30, 1918.)
    1. Trespass to Try Title <&wkey;41(1)—Evidence—Sufficiency.
    Evidence held to sustain findings for plaintiff in action of trespass to try title.
    2. Adverse Possession &wkey;>110(3) — Pleading —Necessity.
    Claimant of land under chain of title from persons who merely occupied and claimed adversely must specially plead the limitation of ten years.
    Appeal from District Court, Sabine County; W. R. Blackshear, Judge.
    Action by J. M. Click against E. M. Lut-trell and others, wherein Mrs. Estella Rowland intervened. Judgment for plaintiff, and defendants and intervener appeal.
    Reversed and remanded.
    J. W. Minton, of HempMll, for appellants. W. I'\ Goodrich, of Hemphill, for appellee.
   BROOKE, J.

This is a suit of trespass to try title to about 40 acres of land of the Naomi Mackey headlight in Sabine county, Tex., wherein J. M. Click is plaintiff and E. M. Luttrell is defendant. Mrs. Estella Rowland intervened.

The controversy or matter in issue was the south boundary line of the 500 acres of land known as the “Pin Oak Pond” tract of land, plaintiff describing the land in his petition as follows:

“Beginning at the southwest corner of the 500-acre tract of land known as the Pin Oak Pond tract, or Wm. H. Harris tract; thence northerly with the west boundary of the 500-acre tract to the lower Milam & .San Augustine road; .thence with said road to Ed Smith’s west line; thence southerly with Ed Smith’s west boundary line to the south line of the 500-acre tract; thence west to the beginning, containing all the land on said 500-acre tract south of said road.”

The defendant, in addition to his plea of general denial and not guilty, interposed the pleas to five and ten year limitation to so much of the land described in plaintiff’s petition as is bounded as follows:

“Beginning at the southwest comer of the 500-acre tract known as the ‘Pin Oak Pond’ tract; thence in a northerly direction with the line of the pin oak pond tract to corner on Ed Smith’s west line in the lower Milam & San Augustine road; thence in a southerly direction with Smith’s west line to corner in the north line of Isaiah Hamilton’s land on said Mackey survey; thence in a westerly direction with Hamilton’s north line to the place of beginning.”

Mrs. JRowland, by her plea in intervention, asserts title to that portion of the land sued for by plaintiffs, under the ten-year statute of limitation, described as follows:

“Beginning at the southwest corner of the 50O-acre tract known as the Pin Oak Pond tract; thence in a northeasterly direction with the line of the Pin Oak Pond tract to corner on Ed Smith’s west line in lower Milam & San Augustine road; thence in a southerly direction with said Smith’s west line to corner in the north line of Isaiah Hamilton’s land; thence in a westerly direction with Hamilton’s north lino to the beginning.”

It was agreed by all parties tha.t the land was patented to Naomi Mackey. The evidence disclosed that E. M. Luttrell had no interest in the land, and that he asserted none to it, except the pine timber on the land which he had purchased from Olanton & Brice. Luttrell was cutting this timber when suit was filed, and was enjoined from cutting by writ of injunction. The evidence shows that he had cut about 50,000 feet of pipe timber when he was enjoined.

The case was tried by the court without a jury, and the court filed his findings of fact and conclusions of law as follows:

“Findings of Fact.
“(1) I find a deed from Naomi McKey to Matilda McMahon, dated the 8th of June, 1858, conveying a certain tract of land lying and situated in Sabine county, known as the Pin Oak Pond tract, containing 500 acres, in the northeast corner of the survey granted to Naomi McKey by the Mexican government, bounded on the west by the lands of Wm. Scurloek, and-on the north and east by the original boundary lines of the said McKey survey, and on the south by Geo. S. Williams.
“(2) I 'find that it is agreed that the Naomi McKey survey was patented' by the state of Texas, of which land in- controversy is a part.
“(3) I find a deed from James McMahon and Matilda F. McMahon, his wife, to Miller, Tubb & Co., conveying 500 acres of the Naomi Mc-Key, situated in the northeast corner of said league, and running south with the east boundary of said original survey; thence west with the north line of G. S. Williams’ survey to William .Scurlock’s survey; thence with the east line of the said Wm. Scurloek to the north lino of said original survey; thence east with the north line of said league to the place of beginning, containing 500 - acres, more or less, said deed being dated the 18th day of November, 1868. •
“(4) I find a power of attorney, coupled with an interest, from George Tubb to S. B. Bewley, dated December 21, 1876, authorizing Bewley to bring suit for 500 acres of the Naomi McKey deeded to George Tubb by Matilda F. and James B. McMahon on the 18th day of November, 1868, and providing that Bewley should have 200 acres of said' land in the recovery for his services.
“(5) I find a deed from S. B. Bewley to E. P. Horne, dated January 6, 1875, conveying to said Horne an individual interest of 200 acres, out of the 500 acres of the Naomi McKey head-right, known as the Pin Oak Pond place; it being the same tract of land deeded to Miller, Tubb & Co. by James B. and Matilda F. McMahon on the 15th of November, 1868.
“(6) I find a deed from Miller, Tubb & Co., dated June 7, 1876, to E. P. Horne, conveying the following lands: Being a part of the Naomi McKey survey, beginning at the northeast corner of the said original survey and running south with the east boundary line of said original survey; thence west with the north line of the G. S. Williams survey to William Scur-lock’s survey; thence with the east line of the said Wm. Scurloek to the north line of said league; thenco east with the league line to the place of beginning, containing 500 acres, more or less.
“(7) I find a bond for title from James B. McMahon and E. P. Gaines to William Harris, dated the 28th day of January, 1837, obligating themselves to make to the said Harris a good and lawful title to 500 acres of land out of the Naomi McKey headrig'ht adjoining the land of Mrs. Yates Payne, Wayne Chumley, and others; said line running and commencing on the north side of the main road to Rio Sabine, and including a fine body of red land, on a part of which is the Pin Oak pond and a fine spring. Said Harris has the liberty of removing his lines to the best advantage, so as to include the good body of red land.
“(8) I find a deed from W. H. Harris to James B. Harris, dated January 14, 1859, conveying all of the interest and estate, real and personal, in the state of Texas, ‘which I have in and to and concerning the estate of my father and mother.’
“(9) I next find a deed from S. H. Harfle-mand to John R. Smith, dated April 30, 1873, conveying 500 acres of the Naomi McKey, known as the Pin Oak Pond place on the Milam & San Antonio road.
“(10) I next find a deed from J. B. Harris to Emma Jane Simpson, wife of A. J. .Simpson, conveying to her all right, title, and interest in 300 acres, more or less, of the Naomi McKey headlight as a son and heir of Wm. H. and Margaret W. Harris, deed dated May 18, 1873.
“(11) I find a deed from A. J. Simpson and wife, Emma Jane Simpson, to J. B. Harris, dated May 12, 1873, conveying all our right, title, and interest in 500 acres of the Naomi McKey known as the Pin Oak Pond place.
“(12) I find a deed from John R. Smith and wife, Francis A. Smith, dated May 12, 1873, conveying 200 acres, more or less, of the Naomi McKey survey on the San Antonio road 5 miles west of the town of Milam to James B. Harris.
“(13) I find a deed dated the 16th of June, 1876, from A. J. Simpson to E. P. Horne, conveying all their right, title, and interest in and to 500 acres of the Naomi McKey survey situated in the northeast corner of said survey, beginning at the northeast corner and running south with the east boundary line of said original survey; thence west with the north boundary line of the G. S. Williams survey to William Scurlock survey; thence with the east line of the Scurlock survey to the north line of said original survey; thence east with the north line of said league to the beginning, containing 500 acres of land, more or less.
“(14) I find a deed introduced for the purposes of description from Wm. F. Sparks to William Scurlock, dated November 24, 1838, and conveying the following described to commence at Wm. H. Harris southwest corner and run with the course of his line to the Chechee creek; thence up said creek to the old line; thence along said line to said Harris corner; thence with the said Harris’ north and south and west boundary to the place of beginning.
“(15) I next find a deed from E. P. Horne and wife to N. B. Mason and T. G. Drawhorn, dated November 23, 1882, conveying a part of the Naomi McKey survey situated in the north corner of said league, and beginning at the northeast corner of said original survey, and running south with the east boundary line of said original survey; thence west with the north line of the G. S. Williams to William Seur-loek’s; thence with the east line of said William Scurlock to the north line of said original survey; thence east with the north line of said league to the place of beginning, containing 500 acres, more or less.
“(16) I next find a partition deed from N. B. Mason and wife to T. G. Drawhorn, deeding to Drawhorns the southern portion of the above 600 acres, dated November 23, 1882.
“(17) I next find a deed from T. G. Draw-horn and wife to J. A. Scurlock, dated January 30, 1886, conveying a portion of the McKey lieadright bounded as follows: Beginning at.the southwest corner of the survey known as the survey bought of E. P. Horne by T. G. Draw-horn and N. B. Mason, the said N. B. Mason and T. G. Drawhorn now residing on said survey; thence north with the Scurlock east boundary line to what is known as the lower Milam & San Augustine road; thence with said road in an easterly direction to M. G. Langford’s line; thence with said Langford’s line and Isaiah Hamilton’s line to the place of beginning, containing 50 acres, more or less.
“(18) I find next a deed from J. A. Scurlock to the ,San Augustine Grocery Company, dated April 16, 1006, conveying the same land by the same description, as the last above-mentioned deed.
“(19) I next find a deed from the San Augustine Grocery Company to J. A. Scurlock, dated February 28, 1916, conveying the same land by the same description mentioned in paragraph 17.
“(20) I next find a deed from J. A. Scurlock to J. M. Click, the plaintiff, dated March 23, 1916, conveying the same land described in the last paragraph, described more particularly as follows: Beginning at the southwest corner of a 500-acre tract of land commonly known as the Wm. H. Harris or Pin Oak Pond tract of land; thence in a northerly direction with the west boundary line of the said tract to the lower Milam & San Augustine road; thence east with said road to Rev. Ed Smith’s west line, where said line crosses said road; thence in a southerly direction with said Smith’s west line to the south line of said 500-acre survey; thence west to the place of beginning, containing all of •the land on said 50O-acre tract south of the lower Milam & San Augustine road, supposed to contain 90 acres, more or less, and being the same tract of land purchased from T. G. Draw-horn and wife by J. A. Scurlock, by deed of date 1886; said tract of land being situated on the N. McKey headright.
“(21) I find by the testimony of J. A. Scur-lock that the 500 acres purchased by E. P. Horne in the northeast corner of the Naomi McKey survey has for a long time been known in the community as the W. H. Harris or Pin Oak Pond tract, and is bounded on the west by the lands of William Scurlock, described in the deed from William F. Sparks, dated November 24, 1838, and that the south line of the land in controversy is the south line of the 500-acre Wm. H. Harris or Pin Oak Pond tract.
“(22) I further find from the testimony of J. A.. Scurlock that E. P. Horne occupied and claimed said 500 acres from about the beginning of the year 1875, to the time sold to Mason and Drawhorn in 1882, continuously, and that said 500-acre tract was then occupied by N. B. Mason and T. G. Drawhorn continuously up to the partition of said land on the 13th of November, 1882, and that Drawhorn occupied the south half of said 500 acres, claiming the same up to the 30th day of January, 1896, making more than ten years in continuous peaceable possession.
“(23) I find that a very small portion in the southwest corner of the land in controversy was occupied by Mrs. S. A. Hamilton for a period of more than ten years, but that her occupancy was a mere encroachment, and not accompanied by such assertion of title as would put the statutes of limitation in operation.
“(24) I further find that since the land in controversy was acquired by the plaintiff, there has been 25,000 feet of merchantable pine timber cut from said land by the defendant E. M. Lut-trell, of the reasonable value of $2 per thousand.
“I therefore conclude as a
“Conclusion of Law
“That plaintiff, J. M. Click, has shown title to the land in controversy, and that he is entitled to a judgment therefor, together with judgment for $50 for the value of the timber cut by defendant E. M. Luttrell.’’

