author: McKENZIE, J.

text:
    TOURTELOT et al. v. BOOKER.
    (Court of Civil Appeals of Texas. El Paso.
    June 26, 1913.
    On Rehearing, Nov. 6, 1913.)
    1. Judgment (§ 822) — Judgments of Fob-eign -State — Sufficiency.
    A money judgment, rendered in another state upon a confession of indebtedness made without a suit against the defendant having been filed, as was permitted by the laws of that state, and which shows that it is a sentence of the court rendered in favor of one party and against the other, and that it is a definite, final, and absolute sentence of law binding upon the parties, is a judgment to which full faith and credit must be given.
    [Ed. Note. — Por other cases, see Judgment, Cent. Dig. §§ 1454, 1488-1490, 1496-1500; Dec. Dig. § 822.]
    2. Evidence (§ 35) — Judgment (f 822)— Judgment of Fobeign State — Constitutional Pbovisions.
    The full faith and credit clause of the federal Constitution, article 4, § 1, does not require one state to take judicial knowledge of the laws of another; but, when those laws are proved as facts, and it is shown that a judgment was rendered in conformity therewith, that judgment must be given the same effect it would have in the state in which it was rendered.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 35, 51; Dec. Dig. § 35; Judgment, Cent. Dig. §§ 1454, 1488-1490, 1496-1500; Dec. Dig. § 822.]
    3. Banks and Banking (§ 287) — Receivebs —Sale of Assets — Oedeb of Coubt.
    Under U. S. Comp. St. 1901, § 5234, providing that a receiver of a national bank may sell the assets of the bank upon an order, of a court of record of competent jurisdiction, such order is a prerequisite to a valid sale by the receiver.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 1089-1104, 1126, 1127; Dec. Dig. § 287.]
    4. Wokds and Phbases — “Coubt of Recobd.”
    A “court of record” is one the history of whose proceedings is perpetuated in writing by some duly authorized person (quoting Words and Phrases, vol. 2, pp. 1686-1688).
    5. Evidence (§ 348) — Documentary Evidence — Recobds of Courts of Sister States.
    Records of the courts of a sister state may be proved by copies thereof authenticated as required by U. S. Comp. St. 1901, § 905, or by copies duly examined by some witness, but it must first be shown that an order has been entered of record before proof thereof can be made in any of these forms.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1361-1383; Dec. Dig. § 348.]
    6. Evidence (§ 340) — Documentary Evidence — Records of Courts.
    A copy of an order of a court,' authorizing the receiver of a national bank to sell the assets of the bank, authenticated by the Comptroller of the Currency, as required by U. S. Comp. St. 1901, § 884, but which order was never recorded or made a minute in any court, is inadmissible to establish such order as an order of a court of record.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1294r-1301; Dec. Dig. § 340.]
    7. Judgment (§ 518) — Foreign Judgments— Collateral Attack.
    An objection to such evidence is not a collateral attack upon an order of the court, for there is failure of proof that any order was ever made.
    [Ed. Note.- — For other cases, see Judgment, Cent. Dig. §§ 961, 962; Dec. Dig. § 518.]
    8. Judgment (§ 934) — Actions on Foreign Judgment — Limitations.
    The statute of limitations may be pleaded in defense to an action upon the judgment of a sister state, since such statute affected the remedy, and not the right, and is therefore governed by the law of the forum.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1764, 1766-1768; Dec. Dig. § 934.]
    9. Judgment (§ 934) — Actions upon Judgment-Limitations.
    Under Rev. St. 1895, art. 3361, providing that if execution is not issued upon a judgment within one year, the judgment may be revived by scire facias or action brought within 10 years and not after, an action upon a judgment of a foreign state, rendered more than 10 years prior to the commencement of the action, and upon which execution was never issued, and which was never revived, is barred.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1764, 1766-1768; Dec. Dig. § 934.]
    10. Judgment (§ 910) — Actions upon Judgment-Limitations.
    Under that article (Rev. St. 1895, art. 3361), if no execution has been issued, the limitation begins to run from the entry of the judgment, not at the expiration of the year allowed for execution; and, where execution has been issued, the time runs from the date of the issuance of the last execution, within the time allowed by law.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1732-1737; Dee. Dig. § 910.]
    11. Limitation of Actions (§ 84) — Accrual —Absent Party — Action on Judgment.
    The facts that the judgment defendant had not resided in Texas for 10 years next before the bringing of an action upon the judgment of a foreign state does not prevent the operation of the statute of limitations, since the absentee clause of the statute does not apply to nonresidents or parties living outside of the state at the time of the accrual of the right of action.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 439-448; Dec. Dig. § 84.]
    12. Judgment (§ 934) — Actions on Foreign Judgment — Limitations.
    Rev. St. 1895, art. 3359, providing that actions upon foreign judgments which are barred by the laws of the state where the judgment was rendered shall be barred in Texas, and that, whether so barred or not, no such action shall be brought against one who has resided in the state within 10 years next preceding the bringing of the action, upon any judgment rendered more than 10 years before. is cumulative of the other articles of limitation.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1764, 1766-1768; Dec. Dig. § 934.]
    13. Judgment (§ 934) — Eoeeign Judgment— Constitutional Provisions — Limitation .
    The full faith' and credit clause of the federal Constitution does not restrict the. right of the state to prescribe a reasonable limitation period for bringing actions upon judgments of sister states.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1764, 1766-1768; Dec. Dig. § 934.]
    14. Judgment (§ 928) — Actions upon Foreign Judgment — Limitation — Dormant Judgment.
    A judgment rendered in North Dakota, which has become dormant under Rev. Codes (N. D.) 1899, §§ 5500, 5200, 5210, of that state as construed by its courts, cannot be enforced by an action in Texas.
    [Ed. Note. — For other cases; see Judgment, Dec. Dig. § 928.]
    Appeal from District Court, El Paso County ; A. M. Wlalthall, Judge.
    Action by E. C. Tourtelot and others against L. E. Booker. Judgment for the defendant, and plaintiffs appeal.
    Affirmed.
    MeBroom & Scott, of El Paso, for appellants. Turney & Burges, T. A. Falvey, and Stanton & Weeks, all of El Paso, for ap-pellee.

      For other cases see same topic ana section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   McKENZIE, J.

Appellants E. C. Tourtelot and T. D. Hogan filed this suit on the 21st day of September, 1911, in the district court of El Paso county, Tex., against appellee, L. E. Booker, to recover upon a judgment rendered in a district court of North Dakota. Trial was had before a jury upon plaintiff’s first amended original petition, the defendant’s answer, and the plaintiffs’ first and second supplemental petitions. The judgment sued upon is alleged to be as follows:

