author: CONNER, C. J.

text:
    FT. WORTH BELT RY. CO. v. JONES et al.

    (No. 8283.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 8, 1916.
    Rehearing Denied Feb. 12, 1916.)
    1. Appeal and Error &wkey;>301 — Review — Waiver of Error.
    Under Rev. St. 1911, art. 1612, constituting the motion for new trial the assignments of error, an objection to the submission of a special issue whether the “cut of cars” upon which deceased and his fellow switchman were at work was engaged in moving or handling in-tcrstate commerce is waived, where it is not continued in the motion' for new trial.
    [Ed. Note. — For other cases, see Appeal 'and Error, Cent. Dig. §§ 1743, 1753-1755; Dec. Dig. &wkey;>301.]
    2. Appeal and Error &wkey;»1073 — Review — Harmless Error.
    That in form the recovery in an action for causing death is in the name of the executrix, as authorized by the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 LU. S. Comp. St. 1913, §§ 8657-8665]), instead of the surviving wife, children, and parents of deceased, as required by the state statute, is not material where the verdict and judgment specify the particular amounts to which the wife, children, and surviving parent are entitled ; both statutes requiring the action to be brought for the benefit of the same persons.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4240-4247; Dee. Dig. &wkey;> 1073.]
    3. Master and Servant &wkey;>276, 278 — Injuries to Servant — Actions—Evidence.
    In an action for causing death of a servant, evidence held insufficient to show negligence of the employing railroad in permitting excavations near the railroad track by a third party, or failing to keep a watchman at the point, or that such negligence, if any, was the proximate cause of the injury to deceased.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 950-952, 954, 956-972, 976, 977; Dec. Dig. &wkey;276, 278.)
    4. Master and Servant &wkey;v279 — Injuries to Servant — Actions—Evidence.
    In an action for causing the death of a railroad employé, evidence held to authorize the jury to find that the stop signal, which resulted in the fall of deceased, was given by his fellow servant, and not by deceased himself.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 973-975, 978-980; Dec. Dig. &wkey;279.]
    6. Limitation oe Actions &wkey;> 127 — Computation oe Period — Amendment oe Pleading.
    Amendment of the complaint for causing the death of an employé by the intervention of the administratrix and allegation of a cause of action under the federal Employers’ Liability Act more than two years after the death of deceased does not show a new cause of action barred by section 6, which provides that no action shall be maintained under the act unless commenced within two years from the accrual of the cause of action.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 543-547; Dec. Dig. <&wkey;>127.]
    6. Limitation oe Actions &wkey;>127 — Computation oe Period — Amendment oe Pleading.
    The amendment of a complaint for causing the death of a railroad employé by alleging as an additional ground of recovery the negligence of a fellow servant based upon Rev. St. 1911, art. 6640, providing that every person operating a' railroad shall be liable for damages sustained by an employé by reason of the negligence of a fellow employé, while the original cause was based solely on articles 4694, 4695, which, in effect, provide that death will not abate an action for personal injuries, does not state a new cause of action so as to bar recovery thereon under the two-year statute of limitations (Rev. St. 1911, art. 5687, par. 7).
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 543-547; Dec. Dig. <&wkey; 127.]
    Appeal from District Court, Tarrant County ; Marvin H. Brown, Judge.
    Action by Helen Jones and others against the Ft. Worth Belt Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed. See, also, 166 S. W. 1130.
    Lassiter, Harrison & Rowland and Slay & Simon, all of Ft. Worth, for appellant. McLean & Scott and Carlock & Carlock, all of Ft. Worth, for appellees.

       Application for writ of error pending in Supreme Court.

   CONNER, C. J.

This suit was instituted in the district court on the 21st day of May, 1910, by the widow, children, and mother of Frank Jones against the Ft. Worth Belt Railway Company, seeking to recover damages in the sum of 850,000 on account of the death of said Frank Jones on March 2, 1910, while working as a switchman for the defendant company. The fatal accident occurred while the switching crew' was handling a long string of cars. The engine was pushing the cars ahead of it, and Jones and another switchman were riding on top of the car farthest from the engine. Jones and the man with him discovered a piece of iron pipe lying across one of the rails a short distance in advance of the train, and, fearing that the pipe would derail the cars, Jones arose from a sitting position and started to go down the ladder on the forward end of the forward car, with the evident purpose of removing the pipe before the train reached it. At or about the time, however, that he started down the ladder, Jones, or his fellow switchman, signaled to the engineer, who in obedience to the signal applied the emergency brakes, with the result that Jones was thrown forward to the ground, and before he could arise the train resumed its onward motion and ran over him and killed him.

The grounds of negligence alleged in the original petition were that the defendant company had permitted its track to become so obstructed with piles of dirt and iron pipe that the place of the accident was unsafe, and that it negligently failed to have the engine equipped with the proper brakes.

The defendant railway company pleaded the general denial, pleas of assumed risk and of contributory negligence, and impleaded Armour & Co., alleging that that company was engaged in the work of excavation near the track at the place of the accident, and that, if the pipe got on the track through the negligence of any one, such negligence was primarily that of the employés of Armour ft Co., and the prayer was that, if the defendant railway company should be held liable on account of the presence of the pipe od the track, it be permitted to recover ovei against Armour & Co.

On November 7, 1910, the plaintiffs filed an amended petition,' alleging substantially as before, except that the allegation of negligence in a failure to have the engine equipped with the proper brakes was abandoned, and it was added that the enginer was negligent in suddenly and yiolently stopping the train. It was also alleged that the defendant was guilty of negligence in failing to have a watchman at the place. On the day of this amendment the case was first tried, and resulted in a directed verdict in favor of Armour & Co. as against the cross-action asserted by the railway company, and in a verdict for the plaintiffs against the railway company for damages in the sum of $10,863. The only issue of negligence submitted to the Jury on that trial was whether or not the iron pipe referred to got on the rail through the negligence of the defendant railway company. On appeal to this court it was held by us that the evidence failed to support the issue of negligence on the part of the defendant railway company in obstructing its track with the iron pipe as submitted by the trial court, and, the Supreme Court having answered on certificate from us that the directed verdict in favor of Armour & Co. was correct (see Ft. Worth Belt Ry. Co. v. Jones [Sup.] 166 S. W. 1130), the case was remanded for a new trial as between the defendant railway company and the plaintiffs only.

Thereafter, on February 8, 1915, the plaintiffs filed an amended petition in which, after alleging negligence on the part of the defendant, as before, in permitting the obstruction of the railway track, they for the first time further alleged that Swope, the fellow switchman who was with deceased at the time, was negligent in giving the engineer the signal to stop, which, having been obeyed, resulted as before stated. The defendant, pleading as before, also alleged that the deceased and Swope were engaged in interstate commerce at the time, whereupon Helen Jones filed a plea of intervention as administratrix of the estate of the deceased, and prayed that she might be permitted to recover in that capacity in event it was found that the plaintiffs’ right of recovery rested upon the federal act regulating the liability of railroads for injuries to employés while engaged in interstate commerce. See Fed. Stat. Ann. Supp. 1909, bottom page 58-1 et sect-

The case was submitted upon numerous special issues, all of which were determined in favor of the plaintiffs, and judgment in the sum of $12,000 was awarded to Mrs. Helen Jones, as administratrix, for the benefit of herself and the deceased’s mother and children; the verdict and judgment specifying the particular amounts to which each was entitled. The defendant railway company has appealed.

We will first briefly dispose of several questions about which we think there can be hut little, if any, controversy. A number of questions are presented by the assignments which relate to the issue of defendant’s plea that the deceased was engaged in interstate commerce at the time of his death. The jury found in answer to a special issue that the .“cut of cars,” referring to those upon which the deceased and his fellow switchman were at work, was not at the time engaged in “moving” or “handling” interstate commerce. The submission of this issue was objected to, among other things, and the verdict of the jury thereon is attacked on the ground that the undisputed evidence shows that the parties were employed in interstate commerce at the time of the accident in question. We will not review the evidence relating to the subject; for, if in any view the issue can be said to be material, we find that the appellant’s motion for new trial failed to continue the objection to the submission of the issue, and also wholly failed to question the finding of the jury thereon. So that, in view of the statute constituting the motion for new trial the assignments of error (R. S. art. 1612), it must be held that the previous objections have been waived, and that, as between the parties herein, the finding against appellant on the issue is conclusive. See Revised Statutes, art. 1986; Weinstein v. Acme Laundry, 166 S. W. 126.

The fact that in form the recovery in this case was in the name of the executrix, as authorized and required by the federal Employers’ Liability Act, instead of in the name of the surviving wife, children, and parent of the deceased, as required under our statute, can be of no material moment in view of the fact that the verdict and judgment in this case specifies the particular amounts to which the wife, children, and surviving parent were entitled, both statutes alike requiring the action to be brought for the benefit of the persons named, with exception now unnecessary to notice.