Assault is made on the findings of fact by the court in two particulars: First, that the testimony of J. A. Scurlock showed that the south line of the land in controversy is the south line of the Pin Oak Pond tract; and, second, that the occupancy of Mrs. Hamilton of the land in controversy was a mere encroachment, and not accompanied by such assertion of title as would put the statute of limitation in operation.

The first assignment of error is as follows:

“The court erred in its findings of fact as set out in the twenty-first paragraph of the findings of fact and conclusions of law filed by the court in this cause, wherein the court finds ás a fact that the ‘Pin Oak Pond’ tract is bounded on the west by the lands of Wm. Scurlock, described in the deed from Wm. F. Sparks, dated November 24, 1838, and in finding that the south line of the land in controversy is the south line of the 500-acre Wm. H. Harris or ‘Pin. Oak Pond’ tract.”

The propositions under this assignment are:

(a) “A call for an adjoining tract will control course and distance.”
(b)“The various calls for description in deeds have been classified by the courts, and it is now settled that the highest in importance and weight are: Eirst, natural objects; second, artificial objects, such as marked lines, etc.; third, courses and distances.”
(c) “The burden of proof is always on the plaintiff to show the object fixing the boundary, or true locality of the land sued for, and this burden never changes.”

The testimony is not as full as it should be in identifying the south boundary line of the Pin Oak Pond tract, or rather the place where the Williams line was at that or any other time, as there seems to be no such tract as the Williams tract. However, while the north line of the G. S. Williams survey cannot be discovered on the map, the testimony of J. A. Scurlock, a son of William Scurlock, is as follows: That he is 54 years of age; that he knows where the Chechee creek near his father’s old residence and west of the Pin Oak Pond tract is; that he is familiar with the lands owned by his father on that survey. He testified that the south line of his father’s land on the Mackey survey lying east of the Chechee creek runs east and west, and that his father’s land is bounded by the Pin Oak Pond tract on the east, and in the northeast corner of the Mackey league. He testified as to the identity of the Pin Oak Pond tract of William H. Harris’ tract, saying that it was one and the same. He also identified the 300 acres of his father’s land lying immediately west of the Pin Oak Pond tract. Witness had formerly owned the land in controversy; that he did not know where the land claimed by defendants was until a year or two ago, and had never heard of Mrs. Hamilton asserting any claim to any portion of the land in controversy; that he did not know where the south line of the Pin Oak Pond tract is, but that he did know where the line is that had been claimed to be the south line of the Pin Oak Pond tract, because there were no field notes to it, and the witness had always supposed that the land in controversy was a part of the Pin Oak Pond tract. On redirect examination this witness stated that the line claimed by plaintiff is plainly marked on the ground and seems to be very old, easily traced on the ground from one corner to the other; that witness had looked carefully to see whether there was any other line running away from that in a northeast direction, but could not find any after a thorough search, starting from a corner and looking in every direction. He further stated that this south line runs due east- and west, in his judgment; that he had owned the land, and the line had been recognized as his line.

A deed was introduced from William F. Sparks to William Scurlock, dated November 24, 1838, in which the description is as follows:

“Commencing at William H. Harris’ southwest corner, and run with the course of his line to the Chechee creek; thence up said creek to the old line; thence along said line to the said Harris corner; thence with said Harris’ north and southwest boundary to the place of beginning.”

This contract of land was identified by Scurlock as having belonged to his father and now occupied by him, and he further testified that the south line of this tract and the south line of the Harris or Pin Oak Pond were a continuation of the same line running from east to west through the Mackey league, thus identifying the south boundary of the Harris tract and its course as early as 1838.

The court found as follows:

“I find by the testimony of J. A. Scurlock that the 500 acres purchased by E. P. Horne, in the northeast corner of the Naomi Mackey survey, has for a long time been known in the community as the W. H. Harris or Pin Oak Pond tract, and is bounded on the west by the lands of William Scurlock, described in the deed from William F. Sparks, dated November 24, 1838, and that the south line of the land in controversy is the south line of the 500-acre William H. Harris or Pin Oak Pond tract.”

From all the testimony before the court, it is evident, and he has so found, and this finding, as shown above, rests upon the testimony, which, if believed, is sufficient to support the finding. The assignment is overruled.

The second assignment of error is as follows:

“The court erred in finding as a fact that E. P. Plorne occupied and claimed the said 500 acres from about the beginning of the year 1875 to the time he sold to Mason and Drawhorn in 1882, continuously, and that the said 500-acre tract was then occupied by N. B. Mason and T. G. Drawhorn continuously up to the partition of said land on the 13th of November, 1882, and that the said Drawhorn occupied the south half of said 500 acres, claiming the same up to the 30th day of January, 1886, making more than ten years in continuous, peaceable possession, and in finding that said possession of the said Horne, Mason, and Drawhorn was the possession of the land in controversy in this suit.”

The court found that from the testimony of J. A. Scurlock, E. P. Horne occupied and claimed 500 acres from about beginning in the year 1875 to the time he sold to Mason and Drawhorn in 1882, continuously, and that said 500-acre tract was then occupied by N. B. Mason and T. G. Drawhorn continuously up to the partition of said land on the 13th of November, 1882, and that Drawhorn occupied the south half of said 500 acres, claiming the same up to the 30th day of January, 1886, making more than ten years in continuous peaceable possession.

It seems that Click, the appellee, is claiming the land under a chain of title from and perhaps beginning with Mason and Draw-horn, and therefore his title is dependent upon whether the said Mason and Drawhorn occupied and lived on and claimed adversely the land for a period of ten years. Appellee made no attempt to plead limitation as part of his title, and limitation, to be available, must be specially pleaded under tbe statutes. This omission in the pleadings makes it necessary that this case be reversed and remanded, so, without commenting on the other assignments, we desire only to state that the entire record is in a very unsatisfactory condition, and we hope that in many respects much light may yet be shed upon matters embraced in the first assignment, and that the true location of the Williams north boundary line may be more thoroughly established, although, as presented by this record, we have held, the court having found as much, and there being testimony to support the finding, that the first assignment of error was untenable.

Believing that upon another trial of the case the pleadings will be in a more satisfactory condition, and the proof will be much clearer’ in many respects, and for the errors above mentioned, the case must be reversed and remanded for a new trial.
      <S=?For other oases see same topic and KUY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MOURSUND, J.

license: Public Domain

text:
    HAMILTON v. AMERICAN NAT. INS. CO.
    (No. 5947.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 16, 1918.)
    1. Appeal and Error <&wkey;100(2) — Appealable Orders — Injunction.
    No appeal is permitted from an order refusing to dissolve an injunction.
    2. Appeal and Error <&wkey;>773(2) — Briefs — Necessity — Want of Prosecution.
    . Where no briefs are filed on an appeal from an order refusing to vacate a receivership, the appeal will be dismissed.
    Appeal from District Court, Cameron County; W. B. Hopkins, Judge.
    Suit between the American National Insurance Company and J. D. Hamilton, executor. Prom an order refusing to vacate a receivership, and refusing to dissolve a temporary injunction, the latter appeals.
    Appeal dismissed.
   MOURSUND, J.

