author: HIGGINS, J.

text:
    POSTAL TELEGRAPH-CABLE CO. et al. v. PREWITT.
    (No. 752.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 21, 1917.
    Rehearing Denied Dec. 13, 1917.)
    1. Telegraphs and Telephones @=>35 — Failure to Deliver Message — Liability.
    Where sender of telegram telephoned it to the company’s agent, who wrote it upon blanks containing provisions limiting liability, such provisions were not binding as a part of the contract.
    2. Telegraphs and Telephones @=>35 — Notice.
    In such case the telegraph operator taking the telegram by phone and writing it for transmission does not act as the agent of the sender so as to bind him to the conditions upon the blank.
    3. Courts @=>91(1) — Jurisdiction—State Supreme Court.
    A judgment of the Supreme Court of Texas that Act Cong. June 18, 1910, c. 309, 36 Stat. 539, does not supersede the state law as to the liability of a telegraph company for negligence in delivery of an interstate message is controlling authority upon-the Court of Civil Appeals unless and until the contrary be held by the Supreme Court of the United States.
    4. Telegraphs and Telephones @=>37(7) — Failure to Deliver Message — Mistake in Initials.
    Notwithstanding a mistake in initials of addressee, it is the telegraph company’s duty to use ordinary care to make seasonable delivery of the message, and negligence in the discharge thereof is actionable.
    5. Telegraphs and Telephones @=>37(8)— Failure to Deliver Message — Duties oe Company.
    Where telegram was addressed, “H. S. P., N. C. R. Co., 414 O. St.,” the full duty of the telegraph company was not discharged by tendering delivery at the address at which its messenger learned that the addressee was no longer at that address, and was given his correct address.
    Appeal from District Court, El Paso County; P. R. Price, Judge.
    Action by Samuel B. Prewitt against the Postal Telegraph-Cable Company and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Turney, Culwell, Holliday & Pollard, of El Paso, for appellants. C. A. Kinkel and E. T. Edwards, both of El Paso, for appellee.
   HIGGINS, J.

Appellee .brought this suit against appellants to recover damages sustained by negligent delay in the delivery of a telegram sent over appellants’ lines by J. E. Rogers from Dayton, Ohio, to appellee in El Paso, Tex., addressed as follows: “H. S. Prewitt, N. C. R. Co., 414 N. Oregon St., El Paso, Texas.” From a judgment in his favor the defendants appeal. ceiving office at Dayton. It is contended that these provisions constitute a part of the contract between the parties for the transmission and delivery of the message; that such message was interstate, for which reason the rights and obligations of the parties are controlled by the act of Congress approved June 18, 1910.

Unuer various assignments appellants seek to avail themselves of certain provisions limiting their liability, which provisions are printed upon the back of the original telegram as the same appears on file in the re-

These assignments must be overruled for the following reasons;

(1) It is shown by defendants’ answer and testified to by the defendants’ operator at Dayton that the sender of the message did not write same upon the defendants’ blanks containing the provisions relied upon, nor actually file the message, but that the message was communicated orally to the operator over the telephone. The message so communicated was written upon the defendants’ blanks by said operator without any mention being made of the stipulations relied upon, and there is no evidence of knowledge of the existence thereof on the part of the sender. There is no evidence as to the duty, of the operator with respeet to messages so communicated to him for transmission. Upon this state of facts the .provisions relied upon are not binding' as a part of the contract. Tel. Co. v. Douglass, 104 Tex. 66, 133 S. W. 877.

In this connection appellants contend that, as a matter of law, a telegraph operator who takes a telegram by telephone and writes same for transmission by telegraph acts as the agent of the sender of the telegram in so accepting the message by phone, and, being such agent, the sender of the telegram is bound by the character of contract made between such operator and the telegraph company in reducing such message to writing on a blank of the company to which is attached a contract covering the conditions under which same will be transmitted by wire. The cases cited by appellants (Tel. Co. v. Edsall, 63 Tex. 668; Railway Co. v. Geer, 5 Tex. Civ. App. 349, 24 S. W. 86) do not support so broad a statement of the law nor have we been able to find any authority to that effect. If there had been any evidence that the message had been orally communicated to the operator with the understanding on the part of the sender that it was to be received and written on the defendants’ blank forms and sent subject to the stipulations thereof, then a different question would be presented. The Douglass Case, supra, is decisive upon the question of agency in the state of the evidence and is adverse to appellants’ contention.

(2) The issue of negligence on the part of defendant in making delivery of the message was submitted to the jury and found against it. To give effect to the provisions in question would relieve it of the consequences of its negligence. Our Supreme Court has very recently held in Tel. Co. v. Bailey, 196 S. W. 516, that the act of Congress approved June 18, 1910, does not supersede the state law as to the liability of a telegraph company.for its negligence in the delivery of an interstate message. This decision is the controlling authority upon this court upon that question unless and until the contrary be held by the Supreme Court of the United States. To same effect see, also, Tel. Co. v. Piper, 191 S. W. 817; Bailey v. Tel. Co., 171 S. W. 839; Tel. Co. v. Bailey, 184 S. W. 519.

The third assignment is without merit, for it is well settled that, notwithstanding the mistake in the initials of appellee, it was appellant’s duty to use ordinary care to make seasonable delivery of the message to him, and that negligence in the discharge of this duty is actionable. Tel. Co. v. Holcomb, 152 S. W. 190, and 175 S. W. 750; Tel. Co. v. Holley, 55 Tex. Civ. App. 432, 119 S. W. 888; Tel. Co. v. Burrow, 10 Tex. Civ. App.. 122, 30 S. W. 378; Lambert v. Tel. Co., 45 S. W. 1034. The issue of negligence in this respect was submitted to the jury and resolved against appellant. The evidence ’ abundantly supports the finding.

Nor is there any merit in the contention that appellant discharged its full duty by tendering delivery of the message to the agent of the “N. C. R. Co.,” at “414 N. Oregon St.,” in El Paso. The message does not purport to have .been sent in care of that company. The abbreviations and street address following Mr. Prewitt’s name were simply informatory in character, and apprised appellant that the addressed could be located at “414 N. Oregon St.,” with the “N. O. R. Co.” They did not authorize delivery of the message to that company. The evidence discloses that the messenger of appellant went to the “N. C. R. Co.,” at “414 N. Oregon St.,” to make delivery, and was there advised that Mr. Prewitt was no longer with that company and his correct ad-di'ess given. Had defendant availed itself of the information thus obtained, prompt delivery of the message could and would have been made.

What has been said disposes of all questions presented.

Finding no error, the judgment is affirmed.

WALTHALL, J., not sitting, being absent on the committee of judges assisting the Supreme Court.
      @=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HARPER, C. J.

license: Public Domain

text:
    McCAULEY et al. v. McELROY.
    (No. 741.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 1, 1917.
    Rehearing Denied Dec. 13, 1917.)
    1. Venue <@=322 (1)— Place of Defendant’s Residence—1“Trespass.” ■
    Since Rev. St. art. 1830, authorizes suits to be brought out of the county of defendant’s domicile, where the foundation is a trespass for which a civil action in damages may lie, and since there áre no accessories in trespass, but all parties concerned are principals, and a trespass is any unauthorized entry upon the realty of another to the damage thereof, where one defendant leased land to plaintiff, and the other three defendants were in possession of the land and refused to yield possession, their act, though an unauthorized entry, when not connived in by the lessor, did not make her a trespasser or a joint tort-feasor, and she was privileged to be sued in the county of her residence.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Trespass.]
    2. Venue «¡¡==>31 — Joint Defendants — Effect.
    Rev. St. art. 1830, subd. 4, providing that where there are two or more defendants residing in different counties suit may be brought in any county where any defendant resides, applies only where the cause of action as to all the parties is the same.
    3. Venue <§=21 — Breach of Contract — Residence of Defendant.
    If a lessee has a cause of action against his lessor for breach of his lease, the lessor is entitled to be sued in the county of her residence.
    4. Landlord and Tenant <§=>180(3) — Wrongful Dispossession — Action — Pleading — Sufficiency.
    In action by a lessee for wrongful dispossession from land, the allegation that on account of the trespasses plaintiff was wrongfully deprived of the use and benefit of the land with its improvements, and prevented from raising a crop thereon, and thereby greatly damaged, was sufficient, as alleging a proper measure of damages.
    '5. Damages <§=>62(1) — Duty to Minimize.
    Where the lessee was deprived of possession by the wrongful act of third persons, it being his duty to use reasonable means to minimize his damages, the jury should determine what amount plaintiff earned, or by the exercise of reasonable effort ho could have earned, in the same or a similar business elsewhere.
    6. Landlord and Tenant <⅜=180(6) — Wrongful Dispossession — Measure of Damages — Questions for Jury.
    In the lessee’s action for damages by wrongful dispossession, there being nothing to show whether he could under his lease sublet the premises, it was not error to refuse to submit whether he had arranged to sublet the premises.
    7. Trial <§=>192 — Instruction — Assuming Facts.
    The authority of an agent being undisputed, it is not error for the court to assume such authority in his charge.
    8. Landlord and Tenant <⅜=>180(6) — Wrongful Dispossession — Measure of Damages.
    In the lessee’s action for wrongful dispossession by third person, if ho had agreed to sublet a part of the land to his sons, it was error to refuse to submit the question of damages, limited by the fact that he had so agreed to sublet the premises.
    9. Landlord and Tenant <§=>180(4) — Wrongful Dispossession — Measure of Damages.
    Value of pasturago upon land of which a lessee was wrongfully dispossessed by third persons was a proper element of damages.
    10. Damages <§=>62(1) — Measure—Trespass.
    It being incumbent upon plaintiff in his action for damages by wrongful dispossession of land to minimize his loss, his damages should he reduced by the amount that he made or could have made in using the same implements, machinery, etc., that He purchased, and would have used upon the land leased.
    11. Damages <§=>221 — Landlord and Tenant <§=>180(4) —■ Wrongful Dispossession of Tenant — Measure of Damages — Submission to Jury.
    While in the lessee’s action for damages by wrongful dispossession by third parties, the expense to which he was put thereby is a proper measure of damages, the question submitted to the jury “what expense was he put to by reason of his failure to- get possession of the land” was too general.
    12. Judgment <§==>256(¾ — Conformity to Findings.
    In an action for damages by wrongful dispossession of the lessee, the finding of the jury that the lessor had not conspired with the dispossessors did not require judgment for all the defendants.
    13. Landlord and Tenant <§=>180(1) — Wrongful Dispossession — Liability—Defenses.
    That the lessee who was wrongfully deprived of possession would have sublet part of the land is no defense to his action against the dispossessors, though it is a defense on the part of the lessor.
    Appeal from District Court, Knox County; Jo A. P. Dickson, Judge.
    Suit by E. A. McElroy against C. A. Mc-Cauley and others. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded.
    Smoot <& Smoot, of Wichita Falls, and Williams & Neethe, of Galveston, for appellants. Brookreson & Howell, of Benjamin, for ap-pellee.
   HARPER, C. J.

