author: BUCK, J.

text:
    SPAULDING MFG. CO. v. BLANKENSHIP et al.
    (No. 8483.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 20, 1917.)
    1. Judgment &wkey;>768(l) — Abstract or — Requisites — Statute.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5612, providing what an abstract of judgment shall show, does not require an affirmative showing that original execution was issued within 12 months after judgment, in order to constitute notice.
    [Ed. Note. — Por other cases, see Judgment, Cent. Dig. § 1325; Dec. Dig. &wkey;768(l).]
    2. Judgment <&wkey;801 — Foreclosure oe Lien —Burden of Proof.
    In suit to foreclose a judgment lien, where dormancy of judgment was pleaded because-execution was not issued within 12 months as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5617, the plaintiff had the burden of proving the vitality of his judgment.
    [E'd. Note. — Por other cases, see Judgment, Cent. Dig. §§ 1387, 1575; Dec. Dig. &wkey;801.]
    3. Judgment &wkey;>801 — Foreclosure of Lien —Sufficiency of Evidence.
    The burden of proving the vitality of the judgment which plaintiff sought to foreclose was not met by the introduction of the alias execution reciting that the original was issued within 12 months after judgment as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5617, where no reason was given for not producing the original.
    [Ed. Note. — Por other cases, see Judgment, Cent. Dig. §§ 1387, 1575; Dec. Dig. &wkey;801.]
    4.Judgment <&wkey;801 — Foreclosure of Lien —Admissibility of Justice Docket.
    Where, in a suit to foreclose a judgment lien, no reason was assigned for not producing the original execution claimed to have been issued within the statutory time, the entries on the justice court docket were not admissible to establish the fact.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1387, 1575; Doc. Dig. &wkey;801.]
    Appeal from District Court; Erath County; W. J. Oxford, Judge.
    Suit to foreclose judgment lien by the Spaulding Manufacturing Company against G. C. Blankenship and another. Judgment for defendants, and plaintiff appeals. Judgment reversed, and cause remanded. On rehearing.
    Former opinion withdrawn, and judgment affirmed.
    W. W. Moores, of Stephenville, for appellant. J. T. Daniel, of Stephenville, for ap-pellees.
   BUCK, J.

On original hearing of this case the judgment of the trial court was reversed, and the cause remanded. Upon a further consideration, and in light of additional authorities cited by appellee, we have reached a conclusion contrary to that expressed in the original opinion. Hence such original opinion is hereby withdrawn, and the judgment of reversal set aside.

Suit was brought by the appellant, Spauld-ing Manufacturing Company, against G. C. Blankenship and J. P. Syler, in the district court of Erath county, seeking to foreclose a judgment lien against certain lands in Erath county alleged to have been owned by the defendant Blankenship at the time of, or subsequent to, the filing of an abstract of judgment in Erath county, which judgment, in the sum of $140.75 and costs, was obtained May 31, 1909, in the justice court of Tarrant county, and the abstract of judgment was filed in the office of the county clerk of Erath county, May 6, 1912. At said time Blankenship owned a one-tenth undivided interest in 200 acres of land located in Erath county, and on July 18, 1914, he conveyed said land to defendant J. P. Syler.

In the instant suit Syler pleaded the dormancy of said judgment, alleging that no execution had been issued thereon with 12 months after its rendition, and that as to him the abstract of judgment was void and constituted no notice. The trial court rendered judgment for defendants, and the plaintiff appeals.

Plaintiff offered in evidence a certified copy of the judgment rendered in the justice court of Tarrant county, styled Spaulding Manufacturing Company v. G. C. Blankenship; also the abstract of judgment duly recorded and indexed in the Booh of Judgment Abstracts of Eratli County, May 6, 1912; also an alias execution issued out of the justice court of Tarrant county, dated October 1, 1912, containing the recitation that an execution on said judgment was issued to Tar-rant county, Tex., on June 11, 1909, and was returned nulla bona. The court held that there was an absence of showing that the original execution had been issued within the required 12 months from date of judgment, and that, for aught that appeared from the evidence in the. case, said judgment was dormant at the time of the filing of the abstract of judgment in Erath county, and that the alias execution containing the recitation that the original execution had been issued was not the best evidence of that fact, and that the burden of proof was on plaintiff to show that the justice court judgment was a valid and subsisting judgment, and not dormant.

Article 5612, Vernon’s Sayles’ Texas Civil Statutes, provides what an abstract of judgment shall show, and it does not require, in order to constitute notice, that such abstract of judgment shall affirmatively show that original execution was issued within 12 months from data of judgment. Article 5613, Id., makes it the duty of each justice of the peace to make out and deliver an abstract of any judgment rendered in his court in the manner provided in the two preceding articles. Article 2384, Id., provides that on the eleventh day after the rendition of any final judgment, if the case has not been appealed and no stay of execution has been granted, the justice of the peace shall issue an execution for the enforcement of such judgment, etc.

While it has been held in Laughter v. Seela, 59 Tex. 177, that, in the absence of any showing to the contrary, it should be presumed that the justice of the peace obeyed the requirements of the law as to the issuance of the original execution, and in Humason v. Lobe & Son, 76 Tex. 512, 13 S. W. 382, our Supreme Court held that the court will not presume that an execution upon a judgment was not issued within one year after the rendition of the judgment, and in Gould v. West, 32 Tex. 338, 351, it is said, “Every presumption is to be indulged hi favor of the correctness of the action of the agents of the government; otherwise there would be great insecurity in all rights of property,” and, as stated in Jenkins v. Chambers, 9 Tex. 167, Olcott v. Gabert, 86 Tex. 121, 23 S. W. 985, and M., K. & T. Ry. Co. v. Shannon, 100 Tex. 379, 381, 100 S. W. 138, 10 L. R. A. (N. S.) 681, the presumption is that public officers do as the law and their duty require them, and, as held in Shepard v. Avery, 89 Tex. 301, 306, 34 S. W. 440, all official acts of public officers are presumed to have been done at the time and in the manner required by law, yet, in spite of these authorities, and others that might be cited in support of our original conclusions, we have finally decided that the Supreme Court in Boyd v. Ghent, 95 Tex. 46, 64 S. W. 929, has announced the holding in support of the judgment of the trial court in this case. In the cited case, after quoting article 3290, Revised Statutes, now article 5617, Vernon’s Sayles’ Texas Civil Statutes, Judge Gaines says:

“It seems to us that, since this article fixes the period during which the lien shall continue, a party who asserts it in an action must show that it has not ceased to exist at the time he brings his suit. Otherwise he shows no existing lien. It is not a statute which limits the period in which an action shall be brought, and therefore we are inclined to the opinion that it is not necessary for a defendant who resists such lien to plead the statute specially.”

This holding is followed in Schneider v. Dorsey, 96 Tex. 544, 74 S. W. 527; also by the Court of Civil Appeals for the Sixth District in Bourn v. Robinson, 49 Tex. Civ. App. 157, 107 S. W. 873. In the last-cited case Judge Hodges, speaking for the court, says:

“It has been decided by our Supreme Court that in order to establish the existence of the lien the burden is upon the plaintiff to prove that an execution has been issued upon his judgment within 12 months after its rendition” — citing the two cases from the Supreme Court above mentioned.

Therefore we hold that the burden of proof was on plaintiff to establish the vitality of its judgment, and that that burden was not met by the introduction of the alias execution reciting the issuance of the original execution within 12 months from the date of the judgment. There was no sufficient reason shown for the nonproduction of the original execution.

Hence the entries on the justice court docket would not be admissible to establish the fact of the issuance of such original execution. In its amended motion for a new trial plaintiff offered a certified copy of such entries on the justice court docket, but even in said motion plaintiff failed to attach the original execution, or to properly account for its nonproduction.

Hence we conclude that the court did not err in refusing to grant appellant a new trial, and the judgment of this court heretofore rendered is set aside, and the judgment of the trial court is in all things affirmed.

Affirmed.

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


source: Caselaw Access Project

author: MIDDLEBROOK, J.

license: Public Domain

text:
    WHITFIELD et al. v. LA GRONE et al.
    (No. 108.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 9, 1916.
    Rehearing Denied Jan. 24, 1917.)
    1. Tenancy in Common <&wkey;33 — Division of Land — Effect as to Third Persons.
    A tract of 155 aeres of survey of 755 acres belonging to a decedent was set apart to the widow by a particular description. Thereafter the entire land, except the 155 acres, was sold by the administrator. The grantees of the 155 acres, on finding that by some means unknown their land had been located on another part of the larger tract, so that it became entirely displaced, and its description did not conform to that originally made, exchanged deeds with the owner of the remaining part of the survey so that such grantees retained the 155 acres as actually located, and surrendered to the owner of the 600 acres the tract of 155 acres as originally described in the proceedings in which the same was set apart to the widow. Held, that such exchange of deeds did not give the heirs of decedent any interest in any part of the original tract of land, since the purchaser at the administrator’s sale and the grantees of the 155-acro tract became tenants in common of the entire land, and they could partition it in any way they saw fit
    [Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. § 25; Dec. Dig. ⅞⅜»33.]
    2. Tenancy in Common &wkey;>3 — Creation-Conveyance of Number of Acres from Survey.
    The effect to be given a deed which conveys a certain number of acres out of a larger survey, even where the grant restricts the interest of the grantee to a certain part of the larger survey, is that the grantee becomes by his deed a tenant in common with the owner of the larger tract, and his interest is represented by a fraction the denominator of which is a number equal to the number of acres in the larger tract and the numerator of which is a number equal to the number of acres conveyed.
    [Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 5-17; Dec. Dig. <&wkey;3.]
    Appeal from District Court, Panola County ; W. C, Buford, Judge.
    Trespass to try title by M. J. Whitfield and others against G. W. La Grone and others. From a judgment for defendants, plaintiffs appeal.
    Reversed and rendered.
    Young & Young, of Marshall, and R. W. Priest, J, G. Woolworth, Frank Lawson, and II. N. Nelson, all of Carthage, for appellants. W. G. Banks, of Carthage, for appellees.
   MIDDLEBROOK, J.