This is an appeal from an order made June 28, 1917, refusing to vacate a receivership, and refusing to dissolve a temporary injunction.

There is no appeal permitted by law from an order refusing to dissolve an injunction, but the last Legislature passed an act allowing appeals from interlocutory orders refusing to vacate receiverships. General Laws 1917, Reg. Sess. c. 168.

The case is therefore before us solely on the question of the appointment of a rei ceiver. No briefs have been filed. There is no statute dispensing with briefs in cases of this kind.

The appeal will be dismissed for want of prosecution.


author: HARPER, C. J.

text:
    KNOX et al. v. HORNE et al.
    (No. 779.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 10, 1918.
    Rehearing Denied Jan. 31, 1918.)
    1. Attachment &wkey;>350 — Action on Bond-Sufficiency of Evidence.
    In action on attachment bond, testimony of deputy sheriff, who filled out the bond as it appeared at the trial, etc., held to require a verdict against the sureties, who contended that the bond read for a smaller amount when their signatures were obtained.
    2. Judgment <&wkey;373 — Setting Aside — “Alteration” — 1 ‘ Spoliation. ’ ’
    Judgment on an attachment bond will be set aside because of an alteration in the bond by a party to the original action only, since a change made by one not a party is a spoliation, and not an alteration, of the bond.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Alteration ; Spoliation.]
    3. Judgment &wkey;>377 — Setting Aside — Failure to Defend.
    In action by sureties to set aside a judgment on an attachment bond, their failure to know of an alleged alteration in the bond until after the term of court had expired held not a sufficient excuse for failing to set up such a defense in the original action.
    4. New Trial &wkey;>166(3) — Expiration of Term of Court — When Granted.
    One can obtain a new trial by an original proceeding after the term of court has expired, only by affirmatively showing diligence to prevent the judgment, or that defense in the original action was prevented solely by fraud, accident, or the opposing party’s acts.
    Appeal from District Court, El Paso County; W. D. Howe, Judge.
    Suit by J- F. Knox and others against A. J. Horne and others. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    Brown & Wilchar and Jones, Jones, Hardie & Grambling, all of El Paso, for appellants. J. A. Buckler, T. A. Falvey, and Leigh Clark, all of El Paso; for appellees.
   HARPER, C. J.

On the 23d day of November, 1915, D. Y. Horne, joined by her husband, A. J. Horne, sued J. H. Gray for debt amounting to $1,350 and interest, and on the same day had an attachment issued, and levied on a stock of goods belonging to Gray on the 26th day of the said month, and on the same day Gray gave a replevin bond and retained the possession of the goods, with the plaintiffs J. F. Knox and J. Mann as his sureties thereon, and which bond was approved by the sheriff and returned along with the writ of attachment and filed in the office of the clerk of the district court; the return of the sheriff showing that the goods had been replevied by Gray by the execution of a bond in the sum of $3,000. On the 25th day of September, 1916, the case was tried, and a judgment rendered against Gray and the said sureties on the replevin bond for the amount sued for and interest, amounting to $1,485. On the 30th day of October, 1916, Gray and the sureties filed an amended motion for a new trial in that case, which was heard and overruled on the 3d day of November, 1916, and the court adjourned for the term on the next day, November 4th. From this judgment and order overruling the motion for new trial no appeal was ever had.

On the 23d day of November, 1916, the plaintiffs brought this suit, seeking to enjoin the collection of the said judgment, on the ground that after the replevin bond was signed by them it was changed without their consent from a $500 and a $1,000 bond to one for $1,500 and $3,000. The case was then tried and a verdict rendered by the jury under a peremptory charge in favor of the defendants in that suit, and a judgment accordingly. From that judgment this appeal was prosecuted.

The assignment is that the court erred in giving peremptory charge for defendants. The propositions are: (1) Judgments may be set aside upon bill of review filed for that purpose after adjournment of the term of court. (2) Sureties stand upon their obligation as written, and if the writing has been changed without their knowledge and consent, they are released. (3) Whether or not-the bond had been changed after it had been signed was a question of fact and there being evidence to sustain a finding either way the question should have been submitted to the jury. (4) Not being negligent in failing to make the defense in the original suit, they are entitled to have it determined in this one.

Tersely stated, the facts show that the bond was made out by the attorney for plaintiff in the case of Horne et al. v. Gray, assisted by the deputy sheriff, exactly in form and substance as it appeared upon the trial of this cause. It was then delivered to defendant Gray for execution and to secure sureties. The appellants testify that when they signed it the principal sums written in it was $500 and $1,000, and not for $3,000, as now appears. There is no denial of their signatures, nor is there any allegation or evidence as to who, if any person, made any change in it. It therefore is apparent that, if there was a change, there were two changes, one after it was taken by Gray and before it was submitted to appellants for their signatures, and then another after their signatures and before it was returned to the sheriff for approval. The deputy sheriff that filled out part of the bond testified that the writing and figures were his just as had been written in the original instance. So under the facts no other verdict than that which was rendered should have been rendered.

Again, there being no allegation that the bond was changed by any person interested in the suit, which was necessary in order to maintain this action, this petition alleges no cause of action for any change made in the bond by another than those interested in the bond is a spoliation and not an alteration. Rushing v. Bank, 160 S. W. 340. Besides, it seems that, since the sureties have made Gray, their principal, their agent to deliver the bond to the proper' authority for approval, they should not be permitted to take advantage of any fraudulent change made before delivery.

But, whether we are correct in the above holding or not, they now offer a defense to the original cause of action which they did not set up- at the proper time, and have not shown a sufficient reason for 'their failure in this respect. They were in court by virtue of their signatures to the bond, and entitled -to no other service or notice in the case, but were bound to take notice of all proceedings looking to a forfeiture of the bond, and it is not a sufficient excuse for not setting up their defense in that cause that they did not know of the alteration as to the increased amount until after the term of court had expired. Whilst they have alleged the later to be the excrfse for not setting up the defense, they admit that they knew of the amount of the judgment before the term of court expired, and filed a motion for a new trial, but did not in such motion set up any fraudulent alteration in the bond as a ground for another trial. In order for parties to suits to obtain a new trial by an original proceeding after the term of court has expired, they must affirmatively plead and prove diligence to prevent the judgment, or that they were prevented from making a defense to the former action by fraud, accident, or the acts of the opposing party, wholly unmixed with any fault or negligence of his own, neither of which appears in this ease. Clegg v. Darragh, 63 Tex. 357.

Finding no error, the assignment is overruled, and cause affirmed.

WALTHALL, J., did not sit, being absent on committee of Judges assisting the Supreme Court.
      ©ssFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSTJND, J.

text:
    AMERICAN MUT. BENEFIT ASS’N v. JOSHUA.
    (No. 5951.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 16, 1918.)
    Insurance ¡&wkey;443 — Mutual Benefit Associations — Policy — Construction — “Business.”
    Clause in mutual benefit policy, avoiding liability for death if insured was killed while engaged in any illegal business, does not release from liability, where insured was shot while resisting arrest or attempting to escape from an officer; the word “business” meaning occupation or calling, and not the same as the words-“caused by unlawful act,” or “while - engaged in violation of law,” which terms are customarily employed in policies, and the attempted escape having no. connection with insured’s calling.
    [Ed. Note — Eor other definitions, see Words and Phrases, First and Second Series, Business.]
    Appeal from Bexar County Court; John H. Clark, Judge.
    Action by Lucy Joshua against the American Mutual Benefit Association. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Chambers & Watson, of San Antonio, for appellant. T. H. Ridgeway and James F. Boyls, both of San Antonio, for appellee.
   MOURSTJND, J.

Lucy Joshua sued tlfe American Mutual Benefit Association on two certificates upon the life of Arthur Jones, aggregating $470, in each of which she was named as beneficiary. Defendant pleaded that plaintiff could not recover on account of clause 7 in each certificate, reading as follows:

“If within three years from date hereof the principal shall die by his or her own acts, whether sane or insane, or in consequence of or while engaged in any illegal business, the liability of the association shall not exceed the amount of the premiums paid.”

In this connection defendant pleaded that Jones was a convict, and was shot and killed while trying to escape or resisting arrest, or while attempting to kill one George Allen, who was trying to retake said Jones; that the death of Jones was caused by his own illegal acts, and while engaged in illegal and unlawful business, and in consequence of his own act, and in attempting to kill Allen; that these acts were in violation of said clause 7, as three years had not elapsed. Defendant tendered $17.05, the amount of premiums paid on the certificates.

The court rendered judgment for plaintiff.

Clause 7 of the certificates, by the use of the language “shall die by his or her own acts,” clearly provides against suicide, and the evidence fails to show that Jones committed suicide. For many years policies have been written with provisions exempting the insurer in case death is caused by an ‘‘unlawful act” or “while engaged in violation of law.” The appellant did not elect to use these time-honored terms but, for the first time, as far as we have found, used the expression “illegal business”; and, as the language must be strictly construed against the insurer, we conclude that the language “or in consequence of or while engaged in' any illegal business” cannot be construed to mean that, if Jones at the time of his death was doing an unlawful act, his beneficiary could not recover. The word “business” means occupation or calling, and the unlawful act had no connection with any occupation or calling engaged in by Jones.