As alleged and shown in the testimony, employés of Armour & Co. had been engaged in some excavations near the track and about the place where the iron pipe was found upon the track, and one of the hotly contested issues was whether the defendant railway company was guilty of negligence proximately causing the injury under consideration in permitting the dirt from the excavations to be so piled near the track as to afford an opportunity for an iron pipe to fall thereon and roll down upon the track, and whether, under the circumstances, it was the duty of the appellant to have a-watchman at the place in question to see that the track was kept clear. Appellant has presented numerous assignments relating to these issues and to the jury’s findings thereon. We will not incumber our opinion with the recitation of all of the evidence relating to the subject, which is substantially set out in the opinion of the Supreme Court hereinbefore referred to. 166 S. W. 1130. That court held that the evidence was insufficient to establish negligence proximately causing the injury on the part of Armour & Co., and we fail to see how it can be said that there was negligence on the part of the ■ railway company in permitting the excavations, or in failing to have a watchman at the particular place, and the evidence is particularly wanting in sufficiency to establish that, if there was negligence in these particulars, such negligence could have been the proximate cause of the injury. The evidence fails to show that the dirt was piled upon the track, or that the presence of the piles of dirt near the track had anything to do with the accident, except possibly, as insisted upon by the appellees, that its formation was such as to enable an Iron pipe, such as the one in question, to roll from the top down upon the track. The evidence shows that this same switching crew had passed up and down the track but a short time before, some 20 or 30 minutes perhaps ; that the track at that time was unobstructed; at least there is nothing in the evidence indicating an obstruction at that time, and there is no evidence indicating that a train had passed loaded with iron pipe from which the pipe in question could have fallen upon the dirt, and from thence down upon the track; nor is there any evidence that the employés of Armour & Co. were displacing iron pipe in the excavations they were making. In short, the evidence is wholly silent as to how, when, or by whom the iron pipe was placed upon the track. It is a mere supposition to say that it rolled from the embankment, or that it was placed there negligently or otherwise by any employe of the defendant company, or that, had a watchman been appointed generally for the purpose of keeping the track clear, the pipe got upon the track at such time and under such circumstances as that he could or ought, in the exercise of ordinary care, to have seen it or removed it in time. So that, we think that if, by any reasonable construction of the evidence, it could be said that the defendant company was guilty of negligence in the respects mentioned, it wholly fails to show that therefrom an obstruction or an injury such as under consideration could have been anticipated by the defendant company, and hence that such negligence, if any, could have operated as a proximate cause of the result. T. & P. Ry. Co. v. Bigham, 90 Tex. 226, 38 S. W. 162; Ft. Worth Belt Ry. Co. v. Jones (Sup.) 166 S. W. 1130. These conclusions, of course, must result in upholding appellant’s assignments and contentions relating to the issues of negligence in permitting the piles of dirt and in failing to have a watchman, and we are thus brought to the only remaining issue upon which the verdict and judgment can rest, to wit, the issue of Swope’s negligence in giving the signal to the engineer to stop the train, and we will now address ourselves to that subject.

There was a sharp conflict in the evidence as to whether the stop signal was given by the deceased or by his fellow switch-man, Swope. The engineer and several other witnesses testified that the signal was first given by Jones, the deceased, and later repeated by Swope. There was another witness, however, whose testimony seems to be direct, to the effect that Jones did not give the signal, and that Swope did. The jury found in answer to special issues that Swope gave the signal instead of Jones, that it was negligence under the circumstances to do so, and that such negligence was the proximate cause of the injury. Without displaying the evidence relating to this subject, we content ourselves with saying that the evidence has been carefully considered, and, while it may seem to preponderate in favor of the contention that Jones himself gave the signal instead of Swope, yet the jury were the exclusive judges of the credibility of the witnesses who testified and of the weight to be given to their testimony, and we cannot say that they were unauthorized or unsupported in the conclusions reached by them in appel-lee’s favor.

A further contention of appellant is that the cause of action predicated upon Swope’s act in giving the stop signal was barred by limitation: First, because the case was one arising under the federal Employers’ Liability Act, and the intervention of the temporary administratrix introduced a new cause of action more than two years after the death of the deceased, and which, hence, was barred by section 6 of the federal statute, which reads: “No action shall be maintained under this act unless commenced within two years from the day the cause of action accrued.” See Fed. Stat. Ann. Supp. 1909, p. 585. And, second, that the cause of action based upon negligence on the part of Swope in giving a stop signal was a new one under either state or federal statute, and, not having been set up until February 8, 1915, more than two years after the cause of action accrued, the plaintiffs’ right of recovery upon that ground of negligence was barred by limitation, regardless of whether the case was controlled by the federal or state law. The state law on the subject also provides that actions for injury done to the person of another where death ensues from such injury shall be commenced within two years after the cause of action shall have accrued, it being considered in such cases that the cause of action accrues at the death of the party injured. Revised Statutes, art. 5687, par. 7.

Even if we should disregard the jury’s finding hereinbefore discussed to the effect that this case does not arise under the federal law, and should further adopt the appellant’s contention that the undisputed evidence shows that at the time of the occurrence in question Jones was employed in interstate commerce, yet we think the contention first made is conclusively settled by the cases of R. v. Wulf, 226 U. S. 570, 33 Sup. Ct. 135, 57 L. Ed. 355, Ann. Cas. 1914B, 134; Railway v. Casey, 172 S. W. 734; Love v. Southern Ry., by the Supreme Court of Tennessee, 108 Tenn. 104, 65 S. W. 475, 55 L. R. A. 471; Railway v. Goode, 163 Ky. 60, 173 S. W. 330. In the Wulf Case the action was brought by the sole surviving party in her individual capacity to recover damages from an interstate railway carrier for the death of her unmarried, childless son, while engaged in its employ in interstate commerce. After more than two years after the institution of the suit she amended, and, without setting up any new facts as the ground of action, for the first time set up and sought to recover under her appointment as the personal representative of the deceased, in which capacity alone her action under the Employers’ Liability Act could be maintained. It was distinctly held that the amendment was not equivalent to the commencement of a new action for the purpose of applying the two-year limitation prescribed by the federal statute. We have not found that this decision has been modified or qualified in the respect under consideration by any other case. Indeed; the other cases that we have cited, and so far as we have been able to ascertain, follow the case of Railway v. Wulf.

The remaining contention, however, presents greater difficulty. We have a statute (Revised Statutes, art. 4694) which gives a right of action against a railroad company (among others) where the death of any person is caused by the negligence or carelessness of its servants or agents; but the next article (4695) provides that:

“The wrongful act, negligence, carelessness, unslnllfulness, or default, mentioned in the preceding article, must be of such a character as would, if death had not ensued, have entitled the party injured to maintain an action for such injury.”

By the common law a right of action for personal injuries proximately caused by the negligence of another was given, but the right did not survive to the personal representatives or heirs of the deceased in ease of death, so that, construing the two articles of the statute together, their principal effect apparently is merely to declare that death will not abate the action, leaving the right of the party at last dependent, to a very material extent, upon the common-law principles governing such cases. Hence it was that this court held that under these articles of the statute there could be no recovery for an injury resulting in death where the negligence of the deceased proximately contributed thereto; such being a principle of common law. See Stephenville, N. & S. Ry. Co. v. Voss, 159 S. W. 64. It is likewise true, under the common law, that an employé, as a part of his contract of employment, assumes the risk resulting from the negligence of a coemployé. So that this suit, as originally instituted, was made by the pleadings to depend, in part at least, upon common-law principles, that is to say, upon the negligence of the master in failing to provide a safe place for the deceased to work, in failing to see that the railway track was safe and free from obstructions, and in failing to supply the engine with proper brakes; all of which were duties that the railway company could not delegate to another, and for a violation of which, when established, the company was responsible under common-law principles. But the right of action in the case before us for the negligence of Swope in giving the stop signal rests upon a somewhat different foundation. If the ease is properly to be regarded as one arising under the federal Employers’ Liability Act, then the right of recovery is dependent upon the terms of that act, which provides (section 1) that every common carrier by railroad while engaged in commerce between any of the several states shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce which results, in whole or in part, from the negligence of any of the officers, agents, or employés of such carrier, etc. If, on the other hand, the case is to be disposed of, as we think it must be under the findings of the jury, on the theory that the deceased was not employed in interstate commerce at the time of his death, then the right of action of the plaintiff in this suit based upon the negligence of Swope must depend upon article 6640 of our Revised Statutes, which reads:

“Every person, receiver, or corporation operating a railroad or a street railway, the line of which shall be situated in whole or in part in this state, shall be liable for all damages sustained by any servant or employé thereof while engaged in the work of operating the cars, locomotives or trains of such person, receiver, or corporation, by reason of the negligence of any other servant or employé of such person, receiver or corporation, and the fact that such servants or employés were fellow servants with each other shall not impair or destroy such liability.”

It is with very much force, therefore, that appellant contends that the cause of action based upon the allegations of Swope’s negligence was a new one presented for the first time after the period at which, under our statute, it was bafred by limitation. True, we have a statute permitting amendments of pleadings, which it will be found has been very liberally construed by our courts, and when allowed the amendment relates back to the original institution of the suit, but such amendments have not been allowed so as to cut off a defendant’s right to a plea of limitation in cases where it is held that the amendment sets up a new cause of action. Eagle Pass Lumber Co. v. G., H. & S. A. Ry., 164 S. W. 402; S. A. & A. P. Ry. Co. v. Bracht, 157 S. W. 269; Phœnix Lumber Co. v. Houston Water Co., 59 S. W. 552. So, too, it is said in 25 Cyc. p. 1308:

“An amendment which introduces a new or' different cause of action and makes a new or different demand does not relate back to the beginning of the action¡ so as to stop the running of the statute of limitations, but is the equivalent of a fresh suit upon a new cause of action, and the statute continues to run until the amendment is filed; and this rule applies, although the two causes of action arise out of the same transaction, and where by the practice of the states a plaintiff is only required in his pleading to state the fact which constitute his cause of action.”

