author: MOURSUND, J.

text:
    McALLEN et al. v. WOOD.
    (No. 5948.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 30, 1918.
    Rehearing Denied March 13, 1918.)
    1. Guardian and Ward <®=»13(8)—Appoint-ment op Guardian — Certiorari to Review—Jurisdiction op District Court.
    The district court has jurisdiction to entertain certiorari to revise an order of the county court appointing a temporary guardian, under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4096, 4301, relating to guardianship and decisions of the county court.
    2. Appeal aStd Error <§=>759—Bribes— Assignments op Error.
    The division in the brief of an assignment of error into several parts with separate propositions violates rule 29 for the Courts of Civil Appeals (142 S'. W. xiii), and the assignment cannot be reviewed.
    3. Guardian and Ward <⅜=>13(4) — Temporary Guardian—Appointment.
    Evidence held insufficient to show that a temporary guardian was appointed or had himself appointed for the mere purpose of giving employment to attorneys who desired to harass the mother of the children.
    4. Guardian and Ward <§=>13(1)—Appoint-ment.
    Where a mother of minors claims all of the estate left by her husband, who left property to the children in his will, it is not contrary to good morals and public policy to appoint a third person as a guardian to protect the interest of the minors, because it is better that the children loose some money in litigating their rights than that they lose all that they are entitled to.

      5. Certiorari <⅞=^64(1) — Issues—Scope pe Review.
    Under Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 740, relating to certiorari to county courts, the district court is confined to facts alleged, as well as grounds of error specified, in the application showing that a different judgment should be entered.
    0. Appeal and Errok <§=^>231(3) — Objections —Grounds.
    - Where ground of objection to admission of evidence is not stated, the matter cannot be reviewed.
    7. Appeal and Error <¾=>1054(1) — Harmless Error.
    Admission of conclusions of a witness upon a trial without a jury will not justify a reversal.
    8. Witnesses <S=o199(1) — Privileged Communications.
    Communications to an adviser, who is not licensed to practice law and is not a practicing attorney, are not privileged.
    9. Appeal and Error ⅞^232(2) — Objections —Grounds.
    Where the only objection to a question was that it called for a conclusion, all other grounds were waived.
    10. Appeal and Error ®=»G90(7) — Record-Showing Questions and Answers.
    Where answer to question is not shown in the assignment of error, and statement of facts for bill of exceptions, to which reference is made, sets forth certain testimony of the witness, but does not show the question asked, no error is presented.
    11. Guardian and Ward <®=o13(4) — Appointment— Qualifications — Evidence.
    In proceeding to be appointed guardian of her children, declarations of applicant that she was the owner of the estate left by her husband’s will to the children were admissible as bearing on her qualifications.
    Appeal from. District Court, Cameron County; W. B. Hopkins, Judge.
    Certiorari by Margaret R. McAllen in the district court to review an order of the county judge of Cameron county, on his own motion, appointing A. Wayne Wood temporary guardian of the estates of Mildred, Salome, Eldred and Argyle McAllen. Prom a judgment affirming the order of the county judge and denying the petitions of Margaret R. Mc-Allen and an intervener, Martha Rohde, to be appointed guardians, the latter appeal.
    Affirmed.
    T. Wesley Hook, of Kingsville, and Canales & Dancy, of Brownsville, for appellants. E. W. Seabury and James A. Graham, both of Brownsville, for appellee.
    E.
   MOURSUND, J.

On June 8, 1917, the county judge of Cameron county, on his own motion, appointed A. Wayne Wood temporary guardian of the estates of Mildred, Salome, Eldred, and Argyle McAllen, all minors under the age of 14 years. On June 12, 1917, Margaret R. McAllen, the mother of said children, filed in the district court of Cameron county her petition for writ of certiorari to review and correct the said order appointing such temporary guardian, and prayed for and secured an order superseding said order until a hearing could be had. In her petition Mrs. McAllen sought to be appointed guardian of the estates of said minors if a guardianship appeared to the district court to be necessary.

On June 16, 1917, A. Wayne Wood, as such temporary guardian, filed his application to revise and set aside the orders theretofor® made by the district judge for certiorari and for supersedeas.

On June 16, 1917, Martha Rohde, a sister of Mrs. McAllen, filed her plea of intervention, objecting to the appointment of Wood and praying that such appointment be set aside, and in the event it is found that a guardianship is necessary, and that Mrs. Mc-Allen is disqualified to act as such, then that she be appointed as guardian of any estates of said minors.

On June 16, 1917, the trial was begun on the motion to set aside the order granting the writ, and on- June 20th Mrs. McAllen filed a request that the district court render a final judgment on the merits of the cause on the termination of the trial. On June 23d, the hearing having closed, the court rendered a final judgment affirming the order of the county judge and confirming the appointment of Wood as temporary guardian, annulling the writ of supersedeas, and overruling and denying the petitions of Mrs. McAllen and Martha Rohde for appointment of themselves as temporary guardian in place of said Wood. Mrs. McAllen • by supersedeas bond perfected an appeal and Martha Rohde also appealed.

The contention by ai>pellee that the district court had no jurisdiction to entertain a petition for writ of certiorari to revise an order appointing a temporary administrator is without merit. Article 4096 makes all provisions of the title relating to the guardianship of minors applicable to temporary guardianships in so far as the same are applicable, and not inconsistent with any of the provisions relating to temporary guardianships. Article 4301 provides that any person interested may have any decision, order, or judgment of the county court or county judge revised and corrected by writ of cer-tiorari from the district court under the same rules and regulations as are provided in estates of decedents. There is no inconsistency between the provision allowing an appeal and the provision allowing a contest of the order appointing the temporary guardian to be made at the following term of court, in order to raise the issue who shall be appointed permanent guardian.

Objection is made to appellants’ brier in so far as it attempts to submit the first assignment of error contained in the transcript. Instead of copying the assignment in the brief, it is subdivided into six assignments, designated as first assignment, subdivision “a,” first assignment, subdivision “b,” etc. Each of these assignments is followed by propositions and- statements. This method of briefing is in violation of rule 29 for the Courts of Civil Appeals (142 S. W. xiii), which requires that the assignments be copied in the brief. Mansfield v. Mansfield, 198 S. W. 169; Progressive Oil Co. v. Crawford, 184 S. W. 728. It is not permissible to reconstruct assignments, as was done in this case by making six assignments in the brief out of one contained in the transcript. The two assignments' presented by Martha E. Rohde are subject to the same objections. Such assignments will not be considered.

It is contended in the second assignment of error that the judgment of the district court is contrary to law in that the uncon-troverted evidence shows that it is an attempt on the part of the temporary guardian, at the instigation and for the benefit of certain attorneys to institute a suit against plaintiff for the purpose of distressing and harassing her, and of enforcing the employment of said attorneys, which is contrary to the statute of barratry. Of course, the judgment of the court could not be an attempt on the part of the guardian to do anything, so we assume that it is contended that Wood had himself appointed for the purpose of bringing suit against Mrs. McAllen, at the instigation and for the benefit of certain attorneys, for the purpose of distressing and harassing her, and of enforcing the employment of said attorneys. The county judge, on his own motion, appointed Wood, and there is no evidence that he sought the appointment or that his purpose in accepting the appointment was to benefit any attorneys. It appears that two firms of attorneys had some differences with Mrs. McAllen about a contract of employment to represent her in certain litigation, but that, acceding to her contentions, the matter was dropped with the understanding that there was no employment. One of these attorneys was employed by the guardian, and it seems that appellant’s theory is that by accepting such employment he would participate in the litigation involving the McAllen property as attorney for the guardian, and be enabled to collect a fee from the estates of the minors, if they have estates, and therefore it ought to be assumed that he instigated Wood to become guardian. The record discloses absolutely nothing improper in the conduct of any of the attorneys referred to or the guardian, and quite naturally the district court refused to hold Wood disqualified on assumptions not warranted by the evidence. As Mrs. McAllen claims to own practically all of the McAllen estate under instruments executed by McAl-len shortly before his death, it is apparent that the minors, although bequeathed four-fifths of the estate by a wilb duly probated at the instance of Mrs. McAllen, will be deprived >of the right to have the validity of the instruments relied on by their mother determined by the courts, if she is to be held exempt from suits on the ground that the same may vex and harass her. The guardian was appointed for the protection of the estates of the minors, and it was necessarily contemplated that litigation with Mrs. Mc-Allen might be necessary in order to determine what their rights are. The . assignment is overruled.