Appellee also relies upon article 4742, Vernon’s Sayles’ Statutes, as preventing appellant from urging a defense based on the violation of the condition with regard to engaging in illegal business; but, as we have held that there is no merit in the contention of appellant as to the meaning of the provision, it becomes unnecessary to determine the effect of the statute relied upon by appellee.

The judgment is affirmed.
      <@:sjFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ALDERETE et ux. v. MOSLEY.
    (No. 769.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 10, 1918.)
    1. CONTINUANCE &wkey;>23 — EXCUSING WANT OF STATUTORY DILIGENCE.
    Continuance should have been granted defendants in suit on a promissory note and to foreclose deed of trust, who excused their want of statutory diligence, if not within the letter, at least within the spirit, of the statute, by showing the physical inability of a defendant, a material witness, and of two other material witnesses, to attend trial, defendant and his father, two of the witnesses, being prevented by sickness, and the other, defendant’s stenographer, by absence from the state.
    2. Continuance <&wkey;48 — Duty of Trial Court to Act on Facts in Evidence.
    In acting on defendants’ motion for continuance, the trial court should act on the facts in evidence as to whether a defendant was malingering by feigning illness, instead of his own mental impression on facts outside the record.
    3. Appeal and Error <&wkey;966(l) — Discretion of Trial Court.
    Discretion of court on granting or refusal of continuance will not be interfered with unless it clearly appears that such discretion has been abused.
    4. Homestead <&wkey;181(3) — Abandonment—Intention.
    Continuous absence from the homestead is not a controlling fact as to abandonment, but simply an evidentiary fact of intention, so that, where no other homestead has been acquired, it must be clear that there has been a total abandonment with intention not to return.
    Error from District Court, El Paso County ; Ballard Cold well, Judge.
    Suit by W. D. Mosley against I. Alderete and wife. To review a judgment for plaintiff, defendants bring error.
    Reversed and remanded.
    See, also, 189 S. W. 1083.
    C. L. Vowell and Jno. F. Weeks, both of El Paso, for plaintiffs in error. B. J. Mc-Quillan, C. M. Wilchar, and Ware & Norcop, all of El Paso, for defendant in error.
   HARPER, C. J.

This is a suit filed by W. D. Mosley against I. Alderete and wife upon a promissory note payable to said Mosley, and to foreclose deed of trust on a certain city lot.

The defendants answered that there was no consideration for the note; that it and the deed of trust were procured to be executed by fraudulent representations; and further that the property was their homestead at the time the deed of trust was executed.

Erom a judgment for plaintiff for the amount of the note, interest, and attorney’s fees, and foreclosing deed of trust, this appeal is perfected.

Several assignments attack the order of the trial court in overruling motions for postponement of trial. The record discloses that the cause was called, for trial November 5, 1915. Three applications were filed upon different days.' The first, upon plaintiff announcing ready for trial, is in form and substance in compliance with the statute. The only question is as to diligence. It alleges that plaintiff was sick, suffering with pains in chest and arm; that he had a broken arm from which, he was suffering, suffering from neuralgia and fever, etc.; that he believed he was not able to stand the fatigue and worry of the trial, in advising his attorney and testifying in his own behalf, as he was a material witness in the case. It further alleges that his father was then in a sanitarium, sick from an operation, and unable to be present and testify; that his father then lived in El Paso county, and had agreed to be present and testify, and would do so hut for his illness, setting up facts showing the materiality of his testimony with respect to the homestead claims. The third witness named is M. M. Phinney, alleging that she was at the time of the execution of the note and deed of trust his (defendant’s) stenographer, heard the conversations between the parties, and drew up the papers, etc., setting up the material facts to which she would testify. As to diligence, alleged that she remained in his employment up to the summer of 1915; had promised to be present at the trial and testify; that she left El Paso county to visit California, had accepted a position there, but that he had not been able until a few days prior thereto to obtain her address so as to communicate with her or take her depositions; that he then had her address, obtained the day before; that he had wired to ascertain if she would come to El Paso; that he believed he would receive a reply in the next few days, and asked a postponement of the trial for four or five days. This application was overruled, and the cause proceeded to trial.

On December 7th the second application was filed, alleging that, defendant having testified in his own behalf in part on the 6th, and the court having adjourned over to the morning of the 7th, the allegations show the proposed additional testimony to be material, and alleging that he was physically unable to attend the trial. His attendant physician testified that defendant was then sick in bed, suffering with bronchitis, swollen face, one eye partially closed, and had fever; that he was not then able to attend court, but would likely be able in three or four days.

Upon the -8th, after all the witnesses present had given their testimony, by formal written motion the other applications were insisted upon and to this motion was attached a message from witness Phinney, which stated that a leave of absence had been obtained, and that she could reach El Paso on Friday following, and asked a postponement for that time, that all three of the said witnesses might be present to testify.

The continuance should have been granted. The want of statutory diligence was sufficiently excused, if not within the letter, at least within the spirit of the statute. Dillingham v. Ellis, 86 Tex. 447, 25 S. W. 618; Horwitz v. La Raoche, 107 S. W. 1148; Railway v. Henning, 52 Tex. 474.

The court qualified the bill of exceptions to the order overruling the second application with the statement that he thought defendant was malingering. There is nothing in the record to indicate upon- what he based the statement, so we cannot give any weight to it, but, on the other hand, a qualified physician in good standing testified under oath that it was not safe for defendant to come to court, and there is nothing in the record to contradict the truth of the physician’s testimony. Under such circumstances the trial court should act upon the facts in evidence, instead of his own mental impression or facts outside of the record. Such matters are largely in the discretion of the trial court, and appellate courts will not reverse unless it clearly appears that such discretion has clearly been abused, as in this case appears.

Again, it was a material inquiry in the case as to whether defendant had abandoned the property as a homestead, and the record shows that his father could have testified to material facts in this respect, and defendant should have been given time to take his depositions if he was physically and mentally able to give them. It also seems that, even though it should be held that there was no strict diligence in case of witness Phinney, by reason of the importance of her testimony upon the question of validity of the note sued upon, the three days’ time requested for her to come to the trial should have been granted. Exact justice between parties is the object sought in the trial of causes of action, and to properly and accurately reach this end all the facts should be before the court and jury, which clearly has not been the case in this instance, and the record here does not justify a holding that defendant has been so dilatory as to justify the trial court in refusing the few days’ postponement asked for.

By another assignment it is urged that the cause should be reversed because of the following charge:

“You are further charged * * * that, when a homestead has been acquired, it continues to be the homestead until the acquisition of a new homestead by the same parties, or until its abandonment as such homestead; whether or not premises which constituted a homestead have been abandoned as such is a question of intention on the part of those whose homestead it was, such intention being evidenced as well by acts and conduct as by their statements, and the intention to abandon a homestead may be shown by continued absence from the same in connection with other circumstances showing such intention to abandon.”

It is charged that it is upon the weight of the evidence. Continued absence is not a controlling fact, but simply an evidentiary fact, of an actual abandonment.

“Abandonment is accomplished, not [merely] by going away without any intention of returning at any particular time in the future, but by going away with the definite intention never to return.” Foreman v. Meroney, 62 Tex. 726; Thomas v. Williams, 60 Tex. 271.
“The intent of the parties in leaving the homestead is the controlling fact.” Cline v. Upton, 56 Tex. 319.
“When no other homestead has been acquired, it must be undeniably clear and beyond, almost the shadow, at least of reasonable grounds of dispute, that there has been a total abandonment with an intention not to return and claim the exemption, before an abandonment will he found.” Sykes v. Speer, 112 S. W. 426, and cases there cited.

The affirmative evidence in this case is that the house upon the lot had been occupied as a homestead for many years; that just prior to the execution of the deed of trust it burned down; that immediately thereafter the defendant and his wife rented a house in which they lived for a time, and that they had lived in rented houses since that time and up to the trial; that they had not purchased another home or lands. In view of the fact that a new trial is ordered, we express no opinion as to the sufficiency of the proof as to abandonment of the. homestead.

Other assignments are presented, but they are of no consequence in view of the above holding. Because of the error in overruling motions to postpone and the error in the' charge upon the law of homestead abandonment, the cause is reversed and remanded.

WALTHALL, J., did not sit, being absent on committee of judges assisting the Supreme Court.
      <&wkey;>For other caso* see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGHTOWER, C. J.