“State of North Dakota, County of Grand Forks. In the District Court, First Judicial District. E. C. Tourtelot, as Receiver of the Grand Forks National Bank of Grand Forks, North Dakota, Plaintiff, v. L. E. Booker, Defendant.
“Confession of Judgment.
“I, L. E. Booker, of the city and county of Grand Forks and state of North Dakota, do hereby confess judgment herein in favor of E. C. Tourtelot, as receiver of the Grand Forks National Bank, of Grand Forks, N. D., for the sum of $31,000, and authorize judgment to be entered therefor against me, with legal interest thereon from the 14th day of July, A. D. 1897. This confession of judgment is for a debt justly due and owing to the said E. C. Tourtelot as receiver of the Grand Forks National Bank of Grand Forks, N. D., arising upon the following facts, to wit: Whereas the said Grand Forks National Bank was, on or about the 6th day of February, A. D. 1885, duly .organized under and by virtue of the ‘National Bank Act’ o'f the Congress of the United States of America, and acts amendatory thereto, and authorized to do business as a national banking association, and ever since said date, and up to the 23d day of April, 1896, transacted and carried on such business incident to said national banking association by reason thereof; and whereas, on or about the 23d day of April, 1896, said national bank was insolvent, and the Comptroller of the Currency of the United States of America, after due examination of the affairs of said Grand Forks National Bank, and therefrom becoming satisfied that said Grand Forks National Bank was insolvent, did on or about the 23d day of April, 1896, declare such insolvency to exist, and did assume and take charge of the affairs of said bank; and whereas, that heretofore, to wit, on or about the 15th day of August, 1896, the above-named plaintiff was, by the Comptroller of Currency of the United States of America, duly appointed receiver of the Grand Forks National Bank aforesaid, and thereafter duly qualified as such and entered upon the discharge of his duties as such receiver, and ever since said date has been and still is such receiver and in charge of the assets of said bank; and whereas, the capital stock of the said Grand Forks National Bank on the 23d day of April, 1896, was and is 2,000 shares of the par value of $100 each; and whereas, on the 14th day of June, 1897, the said Comptroller of the Currency of the United States of America, having ascertained and determined that the assets, property, and credits of said association were insufficient to pay its debts and liabilities, and, as provided by said acts of Congress, made an assessment and requisition upon the shareholders of the said Grand Forks National Bank, of Grand Forks, N. D., of $100 each upon each and every share of the said capital stock held and owned by them, respectively, at the time of its default, and at the time said bank was found to be insolvent, and so declared by said Comptroller to be insolvent as aforesaid, and directed the plaintiff as receiver thereof to take all necessary proceedings, by suit or otherwise, to enforce to that extent the said individual liability of the said shareholder^; that said assessment was made because it was necessary to enable the receiver to pay the said debts and liabilities, and the said Comptroller before making said assessment found and decided that it was necessary for the purpose of paying said debts and liabilities, which said assessment and requisition required that said assessment and payment thereof be made to this plaintiff on or before July 14, 1897, all of which defendant had due notice thereof; and whereas, the said defendant, L. E. Booker, wás on the 23d day of April, 1896, and for more than 30 days prior thereto, and still is, the owner of 310 shares of the capital stock of said Grand Forks National Bank, and the same stands upon the books of said association in his name; and whereas, by reason thereof, and the facts herein-before set forth, the above-named defendant is indebted to said plaintiff upon said 310 shares of the capital stock of said Grand Forks National Bank at the rate of $100 for and upon each and every one of said shares of stock, in all the sum of $31,000; and whereas, the said defendant has not paid the aforesaid assessment, nor any part thereof, and there is now due thereon from the said defendant to said plaintiff, by reason of the facts aforesaid, the said sum of $31,000, with interest thereon at the rate of 7 per cent, per annum from July 14, 1897.
“Witness my hand this 10th day of August, A. D. 1897. Lewis E. Booker, Defendant.
“State of North Dakota, County of Grand Forks — ss.: L. E. Booker, being first duly sworn according to law, deposes and says that he is the person who signed the foregoing statement, and that he is the defendant therein named; that he is indebted to the said E. C. Tourtelot as receiver of the Grand Forks National Bank of Grand Forks, N. D., in the sum of $31,000, with interest thereon at the rate of 7 per cent, per annum from July 14, 1897, and that there are no offsets to the same, and that the facts stated in the foregoing confession and statement are true. L. E. Booker.
“Subscribed and sworn to before me this 10th day of August, 1897. Jennie Milne, Notary Public. [Notarial Seal.]
“To the Clerk of the District Court, in and for the County of Grand Forks and State of North Dakota: Under and by virtue of the foregoing confession and statement, you are hereby directed to enter judgment thereon in favor of the said plaintiff therein named, and against the said defendant for the sum of $31,000, with interest thereon at the rate of 7 per cent, per annum from the 14th day of July, 1897, together with the costs of this action to be taxed by you. Dated at Grand Forks, North Dakota, August 27, 1897. Charles J. Fisk, Judge of the District Court.
“In accordance with the foregoing confession of judgment and order for judgment, judgment is hereby rendered in favor of the plaintiff E. C. Tourtelot, as receiver of the Grand Forks National Bank of Grand Forks, N. D., and against the defendant, L. E. Booker, for the sum of $31,000 and interest on said amount from the 14th day of July, 1897, at 7 per cent, per annum, being the sum of $259.19, and the costs and disbursements herein, being the sum of $2, making a total judgment of $31,261.19.
“Witness the Honorable Charles J. Fisk, judge of the First judicial district, state of North Dakota, and my hand and the seal of the district court, this 27th day of August, A. D. 1897. L. K. Hassell, Clerk Dist. Court, By A. C. Hurst, Deputy. [Dist. Court Seal.]”

It is alleged,' in substance, in the trial petition that the said Tourtelot, at the time of the recovery of said judgment, was receiver of the Grand Forks National Bank of Grand Forks, N. D., and that the court rendering the judgment was a court of record, having general jurisdiction, and had jurisdiction of the person of. the defendant and of the subject-matter, and that under the laws of the state of North Dakota the judgment entered became a valid and binding judgment for the amount in said judgment stipulated in favor of said Tourtelot as receiver and against the said Booker, and that the said Tourtelot as receiver and the said Booker were the only parties to the suit. It was also alleged that at the time of bringing this suit the said judgment was valid and of full force and virtue in the state of North Dakota, and that the judgment in North Dakota had not been appealed from nor set aside; that no part of it had been paid; that the entire amount was due and owing, and under the laws of Texas it was enforceable against the defendant. It was also alleged that-after said judgment was obtained in the district court of North Dakota the said Tourtelot resigned as receiver of said bank, and that one W. B. Wood was appointed and qualified as receiver in his stead; that thereafter the said Wood, as receiver of said bank, acting under proper authority, sold said judgment, and that by due course of assignment appellants became the owners of same, and entitled to recovery thereon, and that under the laws of the state of North Dakota the said judgment bears interest at the rate of 7 per cent, per annum from its date, and that appellants should recover of defendant the amount of the judgment, with interest thereon at 7 per cent, per annum.

The defendant answered, alleging, in substance, that the district court of North Dakota was without jurisdiction to hear and determine said cause against him, or to enter judgment against him, because he was not served with any process issuing out of said court in a suit then pending, nor did he enter appearance or confess judgment in any suit pending against, him in said state, and that the judgment sued upon for said reason was null and void. Defendant also . pleaded the 10-year statute of limitation of the state of North Dakota and of the state of Texas as a defense against appellants’ recovery against him upon said judgment, and further alleged that no execution had ever issued out of the said court of North Dakota upon said judgment ; that said judgment by reason thereof, and by virtue of the laws of the state of North Dakota and of the state of Texas, was dormant, void, and without force or effect at the time of the filing of this suit, and that plaintiffs should not be permitted to recover thereon. It was also alleged that the plaintiffs and their predecessors in title failed to revive said judgment as recovered by them in the state of North Dakota, or to do any act as required by the laws of North Dakota to keep said judgment in force and effect, or to keep same from being barred by the statute of limitation of 10 years of that state or of this state, and that said judgment was barred at the time of the institution of this suit; that plaintiffs had not availed themselves of the right to revive said judgment, as provided- for by the statutes of North Dakota, and that the time within which they may do so has expired. Defendant further pleaded the two and four year statutes of limitation of the state of North Dakota and of this state against the plaintiffs’ recovering any interest upon said judgment.

In plaintiffs’ supplemental petitions it was alleged, in substance: That while the period of 10 years is the general limitation period applicable to judgments under the laws of North Dakota, there is in force in North Dakota a statute which prevents or suspends the operation of said statute of limitation when the defendant is absent from that state, which statute is as follows: “Section 5210. Exception. Absentee. If, when the cause of action shall accrue against any person, he shall be out of the state, such action may be commenced within the term's herein respectively limited after the return of such person into the state; and if after such cause of action shall have accrued such person shall depart from and reside out of this state and remain continuously absent therefrom for the space of one year or more, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action.” That since the entry of said judgment the defendant has resided out of said state of North Dakota, and has been absent therefrom ever since said judgment was entered. That under the laws of North Dakota the running of the statutes of limitation in favor of the defendant was tolled or suspended. That the defendant has not resided in the state of Texas for 10 years next before the filing of this suit in the state of Texas, and that the renewal of the judgment by affidavit, as provided for by the statutes of North Dakota, was not the exclusive means for the renewal or revival of judgments, but was only cumulative.

The case was tried with a jury. After the close of the testimony the court peremptorily instructed the jury to return its verdict for defendant, which was done, and judgment was entered for defendant accordingly.

Appellants’ first assignment of error is based” upon the court’s refusal to peremptorily charge the jury to return a verdict for them. The assignment, with the several propositions thereunder, brings into review the entire proceedings of the trial. We deem it only necessary to notice the questions involved in this appeal, which we think vital and decisive of the case.

We may state at the outset, however, that it is our opinion that the judgment sued upon conforms to the law and procedure of the state of North Dakota, and at the time of its rendition and entry was a valid judgment of that state as against the defendant. We are further of the opinion that the court did not err in permitting the plaintiffs to introduce in evidence the laws of North Dakota to sustain the judgment in the absence of special exceptions. We are also of the opinion that the judgment is sufficient in substance and form. It appears therefrom that it is a sentence of a court rendered between adverse parties, in favor of the one party against the other, and apparently it is a definite, final, and absolute sentence of the law. Being a money judgment, the amount of the recovery is stipulated and certain, and leaves nothing to be determined in the future. Apparently the judgment has the sanction of the law of that state, and is binding upon the parties; and as such it must be given the same faith and credit in this state as it has in the state of North Dakota. According to the more modern doctrine, a judgment is to be tested by its substance rather than its form. Its form is not very material, provided in substance it shows directly, and not inferentially, the judicial character of the act, the nature and scope of the adjudication, and its application to the controversy before the court. 23 Cyc. p. 670; Hamman v. Lewis, 34 Tex. 474; Scott v. Burton, 6 Tex. 322, 55 Am. Dec. 782. Nor is it essential to its validity that any particular terms or phraseology should be used, but the language employed in every case should clearly indicate that the sentence is the judicial act of the court adjudicating the matter in controversy. We are of opinion that the judgment conforms to the above requirements, and is a final judgment. 1 Black on Judgments, § 3. It is true that from the face of the judgment it appears that no suit was filed against the defendant, and that the affidavit confessing the indebtedness was made without a suit having been filed, yet under the laws of North Dakota provision for such procedure is expressly made by statute, and it is not for us to say, in the absence of proof as to some constitutional inhibition of the state of North Dakota, that such judgment in that state would not be authorized, or that same would be void because of that fact. As stated, the judgment appears to be regular, and was obtained in accordance with the procedure of that state, in a court of record which had jurisdiction of the subject-matter and of the person of the defendant, and as such it is not to be gauged by the laws of this state.