Appellee, McElroy, brought this suit in the district court of Knox county against C. A. McCauley and P. G. Cooley, of Knox county, Will Avants, of King county, and Mrs. Eliza Kempner, of Galveston county, the said Kempner doing business under the trade name of H. Kemp-ner.

It was alleged that in September, 1915, Mrs. Kempner was the owner of two tracts of land situated in Knox and King counties, aggregating 740 acres, and on September 28, 1915, plaintiff rented said lands from her by an oral contract, Mrs. Kempner acting through her agent, E. O. Couch; possession of said lands to be given as soon as the crops growing thereon could be harvested, and not later than January 1, 1916; that relying upon the contract, he incurred a large expense in preparing to cultivate a crop upon said land; that after he had so rented the land, .and some time during the fall of 1915, defendants, acting together, formed some kind of a fraudulent agreement or conspiracy to withhold the possession of the land from plaintiff, and to deprive him of the use and benefit thereof, and to prevent him from cultivating and raising a crop thereon during the season of 1916; that in accordance with such unlawful and fraudulent agreement and in disregard of the plaintiff’s rights in and to said lands under and by virtue of his rental contract, and with, full knowledge upon the part of each of the defendants of his rental contract, the said C. A. McCauley, acting together with, and under authority from, Mrs. Kempner, entered upon 100 acres of the land and unlawfully withheld the same from him and refused him the possession thereof and the defendants, Avants and Cooley, acting together with, and under authority from, Mrs. Kempner, unlawfully entered upon 640 acres of land, and unlawfully took possession of the same and refused to allow plaintiff to take possession thereof and use and cultivate the same under his rental contract, with the exception, however, of 100 acres, with one tenant house thereon which they also attempted to withhold from him and the possession of which he was able to obtain only after considerable trouble and expense; that on account of said wrongs, injuries, and trespasses, all of which were committed in Knox county by the defendants, acting Jointly, plaintiff was wrongfully deprived of the use and benefit of 640 acres of the land with improvements thereon, and prevented from raising a crop thereon for the 1916 season and thereby greatly damaged.

Judgment was sought against the defendants, Jointly and severally, for his damage in the aggregate sum of $10,860. Mrs. Kempner filed a plea, setting up her privilege to be sued in Calveston county. The cause coming on for trial, Mrs. Kempner first presented her plea of privilege,'and the appellee demanded that the issues of fact raised by the plea be submitted to the Jury, along with the main issues in the ease. The court thereupon overruled the plea of privilege and the cause proceeded to trial upon its merits. After the evidence had all been introduced, Mrs. Kempner again renewed her plea of privilege and the same was again overruled by the court. Judgment was entered in favor of McElroy against the defendants, Jointly and severally, in the sum of $3,491.50, from which this appeal is perfected.

The first assignment of error presented by the appellant Mrs. Kempner relates to the action of the court in overruling her plea of privilege. If there is any authority for the prosecution of this suit in Knox county, it is found in the ninth subdivision of article 1830, R. S., which authorizes suits to be brought out of the county of the defendant’s domicile, where the foundation of the suit is some crime, or offense, or trespass, for which a civil action in damages may lie, in which case the suit may be brought in the county where such crime, or offense, or trespass was committed. It thus becomes necessary to inquire what is the foundation and nature of the liability of Mrs. Kempner under the facts recited. If she committed a trespass in Knox county in person, or was a party to a trespass, committed in Knox county by personal representative, then her plea of privilege was properly overruled. In determining whether or not she was guilty of a trespass, it becomes pertinent to inquire what were the respective rights and obligations of the parties under the rental contract executed by her to plaintiff, for if there was any trespass within the meaning of the statute quoted, it was committed in connection with the leasehold interest acquired by McElroy in the Knox county land. The principal covenant on the part of the landlord in a rental contract is that his tenant shall have the quiet enjoyment and possession of the premises during the continuance of the term, and an engagement to this effect on the part of the lessor is always implied, unless such implication be excluded by the express provisions of the contract. 1 Taylor’s Landlord & Tenant (9th Ed.) pars. 45, 304; 24 Oyc. 1057, 1058. This covenant, whether express or implied, means that the tenant shall not be evicted or disturbed by the lessor or by persons deriving title from him. 1 Taylor’s Landlord & Tenant, pars. 176, 305, 307. The entry by McCauley, Cooley, and Avants breached the covenant for quiet enjoyment implied in Mrs. Kempner’s lease to McElroy, but the Jury has found that she in no wise participated in the entry of her codefend-ants, and did not participate with them in withholding possession from McElroy. A trespass has been defined as “any unauthorized entry upon the realty of another to the damage thereof.” 3 Bouvier’s Law Dictionary, Rawle’s Third Revision, p. 3316. In 38 Cyc. 994, it is said:

“Direct injury to realty of another is a trespass as is any wrongful interference with possession.”

Mr. Taylor, at paragraph 765 of his work quoted above, says that the right to land is exclusive, and every unwarranted entry by a person on the land of another without the owner’s leave, unless by authority of law, is a trespass.

The defendants McCauley, Cooley, and Av-ants were in possession of the lands on January 1, 1916, and refused to yield possession to the plaintiff. This constituted an unauthorized entry upon realty belonging to plaintiff to his damage, and was undoubtedly a trespass on the part of McCauley, Cooley, and Avants. There are no ’accessories in trespass, but all who are concerned with a trespass in any manner are principals. 26 Am. & Eng. Eney. Law (1st Ed.) p. 580; Olsen v. Upsahl, 69 Ill. 173. So, if Mrs. Kempner in any manner participated in the unlawful entry by McCauley, Cooley, and Avants, then she would be a principal in the trespass, a Joint tort-feasor; but the facts found by the Jury and the record as a whole fail to disclose any act, conspiracy, or agreement of any kind upon her part, which would directly connect her with the acts of McCauley, Cooley, and Avants. The Jury has expressly found that she did not in any wise conspire 1 with them, which is the ground alleged in the petition for the purpose of fixing venue in Knox county. . They were not her agents, hut were acting strictly for themselves. We therefore hold that the evidence in the record shows no trespass has been committed by her in Knox county, and that therefore her plea of privilege to be sued in Galveston county should be sustained.

This view is upheld by the cases of Hilliard Bros. v. Wilson, 76 Tex. 180, 13 S. W. 25, and Wettermark v. Campbell, 93 Tex. 517, 56 S. W. 331. In the last-mentioned case, Hilliard v. Wilson is reviewed by Judge Gaines, who says:

“There, the sheriff was sued for the illegal and oppressive execution of a writ of attachment, and the plaintiffs in attachment, Ia & H. Blum, were made codefendants, it being charged that the attachment was wrongfully issued and that they instigated the acts of the sheriff. The defendants, L. & H. Blum, being residents of another county from that in. which the attachment was levied and the suit was brought, pleaded the privilege of being sued in the county of their residence. The court charged the jury, in effect, that if they instigated the illegal acts of the sheriff, they were liable to ■ suit in the county where the levy was made; ' but, if not, the suit as brought could not be maintained against them. It was held and, as we think, properly, that the charge was correct. If the sheriff acted oppressively, he. and all who instigated the trespass were properly sued in Burleson county, where it was commitced. But the attachment was sued out in Galveston county, and it was there that the Blums -resided. Hence, for simply suing out the attachment wrongfully, they could only be sued in that county.”

In the case at bar, the act of Mrs. Kemp-ner in executing the lease corresponded to the act of the Blums in suing out the attachment. Simply executing a subsequent lease in Galveston county would no more confer venue upon the district court of Knox county against the defendant Mrs. Kempner' than the simple suing out of the wrongful attachment in the Hilliard-Wilson Case would confer venue upon the district court of Burle-son county over the defendants Blum, who resided in Galveston county.

In Wettermark v. Campbell, supra, venue in Nacogdoches county was upheld against the defendant Adoue upon the ground that he was a party to a trespass committed by the sheriff in Nacogdoches county, because his attorney was present and participated in the trespass committed by the sheriff. Judge Gaines plainly intimates that if it had not been for this direct participation, through his attorneys, in the acts done in Nacogdo-ches county, that Adoue could not be sued in that county against his consent. This is the language:

“And it may be that in this-case, if Adoue, had not been charged with a direct participation through his attorneys in the acts done in Naqogdoches county, he could not be sued in that county against his consent.”

Appellee urges that the suit is maintainable in Knox county under subdivision 4 of article 1830, R. S., which reads:

“Where there are two or more defendants residing. in different counties, in which case suit may be brought in any county where any one of the defendants reside.”