The third assignment asserts that the court erred in its judgment in confirming the appointment of A. Wayne Wood as temporary guardian “for the reason that it is contrary to good morals and sound public policy.” In support of the contention, it is urged that the appointment was instigated as a result of the refusal of Mrs. McAllen to employ certain attorneys to represent her in the management of the McAllen estate. There is no evidence pointed out which shows that any one instigated the appointment, but surely the judgment of the district court is not dependent on the motives of those who cause to be brought to the attention of the county judge facts relating to the estates of minors. It is further urged that the uncontroverted evidence shows that it is an attempt on the part of certain Masons of Brownsville to dictate to Mrs. McAllen who should be her legal advisers in the management of her private affairs. We fail to see how any number of attempts to dictate to Mrs. McAllen who her advisers should be could justify the court in refusing to appoint a guardian, nor how it could disqualify Wood from being guardian even if he had attempted to dictate to her. It is not necessary that he should approve of Mrs. McAllen’s choice as adviser in order to be qualified to safeguard the interests of the minors. Mrs. McAllen, who claims the entire estate as against her minor children, appears to distrust the motives of all who have interested themselves for the protection of the minors, and to be of the opinion that such interest is prompted by the desire of receiving compensation for what they do for the minors. These views are natural; for, as is usual in such cases, she cannot reconcile herself to the view that there is a conflict of interest between herself and her children. She believes she ought to have the estate and manage it, and that all outside interference will but result in depleting the estate, and thus lessen her ability to care for the children. This theory overlooks the fact that, as she claims title to all the estate under instruments which were executed under circumstances raising a question as to their effect and validity, the interest of the minors can only be adequately protected by having them represented by some one who will have the effect and validity of such instruments tested in a court of competent jurisdiction at a time when witnesses are living, and the testimony bearing on the issue is obtainable. If the minors’ right to an estate be established, it is, of course, true that reasonable compensation will be allowed by the court out of such estate to those performing services for the minors, but the law regards it as better for the interests of the minors to lose such amounts than for them to lose their entire estate. The assignment is overruled.

In her application for writ of certiorari appellant urged two grounds of objection against Wood’s appointment, neither of which, is presented in assignments 2 and 3. Under our statutes (article 740) she is confined to the grounds of error specified in the application for the writ. This, we believe, means that she is confined to the facts alleged by her as showing that a different judgment should be entered than the order appealed from. Jirou v. Jirou, 136 S. W. 493. The matters pleaded in the application wholly fail to show any disqualification of Wood to be guardian.

The fourth assignment complains of the admission of testimony by Dr. G. D. Fairbanks that,the deeds and bills of sale by James B. McAllen were executed in contemplation of death. The bill of exceptions referred to discloses that a question was objected to, but does not show that any grounds of objection were stated. The assignment must therefore be overruled. Bonart v. Waag, 61 Tex. 33; Buckler v. Kneezell, 91 S. W. 367. In addition, it appears that the testimony of the witness does not correspond to that stated in the assignment, as he declined to state that the instruments were executed in contemplation of death. We may also add that he testified fully as to the facts, and his statement of his conclusion upon a trial before the court without a jury would not justify a reversal of the judgment.

The fifth assignment is overruled. The question was not leading, nor was the communication privileged on the ground that it was between attorney and client. Dr. Fairbanks testified he had no license to practice law, and that he was not a practicing attorney.

By the sixth assignment complaint is made because the court permitted Dr. Fairbanks to be asked whether he would still advise Mrs'. McAllen not to convey to her children the interests that the will provides they should have, if he knew it would end the guardianship controversy. The bill of exceptions shows no objection except that the question calls for a conclusion. This amounts to a waiver of other objections. Kimmarle v. Railway, 76 Tex. 686, 12 S. W. 698; Wheeler v. Railway, 91 Tex. 356, 43 S. W. 876. There is no merit in such objection. An evasive answer was returned by the witness, and if the testimony actually given was deemed prejudicial, error should have been assigned to its admission. The assignment is overruled.

The seventh assignment complains of the admission of a copy of a power of attorney in blank prepared for James B. McAllen, but never signed by him. It is contended that this instrument was irrelevant and immaterial, but it is not attempted to be shown how the admission thereof could have injured appellant’s case.

The eighth assignment complains because the court permitted witness Hallam to be asked and to. answer a certain question. The assignment does not disclose the answer to the question, but in the statement certain testimony of the witness is set out. We are referred to the statement of facts for bill of exceptions, but the same does not show that the question complained of was asked. The assignment must therefore be overruled.

The testimony elicited in answer to the question complained of in the ninth assignment was admissible. The witness stated a conversation between himself and Mrs. Mc-Allen which showed that Mrs. McAllen claimed all of the McAllen property as her own under the instruments executed prior to his death, and that she was unwilling to convey the property to the estate, or to the children such part as the will called for them to have. This testimony had a direct bearing on her qualifications to be appointed guardian, as it showed that she claims the entire estate as her own, and that a suit against her will be required to determine whether or not the children have an estate.'

The testimony complained of in the tenth assignment as “wholly improper and also irrelevant and immaterial to any issues in this case” was admissible in impeachment of Dr. Fairbanks; the proper predicate having been laid.

The judgment is affirmed.
      <®=3Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


source: Caselaw Access Project

author: BROOKE, J.

license: Public Domain

text:
    TEXAS & N. O. R. CO. v. O’CONNOR.
    (No. 327.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 21, 1918.)
    Cabeiebs <s=»382(6) — Ejection oe Passengeb —Exemelaey Damages.
    The mere retention in employment by a railroad company of a conductor, after knowledge that he has wrongfully ejected a passenger from its train, does not allow the passenger to secure judgment for exemplary damages against the company; such retention alone not being an adoption or ratification of the malice or violent conduct of the conductor.
    Appeal from Orange County Court; D. C. Bland, Judge.
    Action by Pat O’Connor against the Texas & New Orleans Railroad Company. Prom judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Orgain, Butler & Bolinger, of Beaumont, for appellant. O. R. Sholars, of Orange, for appellee.
   BROOKE, J.

This suit was filed in the county court of Orange county on the 26th day of August, 1916, by Pat O’Connor, seeking to recover damages alleged to have resulted to him by being ejected from defendant’s train near the station of Tulane on the 1st day of April, 1916, and again on the 13th day of April, 1916. Por the alleged expulsion on April 1, 1916, he sought to recover the sum of $200 as actual damages and $250 as exemplary damages, and for the expulsion of date April 13, 1916, he sought to recover the sum of $250 actual and $200 exemplary damages.

In reference to the expulsion of date the 13th day of April, plaintiff alleged that he boarded defendant’s train at Orange to go to Tulane, and after said train was under way the conductor in charge of said train demanded fare of plaintiff, and plaintiff paid the said conductor the sum of 40 cents, which amount was more than enough to pay said fare; that the conductor, when said train was three or four miles from Tulane, stopped said train, and abruptly ordered the plaintiff from said train, and proceeded to maliciously and willfully and negligently eject the plaintiff therefrom, without his consent, and without any provocation or cause therefor, and refused to permit plaintiff to again get aboard said train or further travel thereon, and that plaintiff had to walk to Tulane, a distance of about four miles, by reason of which he .became fatigued and suffered great bodily pain, being an old man, and that being ejected from said train by said conductor, he was greatly worried, and suffered great mental and physical pain, to his damage in the sum of $250. Plaintiff, in this connection, further alleged that by reason of the premises, he was greatly humiliated. as there were many passengers on said train who saw plaintiff ejected, and that he suffered great mental pain and humiliation, to his further damage in the sum of $200, which he claims as exemplary damages. Defendant answered by general demurrer and general denial, and special exception.

The case was tried before a jury and submitted on special issues. On the answers of the jury to these special issues, judgment was entered for the plaintiff, and against the defendant below, in the sum of $200 for the ejectment of date April 13th, the jury having found against plaintiff for the ejectment of April 1st. Motion for new trial was overruled, exception was had, and the case is here properly for review.

The first assignment of error is as follows:

“The court erred to the prejudice of the defendant in’ failing and refusing to give to the jury special charge No. 5, requested by the defendant, which charge is as follows: ‘Gentlemen of the jury, at the request o'f the defendant you are instructed that under the evidence and the pleadings in this cause, the plaintiff is not entitled to recover any damages by reason of the humiliation alleged to have been suffered by the plaintiff on account of his having been put off of defendant’s said train upon April 13, 1916.’

This was claimed to be error, for tbe reason that under defendant’s pleading no damage for humiliation is claimed, except as exemplary damages, and under the undisputed evidence in this case no exemplary damages could he proved by plaintiff as against the defendant.

In addition, it is urged, in connection with this charge, that the defendant requested special charge No. 9, which was as follows :

“Gentlemen of the jury, you are instructed that you cannot allow plaintiff anything or any amount by way of exemplary or punitory damages for being ejected from said train on either of the dates mentioned in plaintiff’s petition.”

It is urged as a counter proposition by defendant in error, that:

“If the malicious act of the employé of a railroad is ratified or adopted or accepted by his principals, the principal will be held liable in exemplary damages; and where a conductor willfully, wrongfully and maliciously ejects a passenger from the train, and such act is made known to the head of the department, and the conductor is retained in the -employ of the company, the company is liable for exemplary damages.”

We do- not understand the law to be as stated by the defendant in error. In other words, we do not understand that the mere ejection from the passenger train of a railroad company, unaccompanied by any other fact, would permit and allow any person, by that fact alone, to secure against the railroad company a judgment for exemplary damages, even -though the railroad company should retain the conductor in its employ.

In the case of Hayes v. H. & G. N. Railroad Co., 46 Tex., 282, the court, through Judge Gould announced the following as a correct legal proposition:

“In the case of Turner v. North Beach & M. R. W. Co., 34 Cal. 600, which was a suit for damages against the company for expulsion from the cars, the court says: 'If her expulsion resulted from the malice of the conductor, or was accompanied by violence and personal indignity, the conductor alone is responsible for such damages as she may be entitled to for this cause, beyond the actual damage resulting from her expulsion from the car, unless, as before stated, the company expressly or tacitly participated in the malice and violent conduct of the conductor. Justice Story says: ‘If this were a suit against the original wrongdoers, it might be proper to go yet further, and visit upon them-, in the shape of exemplary damages, the proper punishment which belongs to such lawless misconduct. But it is to be considered that this is a suit against the owners of the privateer, upon whom the law has, from motives of policy, devolved a responsibility for the conduct of the officers and crew employed by them, and yet, from the nature of the service, they can scarcely ever be able to secure to themselves an adequate indemnity in case of loss. They are innocent of the demerit of this transaction, having neither directed it nor countenanced it, nor participated in it in the slightest degree. Under such circumstances, we are of opinion that they are bound to repair all the real injuries and personal wrongs sustained by the libellants; but they are not bound to the extent of vindictive damages.’ * * * It is believed that there is no principle which would attach to a railroad company a greater liability for the acts of the conductor than to the owners of a vessel, for the act of the master.”