Under article 4, § 1, United States Constitution, it is provided that “full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state.” This provision of the Constitution implies that the judgments of every state shall be given the same effect by the courts of another state that they have by the law and usage in the state where rendered. This, of course, does not mean that we should take judicial knowledge of the laws of North Dakota, for it is a well-settled rule in this state that such laws are nothing more than matters of fact, which, like other facts, must be proved before acted upon, but when once proved, and it is shown that the judgment obtained was in conformity with such laws, it then becomes the duty of this court to give such faith and credit to such judgment as the judgment would have in the state where obtained; and, if said judgment was valid and conclusive in that state where it was rendered, it is to be considered as valid and conclusive in this state.

It is contended by appellants that, in the sale of the assets of the bank by the receiver, it was not necessary that the order authorizing the sale should be filed or recorded in the minutes of the court; it being sufficient if the order was. in fact obtained. Appellants sought to prove the order of the court authorizing the receiver to make the sale of the judgment by offering in evidence a copy of the original copy of a petition of Warren B. Wood, receiver, seeking to make a sale or disposition of the assets of said bank then in the hands of the receiver, also a copy of an order dated September 22, 1902, signed by one “O. J. Fisk, Judge,” authorizing Warren B. Wood, receiver, to dispose of the remaining assets of the Grand Forks National Bank of Grand Forks, N. D. The petition and order were authenticated by the Comptroller of the Currency under section 884 of the United States Compiled Statutes of 1901, which section reads as follows: “Every certificate, assignment, and conveyance executed by the Comptroller of the Currency, in pursuance of law, and sealed with his seal of office, shall be received in evidence in all places and courts; and all copies of papers in his office, certified by him and authenticated by the said seal, shall in all cases be evidence equally with the originals. An impression of such seal directly on the paper shall be as valid as if made on wax or wafer.”

The petition and order do not appear to have been ever filed with any court or in the clerk’s office of any court, nor was either ever entered in the minutes of any court. Section 5234 of United States Compiled Statutes of 1901, provides as follows: “On becoming satisfied, as specified in sections fifty-two hundred and twenty-six and fifty-two hundred and twenty-seven,- that any association has refused to pay its circulating notes as therein mentioned, and is in default, the Comptroller of the Currency may forthwith appoint a receiver, and require of him such bond and security as he deems proper. Such receiver, under the direction of the Comptroller, shall take possession of the books, records, and assets of every description of such association, collect all debts, dues, and claims belonging to it, and, upon the order of a court of record of competent jurisdiction, may sell or compound all bad or doubtful debts, and, on a like order, may sell all the real and personal property of such association, on such terms as the court shall direct; and may, if necessary to pay the debts of such association, enforce the individual liability of fhe stockholders. Such receiver, shall pay over all money so made to the Treasurer of the United States, subject to the order of the Comptroller, and also make report to the Comptroller of all his acts and proceedings.”

It is from the last-quoted statute that authority is given to the receiver to make disposition of the assets of the bank. It is there required that before sale of the assets of an insolvent bank is authorized, an order of a court of record, of competent jurisdiction must be had and obtained. This order is a necessary prerequisite before any sale of the assets of a bank can be made by the receiver. Turner v. Richardson, 180 U. S. 87, 21 Sup. Ct. 295, 45 L. Ed., 440; Richardson v. Turner, 52 La. Ann. 1613, 28 South. 158; Beckham v. Shackelford, 8 Tex. Civ. App. 660, 29 S. W. 200; Ellis v. Little, 27 Kan. 707, 41 Am. Rep. 434; Barrett v. Henrietta National Bank, 78 Tex. 222, 14 S. W. 569; Wallace v. Hood (C. C.) 89 Fed. 11; In re Earle (C. C.) 92 Fed. 22; In re Third National Bank (D. C.) 4 Fed. 775; People’s Bank v. Francis, 8 N. D. 369, 79 N. W. 853.

It will be seen that the statute requires an order from a court of record. This would imply that the order must be obtained from a court, as distinguished from an order of a judge. The court must be a court of record. A court of record has been defined as being one the history of whose proceedings is perpetuated in writing. Also it is required that some duly authorized person should record such proceedings, and when an act speaks of courts of record it speaks of courts whose proceedings are duly recorded by some authorized person or persons. Words and Phrases, vol. 2, p. 1686. Black’s Law Dictionary defines courts of record as being those whose acts and judicial proceedings are enrolled, or recorded, for perpetual memory and testimony.

Section 905 of the United States Compiled Statutes of 1901 provides as follows: “The acts of the Legislature of any state or territory, or of any country subject to the jurisdiction of the United States, shall be authenticated by having the seals of such state, territory, or country affixed thereto. The records and judicial proceedings of the courts of any state or territory, or of any such country, shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, Chief Justice, or presiding magistrate, that the said attestation is in due form. And the said records and judicial proceedings, so authenticated, shall have such faith and .credit given to them in every court within the United States as they have by law or usage in the courts of the state from which they are taken.” From this it will be seen that the records and judicial proceedings of the courts of a sister state shall be proved or admitted in any other court within the United States when properly authenticated, as required by said act. This is not the only method, however, of proving a judgment of a court of a sister state. Proof may be made by some witness who has compared the copy offered in evidence with the original on file in said court, or by a witness -who has examined the copy while another person has read to him the original (on file in said court); and, when so proved, such copy is admissible as an examined copy, and is sufficient proof prima facie of said judgment or order. Harvey v. Cummings, 68 Tex. 599, 5 S. W. 513; St. Louis, etc., v. Beilharz, 88 S. W. 512. This does not mean, however, that proof of an order of court of record can be made extraneous of the record. There must first be shown that there was such an order of court, and that same has been entered on the minutes.

We are of opinion that the copies of the papers which were in office of the Comptroller are not admissible in evidence in this cause, because said papers themselves, which were found in said Comptroller’s office, would be inadmissible in evidence. They were never filed in any court, nor ever recorded or made a minute of in any court. They were not shown to be the records of any court. They were inadmissible as proof of any fact, and we hold that there is an entire want of proof of authority for the sale, nor sufficient evidence to prove a sale.

Appellants contend that the defendant cannot attack collaterally the order of the court authorizing the sale by the receiver of the assets of said bank. It might be true that collateral attack could not be made as against the order if the order had been proved, but in this case there is a failure of proof that there was such an order. The plaintiffs have failed to show that they are entitled to .recover upon said judgment, because they have failed to connect themselves, by proper assignment, with same.

In the trial the defendant pleaded the 10-year statute of limitation of both Texas and North Dakota in bar of plaintiffs’ cause of action. He also pleaded that said judgment sued upon was a dormant judgment by reason whereof it was insufficient to support the cause of action. The undisputed proof shows that the judgment was rendered and entered on the 27th day of August, 1897, and that no execution has ever issued upon same, nor has there been any action taken by the plaintiffs or their predecessors in ownership to revive same, or to bring a suit to revive same, until the filing of this suit on the 21st day of September, 1911. It was admitted as a fact upon the trial of the cause that on August 27, 1897, the date when the judgment was rendered, the defendant was a nonresident of the state of North Dakota, residing without said state, and has ever since said time been a nonresident of and resided outside of said state. The defendant has resided in this state since about May 1, 1906.

It is well settled that the statute of limitations of this state may be pleaded in defense to an action on a judgment of a sister state. Snoddy v. Cage, 5 Tex. 106; Fessendon v. Barrett, 9 Tex. 480; Reid v. Boyd, 13 Tex. 241, 65 Am. Dec. 61; Clay v. Clay, 13 Tex. 195; Allison v. Nash, 16 Tex. 560; Spann v. Crummerford, 20 Tex. 216; Tilliard v. Hall, 11 Tex. Civ. App. 381, 32 S. W. 863; McElmoyle v. Cohen, 38 U. S. 312, 10 L. Ed. 177; 23 Cyc. 1564. “It is a well-settled rule that personal contracts are to be interpreted by the law of the place where they are made; and it is a rule equally well settled that remedies on contracts are to be regulated and pursued according to the law of the place where the action is instituted, and not by the law of the place of the contract. The, reason of this rule, according to Story, J., is obvious. ‘Courts of law,’ says he, ‘are instituted by every nation for its own convenience and benefit, and the nature of the remedies and the time and manner of the proceedings are regulated by its own views of justice and propriety, and fashioned by its own wants and customs. It is not obliged to depart from its own notions of judicial order from mere comity to any foreign nation. As a rule, statutes of limitation are to be considered to fall within these remarks. * * * ’ This rule is in conformity with the universal rule that, as the statute operates merely upon the remedy, the law of the forum, and not the law of the situs of the contract, controls.” Wood on Limitations (2d Ed.) § 8, p. 29.