This subdivision applies where the cause of action as to one party is the same as that against the others. Stephens v. First National Bank of New Boston, 146 S. W. 620, so when the question was submitted whether defendant Kempner was a joint tort-feasor with the other defendants and determined that she was not, then her plea of privilege must be sustained. Railway Co. v. Mangum, 68 Tex. 342, 4 S. W. 617. And if there be a cause of action for breach of contract, she is entitled under the law to be sued in Galveston county, where she resides.

The disposition made of Mrs. Kempner’s contention that her plea of privilege should have been sustained renders it unnecessary to pass upon the other assignments (third and fourth) presented'by her, which complain of overruling of exceptions to- the petition. What is hereafter said relates to the assignments of the other appellants.

The fifth, sixth, and seventh urge that the petition is subject to the special exceptions filed because it does not allege a proper element or measure of damages — 'are not tenable.

The eighth complains of refusal to give peremptory charge for defendant Kempher, disposed of by the observations under first assignment; i. e., since the plea of privilege to be sued in Galveston county should be sustained, no judgment could be rendered for her in that (Knox county) court.

The ninth asserts error in refusing to give special charge requested by defendant:

“What amount did the plaintiff earn or by the exercise of reasonable effort could he have earned during the crop year 1916-17 by engaging in the same or similar business?”

Upon another trial, if the facts justify it, this charge should be given, because it is the duty of parties suffering injury to- use reasonable means to minimize the damages likely to accrue because of wrongful acts of another.

The tenth complains that the court erred in refusing to charge the jury that, if Couch, as agent, executed the rental contract to plaintiff as charged, and it further appeared from the evidence that plaintiff contracted to sublet the premises or a part of them, their verdict should be for the defendant. The pleadings and, proof are not clear as to whether plaintiff was permitted to sublet under his contract — it was therefore not error to refuse the charge.

The eleventh and nineteenth charge error in submitting the question of Couch’s authority as agent to lease the premises to plaintiff. The question of Couch’s authority is evidenced by letters and is undisputed. A proper construction thereof, for the court, is that he had such authority, and the court could properly have assumed it in his charge. This disposes of the twelfth and thirteenth, which complain that the court in his charge assumed that Couch had authority as agent.

The fourteenth charges error in giving the charge:

“What would the costs of cultivating, planting, harvesting, and marketing of the crop in the 450 acres of land have been to McElroy?”

The proposition is:

“The plaintiff, McElroy, would not be allowed to recover damages for the failure to deliver to him the entire tract of 550 acres of land claimed to have been rented to him, when it was shown by the uncontradicted testimony that 200 acres of such land was rented for the benefit of plaintiff’s sons who were not parties to the suit and who were to have full use and benefit thereof, and a special issue calling for a finding on the amount of damages in favor of plaintiff, for the full amount of said land would be immaterial and improper.”

The fifteenth is to the same effect and is well taken. The evidence is undisputed that plaintiff had agreed to sublet 200 acres to his sons, so the measure of his damages would not be the same as to this acreage as the acreage to be cultivated by himself. These assignments must therefore be sustained.

The sixteenth complains that it was error to submit the question of the value of the pasturage to plaintiff of that portion of the land not in cultivation. Overruled, because this is a proper element of damages.

The seventeenth objects to the charge:

“How much did McElroy make with the implements, machinery, tools, teams, and labor that he would have used in cultivating, harvesting, and marketing of the crops on the land in question had he gotten possession of same during the time he would have been in such cultivation, planting, harvesting, and marketing?”

This is a proper issue in the case, for it was incumbent upon plaintiff to minimize the loss to him by reason of the stock, tools, etc., on hand for cultivating the acreage leased by using them for other purposes, if he could, after he found that his contract of lease was breached, and the trespass and taking of a part of the premises would prevent him from using them upon the land leased.

The eighteenth objects to the charge:

“What expense was McElroy put to by reason of his failure to get possession of the land and the arrangement with Couch?”

The charge is not subject to the criticism made by appellant that “it is not a proper measure of damages,” but in view of another trial we think the question too general. The record discloses that he purchased farm machinery, etc., which he could not use in view of the limited number of acres he finally received possession of, but he would not be entitled to recover the full amount paid for such machinery, for it is yet of value and might be worth as much or more than he paid for it, and he might have used it at a profit, etc. This is a proper issue in the case, made so by the pleadings, but the charge as given is not sufficiently comprehensive.

The twentieth complains of the finding of the jury that McElroy earned $190 with the tools, etc., that he would have used in the cultivation of the crop on the ground; that it is not supported by the evidence. This being a proper issue for the determination of the jury, we make no other comment.

The twenty-first and twenty-second urge that because of the answers of the jury that the “defendants had not conspired together to deprive the plaintiff of the use of the premises,” and that “plaintiff had breached his contract by subletting a part of the land,” the court should have rendered its judgment in favor of defendants. . In view of the record as it appears here, we cannot agree with appellant that the jury intended or did find that there was no conspiracy between any of the parties defendant, but it is apparent that they only intended to find that Mrs. Kempner did not conspire with the other defendants. Besides, the fact that plaintiff would have sublet a .part of the land constitutes no defense to his action against McCauley, Cooley, and Avants for the trespass committed by them upon his leasehold interest. And as to the subletting as indicated above, the pleading and evidence do not affirmatively show that a subletting was prohibited by the lease contract. This disposes of the twenty-third and twenty-fourth which are to the same effect.

Eor the reasons above indicated, the cause is reversed and remanded.

WALTHALL, J., concurs in the result.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <g=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    LUDTKE v. MURRAY.
    (No. 7375.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 9, 1917.
    Rehearing Denied Nov. 28. 1917.)
    1. Deeds <§r=>38(1) — Description — Stjeet-ciency. ■
    A deed describing land as commencing at the beginning corner “about two miles from the courthouse of Harris, called the city of Houston,” and beginning on a pine tree 22 inches in diameter, thence west 443½ varas to another pine 20 inches in diameter, thence north 2,-628½ varas to a pin oak, thence east 443½ varas to a pine 24 inches in diameter, thence south 2,628⅜ varas to the place of the beginning, was properly admitted in evidence, there being nothing in the record to show that the land intended to be conveyed was not accurately described, the deed not bearing any ambiguity on its face, and it not appearing that any ambiguity or uncertainty arose when the description was applied to the ground.
    2. Appeal and Error <S==o742(1) — Statement —Necessity.
    Under rule 31 for Courts of Civil Appeals (142 S. W. xiii) declaring that to each of the propositions there shall be subjoined a brief statement, in substance, of such proceedings or part thereof contained in the record as will be necessary and sufficient to explain and support the proposition with a reference to the pages of the record, an assignment of error need not be considered, where the propositions were not supported by a statement of the germane facts, the court not being required to search the record for such matters.

      3. Trial <§=339 — Documentary Evidence— Notice and Piling oe Copies.
    Where plaintiff, in accordance with Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3700, filed copies of deeds with the papers of the case, and gave three days’ notice before trial of intention to introduce them in evidence, defendant, the purpose of the statute having been fulfilled, may, on plaintiff’s failure, introduce such deeds in evidence, although he did not file the copies or give, the notice provided for.
    4. Appeal and Error <§=31032 (2) — Review-Harmless Error.
    In an action for trespass to try title, the exclusion of deeds offered by defendant, though erroneous, is harmless, where it prima facie appeared from the statement that the deeds showed the chain of title from the sovereignty to the admitted common source of title under whom both parties claimed.
    5. Judgment <§=3707 — Conclusiveness—Persons Bound — Evidence.
    A copy of an opinion rendered in an action between other parties, that one under whom plaintiff claimed did not have title to certain lands, including that in controversy, is inadmissible as against plaintiff, for plaintiff, not being a party, is not bound by the judgment.
    Appeal from District Court, Harris County ; Wm. Masterson, Judge.
    Action by Louisiana 'Murray against W. F. Ludtke. Prom a judgment for plaintiff, defendant appeals.
    Affirmed.
    P. Harvey and F.' L. Jones, both of Houston, for appellant. Atkinson, Graham & Atkinson, of Houston, for appellee.
   PLEASANTS, C. J.

This is an action of trespass to try title brought by -appellee against appellant to recover a tract or parcel of land described as lot No. 1 in the Royal addition to the city of Houston. The defendant answered by general demurrer, general denial, and pleas of limitation of five and ten years. After hearing the evidence the trial court instructed the jury to return a verdict for plaintiff, and upon return of such verdict judgment was so ren dered.

The first assignment of error presented in appellant’s brief complains of the ruling of the court admitting in evidence over the defendant’s objection a deed from T. T. Hailey to T. J. Hailey. The proposition submitted under this assignment is as follows:

“If the description given in a deed does not sufficiently identify the land, it then becomes necessary to offer parol evidence in aid of its identity, so that it can with certainty be determined what land was intended to pass by the conveyance; and the burden rests upon the party claiming under such deed to show these facts.”

in deed as

certain piece parcel of land situated on the N. side of Buffalo bayou, being a part of a league of land donated to William P. Harris and Robert Wilson for building a steam mill at Harrisburg; commencing at the beg. cor. about 2 miles from the courthouse of Harris, called the city of Houston, and beginning on a pine tree mkd. thus, H, 22 in. dia.; thence W. 443½ vs. to another pine 20 in. dia. mkd. thus, H X; thence N. 2JS2S% vs. to a pin oak 15 in. dia. mkd. thus, H X; thence E. 443 ½ vs. to a pine tree 24 in. dia. mkd. thus. HSX; thence S. 2,628½ vs. to the place of beginning. ’

This description is certainly not so indefinite or uncertain as to render the deed void. There is no ambiguity upon the face of the instrument, and it does not appear from the statement following the proposition, or from the record, that any ambiguity or uncertainty arose when the description was applied to the ground. There is nothing in the record to show that the land intended to be conveyed by the deed was not accurately described therein, nor that the land involved in this suit was not a part of the land described in said deed. The assignment cannot be sustained. Wilson v. Smith, 50 Tex. 365; Mansel v. Castles, 93 Tex. 414, 55 S. W. 559.