We are not able to- find in any reported case in Texas any contrary doctrine to that announced above, nor are we able front any decision with which we are acquainted, or to which we have been referred, or any case holding that the retention by the railroad company of the services, in such cases as the above, and even stronger cases, would be a ratification of the alleged wrong.

In the case of C., C. & S. F. Ry. Co. v. Reed, 80 Tex. 362, 15 S. W. 1107, 26 Am. St. Rep. 749, there was an action against a railroad company for poill(uting a stream, running through plaintiff’s land; it appearing that defendant’s yardmaster at different times threw the carcasses of dead animals into the stream from its bridge at a point about 44 feet from plaintiff’s house. . Plaintiff complained to the person in charge of defendants office at Houston, and requested him to have the carcasses removed, but nothing was done in the matter. There was no evidence that the person complained to was a general officer of defendant. Held, that there was not such a ratification or adoption by defendant of the wrongful acts of its agents as would render it liable therefor in exemplary damages.

Without going into the matter at length, we are of opinion that these assignments must be sustained, and that the instruction complained of in the second assignment of error should have been given.

The third assignment of error is as follows:

“The jury’s answer to question No. 8 is unsupported by the evidence, and the evidence is insufficient to sustain said finding; that the sum of $200 allowed by the jury as damages is grossly excessive and shows that the jury was controlled by some improper motive and some motive independent of the evidence, in that the only evidence of injury is that plaintiff was ejected from defendant’s train at a point not exceeding three miles from the station of Tulane and on an April afternoon early in the evening, and before dark; that the day was clear, was not raining, and he suffered no ill, resulting by reason of the walk that he was thereby compelled to take; that the plaintiff is a man 67 or 68 years old, and was physically strong and healthy and used to walking; that the plaintiff made no protest by reason of having been put off and was not physically injured at all; that he knew no one on the train other than those who were ejected with him; that the passengers on said train, other than those of his party, were strangers to him, and, wherefore, it appears that said finding is excessive in amount and unsupported by the evidence, and the evidence is insufficient to support a verdict for that amount.”

The court is of opinion that when a correct charge is given by the lower court on another trial of this cause perhaps the result complained of by this assignment as to exces-siveness will not be reached.

By reason of the above errors, the judgment is reversed and this cause remanded.
      (g^For other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LANE, J.

text:
    MANN v. BROWN et al.
    (No. 7616.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 30, 1918.
    On Motion for Rehearing, Feb. 21, 1918.)
    On Motion for Rehearing.
    1. Judgment ⅞=^>17(11) — Process to Support —Nonresidents—Attachment.
    Attaching a nonresident’s property and serving process on him under Vernon’s Sayles’ Ann. Civ. St. 1914_, art. 1869, confers jurisdiction to satisfy plaintiff’s demand by selling the attached property, but not to enter a personal judgment.
    2. Execution <®=j7 — Nonresident Defendants.
    Where a nonresident’s property has been attached and process served under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1869, the resulting lien and sale is unaffected by the fact that judgment was rendered by default.
    3. Judgment ®=>17(11) — Process to Support —Nonresidents—Validity.
    A judgment against a nonresident secured by attaching property within the state and serving process under Vernon’s Sayles’ Ann. Civ-St. 1914, art. 1869, is not invalid because the notice or citation did not show that defendant’s, property had been attached.
    4. Courts <⅞⅝=>480(3) — Injunction — Justice Court — Selling Exempt Property.
    A district court has no jurisdiction to enjoin the sale of a nonresident’s property pursuant to a valid justice court judgment upon the ground that such property was exempt from execution.
    5. Justices op the Peace <§=»130 — Judgments— OONCLUSIVENESS.
    Justice’s courts have a special and exclusive jurisdiction under the Constitution, and' other courts cannot review trials therein except upon appeal, and, where no appeal is allowed, judgments rendered therein are conclusive.
    Appieal from District Court, Anderson County; John S. Prince, Judge.

      Petition for injunction by G. E. Mann against A. D. Brown and others. From an order dissolving a temporary writ of injunction, the petitioner appeals.
    Appeal dismissed.
    W. R. Petty, of Palestine, for appellant. J. O. Hughes, of Palestine, for appellees.
   LANE, J.

This is an appeal from an order of the regular judge of the Third judicial district of Texas, dissolving a temporary writ of injunction, restraining A. D. Brown and R. D. Bryan from selling certain property of appellant, theretofore issued-by the lion. A. G. Greenwood, special judge of the district court of Anderson county, within said Third judicial district.

The petition for injunction, among other things, alleges that on the 10th day of July, 1017, appellee R. D. Bryan filed suit in the justice court of precinct No. 1 of Anderson county against appellant, G. B. Mann, praying for judgment for the sum of $64 due by appellant to R. D. Bryan for rent of certain premises and for a foreclosure of his landlord’s lien, without naming any property upon which said foreclosure was sought; that at the time said suit was filed Bryan, upon affidavit, procured the issuance of a writ of attachment and placed the same in the hands of A. D. Brown, constable, to be levied upon certain household and kitchen furniture belonging to appellant, which included one piano and three sets of bedroom .furniture; that said levy was made by said Brown and that said furniture was by said Brown seized and taken into his possession under said writ; that at the time said suit was filed and at the time of the issuance and levy of said attachment, and at all times since, appellant G. E. Mann was and is still. a nonresident of the state of Texas; that he was at all such times a married man and the head of a family, consisting of a wife and children, and that said furniture was at the time of such levy and seizure exempt under the law from forced sale for the payment of his debts; that on the 30th day of July, 1917, a personal judgment was rendered in said justice court in favor of appellee Bryan against appellant for the sum of §64 and for a foreclosure, and ordering the issuance of an order of sale of said furniture for the payment of said judgment; that thereafter an order of sale was issued and placed in the hands of Constable A. D. Brown, who is threatening to sell said property thereunder; that said property is of value far in excess of the amount of said judgment, but will not sell for more than one-fourth of its value; and that unless the injunction prayed for be issued he will suffer irreparable injury. He further alleged that he had no notice or knowledge that any writ of attachment had been issued and levied upon his property until the expiration of the time in which he could have appealed from the judgment rendered against him.

On the 18th day of August, 1917, Special Judge A. G. Greenwood granted a temporary injunction, restraining the sale of said property until final disposition of the cause, unless sooner modified or dissolved by the court. On the 5th day of September, 1917, appellees Brown and Bryan presented their motion to the Hon. J. S. Prince, the regular judge of said court, praying for a dissolution of said temporary injunction. On the 18th day of September, 1917, the regular judge granted said motion and dissolved the temporary injunction theretofore issued. From this action the court in dissolving said injunction G. E. Mann has appealed.

The only description of the property involved in the suit is found in appellant’s petition for injunction, and is that it is three suites of bedroom furniture and one piano. Tire only reference to its value is to be found in said petition, and is to the effect that it is “of value far in excess of the amount of the judgment of §64 and costs of suit.”

By article 1705, Vernon’s Sayles’ Civil Statutes 1914, the district court is given jurisdiction of all suits, complaints, or pleas whatever, without regard to any distinction between law and equity, when the matter in controversy shall be valued at or amounts to §500, exclusive of interest, and by article 1706 it is given jurisdiction of all causes of action whatever for which a remedy or jurisdiction is not provided by law or the Constitution. It has no jurisdiction, however, of causes of action of which exclusive jurisdiction has been conferred by law upon the county court. By article 1763 the county court is given exclusive jurisdiction over civ-, il cases when the matter in controversy shall exceed in value §200 and shall not exceed §500, exclusive of interest.

As before stated, the value of the property involved in the present case is not shown by the pleadings of either party. The record sent to this court does not affirmatively or otherwise show the value of such property so as to show that the district court, from which this appeal is taken, had jurisdiction over the subject-matter of the suit. In the absence of such showing this court will not entertain jurisdiction of the appeal.

In a suit brought for the sole purpose of preventing the sale of specific property, the value of the property determines the amount in controversy in determining the jurisdiction of the court, and such value should be alleged. Smith Drug Co. v. Rochelle, 135 S. W. 258.

Stating the proposition more broadly: In suits to foreclose a lien when the debt sued for is less than the minimum prescribed to give jurisdiction, and the value of the property upon which the lien is sought to be foreclosed is not alleged, the petition fails to show that the court has jurisdiction. It is essential to tlie validity of tlie judgment in such cases that the pleadings affirmatively show that the trial court had jurisdiction of the suhject-matter, and the Court of Appeals must notice the want of jurisdiction of the trial court whether the objection is' raised by the parties or not. Smith Drug Co. v. Rochelle, supra; Walker Mercantile Co. v. Raney Co., 154 S. W. 317; Marshall v. Stowers Furniture Co., 167 S. W. 230; De Witt County v. Wischkemper, 95 Tex. 435, 67 S. W. 882.