Was, therefore, Swope’s negligence a new cause of action so as to be barred? The cases last above cited seem at least to strongly tend to show.that it was, and this view is strongly supported by the case of Union Pacific Ry. v. Wyler, by the Supreme Court of the United States, 158 U. S. 285, 15 Sup. Ct. 877, 39 L. Ed. 983. In the case last mentioned it appeared that, as the action was originally instituted, the case was based upon the common and general laws governing the relation of master and servant, but that later, by an amendment filed after the period of limitation there involved, a statute was invoked which, as in the case of our own, made the employers operating a railroad liable to one servant for the negligence of another, which statute, it was stated, was in derogation of the common law. The court held that the question of limitation was to be determined by an ascertainment of whether the amended petition presented a new cause of action, and it was said that the latter question must be solved by an application of the principles which belong to the law of departure. Numerous citations are then given which illustrate the test applied. Thus it was said, quoting from 1 Chitty on Pleading, 674:

“A departure may be either in the substance of the action or defense, or the law on which it is founded; as if a declaration be founded on the common law, and the replication attempted to maintain it by a special custom, or act of Parliament.”

Quoting from Stephen on Pleading, pp. 412, 414:

“These, it will be observed, are cases in which the party deserts the ground, in point of fact, that ho had first taken. But it is also a departure, if he puts the same facts on a new ground in point of law; as if he relies on the effect of the common law in his declarations, and on a custom in his replication, or on the effect of the common law in his plea, and a statute in his rejoinder.”

Quoting from Gould on Pleading, pp. 423, 424, it is said:

“When the matter first alleged as the ground of action or defense is pleaded as at common law, any subsequent pleading by the same party supporting a particular custom is a departure.”

Other authorities of like tenor were cited, and it was held that the amendment under consideration set up a new cause of action, and was hence barred under the plea of limitation there presented.

We confess to some difficulty in avoiding the force and logic of these authorities, and, except for the decision of one of our own courts in the case of G., H. & S. A. Ry. v. Perry, reported in 38 Tex. Civ. App. 81, 85 S. W. 62, we would be inclined to apply them in the ease before us. In the Perry Case, as presented in original petition filed May 1, 1900, the plaintiffs sought to recover for Perry’s death on the ground of the defendant’s negligence in permitting the presence of a piece of board upon the railway track against which a hand car upon which Perry was riding at the time was projected. Later, by an amendment on September 3, 1903, more than two years after the original petition had been filed, plaintiff filed aii amended petition alleging the same accident as resulting from the same act of negligence formerly alleged, and also upon the negligence of the servants of the defendant on the car in failing to observe an order to stop. The cause was submitted alone upon the ground of negligence last named, and which was for the first time set up in the amended petition. The court, however, in disposing of the question of limitation presented, held that the amendment did not present a new or different cause of action. It was said:

“The purpose of the original petition was to recover of defendant damages sustained by plaintiffs from the death of Perry in the particular accident, through the negligence of the defendant, alleging the negligence to be in a particular respect. It would be immaterial in any case what form the negligence took, so long as it was negligence' of defendant causing the injury complained of. Hence it cannot be said that any particular form of negligence is an essential element of the cause of action, nor that a change of allegations as to negligence really affects the cause of action” — citing Mexican C. Ry. Co. v. Mitten, 13 Tex. Civ. App. 653, 36 S. W. 282; S. P. Ry. Co. v. Wellington, 36 S. W. 1114; Sherman Oil & Cotton Co. v. Stewart, 17 Tex. Civ. App. 59, 42 S. W. 241.

The judgment for the plaintiffs so predicated was affirmed, and a writ of error was refused by our Supreme Court, as will be seen by reference to page xvii of 38 Tex. Civ. App. While it seems to us that the cases cited in support of the Perry Case are distinguishable from it, we fail to see how in passing upon the petition for a writ of error our Supreme Court could have avoided a consideration and determination of the question of limitation there presented, and, not feeling able to distinguish the Perry Case from the one now before us, we feel constrained to hold that the amendment here under consideration did not present a new cause of action so as to make appellant’s plea of limitation on that ground available. In aid of this conclusion it may not be amiss to also observe that in all the petitions in this case the same state of facts was substantially presented, except that in the last amendment an appeal was made to a statute not therefore necessary to a recovery. The cause of action, however, as presented in the original and first amended petitions, was materially dependent upon our general statute providing liability in cases of injury re-suiting in death, as found in title 70, art. 4694 et seq. The amended petition presented substantially the same facts, save that Swope’s negligence was alleged, to which Chapter 14 of the Revised Statutes applied, including article 6640, which we have already quoted in full, and which in express terms renders the master liable for the negligence of a fellow servant. In the liabilities imposed in the two chapters we see but little, if any, material difference; the difference principally being that in chapter 14 recovery may be had, under circumstances such as obtain in this case, for the negligence of fellow servants. So that, in the petition before us, as also in the Perry Case, it may be said that the changes asserted in the different petitions are not, strictly speaking, from law to law, that is, from the general or common law to a statute, but, instead, from one statute to another, both appeals to the law being the same, save that in the last statute invoked a defense was cut off that would have been available under the first.

What we have said, we think, disposes of the important questions presented on this appeal. There are some other complaints, such as of the argument of counsel for appel-lee, and of alleged misconduct on the part of the jury, but, after a careful examination of the circumstances relating to these questions, we conclude that no reversible error is presented in these respects.

Having, for the reasons given, upheld the jury’s finding on the issue of Swope’s negligence, we conclude that the judgment must be affirmed.
      (S^Por oilier oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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source: Caselaw Access Project

author: ■WALTHALL, J.