The second assignment, the proposition, and statement thereunder are as follows:

“The court erred in admitting in evidence certified copy offered by plaintiff of the deed from T. J. Hailey to Joseph Royal, dated July 15, 1862, and certified copy of instrument purporting to be deed from- Joseph Royal to E. G. Carroll, dated August 29, 1862, and certified copy of instrument purporting to be a deed from Emily Carroll to the plaintiff, Louisiana Murray, dated August 20, 1904, and certified copy of sketch purporting to be map of what is called the royal addition to the city of Houston, recorded in volume C, page 298 of the Deed Records of Harris county, Tex., to the introduction of which purported instruments and each of them, defendant objected for the reason that T. T. Hailey had no title whatever to the land in question, because his claim was based upon the deed from D. W. C. Harris, who had no title to the land, and could not convey the same to said T. T. Hailey, because D. W. C. Harris got his pi’etended tide through a certain sheriff’s deed from Robert Wilson, dated January 5, 1841, by John W. Moore, sheriff of Harris county, Tex., which said sheriff’s deed is void on its face because it does not describe the land thereby attempted to be conveyed; hence it follows that plaintiff’s chain of title, being based upon said void sheriff’s deed all instruments in said chain of title offered by plaintiff are void and convey no interest whatever in the land in suit; and the purported map of what is called the Royal addition is void for the reason that the chain of title under which plaintiff claims is based upon said void sheriff’s deed above mentioned, and said Joseph Royal had no title whatever to the land described and pretended to be platted as the Royal addition in said purported map, and could not make and file for record a valid and legal map of land to which ho had no title.

“Proposition.

“A plat of land made by a party who has no title to the land is mere nullity, and a certified copy of the same is not admissible for any purpose.

“Statement.

“The map appears on page 5 of the statement of facts.”

It is clear that this, assignment is not entitled to consideration. The only proposition submitted is in regard to the introduction in evidence of the certified copy of the map of “Royal addition.” There is no statement showing that the person who had the map made and recorded was not the owner of the land. We are not required to search, the record to find by whom the record of the map was procured, and to ascertain whether such person was the owner of the land. Rule 31 for Courts of Civil Appeals (104 Tex. 652, 142 S. W. xiii); Swift v. Bruce, 31 Tex. Civ. App. 92, 71 S. W. 321; Johnson v. Lyford, 9 Tex. Civ. App. 85, 29 S. W. 57; Raywood Canal Co. V. Langford Bros., 32 Tex. Civ. App. 401, 74 S. W. 928.

The fifth assignment complains of the refusal of the trial court to permit defendant to introduce in evidence, for the purpose of showing that the common source of title, T. T. Hailey, had no title to the land in controversy, the original grant from the Mexican government to Wm. P. Harris and Robert Wilson, a certified copy of a deed from Robert Wilson, by sheriff, to D. W. C. Harris, partition deed between E. M. Harris and D. W. C. Harris.

The first proposition under this assignment and statement thereunder are as follows:

“Where plaintiff shows the superior title, under a common source, the defendant may still defeat the action by showing there is a superior title to„that of the person under whom ■both claim, without showing he holds such superior title, provided he prove affirmatively that such previous and superior title never vested in the common source; and proof by defendant, however made, that the common grantor had no title, is a defense.

“Statement.

“Plaintiff showed T. T. Hailey to be common source. Defendant, to show that no title whatever vested in said common source, T. T. Hailey, introduced in evidence original grant from the Mexican government to W. P. Har'ris and Robert Wilson, for two leagues of land, including the land in controversy, and then offered in evidence (a) certified copy of deed from Robert Wilson by sheriff, to D. W. O. Harris; (b) certified copy of partition deed between M. L. Birdsall, D. W. O. Harris and O. E. M. Harris, administrator of W. P. Harris; (c) certified copy of deed from D. W. O. Harris to T. T. Hailey.”

Plaintiff’s objection to the introduction in evidence of the deeds, which was sustained by the court, was that defendant had not filed copies thereof and given plaintiff notice three days before the trial that said deeds would be offered in evidence.

The record shows that plaintiff had filed copies of the deeds with the papers of the case and given notice three days before the trial of her intention to introduce them in evidence. We think in these circumstances plaintiff cannot be heard to object to the introduction of the deeds by the defendant upon the ground that defendant had not filed the copies and given the notice required by the statute. Article 3700, Vernon’s Sayles’ Statutes. Every purpose of the statute was fulfilled when the deeds were filed by the plaintiff, and it would have been an entirely useless proceeding for the defendant to have also filed copies and notified plaintiff of his intention to introduce them in evidence.

We cannot, however, sustain the assignment, because there is nothing in the statement from which it can be inferred that defendant was injured in any way by the exclusion of the deeds. On the contrary, it appears prima facie from- the statement that these deeds show a chain of title from the sovereignty of the soil to T. T. Hailey, the admitted common source of title. The statement does not disclose that any of the deeds in this chain of title were void. None of the deeds, nor the substance of any of them, is given, and we can only conjecture as to the basis of appellant’s assumption that these deeds would show that T. T. Hailey had no title. Unless an assignment, together with the proposition and statement thereunder, shows that the ruling of the court complained of was probably injurious to the appellant, the assignment cannot be sustained. For this reason the assignment under consideration must be overruled.

The fourth assignment complains of the refusal of the trial court to permit defendant, 1 over plaintiff’s objection, to introduce in evidence a certified- copy of the opinion of the Court of Civil Appeals for the Eighth District in the case of Lafferty v. Wilson. The holding of the court in the mentioned case was that T. T. Hailey did not acquire title to the land conveyed to him by D. W. C. Harris, which included the land in controversy in this suit. The court did not err in excluding this evidence. The appellee was not a party to the suit, and is in no way bound by the judgment therein, nor by the findings of the court in the opinion in said cause, and that opinion cannot be used as evidence in this case upon the issue of whether T. T. Hailey, the common source of title of plaintiff and defendant, had title to the land.

The last assignment complains of the charge of the court instructing the jury to return a verdict in favor of plaintiff, on the ground that the evidence raised the issue of limitation. We have read all of the evidence offered on this question and agree with the trial court that it does not raise the issue of limitation.

The conclusions above expressed require the affirmance of the judgment, and it has been so ordered.

Affirmed.
      ®=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ®=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    SAN ANTONIO DRUG CO. v. RED CROSS PHARMACY et al.
    (No. 1253.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 28, 1917.)
    1. Abatement and Revivad <§=>82 — Plea oe Privilege — What Constitutes.
    An agTeement in open court that a ease might be transferred to another county, as if on a plea of privilege, held equivalent to such a plea in so far as waiving the right thereafter to plead to the court’s jurisdiction over the subject-matter.
    2. Abatement and (Revival <§=>82 — Dilatory Pleas — Order.
    Under Rev. St. 1911, arts. 1909 and 1910, requiring pleas to be filed in due order, etc., a plea of privilege waives the right to thereafter plead to the court’s jurisdiction over the subject-matter.
    3. Courts <§=>122 — Jurisdictional Amount-Pleading.
    A judgment for an amount under the court’s jurisdiction is valid, unless the allegations of the petition that the jurisdictional amount was involved are attacked as fraudulent.
    4. Courts <§=>122 — Jurisdiction — Allegations op Pleading.
    Where the allegations that the jurisdictional amount was involved were .not attacked as fraudulent, the court had jurisdiction to change the venue.
    Appeal from Lubbock County Court; J. H. Moore, Judge.
    Action by the San Antonio Drug Company against the Red Cross Pharmacy and others. From a judgment of dismissal, the plaintiff appeals.
    Reversed and remanded, with directions.
    Bean & Klett, of Lubbock, for appellant. R. A. Sowder, of Lubbock, for appellees.
   HUFF, C. J.

The San Antonio Drug Company on the 15th day of February, 1915, filed in the county court for civil cases in and for Bexar county its petition in which it declared that appellee, the Red Cross Pharmacy, a copartnership, was indebted to appellant for goods, wares, and merchandise sold and delivered to appellees between the 25th day of June, A. D. 1913, and the 26th day of January, 1914, in consideration of which appellees promised to pay the several sums of money charged therefor, “amounting in all to the sum of $229.31.” It appears from the record that on the 15th day of April, 1915, in the above court an order was entered reciting that the attorneys representing the respective parties in this case in open court stated:

“That it had been agreed between them that the venue of this case is not in Bexar county, but in Lubbock county, Tex., and therefore prayed the Court to transfer this case from this court to the county court of Lubbock county, and it appearing-to the court that the facts are as stated, it is therefore ordered, adjudged, and decreed by the'court that this case be, and the same is, hereby transferred from this court to the county court of Lubbock county, and the clerk of this court is hereby instructed and directed to transfer this case from this court to that in the same manner and form as if plea of privilege had been filed and sustained by the court.”