In the case last cited the court said:

“By section 16, art. 5, of the Constitution of this state, the jurisdiction of county courts is thus defined: ‘They shall have exclusive jurisdiction in all civil cases when the matter in controversy shall exceed in value $200 and not exceed $500, exclusive of interest, and concurrent jurisdiction with the district court when the matter in controversy shall exceed $500 and not exceed $1,000, exclusive of interest; * * * and the county court or judge thereof shall have power to issue writs of injunction, mandamus, and all writs necessary to the enforcement of the jurisdiction of said court.’ In the cases of Dean v. State, 88 Tex. 296 [30 S. W. 1047, 31 S. W. 185], and Johnson v. Hanscom, 90 Tex. 321 [37 S. W. 601, 38 S. W. 761], this court held that the power of the county court to issue writs of mandamus under the section of the Constitution above quoted was limited to cases exceeding $200 and not exceeding $1,000. The same rule is applicable to writs of injunction, which can only bo issued by the county courts where the matter in controversy exceeds $200 and does not exceed $1,000 in value. In this case, no value of the subject of the suit is alleged; therefore the application for the writ of injunction does not bring -the case within the terms of the Constitution, and the county court had no jurisdiction to issue the writ of injunction upon the facts stated.”

We conclude that the petition for injunction does not show a cause over which the trial court had jurisdiction and therefore this court has no jurisdiction to determine this appeal.

The appeal is dismissed.

On Motion for Rehearing.

In our original opinion we held that as this appeal is one from an order of the district court of Anderson County dissolving a temporary injunction theretofore issued out of said court restraining the sale of one piano, three suites of bedroom furniture, and other household and kitchen furniture alleged to be the exempt property of appellant, without giving the value of such furniture and piano, it was not shown that said district court had jurisdiction of the subject-matter of the suit, and hence this court had no jurisdiction to pass upon appellant’s appeal to this court, and thereupon dismissed the appeal. Since the original opinion was filed appellant has filed his motion for rehearing and insists that we erred in our said holding and in dismissing said appeal.

Appellant now calls our attention to the fact that the Supreme Court, in the case of Cotton v. Rea, 106 Tex. 220, 163 S. W. 2, held that:

“The averment of the exemption of the property from forced sale was sufficient to invoke the jurisdiction of the [district] court, regardless of the element of value.”

We have carefully examined the decision referred to and find that the language above quoted is substantially the language of the Supreme Court in said decision. It was also held in that case, as in many others, that the district court in the exercise of its equity powers has jurisdiction to restrain the enforcement of a county court judgment which is a nullity, where the invalidity is afflrma- ■ tively disclosed by the record, as well as void judgments of other inferior courts. It is held in the case cited, as well as by an unbroken line of decisions of our courts, that a district court is without jurisdiction to restrain the enforcement of a judgment of an inferior court, unless it is made to appear that such judgment is void. It is also substantially held in that case that, while it is settled law that to show jurisdiction to issue an injunction by the county court the. value of the subject-matter must be shown to exceed $200 and not to exceed $1,000, the district courts have jurisdiction to issue injunctions in all proper cases where it is not affirmatively shown by the application that the value of the subject-matter exceeded $200 and did not exceed $500. Such being the holding of our Supreme Court, we must recede from our holding in the original opinion and gracefully bow to the superior court. But while doing so, under the authority 'of the case cited, we must hold that the district court of Anderson 'County was without jurisdiction to issue the writ of injunction in the present case, because it is shown by the petition for injunction that appellant sought to restrain the enforcement and execution of a judgment rendered by a justice court apparently regular upon its face and not void. In the decision under discussion, Chief Justice Phillips of the Supreme Court said:

“The judgment of the county court was clearly not void. The counterclaim urged in the justice court was sufficient in amount to' give it jurisdiction on appeal. This claim constituted the subject-matter of the suit; and, having jurisdiction both of it and the parties, the court possessed the authority to render a judgment in the matter. Its jurisdiction being complete and having been lawfully exercised, its judgment was not void, however erroneous. * * * It is apparent that the district judge was without jurisdiction to issue the injunction on account of the alleged invalidity of the judgment.”

The record in the present case shows ap-pellee R. D. Bryan brought suit in the justice court of precinct No. 1 of Anderson county against appellant, G. E. Mann, a nonresident of this state, to recover upon an account of $64; that at the time said suit was filed Bryan sued out an attachment and the same was levied upon the furniture involved in this cause; that appellant was served with notice of said suit in the state of Alabama in the manner and form as required by the law of this state for such notice upon nonresidents; that when said cause was called for trial appellant appeared not, made no defense to said suit, nor in any manner pleaded that said property levied on was his exempt property and exempt from forced sale for the payment of his debts; that judgment was rendered in said suit in faVor of appellee Bryan against appellant Mann for the sum of $64 and for a foreclosure of the attachment lien upon the said furniture; that an order of sale was thereafter in due time- issued out of said justice court for the sale of said furniture to satisfy said judgment and the same was placed in the hands of appellee A. D. Brown, constable, for execution. _

Service of process upon a nonresident of this state may, under the provisions of article 1869, Vernon’s Sayles’ Civil Statutes 1914, be had to authorize the rendition of a judgment in rem, though not sufficient to authorize the rendition of a personal judgment against the party so served. In accordance with the procedure in this state, the attachment of property of a defendant and service of process upon him under said article 1869, supra, confers jurisdiction upon the court to subject the property to the satisfaction of the plaintiff’s demand by sale thereof. Barelli v. Wagner, 5 Tex. Civ. App. 445, 27 S. W. 17, and authorities therein cited.

A lien and sale in an action against a nonresident, where jurisdiction had been acquired under the statute, is not affected by the fact that final judgment was rendered by default Nor can such judgment be attacked on the ground that the notice or citation did not show that an attachment had issued and levied upon property of the defendant. Reid v. Mickles, 29 S. W. 563.

It being shown by the record that the justice court had jurisdiction to render the judgment in favor of appellee Bryan against appellant Mann, and to foreclose the attachment lien on the property involved in this suit, and that upon the trial of said cause it found that said property was subject to said lien, we hold that the judgment of said justice court was a valid judgment, was not void, and therefore the district court of Anderson county was without jurisdiction to enjoin the enforcement and execution of, the same. Rountree & Green v. Walker, 46 Tex. 200; Denson v. Taylor, 132 S. W. 811; G., H. & S. A. Ry. Co. v. Dowe, 70 Tex. 1-5, 6 S. W. 790. See note 30 L. R. A. 702-706; Odom v. McMahan, 67 Tex. 292, 3 S. W. 286; Tex. Mex. Ry. Co. v. Wright, 88 Tex. 346, 31 S. W. 613, 31 L. R. A. 200; Frazier v. Coleman, 111 S. W. 662.

It has been uniformly held by all the courts of this state that the district courts have jurisdiction in proper cases to issue injunctions to restrain the sale of exempt property under execution for the satisfaction of a judgment theretofore rendered against its owner, but we are unable to find any case holding that such injunctions can be issued to restrain the sale of property alleged to be exempt, after the parties have had their day in a court of competent jurisdiction, and where, upon trial, such court had adjudged such property to be subject to an attachment sued out in said court at the inception of the suit and levied upon such property, as in the present case, thereby creating a lien thereon; there being no showing of fraud in the procurement of such judgment or that the same was for any reason void. In the case of Railway Co. v. Dowe, above cited, the court said:

“In Anderson County v. Kennedy [58 Tex. 622], Justice Stayton clearly explains and limits the power of the district court in injunction proceedings. He says: ‘The Constitution granting authority to issue writs of injunction granted all the equity powers conferred upon chancery courts in such cases without regard to amount;’ and these views were followed by the court in Alexander v. Holt, 59 Tex. 205, and Day v. Chambers, 62 Tex. 191. But none of these were cases where the jurisdiction of inferior tribunals or the validity of their judgments were sought to be interfered with, but rather cases where the writ was intended to prevent persons from committing unlawful acts where there was no remedy at law. Courts of equity will not interfere to control the proceedings of other courts where there have been mere errors of law or of judgment; or where the lower court can hear and determine the dispute; or where the matter is cognizable in the inferior court, and has been there decided; or even where there is a concurrent jurisdiction. Marine Insurance Company v. Hodgson, 7 Cranch [332, 3 L. Ed. 362]; Pouder v. Cox, 26 Ga. 489; Beaudry v. Felch, 47 Cal. 184; 3 Pomeroy’s Equity, §§ 1360-1365, inclusive; McNeill v. Hallmark, 28 Tex. 157; Odom v. McMahon, 67 Tex. 292 [3 S. W. 286]. In the last above cited case our court expressly declares that the district courts will not grant injunctions to correct errors of inferior courts, even where no appeal is allowed. See, also, Freeman v. Miller, 53 Tex. 372; Gibson v. Moore, 22 Tex. 611; Overton v. Blum, 50 Tex. 417. If a defendant might have had his day in court, and by his own negligence failed to appear, or if he had had a trial that resulted adversely to him no reason can be given why he should have another trial in another court, or why another court should interfere to review the proceedings or arrest the judgment where no appeal is allowed by law. The justice’s court has a special and exclusive jurisdiction under the Constitution, independent of all other courts, and no other court can interfere with its proceedings to grant new trials, or to prevent the enforcement of its judgments or to review its trials, except as provided by law on appeal; and where no appeal is allowed, its judgments are final and conclusive. Same, where it is made to appear that by accident, fraud, mistake, or ignorance such a wrong has been done as would authorize the prevention of the wrong if committed by any other court. It has the right to grant new trials, and if it refuses to do so another court can not invade its jurisdiction and grant a new trial for it. In the petition for injunction in this case by the company, the wrong complained of was cognizable by the justice’s court, was considered and decided by the court, and because there was error in the proceedings and an illegal conclusion reached by the judgment the district court was asked to grant an injunction to set aside the judgments and perpetually enjoin their enforcement. No new trial was asked in the justice’s court, but if there had been, and it had been refused (as it doubtless would have been) the judgments could not be reviewed in the district court any more by injunction than appeal. No ground is set up in the petition that would warrant injunction, and it would be as well to complain that no appeal was allowed by law, or that the injunction could not be granted. The district courts cannot give to themselves a jurisdiction to review the errors of inferior courts, and so add to their jurisdiction powers not granted by the Constitution. Taking the allegations of plaintiff’s petition as true, there was evidently injustice done the appellant, but it was such as could have been remedied by the justice upon motion for new trial, and by him alone. There was no error in the judgment of the district court in dismissing' the petition and dissolving the injunction.”