license: Public Domain

text:
    COONEY v. VAN DEREN et al.
    (No. 519.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 10, 1916.)
    Judgment <&wkey;106 — Default—Substitution: on New Plaintiffs — Effect.
    On the substitution of new plaintiffs on motion alleging assignment to them of the cause of action by the original plaintiffs, and the adoption by the substituted plaintiffs of the petition of the original plaintiffs without adding any allegations relating to the assignment, the entry of judgment by default against the defendant without service and without permitting an opportunity to answer, his offer to answer the original plaintiffs and to deny the cause of action and the assignment having been refused, was érror.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 160, 162, 180-197; Dec. Dig. &wkey; 106.]
    Error from District Court, Reeves County; S. J. Isaacks, Judge.
    Action by F. O. Van Deren and others against P. Albert Cooney. Judgment for plaintiffs, and defendant brings error.
    Reversed and remanded.
    This suit was filed on October 7, 1913, in the district court of Reeves county, Tex., by Frank O. Van Deren, as trustee, by Charles H. Thorpe, as his attorney in fact, and Clell Q. Thorpe, against P. Albert Cooney, all alleged to be nonresidents of this state, alleging that on the 5th of June, 1911, the plaintiff Van Deren entered into a written contract with the plaintiffs, of date 5th of June, 1911 (supposedly in the several capacities in which the petition designates them, but not so alleged in the petition, nor is the alleged contract attached to nor made a part of the petition) by which contract Cooney contracted to purchase from plaintiffs 2,250 acres of land in Reeves county (the land not further described), and agreed to pay therefor to plaintiffs $20 per acre, a total consideration of $45,000, upon terms as follows: The sum of $5,000 on delivery of deed; to pay off and discharge incumbrances on the land, by agreement approximating the sum of $15,000; on or before 18 months after date, the further sum of $15,000. The petition alleged the delivery of sufficient deeds and abstracts to said lands in accordance with the terms of the contract, and that same were accepted by Cooney and under which Cooney took possession and placed the deeds of record. The petition alleged a failure to pay the said items of $45,000 and $15,000, and that C'ooney had paid only a small amount to plaintiffs (the amounts not stated), and alleged that there was a balance due from Cooney to plaintiffs of $14,784.92, and interest thereon (the amount not named), for which plaintiffs sue and pray judgment and for costs. On the day of filing the suit, on the affidavit of Charles H. Thorpe that Cooney was indebted to plaintiffs in the sum of $14,784.92 then due, and that Cooney was a nonresident of the state, plaintiffs caused an attachment to issue and be levied upon, the return reciting:
    “All of the described judgment, to wit, in cause No. 781 in the district court of Reeves county, P. Albert Cooney v. E. Leslie Cole et al., said judgment recovered in said court of date 20th day of November, 1912, said judgment being for the amount of twenty-five thousand two hundred and forty-six and 22/ioo dollars, with interest thereon from the 20th day of November, 1912, at the rate of seven per cent, per annum; and also on the 9th day of October, 1913, at 2:30 o’clock, p. m., levying upon and taking into my possession the following described real property, situated in Reeves county, Texas, and levied upon as the property of P. Albert Cooney” some 20 parcels of land.
    The petition, the affidavit for attachment, and the attachment bond all show on face of the several papers filed to be signed in. person by Charles H. Thorpe, acting for himself and as attorney in fact for the other plaintiffs, Van Deren and Clell Q. Thorpe. Cooney filed a petition and bond for removal of said cause to federal court, which was granted, and the cause removed and thereafter remanded to the state court. At the April term of the state court, on a demand for a jury by Cooney, the cause was placed on the jury docket. On May 29, 1914, Clell Q. Thorpe, acting for Van Deren and himself, and Charles H. Thorpe, assigned their cause of action to John H. Morrow, subject to a prior assignment of said cause to the Pecos Valley Bank for payment of about $4,500, and in said assignment to Morrow empowered him as trustee to settle or satisfy any judgment and sign the names of the assignors to any and all papers in connection therewith, which assignment was filed with the clerk of the court, noted on the trial docket, and placed among the papers of the cause. At the April term, 1914, the cause was continued by operation of law. On November 24, 1914, Cooney, by attorney, filed a motion to quash the attachment, which motion the court overruled. On same day, Coon-ey filed an answer in said cause, consisting of a general and special exception to the petition, and on said day (file mark showing November 24th) Cooney filed in the cause a pleading indorsed, “Original answer of the defendant, P. Albert Cooney,” consisting of a plea in abatement, and an answer traversing the allegations in plaintiffs’ first amended original petition, the answer consisting of 25 paragraphs, and duly verified, the affidavit showing to have been made on the 28th day of November. On the 25th of (November, the court heard the exceptions to the petition and overruled all except the third special exception, which the court sustained and gave plaintiffs leave to amend. Cooney excepted to the action of the court in overruling the general and special exceptions.
    On the 30th of November, plaintiffs’ first amended original petition was filed by “John II. Morrow, Leslie A, Needham, attorneys for plaintiffs,” alleging that on! June 5, 1911, Cooney entered into a contract with Van Deren, trustee, Percy R, Fennell, trustee, Frank W. White, by Clell Q. Thorpe, their attorney in fact, and with Clell Q. Thorpe, in which Cooney contracted to purchase 2,300 acres of land at $20 per acre, aggregating $46,080, free of all liens, or subject to certain liens mentioned, at Cooney’s election, Cooney to be furnished complete merchantable abstracts of title, all objections to be cured within 60 days, Cooney to pay $1,000 earnest money, and the balance on terms as follows: Upon the acceptance of the lands subject to such liens and incumbrances as Cooney might elect and deduct the amount from the purchase price, Cooney to make to parties or whomsoever they might direct his two notes for $2,500 each payable on or before the maturity of a certain mortgage of $20,000 in certain real estate in Chicago; the two notes Cooney agreed to purchase back at any time after four and within six months, for their face value without accrued interest, after deducting from the purchase price the amount of all liens and incumbrances and the two notes; C'ooney was to pay the balance of the purchase price in cash on the consummation of the deal, the petition alleged the payment of the $1,000 earnest money ; that Cooney made an inspection of said lands; that plaintiffs delivered to Sherman M. Booth, as agreed, merchantable abstracts of titles; that Booth prepared various conveyances and instruments desired by him as attorney for Cooney to be executed, all of which plaintiffs executed and delivered to Booth as attorney for Cooney, which deeds and instruments vested title in Cooney to all said lands, subject only to liens and incum-brances specified in the contract, excepting the Dixie Land Town-site Bonds, less than $3,000, the total value of all said liens and incumbrances upon said lands then aggregating less than $25,835; that Cooney elected to accept said lands, took possession of the lands, and caused the conveyances to be placed of record, subject to said incumbrances, and thereupon became liable to pay plaintiffs the balance of the purchase price, naming the amounts; that Cooney refused to execute the said two $2,500 notes, but has paid in cash not to exceed $3,250, and owed on the 15th of September, 1911, to plaintiffs, an amount in excess of $17,995; that Fennell died in November, 1912, and that Charles H. Thorpe was the sole beneficiary under the trust of Fennell, trustee, and that said Thorpe is the owner by assignment of the White interest; that at the date of the filing of the original petition, and now, Cooney owes plaintiffs the said sum of $0 V784.92, for which they sue.
    On December 23, 1914, plaintiffs filed a motion for judgment by default for $14,784.92, interest and costs, on their first amended original petition and for foreclosure of their attachment lien. This motion is signed by Needham and Morrow as attorneys for plaintiffs. On December 29, 1914, plaintiffs, Van Deren, individually, and as trustee, Charles H. Thorpe and Clell Q. Thorpe, “by their duly authorized attorney, Clay Cooke, and also in their own proper persons,” filed a motion in the case in which it is stated:
    They “move the court to dismiss this cause upon the stipulations filed herein, dated December 14, 1914, each party to pay his own costs incurred herein, and that all attachments and garnishments issued or prosecuted hereunder be released and dissolved. Said plaintiffs further withdraw and annul all pleadings filed in this cause heretofore by them by Leslie A. Needham and John H. Morrow, either or both, and say that all such pleadings are without authority of these plaintiffs, and show to the court that said Needham and Morrow have no authority further to prosecute this suit on behalf of these plaintiffs, and these plaintiffs disclaim and deny all pleadings filed on behalf of them by said Needham and Morrow, either or both. Said plaintiffs further represent that all the matters involved in said pleadings so filed in this cause were settled and adjusted long prior to the filing of this suit between the parties hereto, as will appear from the personal motion of Clell Q. Thorpe, one of the plaintiffs, filed herewith and marked ‘Exhibit A. There is also filed herewith written authority to Clell Q. Thorpe on the part of Frank O. Van Deren, marked ‘Exhibit B.’ There is also attached hereto stipulation signed by Frank O. Van Deren that said suit is instituted, prosecuted without his knowledge, consent, sanction or approval, and agreeing that same may be dismissed, marked ‘Exhibit C.’ There is also attached hereto, marked ‘Exhibit D,’ power of attorney from the plaintiffs, Charles H. Thorpe and Olell Q. Thorpe. There is also attached hereto contract of accord and satisfaction entered into by and between the parties, dated January 13, 1913, marked ‘Exhibit F.’ There is also attached hereto revocation of power of attorney to Leslie A. Needham, signed by Olell Q. Thorpe, marked ‘Exhibit G.’
    “Wherefore plaintiffs pray that no further action be taken in this cause, but that same be dismissed in accordance with said stipulation, marked ‘Exhibit E.’
    “[Signed] Olay Cooke, Authorized Attorney “for said Plaintiffs to Obtain “this Dismissal.”
    Then follow the exhibits referred to in the motion. Without stating the exhibits in full, as they constitute about 20 pages of the record, we deem it best to give a condensed statement of some of them.
    Exhibit A is a statement signed and acknowledged by Clell Q. Thorpe, one of the plaintiffs, in which he asserts that he is the agent and attorney in fact for Van Deren and Charles H. Thorpe, the other plaintiffs in the original petition. He states that he personally had charge of all the negotiations with defendant Cooney concerning the matters referred to in the pleadings; that the power of attorney to him, Clell Q. Thorpe, was revoked on August 10, 1911; that thereafter additional negotiations were entered into with Cooney, and on January 2G, 1912, a supplemental agreement was made between Coon-ey and all parties to the original agreement by Clell Q. Thorpe, an agent of plaintiffs; that on April 5, 1912, all of the parties entered into a second supplemental contract, he (Clell Q. Thorpe) representing plaintiffs, and that all of the matters and things done were fully discussed and understood and ratified by all parties; that on January 13, 1913, Cooney and all parties at interest, through him as agent and attorney in fact, entered into still another or fourth contract with reference to the subject-matter of the suit, and in the motion to dismiss referred to as a memorandum of accord and satisfaction and settlement agreement, of which fourth agreement all partieq at interest were informed and they approved, ratified, and confirmed the same; that Van Deren, Charles H. Thorpe, and himself constitute all of the parties at interest in the cause, and all approve his acts in his effort to dismiss this cause, the costs having been paid. Then comes the prayer to make such orders, decrees, and judgment as may be necessary to dismiss the suit and release the bondsmen.
    Exhibit B is a receipt of date 9th day of January, 1913, signed by Frank O. Van Deren, trustee, and individually, and sworn to before a notary public, acknowledging full payment of all contracts for tire sale of the lands to Cooney, and a release of all claims growing out of the contract of June 5, 1911, and supplemental contracts thereto.
    Exhibit C is an agreement of date May 11, 1914, between Van Deren and Cooney, that this cause of action and all attachments and garnishments shall be dismissed, and that Van Deren will no longer prosecute same, either individually or as trustee, and a declaration by Van Deren that the suit and attachments thereunder “were instituted and are now prosecuted without the knowledge, sanction, consent or approval of him, said Frank O. Van Deren, trustee or individually,” and that he desires the same discontinued as -to him. The statements in the exhibit are sworn to by each.
    Exhibit D is a general power of attorney of date 10th December, 1914, duly acknowledged, in which Charles H. Thorpe malees Clell Q. Thorpe his general attorney to transact for him any and all business of any and all kinds and nature in which his signature is necessary, and especially to make any settlement with Cooney in the manner of the sale of the lands involved in this suit.
    Exhibit E is an agreement of date 14th of December, 1914, duly acknowledged, between Van Deren and Clell Q. Thorpe on one part and P. Albert Cooney, that this cause of action and all attachments, garnishments, or other proceedings therein shall be dismissed, and all liabilities on attachment or garnishment executed in the cause are relieved and discharged from any liability.
    Exhibit F is a “memorandum of accord and satisfaction and settlement agreement” of date 18th day of January, 1913, between Van Deren, Fennell, Clell Q. Thorpe, and Cooney, referring to the contract for the sale of (he lands on June 5, 1911, and the supplemental contracts thereto, and a “whereas” that the parties have “adjusted and compromised all matters in controversy or dispute between them from the beginning of the world to and including the day of the date hereof, and desire to preserve a written record thereof,” they state a discharge and release each to the other, and Edmond W. Pottle, Sherman M. Booth, R. G. Werner, and Louis E. Randall, and each of them, their agents and attorneys, of and from “any and all claim, demand, action, cause of action, and liability of whatsoever nature or description from the beginning of the world to and including the date hereof,” and a statement that each will exert their best efforts to release and discharge Cooney from the “lien, claim, liability or suits and claims of John M. Byers and his attorneys pending in the courts of Reeves county, Tex., and from the lien, claim, liabiJity or cloud created by certain judgments heretofore rendered in favor of Frederick Findeisen, against some of the first parties hereto, and the Dixie Irrigation Company, Chas. H. Thorpe and John B. Dandridge and others, in the courts of Reeves county.” The agreement embraces many other matters.
    Exhibit G is a revocation of a power of attorney made by Clell Q. Thorpe to Leslie A. Needham, executed and acknowledged on the 14th day of December, 1914. The motion to dismiss this cause “came on to be heard” on tlie 29th day of December, 1914, and the record states that:
    “It appearing to the court that said Clay Cooke is the attorney of record for the defendant in said cause and, in presenting said motion, appeared to be acting for both plaintiffs and defendant. Wherefore, the court declined to consider said application, and it is hereby ordered by the court that said application be and the same is stricken from the record and files of this cause.”
    On December 30, 1914, what purports to be an assignment of this cause of action by the plaintiffs, acting by and through Charles H. Thorpe, as attorney in fact, to the Pecos Valley Bank, was filed and noted on the trial docket. The assignment bears date the 8th day of October, 1913, and authorizes the bank to prosecute the cause of action in plaintiff’s name for the benefit of the bank, and states that) the assignment is to be construed to be “collateral and additional security” to judgments and liens then held by the bank.
    On December 30th, Cooney filed a motion to dismiss this cause, based on the motion and exhibits of the plaintiffs, and that there is no one before the court haying any interest in the subject-matter of the cause other than plaintiffs and defendant. As a part of said motion, an affidavit was filed by Cooney on the 30th of December, 1914, to the effect that he had not paid plaintiffs anything to obtain said stipulations to dismiss the cause, and that the settlement, satisfaction releases, etc., shown, were made prior to the filing of the suit; that he had no knowledge or information or any facts putting him on notice of the assignment to the Pecos Valley Bank or John H. Morrow. On December 23, 1914, Clell Q. Thorpe, in writing, duly acknowledged, appointed Clay Cooke his attorney and substitute attorney for John H. Morrow (reciting authority so to do under his power of attorney from Morrow), authorizing Cooke to do whatever was necessary to be done to dismiss this cause of action. On December 30th, a motion signed by Needham, Morrow, and Ross & Hubbard was filed to strike out and exclude from the record and files the last eight pages of Cooney’s answer to the amended petition, on the ground that same were not a part thereof when filed, and inserted without leave of the court. The motion to strike out the eight pages of the answer was sustained by the court, and Cooney excepted. Cooney, by motion, requested of the court permission to file .the matter pleaded in answer as an amendment on the ground that the answer as filed was done in the manner agreed upon in open court; and in another motion Cooney asked leave to substitute his answer filed at a previous term of the court; and in ariother motion, on the ground that the answer filed at the previous term had been lost, requested permission to substitute his answer filed on appearance day, same having been substituted by the stricken answer; and in another motion, on the ground that the striking out 'of the answer would deprive him of the specific denials of the petition required by the law, that he should not be forced into trial with no answer under the circumstances. Cooney requested the c'ourt to permit him to file an answer containing specific denials. The motions were overruled by the court Cooney asked leave 'of the court to file denials that the assignments to the Pecos Valley Bank and John H. Morrow were genuine and valid assignments, and to deny that any right or interest passed under the assignments, and 'offered evidence thereon. The motion was overruled. Cooney, by motion, requested of the court permission to file an answer contesting the right of Morrow and the bank to substitute themselves as plaintiffs on the ground that the assignments were fictitious and were n'ot made at the time nor for the consideration stated and were not delivered, but were executed by plaintiff Thorpe for his own protection, he taking a power of attorney back to deal in person With same. The motion was overruled. Cooney, by motion, asked permission to substitute his answer filed in the federal court in place of his answer stricken out. The Motion was overruled. Morrow and the Pecos Valley Bank, on December 30, 1914, filed a motion praying to be substituted as plaintiffs in place of Van Deren, and the two Thorpes, representing in the motion that they were the assignees of the cause of action as the real parties at interest, as evidenced by the assignments filed in the cause.
    Morrow and the Pecos Valley Bank, on the 30th of December, 1914, by permission of the court, were substituted as plaintiffs in the place of Van Deren and the two Thorpes and by pleadings simply adopted the pleadings of the previous plaintiffs, and on the same day the court, Cooney not answering, nor waiving service, entered judgment by default in favor of Morrow and the Pecos Valley Bank, substitute plaintiffs, and against Cooney, for the sum of $15,876.53, with interest from date of judgment, ordered the foreclosure of the attachment lien on the land described. Cooney filed a motion for a new trial, assigning as grounds in the motion the various matters above, and attached thereto his affidavit as to the truth of the matters set out. The court refused to consider or make any order on the Motion for new trial on the ground that the petition and bond for removal to the federal c'ourt had been filed and approved, after judgment by default had been entered and before the motion for new trial had been filed.
    Clay Cooke, of Pecos, and J. F. McKenzie, of El Paso, for plaintiff in error. Leslie A. Needham, of Chicago, Ill., Ross & Hubbard, of Pecos, and John H. Morrow, of Abilene, for defendants in error.
   ■WALTHALL, J.