On July 13, 1917, the appellee filed a plea in the county court of Lubbock county to the jurisdiction to the effect that the cause of action was upon an account of $193.61, made up of a series of items, and the total» amount of $229.31 sued for was made up in part by an item ¡of $35.70 interest, and therefore the jurisdictional amount was less than $200, and that the county court for civil cases of Bexar county did not have jurisdiction over the cause or authorized to take any action whatever; that plaintiff alleged the amount in excess of $200, well knowing that the allegation was false and fraudulent, and did so for the purpose of attempting to give the court jurisdiction. It will be noted this plea did not allege that the county court of Lubbock county was without jurisdiction. The appellant answered this plea: (1) That appellees waived any right to question the jurisdiction of the county court of either county, in that they appeared without raising any question of jurisdiction of said court, and voluntarily invoked the jurisdiction of said court to pass on a plea of privilege to be sued in Lubbock county, having never filed any plea to the jurisdiction of either court for more than three years after the plea of privilege was sustained, thereby violating the rule requiring due order of pleadings; (2) that appellees submitted themselves to the jurisdiction of the county court of Bexar county, without raising the question of fraud, and there voluntarily invoked the jurisdiction of that court and prayed by their plea of privilege, to be sued in Lubbock county, and that they be granted a transfer to that county, which the court ordered, as prayed for, and that appellees did not raise any question of jurisdiction of that court until about three years after suit was filed in Lubbock county, and waited until after the cause of action was barred, thereby waiving the right to raise the question of jurisdiction. Upon a trial of the issue as to jurisdiction it was agreed by the parties:

“That at the time said suit was transferred by plea of privilege from the county court of Bexar county to the county court of Lubbock county, and the time said suit was filed in the county court of Lubbock county, that the county court of said Lubbock county, had and still has concurrent jurisdiction with the justice court.”

The parties further agreed that appellant’s counsel called upon the attorney for appel-lees not later than the second term of the county court after the case was filed therein for appellees’ answer, which appellees’ attorney agreed to prepare and file, and that he immediately deposited with the papers in said case an answer consisting of a general demurrer, general denial, and special plea to the effect that defendants had paid plaintiff all they were indebted; that such answer remained among the papers of the cause for at least two or ■ three terms of court. The papers were then in the possession of counsel for plaintiff, and. at and before the April term, 1917, counsel for defendant phoned one of plaintiff’s counsel that he was going to withdraw his answer. This was objected to by plaintiff, who suggested to him if the answer was not in the form desired he could amend. Defendant’s counsel then called on plaintiff’s counsel and requested to see the papers which were handed him. Thereupon he looked through the papers, found his answer, which was not indorsed “Piled” by the clerk, and remarked that he “guessed he would withdraw the answer whether counsel for plaintiff was willing or not.” The plea to the jurisdiction was filed at the July term, 1917. The answer withdrawn had never been in court nor in the custody of the clerk, being continuously in either one or the other of the attorney’s offices. The deposition of the cashier of appellant, upon whose testimony the appellees appear to have founded their plea to the jurisdiction as to the amount in controversy, had been filed in the clerk’s office since 1915. The record shows no formal plea of privilege or any other pleading by defendant except the one to the jurisdiction. The evidence was sufficient to authorize a finding by the trial court that the items of the account sued upon amounted only to $193.61, with interest thereon, which totaled $229.31. The appellant took a bill of exception to the plea of jurisdiction and the evidence introduced thereon for the reason that the plea had not been filed in due order; that appellees had waived their right to attack the jurisdiction of either court. The trial court sustained the plea to the jurisdiction and dismissed the case.

Assignments 1, 2, 3, and 4 urge that the court was in error because the plea to the jurisdiction was not filed in due order of pleading; that the plea was waived by invoking the jurisdiction of the county court for civil cases on the plea of privilege; that appellees were estopped from making an attack on the jurisdiction; and that the county court of Dubbock county had concurrent ■jurisdiction with the justice court. It is insisted by appellees that they did not file a plea of privilege to be sued in Lubbock county. The order of the San Antonio court perhaps disclosed there was no formal plea, but it does appear therefrom that the appellees, by their attorney, appeared and agreed with appellants’ attorneys that the venue of the case was in Lubbock county, “and therefore prayed the court to transfer this case from this court to the county court of Lubbock county”; that this agreement and prayer were sufficient to induce the court to investigate the facts which he found were a“s stated, and by means of which the court was induced to transfer the case and to order the clerk thereof to transfer the papers therein “in the same manner and form as if a plea of privilege had been filed and sustained by™ the court.” It is manifest the defendants appeared in that court for the purpose of urging their privilege to be sued in Lubbock county. While the pleadings and action thereon were informal, yet they amounted to a formal plea by obtaining the same result. They procured the benefit of the statute authorizing a change of venue under a formal plea and procured the order of the court so reciting. The order showing it was entered under the statute which authorized a transfer after a plea of privilege had been sustained, and negatives that the venue was changed under the statute authorizing the change by agreement. Having accepted the action of the court on such informality they ought not be allowed to say they did not file a plea of privilege. Having appeared and recognized it as a sufficient plea, and having the same entered upon the minutes of that court, appellees could not afterwards be heard in limine to question the manner in which he secured the transfer under a statute which authorized it only when a plea of privilege is sustained. R. S. arts. 1832, 1833, 1881. The appellees also agreed in the trial court that, the cause “was transferred by a plea of privilege.” The records clearly show the agreement, prayer, grnd the facts found by the San Antonio court were treated and considered by all parties as a plea of privilege which authorized the' transfer. We think after more than three years appellees will not be permitted to assert he did not so plead. It is certain he did appear before that court and prayed for a transfer upon the agreement and the facts and caused that fact to be entered upon the minutes of that court. Marx v. Heidheimer, 63 Tex. 304; Tammen v. Schaefer, 45 Tex. Civ. App. 522, 101 S. W. 468.

Having first filed their plea of privilege to be sued in Lubbock county or that which amounts to such a plea, it is asserted by appellant that they could not plead to the jurisdiction of the court three years aft-erwards; that such-plea was not in due order of pleading ; that they waived and were thereby estopped from attacking the jurisdiction. Articles 1909 and 1910, R. C. S., require that all pleas shall be filed and determined in due order of pleading. The statute itself fixed the order of pleading in general terms, but the due order of pleading was well established by the courts when these statutes were passed. In the first edition of Texas Pleading, by Sayles (section 78), that author says:

“The order of pleading which the defendant is to pursue has been fixed by the practice of the courts, and has not varied much from the earliest period of the law; it is founded upon the principle that the pleading of any one of the pleas in that enumeration is a tacit waiver of those of thei preceding class. The order in which the grounds of defense must be presented by the answer is: (1) to the jurisdiction of the court: (a) As to the subject-matter; (b) as •to' the person of the defendant. (2) In abatement of the action,” etc.

This order is recognized by Townes’ Texas Pleading (2d- Ed.) 417. Substantially the same order is required by rule 7 for district and county courts (142 S. W. xvii). Judge. Towne says in his work:

“It is evident that the rules give simply a more general division of these dilatory pleas and contemplate that more minute classification shall be made, according to the accepted order at common law.”

Again he says:

“Not only must all dilatory pleas precede pleas in bar, but due order must be obsei’ved among the different kinds of dilatory pleas, and a failure to do this will be regarded as a waiver of all those dilatory pleas which, according to the rules of pleading, should have preceded the one filed.” Pages 417, 418.

See Railway Co. v. Lynch, 73 S. W. 65.

It is the contention of the appellees that the potential jurisdiction over the subject-matter gives the court a right to consider a plea thereto filed, whether in or out of order, or may be considered without any plea. This doubtless is true, but it is also equally as well settled that it is the allegations in the petition which give the jurisdiction, and unless the allegations therein are assailed on the ground that they were made with the fraudulent purpose of conferring jurisdiction on the court, a judgment .would be. valid for an amount less than the jurisdiction of the court. The clearest statement of the rule, we think, is to be found in Sayles’ Pleading (1st Ed.) § 92:

“It is a fatal objection to the jurisdiction of a court that it has no cognizance of the subject-matter of the suit; that is, that the matter of the action is such as the court is under no circumstances competent to try. * * * The cause might be dismissed on motion; and even without motion it would be the duty of the court to dismiss it ex officio, for the whole proceedings would be coram non judice, and utterly void. When, however, the plaintiff sues for an amount within the jurisdiction of the court, but the allegation as to the amount in controversy is made merely for the purpose of giving the court jurisdiction, the want of jurisdiction must be pleaded, and if there is no plea to the jurisdiction, the court will render judgment, though it be for a less sum than was required to give jurisdiction.” '

In the case of Hoffman v. Cleburne, 85 Tex. 409, 22 S. W. 154, the Supreme Court expressly held’that a plea to the jurisdiction of the court in which it was asserted the amount in controversy was fraudulently alleged for the purpose of giving jurisdiction should be pleaded before the plea in bar, and quotes the statute that pleadings must be in due order. Railway Co. v. Lynch, 73 S. W. 65; Watson v. Mirike, 25 Tex. Civ. App. 527, 61 S. W. 538; Aldridge v. Webb. 92 Tex. 122, 46 S. W. 224; Eden v. Osborne, 29 S. W. 414. In the latter case a plea to the jurisdiction was filed after general denial, alleging that the amount was fraudulently made for the purpose of conferring jurisdiction. Mr. Justice Head said that the Supreme Court in the Hoffman Case reviewed the former conflicting cases, and that it was there finally settled under our statutes that a plea to the jurisdiction on the ground that the plaintiff had fraudulently stated the amount of his claim must be filed before an answer to the merits. We cannot perceive, as contended by appellees, that there is any difference as affecting the order whether the answer filed shall be to the merits or some dilatory matter. There must be one pleading, constituting the answer, consisting of as many matters as shall be necessary to present the defense, whether dilatory or otherwise, and by the statute due order must be maintained. If not, then there is a waiver of all dilatory pleas according to the rules of pleadings which should.have preceded the one filed. "