For the reasons pointed out we hold that the district court of Anderson county was without jurisdiction to grant the injunction in the first instance, and that this court is without jurisdiction to hear and consider the appeal. The motion is therefore overruled.

Overruled.
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text:
    BANFIELD v. DAVIDSON.
    (No. 7543.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 28, 1918.)
    1. Frauds, Statute of @=323(4) — Promise to Answer for Debt of Another — Original Undertaking. -
    Where defendant injured a boy, and took him to plaintiff’s hospital, and requested plaintiff to treat the boy’s broken leg, defendant’s agreement to pay plaintiff for his services was an original undertaking of defendant’s, not within the statute of frauds as to a promise to pay for the debt, default, or miscarriage of another.
    2. Trial <@=237(1) — Instruction—Burden of Proof.
    In a physician’s action for hospital services rendered a boy injured by defendant, the court’s special charge held clearly to have instructed the jury that only in the event they should find from a preponderance of the evidence that plaintiff had proven his cause of action could they render verdict for him.
    3. Trial @=^260(2) — Instructions—Repetition.
    The trial court is not required to give a general charge, independent of the special charges given, where such special charges fairly cover all the issues called for by the pleadings and evidence.
    Appeal from Wharton County Court; W. G. Davis, Judge.
    Suit by G. L. Davidson against J. A. Ban-field. From a judgment for plaintiff, defendant appeals.
    Afurmed.
    Hall & Barclay, of Wharton, for appellant. H. A. Cline, of Wiharton, for appellee.
   LANE, J.

This suit was instituted by Dr. G. L. Davidson, appellee, against J. A. Ban-field, appellant, to recover judgment for the sum of $291.45. It is substantially- alleged in the plaintiff’s petition that plaintiff: was a practicing physician on the 22d day of November, 1914; that on said date he owned a certain hospital known and called the “Caney Valley Hospital,” situated in the town of Wharton, Tex., in which he treated such patients, when so requested, as were brought to his hospital; that on said date appellant, Banfield, brought one Johnny Van to said hospital who was suffering from a broken leg, caused by the malicious and negligent act of appellant, and requested plaintiff to give said Van all such medical services and hospital accommodation and attention as might be necessary to .bring about the restoration of said Van; that for such services, accommodation, and attention, appellant, Banfield, before the same were undertaken, performed, or given, promised to pay appellee. It is further alleged that such services, accommodation, and attention were reasonably worth the sum of $291.45, and that appellant had refused to pay any part of the same.

By answer the defendant, J. A. Banfield, denied that he promised Dr. Davidson, either expressly or by implication, to pay him for the medical services, hospital accommodation, and attention furnished to Johnny Van, as alleged by Davidson. He further says that if he did make such promise the same was verbal only and not in writing, and that as the sum due appellee for the medical services, etc., was the debt of said Johnny Van, and not the debt of Banfield, he (Banfield) could not be held liable therefor, and he specially pleads the statute of frauds, which provides that no person shall be held liable for the debt, default, or miscarriage of another, unless such person shall by some agreement or memorandum in writing, signed by the prom-isor or by some person by him authorized, promise to pay such debt, default, or miscarriage of the Other. I-Ie also denied that Van was injured by any malicious or negligent act of his.

The cause was tried by the court before a jury, to whom the court gave the following special charges requested by the plaintiff:

“Gentlemen of the Jury: A promise to pay for services rendered to a third person at the promisor’s request is an original undertaking, not within the statute of frauds. Therefore, if you find from the evidence in this case that defendant promised to pay plaintiff for the services rendered Johnny Van, if any, by plaintiff, and that such services were rendered said Johnny Van at the request of defendant, then such promise need not be in writing, and defendant would be liable to pay plaintiff for the reasonable value of such services, and if you so find by a preponderance of the evidence, you will find for the plaintiff in such amount as you may find the reasonable value of such services.”
“Where one does for another that which the other is legally obligated to do, the law not only implies a previous request that the thing should be done, but a promise to compensate. Therefore, if you find in this case that defendant was driving his car at a reckless and dangerous rate of speed, and thereby struck and injured the witness, Johnny Van, without any negligence upon the part of the said Johnny Van, then defendant would be legally liable for such injuries and the services rendered by plaintiff in this case to witness Johnny Van, and if you so find, you will find for the plaintiff in such amount as said services are reasonably worth; notwithstanding you may find from the evidence that defendant did not promise to pay for such services.”

The verdict of the jury was for plaintiff Davidson against defendant Banfield for the sum of $291.45, the sum sued for, and judgment was accordingly entered for said sum. Banfield has appealed.

Appellant’s assignments, in substance, are: First, that the court erred in refusing, at the request of appellant, to instruct the jury that “no person can be held bound or liable upon a promise to answer for the debt, default, or miscarriage of another, unless the promise or agreement upon which the action is brought, or some memorandum thereof, is in writing and signed by the party to be charged therewith, or by some person by him thereunto lawfully authorized to sign the same, because the court gave no general charge covering the issue”; and, second, that the court erred in failing to charge the jury, at the request of appellant, that the burden of proof was upon the plaintiff to establish his cause of action by a preponderance of the evidence, because the court gave no general charge upon the question of burden of proof. Both of the assignments are without merit, and are overruled.

The agreement by appellant to pay Davidson for his services was an original undertaking of appellant.

There is no contention by either party that it is alleged in the pleadings of either party or shown by the evidence that the medical services or hospital accommodation given to Johnny Van were first performed, and thereafter a promise was made by appellant to pay the reasonable value for such services, etc. There was no evidence calling for a charge upon the statute of frauds. The cause of action alleged and proven was not within the statute of frauds. We think there was sufficient evidence to support a finding by the jury that on the 22d day of November, 1914, appellant, Banfield, negligently ran his automobile against Johnny Van, who was at the time riding a bicycle, and that by such negligent act the leg of Van was broken, and other injuries inflicted upon his body; that he was immediately taken by appellant to the hospital of appellee, and that on reaching said hospital appellant told appellee, Dr. Davidson, to take Van into his hospital, and give him all necessary attention, and to try to save his life, and that he (Banfield) would pay appellee for such services, etc.; that ap-pellee did take the said Van into his hospital upon such request of appellant, and did give him all necessary medical treatment and hospital accommodations and attention, as requested by appellant, for about six .weeks, and that such medical services, etc., were reasonably worth the sum of $291.45 — that being the sum for which judgment was rendered against appellant by the trial court.

We also think that by the special charge given by the trial court hereinbefore set out, the court fairly submitted to the jury every legal issue raised by the pleadings and the evidence, and that such charge clearly instructed the jury that only in the event they should find from a preponderance of the evidence that plaintiff, Davidson, had proven his cause of action could they render a verdict for him. These special charges, though requested by appellee, when given to the jury were charges of the trial court, and we know of no law which requires the trial court to give a general charge, independent of special charges given, where such special charges fairly cover all the issues called for by the pleadings and evidence. We do not think the court erred in refusing appellant’s special charges.

The judgment of the trial court is affirmed.

Affirmed.
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author: SWEARINGEN, J.

text:
    JONES et ux. v. LANNING.
    (No. 5962.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 13, 1918.
    Rehearing Denied March 13, 1918.)
    1. Homestead ⅛=>181½ — Abandonment — Questions of Fact.
    Where defendants sold their homestead with intent to abandon it, and executed a deed carrying with it the right to immediate possession by the grantee, the question of abandonment was one of fact, though they remained in possession as tenants at sufferance until they could obtain possession of a newly acquired homestead.
    2. Homestead <⅜=>33 — Establishment — Character of Occupancy.
    Where defendants sold their homestead intending to abandon it, the fact that they remained on the property as tenants at sufferance until they could obtain possession of a newly acquired homestead did not constitute a new designation of the property sold as their homestead.
    3. Homestead <S=94 — Liabilities Enforceable — Existing Liability.
    Where,, after the sale and abandonment of a former homestead, defendants acquired other property, their intent, formed at the time it was acquired, to use it as a homestead, was a dedication to homestead purposes, and rendered it exempt from the lien of an existing judgment.
    4. Appeal and Error <g=^1010(l) — Review-Questions of Fact.
    In a suit to foreclose the lien of a judgment, whether the property sued for was community property, whether four of the lots separated from the rest of the property were used as a part of the homestead, and whether defendants abandoned their former homestead before acquiring the property involved, were questions of fact and the finding thereon would not be disturbed where there was evidence to sustain it.
    5. Homestead <®=»94 — Liabilities Enforceable — Existing Liability.
    A homestead could be acquired in community property purchased after an abstract of judgment had been filed, recorded, and indexed, so as to render it exempt from the judgment lien.
    Appeal from District Court, Bexar County; ,S. G. Tayloe, Judge.
    Suit by Mrs. W. A. Lanning against L. Jones and wife. From a judgment for plaintiff for part of the relief sought, defendants appeal and plaintiff assigns cross-errors.
    Affirmed.
    Butler Knight, of San Antonio, for appellants. Randolph L. Carter, of San Antonio, for appellee.
   SWEARINGEN, J.