(after stating the facts as above). The transcript in this case is quite lengthy, containing in all some 556 pages, and we have stated the above as a basis for what we might say. We have concluded that this case must be reversed and remanded, and we deem it unnecessary to consider any of the 25 assignments of error.

To the amended petition, the defendant Cooney undertook to reply, but his answer was contained in the eight pages struck out by the court on motion, leaving Oooney without answer to the amended petition, in which new parties and many facts additional to the facts alleged in the original petition are enlarged and brought into the case. The court, on the motion, of Morrow and the bank, by its order, substituting them as plaintiffs in the case, brings into the case additional new parties and by their pleadings adopting the amended pleadings of the former plaintiffs, t'o which no answer had be.en made and to which none was permitted to be made, and without any additional notice to or appearance or answer by Co'oney, to the new cause of action set up by the new plaintiffs, entered a judgment by default, for the amount claimed to be owed by Cooney t'o the plaintiffs in the amended iietition, in favor of the new plaintiffs and against Cooney. We make no ruling on any of the questions raised by the action of the court refusing the plaintiffs permission t'o dismiss their suit, nor any of the other questions raised, as we think those questions may not arise on another trial; but we hold that the e'ourt was in error in entering a judgment by default, on the amended petition, with new parties and new issues brought into the case by the amended pleadings, and by the substituted plaintiffs, and to which Cooney had made no answer. The amended petition put Cooney to additional answer and production of proof. Lee v. Hamilton, 12 Tex. 413; Morrison v. Walker, 22 Tex. 18; Ward v. Lathrop, 11 Tex. 287.

Again, it is only by the motion of Morrow and the bank and the assignments referred to . in the motion that they are shown to be owners of the plaintiffs’ interests in the cause of action. The pleadings they filed do not allege that they own the interest in the .cause of action. Their petition is as follows:

“Now come the Pecos Valley Bank, of Pecos, Texas (a corporation), and John H. Morrow, trustee, of Dallas, Texas, substitute plaintiffs in the above entitled and numbered cause, and adopt and make their own for the purpose of .this cause all pleadings heretofore filed herein by their predecessor plaintiffs.” [Signed by attorneys.]

The former pleadings adopted allege the ownership of the interests alleged to be in themselves, and there is nothing in any of the pleadings by any of the parties to suggest an interest in the subject-matter of the suit to be in Morrow or the bank. Brown v. Marqueze, 30 Tex. 76, and cases there referred to. In Armstrong v. Bean, 59 Tex; 492, the original petition was filed by A. H. Bean, in trespass to try title. Thereafter,- Cora L. Bean, the real owner, claiming under conveyance from A. H. Bean, filed an amended original petition. The amended petition, except the substitution of the name of Cora L. Bean, contained the same averments found in the original petition. The defendant excepted to her petition and, among others, “that he had not been served,” and that up to the filing of the amendment “had a valid defense of a subsisting and valid outstanding title in Cora L. Bean,” and that her appearance deprived him of it. Defendant then pleaded not guilty, limitation, and valuable improvements. A. H. Bean was dismissed, and judgment was entered for her. Judge Stayton said:

“Had the defendant not answered to her petition, which was filed with leave of the court, it is truc no juagment could have been rendered against him in the case, without service upon him.”