This is a suit in trespass to try title, in which there were numerous parties, but for a determination of this appeal it is necessary to deal with Whitfield and his wife, Julia Whitfield, and G. W. La Grone and others, being the heirs of Adam La Grone, deceased, alone, and as we view the case, a correct determination of the same is dependent upon the issues involved between Whitfield and the La Grones, and as to these the crucial test is whether or not all of the land belonging to the Adam La Grone estate was regularly transferred and conveyed by Adam La Grone himself, and after his death by his administrator, G. W. La Grone, who was his son. If, under the proceedings of the probate court of Panola county, in matters pertaining to the estate of Adam La Grone, deceased, his administrator disposed of the remaining part of a half league of land owned by Adam La Grone, and title was vested out of the La Grones under the administration proceedings in the probate court of said county, the La Grones cannot recover the land sued for in this case. If, on the other hand, the proceedings in the probate court and deeds by the administrator of Adam La Grone’s estate did not dispose of all of the land remaining in said half league at the death of Adam La Grone, but left 130 acres, the amount claimed by the La Grones, not disposed of, then they should recover.

As has already been indicated, Adam La Grone owned a half league of land in Panola county, Tex., as is shown by plat A. During his lifetime he conveyed out of said half league, on June 26, 1845, 640 acres to A. T. La Grone; December 31, 1846, to W. A. La Grone, 177 acres; May 11, 1848, to Francis Bounds, 640 acres; and on February 1, 1851, to J. George 100 acres of land — as is represented in plat B.

About the latter part of 1857 Adam La Grone died, and at the January term, 1858, of the probate court of Panola county W. A. La Grone was appointed administrator of the estate of his father, Adam La Grone, deceased. These proceedings are all regular.

On January 30, 1860, in a contested proceeding among the La Grone heirs, W. A. La Grone’s final act as administrator of the estate of Adam La Grone, deceased, was approved, and commissioners were appointed to partition the estate among the heirs. On April 3d the commissioners appointed to partition the estate made their report to the probate court, and in the report they set aside 155 acres of land to Asa La Grone. Asa La Grone was the second wife of Adam La Grone, deceased. There were no children born to Adam La Grone and his second wife, and, the 155 acres set aside to Asa La Grone was set aside to her as her one-third life estate of the estate of her deceased husband, Adam La Grone, together with some personal property not necessary to mention. Asa La Grone assigned her lifetime estate to James La Grone. The commissioners appointed to partition the estate of Adam La Grone, deceased, reported as to .this particular issue as follows:

“To James La Grone, as assignee of Asa La Grone, the wife of Adam La Grone, deceased, the following property, to wit: One negro slave, a woman of dark brown color, aged about 45 years, and worth the sum of $650, also 155 acres of land, worth $3.50 per acre, making a total of $1.192.50, making as near as possible one-third of said estate. The above land described and set apart to James La Grone as as-signee of Asa La Grone, is described as follows:
To commence at the southwest corner of a certain section of land sold to P. Bounds by Adam La Grone, deceased, as shown by reference to the foregoing plat on the old La Grone line, and running north with said Bounds line to the northwest corner of said survey; thence north with A. J. La Grone line to a lightwood stake, and a pine tree marked L;' thence west so as to include the i&provements of James La Grone; thence south to said La Grone’s line; thence east to the place of beginning — so as to contain 155 acres of land.”

C is a copy of the plat made and referred to by the commissioners. They reported further as follows:

“And the undersigned commissioners report and say that the remainder of the property belonging to said estate is incompetent of a division and distribution among the heirs of said A,dam La Grone, deceased, for the following reasons, to wit: The value of said property, one negro boy, Tobe, about ten years, of yellow complexion, worth $1,050.00, and 600 acres of land worth the sum of $2.50 per acre, cannot be equally divided among the heirs, and further report this to be .all the property shown us by the administrator of Adam La Grone, deceased.”

These proceedings are all regular and In proper legal form. The report of commissioners was approved by the probate court of Panola county, Tex., on the 30th day of April, 1860, and judgment entered accordingly. In this judgment the 155 acres is apportioned to the assignee of Asa La Grone, as was recommended by the commissioners of partition in their report. Decree was also entered that upon the death of said Asa the said slave Harriett and the 155 acres of land be equally distributed among the proper distributees of the estate of Adam La Grone, deceased. As to the remaining land belonging to the estate of Adam La Grone, the following judgment and decree is entered:

“And it appearing from said report that all the other property belonging to said estate for distribution is incapable of fair and equal distribution among the distributees of said estate, and Allen La Grone, one of said distributees, coming into court and takes the negro boy Tobe, belonging to said estate, at the appraisement value of same, and filing his bond to the other distributees as the law directs, it is ordered by the court that said Allen take said boy Tobe on credit of 12 months at 10 per cent, interest on the sum due to the other distributees.
“And it is further ordered by the court that all the land belonging to said estate, except the said 155 acres be sold on a credit of 12 months as the law directs, and upon collection of the proceeds of said sale of land, that it be paid over to the parties entitled to receive the same under a former decree of this court ordering said estate to be partitioned.”

Then follows a distribution of costs among the heirs of the said Adam La Grone under the contest proceedings. In pursuance of the order of the court made at the April term, W. A. La Grone, administrator of the estate of Adam La Grone, deceased, conveyed the remaining land of the Adam La Grone estate to John L. Booty for the sum of $718.-50. The sale was made on a year’s time, and mortgage notes taken by the administrator from John L. Booty, and the land is described in the sale thus:

“ * * * Do hereby grant, bargain, sell, and convey unto the said John L. Booty, his heirs and assigns forever, by virtue and in pursuance of the orders, decrees, sale, confirmation, and powers above referred to, a certain tract of land situated in Panola county, on the east side of Sabine river, about 5 miles southeast from Pulaski, and known as Adam La Grone headright, containing 600 acres.”

The decree of the probate court ordering the sale of the land is recited in the former part of the deed. This sale is duly confirmed by the probate court.

John L. Booty died January 24, 1862, and at the time of his death the mortgage notes for the land bought from the La Grone estate had not all been paid. There were several credits on it not necessary to mention. J. H. Booty was duly and regularly appointed administrator of the éstate of John L. Booty, deceased. W. A. La Grone, administrator of the estate of Adam La Grone, deceased, filed suit on the note against J. H. Booty, administrator of the J. L. Booty estate, and on the 27th day of February, 1867, judgment was entered for the unpaid balance on said note, and the mortgage foreclosed. These proceedings were all in the probate court, and the foreclosure proceedings were not contested by J. H. Booty, administrator of the estate of John L. Booty. The indications are that the proceedings were agreed proceedings.

In pursuance of the orders of the probate court, J. H. Booty, administrator of the estate of John L. Booty, sold the 600-acre La Grone tract of land, upon which the mortgage lien had been foreclosed, to B. F. Jordan and A. J. Booty, on the first Tuesday in April, 1867, and made his report April 29, 1867, to the probate court of Panola county, which report was confirmed by the court, and decree entered accordingly, and the administrator was ordered to make conveyance of the land to the purchasers. In the sale the land brought $400, which was not sufficient to pay oft the mortgage lien, but the undisputed testimony is that the administrator of the estate of John L. Booty, deceased, promptly paid the balance of the debt out of the funds belonging to the estate of John L. Booty, deceased, to W. A. La Grone, administrator of the estate of Adam La Grone, deceased. J. H. Booty made and delivered to A. J. Booty and B. F. Jordan deed of conveyance to the land ordered sold, and this deed was lost and never recorded.

On the 17th day of July, 1908, J. H. Booty executed a deed to A. J. Booty and B. F. Jordan, to supply the deed which had been lost, and had never been recorded. The deed is made by J. H. Booty, as administrator, and recites the orders of the court hereinbefore stated, and states that the purpose of the deed is to supply the missing deed, and in that deed the land is described as follows:

“Begin at the N. W. corner of the Adam La Grone, a red oak brs. S. 41° E 6 vrs. mkd ‘A L’; thence south 442 rds. in the W. B. line of said La Grone, a pine mkd ‘W’; thence east 113 rds. the S. W. corner of Mrs. N. Hooper's 155-acre tract; thence north 238 rds, a hickory brs. W. 1 vr. mkd ‘W’; thence with Hooper’s Ñ. B. line east 92 rds.; thence N. 200 rds. a stake, a pine brs. S. 45° E. 8 vrs. a red oak brs. W. 45° E. 6 vrs. mkd ‘G. L.’; thence N. 55° W. 40 rds. a stake the corner of 177-acre survey tract, P. O. brs. N. 80° E. 9 vrs., a dogwood S. 52° W. 6 vrs. mkd ‘W’; thence N. 35° E. 81 rds. a stake, the N. B. line of said A. La Grone’s survey, a pine brs. - mkd ‘W’; thence with said N. B. line N. 55° W. 121 rds. to the beginning — containing about 560 acres of land.”