text:
    GULF, C. & S. F. RY. CO. v. BESSER.
    (No. 293.)
    (Court of Civil Appeals of Texas. Beaumont.
    Jan. 7, 1918.
    Rehearing Denied Jan. 30, 1918.)
    1. False Imprisonment <&wkey;15(3) — Scope of Authority of Conductor — Arrest of Boys Thought to be Stoners of Trains.
    Where a railroad’s conductor was informed by another conductor that his train had been stoned when passing a certain church, and t,o look out for like treatment, and the conductor, when his train came near the church, having consulted with a passenger formerly sheriff, saw several boys on either side of the track, and apprehended and took two of them on board the train, the act of the conductor was within the scope of his general authority as such, and in furtherance of the railroad’s business.
    2. Carriers <&wkey;284 (2) — Carriage of Passengers — Duty" of Railroad to Protect Passengers.
    It was the duty of a railroad as a carrier of passengers to use the high degree of care that would be exercised by a very cautious and prudent person under the same circumstances to protect its passengers on a train from stoning by boys or others when it passed near a church.
    3. False Imprisonment <&wkey;15(l) — Liability for Tort of Agent — Acts of Third Person at Request and under Advice of Agent.
    Where everything a passenger on a train did in relation to the arrest of two boys for being implicated in stoning trains was done at the request and under the advice of the train’s conductor, the passenger’s acts must be treated as those of the conductor in relation to the liability of the railroad for the arrest.
    4. False Imprisonment <&wkey;36 — False Arrest-Excessive Verdict.
    In an action against a railroad for the act of its conductor in arresting plaintiffs, two boys, for being implicated in stoning trains, and carrying them six miles up the road to a station, where they were released, without addressing harsh or abusive language to them, so that they had to walk back home in the nighttime, verdict of $1,006 damages to each boy was not so excessive as to show that the award was the result of bias, prejudice, or other improper motive or consideration on the part of the trial court sitting as a jury.
    5. False Imprisonment &wkey;>23 — Admissions —Statements in Abandoned Answer.
    In an action against a railroad for false arrest of two boys by its conductor, certain statements or admissions contained in the original answer filed by the railroad were admissible, though the answer had been abandoned.
    6. Appeal and Error <&wkey;1051(l) — Harmless Error — Evidence.
    Any error on the part of the trial court in admitting such statements or admissions in the abandoned answer was harmless, where the facts were established on trial by witnesses without objection.
    Appeal from District Court, Montgomery County; J. Llewellyn, Judge.
    Consolidated actions by Hamilton Besser and another against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for each plaintiff, defendant appeals.
    Judgment affirmed.
    See, also, 181 S. W. 253.
    F. J. & C. T. Duff, of Beaumont, for appellant. Dean, Humphrey & Powell, of Huntsville, for appellees.
   HIGHTOWER, C. J.

On the night of December 19, 1912, Hamilton Besser and Jesse Johnson, two boys aged, respectively, 14 and 16 years, in company with other young people numbering between 50 and 75 had gathered at a country church house, known as the “Sweet I-Iome” church in Montgomery county, to practice for a concert which was to take place a few nights thereafter, which church house was between 50 and 75 yards distant from the Gulf, Colorado & Santa Fé Railway Company’s track, which track is crossed at that point by a community public road, and said boys were on that night, about 10 o’clock, caused by appellant’s conductor in charge of one of its passenger trains to be arrested and carried upon said train from said church house to the station of Keenan about six miles distant from said church house, and said boys were released at the station of Keenan and made-their way back on foot to the said church house, and from there to their respective homes on that night. Each of these boys, by next friend afterwards filed a suit against the Gulf, Colorado & Santa Fé Railway Company, appellant, claiming, in substance, that they were wrongfully and unlawfully arrested or caused to be wrongfully and unlawfully arrested and detained by defendant’s said conductor, acting within the scope of his general authority as conductor on appellant’s said train, and in consequence of such wrongful and unlawful arrest and detention, suitered damages, etc. By agreement the two cases were consolidated in the trial court, the facts in both cases being in all material respects the same, and upon trial before the court without a jury judgment was rendered in favor of each plaintiff in the sum of $1,000, from which judgment, after its motion for new trial was overruled, appellant, Gulf, Colorado & Santa Fé Railway Company, brought the case to this court by appeal.

There are five assignments of error máde by appellant, the second, third, and fourth of which present practically the same question, and will be considered together, these three assignments following:

“The court erred in rendering any judgment in favor of plaintiffs herein, because said judgment nee-'ssarily involved the finding by the court that the conductor of defendant had authority to stop its train and to apprehend, or cause to be apprehended, the plaintiffs Hamilton Besser and Jesse Johnson in the manner and at the time disclosed by the testimony, whereas in truth and in fact the record wholly fails to show any evidence that defendant’s conductor had any such authority, either actual or apparent, and wholly fails to disclose any liability on the part of the defendant company.”
“The court erred in rendering any judgment in favor of plaintiff against this defendant, because such judgment is without any support in the testimony, in that the evidence introduced by the parties failed to show any liability on the part of defendant.”
“The judgment of the court should be set aside because it is against the overwhelming weight and preponderance of the evidence, and is without support in the testimony in this: There is no testimony to show that the acts of defendant’s conductor or of John McKinney were authorized, either expressly or by implication from the conditions and circumstances surrounding the occurrence complained of in plaintiffs’ petition, or by the course of employment of said conductor, and there is no evidence to show that the acts of said conductor and John McKinney were in any way ratified by the defendant.”

These assignments are submitted as propositions, and in addition thereto these further propositions are advanced:

“Appellant, having entered a general denial to all of the allegations of plaintiffs’ petition upon which the trial was had, the burden of proof was on plaintiff to show that the arrest or apprehension of plaintiffs was within the scope of the employment of agent and servant of appellant, and the evidence having failed to show that McKinney, who made the alleged arrest or apprehension of plaintiff, was an employe of the company, or was acting under or by direction of any one who was authorized by the company to give such instructions or directions, and no ratification of his acts by the company having been shown, the court should, as a matter of law, have entered judgment for the defendant.”
“In order to render the master liable for the acts of its servants and employés, the act must not only be one that pertains to the business of the master, but must be fairly within the scope of the authority conferred upon the servant by virtue of his employment, or by express authorization to do the particular act complained of.”

As counter propositions to those of appellant, under the foregoing assignments, appel-lee presents the following:

“It was a part of the duty of defendant’s conductor, who was in charge of the train upon which the appellees were arrested and upon which they were carried and transported, to protect said train and the passengers thereon against attacks, and it was in the discharge of such duty that defendant’s conductor caused ap-pellees to be arrested and transported; and, though the' conductor was mistaken in believing that appellees were about to make an attack on said train, such mistake or belief would not relieve the defendant from liability for the acts of its conductor done, and procured to be done, in the discharge of the duties devolving upon him pursuant to his employment.”
“The evidence shows that the conductor was in charge of the train, and that it was his duty to protect the train and passengers from attacks, and that-the arrest of the appellees was effected by the conductor for what he conceived to be the protection of the train and its passengers. Therefore the acts of the conductor resulting in the arrest of the appellees were within the scope of his authority, and the defendant is liable therefor.”

We do not understand from the briefs of counsel in this case that there is really any difference between them as to the rule of law that governs where the master is sought to be held responsible for the act of his servant in cases of this character, and that the rule is conceded to be that where the act complained of on the part of the servant comes within the general scope of his authority or emplojunent and .is done in furtherance of the master’s business, then the master must respond to one injured by- such act on the part of the servant, if wrongful, whether such particular act was expressly authorized by the master or not. Railway Co. v. Anderson, 82 Tex. 516, 17 S. W. 1039, 27 Am. St. Rep. 902; Railway Co. v. Warner, 19 Tex. Civ. App. 463, 49 S. W. 254; Railway Co. v. Dean, 98 Tex. 517, 85 S. W. 1135, 70 L. R. A. 943; Wolf v. Perryman, 82 Tex. 112, 17 S. W. 772; Railway Co. v. Donahoe, 56 Tex. 162; Newburn v. Durham, 10 Tex. Civ. App. 655, 32 S. W. 112. There being no real question as to the true rule governing in cases of this character, the only question to be determined in disposing of these assignments is whether under the facts of this case the acts of appellant’s conductor in causing appellees to be arrested and detained came within the general scope of his authority as such conductor, and whether such acts were in furtherance of appellant’s business as a common carrier of passengers by a railroad. We will briefly state these facts, in substance, as we gather them from the record, and will not undertake to qupte the testimony of the witnesses in doing so.