According to our statutes, if execution has not issued within 12 months after the rendition of a judgment, such judgment may be revived by scire facias, or an action of a debt, brought thereon within 10 years after the date of such judgment, and not after. Revised Statutes of 1895, art. 3361. By the terms of the statute just mentioned, where execution has not issued within 12 months after the rendition of the judgment, and it has not been revived by scire facias proceedings or by an action thereon within the 10 years from the date of the judgment, It is then barred. Wilcox v. First National Bank, 93 Tex. 322, 55 S. W. 317. Limitation against a judgment commences to run from date of the issuance of last execution there-on, and not from the time that the judgment becomes dormant by failure to issue execution within the time prescribed by the laws of this state. Wootters v. Hall, 67 Tex. 513, 3 S. W. 725. The statutes of limitation of this state bar a judgment in 10 years from its date if no execution is issued thereon, or if it has not been revived by scire facias or by a suit. A judgment is also barfed in 10 years from the date of the last execution, or, as often stated, it is barred in 10 years from the time of the last act of diligence. If execution has issued upon a judgment within the period of 1 year from date of its rendition, it then remains in activity for a period of 10 years from the time when the execution issued, and this without the necessity of issuance of other executions; but, if no execution issues within 10 years from the date of the last execution, then such judgment is barred. It does not become dormant, in the instance last mentioned, but barred. It becomes dormant, under the laws of this state, only in the event execution is not issued within the period of one year after its rendition. Hence, in order to keep a judgment active after execution has once issued within one year, the time prescribed by the statute, it is necessary that other executions issue, or an act of diligence be made for the collection of the debt under the judgment before the expiration of 10 years from the last issuance of execution or act of diligence, otherwise the judgment is barred. So we hold, as a matter of law, that since no execution has issued upon the North Dakota judgment for a period of more than 10 years from tne date of its rendition, under the laws of limitation of this state, it is barred. This, too, in view of the fact that the defendant has not resided in this state for the full period of 10 years next before the bringing of this suit.

In this state, the absentee clause of the statute does not apply to nonresidents or parties living at the time of the accrual of action without this state. Lynch v. Ortleib, 87 Tex. 590, 30 S. W. 545; Huff v. Crawford, 88 Tex. 368, 373, 30 S. W. 546, 31 S. W. 614, 53 Am. St. Rep. 763; Wilson v. Daggett, 88 Tex. 375, 31 S. W. 618, 53 Am. St. Rep. 766; Habermann v. Heidrich, 66 S. W. 106; Habermann v. Heidrich, 66 S. W. 795; Snoddy v. Cage, 5 Tex. 106; Cotton v. Rand, 29 S. W. 682; Wheeler v. Wheeler, 134 Ill. 522, 25 N. E. 588, 10 L. R. A. 613; Embrey v. Jemison, 131 U. S. 336, 9 Sup. Ct. 776, 33 L. Ed. 172, 177; Bradshaw v. Mayfield, 18 Tex. 21.

Article 3359, Revised Statutes of 1895, provides as follows: “Every action upon a judgment or decree rendered in any other state or territory of the 'United States, in the District of Columbia or in any foreign country, shall be barred, if by the laws of such state or country such action would there be barred, and the judgment or decree be incapable of being otherwise enforced there; and whether so barred or not, no action against a person who shall have resided in this state during the ten years next preceding such action shall be brought upon any such judgment or decree rendered more than ten years before the commencement of such action.” It is our opinion that the article of the statute just quoted is cumulative of the other articles of limitation of this state, if the cause of action is barred in North Dakota, under the last-quoted article, it is also barred here, when the statutes of the sister state are urged as a defense. Giving effect, then, to the statutes of limitations of this state, we hold that the cause of action is barred and that the plaintiffs should not recover herein. As stated, limitation acts only affect the remedy, and as such the state has a right to prescribe a period within which a cause of action may be brought. The full faith and credit clause of the Constitution of the United States does not restrict the right of a state to prescribe a reasonable limitation period for bringing actions upon judgments of sister states. Bacon v. Howard, 20 How. 22, 15 L. Ed. 811.

Under section 5500, Revised Codes 1899 of the Laws of North Dakota, it is provided that executions may issue upon a judgment at any time within 10 years. Section 5200 of said Code provides that actions based on judgments are barred at the expiration of 10 years after a. cause of action has accrued thereon and section 5210 already set out in the statement of the pleadings supra of said Code excepts from the period of limitation provided for in section 5200 (supra) for commencing an action the time during which the person against whom the cause of action has accrued is absent from the state. Construing these sections of that Code the Supreme Court of North Dakota, in Weisbecker v. Cahn, 14 N. D. 390, 104 N. W. 513, has held that a judgment cannot be enforced in that state upon an execution issued after the period of 10 years from the date when the judgment was rendered although the judgment debtor has been continually absent from the state during said period; that there is no connection between section 5210, which pertains to the absentee debtor, and section 5500, which pertains to the issuance of execution. The articles mentioned apply to different matters, and neither one controls or affects the other.

We need not decide here the question as to whether, under the laws of North Dakota, the cause of action upon the judgment is barred by the statute of limitation of that state. Under the authority of Weisbecker v. Cahn, supra, the judgment at the time of bringing this suit was dormant, and it was incapable of being enforced in the state of North Dakota unless it be first revived there. Nor do we think it incumbent upon us to decide whether or not, the judgment being dormant, it could be revived by a suit instituted in the state of North Dakota, since we are of opinion that by the great weight of authority a judgment which has been allowed to become dormant under the laws of the state where it was rendered cannot be enforced by an action in another state, for to allow such enforcement would be to give effect to that which had no effect in the state where said judgment was rendered. Am. & Eng. Enc. of Law (2d Ed.) vol. 13, p. 1002; Chapman v. Chapman, 48 Kan. 636, 29 Pac. 1071; St. Louis, etc., v. Jackson, 128 Mo. 119, 30 S. W. 521; Baker v. Stonebraker, 36 Mo. 339. We are of opinion, therefore, that, the judgment being dormant at the time of the institution of this suit in the state of North Dakota, the plaintiffs should not be permitted to maintain a cause of action upon it in this state.

For the reasons indicated, we are of opinion that the judgment should be affirmed.

Affirmed.

On Rehearing.

Upon appellants’ request, we make additional findings of fact, as follows: The legal rate of interest upon the judgment in the state of North Dakota on August 27th, 1897, was seven per centum per annum, and that seven per centum per annum has been the legal rate of interest upon said judgment since said last-named date to the date of trial of the cause in the district court of El Paso county. The motion fon rehearing is overruled.


source: Caselaw Access Project

author: HARPER, C. J.

license: Public Domain

text:
    HOUSTON & T. C. R. CO. v. LOOFS.
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 23, 1913.
    Rehearing Denied Nov. 13, 1913.)
    1. Appeal and Error (§ 216) — Questions in Trial Court — Instructions.
    Where no special charge was requested to cure an alleged error in an instruction, in a railroad passenger’s action for injuries in alighting, which directed a verdict for plaintiff if defendant failed to exercise the required care “in permitting or inducing” plaintiff to alight at a dangerous place, when the petition did not allege that defendant permitted or induced plaintiff to alight at such a place, and no exception was taken to the pleadings, they will be deemed sufficient to permit evidence upon which the instructions as a whole were predicated.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 627, 641, 660, 662-676; Dec. Dig. § 216.]
    2. Trial (§ 296) — Curing Error — Instructions.
    Where a petition which merely alleged negligence by defendant railroad company in failing to stop the train at a certain station for discharging passengers did not authorize an instruction directing a verdict for plaintiff if defendant was negligent in “inducing” plaintiff to descend from the train, the error in the instruction was cured by another part of the charge that plaintiff must recover under the allegations of his petition.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.]
    3. Appeal and Error (§ 1031) — Harmless Error — Instructions.
    In the absence of a showing that the jury were probably influenced by alleged error in an instruction, the Court of Appeals cannot presume that they were so influenced, even though it was erroneous.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4038-4046; Dec. Dig. §> 1031.]
    Appeal from District Court, Harris County; Norman G. Kittrell, Judge.
    Action by C. J. Loofs against the Houston & Texas Central Railroad Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Lane, Wolters & Storey, Baker, Botts, Parker & Garwood, and Wm. A. Vinson, all of Houston, for appellant. Guynes & Colgin, of Houston, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, C. J.

This was a suit for damages for personal injuries suffered by plaintiff’s wife, Emma Loofs, alleged to have been sustained while alighting from a train of appellant at the town of Fairbanks, Harris county, on January 27, 1911.

Appellee’s wife was a passenger on one of appellant’s trains from Houston, Tex., to Fairbanks, Tex., and alleges that she was injured in alighting from the train at Fairbanks. The grounds alleged in the petition were: “That defendant, its servants, agents, and employés in charge of the train and passengers, * * * carelessly and negligently failed to well and safely discharge her at Fairbanks in that they failed to furnish her anything on which to step from the steps of the said car in leaving the same, and so failed to render her the assistance in leaving said car that the circumstances required, and so failed to stop the train at the place in Fairbanks arranged by the defendant for discharging its passengers, in consequence of which she alighted and was injured.” Defendant answered by general denial and assumed risk.