The land described in the deed from J. H. Booty, administrator of the estate of J. L. Booty, to A. J. Booty and B. F. Jordan, was conveyed by A. J. Booty and B. F. Jordan to N. G. Barksdale on the 22d day of October, 1870, which deed was a general warranty deed, for a consideration of $500, describing the land as follows:

“In Panola county, Tex., on the east side of Sabine river about 5 miles S. E. from Pulaski, containing 600 acres of land, and being a part of Adam La Grone headright survey, being the land bought by John L. Booty of William A. La Grone, as administrator of the estate of Adam La Grone, deceased, and afterwards bought by Augustus J. Booty and B. F. Jordan from J. H. Booty, as administrator of said John L. Booty, deceased.”

Which deed was duly and properly recorded.

On the 6th day of December, 1882, N. G. Barksdale, who died before the institution of this suit, deeded to .his daughter, Julia C. Whitesides, a number of tracts of land in one deed, in which was included the 600 acres of the La Grone half league. This deed was acknowledged and recorded December 2, 1882.

On the 24th day of November, 1896, Julia O. Whitesides sold and conveyed the land in controversy to defendant Julia N. Whitfield, which deed was duly and properly recorded. In that deed the land is described as follows:

“Situated in Panola county, Tex., about five miles S. E. from Pulaski and on the east side of Sabine river, and being about 600 acres. of the headright survey of Adam La Grone, being the land bought by John L. Booty from William A. La Grone, deceased, and afterwards bought by Augustus J. Booty and B. F. Jordan from J. H. Booty, as administrator of the estate of John L. Booty, deceased.”

Then follows a description of the land as is set out in the field notes in the deed from J. H. Booty, as administrator of the estate of John L. Booty, deceased, to A. J. Booty and B. F. Jordan, dated July 17, 1908.

Asa La Grone died in 1861, and on December 29, 1861, W. A. La Grone filed his application for partition in the probate court of Panola county, Tex., as follows:

“Now comes W. A. La Grone, administrator of the estate of Adam La Grone, deceased, and shows that there remains in his hands as said administrator a negro woman, Harriett, and 155 acres of land, and prays the court to appoint commissioners to partition and distribute the said property among the heirs of said deceased. After hearing the application, it was ordered by the court that Samuel Party, G. W. Getor, and B. B. Anderson be appointed commissioners to partition and distribute the above-described property among the heirs of Adam La Grone, deceased, and make their report to this court.”

On the 26th day of January, the commissioners appointed by the court reported, appraising the value of the negro woman at $350, and the 155 acres of land to be worth $1.50 per acre, and reported that the property was incapable of division among the heirs, and recommended sale of the property, and decree was entered accordingly ordering the sale of the 155 acres of land and the negro woman, Harriett, and the distribution of the proceeds among the heirs of Adam La Grone, deceased. At the June term of the county court, 1862, W. A. La Grone reported .his sale of the property, in obedience to the decree of the court at the February term thereof, in which ho sold the 155 acres of land to J. M. Ramsey for the sum of $210, and the negro woman, Harriett, to Wm. McDaniel for the sum of $350. This sale was duly confirmed by the court on the 16th day of September, 1862, and the administrator was ordered to make deed to J. M. Ramsey, which was done, and In said deed the 155 acres of land is described as follows:

“Lying and being situated in Panola county, Tex., on the east side of Sabine river, a part of the Adam La Grone headright survey, beginning at the southwest corner of tract of land sold to F. Bounds by Adam La Grone on the old La Grone line; thence running north with said league line; thence running north with said Bounds line to the northwest corner of said survey; thence with A. J. La Grone’s line to lightwood stake and a pine marked ‘J L’; thence west so as to include the improvements of James La Grone, deceased; thence south to the league line; thence east to the place of beginning — containing 155 acres of land.”

The description “thence running north with said league line” evidently is an error, and the writer of the deed discovered his error and immediately wrote “thence running north with said Bounds line,” etc., and neglected to strike out the erroneous clause he had just entered in the description.

These probate proceedings were all regular, the sale to Ramsey was duly confirmed, and the deed recorded.

On the 17th day of September, 1862, J. M. Ramsey conveyed the 155 acres, Asa La Grone tract, to P. G. Graves, by warranty deed, for $450, which deed was duly acknowledged, and was duly recorded on the 26th day of January, 1863. In that deed the 155 acres of land is described as follows:

“A part of the Adam La Grone survey, beginning at the southwest corner of a certain tract of land sold to F. Bounds by Adam La Grone, deceased, on the old league line; thence north with the said Bounds line to the northwest comer of said survey; thence north with A. J. La Grone survey to a lightwood stake, and a pine marked ‘J L’; thence west so as to include the improvements of the James La Grone, deceased; thence east to the place of beginning —so as to include 155 acres of land.”

On the 21st day of January, 1880, John F. Graves and P. G. Graves conveyed the 155 acres of land to F. P. Hooper, by warranty deed, the consideration being an exchange of lands. The deed was duly acknowledged, and was recorded on the 3d day of October, 1881. In that deed the 155 acres of land is described by metes and bounds as follows:

“Beginning at a corner on Jackson’s west boundary .line, a stake, a pine brs. due N. W. 18 vrs. marked ‘X’; thence north 230 rods along Jackson’s and J. A. La Grone’s line, a stake, a sweet gum vrs. S. W. 5 vrs. white oak brs. W. 60° - 20 vrs. each marked ‘X’; thence west 101 rods to a corner a stake a dogwood brs. W. 4 vrs. a hickory brs. N. 4 vrs. each marked ‘X’; thence south 230 reds to a corner on Mrs. Hooper’s N. line a stake a pine brs. N. 5 vrs. black gum N. 5 vrs. each marked ‘X’; thence east 101 rods to the place of beginning-containing 155 acres of land.”

It is to be noted here that this is the first description of the land otherwise than it was described by the commissioners appointed to partition the estate of Adam La Grone, deceased, and that this deed is of date January 21, 1880. We might say here also that no one seems to know who'made these field notes, nor when they were made. The parties to this suit agree that this deed intended to convey the 155 acres of land described in the deed from Ramsey to Graves, dated September 17, 1862. It is also agreed that prior to 1906 the heirs of F. P. Hooper made proper conveyance of the 155 acres of land to A. A. Alexander. On the 23d day of May, 1906, A. A. Alexander executed the following deed to Mrs. Julia N. Whitfield:

“Know all men by these presents that I, A. A. Alexander, of said state and county, for the purpose of settling the line of survey made for 155 acres, A. La Grone’s headlight of land in Panola county, Tex., conveyed to me, hereby make, execute, and deliver this deed of release and conveyance; that in running out the lines of said 155 acres it is discovered that the west line conflicts with the E. B. line of a tract owned by Mrs. Julia N. Whitfield, and it is agreed that my 155 acres shall remain as it is at present located and surveyed, and I hereby release and convey .unto her, the said Mrs. Julia N. Whitfield all my right, title, and interest I have or may have in and to the 130-acre tract of same headright lying south of said 155-acre tract; that is, in locating the 155-acre tract it overlaps said Whitfield land as per field notes, and she is to take all interest I have in said 130 acres tract which 130 acre tract is described as follows: [Then follows the field notes.]”

On the same date Julia N. Whitfield made a similar deed to A. A. Alexander, which deed, in addition, contained the following recital:

“In consideration of the settlement of land line and for a deed made to Julia N. Whitfield by A. A. Alexander.”

Alexander testified that it was some two or three years after he bought the 155 acres of land, as described in his field notes, which he claimed, that he found out that his field notes did not describe the 155 acres as it was originally set apart, and that his south line, as he was claiming, was not the south line of the Adam La Grone land. About 1906 Whitfield took a surveyor and went to survey out the. land his wife had bought. He got Tom La Grone, one of the heirs of Adam La Grone, deceased, to go with him, and also got Mr. Alexander and had a surveyor by the name of Hull. The undisputed testimony, both of Whitfield and Alexander, is that in the surveying of the Whitfield land, even as it is described in the deed byJ. L. Booty to A. J. Booty and Jordan, which he executed in 1908, conflicted with the land as described in .the field notes of the Alexander 155 acres, which field notes first appear in 1SS0, and when Whitfield and Alexander so found the undisputed testimony of these two gentlemen shows that they immediately made a trade with each other, satisfactory to each, by the terms of which Whitfield agreed to let Alexander’s north boundary line stand as he (Alexander) understood and wished it to stand, which took a part of the Whitfield land, as described in the Booty deed of 1908, and Alexander agreed to let Whitfield have all of the land south of where he thought and claimed his south boundary line to be, and as he desired his south boundary to stand, and they each made deeds accordingly. When this was done, it put the survey in the form as represented by plat D, and, of course, by these deeds the 130 acres of land was segregated- from the original 600-acre remaining survey of the Adam La Grone half league, which was sold under orders of the probate court, as hereinbefore stated.

Again, an actual calculation of the amount of land contained in the field notes as described in the deed from J. H. Booty, administrator, to A. j. Booty and Jordan, in 1908, shows that such field notes contain only 527 acres of land, and yet these field notes conflict with the field notes as claimed by Alexander. It neither adds to nor takes from the merits of this ease, but the record shows that Whitfield and Alexander paid the taxes on their land each (year on the La Grone grant, and that the La Grones never paid any taxes on any land after the winding up of the estate of Adam La Grone, deceased.