It will be perceived that the plea to the jurisdiction filed in this case only goes to the alleged want of jurisdiction in the county court in and for Bexar county. It is not alleged, nor is it contended, that the county court of Lubbock county did not have jurisdiction. It appears to be the theory that, because the amount actually due was less than $200, that the Bexar court had no jurisdiction when the order was made transferring the cause. The petition at that time alleged an amount within the jurisdiction of the court. There was not then a plea that the amount was fraudulently alleged. By all the authorities that court then had jurisdiction to change the venue, and) such order, when made, was not void. If the case had been tried without the plea filed July, 1917, and judgment rendered for only $1, the ap-pellees could not successfully contend the judgment would ‘be void. Now, if Lubbock county had jurisdiction, as appellees admit, of the amount, or rather concurrent jurisdiction with the justice of the peace, after the .venue was changed, the plea will not avail. The Bexar county court had jurisdiction from the face of the pleading when the order was made. The Lubbock court therefore rightfully obtained jurisdiction and having so obtained it, and having jurisdiction of the amount claimed by appellee to be due or which should have been sued for, the plea, when filed, would not be made to have a retroactive effect upon an order which had theretofore been lawfully entered when made by another court, and the Lubbock county court could not in such subsequent action nullify the order of the Bexar county court. The only question could be: Did the Lubbock court have jurisdiction of the amount? If it did, the plea should have been overruled. The appellees agree that the Lubbock court did have jurisdiction of the amount. This admission is based on article 1811 — 30, Vernon’s Sayles’ Civil Statutes, which provides that the county court of Lubbock county shall have and exercise concurrent jurisdiction with the justice court in all civil matters. Without discussing this statute, it is sufficient-to say only the jurisdiction of Bexar county was assailed. As shown above, under the pleadings as they stood, when the venue was changed, it had jurisdiction, and there being no plea assailing the jurisdiction of the Lubbock court, the plea should have been overruled. The court, under the record as made, was in error in dismissing the case. The jurisdiction of that court could not be assailed without a plea assailing it. Its jurisdiction was obtained by an order valid at the time it was made and at the instance of the appellee. Jones v. Bourbonnais, 25 Tex. Civ. App. 94, 60 S. W. 987; Tammen v. Schaefer, 45 Tex. Civ. App. 522, 101 S. W. 468; Mars v. Heidenheimer, 63 Tex. 304.

The court was in error in dismissing the case, and the judgment will be reversed and remanded, with instruction that the cause be reinstated, and that the plea to the jurisdiction be overruled.
      <§=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SCHUSTER et al. v. CRAWFORD.
    (No. 754.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 21, 1917.
    Rehearing Denied Dec. 13, 1917.)
    1. Trusts <§=3257 — Powers of Trustee — Actions — Parties.
    In suits by or against a trustee to recover trust property, while the beneficiary is usually a necessary party, he is not where it may be presumed that it was the intention to invest the trustee with power to prosecute and defend suits in his own name.
    2. Trusts <§=>257 — Powers oe Trustee — Actions — Parties.
    Where a trust deed was silent as to the purposes of the trust and the identity of the cestui, it would be presumed that the trustee was empowered to sue and be sued in his own name.
    3. Sequestration <§=12 — Affidavit — Duplicity.
    Separate affidavit for sequestration in the alternative is objectionable for duplicity.
    4. Sequestration <§=>12 — Petition — Sufficiency.
    That language of petition for sequestration with reference to ejectment is not in exact words of Rev. St. 1911, art. 7094, subd. 5, is not fatal, but it is sufficient if the language is synonymous therewith.
    5. Sequestration <§=312 — Petition — Sufficiency.
    If two distinct grounds exist for issuance of writ of sequestration which are not inconsistent, they may be conjunctively alleged.
    6. Sequestration <§=j12 —Petition—Sufficiency.
    Where petition for sequestration alleged ejectment as ground and was sufficient, the filing of a separate affidavit upon a different ground which was insufficient could be regarded as surplusage and did not impair the sufficiency of the petition.
    Appeal from District Court, El Paso County; P. R. Price, Judge.
    Suit by L. M. Crawford, trustee, against Bernard Schuster and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Leigh Clark, Seymour Thurmond, and Moore & Harris, all of El Paso, for appellants. Jones, Jones, Hardie & Grambling, and S. P. Weisiger, all of El Paso, for appellee.
   HIGGINS, J.

By deed dated February 26, 1906, the Bailey Hotel Company, for a consideration of $30,000, conveyed to “L. M. Crawford, trustee,” certain lands with the improvements thereon. The habendum clause as well as the warranty of title was to “L. M. Crawford, trustee, his successors or assigns.” Other provisions are contained in the deed, but it is unnecessary to mention same. The deed is altogether silent as to the purposes of the trust and in no wise discloses the identity of the cestui or cestuis que trust

On July 30, 1913, L. M. Crawford, trustee, made a written lease of the premises to Howard Fogg. The contract provided that, in event default was made in the payment Gf any of the monthly rental installments, the lessor should have the right to re-enter and terminate the lease. On August 2,1913, Fogg assigned in writing his leasehold interest to the Tri-State Amusement Company. On September 1, 1913, L. M. Crawford,, trustee, indorsed in writing upon such transfer his consent thereto. On November 8, 1913, “L. M. Crawford, trustee,” brought this suit against A. B. Schuster, Howard Fogg, and the TriState Amusement Company. Schuster was alleged to be the president and general manager of the amusement company. The petition set up the foregoing lease contract, the assignment by Fogg, the failure to pay rent, the exercise by plaintiff on November 7, 1913, of the right to terminate the lease, and his re-entry. In the eleventh paragraph of the petition, it was alleged that thereafter, on November 7, 1913, the defendants forcibly entered into the premises, breaking the locks and other fastenings upon the doors of the building on the premises, ousting plaintiff’s agent therefrom, and forcibly and unlawfully taking and holding possession thereof, and still unlawfully withholds possession from plaintiff.

The petition prayed for the issuance of a writ of sequestration, for judgment for title and possession of the premises, for rents and damages. The petition was verified by the oath of Crawford. On the same day (November 8, ⅞913), Crawford filed a separate affidavit in sequestration, setting up as grounds for the writ that he feared '“that defendants will make use of their possession to injure such property or waste or convert to their own use the fruits or revenue produced by same.”

A sequestration bond was given. The writ issued, and the property was seized thereunder. Thereafter the amusement company and A. E. Schuster replevied the property with Bernard Schuster and others as sureties upon their bond. Howard Fogg was subsequently dismissed from tlie suit. Judgment was rendered in favor of L. M. Grawford, trustee, against the amusement company and A. E. Schuster for the title and possession of the premises; also, against said company and A. E. Schuster and the sureties upon their re-plevin bond for rents. The defendants and their said sureties prosecute this appeal.

The defendants specially excepted to the petition upon the ground’ that the plaintiff was suing as trustee and the petition failed to disclose the nature and character of his trust and the parties for. whom he was acting as trustee. The overruling of this exception is made the basis of the first assignment..

The exception relates to a question of parties, for it is obvious that in a suit of this character, if the beneficiary of the trust estate is not a necessary party, then no .purpose would be served by requiring a disclosure of the identity of such beneficiary or of the nature and character of the trust. On the other hand, if the beneficiary is a necessary party, then the defendants by exception could raise the question and require that their identity be disclosed and their joinder in the suit compelled.

The general rule is well established that, in suits by or against a trustee to recover the trust property, the beneficiary is a necessary party. To this rule there are well-recognized exceptions; one of which is, in that class of cases, where it may be presumed that it was the intention to invest the trustee with power to prosecute and defend such suits in his own name. Ebell v. Bursinger, 70 Tex. 120, 8 S. W. 77; City of Austin v. Cahill, 99 Tex. 172, 88 8. W. 542, 89 S. W. 552; Monday v. Vance, 11 Tex. Civ. App. 374, 32 S. W. 559; Sawyer v. Bank, 41 Tex. Civ. App. 486, 93 S. W. 151. In the case first cited, Mrs. Bursinger sued John Ebell to cancel a deed executed by her to him conveying certain property in trust for the benefit of his daughter. A copy of the. deed was made a part of the petition, and upon.the face thereof it appeared that the conveyance was made solely for the benefit of the daughter, although the trustee was authorized to collect the rents for her benefit and in his discretion to sell the property and apply the proceeds to her sole use. It was held that the authority granted the trustee to receive rents for the use of the cestui que trust and in his discretion to sell the property, the proceeds to go to her benefit, did not imply a power in him to defend alone a suit involving title to the trust estate and that the beneficiary was a necessary party. The opinion, however, clearly discloses that under certain circumstances it may be presumed that the trustee .has the power to prosecute or defend suits to recover the trust property.

Can it be presumed in the case at bar that Crawford had such power? The deed upon its face is wholly silent as to the pur- : poses of the trust and the identity of the ces-tui or cestuis. que trust. This information lies in parol or is evidenced by some collateral writing which may or may not be of record. One who has no information upon the subject’ and who desires to prosecute a suit for the trust property could not possibly comply with the rule that in such cases the beneficiary must be joined. The law does not require the impossible or impracticable, and it must be presumed that all of the parties to the deed to Crawford intended that he should be vested with power to defend such suits. The implication arises necessarily. To hold otherwise would defeat the right to maintain such a suit by one who is ignorant of the extrinsic features of Crawford’s trust. So if his power to defend such a suit is to be considered as implied, then a fortiori he would be presumed to have authority to prosecute a suit to recover the trust property. One of th'e fundamental duties of a trustee is to preserve and protect the trust estate. To discharge that duty, it is as necessary that he should prosecute a suit to recover trust property adversely held as it is that he should defend such suits, and, if the nature of his trust is such as to imply the power to defend them, a like presumption would logically obtain that he has power to prosecute suits to recover.

It is therefore held that the nature of Crawford’s trust was such that it will be presumed that he had power to prosecute this suit in his own name; that his cestui or ces-tuis que trust were not necessary parties, and there was no error in overruling the exceptions.