The appellant’s first and only assignment of error is predicated upon the following charge of the court:

“The court erred in the fifth paragraph of its charge to the jury which reads as follows: ‘Guided, by these instructions, if you believe that thé plaintiff was a passenger on defendant’s train on the date alleged, and that when she reached the station of Fairbanks she attempted to alight from the train, and that the agent or servant of the defendant, whose duty it was to look out for her safety in alighting, failed to use that degree of care, prudence, and precaution for her safety which you are charged devolved by law upon him, in paragraph 3, and that by reason of such failure to exercise that degree of care, either in the matter of providing appliances for the plaintiff to step on, or in the matter of helping her to descend, or in permitting or inducing her to descend at an unsafe and dangerous place, if such you find he did, and that either or both or all of such acts of omission or commission on his part, if such you find there was, was the proximate cause of the plaintiff’s injuries, if you find she was injured, then yon will find your verdict for plaintiff, unless you find for defendant under instructions hereinafter given you’—as is shown in the second paragraph of defendant’s motion for a new trial.”

Under its three propositions appellant charges error: First, that the charge is erroneous in that it instructs the jury that the defendant would be guilty of negligence, as a matter of law, if it failed to exercise the high degree of care, prudence, and precaution required by law of carriers of passengers, either in the matter of providing appliances for her to step on, or in the matter of helping her to descend, or in preventing her to descend at a unsafe and dangerous place, whereas it was for the jury to decide whether such failure, under the circumstances, was negligence; second, that said charge is erroneous in that it instructs the jury that it was the duty of some agent or servant of defendant to look after the wife of plaintiff in alighting; and, third, that said charge is erroneous in that it directed a verdict for the plaintiff if the defendant failed to exercise the dégree of care required of passengers “in permitting or inducing her to descend at an unsafe and dangerous place,, because there was no allegation in plaintiff’s petition that the defendant” permitted or induced the plaintiff’s wife to descend at an unsafe and dangerous place.

There was no special charge requested to cure the error, if any, in the paragraph complained of, and no exception urged to the pleadings. Therefore the pleadings must be held to be sufficient to permit the plaintiff to introduce the evidence upon which the charge of the court as a whole is predicated.

All the evidence adduced upon the question of negligence of the defendant was directed to the acts of omission charged in plaintiff’s petition which would render it liable. Paragraphs 2 and 3 of the court’s charge are as follows:

“The plaintiff alleges that she was injured by reason of the negligence of the defendant’s servant in charge of the train in failing to furnish her with anything upon which to step from the steps of said train as she left the said train, and in failing to render her the assistance in leaving the train that the circumstances required, and in failing to stop the car at Fairbanks at the place arranged for discharging passengers, and the burden of proof is on the plaintiff to prove by a preponderance of the evidence the allegations of her petition upon which she bases her right to recovery, substantially as therein alleged. Unless she has done so, you will find for the defendant.”
“The defendant was not held in law to be an insurer of the safety of the plaintiff, but it was required in law to exercise, in guarding against danger to her in alighting from the train, that high degree of foresight as to possible dangers, and such a high degree of prudence in guarding against them as would be used by very cautious and prudent and competent persons under similar circumstances. If the agents and servants of the defendant used that degree of care, they were not guilty of negligence, and, if they were not guilty of negligence, the plaintiff cannot recover. If they did not use that -degree of care, they were guilty of negligence, and if by reason of such negligence the plaintiff was injured,- without contributory negligence on her part, then she is entitled to recover.”

In these paragraphs the jury are clearly told that the plaintiff must prove the allegations of her petition substantially as alleged, and that if proved the defendant would not be liable in damages unless the employés of defendant, under all the circumstances, were guilty of negligence by reason of the omission charged.

The fact that the charge in paragraph 5 contains “permitting or inducing her to descend at an unsafe and dangerous place” was not error in the light of the whole of this record, because the plaintiff pleaded that the defendant was negligent “in failing to stop the car at Fairbanks at the place arranged for discharging passengers,” which in effect charges that the place at which the train stopped for plaintiff’s wife to alight was not prepared for passengers and not so safe as one which was prepared for the purpose. And if there is no sufficient allegation in the petition to support the language “inducing her to descend,” then, if it was error in the court to so charge, it is cured by the other portions of the court’s charge above quoted, and specially that portion of paragraph 2 which charges that plaintiff must recover upon the allegations contained in his petition.

In the absence of a showing that the jury were probably influenced by the part of the charge complained of, under the rules governing this court, we are not authorized to presume that they were influenced thereby, even though it were erroneous, which we do not concede.

Judgment of the trial court is therefore affirmed.


author: FLY, C. J.

text:
    DRYDEN et al. v. MAKEY et al.
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 15, 1913.
    On Motion for Rehearing, Nov. 12, 1913.)
    1. Adverse Possession (§ 85) — Recognition of Title — Evidence—Sufficiency.
    In trespass to try title, where defendants pleaded limitations, the evidence of one of the defendants that B. came to his house, stated that he owned some land in the vicinity, but did not know 'exactly where it was, and asked him to keep up the fences, that he thought B. referred to a place adjoining' his, and repaired the fences thereon, was sufficient to support a finding that defendants did not agree to put a fence around the property occupied by them, thereby recognizing B.’s right to the land, though such evidence was sharply contradicted.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 313, 498-503, 656, 657, 660, 668, 688-690; Dec. Dig. | 85.]
    2. Adverse Possession (§ 116) — Actions — Instructions.
    In trespass to' try title, where defendants relied on limitations, and where the overwhelming evidence showed that the land was fenced in 1882, and for a number of years, but there was some evidence that it was fenced on only three sides in 1890 or 1891, an instruction that a failure to keep up the fences so as to exclude others from'the land did not necessarily interrupt the running of the statute was not misleading.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. § 66; Dec. Dig. § 116.]
    3. Appeal and Error (§ 1064) — Harmless Error — Instructions.
    In trespass to try title, where defendants relied on limitations, it was not probable that a charge that a failure to keep up the fences so as to exclude others from the land did not necessarily interrupt the running of the statute harmed plaintiffs, even if erroneous, where the uncontradicted testimony showed that the land was cultivated, used, and enjoyed by defendants to the exclusion of all others for more than ten years.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.]
    4. Adverse Possession (§ 19) — Elements— Statutory Provisions.
    Where land was cultivated, used, and enjoyed by a person to the exclusion of all others, for more than ten years,'this met the demands of the statute of ten years’ limitation, even though the land was not fenced.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 99-105; Dec. Dig. §, 19.

    For other definitions, see Words and Phrases, vol. 1, pp. 222-235; vol. 8, p. 7568.]
    On Motion for Rehearing.
    5. Adverse Possession (§ 85) — Evidence-Hostile Character of Possession.
    The acceptance by a party claiming title by limitations of a payment from another for repairing a fence on the land was admissible in evidence to show that his possession was not adverse.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 313, 498-503, 656, 657, 660, 668, 688-690; Dec. Dig. § 85.]
    6. Adverse Possession (§ 115) — Questions for Jury — Recognition of Another’s Title.
    It was a question for the jury in the light of the facts of the case whether the acceptance by a party, after his title to land by limitations had been perfected, of a payment from another for repairing a fence on the land showed that his possession was not adverse.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§• 314, 691-701; Dec. Dig. § 115.]
    7. Appeal and Error (§, 1001) — Review — Questions of Fact.
    The verdict of a jury when sustained by evidence cannot be disturbed, no matter what the appellate court may think as to the relative standing and reputation of the witnesses for truth and veracity.
    [Ed. Note. — For other cases, see Appeal and Error, Ceñí. Dig. §§ 3922, 3928-3934; Dec. Dig. § 1001.]
    8. Appeal and Error (§ 1099) — Former Decision as Law of Case.
    In trespass to try title, a holding on appeal that the evidence was sufficient to support a verdict for plaintiff did not prevent a holding on a subsequent appeal that the evidence on that trial was sufficient to support a finding that defendants had title by limitations.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4370-4379; Dec. Dig. § 1099.]
    Appeal from District Court, Harris County ; Norman G. Kittrell, Judge.
    Action by R. Fannie Dryden and others against J. H. Makey and others. From a judgment for defendants, plaintiffs appeal.
    Affirmed.
    See, also, 128 S. W. 633.
    Lane, Wolters & Storey and L. C. Kemp, all of Houston, for appellants. Fred R. Switzer, of Houston, for appellees.

      For other cases see same topic ana section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   FLY, C. J.

This is an action of trespass to try title to several lots of land in the city of Houston, instituted by Thomas Dryden, who died pending the suit, and the same was then prosecuted by his widow, R. Fannie Dryden, and his two daughters, Luella Lemon and Mary E. Corbly, each joined by her husband, against J. H. Makey and his wife, Jeannette Makey, Stanley Thompson, and Mrs. S. R. Bruce and her husband, J. S. Bruce. It was alleged that after the suit was filed appellants had acquired the title of S. R. and J. S. Bruce and Thomas Ronald-son. Appellees alleged that after the suit was instituted they had acquired the interest of Stanley Thompson in the land, and also pleaded ten years’ limitation. Thompson filed a disclaimer. The cause was submitted to a jury on special issues, and upon the answers returned a judgment was rendered in favor of appellees J. H. Makey and Jeannette Makey.

The jury found that Makey and wife did not, as pleaded by appellants, agree to repair or put a fence around the property, thereby recognizing the right of the Bruces to the land, and that Makey had been in peaceable adverse possession of the land in controversy for a period of ten consecutive years, using, cultivating, and enjoying the same during the whole of that period. We are of the opinion that there was testimony which sustains the findings of the jury.