It is clear and certain that when the probate court approved the report of the commissioners appointed to partition the estate of Adam La Grone, deceased, among his heirs, and when they set aside the 155 acres to the assignee of Asa La Grone, the lines of the 155 acres had not been actually surveyed out, for they say to commence at the southwest comer of a certain section of land, etc., and again, when an actual survey of the Adam La Grone half league, and of the different tracts of land conveyed by him, as hereinbefore stated, is taken into consideration, the descriptions called for by the commissioners to partition are not compass calls, but they evidently made the partition and plat of the land, as represented by them, without an actual survey of the 155 acres of land. No one knows when the original field notes of the 155 acres of land, as claimed, and which was awarded to Alexander by the court, were made. The testimony is that they were old marked lines well established. The record shows no authority whatever to any person to make any such field notes. Hence there, can be but one presumption, and that is that some one prior to Alexander segregated out of the Y55 acres of the La 'Grone, as it stood at the time of the partition of the Adam La Grone estate, in a way and in accordance with field notes to suit himself, without considering his joint owner in the La Grone lands. It is also certain that some one made an error in making field notes of the 600-acre tract sold by the administrator of Adam. La Grone, as well as the 155-acre tract, as set aside to Asa La Grone; for the field notes as made by J. H. Booty in 1908 for the 600-acre tract, according to the undisputed testimony of the case, conflict with the field notes of the 155-acre tract as claimed by Alexander. The orders and decrees of the probate court in the Adam La Grone estate in 1862 show conclusively to our minds that all of the Adam La Grone estate was legally disposed of by the administrator of said estate, .and title passed out of the La Grones, except the 155 acres, which was set apart to the widow 'of Adam La Grone for use during her life, and by those decrees John L. Booty and the assignee of Asa La Grone 'became owners in common of the remainder of the Adam La Grone estate, and up until the death of Asa La Grone, about 1867, John L. Booty and his heirs, and the assignee of Asa La Grone remained such owners in common, and this is true as to John L. Booty, his heirs and assigns, on down until the field notes were made of the 155 acres, as claimed by Alexander, to say the least of it. We do not know when these field notes were made, but it is certain that they were made after the estate of Adam La Grone was finally wound up by his administrator ; for in his administrator’s deed to the 155 acres of land he describes it as it was described by the commissioners appointed in the Adam La Grone estate, who set apart this 155 acres of land to Asa La Grone, and which was disposed of in the final acts of W. A. La Grone, administrator of the estate of Adam La Grone, deceased.

The effect of the decree setting apart the 155 acres to the assignee of Asa La Grone was to give him an interest consisting of 155 acres of land in the Adam La Grone estate, so as to include his improvements, and the remainder of the Adam La Grone estate, which was described as 600 acres, as here-inbefore stated, would belong to John L. Booty. Waterhouse v. Gallup, 178 S. W. 774.

We think under the orders of the probate court of Panola county, Tex., hereinbefore set out, all of the land belonging to the Adam La Grone estate was legally disposed of by the administrator of the estate of Adam La Grone, deceased, and the title thereto passed out of Adam La Grone, and therefore his heirs had no legal claim to any lands theretofore belonging to said estate, which were disposed of by the administration, and the able trial court erred in rendering Judgment for the 130 acres of land to the heirs of Adam La Grone. Weems v. Masterson, 80 Tex. 45, 15 S. W. 590; Davis v. Touchstone, 45 Tex. 490; Hermann v. Likens, 90 Tex. 448, 39 S. W. 282; Macmanus v. Orkney, 91 Tex. 29, 40 S. W. 715.

It seems to be a well-settled proposition of law in this state, since the case of Wofford v. McKinna, 23 Tex. 36, 76 Am. Dec. 53, that the effect to be given a deed which conveys a certain number of acres out of a larger survey, even where the grant restricts the interest of the grantee to a certain part of a larger survey, is that the grantee becomes by his deed a tenant in common with the owner of the larger tract, whose interest is represented 'by a fraction whose denominator is a number equal to the number of acres in the larger tract and whose numerator is a number equal to the number of acres conveyed. See Nye v. Moody, 70 Tex. 434, 8 S. W. 606; Dohoney v. Womack, 1 Tex. Civ. App. 354, 19 S. W. 883, 20 S. W. 951; Waterhouse v. Gallup, 178 S. W. 776.

In Alexander’s testimony he says that he never claimed any other land than that described in his field notes. Alexander pleaded the several statutes of limitation, and the indications are that he could prove limitation to the lands he claims, though it is not impossible that he might be precluded on this plea under his own testimony as to mistaken identity of lines. However, it is not necessary to discuss this feature of the case, as we view it, but we mention it because ap-pellees place great stress and importance upon Alexander’s testimony that he claimed only the land included in his field notes, and ‘therefore he could not convey Whitfield anything. We think it would not matter whether Alexander claimed the land running to the south boundary line of the La Grone half league. The undisputed evidence shows that Alexander’s land, as he claimed, and Whitfield’s land, as it was described in the supply deed, conflicted, and as has been heretofore stated, the effect of the conveyances by the administrator of the Adam La Grone estate was to convey all of the land remaining of the Adam La Grone estate at his death, and, so far as the La Grones are concerned, Whitfield and Alexander are owners in common of 755 acres in the La Grone half league sold by the administrator, and that therefore they had a right to partition this land between them as they saw fit, regardless of how their field notes may have read or as to what specific land they may have theretofore claimed on the La Grone half league, and when they did so, and such partition gave to Whitfield 130 acres of land which was segregated from the original tract owned by him and his predecessors in title from the La Grone estate, did not vest the title to the 130 acres back into the heirs of Adam La Grone. There are several assignments of error in this case, but we have deemed it-necessary to deal with but one, which is to the effect that the trial court erred in rendering judgment for 130 acres of land in favor of the heirs of Adam La Grone, because the undisputed evidence shows that all title to the land in controversy had been divested out of Adam La Grone and his heirs, and was vested in Whitfield.

Whitfield disclaimed as to the 155 acres of land, so, other than as has been discussed, it was not in consideration. By the testimony of Hon. A. J. Booty, and the pleadings in the case, it is clearly shown that Booty and Jordan are setting up no claim to the land in question; in fact, Judge Booty testified that he and Jordan sold all of the land which they bought from the administrator of the estate of J. L. Booty, deceased.

Under our view of the case, judgment should have been rendered in the trial court in favor of Whitfield for the land described in his pleadings, both the 527-acre tract, and the 130-acre tract, as described in the deed from Alexander to Mm, and the evidence being plain and undisputed, and, as we view the case, no evidence could be produced that would change the legal effect and status of the parties, therefore the case should be rendered by this court, and it is so ordered.

Judgment is therefore rendered here in favor of Julia N. AVhitfield for the 527 acres of land .as described in her deed from Julia C. Whitesides, and the 130 acres as described in the deed from Alexander to Julia N. Whitfield, subject to and in accordance with the partition as made by Wihitfield and Alexander in their quitclaim deeds hereinbefore mentioned.

Reversed and rendered.
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author: DUNKLIN, J.

text:
    ROSCOE, S. & P. RY. CO. v. TAYLOR.
    (No. 8490.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 16, 1916.
    Rehearing Denied Jan. 20, 1917.)
    1. Appeal and Error &wkey;al067 — Review — Harmless Error — Refusal of Instruction.
    In an action for personal injuries to a servant, a refusal to give defendant’s requested instruction, in which the converse of plaintiff’s contention of negligence was submitted, where other instructions did not cover the point, in view of the fact that the evidence of negligence was meager, was reversible error.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. &wkey;>1067; Trial, Cent. Dig. § 475.]
    2. Damages <&wkey;46 — Expenses Incurred — Payment.

      / The fact that plaintiff had not paid his doctor’s bill at the time of trial will not preclude proof of reasonable value of such services as a part of his damages, if plaintiff was legally liable for such expenses. \
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 99, 251; Dee. Dig. <&wkey;>46.]
    3. Damages &wkey;j50 — Mental Suffering.
    In an action for personal injuries, plaintiff could recover damages for mental suffering, although there was no proof that his injuries resulted in permanent and continued disability.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 100, 255, 257-259; Dec. Dig. &wkey; 50.]
    4. Negligence <&wkey;119(6) — Contributory Negligence Aggravating Injury — Pleading.
    Although evidence tended to show contributory negligence of plaintiff in failing to properly care for his injury, which aggravated it, the defendant could not invoke this as a defense, where contributory negligence was not pleaded.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 202, 210; Dec. Dig. <&wkey; 119(6).]
    5. Appeal and Error &wkey;>263(l) — Necessity of Exceptions.
    Where, on the trial, defendant did not take exceptions to the court’s charge, it will not be reviewed on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1516; Dec. Dig. &wkey;>263(l).]
    Appeal from Nolan County Court; John H. Cochran, Jr., Judge.
    Action by J. M. Taylor against the Roscoe, Snyder & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Yonge & Yonge, of Snyder, for appellant. R. N. Grisham, of Sweetwater, for appellee.
   DUNKLIN, J.

J. M. Taylor, while employed as a section hand by the Roscoe, Snyder & Pacific Railway Company, sustained an injury to one of his fingers and instituted this suit to recover damages therefor, which resulted in a judgment in his favor, from which the railway company has appealed.