The remaining assignments relate to the overruling of a motion to quash the sequestration proceedings. The separate affidavit for sequestration was in the alternative rendering it objectionable for duplicity. Clark v. Elmendorf, 78 S. W. 538.

It has been held in attachment proceedings that, if all the requisites of the required affidavit be contained in a verified petition, there need be no separate affidavit. Huffman v. Hardeman (Sup.) I S. W. 575. See, also, Towne on Pleading (2d Ed.) 458.

In the case at bar the petition was verified; it was a suit for the title and possession of the premises therein described; it states that the plaintiff, as trustee, was the owner thereof in fee simple, and entitled to possession; it describes the property with sufficient certainty, gives its value and the county in which it is situate, and by the eleventh paragraph above mentioned it is shown that plaintiff was ejected from the premises by force. The language of the petition with reference to the ejectment is not in the exact words of the fifth subdivision of article 7094, R. S., but is synonymous therewith, which is sufficient.. If two distinct grounds exist for the issuance of the writ which are not inconsistent, they may be conjunctively alleged to obtain the same. Duncan v. Jouett, 111 S. W. 981. There are thus two distinct affidavits existing in this case. One contained in the petition, complete within itself and complying with all statutory requirements. The other is separate and apart from the petition and defective. The grounds alleged in the petition are not inconsistent with any of the facts alleged in the separate affidavit. If the separate affidavit had not been filed, the writ would certainly have properly issued upon the grounds stated in the petition. This being true, the filing of the separate affidavit may well be regarded as unnecessary and surplusage. The petition was a sufficient basis for the writ, and the filing of the separate affidavit did not affect or impair the sufficiency of the petition in this particular.

Affirmed.

WALTHALL, J., not sitting, being absent on Committee of Judges assisting the Supreme Court.
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text:
    SHIPMAN v. JONES. SAME v. CROW.
    (Nos. 819, 820.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 8, 1917.
    Rehearing Denied 13, 1917.)
    1. Constitutional Law <§=68 (1) — “Election Contest.”
    An election contest is not a matter pertaining to the ordinary administration of the law in courts of justice, but in its nature is a political question, to be regulated by the political authority.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Election Contest.]
    2. Quo Warranto <§=27 — Unlawful Withholding of Office — Jurisdiction of District Court.
    The rule that an election contest is not a civil suit or cause, so that the district court has no jurisdiction thereof, under the constitutional provision giving it jurisdiction of all suits where the amount in controversy amounts to $500, has no application in the case of an information in the nature of quo warranto, prosecuted in the name of the state against one charged with unlawfully withholding an office, the matter in controversy being the title to the office.
    3. Quo Warranto <§=27 — Contests and Suits — Jurisdiction of District Court^CONSTITUTION.
    Prior to the amendment of Const, art. 5, § 8. in 1891. to confer on the district court jurisdiction of contested elections, the district court had no jurisdiction of an election contest, but did have jurisdiction of an information in the nature of quo warranto, prosecuted in the name of the state, contesting the result of an election as declared, to remove an intruder and install the person entitled, and it also had jurisdiction of a suit for an office, the value of which was within the court’s jurisdiction.
    4. Elections <§=275 — Contest—Jurisdiction of District Court — Statute.
    The jurisdiction of the district court of a contested election can be invoked only by compliance with Rev. St. 1911, arts. 3046-3978, executing Const, art. 5, § 8, conferring on the district court jurisdiction of contested elections.
    5. Courts <§=155 — Officers—Title to and Possession of Office — “Suits for Office” —Statute.
    Suits by the duly elected treasurer of a county against two persons, one of whom usurped such office ’and illegally held it for a year, when he resigned to make place for the other, under certificate of appointment to the office from the county judge, were suits for an office, though allegations of the petitions questioned the validity of certain votes counted for the usurper, so that the district coqrt had jurisdiction, though Rev. St. 1911, arts. 3046-3078, prescribing the rules by which an election contest may be tried in the district court, was not complied with.
    6. Elections <§=275 — Contest—Suit for Office-Jurisdiction of District Court.
    Const, art. 5, § 8, as amended, in 1891, to give the district court jurisdiction of contested elections, and Rev. St. 1911, arts. 3046 — 3078, prescribing the rules by which an election contest may be tried, enlarged'the jurisdiction of the district court, and did not limit its original power to try a suit for an office.
    7. Elections <§=177 — Ballots—Legality— Signature of Presiding Judge.
    Under Rev. St. 1911, arts. 3001, 3011, as to the delivery of ballots and their signature by the judge, 50 ballots for county treasurer, without the signature of the presiding judge written on the blank side thereof when they were cast, counted, and returned for a candidate, were illegal, and should not have been counted and returned for him.
    Appeal from District Court, Jeff Davis County; Jos. Jones, Judge.
    Suits by O. L. Shipman against W. T. Jones and W. S. Crow. From judgments of dismissal, plaintiff appeals; the appeals being consolidated on motion.
    Reversed and remanded.
    J. R. Hill, of Alpine, for appellant C. C. Belcher, of Del Rio, and C. R. Sutton, of Marfa, for appellees.
   HIGGINS, J.

In the case of Shipman v. Jones, appellant filed his first original petition in the district court of Jeff Davis county on January 22, 1917. This was superseded by a first amended original petition, filed July 10, 1917, the substance of its allegations being as follows: That a general election was held on November 7, 1916, in Jeff Davis county, for the election of county officers, and the plaintiff was duly and legally elected to the office of treasurer of that county and by reason thereof was entitled to the office for the term of two years and to the emoluments and fees thereof, which would amount to the sum of $3,000 for the term, and that the office for the term was worth said sum ; that on November 15, 1916, Jones, illegally claiming the office, usurped and intruded himself into the same and excluded plaintiff therefrom and illegally held the office and exercised the powers and performed the duties thereof until May, 1917, when he pretended to resign, and that during the time Jones held the office he appropriated the emoluments thereof, amounting to the sum of $1,500; that Jones claimed the office under a certificate of election delivered to him by the county judge certifying that he had received 181 votes, that being the greatest number polled for any person at said election for that office; that said certificate was not true; that Jones did not receive 181 legal votes, but that a large number of illegal votes were cast, counted, and returned at said election for Jones, and that such number of illegal votes were sufficient to change the result of the election, and that plaintiff received 159 legal votes cast at the election, and that by reason thereof plaintiff was entitled to the office; that in election precinct No. 5, nine votes (the voters being named and ballot number given) were cast for Jones and counted for him, and that the same should not have been counted for him because the ballots did not have the name of the presiding judge of the electipn precinct written on the blank side thereof, as required by law; that in election precinct No. 6 a number of persons named in the petition (aggregating 41) voted for Jones (ballot numbers being given), and their ballots were counted and returned for him and included in the number of votes shown by said election certificate to have been received by Jones, but that said ballots were illegal and should not have been counted and returned for him because the name of the presiding officer of such election precinct was not written on the blank side of the ballot as required- by law; that when they were counted the presiding officer did not write his name thereon until the same had been counted and the returns made and sealed up, after which had been done, the presiding judge of the election opened the ballot box and took the ballots therefrom and wrote his name on the blank side thereof and redeposited them in the box, and that the ballot of one of the voters in said election precinct should not be counted for the further reason that, after the voter had voted and the ballot deposited in the ballot box, the voter opened the box and took his ballot therefrom and changed the same and wrote upon it and then redeposited it in the ballot box; that by reason of the premises plaintiff was entitled to receive the election certificate to the office, but that the certificate of election was delivered to Jones, who, on November 15, 1916, qualified and entered upon the discharge of the duties of treasurer and since that time, up to the-day of May, 1917, had received and appropriated the emoluments of the office to his 'own use and benefit, to plaintiff’s damage in the sum of $1,500. Plaintiff prayed that the ballot box be brought into court and the ballots cast in such precincts recounted, and the ballots, the legality of which was questioned as above indicated, be not counted for Jones, and that the number of illegal votes determined by recount be deducted from the total vote of Jones, and that plaintiff have judgment that defendant was not entitled to the office, but that the plaintiff was, and that plaintiff be permitted to qualify within 20 days after final judgment and to enter upon the discharge of the duties of the office, and that the defendant be commanded to surrender the office to plaintiff upon his qualification, and, further, that he have judgment for all fees and emoluments received by the defendant from November 15, 1916, and for general and special relief.

The petition in the case of Shipman v. Crow was filed on June 4, 1917, and was superseded by his first amended petition filed July 12, 1917. The amended petition in this case contains the same allegations as are contained in the Jones Case, and in addition thereto it was averred that Jones pretended to resign the office in May, 1917, and that Crow from that date was claiming the office under certificate of appointment delivered to him by the county judge, certifying that Crow, in the month of May, 1917, was appointed to such office by the commissioners’ court; that the action of the commissioners’ court in thus appointing Crow was without warrant of law and unauthorized and void for the reason that- no vacancy existed at said time in the office, as the plaintiff had been duly elected thereto by a majority of the qualified voters of the county at the election named, but had been excluded from the office by the unlawful acts of Jones and Crow; that on or about the - day of May, 1917, the defendant Crow qualified and entered upon the discharge of the duties of the office and since that time had received the emoluments thereof to plaintiff’s damage in the sum of $1,500; tha,t at the term of the commissioners’ court at which Crow was appointed treasurer, plaintiff filed his application with the court, requesting it to appoint him treasurer of the county, showing to the court that he had been duly elected thereto and had been excluded therefrom as above set out; that Jeff Davis county has no county attorney; that the plaintiff had applied to the district attorney and the Attorney General of the state for permission to bring quo. warranto proceedings in their names, but that the same in both instances was refused. The prayer was of the same nature as in the petition in the Jones Case. General and special exceptions were interposed by the defendants in the two cases, which were sustained by the court and the suits dismissed. Plaintiff thereupon prosecuted these appeals, and such appeals in this court have been consolidated upon motion.