J. H. Makey swore that Dr. Brúce came to his house and stated that he owed some land in the vicinity, but did not know exactly where it was, and asked him to keep the fences up, and that he (Bruce) would pay him (Makey) $5. Makey stated’ that he thought Bruce referred to a place adjoining his, known as the Newman place, and he repaired the fence between his and the Newman place and in front also. He denied that he recognized Bruce as his landlord, and swore that he had held the land as his own since 1882. Makey was sharply contradicted by two witnesses; but the jury accepted his account of the matter. He was sustained as to his adverse possession of the land by a number of witnesses. Jeannette Makey, his wife, corroborated his account of what Bruce said about the land. This view of the testimony disposes of the first, second, third, and fourth assignments of error, which question the sufficiency of the evidence to sustain the findings of the jury as to hostile possession of the premises. There was ample testimony which, if believed by the jury to be true, sustained the answers of the jury to the questions submitted by the court.

A part of the testimony tended to show that the land was fenced, and other parts of it tended to show that only three sides were fenced in 1890 or 1891, and it was not calculated to mislead the jury for the court to instruct the jury that a failure to keep up the fences so as to exclude others from the land did not necessarily interrupt the running of the statute. The overwhelming evidence showed that the land was fenced in 1882, and was fenced for years, and, if one side was down in 1890 or 1891, the court might well have assumed that the fence had once been up on all sides of the land. . The only testimony that tends to contradict the statement that the land was fenced in 1882 was that of Chimene, who showed that he knew nothing about it. He said: “I didn’t pay any particular notice as to whether the property X had owned was fenced or not; but I don’t think it was.” He was there, he said, in 1883 or 1885. He was not able to identify the property of which he was speaking with that in controversy. It is not probable that the charge, if erroneous, in any way harmed appellants. The uncontradict-ed testimony showed that the land was cultivated, used, and enjoyed by appellees, to the exclusion of all others, for more than ten years, and this would meet the demands of the statute of ten years’ limitation, even though the land was not fenced. Dunn v. Taylor, 42 Tex. Civ. App. 241, 94 S. W. 347.

The seventh assignment of error is without merit, and is overruled.

The judgment is affirmed.

On Motion for Rehearing.

The opinion of the court is assailed on the ground that there was sufficient testimony to show that Makey and wife had not agreed to build a fence about the property for Dr. Bruce and hold the property for him. Makey swore positively in his ex parte deposition that he did not know that Bruce was claim-” ing the property, and that he had been claiming the land 16 or 17 years before he ever saw Bruce. He said his occupancy of the land was continuous from 1882 up to the time he first saw Bruce. Jeannette Makey swore that Bruce stated that he did not know where the land was that he claimed; that' she and her husband had lived on the place using and claiming it ever since they first moved on it. Makey and wife swore that the first time they saw Bruce was about 5 or 6 years before the trial which occurred in March, 1912, that is, in 1906. At that time Makey and wife had been claiming the land for 24 years. Bruce obtained a deed to the land in 1890, 8 years after Makey and wife went into possession of it. Bruce was uncertain about when he first talked to Makey; but, as he sent him the money for building the fence in 1899, it must have been about that time that he first went to the land. At that time Makey had been in possession of the land for 17 years, and had perfected a title by 10 years’ limitation. Bred Kilpper swore that he moved into the neighborhood of the lot in 1882 or 1883, and Makey had it fenced at that time, and was cultivating it; that the place was kept continuously under fence. Robert E. O. Wilson swore that the Makeys were on the place in 1883, and that the land in controversy was fenced, and it remained fenced up to the time witness last saw it, in 1895 or 1896.

It is clear that the acceptance of the $5 by Makey from Bruce as a payment for repairing a fence took place after the title had been perfected, and while admissible to show that the possession was. not adverse, still it was purely a question of fact for a jury as to whether taking the money evidenced that there was no adverse possession. As said by this court, in Cuellar v. Dewitt, 5 Tex. Civ. App. 568, 24 S. W. 671: “The weight and effect to be given such acts and declarations, the condition of the parties, the circumstances surrounding the act or declaration, and the motive back of or responsible for either, must be passed upon and viewed in the light of the facts of each case.” This was simply and purely a jury case, and, the jury having decided it in favor of appellees, and there being evidence to sustain their finding, no matter what this court may think of the relative standing and reputation of the witnesses for truth and veracity, the verdict cannot be disturbed.

Appellants assert that, when this case was before this court on a former appeal (128 S. W. 633), it was held that the evidence was sufficient to support tlie verdict. Of course, tfiis court field no sucfi tiling, as it would fiave been quite improper so to do in view of a reversal. But, if it fiad so field, it would still be justified in holding that the evidence on the last trial sustained the finding that appellees fiave a title by limitations, although it may not fiave been technically correct to say that the uncontradicted testimony established that fact, and that expression will be withdrawn. The uncon-tradicted evidence, however, did show that the land was fenced in 1882 or 1883.

The motion for rehearing is overruled.


author: HENDRICKS, J.

text:
    LANIUS v. PEOPLE’S HOME TELEPHONE CO.
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 18, 1913.
    Rehearing and Request to Certify to Supreme Court Denied Nov. 8, 1913.)
    1. Appeal and Error (§ 78) — Judgments Appealable — Interlocutory Judgment.
    Plaintiff telephone company sued defendant in a justice court for telephone service, and defendant pleaded in reconvention in the justice court a claim for damages amounting to $36.50, which on appeal to the county court was raised to $151.50. The telephone company filed numerous exceptions to the whole plea in recon-vention, which were sustained and judgment rendered for it on its open account, and defendant attempted to appeal only from the part of the judgment rendered omthe exceptions, and not from the judgment on the open account. Held, that the sustaining' of the exceptions to the plea in reconvention did not dispose of the plea, and the judgment, being therefore interlocutory, was not appealable.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 426, 434, 464-477, 480, 481; Dee. Dig. § 78.]
    2. Appeal and Error (§ 719) — Assignment oe Error — Necessity—Fundamental Error.
    That the judgment appealed from is interlocutory, and hence not appealable, is fundamental error, which may be reviewed though not assigned.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 8490; Dec. Dig. § 719.]
    Appeal from Cooke County Court; C. R. Pearman, Judge.
    Action by the People’s Home Telephone Company against G. L. Lanius. From part of a judgment in favor of plaintiff, defendant appeals.
    Dismissed.
    Stuart, Bell & Moore, of Gainesville, for appellant. Granville Jones, of Gainesville, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HENDRICKS, J.

In this cause the appel-lee, the People’s Home Telephone Company, sued the appellant, .Lanius, in the justice court, upon open account, for telephone services, which account the latter admitted, except in so far as the same was defeated, in whole or in part, by the faets alleged in what he terms an offset or reconvention, alleging a negligent failure of the telephone company to render specific telephone services, also averring a part payment of the account. Upon appeal to the county court, the defendant, Lanius (appellant here), interposed the same form of plea, by amendment, consisting of the same items pleaded in the justice court, the plea enlarged, however, by alleging a violation of contract in failing to render generally certain telephone service for certain periods, increasing his demand in reconvention from $36.50 in the justice court to $151.50 in the county court. On account of this increase the appellee telephone company moves to dismiss the appeal in this court on the alleged jurisdictional ground that the amount litigated in the justice court was not within the jurisdiction of this court on appeal, and could not be increased in the county court by that additional amount, and further claiming that the increase was a different and new cause of action in the county court from that pleaded in the justice court. Numerous special exceptions were interposed by the telephone company to the whole plea in recon-vention in the county court, which were sustained ; judgment was rendered for the telephone company upon the open account pleaded against the defendant, Lanius, and appellant, Lanius, attempts to appeal to this court from that part of the judgment rendered only upon the demurrers, and not from the judgment upon the open account. The matter of the appeal, based upon a part of the case, excluding the judgment rendered against Lanius upon open account, is not assigned or briefed, and we pretermit any discussion of that question at this time.

However, the judgment of the county court, sustaining the special exceptions to appellant’s plea in reconvention, does not, in any manner, dispose of the plea in recon-vention; such an omission leaves the judgment of the county court in an interlocutory condition, and, a final judgment not appearing in this record, it is fundamental that this court is without jurisdiction to render any judgment whatever, although the question is unassigned. Texas Land, etc., Co. v. Winter, 93 Tex. 560, 564, 57 S. W. 39, reversing 54 S. W. 802; Boren v. Jack, 73 S. W. 1061; State v. Trilling, 57 S. W. 311; Dixon v. Sanderson (Sup.) 6 S. W. 831; Burrows v. Gonzales County, 5 Tex. Civ. App. 232, 23 S. W. 829.