At the time of his injury plaintiff was assisting in unloading cross-ties, and he and Dan Worley, another section hand, in obedience to instructions from J. W. Green, the section foreman under whom they were working, had picked up one of the ties preparatory to throwing it from the car; plaintiff holding one end of the tie and Worley the other. While so holding the tie, the end of the same which was held by the plaintiff came in contact with the end of another tie upon the car in such manner as to injure one of his fingers. It was alleged in plaintiff’s petition that at the time he and Wor-ley picked up the tie, the train was in motion, and that it came to a sudden stop on account of which the tie was caused to swing against the other tie; and the theory upon which a recovery was sought was that the foreman was guilty of negligence in directing the car to be unloaded while the train was in motion, that the sudden stopping of the train under the circumstances also constituted negligence, and that the negligence in one or both of those respects was the proximate cause of the injury. The trial judge submitted those issues of negligence as a predicate for the verdict returned by the jury.

The defendant complains of the refusal of its requested instruction No. 3, in which the converse of plaintiff’s contention of negligence was submitted in an affirmative form upon a grouping of the facts applicable to that defense, and we are of the opinion that the court erred in refusing to give the same, or some instruction equivalent thereto, especially in view of the fact that the testimony upon which plaintiff relied to support his charge of negligence was at best very meager. In his main charge the trial judge failed to present in an affirmative manner the contention of the defendant that no negligence had been proven further than to say in one paragraph that, if plaintiff had failed to make out his case by a preponderance of the evidence, the verdict should be in favor of the defendant, and in another paragraph that the same verdict should be returned if plaintiff was injured “by reason of his own negligence, if he was injured, and without negligence on the part of the defendant, its agents, and other employés.” G., C. & S. F. Ry. Co. v. Shieder, 88 Tex. 152, 30 S. W. 902, 28 L. R. A. 538; M., K. & T. Ry. Co. v. Mc-Glamory, 89 Tex. 635, 35 S. W. 1058; Wells Fargo Express Co. v. Benjamin (Sup.) 179 S. W. 513; F. W. & D. C. Ry. Co. v. Gatewood, 185 S. W. 932, and other authorities there cited. For the error indicated the judgment must he reversed, but in view of another trial other questions will be discussed.

The fact that plaintiff had not at the time of the trial paid his doctor’s bill would not preclude proof of the reasonable value of the services so rendered as part of his damages, if he had become legally liable for such expenses.

It is too well settled to need the citation of authorities that there is no merit in the contention, presented in one of appellant’s assignments, to the effect that plaintiff could not, in any event, recover for mental suffering in the absence of proof that his injuries resulted in permanent disability and continued for a long time.

Even though there had been testimony tending to show contributory negligence on the part of the plaintiff in failing to properly care for his finger after the injury, and that such failure aggravated such injury, the defendant was in no position to .invoke the same as a defense, since it presented no plea urging such contributory negligence.

We are cited to no exception taken on the trial by the defendant to paragraph 8 of the court’s general charge to the jury, and have found none, and we therefore sustain appellee’s objection to a consideration of appellant’s twelfth assignment of error, in which complaint is made of that paragraph of the charge. G., T. & W. Ry. v. Dickey (Sup.) 187 S. W. 184.

We will say further that we have grave doubt of the sufficiency of the allegations contained in plaintiff’s petition with respect to the negligence relied upon by him as a basis for recovery. While no proper assignment is presented raising that question, we deem it not amiss to call attention to it, to the end that the pleading may be amended upon another trial.

For the error indicated, the judgment is reversed, and the cause remanded.
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text:
    WARDLAW et al. v. SAVAGE.
    (No. 8592.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 23, 1916.
    Rehearing Denied Jan. 27, 1917.)
    1. Couets &wkey;480(l) — Conflicting Jueisdiction — Injunction.
    Every judge is independent in his own jurisdiction, and cannot be restrained in the discharge of his functions by injunction of another court.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1270, 1271, 1274-1278; Dec. Dig. &wkey; 480(1).]
    2. Couets <&wkey;480(2) — Conflicting Jubisdiction — Injunction.
    A judgment by a county court duly constituted under Vernon’s Say les’ Ann. Civ. St. 1914, art. 1799, granting receivership in action by a landlord against his farm tenant, where it had jurisdiction over the amount and character of the action and power to grant relief prayed for by virtue of articles 1771, 1772, 1800, 1802, and 2128, was valid, and the district court had no jurisdiction under article 4653 to enjoin its enforcement.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 1272; Dee. Dig. &wkey;480(2).]
    Appeal from 'District Court, Tarrant County ; R. B. Young, Judge.
    Suit by C. H. Savage against V. S. Ward-law and others. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded, with instructions to dismiss.
    Mays & Mays, of Ft. Worth, for appellants. Holder & Eaton and Lassiter, Harrison & Rowland, all of Ft. Worth, for ap-pellee.
   BUCK, J.

February 5, 1916, V. S. Ward-law, being the owner of a stock farm situated in Tarrant county, entered into a written contract for one year with O. H. Savage, by the terms of which Savage was to take charge of said farm and manage and operate it. The farm was stocked with cows, sheep, hogs, poultry, etc., and by the terms of the contract Savage was to care for said stock, cultivate the tillable land, - keep the fences stock proof, keep the barn, feed lots, etc., in good and sanitary condition, and to furnish the services of one extra man. It was agreed that Savage was to receive one-half interest in all crops raised, also one-half of all live stock, poultry, eggs, milk, etc., raised or produced. It was provided in said written instrument that:

“If crops or live stock should be neglected, or manager (Savage) should get behind with work, owner reserves the right to have same corrected at expense of parties hereto. It is agreed that at the termination of this contract said manager is to return to owner the same number and kinds of live stock that were originally, turned over to him, unless lost by death or sold.”

On May 1,1916, Wardlaw filed in the county court of Tarrant county for civil cases a suit against Savage, in his petition setting forth the general terms of the contract aforementioned, and the duties thereunder devolving upon Savage, and alleging that Savage had shown himself to be incompetent and careless and negligent in the care of the live stock on the premises, that through such alleged incompetence and negligence on the part of Savage the stock on the place had been and were being neglected and injured, and that from said causes “the work on the farm is far behind.” It was further alleged that the business conducted under the terms of the aforesaid contract “amounted to a partnership affair”; that said Savage had violated the terms of his-contract in various asserted ways and respects. Plaintiff prayed that a receiver be appointed, and that defendant be enjoined. from Interfering with said receiver in the performance of his duties. The petition further alleged:

That “the farm, stock, and in fact all of said property, is the property of the plaintiff, and that defendant has no right or interest therein, except to carry out the terms of the contract, and that said property as well as all of the proceeds thereof, is in danger of being lost, or materially injured, unless a receiver is hereby appointed, and that said contract and its proceeds is of the reasonable value of $750.”

On June 10, 1916, Savage filed a petition in the Forty-Eighth district court, complaining of Wardlaw and L. E. Chapman, in which petition he alleged the making of a contract between him and Wardlaw on February 5, 1916, and attached a copy thereof to the petition. He alleged that under said contract he took charge of defendant Wardlaw’s farm and proceeded to perform the duties and fulfill the agreements stipulated in said contract, and that he had continued so to do for a period of about 90 days, and until he had been prevented from a further performance by the interference of Wardlaw; that Wardlaw had failed and refused to furnish to plaintiff the proper facilities, equipment, and help for the management of said farm and business and had attempted to place another man in charge of said farm and business; that upon plaintiff’s refusal to permit this attempted interference and substitution defend-ant Wardlaw had filed in the county court of Tarrant county for civil cases a suit asking for the appointment of a receiver and the granting of a writ of injunction; that said suit was not brought in good faith, but was brought and prosecuted for the fraudulent purpose of injuring plaintiff and interfering with his performance of the terms of the contract made. It was further alleged that upon the filing of the suit in the county court, said court proceeded to have a hearing on the question of an immediate appointment of a receiver, and did, on May 3, 1916, make and enter its order granting in full the prayer of Wardlaw’s petition, and appointed L. E. Chapman receiver, directing said Chapman, upon his qualification, to take charge and keep possession and control of all said premises, crops, property, and business, and manage the same to the complete exclusion of plaintiff, and to conduct such business and management until the full expiration of the time covered by said written contract between Wardlaw and this plaintiff; that thereupon said Chapman, acting under said alleged void and illegal order of the county court, made his bond as receiver in the sum of $2,000, and proceeded to take possession of the premises and property mentioned, and that said receiver and Wardlaw had ever since been in complete possession thereof; that, unless prevented by the district court, the said receiver and Wardlaw would deprive plaintiff of all his rights under said contract, and of the profits he was entitled to derive from the same and would have derived therefrom if he had not been molested. It was alleged that the county court was without jurisdiction to hear and determine the suit filed therein, for the alleged reason that the amount involved exceeded $1,000, and that the petition ’ in the county court failed to show that the amount involved did not exceed $1,000.

Wherefore plaintiff prayed that the court issue its injunction restraining and preventing said Wardlaw and Chapman, their attorneys, agents, and servants, from remaining any longer in possession of said premises, business, etc., and restraining said defendants, their attorneys, agents, etc., from further prosecuting the aforesaid suit in the county court for civil cases; that plaintiff have judgment setting aside and declaring null and void for want of jurisdiction the said order of the county court appointing defendant Chapman as receiver.