Appellee, Mrs. W. A. Banning, brought this suit against appellants, B. Jones and wife, Mary K. Jones, to foreclose a lien claimed by virtue of a filed, recorded, and indexed judgment for $600 upon ten lots, deeded to Mary K. Jones for her separate use and benefit, in the city of San Antonio, Tex. The trial was by the court without a jury. Judgment was in favor of appellee to the extent of foreclosing lien against the four lots segregated from the homestead by the alley. Judgment was in favor of appellants to the extent of holding the six lots exempt from lien because used as homestead.

Appellants claimed that the ten lots were the separate property of the wife, Mary K. Jones, and that all ten lots constituted the homestead of appellants and their seven children from the moment of purchase continu-' ously up to the time of the trial.

The evidence discloses that all ten of the lots belonged to the community estate of L. Jones and wife. The evidence also shows that four of the lots were separated by an alley from the six lots on which appellants actually resided; that the four lots were not used as a part of appellants’ homestead, but the other six were. The evidence further shows that at the time appellants purchased the ten lots they owned no home, but were living, as a tenant at sufferance, in a place which they had sold in October, 1913, possession of which appellants had promised to deliver upon delivery of the deed in October, 1913. In December, 1913, they contracted to acquire the ten lots in controversy for the purpose of using the said property as their homestead. There was a residence upon the property contracted for. Possession of the house and ten lots was not actually surrendered to appellants in 'December, 1913, but the deed was put in escrow until a certain note of $12,000 could be hypothecated. Delivery of possession was further delayed by the failure of the tenant to vacate until early in March, 1914; but as soon as the tenant vacated appellants moved in.

The trial court found that the four lots separated from the homestead by an alley were not used as a homestead or a part of the homestead, and were therefore not exempt from the judgment lien. There is evidence to sustain this finding of the court.

The court found that appellants owned no home at the time they dedicated the property here involved, except this property, and that they purchased this property with the intention of making it their home, and that 1 the intention was consummated as soon as feasible after acquiring it for the purpose. Freiberg v. Walzem, 85 Tex. 264, 20 S. W. 60, 34 Am. St. Rep. 808; Gardner v. Douglass, 64 Tex. 76.

Appellee contends that appellants were in the actual possession of a home on Carter street, though they sold it in October, 1913; that this sale was not an abandonment of the .Carter street home, because they were permitted to remain in possession of it temporarily ; and that until appellants actually moved away from the Carter street house they could not abandon it- as a homestead, notwithstanding they sold it; and not being able to abandon the Carter street home, they could not acquire another home, notwithstanding their clear intention, preparation, and acts. To support this, the following cases are cited: Archibald v. Jacobs, 69 Tex. 248, 6 S. W. 177; Allen v. Whitaker, 27 S. W. 507; Johnston v. Martin, 81 Tex. 18, 16 S. W. 550; to which might be added Pierce v. Langston, 193 S. W. 745. The question of the abandonment is one of fact, and the fact depends upon the intent of the husband and wife. The cases last above cited hold that the mere intent to abandon the home cannot effect an abandonment where the property is continued to be used as a homestead. But it will be observed that the principle of law applied in those cases is that two homesteads cannot be claimed at the same time, one in prsesenti and another in futuro. In the cases cited the claimants owned both places, the one occupied and the one being prepared for a homestead. But where the intent to abandon a homestead is proven, and that intent is accompanied by an actual sale of the property by a deed executed by the husband and wife, which deed carries with it the right to immediate possession by the grantee, the question of abandonment becomes a question of fact. This fact was determined by the trial court establishing the abandonment at the time of the sale of the Garter street homestead in October, 1913.

The fact that the appellants remained upon the property with their family as tenants at sufferance until they could obtain possession of the newly acquired homestead, involved herein, did not of itself constitute a new designation-of the Carter street property as their home. The trial court was authorized to find as a fact that the Garter street home was abandoned by sale. Edmonson v. Blessing, 42 Tex. 596; Blessing v. Edmondson, 49 Tex. 333; 13 Ruling Case Law, 635, § 114, sub. 1.

After the sale and abandonment of the Garter street home in October, appellants could acquire the home here involved, and their intent, formed at the time the property was acquired, to use it as a homestead, was a dedication to homestead purposes, and rendered the property exempt from the judgment lien. Freiberg v. Walzem, 85 Tex. 264, 20 S. W. 60, 34 Am. St. Rep. 808; Gardner v. Douglass, 64 Tex. 76.

Whether the property sued for was the community property of appellants, whether the four lots separated from the six lots and house were used as a homestead, whether appellants abandoned their Garter street homestead before acquiring the property here involved, are all three questions of fact, and, as there was evidence to sustain the finding of the trial court, that finding will not be disturbed. Derry v. Harty, 187 S. W. 343.

Whether a homestead could be acquired in community property purchased after an abstract of judgment had been filed, recorded, and indexed that would render the homestead property thus acquired exempt from the judgment lien is a question of law that has been determined in appellants’ favor in the case of Freiberg v. Walzem, 85 Tex. 264, 20 S. W. 60, 34 Am. St. Rep. 808.

None of the assignments and none of the cross-assignments present erroneous action of the trial court.

The judgment is affirmed.
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author: PLEASANTS, C. J.

text:
    JONES v. FRAZIER.
    (No. 7487.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 10, 1918.
    Rehearing Denied Jan. 31,1918.)
    Husband and Wife <§=272(1) — Community Fund — Effect of Divorce.
    Where a divorced wife, whose property rights were not involved in the divorce suit nor disposed of in the divorce decree, was the owner of one-half of money constituting community property, and there was nothing to indicate that her interest was liable for any debts contracted by her husband, she was entitled to recover one-half of the fund from her husband’s administra-trix.
    Appeal from District Court, Galveston County; Robt. G. Street, Judge.
    Action by Bessie Frazier against Mattie L. Jones, temporary administratrix. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Allen G. Perkins, of Galveston, for appellant.
    L. R. Patton, of Galveston, for ap-pellee.
   PLEASANTS, C. J.

This proceeding was begun in the county court of Galveston county by a petition filed therein by .appellee against appellant, administratrix of the estate of .Albert Cole, deceased, to require her, as such administratrix, to turn, over to petitioner one-half of the sum of $421, which at the date of the death of Albert Cole was on deposit in his name in the First National Bank of Galveston, and had been withdrawn therefrom by appellant after her appointment as temporary admin-istratrix.' The petitioner claimed that said money was community funds earned by the deceased while he was the lawful husband of petitioner, omj one-half thereof belonged to petitioner, who was divorced from said Cole some time prior to his death, the property rights of petitioner not being involved in the divorce suit nor attempted to be disposed of in the divorce decree. Upon a trial in the county court judgment was rendered in favor of the defendant administratrix. On appeal and trial de novo in the district court judgment was rendered in favor of ap-pellee for one-half of the fund involved in the suit.

We think the record sustains the finding of the trial court that appellee owned one-half of the fund in controversy, and there is nothing in the record to indicate that the interest of appellee was liable for any debts contracted by her former husband during the existence of the marital relation. Upon these facts the trial court correctly held that ap-pellee was entitled to a judgment for her interest in the fund.

None of the assignments presented in appellant’s brief shows any sufficient ground for a reversal of the judgment, and none of them can be sustained.

It follows that the judgment of the court below should be affirmed; and it has beeD so ordered.

Affirmed.
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author: JENKINS, J.