The appeal is dismissed.


author: BASBUBY, J.

text:
    KANAMAN v. HUBBARD et al.
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 18, 1913.
    Rehearing Denied Nov. 8, 1913.)
    1. Sales (§ 38) — Right oe Buyer to Rescind.
    The right of a buyer to rescind a contract of purchase on the ground of fraud is not dependent on the existence of fiduciary relations between the parties; such relation only liberalizing or extending the general rule, and abrogating and rendering inapplicable the defense of caveat emptor.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 65-77, 85; Dec. Dig. § 38.]
    2. Sales (§ 38) — Bight of Buyeb to Rescind.
    Where an agent engaged in selling automobiles, to induce a dealer in automobiles to purchase a car, fraudulently caused his brother, who was unknown to the dealers, to pretend that he desired to purchase such a car, in reliance upon which fraudulent representation the dealers were induced to purchase it in expectation of reselling it to the brother, the dealers were entitled to rescind, though there were no misrepresentations as to the quality or value of the automobile, and it was substantially worth the price paid, since fraudulent representations of material facts which induce the purchase of property is ground for rescission by the buyer.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 65-77, 85; Dec. Dig. § 38.]
    3. Sales (§ 38) — Bight of Buyeb to Rescind.
    Where dealers in automobiles were, by fraud, induced to purchase an automobile for which they had no sale, and which they would have had to carry at their own expense and at possible ultimate loss, there was a sufficient pecuniary injury to justify a rescission, if such pecuniary injury was necessary.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 65-77, 85; Dec. Dig. § 38.]
    4. Attachment (§ 186) — Custody oe Peopeety — Liability fob Injuby.
    A plaintiff who causes the issuance of a writ of attachment is not liable for injuries to the attached property caused by the negligence and misconduct of the sheriff or his bailee, in which he does not participate, since, subject to defendant’s right to replevy, the right of the trial court to order the property sold, and that of third persons to claim title thereto, the property is left to the exclusive control and safe-keeping of the officer, and if, through want of proper care or diligence, he allows it to be injured, wasted, lost, destroyed, or diverted to some other purpose, he is liable for the resulting injury. ■
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 600-607; Dec. Dig. § 186.]
    5. Appeal and Ebbob (§ 1013) — Review-Question of Fact.
    In an action wherein it was sought to recover from a sheriff damages for injuries to an attached automobile while in his custody, where no witness fixed the value of the automobile when levied upon at less than $2,300, or when sold by the sheriff at more than $850, and it sold for $743.70, a verdict against the sheriff for $553.68 was so manifestly against the evidence and so inadequate that it would be set aside on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3993-3995; Dec. Dig. ‘ 1013.]
    6. Appeal and Ebbob (§ 1012) — Review-Question of Fact.
    While, if there is any evidence in the record to sustain a verdict, it will not be disturbed oni appeal, if it-is manifestly against the evidence or inadequate under the evidence, it will be set aside.
    [Ed. Note. — For other cases, see Appeal and Error,] Cent. Dig. §§ 3990-3992; Dee. Dig. § 1012.]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge. ,
    Action by W. McK. Hubbard and others against W. I. Kanaman. From a judgment for plaintiffs, defendant appeals.
    Affirmed in part, and reversed and remanded in part.
    Allen & Flanary, of Dallas, for appellant. K. B. Craig and Boss M. Scott, both of Dallas, for appellees.

      For otter cases see same topic ana section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   BASBUBY, J.

Appellees filed suit in the court below against appellant, seeking to rescind the sale by appellant and purchase by appellees of a seven-passenger Moline automobile on the ground of fraud, and to recover the purchase price paid therefor. Ancillary to the suit attachment was levied upon the automobile at the instance of ap-pellees by the sheriff of Dallas county, who took possession of same. Appellant answered with general demurrer and denial, and specially denied the fraud and the right of appellees to rescind the contract of purchase. Alternately, however, appellant averred that, in the event the automobile should be held to be his property, then the levy of the attachment thereon was wrongful, and that he had been injured by said levy in that the car at the time of the levy was of the reasonable market value of $2,500, but that when it was sold by order of court upon application of the appellees it only netted $743.70, due to the fact that it was injured while in the custody of the sheriff, damaging appellant thereby the difference between $2,500, its market value, and $743.70 the amount for which it was sold; as well as the further sum of $5 per day during the time he was deprived of its use. After answer by appellant appellees filed in the suit a motion against the sheriff and the sureties upon his official bond, averring the issuance of the attachment and its levy by the sheriff upon the automobile, and the taking of the same by the sheriff, who afterwards delivered it to one Chandler, as special bailee and charging the sheriff and his bailee with failure to keep and preserve same according to law, and alleging that the sheriff and his' said bailee placed the car in public service as a common carrier of passengers, and rented same to other persons, receiving for its use and rental an income of $500, and injured said car as well by such use $1,500, by which the parties to the controversy suffered loss and damage in the sum of $2,000, and as a consequence the fund in the custody of the court for the security of appellees’ demand or to be returned to appellant, as the case might result, suffered the loss of such amount. Appellees prayed accordingly that the sheriff and his bailee be required to pay into court said amount of $2,000, and that the appellant be notified of the motion against the sheriff, and be required to join in the prosecution of the same, or upon a failure to do so be thereafter estopped from all claims for damages against appellees growing out of the levy of the attachment upon said property. Appellant adopted the allegations of appellees’ motions against the-sheriff only in the event it should be held he could not recover against appellees for the negligence of the sheriff. The sheriff and his sureties met the motion by general demurrer and denial, and specially averred that the automobile was placed in the possession of the bailee at the instance of ap-pellees, whereby the bailee became the agent of appellees, and for whose misconduct the sheriff was not liable. Prior to trial, as alleged by appellant, the ear was sold under order of court upon application of appellees, and netted at such sale the sum of $743.70.

Upon trial by jury verdict was for ap-pellees against appellant for $2,512.75, and against the sheriff and his sureties for $553.-68. Judgment was in accordance with the verdict, and provided that any sum paid by the sheriff on the judgment against him should go as a credit on the judgment against appellant, and that appellant, in event he paid appellees’ judgment against him, should be subrogated to all rights in the judgment against the sheriff.

The verdict of the jury warrants the following conclusions of facts: Appellees were engaged in Et. Worth iji the purchase and sale of automobiles, and were buying and selling the Moline cars. Appellant was state agent for the Moline car, and appellees could buy said car only through appellant. In June, 1910, appellant had in his possession at Dallas for sale a Moline car known as Moline 40, Model K, seven-passenger, and endeavored to sell same to appellees: Appel-lees informed appellant that, because of the absence of any general demand for such a car, they would not buy until they could first find a customer who wanted a similar car. Subsequently Roy L. Kanaman, brother to appellant, but unknown to appellees, falsely representing himself to be J. F. Adams, of Floydada, Tex., and at the instance of appellant, called upon appellees in Ft. Worth, and sought to purchase from them a car of the character described above, to be used by him in the operation of an automobile line. Appellees explained to Roy L. Kanaman, alias J. F. Adams, that they did not have such a car in stock; but if Kana-man would accompany them to Dallas they could show him such a car. Kanaman said it was unnecessary, since he had used same sort of ear, and knew what it was. Thereupon appellees agreed to deliver to Roy L. Kanaman the car he desired at Ft. Worth the following morning for the price of $2,500. At Kanaman’s request appellees signed a written contract to so deliver the car, and Kanaman, as an earnest of his intention to pay the purchase price, and upon demand of appellees, deposited $50 with the appellees. Immediately afterward appellees went to Dallas, and purchased the ear in controversy in this litigation from appellant, paying him therefor $2,250. Roy L. Kanaman did not cail the next day to receive the car; in fact did not call at all. Suspecting something dishonest in the transaction, one of the ap-•pellees went to Dallas, and, without here detailing his investigation, concluded that Roy L. Kanaman, brother to appellant, was the man who made the purchase under the alias of J. F. Adams, and, learning that he was in the vicinity of Taylor, Tex., selling automobiles for appellant, went there that night in search of him, and finally found him in a store in a small town in the vicinity of Taylor. When the appellee entered the place where Roy L. Kanaman was, Kana-man, upon seeing appellee, hastily left the place. With the assistance of the local constable, Kanaman was again found, and, when charged with buying the car, and then refusing to accept it, he laughed and denied doing so, notwithstanding appellee recognized him as the same person who purchased the car from appellees. After ascertaining that Kan-aman was the same person who purchased the car, appellees returned same to appellant, at Dallas, and demanded a return of their money. Appellant said, if he was sure his brother was the man who made the pretended purchase, he would return the money, and started to write appellees a check, but reconsidered and never did so. Appellees consulted an attorney, and subsequently filed this suit, and levied attachment upon the automobile, with the result stated at another place. The amount realized from the sale of the machine and the damages awarded against the sheriff aggregate $1,297.38.

In the exercise of an abundance of industry, counsel for appellant has asserted in various ways similar propositions of law under various assignments of error, and for that reason we shall discuss the issues as such, and omit a discussion seriatim of the assignments.

The first issue presented by appellant is that, there being no relationship of trust between the parties, nor any misrepresentation of the quality or value of the automobile sold, appellees were not entitled to rescission of the purchase contract. The facts in the record sustain the claim of an absence of trust relationship as well as any misrepresentation as to quality or value of the automobile. We think, however, that appellees were nevertheless entitled to rescission. Trust and confidential relations must hot exist in every case to entitle the defrauded party to relief. As we understand it, such relation only liberalizes and extends the general rule and in effect abrogates and renders inapplicable as a defense in favor of the guilty party the rule of caveat emptor. In short, that the right to avoid contracts on the ground of fraud is independent of fiduciary relations, and depends, not upon such relation, but upon proof in the manner provided by law of such fraud. Texas, etc., Compress Co. v. Mitchell, 7 Tex. Civ. App. 222, 28 S. W. 45; Varner v. Carson, 59 Tex. 303; 20 Cyc. 60. Accordingly, in our opinion, it was not necessary for appellees to allege and prove the existence of fiduciary relation between them and appellant as a condition precedent to a rescission of the purchase.