Conceding that Morrow and the bank were properly substituted as plaintiffs for the plaintiffs in the amended pleadings, the only ground upon which judgment could have been rendered for them, and that by the substitution they asserted the same facts as are found in the amended pleadings with the additional fact of their ownership of the interest sued for, it could well be said that Coo-ney had never been cited to answer such suit, and the court did not have jurisdiction over the person of the defendant at the time judgment by default was entered. In Lee v. Hamilton, supra, where all parties were in fact before the court, it was held that an amendment which would necessarily put the other upon the production of proof could not be made without notice to the party to be affected by it, and that, if so made, it might be treated as a nullity. In Pendelton v. Colville, 49 Tex. 525, the Supreme Court held that an amendment setting up a new cause of action, on which judgment was entered without notice, was fundamental error.

It is' not our intention in what we have said to hold that Morrow and the bank could be substituted as plaintiffs for an amount in excess of their claims. Some of the plaintiffs sue as trustees, and others as representatives of trustees. Nor are we holding that the levy of the attachment at the suit of the original plaintiffs could be foreclosed and inure to the benefit of the substitute plaintiffs. The questions are not presented here. The entry of the judgment without service of process or appearance of Cooney was fundamental error. The verbiage of the judgment .indicates that a judgment by default was announced by the court and noted on the docket before the order was made substituting Morrow and the bank as plaintiffs, and the record shows no order setting aside the former judgment; but, subsequently to such announcement and entry, Morrow and the bank filed their petition to be substituted as plaintiffs, the petition granted, and judgment entered in their favor, and for their benefit, and no part of the judgment was entered in their names for the use or benefit of the former plaintiffs. Without allegation and proof as to their ownership of the entire cause of action, we doubt the correctness of such Judgment entry. Avery v. Popper, 92 Tex. 341, 49 S. W. 219, 50 S. W. 122, 71 Am. St Rep. 849.

There are a number of other errors in law apparent upon the face of this record, which would require a reversal; but we forego discussion of same, as there is no occasion for them to occur upon a retrial.

The cause is reversed and remanded.
      <§z^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CARL, J.

text:
    GASS v. GASS.
    (No. 5610.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 9, 1916.)
    1. MARRIAGE &wkey;>58 — YAMDITY—DURESS.
    A marriage taking place through fear of, or to stop a prosecution for seduction, will not be set aside for duress.
    ■ [Ed. Note. — For other cases, see Marriage, Gent. Dig. §§ 115-123; Dec. Dig. &wkey;58.)
    2. Marriage &wkey;>59 — Validity—Duress.
    A marriage induced by fear of physical violence will not be set aside where the parties lived together as husband and wife after the threatening influences, were removed.
    [Ed. Note. — For other eases, see Marriage, Dee. Dig. <&wkey;59.]
    3. Marriage &wkey;>60 — Annulment—-Evidence.
    In an action to annul a marriage, evidence held sufficient to support either the theory that plaintiff married to escape prosecution, or that he recognized defendant as his wife for a considerable time.
    [Ed. Note. — For other cases, see Marriage, Gent. Dig. §§ 125-128, 130-135; Dec. Dig. &wkey; 60.]
    Appeal from District Court, Bexar County; S. G. Tayloe, Judge.
    Suit by Fred Gass against Helen Lindner Gass. From a Judgment for defendant, plaintiff appeals.
    Affirmed.
    O. J. Adams and Hertzberg, Barrett & Kercheville, all of San Antonio, for appellant. Wm. A. Wurzbach and O. O. Wurz-baeh, both of San Antonio, for appellee.
   CARL, J.

Appellant, Fred Gass, filed this suit in the district court of Bexar county against appellee, Helen Lindner Gass, to annul and set aside their marriage, which was consummated in Kendall county about August 1, 1914. This is what is known in common parlance as a “military marriage,” and appellant relies upon the allegation that this marriage was under duress, and therefore void, or at least voidable.

Appellee meets this allegation by laying down the proposition that a prosecution was pending for seduction, and that their marriage was consummated on the part of appellant for the purpose of avoiding criminal prosecution. Of course, denial is made that force was used. She answers further that, even if the marriage could have been avoided at the time on account of duress, appellant has waived the right to relief on account thereof, and is estopped to set the same up now because of the fact that he recognized her as his wife and lived with her a considerable time after such evidences of martial law had disappeared.

The facts in this case, briefly stated, are that the father of appellee and her brother-in-law, in company with a deputy sheriff of Kendall county, went to the home of appellant’s father, where he was staying, and went upon the gallery, that is some of them did, in a determined, if not an angry manner, and demanded that appellant go with them and marry appellee, to which he demurred. But upon the statement, substantially, that he had to go, that they would take him either dead or alive, he decided that it was the part of wisdom, not to resort to flight, but to accompany his visitors, doubtless bearing in mind the disastrous results which come to some of our Mexican brethren under an application of the “Ley Fugitivo.” The testimony is sufficient to sustain a finding that the deputy sheriff then held a warrant for his arrest under a complaint made before the Justice of the peace of Comfort. He was taken in an automobile with the parties above named to the home of appellee’s father, where he stayed overnight, and we think it safe to say that he was practically under guard, because the old man slept in the adjoining room to which the door led, and the brothers of appellee were sleeping around on the gallery and in the yard under such circumstances as to indicate to a prudent man that flight might at least be dangerous. The next day appellee’s father put him in a buggy and took him to Boerne, where he told the clerk, “This young man, wants a license,” and it is evident that he intended to see that he got this license. After the license was obtained appellee’s father took him back to his' house, and on the way telephoned to a Justice of the peace to be there at 7 o’clock, and upon the arrival of that functionary the happy event was solemnized. That was on Saturday evening. He remained there until Monday, and went away to his father’s, where he stayed for about two weeks, until the ap-pellee and her people made their demands so vigorously over the telephone and otherwise that he deemed it prudent to return to his recently wedded bride. He then took her to his father’s house, and they lived there somewhere between two weeks and a month, when he again left her and went to Schertz, in Bexar county, where he has since remained, and thereafter he failed to live with her any more. The evidence is conflicting as to the relations they maintained after their marriage and while at the houses of their respective parents, appellant maintaining that, while they occupied, perforce, quarters to-getlier, they did not cohabit as husband and wife, and she maintaining the contrary. There are alsoln evidence some letters which he wrote to his wife and to her relatives from Sisterdale and from Schertz couched in the most endearing terms and such as to indicate an intention on his part to continue to live with his wife when he got in a position to do so, or got work.

We have not stated in detail the evidence, nor shall we discuss all the law questions which we might under this record; for we think the judgment of,the trial court may well be sustained upon two theories:

1. There isi no doubt that appellant knew of the intended prosecution at the time he consented to, even under duress, and did marry the appellee, and it has been held that, even though a marriage should take place under duress, or through fear of, or for the purpose of stopping a criminal prosecution for seduction, the same will not be set aside. As said in Johns v. Johns, 44 Tex. 42:

“The plaintiff appears to have understood that the marriage would cancel the offense with which he was charged and release him from custody. He knew whether he was guilty or not of the charge against him when he married, and he cannot now cancel the marriage and rid himself of his wife, as he did the prosecution, without showing a better reason for it than he has given in his petition.”

2. We might be willing to hold that the father and relatives of appellee were maintaining such a threatening attitude and that the danger was so real or apparent that it amounted to duress independent of the fear of the prosecution. If such were true, and it was not the criminal prosecution which caused him to enter into the marriage, but fear of bodily harm, we would hold that such would be sufficient to annul the marriage, because we doubt very much whether a man whose thoughts are taken up with the speculation as to what an angry parent has in mind to do with him is in a frame of mind to have his judgment meet the other contracting party in a valid and binding agreement. But appellant did live with his wife afterwards, and even after he had gone to Schertz, where he was removed from any threatening influences, if they had in fact existed, still treated her as his wife. On August 6th he wrote her from Spring Branch, addressing her as “My Dear Helen,” and tells her that he is trying to rent a farm, and congratulates her on her approaching birthday. In this letter he sends his regards to “all the folks,” and it will be borne in mind that she was then- under her father’s roof. On September 23d he wrote her from Schertz, and addressed her as “Mrs. Fred Gass,” and tells her:

“I am looking around now what I can find to suit me, and I will come up as soon as possible and that I got me a place to suit me, but I guess I will find something before long.”

He winds this letter up by saying:

“But will come up as soon as possible. I am, as ever, Fred.”

It is needless for us to prolong this opinion. We think the evidence is amply sufficient: First, to support the theory that he married appellee to avoid criminal prosecution; and, second, even if he did not do so, he certainly recognized her as his wife and lived with her as such for a considerable time afterwards; that is, the testimony is sufficient to establish that theory. And on either of these theories, the evidence being sufficient, we would not be authorized to disturb the finding of the trial judge before whom the case was tried.