On the night of December 19, 1912, when appellant’s passenger train, the conductor of which caused the arrest of appellees, arrived in the town of Conroe in Montgomery county, going west, the conductor of said train was informed by the operatives of another of appellant’s passenger trains known as the “Boll Weevil,” going east, that said Boll Weevil train on that same night, and about 30 or 40 minutes before said trains met at Conroe, had been stoned and rocked, as said Boll Weevil train traveled east passing along by said Sweet Home church, and appellant’s conductor, whose name was Pittman, in charge of said west-bound train was warned to look out for his train and passengers when his train should pass said Sweet Home church. Being in possession of this information and warning, appellant’s conductor, Pittman, on the west-bound train, soon after the same was leaving the station of Conroe commenced preparations with a view to protecting his passengers, by closing the windows and pulling down the shades and curtains of his coaches, for the reason that he apprehended that when his train should pass said church house, the same would be stoned and rocked, as had been the case with the east-bound train just before, and, while taking these precautions, appellant’s conductor was observed by a passenger on his train whose name was John McKinney, who asked the conductor why he was thus pulling down the shades, etc., in the coaches, and this passenger McKinney was thereupon informed by appellant’s conductor that he expected the train to be rocked or stoned when the same should pass the church house in question, which was about six or eight miles west of Conroe, and in the same connection said conductor stated to the passenger McKinney that one of appellant’s trains had been rocked at said point the night before, and that the east-bound train that night had also been rocked by persons near said church house. This passenger, John McKinney, was at one time sheriff of Grimes county, and appellant’s conductor, on the night in question, thought that he was still such sheriff, or an officer of some character, and at the same time appellant’s conductor asked McKinney if he would not assist him in apprehending the parties who were expected to rock or stone the train when the same should pass said church house, and thereby protect the passengers on said train. To this request, John McKinney agreed, and, not knowing from whom or by whom such attacks upon the train would be made, but suspecting or thinking perhaps that such attack might be made by drunken negroes or some other dangerous characters, he, McKinney, asked appellant’s conductor if he had a pistol, whereupon appellant’s conductor replied that he had not, but that he would get one from the express messenger on the train, and give it to McKinney for the purpose of enabling McKinney to apprehend the persons who were expectéd by the conductor to make the assault on his train. Such pistol was procured by the conductor from the express messenger, and was handed to the passenger McKinney, and as the train was nearly approaching the Sweet Home church house, appellant’s conductor and McKinney saw what they thought to be some one flagging the train at the- road crossing by the church house with what appeared to be a torchlight, and as the train approached nearer this crossing, in response to this signal, appellant’s train was causea to slacken its speed, and when the same reached the crossing, approximately opposite said church house, and while on said crossing the train was brought to a stop and several boys were observed by appellant’s conductor and John McKinney, standing in close proximity to appellant’s track, some on the right of the track and some on the left, those on the left being within four or five feet of appellant’s track. When appellant’s train stopped, John McKinney immediately stepped from the platform on the left-hand side, and was face to face with Hamilton Besser and Jesse Johnson and another boy named Claude Miller, and he approached them with- a pistol in his hand, which was observed by these boys, and with a remark, substantially to the effect, “What are you doing rocking this train?” and as the appellees testified, without giving them a chance to answer, the said McKinney grabbed Hamilton Besser and Jesse Johnson and marched them to the steps of the coach, where the conductor was standing, and asked the conductor what he should do with the boys, to which the conductor replied, “Bring them on here,” meaning the train. Thereupon the appellees, B'esser and Johnson, were carried upon appellant’s train and into one of the coaches and seated, and shortly thereafter appellant’s conductor, Pittman, came into the coach and sat down in front of the appellees, and began to question them about their rocking and stoning the train, etc., and in effect told them that they were there for the purpose of stoning the train, and that such acts on their part were very wrong, and very dangerous to passengers on the train, and admonished them against such conduct, but did not abuse or in any other manner excoriate these boys while on said train, and when the train reached the station of Keenan, which was about six miles distant from this church house, these boys were asked by the conductor if they desired to get off there, and they responded that they so desired, and they were put off, and waited back down appellant’s track to said church house that night and from there to their respective homes. Besser lived about a mile and a half from the church house, and Johnson about three miles. It appears from the record that the distance from where these boys lived to the station of Keenan was not much greater than the distance from their homes to the church house, but it also appears that they did not know how to get to their homes from the station of Keenan in the darkness of the night, except to go back down the track to the church house and from there home. The conductor testified that it was his duty, among other things, under his employment, to protect his train and the passengers thereon from violence and assaults, etc., and that his act in having these appellees arrested on the night in question was because he apprehended that they were at the road crossing near said church house on that night for the very purpose of rocking or stoning appellant’s train, under his control and management, and that if they should do so, he feared that some of the passengers on appellant’s train might be injured.

Now the question is with reference to the assignments under consideration, Was the act of the conductor, in causing the arrest and detention of appellees, as he did, done within the scope of his general authority as conductor of appellant’s train and in furtherance of the appellant’s business as a carrier of passengers by railroad?

We have given the question careful consideration, and have carefully analyzed all the authorities cited in briefs of counsel on both sides, and we have arrived at the conclusion that the act of appellant’s conductor in causing appellees to be arrested and detained, as far as they were, was done within the scope of his general authority as conductor, and in furtherance of appellant’s business as a carrier of passengers by railroad. The testimony is wholly undisputed to the effect that appellant’s conductor reasonably apprehended that when his train should reach the point where these boys were arrested on the night in question, the same would be stoned or rocked, and it is perfectly apparent from the record that ’ appellant’s conductor reasonably apprehended that serious injury might thereby result to some of the passengers, on appellant’s train, and it was for. the purpose of preventing this reasonably threatened injury that appellant’s conductor caused John McKinney to do everything he did in connection with the arrest of these boys on that night; and it is made reasonably certain by the testimony in the record that appellant’s conductor believed at the very time the train in question reached the road crossing, where these boys were standing on that ¡night, that they were there for the very purpose of stoning or rocking said train, and that if the train proceeded on without an effort to prevent such conduct, such train would be assaulted, and that probably some passenger or passengers thereon would be injured or violence done to the train itself, and for that reason appellant’s conductor caused these boys to be apprehended or arrested and carried upon appellant’s train, and there detained for a short period, as above stated. Unquestionably, it was the duty of appellant, as a carrier of passengers by railroad, to use that high degree of care that would be exercised by a very cautious and prudent person under the same or similar circumstances as prevailed that night to protect its passengers on said train, and the record showing without dispute that Conductor Pittman had complete control and management of said train, as such conductor, in the stead of appellant, and it appearing from his undisputed testimony that it was his duty, under his employment, to protect appellant’s passengers and train, the conclusion cannot be escaped that what he did on that occasion was clearly within the scope of his general authority as such conductor, with the commendable purpose on his part of protecting the passengers of appellant on said train, and though he made a mistake, as far as any contention is concerned in this record, in having these boys arrested, nevertheless appellant is liable for such damages to them as proximately resulted in consequence of the Conductor’s act.-

There can be nothing, of course, in the contention that the passenger, McKinney, was not an employé of the appellant, because the record is undisputed to the effect that everything he did was done at the request and under the advice of appellant’s conductor, and therefore McKinney’s acts must be treated as those of the conductor.

We shall not enter into a discussion of the authorities in this connection,' but content ourselves merely with citing them as they are found in the briefs of counsel for both sides; at least some of them above cited are cited by both sides. With these views, it follows that this court is of the opinion that the second, third, and fourth assign-merits ef error should be overruled; and-it is so ordered.

The next assignment we shall discuss is the fifth found in appellant’s brief, which is as follows:

“The judgment of the trial court -is erroneous, in that it is so grossly excessive and unconscionable as to suggest that the court was influenced by passion or prejudice against the defendant, or biased in favor of plaintiffs.”

As a further proposition under this assignment, the following is advanced:

“When the proof of damages merely shows that a boy 15 or 16 years of age is apprehended and taken aboard a comfortable train and carried about six miles, and that no harsh or abusive language of any kind was addressed to him and no force of any character applied to him and that he was then released and permitted to go his way, and the evidence merely shows that he was ‘scared’ and ‘shamed,’ and fails to show humiliation, and fails to show that his experience resulted in any kind of bodily injury .‘or sickness, or that he suffered from weariness, a judgment for $1,000 is so grossly exeessiveu'as to call for revision by this court.”

Appellees’ counter proposition to this is- as follows:

“The question of what sum would fairly compensate a lad of 15 or 16 years of age for his unlawful arrest and detention and for having, to walk for several miles to his home, and a portion of the way alone, after he was liberated by the defendants’ agents at the station of Keenan penniless, was a question for the trial court, discharging the functions of a jury, and in assessing this damage at $1,000, the court actéd ivithin its discretion, and the amount fixed by the court as fair compensation was not such as to show that it was influenced by any improper motive or consideration.”

With reference to the excessiveness of the verdict, as claimed by appellant, we admit that the amount awarded by the trial judge, sitting as a jury, would seem to be greater than the facts in this record would compel or ordinarily authorize, but we do not. understand that it is within the province of this court to disturb a verdict awarded by a trial court or jury on the ground of ex-cessiveness, unless this court can say from the entire record that it is manifest that such award was the result of bias or prejudice or some other improper motive or consideration, and that the action of the court in that regard was clearly wrong. We understand this to be substantially the rule. in these cases, and while we understand that the Courts of Civil Appeals of this state have, on numbers of occasions, set aside or caused a remittitur on verdicts of this kind, they have only done so where they were able to say from the record that such verdicts were clearly wrong. We cannot so hold in-this case. This is the second appeal in this case, the case having been reversed on the former appeal because of error in the charge of the court, and the jury on that trial awarded appellees $1,000 each, and on this trial the trial judge, who, presumably, was_ free from such prejudice or bias or other" wrong motive, as is frequently discoverable in juries in cases of this kind, awarded to ap: pellees the same amount, and we cannot consistently hold that it is manifest to this court that the trial judge did other than what he believed to be his sworn duty, and awarded to these plaintiffs such a sum as he, from all the evidence, thought would fairly compensate them for the wrong done and injury sus-' tained. It will be remembered that this Is not a case where a passenger is merely carried beyond his station, which would be a simple breach of contract of carriage, 'or where one should be merely wrongfully ejected, under circumstances attended by no violence or insults, and no serious inconvenience arises in consequence thereof, but here the appellees were wrongfully, and without any authority whatever, in so far as this record shows, arrested, and against their will, for a short period of time, it is true, detained; and, while the conductor, after the boys were taken on aijpellant’s train, was not guilty of any abusive language, or what would ordinarily be considered insulting conduct, towards these boys, and while it is made to appear that there was no physical suffering to amount to anything in consequence of this arrest and detention, yet these boys were arrested by the conductor (we treat the act of McKinney as that of the conductor), who was armed with a pistol in his hands at the time, and which was observed by these boys, though the pistol was not drawn or presented on them, and they were marched into appellant’s train under these circumstances, and their further participation in the pleasures of their concert on that night was prevented, and presumably all this was done with the knowledge of their companions and associates, who had gathered at the church on that night, and these circumstances, we think, were calculated to cause much more humiliation and shame than appellant’s counsel thinks should be attributable to the wrong of appellant’s conductor on that night. It was the positive testimony of these appellees that they were ashamed and in effect humiliated by this conduct on the part of appellant’s conductor, and that they were frightened and somewhat alarmed in getting to their homes on that night after being released at the station of Keenan; that the night was dark and cold, and they had to go through creek bottoms before reaching their homes after the late hour of midnight, not even being in the company of each other after returning to the church on that night, but going separately to their respective homes, which were distant from the church, as hereinbefore stated. Under these facts and circumstances, we do not feel that we would be justified in disturbing the trial court’s judgment on this point and substituting what we might consider a fair and reasonable compensation to the appellees for their injury. This assignment is therefore overruled.