The controlling question in these appeals relates to the jurisdiction of the district court over the proceedings brought by appellant. The solution to the question depends upon a determination of whether the proceedings are to be considered as an election contest or a suit for an office.

Our courts have recognized a clear distinction between an election contest and a suit to recover an office unlawfully withheld from another. Williamson v. Lane, 52 Tex. 335; State ex rel. Jennett v. Owens, 63 Tes. 261. The distinction was made with respect to the jurisdiction of the courts over such controversies. It proceeds upon the theory that an election contest is not a matter pertaining to the ordinary administration of the law in courts of justice, but in its nature is a political question to be regulated by the political authority; that to decide the result of an election was a “part of the process of political organization” and “not a question of private right.” Rogers v. Johns, 42 Tex. 339; Wright v. Fawcett, 42 Tex. 203.

Accordingly, in the last-cited cases, it was held, under the Constitution of 1869, that the district court had no jurisdiction of a contested election proceeding between private individuals, because such a contest was not a “suit, complaint, or plea,” within the meaning of the Constitution conferring jurisdiction upon the district court—

“of all suits, complaints, and pleas whatever, without regard to any distinction between law and equity, when the matter in controversy shall be valued at, or amount to, one' hundred dollars, exclusive of interest.”

In Odell v. Wharton, 87 Tex. 173, 27 S. W. 123, and State v. Thompson, 88 Tex. 228, 30 S. W. 1046, Judge Brown again announced the rule that a contested election was not a civil suit, cause, or complaint, and that under the Constitution of 1876, as it was prior to the amendment of 1891, the district court had no jurisdiction to try contested elections. To the same effect is Ashford v. Goodwin, 103 Tex. 491, 131 S. W. 535, Ann. Cas. 1913A, 699.

The rules announced in the cited cases, to the effect that an election contest is not a civil suit or cause, and that the district court had no jurisdiction under the constitutional provision giving them jurisdiction of all suits, complaints, and pleas whatever where the amount in controversy is valued at or amounts to $500, has no application in the case of an information in the nature of quo warranto prosecuted in the name of the state against one charged with unlawfully withholding an office. Such a proceeding was held to be in the nature of a civil remedy, and though the action was in the name of the state the “matter in controversy” was still the title to the office, and if that amounted in value to $500, the cause came within the constitutional jurisdiction given to the district court. State v. De Gress, 53 Tex. 387.

In State v. Thompson, supra, it was said:

“A proceeding by information in the nature of quo warranto has for its primary object contesting the correctness of the result of the election as declared. Its secondary purpose is to remove the intruder, and to install the person rightfully entitled to the office. It is therefore a proceeding or case for the contest of an election; that is, one of that character of proceedings.”

As noted above, the courts have recognized a distinction between an election contest and a suit for an office. And It has been held that the district court had jurisdiction of a suit for an office, as distinguished from contested election cases, under the constitutional provision giving them jurisdiction “of all suits, complaints, and pleas whatever,” etc. State v. De Gress, supra; Bell v. Faulkner, 84 Tex. 187, 19 S. W. 480; Williamson v. Bane, supra; Harris v. Williamson, 45 Tex. Civ. App. 65, 99 S. W. 713; State ex rel. Jennett v. Owens, 63 Tex. 261.

So, prior to the amendment in 1891 of section 8, art. 5, of the Constitution, it follows that the district court had no jurisdiction of an election contest, but did have jurisdiction of an information in the nature of a quo warranto jmosecuted ⅛ the name of the state, thereby contesting the result of the election as declared, and to remove an intruder and install the person rightfully entitled to the office; and it also had jurisdiction of a suit for an office, the value of which was within the court’s jurisdiction, as distinguished from an election contest,

In 1891. section 8, art. 5, of the Constitution, was amended so as to confer upon the district court jurisdiction “of contested elections.” This amendment was held to be not self-executing; that since a contested election was not a civil suit or cause it could not be tried by the proceedings had in such cases, and'in the absence of legislation prescribing the rules by which an election contest might be tried in the district court, that court had no jurisdiction. Odell V. Wharton, supra. Such legislation was enacted and appears in the Revised Statutes as chapter 8, title 49.

As a corollary to the rule so announced in Odell v. Wharton, it would follow that the jurisdiction of the district court of a contested election could only be invoked by a compliance with the provisions of the statute. It has been so held. Wright v. Fawcett, supra ; Lindsay v. Buckett, 20 Tex. 516; Cauthron v. Murphy, 61 Tex. Civ. App. 462, 130 S. W. 671; Bassel v. Shanklin, 183 S. W. 105; Mercer v. Woods, 33 Tex. Civ. App. 642, 78 S. W. 15; Swenson v. McKay, 47 Tex. Civ. App. 483, 106 S. W. 934; Calverley v. Shank, 28 Tex. Civ. App. 473, 67 S. W. 434; Messer v. Cross, 26 Tex. Civ. App. 34, 63 S. W. 169.

The case presented by appellants’ petitions do not show a compliance with the statutory provisions relating to election contests. Therefore, if the allegations of the petitions are to be considered as presenting the case of a contested election, then the district court was without jurisdiction because of the failure to show compliance -with such statutes. The case is not an information in the nature of a quo warranto prosecuted in the name of the state. So if the district court has jurisdiction over the controversy it is because the suit is for an office and is not an election contest. Appellees contend that it is a contest of an election.

The distinguishing features of a suit for an office from an election contest are announced in Williamson v. Lane and State ex rel. Jennett v. Owens, supra. In the Williamson ’Case it was said that in a suit for an office the immediate right of the plaintiff to the office and its fees and emoluments is the purpose and direct subject-matter of the suit. That is the case made by these petitions, as is apparent from the allegations and the relief sought. It is true that the allegations question the validity of certain votes counted for appellee Jones, and involves a contest as to who was elected to the office, but this does not make it any the less a suit for the office. This phase of the case is controlled by the opinion rendered in State ex rel. Jennett v. Owens, supra, where it was said:

“The court below was evidently misled in supposing that because a suit for an office might involve a contest as to who was elected to it, that the courts could not determine it because they cannot try a contested election case. When our courts hold that they cannot try the contest of an election between parties, they mean that they cannot try it in the manner, under the circumstances, and with the results provided in the statutes upon that subject. They cannot make use of the process and proceedings provided by these statutes, and render a judgment merely that one or the other party is entitled to the certificate of election, without awarding him a judgment for the office to be enforced by the proper process of execution. But if in a suit for. the office which they can entertain, the claimant’s title is traced through a popular election, there can be no more objection, to his showing as a muniment of title that he was duly chosen to the office by the people than to a plaintiff’s showing in any case that he derived the right to his property by a just and legitimate chain of title. It would be idle to open the courts of the country for the trial of titles to lands, and yet_ forbid the plaintiff in such an action to exhibit his grant from the government; and it would be a useless privilege to allow one to resort to the courts to assert title to an office and not allow him to prove that he had been chosen to it by the voters participating in the election. If allowed to prove an election to the office, the claimant must not be confined to the returns made out and forwarded to the proper department by the managers of the election. He must be permitted to prove • his election by the best and most reliable evidence, viz. the votes east in the election. If confined to the returns, his right of office is not made to depend necessarily upon the amount of ballots cast for him, but upon what the persons in charge of the ballot boxes say was the result of the election. * ⅜ * All our decisions recognize a suit for an office brought in the district court in manner and for the purposes we have stated to be a matter of judicial cognizance, and to be determined by judicial methods. If in the trial of such a cause it becomes necessary to investigate political subjects, such as„the ballots of voters, or the conduct of officials conducting elections, this may be done, if the evidence to be produced tends to determine the right in controversy between the parties. One elected to office by the people holds a right to its enjoyment by the highest patent upon which title to property can rest. He cannot be defrauded of his right by the act of ministerial officers in charge of the ballot boxes, and may establish it by proof of the very facts through which he traces his right to its possession. These views are supported not only by reason but are in full accord with the previous decisions of our own state, one of which only will be sufficient to cite.”

We also refer to Bell v. Faulkner, supra. It was there held that the case made by the petition was a suit for an.office and not a proceeding to contest an election. Bell v. Faulkner cannot be distinguished from the case made by the petitions here. It is therefore held that these cases were suits for an office and the district court had jurisdiction.

Appellee contends that an election contest under the statute is the exclusive remedy in such cases. The courts have held to the contrary. The constitutional amendment and statutory provisions enlarged the jurisdiction of the district court and did not limit its power to try the same question by any other existing mode of procedure. Gray v. State, 92 Tex. 396, 49 S. W. 217; Price v. School Trustees, 192 S. W. 1141; Messer v. Gross, supra.

There remains only tó be considered whether the allegations are sufficient to maintain suit for the office. The petition shows that Jones received 189 votes and appellant 159 legal votes; that of the votes received by and counted for Jones were 50 ballots claimed to be. illegal because the signature of the presiding judge was not written upon the blank side thereof at the time such ballots were cast, counted, and returned for Jones. Such ballots were illegal and should not have been counted and returned for Jones. Arts. 3001 and 3011, R. S.; Arnold v. Anderson, 41 Tex. Civ. App. 508, 93 S. W. 692; Clark V. Hardison, 40 Tex. Civ. App. 611, 90 S. W. 343; State v. Connor, 86 Tex. 133, 23 S. W. 1103; Brigance v. Horlock, 44 Tex. Civ. App. 277, 97 S. W. 1060. Deducting these 50 ballots from the total counted and returned for Jones would leave a balance of 131 for him. The petition shows that appellant received 159 legal votes, which entitled him to the office.

Reversed and remanded.

WALTHALL, J., not sitting, being absent on committee of judges assisting the Supreme Court.
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