The judgment is affirmed.
      (g^For otlier cases see same topic .and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    GULF, C. & S. F. RY. CO. v. TIPS et al.
    (No. 5574.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 20, 1916.)
    Appeal and Eeeoe <&wkey;750—Questions Re-
    viewable—Assignments of Eeeoe.
    An assignment of error complaining of the refusal to direct a verdict for defendant, a carrier, based on the fact that the shipment in question did not originate at S., as alleged in the petition, but at A., must be limited to the question of variance between the pleading and proof, and cannot be considered as an objection to the court’s charge directing a verdict for plaintiff.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3074-3083; Dec. Dig. <&wkey;> 750.]
    Appeal from Travis County Court; Wm. Yon Rosenberg, Jr., Judge.
    Action by Walter Tips, prosecuted after his death by Mary J. Tips and others, his heirs, against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    E. H. Cavin, Terry, Cavin & Mills, and A. H. Culwell, all of Galveston, for appellant. Allen & Hart and Frederick C. Von Rosenberg, both of Austin, for appellees.
   KEY, C. J.

Walter Tips brought this suit against appellant to recover the value of an engine and certain other property, which he alleged the defendant had contracted to transport from San Angelo and deliver to him at Austin, Tex.; and from a judgment in favor of the plaintiff, the defendant has appealed. Walter Tips died, and his heirs were substituted as plaintiffs.

The court instructed a verdict for the plaintiffs, and, as appellant has assigned no error upon that charge, it must be held to have assented thereto, and the case must be disposed of upon the assumption that the charge referred to was properly given. It is true that the appellant requested the court to instruct a verdict in its favor, and error is assigned upon the failure to do so. The only question presented by that assignment is tlie contention that the shipment in question did not originate at -San Angelo, as alleged in the plaintiff’s petition, but at Austin, Tes.; and if it should be held that the assignment complaining of the refusal to give that charge constitutes an objection to the court’s charge directing a verdict for the plaintiff, such objection would be limited to the question of variance between the pleading and proof. We have considered that question and decide it against appellant.

The only other questions presented for decision relate to certain rulings in reference to the admissibility of testimony. Those questions have been duly considered and are decided against appellant. The record shows that appellant’s counsel admitted in open court that appellees were entitled to recover unless its sale of the property for freight charges was legal, and we agree with the trial court that the sale referred to was not legal.

No reversible error has been shown, and the judgment is affirmed.

Affirmed.
      <&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    COMMONWEALTH BONDING & CASUALTY INS. CO. v. STEARNS.
    (No. 898.)

    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 19, 1916.
    Rehearing Denied Feb. 23, 1916.)
    Judgment &wkey;>143 — Default Judgment — Vacating Default — Grounds.
    Denial of a motion to set aside a default judgment and for new trial for the absence of the attorney employed by the general counsel for defendant was within the court’s discretion, where there was no excuse for the absence of the attorney or for the failure of the general counsel to call the matter to the attention of the attorney, and where no reason was given for the absence of the general counsel.
    [Ed. Note.- — For other cases, see Judgment, Cent. Dig. §§ 269, 270, 272-291; Dec. Dig. &wkey; 143.]
    Appeal from District Court, Motley County; Jo A. P. Dickson, Judge.
    Action by L. A. Stearns against the Commonwealth Bonding & Casualty Insurance Company. There was a default judgment for plaintiff, and, from an order denying a motion for new trial and to set aside the default judgment, defendant appeals.
    Affirmed.
    Speer & Brown, of Ft. Worth, for appellant. T. T. Bouldin and G. E. Hamilton, both of Matador, for appellee.

       Application for writ of error pending in Supreme Court.

   HALL, J.

This suit was filed April 9, 1914, by appellee, in the district court of Motley county, for the purpose of canceling certain notes given to appellant company, and to recover the sum of $312.50 cash, paid to the alleged agents of said company. For the purposes of this opinion, it is sufficient to say that the facts alleged, if true, constituted a good cause of action and entitled ap-pellee to the relief prayed for. On April 9, 1915, defendant answered, first by plea of privilege, to be sued in Tarrant county, set up the statute of two years’ limitation, and alleged other facts, which, if true, would be a defense to a part, if not all, of the cause of action. On May 15, 1915, judgment by default was rendered against appellant, canceling the notes described in plaintiff’s petition. On May 28th thereafter, appellant filed its motion for new trial and to set aside the default judgment, which was overruled by the court on May 29th, and from such ruling this appeal is prosecuted.

The motion for new trial was filed on the last day but 'one of the May term of the court. Appellant set up, in substance, that it had a general attorney, who resided in the city of Ft. Worth, but that it was not the duty of said general attorney to represent it in trial courts outside of Tarrant county, except in cases of emergency; that after being cited its general counsel prepared an answer and filed the same 'on November 9, 1914, setting up its defenses; that the town of Matador, in which the suit was filed, had only two competent resident attorneys, who were both employed by the plaintiff, and appellant had to seek counsel elsewhere; that prior tb appearance aay it employed a certain attorney in Paducah, Cottle county, the nearest town by rail, where competent counsel could be procured, who appeared in the cause at the appearance term and procured a continuance of the cause t'o the May term, 1915; that thereafter its said attorney residing at Paducah died in January, 1915; that, learning of the death of its Paducah attorney, defendant, through its general counsel, employed an attorney residing at Quanah, Hardeman county, Tex., who was the nearest available competent attorney to said town of Matador, and instructed and requested him to appear for the defendants at the May term of the court and look after the setting of the cause and notify the defendant of the day of trial, so. it c'ould be present with its witnesses and to represent defendant in the trial and present its defenses; that said Quanah attorney accepted the employment and promised to be in Matador for the trial-; that said attorney, without any fault of appellant, failed to appear, and, when the case was called for trial-in the first week of the May term of the court, judgment was rendered against appellant, without its knowledge and without an opportunity to present its defenses ; and that appellant had no notice of that fact until May 27, 1915. The motion alleges that appellant had a Complete defense as set out in its answer, which is made a part of the motion.

In our opinion, the trial court did not abuse its discretion in overruling the motion. T'o have granted the motion would have resulted in a continuance of the case to the next term of the court. The motion nowhere attempts to excuse its Quanah attorney for not being present when the case was called; n'or does it offer any excuse for the failure of the general attorney at Ft. Worth to call the matter to the attention of the Quanah attorney. No reason is given for the absence of its counsel. Under such circumstances, the dourt should not have granted the motion for new trial. As was said by Judge Bell, in Freeman v. Neyland, 23 Tex. 530:

“The motion shows no reason for the absence of the attorney. It is not shown that the cause was called for trial out of its order, or that the plaintiff practiced any imposition upon the defendant or his attorney. The motion was properly overruled. So far as the record speaks, the appellant seems to have no cause to complain of any one but himself and his attorney. Courts cannot undertake to extend relief to the negligent, at the expense of those who have been diligent in pursuing the remedies of the law. All trials of causes in courts of justice are, to some degree, at the public expense, and courts cannot be called upon to set aside what has been solemnly and fairly done, merely to afford parties an opportunity to be heard, who had neglected to present their defenses or claims at the proper time. It is the duty of parties who have causes in court to attend to them, and, if they neglect to do so, they must bear the consequences.” Nevins v. McKee, 61 Tex. 412; Ames Iron Works v. Chinn, 20 Tex. Civ. App. 382, 49 S. W. 665; Verschoyle v. Darragh, 67 S. W. 1099; Drummond v. Lewis, 157 S. W. 266; Niagara Fire Insurance Co. v. Lollar, 156 S. W. 1140.

The judgment is affirmed.
      igr^For other cases see same topic and KE5T-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    DRAKE v. STATE.
    (No. 3914.)
    (Court of Criminal Appeals of Texas.
    Jan. 19, 1916.)
    Appeal from Criminal District Court, Dallas County ; Robt. B. Seay, Judge. Jackson Drake, alias Jack Drake, was convicted of manslaughter, and appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was Convicted of manslaughter, and his punishment assessed at two years’ confinement in the state penitentiary. As no statement of facts nor any bill of exceptions accompany the record^ there is nothing presented for review. The judgment is affirmed.


author: PRENDERGAST, P. J.

text:
    HARRIS v. STATE.
    (No. 3949.)
    (Court of Criminal Appeals of Texas.
    Feb. 2, 1916.)
    Appeal from District Court, Red River County; Ben H. Denton, Judge. Edgar Harris was convicted of perjury, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal from a conviction for perjury, with the lowest penalty assessed. There is neither a statement of facts nor any bills of exceptions, and nothing is presented which can he reviewed in the absence of these. Therefore the judgment must be affirmed.

DAVIDSON, J., not present at consultation.


text:
    NOONAN v. STATE.
    (No. 3927.)
    (Court of Criminal Appeals of Texas.
    Jan. 26, 1916.)
    Apjpeal from District Court, County; Robt. G. Street, Judge. T. Noonan was convicted of sodomy, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of sodomy. There is no statement of facts nor bill of exceptions. Nothing is presented which can be reviewed in the absence of these. Therefore the judgment must be affirmed.