text:
    SHULER v. CITY OF AUSTIN.
    (No. 5858.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 13, 1918.)
    1. Appeal and Error ®=»733 — Assignments of Error — Generality.
    An assignment of error that “the court erred in rendering a judgment contrary to law” is too general to be considered as a proposition within itself, and violates Rev. St. art. 1612, and rules 24, 25, and 26 for Courts of Civil Appeals (142 S. W. xii), as to necessity of assignments of error pointing out the specific error complained of.
    2. Appeal and Error <⅞=3742(6) — Assignments of Error — Generality.
    An assignment of error that “the court erred in rendering a judgment contrary to law,” not being sufficiently specific to be considered as a proposition, violates rule 30 (142 S. W. xiii), in that it is not followed by any proposition.
    3. Appeal and Error <®=>742(6) — Assignments of Error — Statement Accompanying Assignment.
    Plaintiff’s assignment of error that “the court erred in rendering a judgment contrary to law,” not being followed by statement showing what, if any, evidence was introduced, to sustain the allegations of plaintiff’s petition, violates rule 31 (142 S. W. xiii), in regard to briefing cases.
    4. Appeal and Error <§=^281(1) — Assignment of Error — Presentation on Motion for New Trial.
    An assigned error not called to the attention of the conrt in a motion for new trial cannot he considered.
    5. Appeal and Error ⅞=»729 — Assignment oe Error — Generality.
    An assignment of error “because the court erred in instructing a verdict contrary to law,” held to violate Rev. St. art. 1612, requiring distinct specification of errors and rules for preparing a cause and briefs (142 S. W. xii).
    6. Appeal and Error <§=>729—Assignment oe Error—Generality.
    An assignment of error “because the court erred in charging the jury as follows,” setting out a peremptory instruction, Mid to violate Rev.. St. art. 1612, requiring distinct specification of errors, and rules for preparing a cause and briefs (142 S. W. xii).
    7. Appeal and Error <§=>730(1) — Assignment of Error—Generality.
    An assignment of error that the “court erred in failing to give the special charges,” referring to them by number, held to violate Rev. St. art. 1612, requiring distinct specification of errors, and rules for preparing a cause and briefs (142 S. W. xii).
    8. Appeal and Error ©=263(3), 730(2)—Set-ting Out Charges Refused—Assignment of Error—Exception to Refusal to Give Charges.
    An assignment of error that “the court erred in failing to give the special charges,” numbering them, was insufficient because the special charges requested and refused were not set out in the assignment itself, nor in the statement following the same, and because it did not appear that appellant excepted to the refusal of the court to give such special charges, as required by Rev. St. art. 2061.
    9. Appeal and Error <§=>212 — Assignment of Error—Objections to Charge,.
    An assignment of error to a peremptory instruction for appellee would not be considered; it not appearing that appellant objected to the giving of the charge complained of, as required by Rev. St. art. 1971.
    Appeal from District Court, Travis County ; Ireland Graves, Judge.
    Action by W. P. Shuler against the City of Austin. Erom a judgment for defendant, plaintiff appeals.
    Affirmed.
    W. J. Crider and Jno. R. Cox, both of Austin, for appellant. J. B. Rector, City Atty., and Hart & Patterson, all of Austin, for ap-pellee.
   JENKINS, J.

This suit was brought by appellant to recover damages for injuries received by his wife and daughter, by reason of coming in contact with a guy wire charged with electricity, which it is alleged appel-lee negligently permitted a carnival company to place across a sidewalk in the city of Austin. At the conclusion of the testimony on behalf of appellant, the court peremptorily instructed a verdict for appellee. Appellant sets out in his brief four assignments of error, to the consideration of each of which the appellee has filed objéetion, for the reason that neither of them complies with the law and the rules prescribed by the Supreme Court with reference to assignments. These objections must be sustained.

The first assignment of error is as follows: “The court erred in rendering a judgment contrary to law.” This is too general to be considered as a proposition within itself. Houston v. Blythe, 71 Tex. 719, 10 S. W. 520; Railway Co. v. Montier, 61 Tex. 122; Railway Co. v. Irvine, 64 Tex. 529; Smelting Co. v. Conring, 33 S. W. 547. It is in violation of article 1612, R. S., and of rules 24, 25, and 26 for the Courts of Civil Appeals (142 S. W. xii), as to the necessity of assignments of error pointing out the specific error complained of.

Not being sufficiently specific to be considered as a proposition, it is in violation of rule 30 (142 S. W. xiii), in that it is not followed by any proposition. Cockrell v. Egger, 99 S. W. 568; Railway Co. v. Wafer, 62 Tex. Civ. App. 74, 130 S. W. 712; Chapman v. Brite, 4 Tex. Civ. App. 506, 23 S. W. 514; Adcock v. Creighton, 27 Tex. Civ. App. 243, 65 S. W. 42; Railway Co. v. Calnon, 20 Tex. Civ. App. 697, 50 S. W. 422.

The assignment is not followed by a statement showing What, if any, evidence was introduced to sustain the allegations of plaintiff’s petition. íhis is a violation of rule 31 (142 S. W. xiii) in regard to briefing cases. Chastain v. Hoskins, 168 S. W. 421; Havard v. Lumber Co., 125 S. W. 929; Settle v. Traction Co., 126 S. W. 15.

There is nothing in appellant’s brief to show that the attention of the court was called to the alleged error in a motion for a new trial, and for this reason, among others, the assignment of error cannot be considered. Jackson v. Hot Wells Co., 186 S. W. 247; Perry v. McNeill, 189 S. W. 120.

The objections to appellant’s first assignment of error, as above stated, are also applicable to his remaining assignments, which are as follows:

Second Assignment of Error. “Because the court erred in instructing a verdict contrary to law.”
Third Assignment of Error. “Because the court erred in charging the jury as follows,” setting out the same, which is a peremptory instruction to return a verdict for the defendant.
Fourth Assignment of Error. “The court erred in failing to give the special charges Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14.”

The fourth assignment is insufficient for the additional reason that the special charges requested and refused are not set out in the assignment itself, nor in the statement following same. Yecker v. Traction Co., 33 Tex. Civ. App. 239, 76 S. W. 780; Railway Co. v. Laws, 61 S. W. 498; Ford v. Freeman, 168 S. W. 80; Armstrong v. Clem, 151 S. W. 576. And also it does not appear that appellant excepted to the refusal of the court to give such special charges as required by article 2061, R. S. Railway Co. v. Dickey (Sup.) 187 S. W. 188.

The third assignment does not comply with- the statute (article 1971, R. S.), in that it does not appear that appellant objected to the giving of the charge complained of, as required by article 1971, R. S. Railway Co. v. Dickey, supra, 187 S. W. 186-189. In Railway Co. v. Dickey, supra, it was held by the Supreme Court that, while it is not necessary to take a bill of exception to the general charge of the court, it is necessary to xioint out to the court, before the charge is read, to the jury, the particular objections thereto, otherwise the samé must be considered as waived. Many other cases might be cited to sustain the points herein decided, but as decisions on these points are so numerous, and of such long standing, and so uniform, we feel like apologizing for citing any authorities in this opinion. Our excuse for doing so is that as one or more of such errors continue to appear in briefs with great frequency to the present time, we hope (perhaps it is a vain hope) that by collecting in one case a number of authorities on these several points to, in some degree, prevent such errors in the future.

This court has never been technical in its enforcement of the rules in regard to briefs, preferring, where we can do so, to decide cases on their merits; but we have no authority to overrule the plain mandates of the statute, and of the rules prescribed by the Supreme Court for our government.

For the reason that the brief of appellant does not comply with the law, nor the rules in reference to briefs, the objections to appellant’s brief are sustained, and the judgment of the trial court is affirmed.

Affirmed.
      <P=>Foi other caites see same topic and KEY-N UMBER in all Key-Numbered Digests and Indexes


text:
    KEPPLER et al. v. KELLY.
    (No. 324.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 23, 1918.
    Rehearing Denied March 13, 1918.)
    1. Chattel Mortgages ©=8 — Construction op Agreements — Eppect.
    A written agreement, whereby plaintiff in consideration of $60 bargained, sold, and delivered certain personal property to defendant, and a contemporaneous agreement, reciting that the bill of sale was executed to secure the $60, and agreeing that the property should be transferred to plaintiff on his payment .of the $60, were in effect a chattel mortgage and not a pledge, under which either party, by agreement, might have possession of the property.
    2. Sequestration <§=>21 — Personal Property-Damages.
    In a suit for damages for the wrongful sequestration of personal property shown to have a particular use to the owner, his peculiar damage from its seizure and detention was recoverable, though in an ordinary case the owner might be entitled only to the wrongful rental value of the property during the period of detention.
    3. Sequestration <§=>21 — Wrongful Sequestration of Personal Property — 'Verdict — Evidence.
    On evidence in a suit for damages for the wrongful sequestration of personal property, judgment for plaintiff for $419.70, in view of the restoration of the property to him, held grossly excessive.
    Appeal from Milam County Court; W. G. Gillis, Judge.
    Suit by Jack Kelly against O. J. Keppler and others.. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded for a new trial.
    Henderson, Kidd & Henderson, of Cameron, for appellants. Chambers & Wallace, of Cameron, for appellee.
   BROOKE, J.

This is a suit by appellee against appellants to recover damages for the wrongful sequestration of personal property. On trial in the county court, the jury found that the property sued for and sequestered by the appellant Keppler in the-justice court was over the value of $200, and the justice court case was, on the trial in the county court, dismissed for want of jurisdiction. There was no appeal from this judgment of dismissal. The jury found in the case under review that appellee’s damages for the wrongful sequestration of the property was $500, and the court, after deducting an amount which appellee owed the appellant Keppler, and a remittitur by appellee, entered judgment for appellee for the sum of' $4X9.70 against the appellant Keppler. Notice of appeal was duly given and perfected, and the ease is before this court for disposition.

The first assignment of error is as follows:

“The court erred in refusing to submit to-the jury special charge No. 2, requested by these defendants, to the effect that the bill of sale and contemporaneous agreement in evidence constituted a pledge which entitled defendant Kep-pler to the possession of the property described in said bill of sale until the $60 mentioned therein was paid, and to the effect that if the jury should find that said $60 was not paid at the time said defendant instituted-his suit at Thorn-dale for the possession of said property, they should answer question No. 2 of the court’s main-charge in the affirmative; question No. 2 inquiring as to whether said defendant Keppler was entitled to possession of the property in question at the time he instituted his said suit in the justice court at Thorndale.”