The petition of plaintiff herein having been presented to the judge of the Forty-Eighth judicial district, the judge thereof ordered notice to be issued to the defendants to appear before him on June 27, 1916, to show cause why the injunction should not be issued as prayed for.

Defendants Wardlaiw and Chapman in their answer and motion resisting the temporary injunction pleaded the pendency of the suit in the county court involving the same persons and subject-matter as in this suit, and alleged that the county court was in the proper exercise of its jurisdiction in entertaining the suit filed therein by Ward-law, and in appointing the receiver; that said order and judgment was entered in the county court after due notice to all parties concerned and after a full hearing thereon; that said judgment did not appear to be void upon its face nor were said .proceedings void, but, on the contrary, appeared to be regular, and in fact were regular in any and all respects. Wherefore defendant pleaded to the jurisdiction of -the district court.

On June 28, 1916, the district court granted the temporary injunction prayed for by plaintiff', enjoining the defendants, their attorneys, agents, and servants, from remaining longer in possession or control of the farm aforesaid and from interfering in any way whatever with the plaintiff’s possession and control of the same, and from further prosecuting the suit in the county court heretofore mentioned. From this judgment the defendants appeal.

In order for us to determine the correctness of the action of the district court, it will be necessary for us to decide whether the county court for civil cases had authority to entertain the suit filed therein and grant the relief which by its order it sought to enforce. If it did not have such authority and jurisdiction, then the judgment of said court was void, and against its attempted enforcement injunction would be appropriate relief. Glass v. Smith, 66 Tex. 548, 2 S. W. 195; Tucker v. Williams, 56 S. W. 585; Barber Supply Co. v. Freeze, 96 Tex. 513, 74 S. W. 303; Parker v. Watt, 178 S. W. 718. But if, on the other hand, the county court had jurisdiction over the cause of action and over the parties to the suit, injunction would not lie to prevent the attempted enforcement of such orders and judgment. Article 4653, Vernon’s Sayles’ Texas Civil Statutes; Jones v. Stallsworth, 55 Tex. 138; G., C. & S. F. Ry. Co. v. Cleburne Ice & Cold Storage Co., 37 Tex. Civ. App. 334, 83 S. W. 1100; Hammack v. Schley, 186 S. W. 872.

As was said in Jones v. Stallsworth, supra, quoting from High on Injunctions:

“Every judge is supreme and independent in his own sphere, and cannot be restrained in the discharge of his functions by the process of injunction.”

Was the judgment of the county court void? (1) It was rendered by a duly constituted court. Article 1799, Vernon’s Sayles’ Texas Civil Statutes. (2) It had jurisdiction over the amount as alleged in the petition to be involved, to wit, $750. (3) It had jurisdiction over the character of action and power to grant the relief prayed for. Articles 1771, 1772, 1800, 1802, 2128, Vernon’s Sayles’ Texas Civil Statutes. The district court is without jurisdiction to enjoin the enforcement a judgment of the county court, which, even though erroneous, is not void. Cotton v. Rhea, 106 Tex. 220, 163 S. W. 2. The allegations in the plaintiff’s petition in the county court as to the amount in controversy were not denied or questioned in that suit, and in fact, so far as the record discloses, no answer was filed by the defendant in said suit, the plaintiff in the instant case, no motion was made to vacate the receivership appointed by the county court, and no pleading to dismiss said cause for want of jurisdiction of the county court to entertain and proceed with said cause in said court. The allegations of plaintiff in the instant case, ap-pellee herein, as to want of jurisdiction on the part of the county court, were denied by the appellants under their sworn pleadings. In fact, the county court petition, made an exhibit to plaintiff’s petition in the instant case, affirmatively shows the amount involved to be within the jurisdiction of the county court. Hence we hold that the district court erred in granting the injunction prayed for and in overruling appellant’s plea to the jurisdiction.

In the case of G., C. & S. F. Ry. Co. v. Cleburne Ice & Cold Storage Co., supra, the Court of Civil Appeals for the Fifth District, in deciding that the district court of Johnson county had no jurisdiction to enjoin a suit and proceeding pending in the county court of said county, said:

“Then was there power in the district court to issue the writ of injunction in this cause? We think not. In the case of Railway Co. v. Dowe, 70 Tex. 1, 6 S. W. 790, and Id., 70 Tex. 5, 7 S. W. 368, our Supreme Court held that, under the present Constitution of this state, the district court had no power to enjoin a judgment of the justice of the peace or county court. District courts have general jurisdiction within the limitations prescribed by the Constitution which created them. The Constitution of 1845 gave to the District Court superintendence over inferior tribunals, but the present Constitution only gives appellate jurisdiction and general control over the county court in probate and guardianship matters. The mention of jurisdiction in reference to these matters excludes jurisdiction of the district court as to all other matters not mentioned. * * * But it is insisted that the county court is not enjoined; that the action for injunction is only against the plaintiffs in those suits. While this is true, the effect of the injunction is to prevent the county court from proceeding in the trial of said suit, for the plaintiffs therein are the movers in said proceedings, and, as they are rendered unable from acting, the jurisdiction of the court is infringed upon.” Rains v. Reasonover, 46 Tex. Civ. App. 290, 102 S. W. 176; Jennings v. Munden, 46 Tex. Civ. App. 520, 102 S. W. 945.

For the reasons indicated, the judgment of the district court is reversed, and the cause remanded, with instructions to dismiss.
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author: RAINEY, C. J.

text:
    FRED MERCER DRY GOODS CO. v. FIKES.
    (No. 7657.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 13, 1917.
    Rehearing Denied Feb. 17, 1917.)
    1. Trial c&wkey;351(l) — Submission on Special Issues — Delay oe Motion.
    Counsel must avail himself of the privilege to submit on special jury issues within a reasonable time after evidence is closed and request is properly refused, where it was made after court had prepared general charge, and time had been given for counsel to prepare special charges.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 829, 836.]
    2. Trial &wkey;>273 — Instructions—Objections.
    Where the court recessed for 10 minutes, prepared its charge in that time, and allowed 30 minutes to counsel for preparation of objections and special charges, the refusal of further time will not be held an abuse of discretion, where the objections or their nature which appellant wished to prepare are not stated in the record, and no showing is made that appellant was injured.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 680-682.]
    3. Appeal and Error <&wkey;544(l) — Review — Preservation oe Questions — Bills oe Exception.
    Assignments on the refusal to submit special charges cannot be considered in the absence of bills of exception in the record thereto.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2412.]
    Appeal from Rockwall County Court; J. W. Reese, Judge.
    Action by the Fred Mercer Dry Goods Company against B. B. Fikes. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    T. B. Ridgell, of Rockwall, for appellant. A. H. Mount, of Dallas, for appellee.
   RAINEY, C. J.

Appellant sued appellee in the justice court on a note and interest and attorney’s fees, allowing certain credits. Ap-pellee answered that he signed the note and mortgage for the purpose of indemnifying Fred Mercer and G. W. Monroe, who on January 11, 1913, signed his appeal bond in a suit with W. J. Trice; that he was successful, and said sureties were released from the bond; also pleaded in reconvention for $180 damages.

Appellant relied that at the time appellee owed a note for $109.60 and an account of $16; that appellee traded with appellant during the year, which increased the amount of said note, and after allowing the credits the balance of said note is due; that appellee made payments on said note and never protested until about the time suit was brought.

In the justice court appellee was rendered judgment for $15 and for the recovery of the mules, which had been sequestrated. Appellant appealed to the county court, and before a jury appellee again recovered. An appeal was then taken by appellant to this court.

Conclusions.

1. The court did not err in refusing to submit the case on special issues. To the refusal of the court to submit the case on special issues a bill of exception was reserved by appellant, to which the court appended the following explanation, to wit:

“When the evidence was finished, the court recessed to prepare its charge. No request was made by either party to submit the case on ‘special issues.’ I requested the attorneys to accompany me to my office and prepare their exceptions to the charge if they desired. Plaintiff’s attorney accompanied me to my office, but, the charge not being completed, did not wait. Within ten minutes I had completed my charge and delivered it to the attorneys for both sides. Thirty minutes afterwards I called court and demanded of the attorneys that we proceed with case. At this time there was no request that the ease be submitted upon special issues. The plaintiff’s attorney had prepared and submitted three special charges to be submitted in connection with the court’s main charge. When the court refused further time, plaintiff’s attorney then requested that the case be submitted upon ‘special issues.’ The court refused the request for the reasons here stated and as stated in the bill. J. W. Reese, County Judge.”

We are of the opinion that the request of appellant to submit on special issues came too late. An attorney has the right to have the case submitted 'on, special issues under the statute, but he must avail himself of that privilege within a reasonable time after the evidence is closed, and not wait until the court has prepared a general charge and time been given for counsel to prepare special charges, and then demand that special issues be given. Under the proceedings as detailed counsel for appellant had waived his privilege and he cannot now be heard to con> plain.