DAVIDSON, J., absent.


author: DAVIDSON, J.

text:
    Ex parte PIZANA.
    (No. 3892.)
    (Court of Criminal Appeals of Texas.
    Jan. 19, 1916.)
    Appeal from District Court, Cameron County; W. B. Hopkins, Judge. Application by Ramon Pizana for a writ of habeas corpus.
    Relator ordered admitted to bail.
    Canales & Dancy, of Brownsville, and E. C. Gaines, of Austin, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Relator was arrested under a charge of murder, and resorted to a writ of habeas corpus to obtain his release. It is not the purpose of this opinion to discuss the facts. After a careful review, however, of the evidence, we are of opinion the case is clearly bailable. The judgment will be reversed, and bail will be granted in the sum of $5,009. Upon giving bond in the terms of the law for the above-stated amount, said bond to be approved by the sheriff of Cameron county, relator will be discharged from custody.


author: HIGGINS, J.

text:
    EL PASO & S. W. CO. v. SCOTT.
    (No. 530.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 3, 1916.
    Rehearing Denied Feb. 17, 1916.)
    Appeal from District Court, El Paso County; P. R. Price, Judge. Action by the El Paso & Southwestern Company against L. C. Scott. From a judgment dissolving a temporary injunction, plaintiff appeals.
    Affirmed.
    Hawkins & Franklin and W. M. Peti-colas, ali of El Paso, for appellant. Geo. E. Wallace and P. E. Gardner, both of El Paso, for appellee.
   HIGGINS, J.

Scott filed a suit in the district court of El Paso county, Tex., against appellant, to recover damages resulting from personal injuries sustained by him in the state of Arizona while in the employment of appellant, which injuries it is alleged were caused by appellant’s negligence. Citation was issued and served in El Paso county, Tex., upon H. J. Simmons, appellant’s general manager. The present suit was instituted by appellant to enjoin the prosecution of the first-mentioned suit. In the court below a temporary injunction was issued, which was thereafter dissolved, and from the order of dissolution this appeal is prosecuted. This is a companion case to El Paso & Southwestern Company v. Chisholm, 180 S. W. 156, decided upon a former day of this term. The pleadings and evidence are the same as in that case, except as modified by the fact that Scott’s injuries were sustained in Arizona. The same questions arise. We refer to that case for statement of the pleadings, evidence, and issues, and for our findings of fact and conclusions of law. Such statement, findings, and conclusions, as applied to this case, are to be considered in connection with the fact that Scott’s injuries were sustained in Arizona, instead of in New Mexico. For the reasons stated in said companion case, the judgment herein is affirmed.


text:
    EL PASO & S. W. CO. v. TAYLOR.
    (No. 528.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 3, 1916.
    Rehearing Denied Feb. 17, 1916.)
    Appeal from District Court, El Paso County; Ballard Coldwell, Judge. Action by the El Paso & Southwestern Company against Mrs. Allen Taylor. From a judgment dissolving a temporary injunction, plaintiff appeals.
    Affirmed.
    Hawkins & Franklin and W. M. Peticolas, all of El Paso, for appellant. Geo. E. Wallace and P. E. Gardner, both of El Paso, for appellee.
   HIGGINS, J.

Appellee filed a suit in the district court of El Paso county, Tex., against appellant, to recover damages resulting' to her on account of personal injuries sustained by her minor son, Claude J. Taylor, in the state of New Mexico, while in the employment of appellant, which injuries it is alleged were caused by appellant’s negligence. Citation was issued and served in El Paso county, Tex., upon H. J. Simmons, appellant’s general, manager. The present suit was instituted by appellant to enjoin the prosecution of the first-mentioned suit. In the court below a temporary injunction was issued, which was thereafter dissolved, and from the order of dissolution this appeal is prosecuted. This is a companion case to El Paso & Southwestern Company v. Chisholm, ISO S. W. 156, decided upon a former day of this term. The pleadings and evidence are the same as in that case. The same questions arise. We refer to that case, for statement of the pleadings, evidence, and issues, and for our findings of fact and conclusions of law. For the reasons therein stated, the judgment herein is affirmed.


text:
    EL PASO & S. W. CO. v. TAYLOR et al.
    (No. 529.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 3, 1916.
    Rehearing Denied Feb. 17, 1916.)
    Appeal from District Court, El Paso County ; Ballard Coldwell, Judge. Action by the El Paso & Southwestern Company against Claude J. Taylor and others. From a judgment dissolving a temporary injunction, plaintiff appeals.
    Affirmed.
    Hawkins & Franklin and W. M. Peticolas, all of El Paso, for appellant. Geo. E. Wallace and P. E. Gardner, both of El Paso, for appellees.
   HIGGINS, J.

Claude J. Taylor, a minor, by next friend, filed a suit in the district court of El Paso county, Tex., against appellant, to recover damages resulting from personal injuries sustained by him in the state of New Mexico, while in the employment of appellant, which injuries it is alleged were caused by appellant’s negligence. Citation was issued and served in El Paso county, Tex., upon H. J. Simmons, appellant’s general manager. The present suit was instituted by appellant to enjoin the prosecution of the first-mentioned suit. In the court below a temporary injunction was issued, which was thereafter dissolved, and from the order of dissolution this appeal is prosecuted. This is a companion case to El Paso & Southwestern Company v. Chisholm, 180 S. W. 156, decided upon a former day of this term. The pleadings and evidence are the same as in that case. The same questions arise. We refer to that case for statement of the pleadings, evidence, and issues, and for our findings of fact and conclusions of law. For the reasons therein stated, the judgment herein is affirmed.


author: McMEANS, J.

text:
    HARTSOUGH-STEWART CONST. CO. et al. v. HARTY & VOGELSANG.
    (No. 7086.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 4, 1916.
    Rehearing Denied Feb. 24, 1916.)
    1. Appeal and Erbob <&wkey;>387 — Time bob Perfecting Appeal-Filing Bond.
    Rev. St. 1911, art. 2084, provides that an appeal may be taken during the term at which the final judgment is rendered by giving notice of appeal in open court within 2 days after final judgment or 2 days after judgment overruling a motion for a new trial, and by filing with the clerk an appeal bond or affidavit in lieu thereof within 20 days after the expiration of the term, and that, if the term of court may by law continue more than 8 weeks, the bond or affidavit shall be filed within 20 days after notice of appeal is given if the party taking the appeal resides in the county and within 30 days if he resides out of the county. Held, that where, in a case tried at a term of court which by law could not continue more than 5 weeks, the appeal bond was not filed within 20 days after adjournment, the appellate court did not acquire jurisdiction of the appeal. , [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2064-2070; Dec. Dig. <&wkey;> 387.]
    2. Appeal and Ebbob <&wkey;387 — Time fob Peb-eecting Appeal — Filing Bond. '
    Under Rev. St. 1911, art. 2084, the 30 days allowed a nonresident appellant in which to file his appeal bond applies only in cases where the term of court may continue longer than 8 weeks, and in such cases runs from the date of final judgment, and not from the expiration of the term. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2064-2070; Dec. Dig. <&wkey;> 387.]
    Appeal from District Court, Matagorda County; Sami. J. Styles, Judge.
    Action between the Hartsough-Stewart Construction Company and others and Harty & Vogelsang. From an adverse judgment, the construction company and others appeal.
    Appeal dismissed.
    Stewarts, R. W. Houk, and C. C. Crocker, all of Houston, for appellants. R. R. Lewis and Krause & Wilson, all of Bay City, for appellee.
   McMEANS, J.

This case was tried in the district court of Matagorda county at a term ending on the 6th day of February, 1915. The term could not by law continue more than five weeks. Article 30, § 23, Revised Statutes 1911. The appeal bond was filed in the trial court on March 1, 1915, more than* 20 days after the expiration of the term.

Article 2084 of the Revised Statutes, which regulates appeals to this court, is as follows:

“Art. 2084. An appeal may, in cases where an appeal is allowed, be taken during the term of the court at which the final judgment in the cause is rendered by the appellants giving notice of appeal in open court within two days after final judgment, or two days after judgment overruling a motion for a new trial, which shall be noted on the docket and entered of record, and by his filing with the clerk an appeal bond, where bond is required by law, or affidavit in lieu thereof, as hereinafter provided, within twenty days after the expiration of the term. If the term of the court may by law continue more than eight weeks, the bond or affidavit in lieu thereof shall be filed within twenty days after notice of appeal is given, if the party taking the appeal resides in the county, and within thirty days, if he resides out of the county.”

This court has not acquired jurisdiction of this appeal because the bond was not filed within 20 days after the adjournment as required by said article. Railway v. Whatley, 99 Tex. 129, 87 S. W. 819.

It will be observed that by the article the 30 days allowed a nonresident appellant in which fo file his appeal bond applies only in cases where the term of the court may continue longer than 8 weeks, and in such cases the time in which they may perfect their appeal begins to run from the date of final judgment, and not after the expiration of the term. Nash v. Noble, 52 Tex.Civ.App. 425, 114 S. W. 848; Simpson v. Barker, 57 Tex.Civ.App. 460, 122 S. W. 959.

The appeal is dismissed.