We have not discussed appellant’s first assignment of error, which challenges the correctness of the action of the trial court in overruling appellant’s objection to the admission in evidence of certain statements or admissions contained in the original answer filed by appellant in this cause. These statements or admissions were simply to the effect, in substance, that appellant’s, conductor caused these appellees to be arrested on the night in question because he apprehended that they were at the point in question for the purpose of stoning or rocking-appellant’s train, and that, in the event they should be permitted to do so, injury might result to passengers on the train, and that said John McKinney, in doing what he did on the-occasion in question, was acting at the request of and for the purpose of assisting appellant’s conductor in protecting its train and passengers on that night. This testimony was objected to on the ground, principally, that an abandoned pleading is not admissible as evidence for any purpose in a case, and this is the only objection that was urged to such evidence, in so far as the bill of exceptions, raising this point, discloses. We have considered the question to some extent, and in so far as the specific objection urged here is concerned, we overrule the assignment, hut if we should be mistaken in this view, still we are of opinion that the error on the part of the trial court in admitting this testimony was clearly harmless, because the record fully discloses that in substance these very facts were established by other witnesses on the trial without objection. Indeed, the evidence of the conductor himself, and that of John McKinney himself, is practically the same in ©fleet as that offered by this pleading, and for that reason also the assignment is overruled.

It follows from the views above expressed that this court is of the opinion that there is no reversible error shown by the record, and the judgment of the trial court in this cause is therefore affirmed.
      <&wkey;Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SOUTHERN PAC. CO. v. HAZELBUSCH.
    (No. 775.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 10, 1918.
    Rehearing Denied Jan. 31, 1918.)
    1. Master and Servant <§=^>203(1) — Instruction—Assumption of Risk.
    An instruction that “when plaintiff entered the services of the company he assumed the risks and dangers incident to his employment which were obvious and known to him or which he must necessarily, in discharge of his duties, have known of,” is proper.
    2. Master and Servant <&wkey;264 (1) — Assumption op Risk — Pleading and Proop.
    In an action for injuries to servant, the defendant must plead and prove its defense of assumed risk.
    3. Trial <&wkey;252(ll) — Instructions — Conformity to Evidence. •
    An instruction that a servant is presumed to understand the risks incident to his riding on top of the tender or tank of an oil burning locomotive is improper, where there was no evidence that it was a common thing for such tenders to have oil on their tops, and there was evidence that where oil was so spilled it was the duty of certain servants to remove it.
    4. Master and Servant <&wkey;20o (2) — Assumption op Risks — Knowledge by Servant op Defect or Danger.
    Where it was the duty of the master or his agent to remove any oil spilled on the top of the tank or tender of an engine, a servant could presume this had been done, and until he has been notified or acquired knowledge to the contrary, lie does not assume the risk of slipping and falling from such cause.
    Appeal from District Court, El Paso County; P. R. Price, Judge.
    Action by John Hazelbusch against the Southern Pacific Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Beall, Kemp & Nagle, of El Paso, for appellant. Geo. E. Wallace and W. S. Berkshire, both of El Paso, for appellee.
   HARPER, C. J.

Appellee based his cause of action upon the allegation that by reason of the presence of oil upon the top of an engine, upon which, in the discharge of his duties as yardmaster, engaged in interstate commence it became necessary to place himself, he was caused to slip and fall therefrom to the ground, and thereby was injured as alleged.

Prom the judgment entered, an appeal has been perfected. Only one assignment is urged to the effect that the uncontroverted evidence shows that plaintiff’s Injuries were due to risks and dangers assumed by him; therefore the court erred in refusing to instruct a verdict for the defendant.

February, 1916, plaintiff was working for the Southern Pacific Company in the capacity of yardmaster; working at night; had been working in this capacity for two years, and had had many years experience as a railroad employé. About 11:45 o’clock upon the night in question, for the purpose of looking out for incoming trains he climbed upon an engine; after he had ridden some distance he started along the top of the engine to the rear end to give instructions to the engine foreman, when at a point near the manhole through which the engines — oil burners — were filled with oil, his foot was caused to slip in some oil which had been spilled there, and thereby caused to fall to the ground, head foremost, and injured.

Did he assume the risks and dangers incident to the existence of this oil upon the engine in the discharge of his duties, under all the facts in evidence? Appellant’s first two propositions are correct statements of the law of assumed risk, i. e.:

“When plaintiff entered the service of thcompany, he assumed the risks and dangers incident to his employment, which were obvious and known to him, or which he must necessarily in the discharge of his duties have known of.”

But we cannot give our approval of its third proposition:

“A man of ordinary intelligence and experience in the work which plaintiff was doing at the time of Ms alleged injuries is presumed to understand the risks incident to his riding upon the top of the tender or oil tank of an oil burning locomotive.”

The defendant must plead and prove its defense of assumed risk. Barnhart v. K. C.. M. & O. Ry. Co. (Sup.) 184 S. W. 176.

The evidence is uncontradicted that it is next to impossible to fill these oil tanks without spilling oil upon top of them, but, upon the other hand, there is evidence that when oil is spilled it is the duty of certain employés to clean it up, and that this had not been done in this instance. The evidence in this case is not such as to make it a presumption, as a matter of law, that all oil-burning engines have accumulations of oil upon their tops from being filled, and. that persons working on them must necessarily know of it and appreciate the dangers incident thereto. If, as contended by appellant, the evidence in this case conclusively showed that it was a common thing for oil to be on top of these oil tanks, plaintiff with his two years’ experience under such existing conditions might be presumed to have known the danger and therefore assumed the risks, but the evidence in this case is not of that conclusive nature as to warrant us in so determining, but it was such as to become a' question for the jury, and it has been determined against appellant. As there is evidence to the effect that the oil should not have been permitted to remain upon the tank, and the verdict of the jury, in effect, sustains such to be the fact, the plaintiff could assume that the employer or the agent had' exercised proper care with respect to his safety by cleaning it off, until he has been notified to the contrary, unless his want of cafe and the danger arising from it were so obvious that he, an ordinarily careful person, under the circumstances, should have' observed and appreciated the danger, and there is evidence that he did not, in fact, know that the oil was there, and there is no evidence that indicates that he should be charged with its discovery, but, on the other hand, the accident having occurred at mid-, night, in the active discharge of his duties looking to the handling of several trains, as in this case; it would seem that the presumption, if any is indulged in, should be the other way.

Finding no error, the cause is affirmed.

WALTHALL, J., did not sit, being absent on committee of judges assisting the Supreme Court.
      <¡&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    KUNZ et al. v. RAGSDALE et al.
    (No. 5912.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 21, 1917.
    On Motion for Rehearing, Jan. 23, 1918.)
    1. Venue &wkey;>22(l) — County of Residence— Codefendants.
    Suit was properly brought against all defendants in the county of one defendant’s residence, unless there was a misjoinder of parties and causes of action.
    2. Venue <&wkey;22(3) — Change—Misjoinder of Parties and Causes of Action.
    If there is a misjoinder of parties and causes of action, the suit being brought in the county of one defendant’s residence, the transfer of the entire ease to another county in which another defendant resides is erroneous, because the court will necessarily sustain the plea of misjoinder when the case is called for trial, and require an election by plaintiffs of which cause they will prosecute; and, if they should elect to prosecute the suit against the first defendant, she would file a plea of privilege to be sued in the county of her residence, where the suit originally was brought.
    3.. Action <&wkey;50(4) — Suit against Guardians — MISJOINDER OF PARTIES AND CAUSES of Action.
    Where plaintiffs show they are entitled to a certain estate as minors which has been administered by two guardians, and that one or both of such guardians are liable to plaintiffs, and that there will be a controversy between the guardians, each contending it was the fault of the other which caused the loss to plaintiffs, plaintiffs are not required to bring separate suits.
    On Motion for Rehearing.
    4. Guardian and Ward t&wkey;72 — Successive Guardians — Liability.
    Under Rev. St. 1911, art. 4204, charging the "successor of a guardian with responsibility for 'the entire estate which came into the hands of his predecessor, the only way in which the successor guardian can escape liability to his wards is to show that he has been unable to collect from persons liable to the wards’ estate, and from the estate of the first guardian and his bondsmen, though he exercised due diligence.

      ‘5. Guardian and Ward &wkey;>56 — Liability of Guardian for Wards’ Money Lent.
    Where a guardian made loans of his wards’ money without authority from the court, and never reported the loans to the court, and made them without taking lawful security, he was liable for the money loaned, if lost to the wards.
    6. Guardian and Ward <&wkey;130 — Action by Wards — Pleading.
    In a wards’ suit against their guardian and his successor and others as their sureties, as against general demurrer, averments that the first guardian negligently made deposits of the wards’ funds without any authority from the county court, and continued the deposits negligently when he knew, or could have known, by due diligence, that the deposits were liable to be lost was sufficient to charge liability; it being alleged that the funds were never recovered.
    7. Guardian and Ward <&wkey;72 — Liability for Loss of Deposit of Wards’ Money-Release.
    The act of the second guardian of minors in undertaking to deal with the depositary with whom the first guardian had left their funds as to part of the indebtedness did not release the estate of the first guardian, the second guardian’s husband, or his sureties, from liability for loss of the deposit.
    Appeal from District Court, Karnes County; F. G. Chambliss, Judge.
    Suit by Victoria Kunz and others against J. W. Ragsdale and others. From a judgment for defendants, plaintiffs appeal.
    Judgment reversed, and cause remanded.
    ‘T. B. Smiley, of Karnes City, and Faith & Murray, of Iiunge, for appellants. Fly & Ragsdale, of Victoria, for appellees.
   MOURSUND, J.