2. Error is assigned that sufficient time was not allowed by the court for attorneys to prepare objections to the court’s main charge and prepare special charges. After the evidence was heard the court took a recess to prepare his charge, which took about 10 minutes, when it was presented to counsel, and 30 minutes given for them to prepare objections and special charges. Counsel for appellant prepared three special charges, which were handed to tire court, and two objections, and then asked for further time to prepare further objections. This the court refused, and stated: “The trial of the case must proceed.” Plaintiff’s attorney stated he had not stopped a minute and had not had time to finish. The court refused to permit attorney to take the papers out of the courthouse to prepare objections, but stated time would be given in the courtroom. The charge of the court is short, having required only 10 minutes to write it by the court. What further objections, if any, or what was the nature of the further objections appellant’s attorney wanted to prepare are not stated, and do not show that appellant suffered affiy injury. This being the case, we are not prepared to say the court abused its discretion.

3. There are no bills of exception in the record to the refusal of the court to submit special charges requested by appellant; therefore the assignments based on such refusal cannot be considered by this court. Railway Company v. Bland, 181 S. W. 504.

4. The evidence was conflicting, but there is sufficient probative force to support the verdict for appellee.

5. Finding no reversible error in the record, the judgment is affirmed.
      <S&wkey;For other oases see same topic and KEY-NUMBER m all Key-Numbered Digests and Indexes


author: ELY, C. J.

text:
    SABINAL NAT. BANK v. BRYANT et al.
    (No. 5772.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 17, 1917.
    Rehearing Denied Feb. 14, 1917.)
    BANKRUPTCY t&wkey;421(1) — DISCHARGE— “PROVABLE Debt.”
    Where a debtor had deposited in a bank as security a note, executed by another and payable to him, the collection and appropriation by him of a certain sum due on the note gave rise to a debt to the bank, which, being- fixed in amount and founded on an implied contract to pay over such moneys as collected, was discharged by the debtor’s bankruptcy as a “provable debt,” as defined in section 63 of the Bankruptcy Act (Act July 1, 1898, c. 541, 30 Stat. 562 [U. S. Qomp. St. 1913, § 9647]).
    [Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 772; Dee. Dig. &wkey;421(l).
    For other definitions, see Words and Phrases, First and Second Series, Provable Debt.]
    Appeal from District Court, Uvalde County; R. H. Burney, Judge.
    Action by the Sabinal National Bank against Albert Bryant and others. From judgment for defendants, plaintiff appeals.
    Affirmed.

      L. Old, of Uvalde, and H. O. King, of Sabinal, for appellant. Jno. W. Hill, of Uvalde, and J. E. Carl, Geo. C. Clifton, and P. H. Swearingen, Jr., all of San Antonio, for appellees.
   ELY, C. J.

Appellant instituted suit against Albert Bryant, Sr., A. J. Kessler, and O. B. Kessler to recover certain money alleged to be due it. At tbe trial appellant agreed that judgment be rendered in favor of Bryant and A. J. Kessler, and the court rendered judgment in favor of O. B. Kessler because of his discharge in bankruptcy.

According to the testimony of appellant, O. B. Kessler, who will be called appellee, was indebted to appellant in the sum of $4,000, evidenced by a promissory note; that appellee deposited with appellant two promissory notes for respectively $800 and $700 as collateral security, said notes having been executed by Bryant. After depositing the notes with appellant, appellee collected $500 on the $700 note and appropriated it to his own use and benefit. Tie then, at his own request, was declared a bankrupt, and appellant filed his claim for $4,000 with the referee, but made no mention of the two notes left as collateral security. Neither were they returned as assets of appellee. He was aft-erwards duly discharged from bankruptcy. Appellee swore, and it was not contradicted, that he credited Bryant’s account in his store with the $500 collected by him. Appellee was discharged from bankruptcy on October 27, 1913. Appellee never let appellant know that he had collected $500 from Bryant. Appellant admitted on the trial that the two notes h'eld by it as collateral security were barred by limitation, and it sought a recovery against appellee on the ground that he had fraudulently appropriated the $500, and consequently the discharge in bankruptcy did not discharge that debt.

Appellee, in -his answer, admitted the collection and appropriation of the proceeds of the $700, and that he turned such proceeds into the bankrupt court as part of his assets. The whole of the testimony showed that he only collected $500 of the $700 due on the note. Roy J. Davenport, cashier and witness for appellant, did not claim in his testimony that appellee had collected more than $500, and appellee swore that he had collected only $500. That testimony contradicted the written plea, and it seems that the court accepted the testimony of the witness rather than the pleading. Let it be admitted, however, that th'e pleading controlled, and that the judge erred, as claimed in the first assignment of error, in finding that only $500 was collected; still appellant is in no better position because the whole matter hinges on whether appellee was discharged from the debt or not.

We do not doubt that the debt was a provable one because it was a fixed sum of money which' was converted, and not of such an uncertain nature that proof would be required to ascertain the damages. The debt for the money collected was fixed, determined, settled, and absolutely owing, without any condition or incumbrance. The claim is] founded upon an implied contract of appel-lee to pay over any money that he might collect on the $700 note to appellant. Section 63, p. 3447, U. S. Comp. Stats, of 1901.

In the case of Crawford v. Burke, 195 U. S. 176, 25 Sup. Ct. 9, 49 L. Ed. 147, the Supreme Court of the United States held that in a case of conversion the account was provable and consequently the discharge in bankruptcy was a discharge of the debt. The court also said:

“It is entirely clear that under this section a discharge was not denied to the bankrupt by reason of debts fraudulently contracted, but only to such as were created by his defalcation as an officer, or while acting in a fiduciary capacity.”

The principles enunciated in the Crawford-Burke Case were reiterated in the case of Tindle v. Birkett, 205 U. S. 184, 27 Sup. Ct. 493, 51 L. Ed. 762. The same principles have been enunciated in Shoe Co. v. Laird Co., 212 U. S. 445, 29 Sup. Ct. 332, 53 L. Ed. 591; Clarke v. Rogers, 228 U. S. 534, 33 Sup. Ct. 587, 57 L. Ed. 953, and Michelin Tire Co. v. Hearn, 188 S. W. 943.

As stated in Williams v. U. S. F. & G. Co., 236 U. S. 549, 35 Sup. Ct. 289, 59 L. Ed. 713:

“Within the intendment of the law provable debts include all liabilities of the bankrupt founded on contract, express or implied, which at the time of the bankruptcy were fixed in amount or susceptible of liquidation.”

It is clear that the claim for the $500 against appellee grew out of an implied contract to pay over the money collected by him on his note deposited by him as collateral security to appellant, and it was certainly fixed in amount.

The judgment is affirmed.
      <S&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    WILLIAMS v. MIDLAND NAT. BANK.
    (No. 653.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 25, 1917.
    Rehearing Denied Feb. 15, 1917.)
    1. Principal and Surety &wkey;>101(6) — Alteration of Instrument — Effect as to Surety — “Material Alteration.”
    Changing a note to bear interest from maturity instead of from date is a “material alteration,” and, where made after signature of surety without his knowledge or consent, renders the note unenforceable as to him, notwithstanding that such alteration was favorable to the surety.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. § 176.
    For other definitions, see Words and Phrases, First and Second Series, Material Alteration.]
    2. Principal and Surety <&wkey;129(3) — Alteration. oe Instruments — Ratification by Surety.
    Where a note was altered by changing it to bear interest from maturity instead of from date without knowledge or consent of surety, a letter of surety, in response to a request for payment written without knowledge of the alteration, cannot render the surety liable as for a ratification of the alteration.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. § 367⅛.]
    3. Principal and Surety <&wkey;101(6) — Alteration op Instruments — Liability op Surety.
    A surety on a note released from liability as indorser by reason of a material alteration without his knowledge or consent, who received none of the consideration for the note, cannot be held liable on any theory under the common counts, although the principal is still liable on the debt, notwithstanding the alteration of the instrument.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. § 176.]
    Appeal from Midland County Court, Earl Anderson, Judge.
    Action by the Midland National Bank against John R. Williams and another. From a judgment for plaintiff, the defendant named appeals.
    Affirmed in part and reversed and rendered as to appellant.
    Paul P. Steed, of Post, and Chas. L. Black, of Austin, for appellant. Chas. Gibbs, of Midland, and E. M. Whitaker, of El Paso, for appellee.
   HIGGINS, J.

J. L. Robinson applied to appellee for a loan of $750, stating that appellant, AVilliams, would be his surety. Later he returned to the bank with a note for that amount bearing 10 per cent, interest from date signed by himself and appellant. The bank accepted the note and made the loan, but when it did so, its cashier stated to Robinson that the note was in wrong-form; that their notes bore interest from maturity instead of from date. The cashier thereupon changed the note so as to make the same bear interest from maturity, and Robinson then paid the interest in advance. This alteration was made without the knowledge or consent of Williams, whose relation to the note and loan was simply as surety for Robinson. This relationship was known to the bank. He received no part of the money loaned by the bank. The note became due and was not paid by the principal. Thereafter appellee wrote Williams this letter:

“We would certainly like to know what you want to do about the $750.00 note of J. L. Robinson on which you are also signor.”

In reply thereto, Williams wrote:

“Replying to yours of the 12th inst. I respectfully ask you to give me about ten days’ time as I could not possibly pay that note off to-day and, of course, you realize that when I pay it, it is a clear loss to me and right now I can’t stand such a loss, but if you will not file suit on the note I will write you next week or come to see you. Hoping this is not asking too much of you, I am, Very truly yours.”