The next issue raised is that rescission will be denied, even though the contract was fraudulently procured, unless the party seeking rescission is able to show substantial pecuniary injury. In connection with this issue will be considered also the conceded fact that there was no misrepresentation of the quality or value of the automobile. As stated at another place, appellees alleged that appellant had been ehdeavoring to sell them the ear in question, but that appellees declined to purchase same until they could find a customer therefor, since there was no general demand for such cars, and that after-wards appellant, contriving to defraud and cheat appellees, caused his brother, Roy L. Kanaman, to pretend he desired to purchase such a car, and that, relying upon such fraudulent representations solely, appellees were induced to purchase the car in expectation of reselling same the next day to Roy L. Kanaman, the pretended purchaser, and? would not have bought otherwise. We think the fact that the car was substantially of the value paid for it by appellees unimportant, since the fraud upon which appellees seek a rescission of the purchase is not based upon misrepresentation of quality or value. The complaint, in effect, is that, in order to induce appellees to purchase the car’, appellant falsely and fraudulently represented that he had a purchaser therefor. This, it occurs to us, is clearly the cause of action, and under the undisputed testimony the case stands as if appellant had himself agreed to furnish appellees a buyer at the time of the purchase. The trick by which appellees were induced to purchase the car was alone enough to avoid the contract. It has been held that representations falsely made that a third person upon whose judgment a prospective buyer relies had offered a certain price for property is sufficient to avoid the sale. Moline Plow Co. v. Carson, 72 Fed. 387, 36 U. S. App. 448, 18 C. C. A. 606. Likewise, false representations that the seller had been offered a certain price for the article sold. Strickland v. Graybill, 97 Va. 602, 34 S. E. 475. It is too well settled by our own courts to require the citation of authorities that fraudulent representations of material facts which induced the purchase of property is ground for rescission or suit for damages as the injured person may elect, and the cases cited above from other jurisdictions are more for illustration and application than otherwise. Scalf v. Tompkins, 61 Tex. 476. In the event appellees had retained the car and sued for damages, there would be some force in the claim that by keeping the car no pecuniary injury could be shown, since by the evidence the price paid therefor was no more than its market value. Here, however, it is a simple demand on the part of appellees that appellant return them the money received as a result of the deceit and misrepresentation of appellant. However, if it were necessary, in order to sustain appellees’ right to rescind, to show pecuniary injury (though the cases do not employ that precise term), the pleading and testimony are ample in that respect, since it appears that by the alleged scheme appellees invested $2,250 in an automobile for which they had no sale, and which investment they would have had to carry at their own expense and at possible ultimate loss. This, it occurs to us, meets the expression of “damages” and “injury” as used in the various adjudicated cases. From what we have said, it follows that, in our opinion, the issue of pecuniary injury has no place in this case in view of the remedy sought.

The next issue, raised in various ways, is that appellees are responsible for the damages inflicted upon the automobile by the sheriff while in his possession, and taken under the writ of attachment caused to be issued by appellees. As we have shown at another place, the car was injured while in the possession of the sheriff, or Ms bailee, without contribution thereunto by the appel-lees. Appellees, however, are sought to be held liable as matter of law on the ground that they are plaintiffs, caused the issuance of the writ, and therefore liable for the negligence and misconduct of the officer. In our opinion, the position is not tenable in the absence of a showing that the appellees participated in the negligent acts of the officer. McFaddin v. Sims, 43 Tex. Civ. App. 598, 97 S. W. 335. For wrongfully suing out attachment process plaintiff is, of course, directly liable to the defendant. McFaddin v. Sims, supra. And for such wrongful levy the sheriff may protect Mmself by demanding of the plaintiff the bond provided for by article 243, R. S. 1911, but, subject to the right of the defendant to replevy, the trial court to order it sold, and third persons to claim title thereto, the property is left to the exclusive control and safe-keeping of the officer, and if, through want of proper care or diligence, he allows it to be injured, wasted, lost, or destroyed, or diverted to some other purpose, he should be and is liable for the resulting injury. See note under Phillips v. Eggert et al., Ann. Cas. 1912A, 1114, containing many citations supporting the rule.

The issue is also made that the verdict of the jury against the sheriff for the damage to the machine while in Ms possession is under the testimony inadequate and contrary to the great weight of the testimony. And this claim seems correct. The undisputed testimony and all the testimony on the issue of the damage to the car is as follows:

Appellee Hubbard testified: “I think the market value of the car at that time was $2,-600 (meaning the time at which the same was purchased from the defendant). I was present down here in front of the courthouse the day it was sold. The car looked mighty bad at the time it was sold. The paint was practically all dead and gone; the fenders were disfigured; and X think the lights, the glass in the headlights, was broken, and the top worn out, and the upholstering was all crooked and worn out. X think the glass in the windshield was cracked; it looked like it had had very rough treatment. I looked at the speedometer, and I think it showed that it had been run 27,000 miles, or something like that. I know it was away up. I was up at Kanaman’s at the time the sheriff levied on the ear. The car was in good condition at the time sheriff took it away; it was just as good as it was at the time I bought it. I examined the car after it was sojd to see to what extent it was worn and injured. I saw the ear when it was overhauled, and it was worn very badly. They had to have new bearings for the rear axle, I think, and they had to have a new crank shaft. It was very badly worn, and showed bad treatment. They had to put a new top on it, and I think they put on some new castings. In the body there was a panel set in there where a hole had been shot through the body, and a new panel had to be put in. That was before it was sold; that was while it was in the hands of the sheriff. I would not have had the car at all when the sheriff sold it, and it is a hard proposition to state what it was worth at the time it was sold. I think it sold for something like $700 — $775, I believe — and I do not know whether it was worth any more than that or not. I would think that was a big price for it to sell for cash on the market; but I think that is all it was worth in cash.”

Appellee Martin testified: “The car was practically in just as good condition when we brought it back to Kanaman as it was when we left there; it was in good condition and classed as a new car.”

Witness Fosdick, for the appellees, testified: “I remember making Mr. Hubbard a special price of $2,160 for the car, and the sale at the regular price list would have made it $2,300, I think. This car in question was a brand new car when Mr. Hubbard got it from Mr. Kanaman. It was in good running order. When Mr. Hubbard brought it back, it was in the same condition that it was when he took it out. After the ear was taken in possession by the sheriff, I saw the car on the streets. I saw it some time during the month that the sheriff got it. Roy Pringle had it at the time I saw it. There were two people had it; I saw it once when Roy Pringle had it, and I saw it once with Mr. Chandler. I judge that Mr. Chandler had some sheriff’s connection at that time, and I judge that Mr. Pringle was running it. I was not there when the sheriff went up and levied on the car. I think I saw that ear in rent service during the Dallas Fair, and I think Mr. Pringle was running it. I saw it pretty near every day during the Fair. I saw it once up in Brooks’ garage, and the condition of it was very poor. The car had had a hole shot in it with a gun, and had been repaired. From the size of the hole it looked like it had been shot with a shotgun. I saw Mr. Chandler with the car at least three times; but I cannot say who be had with him at those different times. I saw the car in the salesroom of the automobile company that bought it from the courts. That was directly after the sale. The car had been renovated at that time, and the last time I saw the car before it was sold by the courts the upholstering was badly worn, the doors were worn, and the top was worn and torn up. The car looked as if it had been used two or three years. The ordinary travel around town would not have put the car in that condition. The last time I saw the car before the sale was in Brooks’ garage, and the market value of it would not have been less than $500, and could not have brought over $850. The reasonable cash market value would be between those prices, owing to the ability of the salesman, and who was buying it, etc.”

An examination of the testimony shows that none of the witnesses placed the value of the car at the time the sheriff levied upon and took possession of same at less than $2,-300, and at not more than $850 at the time the sheriff sold it It actually brought at sheriff’s sale the net amount of $743.70. The damages awarded by the jury were $553.68. This amount added to the amount realized from the sheriff’s sale made pending the trial of the case aggregates $1,297.38, an amount short of the proven damage, adopting as a basis for the value of the machine the lowest amount fixed by any witness, in the sum of $1,002.62.

The rule is firmly established in this state that, where there is any evidence in the record to sustain the verdict of the jury, the verdict will not be disturbed by the appellate court. It is also as firmly established that, where the verdict of the jury is manifestly against the evidence, or inadequate with or contrary thereto, it is the duty of the appellate court to set it aside. In the case at bar the evidence is so preponderatingly against the verdict returned, and the verdict so inadequate with the evidence, that it seems our clear duty to set it aside. Accordingly, the judgment of the court below as between appellant and appellees Ledbetter and his sureties is reversed, and the cause as between said parties is remanded to the court below for another trial upon the issue solely of the damages, if any, done to the automobile while in the control of the sheriff. As to appellant and appellees Hubbard and Martin, the judgment of the court below is in all things affirmed.

All other assignments of error of appellant contained in Ms brief have been carefully considered, and, because, in our opinion, they present no reversible error, same are overruled.

Affirmed in part, and reversed and remanded in part.