The plaintiff and defendant had entered into the following agreement in writing:

“Know all men by these presents, that I, Jack Kelly of the county of Bosque and state-aforesaid, for and in consideration of the sum of sixty and no/100 dollars to me in hand paid by O. J. Keppler, the receipt of which is hereby acknowledged, have bargained, sold and delivered, and by these presents do bargain, sell and' deliver unto the said G. J. Keppler of the county of Bosque and state of Texas, the following described personal property in Bosque county,. Texas, to wit:
“[Here follows the description of the property. The instrument is dated August 18, 19X6.]
“[Signed] Jack Kelly.”

The contemporaneous agreement was as follows:

“The State of Texas, County of Bosque.
“Know all men by these presents, that I, C. J. Keppler of the county of Bosque and state of' Texas, for and in consideration of one dollar, and the further consideration of the execution of one certain bill of sale executed by Jack Kelly the 18th day of August, 1916, do hereby promise and agree to said Jack Kelly, that upon-his payment of ($60.00) sixty dollars to me in hand, said property described in bill of sale is to be transferred back to said Jack Kelly, it being understood and agreed that said bill of sale is executed for the purpose of securing the sixty dollars which the said O. J. Keppler has advanced to Geo. H. Sanders to cover balance due him by said Jack Kelly.
“Witness my hand at Iredell, Texas, this 18th day of August, A. D. 1916.
“[Signed] C. J. Keppler.”

Without going into 'detail, it is only necessary for this court to say that we construe the above instruments together as being a chattel mortgage. Either party under said instruments could, by agreement, have possession of the. property, and it is shown that the possession of the property remained in the grantor. Having decided that the instruments together form a chattel mortgage, and not a pledge, we overrule the first assignment of error.

The second assignment of error is as follows:

“The court erred in its charge to the jury in instructing the jury that the measure of damages would be the reasonable value of the use to Jack Kelly of the property seized in sequestration from the date of such seizure to the date of trial; the correct measure of damages in the case being the reasonable rental value of such property during said period.”

It is sufficient to say under this assignment that under the facts in this case the property was shown to have a particular use to the owner, and that its seizure and detention caused damages peculiar to such owner. We agree with the proposition, however, of appellants that in any ordinary case the owner, perhaps, would be entitled only to the reasonable rental value of the property during the period of its detention. The assignment is overruled.

The third assignment complains of the finding of the jury on special issue No. 5 submitted in the court’s main charge, and says that the verdict is contrary to the great preponderance and great weight of the evidence, and that, in fact, it was contrary to all the evidence of any probative force in the case, in that said finding states the plaintiff Kelly’s damage to be the sum of $500, when such evidence shows said plaintiff’s damage could in no event approach any such sum, and in fact shows that if he sustained any damage whatever, it was only nominal, and such amount so found by the jury is greatly excessive. The proposition under this assignment is as follows:

“A witness’ uncorroborated testimony, which, upon its face, is not only speculative, but inconsistent, contradictory, and incredible, which furnishes no facts or definite information tending to aid the jury in determining the issue in volved, and which exhibits a disposition on the part of such witness to deal in extravagant gen-eralties, in disregard of his oath, and to venture reckless opinions which are shown, by the facts he does testify to or admit, to be violently erroneous and incorrect, is without probative force, and will not support a finding of the jury, especially when such witness is a party to the -suit.”

This assignment must be sustained. The property was restored to the appellee. The jury found that the said tent which was of the value of $300, having been kept from the use of the owner for 2 months and 19 days, would have yielded' a net income of $500. The testimony of Jack Kelly was the only testimony in the case with reference to damages. It could in no event be estimated according to the statement of Kelly that it would have yielded or been worth to him any such amount during said time. This court will not attempt to set out the testimony, which is contradictory, and which has no basis for the finding of the jury for such, amount, but it will only be necessary to say that in the opinion of this court the finding is grossly excessive, and that for this rear son the cause must be reversed and remanded for a new trial. It is so ordered.
      <g^>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PER CURIAM. HAWKINS, J.

text:
    HENNINGSMEYER et al. v. FIRST STATE BANK OF CONROE.
    (No. 3982.)
    (Supreme Court of Texas.
    March 6, 1918.)
    On motion for rehearing.
    Rehearing denied.
    For former opinion, see 195 S. W. 1137.
   PER CURIAM.

Rehearing denied.

HAWKINS, J.

(dissenting).

The grounds upon which the application for a writ of error was dismissed by this court for want of jurisdiction are sufficiently shown in the opinion of Chief Justice Phillips and my dissenting opinion, 195 S. W. 1137, 1138, not yet officially reported.

Plaintiffs in error filed here a motion for a rehearing, which was overruled, this writer dissenting. Said motion is supported by an original affidavit by Associate Justice A. G. Brooke, dated October 4, 1917, subsequent to said order dismissing said application. From said affidavit the following is copied:

“That he is an associate justice of the Court of Civil Appeals of the Ninth Supreme Judicial District of Texas, sitting at Beaumont, and has been such associate justice since the creation and organization of such court; that he prepared and filed the opinion of such court in the case of Fred and Mary Henningsmeyer v. First State Bank of Conroe, reported in volume 192, pages 286 to 291, of the Southwestern Reporter; that when said amended or second motion for rehearing was filed by the appellants in said cause the said motion was considered by him upon its merits; that while it is a fact that one of the reasons that induced him to vacate and set aside its original order overruling appellant’s original motion for rehearing was to preserve the right to appellants to have our judgment affirming the decree of the district court reviewed by the Supreme Court, yet it is also true that said second motion for rehearing was considered by him upon its merits, and the authorities cited by the appellants in support of their amended motion for rehearing were carefully re-examined by affiant, and said motion considered upon its merits and in good faith by the court.”

It will be observed that, while conceding that one of the reasons which induced the affiant to join in setting aside the order of that court overruling appellant’s original motion for a rehearing was to extend the date from which should be reckoned the period of time allowed by law for filing the petition for the writ of error, said affiant, the author of the opinion of the Court of Civil Appeals in this case, unequivocally swears, nevertheless, that the amended or second motion for rehearing was considered by the affiant “upon its merits,” and that the authorities cited in support of it “were carefully re-examined by affiant.” The last two statements tend strongly to prove good faith on the part of that court. And to that Associate Justice Brooke added, under oath, the positive declaration that said amended or second motion was “considered upon its merits and in good faith by the court.” To rebut said affidavit there was nothing before this court except the facts and recitals mentioned in said cited opinions.

The last-quoted declaration of said affidavit is, I think, of controlling force. Of course, that court knew, as a matter of law, that one legal consequence of its action in setting aside its former order overruling the motion for a rehearing would be ordinarily to extend the time for appealing the case; but I regard that fact and such result as of minor importance here if, as stated by Judge Brooke, that action of the court was indeed taken “upon the merits” of the motion, after careful re-examination of the authorities cited in its support, and “in good faith by the court.”

Under the circumstances said affidavit, if not conclusive upon the issue of good faith of the Court of Civil Appeals — the sole issue upon which the jurisdiction of this court has been made to turn — at least goes far toward neutralizing the facts and recitals in the record which, as the cited majority opinion of this court discloses, induced this court to dismiss said application for lack of jurisdiction in this court, despite the ordinary presumption that courts do their duty and act in good faith.

Assuming, as I do, that said affidavit speaks the truth concerning the bona fides of the Court of Civil Appeals, I am of the opinion that, upon said single issue of fact which is determinative of the jurisdiction or lack of jurisdiction of this court over this case, the weight of evidence before this court, including the entire record as well as said affidavit, is in favor of the good faith of the intermediate appellate court, and consequently in favor of the jurisdiction of this court. In short, I believe that in this instance the good faith of the Court of Civil Appeals and the jurisdiction of this court ought to have been sustained by this court: First, upon said presumption; and, second, upon the evidence before us.

Another feature of this case seems to me to demand mention. In their cited opinion my associates do indeed expressly disclaim “any purpose to in anywise cast a doubt upon the good faith” of said action of the Court of ■Civil Appeals in setting aside its former order, and add “to relieve a seeming hardship it doubtless felt constrained to grant the appellant’s request”; nevertheless therein they also expressly declare that “there is nothing in the record which even remotely suggests that the order that set aside the former order, overruling the original motion, was for any other purpose than to permit the filing of the petition for writ of error as within the time required by law, in accordance with the appellant’s request.”

In my estimation that finding and declaration of fact by this court, coupled, as it was, with its order “dismissing” said application for want of jurisdiction here, and followed, as it was, by this court’s order overruling the motion for a rehearing by this court, amounts practically to a finding and final declaration that, in the premises, the Oourt of Civil Ap-' peals, although actuated by benevolent impulses, deliberately perpetrated what I would consider and call a fraud upon this court’s jurisdiction.

However sound, when announced, may have been the conclusion that “there is nothing in the record which even remotely suggests” that the order of the Court of Civil Appeals in question “was for any other purpose than to permit the filing of the petition for writ of error as within the time required by law,” that conclusion seems to me to comport no longer with the facts, in view of the terms of said subsequently filed affidavit of explanation and disclaimer made by Judge Brooke in behalf of himself and his court. However, nothing has been written by said majority of this court concerning said affidavit or the action overruling said motion in this court for a rehearing, although said affidavit relates closely to the quality of the very action of the Court of Civil Appeals which this court has so declared justifies its action in “dismissing” said application, and which presumably, and so far as I know, impelled this court to overrule said motion in this court for a rehearing, despite said' affidavit.

Said affidavit is set out herein both to show the additional grounds of this dissent, and as a matter of simple justice to said Court of Civil Appeals. My conclusion is that this court should have granted said motion for a rehearing, and should have considered, on its merits, said application-for the writ of error.