At the time he wrote this letter, Williams was unaware of the alteration which had been made in the note. This suit was to recover upon the note. The petition was in two counts, the first declaring upon the note; the second reads:

“That on or about the 17th day of November, 1914, it loaned the defendant J. L. Robinson the sum of $750 for a period of six months from said date. That said defendant accepted said loan and agreed to pay plaintiff said sum of money when due; that said defendant paid the interest on said loan for six months in advance, and agreed to pay interest thereon at the rate of ten per cent, per annum if said loan was not paid when due. That the defendant John R. Williams, as surety, has agreed in writing to pay the said debt, and thereby the defendants have both become bound to pay the plaintiff’s said debt. That said debt is long past due and unpaid, and plaintiff prays judgment against the defendants jointly and severally for the principal and interest due upon its said debt and for all other relief, general and special, legal and equitable, to which it may be entitled.”

The facts are undisputed, and are as stated above. Certain special issues were submitted, and upon the answers thereto of a jury, judgment was rendered against Robinson and Williams. Williams prosecutes this appeal, assigning as error the refusal of a requested peremptory instruction in his favor. The assignment is sustained. The alteration in the note was material, and it is no answer to the plea of alteration that its operation was favorable to the surety. 2 Daniel on Neg. Insts. (6th Ed.) §§ 1375-1384, 1385; Coburn v. Webb, 56 Ind. 96, 25 Am. Rep. 15; Franklin Ins. Co. v. Courtney, 60 Ind. 134; 2 Corpus Juris, 1174. The effect of the alteration without Williams’ consent released him from liability on the note. Adams v. Faircloth, 97 S. W. 507; Otto v. Halff, 89 Tex. 384, 34 S. W. 910, 59 Am. St. Rep. 56; Bohn v. Burton-Lingo Co., 175 S. W. 173.

The letter of‘Williams quoted above did not impose any liability upon him under either count. If it could have had any effect, it would have been as a ratification of the alteration, and it could not be so treated, because he wrote the same without any knowledge of the alteration. 1 Corpus Juris, 1258; Kennedy v. Bank, 18 Pa. 347; Fraker v. Cullum, 21 Kan. 555; McMillan v. Hefferlin, 18 Mont. 385, 45 Pac. 548; Cutler v. Rose, 35 Iowa, 456.

Williams, being a mere surety on tbe note and having received none of the consideration for the note and being liable to the bank only by the terms of the note, cannot be held liable independent of the note on any theory that he received the original consideration. The rule is well settled that the surety is not liable on common counts for the money received by the principal where the note has been materially altered. 2 Corpus Juris, 1181; 2 Am. & Eng. Ency. Law, 203. In Otto v. Halff, supra, and in Baldwin v. Haskell National Bank, 104 Tex. 122, 133 S. W. 864, 134 S. W. 1178, it was held that, where a promissory note is materially altered without fraudulent intent, the holder of the note may, notwithstanding the alteration, recover on the antecedent indebtedness represented and evidenced by the note. But this rule applies only against parties who are liable for such indebtedness independent of the altered instrument. It does not apply against sureties, indorsers, and other persons so situated who do-not receive the consideration for which the altered instrument was given, or are not liable for the antecedent indebtedness represented by the instrument. 2 Corpus Juris, 1181, says:

“The common counts are not available where the relation of the parties is not such as to imply any such liability; and, where a writing constitutes in itself the only obligation existing against the promisor, all remedies thereon are lost by its material alterations, as in the case of a surety.”

To the same effect is the rule stated in 2 Am. & Eng. Ency. of Law, p. 203, and this is in conformity with all the authorities.

This must have been noted by the court in Otto v. Halff, for it appears in that ease Halff & Bro. by way of cross-action sued Louis Otto and J. A. Otto, to recover judgment for the original consideration represented by an altered note. It further appeared Louis Otto was principal and J. A. Otto surety. The Supreme Court held that, although the note itself had been materially altered, still since the alteration was made without fraudulent intent, Halff & Bro. were entitled to recover on account of the antecedent indebtedness, and accordingly rendered judgment in their favor against Louis Otto, the principal, for the amount thereof. No judgment was rendered, however, against J. A. Otto, the surety. The court does not discuss the above exception, but clearly recognized its force in preparing the final judgment by not rendering judgment against the surety.

It is hard to conceive how, under such circumstances, a judgment could be awarded against the surety. The statute provides that such a suretyship be evidenced by writing, and, unless it is so evidenced, it is not valid. In the present case, the cashier of the bank testified that Williams had never been surety on any obligation to the bank except the altered note. The evidence showed without dispute that he had not received any of the consideration, and that he was a mere surety, and that this fact was known to the creditor. Under these circumstances, the written obligation having been destroyed by reason of its material alteration, the only obligation of the surety was thereby destroyed, and there could be no recovery against the surety.

Appellee could not rightfully recover against Williams upon either count in its petition. Upon the facts detailed, he could not be held liable upon any theory. The counter propositions urged by appellee have no application to the facts here presented. The peremptory instruction reguested by Williams should have been given.

Affirmed as to Robinson; reversed and rendered as to Williams.
      <g=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    TEXAS & P. RY. CO. v. FLOWERS.
    (No. 623.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 11, 1917.
    Rehearing Denied Feb. 22, 1917.)
    Appeal from District Court, Reeves County; S. J. Isaacks, Judge.
    Action by Lizzie Flowers against the Texas & Pacific Railway Company. Judgment for plaintiff and defendant appeals.
    Affirmed.
    Jno. B. Howard, of Pecos, for appellant. Ponder S. Carter, of El Paso, and Ben Palmer, of Pecos, for appellee.
   HARPER, C. J.

This is an appeal from a judgment in favor of Lizzie Flowers against the Texas & Pacific Railway Company for $2130.00 as damages for injuries to certain property and to her person occasioned by the breaking of the dam of appellant at Toyah, Texas.

This action grew out of the same acts of alleged negligence of appellant, Railway Company, and substantially the same pleadings and proof as in the case of Ella Frazer v. Texas & Pacific Railway Company, decided by this court in January, 1916, reported in 182 S. W. 1161, to which reference is here made for a more definite statement of the issues involved here. Because the assignments of error are substantially the same in both cases, the parties entered into a stipulation in writing and filed herein after the above opinion, to the effect that this case should abide the action of the Supreme Court upon the application of appellant for a writ of error. It having been brought to our attention by motion that the writ of error has been denied, and because, upon inspection and consideration of the record in this case, there appears to be no reversible error, same is in all things affirmed.


author: RAINEY, 0. J.

text:
    LETT v. BRANNON.
    (No. 7683.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 3, 1917.)
    Error from Dallas County Court; T. A. Work, Judge.
    Action by J. A. Brannon against S. G. Lett. Judgment for plaintiff and defendant' brings error.
    Affirmed.
    W. H. Clark and Edward P. Dougherty, both of Dallas, for plaintiff in error. Smith, Robertson & Robertson, of Dallas, for defendant in error.
   RAINEY, 0. J.

Defendant in error, Bran-non, sued plaintiff in error, Lett, and one Dain-wood in Dallas County Court at Law to recover the sum of $635.00, with interest at 6% per annum from January 1, 1912, being for salary and traveling expenses accruing, by reason of an employment by them personally of him.

Dainwood filed no answer; Lett answered by general denial and specially that he was not at any time manager or in any other way connected with the Interstate Underwriters; denied that he ever employed Brannon in any capacity, and that he ever performed any services for him or expended any money for his benefit. The case was tried before a jury and a verdict and judgment rendered for Brannon, and Lett appeals to this court.

Brannon’s contention throughout the trial was that he was employed by Lett personally, who obligated himself and became liable for said salary and expenses; while Lett’s contention is, in effect, that Brannon worked for the Interstate Underwriters’ Association, of which Dain-wood was manager, and with which he had no connection, and that he did not individually become liable for said indebtedness.

There are numerous assignments of error and propositions submitted by plaintiff in error, but none, in our opinion, show reversible error.

The issue of the individual liability of Lett for Brannon’s services was sharply contested and plaintiff in error attacks the verdict and judgment on the ground that they are not supported by the evidence.

The Issue was fairly submitted to the jury and they found that Lett was liable. We are of opinion that there was sufficient evidence to support the verdict and the judgment is affirmed, therefore it is so ordered.

Affirmed.


author: DAVIDSON, P. J.

text:
    VANN v. STATE.
    (No. 4325.)
    (Court of Criminal Appeals of Texas.
    Jan. 10, 1917.)
    Appeal from District Court, Wichita County; E. W. Nicholson, Judge.
    W. E. Vann was convicted of forgery and appeals.
    Affirmed.
    C. C. McDonald. Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of forgery, his punishment being assessed at five years’ confinement in the penitentiary.

The record is before us without a statement of facts or bill of exceptions, therefore there is nothing in the record presented for revision. The judgment will be affirmed.


author: PRENDERGAST, J.

text:
    TERRY v. STATE.
    (No. 4342.)
    (Court of Criminal Appeals of Texas.
    Jan. 31, 1917.)
    Appeal from District Court, Cass County; H. P. O’Neal, Judge.
    Steve Terry was convicted of assault with intent to murder and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of an assault with intent to murder and his punishment assessed at the lowest prescribed by law.

The sole question in the case is whether or not the evidence was sufficient to sustain the conviction. We have carefully read and considered the whole testimony. The state’s side, we think, was clearly sufficient to show appellant guilty. We see no necessity of now reciting the testimony. Appellant’s defense was self-defense, which was submitted to the jury in a proper charge, to which there was no complaint, and the jury found against him.

The judgment will be affirmed.

MORROW, J., absent