Appellants, Victoria Kunz, joined by her husband, Frank Kunz, Agnes Malik, Genovefa 1-Iahn, joined by her husband, Raymond Hahn, Frantiska Malik, and Joseph Malik, the last-named two, minors, being represented by Agnes Malik, as next friend, sued J. W. Ragsdale, D'. A. Paul-us, Mary Malik, and the American Surety Company of New York to recover $1,030.47, 'alleged to be the proportionate part belonging to plaintiffs of certain sums loaned by A. Malik, the first guardian of plaintiffs which loans were not collected but renewed by Mary Malik, their second guardian, who was appointed after the death of A. Malik. It was alleged that defendants Ragsdale and Paulus are sureties on the guardian’s bond of A. Malik, and the American Surety Company is the surety on the guardian’s bond of Mary Malik. The two bonds are copied in the petition. It was further alleged that the loans were made to A. P. Toman, without any authority from the probate, court, and without exacting the security required by law, and the money negligently left with him until he became insolvent, and that the money was thereby lost to appellants. It was also alleged that the exact date when Toman became actually and notoriously insolvent was not known to plaintiffs; that A. Malik acted negligently in making the loans, and that Mary Malik, knowing that the funds were illegally in the hands of Toman, and that he was financially distressed, and that the funds were likely to be lost if left in his hands, continued to leave same in his hands and made no effort to recover the same, and in fact renewed the loans.

Defendants Ragsdale and Paulus filed pleas of privilege to be sued in the counties of their respective residences, and pleaded misjoinder of parties and causes of action. The court, without making any order with respect to the pleas of misjoinder, sustained the pleas of privilege, and transferred the entire case to the district court of De Witt county, the county in which defendant Paulus resides.

It is evident that, as Mary Malik resides in Karnes county, the suit was properly brought in that county against all parties, unless there is a misjoinder of parties and causes of action. If there is a misjoinder, the transfer of the entire case was erroneous because when it is called for trial the court will necessarily sustain the plea of misjoinder, and require an election by plaintiffs of which cause they will prosecute. If plaintiffs should elect to prosecute the suit against Mary Malik, she would promptly file a plea of privilege to be sued in the county of her residence. The question of misjoinder should have been determined first in order to protect the rights of all the parties, for if sustained the plaintiffs would have the privilege of going on with their suit against Mary Malik.

However, we are of the opinion that the exceptions urging misjoinder are not well taken. The pleadings are not as complete as they should be, but plaintiffs show that they are entitled to a certain estate which has been administered 'by two persons, and that one or both of them are liable to plaintiffs; that there will be a controversy between defendants, each contending that it was the fault of the other which- caused the loss to plaintiffs. We do not believe that under our system plaintiffs are required to bring separate suits. In the case of Love v. Keowne, 58 Tex. 191, Judge Stayton laid great stress upon the proposition that the joinder in that case should be permitted for the full protection of the plaintiff. In this case it seems very clear that the full protection of the plaintiffs can only be obtained by joining all of those upon whom the responsibility rested for the administration of plaintiffs’ estate. In Love v. Keowne, supra, the court said:

“It has been found impracticable to lay down any positive general rule as to what will or will not constitute multifariousness, but the courts have wisely left the question, as one of convenience, to be decided according to the peculiar circumstances of the case. As said by McLean, J., in Gains v. Chew, 2 How. (U. S.) 619 [11 L. Ed. 402], ‘Every case must be governed by its own circumstances; and as they are as diversified as the names of the parties, the court must exercise a sound discretion on the subject.’ It is said in the notes to the leading case of Fellows v. Fellows, 4 Cowen [N. Y.] 682, in 15 Am. Decisions, 428, that perhaps the best general rule that can be laid down is that stated by Wilde J., in Dimmock v. Bixby, 20 Pick. [Mass.] 377, that the objection of multifariousness does not hold ‘where one general right is claimed by the plaintiffs, although the defendants may have separate and distinct rights.’ ”

In support of our conclusion in this case we cite the following cases in addition to the case quoted from as illustrative of the liberality of our system with respect to avoiding a multiplicity of suits: Skipworth v. Hurt, 94 Tex. 322, 60 S. W. 423; Railroad Co. v. Graves, 50 Tex. 202; Sun Ins. Office v. Beneke, 53 S. W. 98; Muncy v. Mattfield, 40 S. W. 345; Moore v. Bldg. Ass’n, 19 Tex. Civ. App. 68, 45 S. W. 974; Finegan v. Read, 8 Tex. Civ. App. 33, 27 S. W. 261.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

It has been held that upon the death of a guardian the relation of the ward to the estate of his former guardian is that of debtor and creditor, and that upon the appointment of another guardian by the probate court it is without jurisdiction to adjudicate the matters between the ward and the estate of the former guardian. American Bonding Co. v. Logan, 132 S. W. 894.

If a second guardian is appointed, that guardianship ceases when the ward becomes of age, and such ward could then sue upon the bond of the first guardian for waste committed by the first guardian. Hix v. Duncan, 99 S. W. 422. Suits of that character were sustained in the two cases hereinbefore cited, thus demonstrating that our statutes do not have the effect of releasing the estate and sureties of a deceased guardian from liability to the heirs upon the appointment of another guardian. Upon the appointment of the successor, our statute (article 4204, Rev. St. .1911) charges him with responsibility for the .entire estate which came into- the hands of his predecessor, and the only way in which he can escape liability is to show that he has been unable to collect the same or part thereof from persons liable to the estate of the minors and from the estate of the first guardian and his bondsmen, although he exercised due diligence. In this case the petition alleges, in substance,that A. Malik made the loans to Toman without authority from the court, and had never reported same to the court, and had made such loans without taking security in the manner prescribed by law. The guardian is liable for money thus loaned if it is lost.^ Roberson v. Tonn, 76 Tex. 535, 13 S. W. 385; Freedman v. Vallie, 75 S. W. 322.

It is further alleged that A. Malik made certain deposits of funds with Tomanwithout any authority from the county court, and that he made the same negligently, and continued the same negligently wñen he knew, or could have known by the use of due diligence, that the same were liable to be lost to the minors. As against a general demurrer, at least, such averments were sufficient to charge liability, it being alleged that the funds were never recovered from Toman. Murph v. McCullough, 40 Tex. Civ. App. 403, 90 S. W. 69; American Surety Co. v. Hardwick, 186 S. W. 805. The petition showed that Mary Malik had never recovered the money from Toman, and had renewed loans to him to the extent of $735, from which allegations, and the general allegation with regard to loss of funds, the intendment can reasonable be indulged that the money due by Toman was not paid to Mary Malik by the estate of A. Malik or the sureties on his bond. It is not alleged that any accounting took place between Mary Malik apd the estate of her husband and his sureties; and, as she is interested in the community estate held by her deceased husband, it would seem that any accounting other than the actual procurement of the funds might be contested by her surety, and by the wards.

It is alleged that she undertook to deal with Toman as to part of the indebtedness, but this would not release her husband’s estate or his sureties. It is also alleged that she dealt negligently in regard to the matter. We are not prepared to say that such negligence under the facts of this case, or under any facts, would release the sureties of her husband from liability to the wards, but suppose that it would do so, provided the negligence resulted in the loss of the loans and deposits, which might be the case if Toman was solvent and the money could have been collected after she became guardian. In this case it 'is alleged that plaintiffs are unable to say when Toman became insolvent; that is, even under the .theory that the sureties might become released by her negligence, the facts pleaded merely show that plaintiffs do not know whether .or, not the sureties of A. Malik have a defense to the suit.

As the statute makes Mary Malik liable for the same debt alleged to be due" by'the sureties of A. Malik, it appears that the petition makes out a prima facie case against all the defendants for the same debt. Plaintiffs can only collect their debt once, so it if eminently proper that they join in one suit all who are asserted to be liable for suc!> debt. The fact that under our statutes ant' under the averments of the petition there are matters to be adjusted between the sureties of A. Malik and Mary Malik adds weight to the conviction that there is no misjoinder, for if the allegations be true, in all probability, had plaintiffs sued only Mary Malik and her surety, they would have impleaded the sureties of A. Malik. We believe the following language of Judge Stayton, in Love v. Keowne, 58 Tex. 201, is peculiarly applicable to this case:

“The breach of each of the bonds doubtless constitutes a cause of action against the makers of the several bonds, ordinarily separate and distinct; but the relation of two sets of sureties may be such to the subject-matter of litigation, which in this case is the estate, that came into the hands of the administrators, that they may be joined in one action, and in which it may become eminently proper that all the sureties should be joined, not only -for the protection of those interested in the estate, but also for the purpose of adjusting the equities existing among the sureties themselves. In a court of equity this is always desirable, in order to do complete justice between all parties without a multiplicity of suits.”

It is true in that case the two sets of sureties had the same principal, but in view of the manner in which our statutes connect up the two guardianships and of the construction placed on our statutes by our decisions, it was just as proper to join the sureties of Malik with Mrs. Malik and her surety as it was to join both sets of sureties in the case quoted from.

The motion for rehearing is overruled.
      ©3»For other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes