text:
    BROWN v. BAY CITY BANK & TRUST CO.
    (Court of Civil Appeals of Texas. Austin.
    Nov. 26, 1913.)
    1. Appeal and ERROR (§ 879) — Persons Who May Allege Error — Persons Not Appealing.
    Where a petition in intervention was dismissed, but the intervener neither appealed nor assigned errors, the effect of the decision of the appellate court on his rights cannot be considered, though he filed a brief asking that judgment for plaintiff be affirmed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3581-3583; Dee. Dig. § 879.]
    2. Bills and Notes (§ 520) — Actions—Mistake.
    In an action on vendor’s lien notes, evidence held to show that the notes by mistake recited that the conveyance was from the payee to the maker instead of reciting in accordance with the deed that the conveyance was from a ■third person to the maker.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1813, 1832,. 1836, 1837; Dec. Dig. § 520.]
    3. Vendor and Purchaser (§ 267) — Payment — What Constitutes.
    Defendant gave vendor’s lien notes in payment for land, and, upon being adjudicated a bankrupt, claimed the land as a homestead, and, to protect his possible interest, deposited with the payee the amount of the note then due under an agreement that it should be returned to him in case it was adjudged that the land was not his homestead. M'eld, that the deposit did not constitute a payment, even though the payee wrongfully retained it after an adjudication against the claim of homestead ; and hence the deposit would not prevent the transferee of the notes declaring the whole series due.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 326; Dee. Dig. § ■267.]
    4. Judgment (§ 251) — Pleadings to Support.
    In an action to foreclose vendor’s lien notes, where the plea of intervention filed by the purchaser of the maker’s interest was stricken, the court could not in its judgment determine the rights of the intervener to the surplus, if any, after foreclosure; such determination having ho support in the pleadings.
    [Ed. Note. — For other cases, see Judgment, ■Cent. Dig. § 437; Dec. Dig. § 251.]
    ■5. Constitutional Law (§ 75) — Power oe Judiciary — Delegation oe Power.
    In a suit to foreclose vendor’s lien notes •on land, where there were several who claimed the surplus, if any, after foreclosure sale, it was improper for the court to direct a sheriff to pay the surplus proceeds to such person as he might conclude was the equitable owner of the land; that question being a judicial one, and the court having no right to delegate its authority.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 138; Dec. Dig. § 75.]
    Appeal from District Court, Matagorda ■County; Samuel J. Styles, Judge.
    Action by the Bay City Bank & Trust Company against G. R. Brown, in which B. E. Norvell filed a plea of intervention. The in-tervener’s plea was stricken, and judgment was rendered for plaintiff, and defendant appeals.
    Reformed and affirmed.
    Linn, Conger ■& Austin, of Bay City, for appellant. Gaines & Corbett, of Bay City, for appellee. Rowland Rugeley, of Bay City, for intervener.

      For other oases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Kpy-No. Series & Rep’r Indexes

   KEY, C. J.

The Bay City Bank & Trust Company brought this suit against G. R. Brown, predicating its right of recovery upon four promissory notes, executed by the defendant and secured by a vendor’s lien on a certain tract of land, which lien the plaintiff sought to have foreclosed. The defendant pleaded a general denial and averred that the first note had been paid, and that the others were not due when the suit was brought.

By permission of the court one B. E. Norvell filed a plea of intervention, alleging that the defendant G. R. Brown had been adjudged a bankrupt and his interest in the land had been sold under order of the bankruptcy court and purchased by him (Norvell), subject to the lien by which the notes sued on by the plaintiff were secured, and he asked that the land be sold to pay the plaintiff’s debt, and that whatever excess might remain be paid to him. Upon motion of the defendant Brown, Norvell’s plea of intervention was stricken out. As between the plaintiff and defendant, the case then proceeded to trial before the court without a jury, and judgment was rendered for the plaintiff for the full amount of the debt sued for, with a foreclosure of the vendor’s lien upon the land, and the defendant Brown has appealed. The intervener Norvell has not appealed nor assigned error, though his counsel have filed a brief, asking that the judgment be affirmed. It may be that his failure to appeal will result in compelling him to pay off and discharge the plaintiff’s judgment and thereby prevent a sale of the land, but that is a matter that cannot be considered by this court, as he is not complaining of anything done in the court below.

The decree of foreclosure stipulates and directs that, if a suit shall be brought by any person setting up title to the land before the foreclosure sale is made, then the sheriff shall not pay the excess to any one but shall deposit the same in the registry of the court subject to the determination of the subsequent suit. But, if no such suit is brought, then the decree directs the sheriff to pay over the excess to the person who may then be the owner of the equitable title to the land and be entitled to receive such excess.

The trial judge filed findings of fact which sustain the material allegations in the plaintiff’s petition, and also the material allegations in the plea of intervention which was stricken out. Most of the assignments of error presented in appellant’s brief relate to the action of the trial court in admitting testimony; but it is further contended on behalf of appellant that error was committed in foreclosing the lien and in not awarding to appellant whatever excess might remain of the proceeds of the foreclosure sale after paying the plaintiff’s debt and costs of the litigation. And it is also contended that the proof shows that the first note sued on had been paid before it was assigned to the plaintiff, and that none of the other notes were due at the time the suit was brought. Disregarding the order in which the questions referred to have been stated, we dispose of them as follows:

1. It is alleged in the plaintiff’s petition that the notes sued on were given in part payment for 200- acres of land, part of the Amos Rawls league in Matagorda county, Tex., and described in the petition by metes and bounds; that on the 16th day of March, 1905, J. W. Brown conveyed to the defendant G. R. Brown the tract of land referred to, and as part of the consideration defendant executed the four notes sued on and made them payable to Eliza Kempner, who subsequently transferred them to the plaintiff bank. It was also alleged in the petition that the notes recite that they were given in part payment' of the purchase money for a tract of land conveyed to G. R. Brown by Eliza Kempner, which recital it is alleged was an inadvertence and mutual mistake, and that the conveyance was in fact made by J. W. Brown to ,G. R. Brown, while the purchase-money notes were made payable to Mrs. Kempner, as appears from the deed made by J. W. Brown to G. R. Brown. The deed referred to was introduced in evidence and showed upon'its face that it was executed in consideration of ten promissory notes, executed on that day by G. R. Brown, and made payable to the order of Mrs. Kempner,' the last four being described in the deed in all respects as they are described in the plaintiff’s petition and in the notes put in evidence, except those mentioned in the deed do not contain the recital that the land was conveyed to G. -R. Brown by Mrs. Kempner, and the deed showed on its face that it was made by J. W. Brown to G. R. Brown, and that it conveys the land described in the plaintiff’s petition' and in express terms retains a vendor’s lien to secure the payment of the notes.

Considering the notes and deed together, we think it clearly appears that the recital in the notes that the land was conveyed by Mrs. Kempner to G. R. Brown was a mutual mistake, and that the trial court committed no error in holding that the notes sued on were secured by a lien upon the land described in the petition. It was not shown that Mrs. Kempner had ever executed a deed to G. R. Brown conveying any land; and it is altogether improbable that, on the very day that J. W. Brown conveyed to G. R. Brown the 200 acres of land here involved, Mrs. Kempner also conveyed to G. R. Brown another 200 acres of the Amos Rawls league and received from him four notes, exactly similar as to amount, date of maturity, rate of interest, etc., to the notes described in the deed from J. W. Brown.

2. The notes sued on are numbered 7, 8, 9, and 10; and, according to its face, No. 7 was past due before the suit was brought, and, as that note contained a stipulation providing that the failure to pay it when due would authorize the holder to declare all the notes due, the plaintiff bank exercised its option in that regard and sued on all the notes. The defendant Brown undertook to plead and prove that the first note had been paid before the plaintiff elected to declare all the notes due, and therefore the plaintiff was not only not entitled to recover on that note but that the suit was prematurely brought on the others. The plea of appellant alleged the following facts as constituting such payment: “Defendant would further show: That on January 11, 1912, this defendant sent to H. Kempner, who is a firm composed of Eliza Kempner, the original payee of the said notes, the sum of $410.30 in Galveston exchange at Galveston, Tex., the said sum being the principal of note No. 7, $320, and interest due on note No. 7, and also the interest accrued to-December 31, 1911, upon notes Nos. 8, 9, and. 10; said notes Nos. 8 and 9 each being for the sum of $320, and note No. 10 being' for $330, and each of said notes bearing interest at the rate of 7 per cent, per annum from date until paid. That said money was deposited to protect the payment of said note No. 7, together with interest on notes Nos. 8,9, and 10-, and that the said money was deposited, however, under an agreement and understanding that, if G. R. Brown lost his homestead claim to said land in a controversy then pending in the Bankrupt Court of the United States, he would have the right to withdraw the money, but it was understood between the defendant and Kempner that the said deposit would protect the said note in so far as this defendant was concerned from maturing, and therefore the protection against its payment until said question as to the homestead in the Bankrupt Court should be decided, and that, if the said defendant should lose his claim to the said homestead, then he should have the right to withdraw said sum of $410.30. That the said defendant did lose his homestead claim to the said land in the Bankrupt Court, and the decision was there rendered that the said lands herein was not .the homestead of the bankrupt G. R. Brown, the defendant in this case, and that thereafter, on the 1st day of October, A. D. 1912, and prior to the purchase by the plaintiffs in this case of the said notes, this defendant drew upon H. Kempner for the $410.30 so deposited with said H. Kempner to protect the said note No. 7 and the accrued interest on the said notes Nos. 8, 9, and 10, the payment of which said draft was by the said H. Kempner, a firm composed of Eliza Kempner, refused, and that the said Kempner now retains in his possession the said sum of $410.30, which was placed with him for the protection of said note No. 7 and the interest on said notes Nos. 8, 9, and 10, which matured December 31, 1911.”

We agree with counsel for appellee that the facts stated in the plea do not constitute what is termed in law a payment, and appellant did not allege and prove that Mrs. Kempner was insolvent, and therefore in equity he was entitled to have the special deposit referred to in the plea treated as a payment upon the notes. In fact, the record indicates that it will be to appellant’s benefit for the judgment in this case to be affirmed and be paid through the foreclosure sale of the land, appellant’s interest in which, it seems, has been sold in the bankruptcy proceeding and purchased by B. E. Norvell, who sought to intervene. Now, if this course is pursued, then Mrs. Kempner will be owing appellant $410.30, the amount of his special deposit, and there is nothing in the record to indicate that he cannot compel payment of the same. And it is undoubtedly true that, if he collects that money from Mrs. Kempner, the affirmance of this judgment will result in no loss to him, if the judgment is satisfied with property in which he now has no interest; but, on the contrary, it would seem quite to his advantage. If he has been divested of all of his interest in the land involved, we can readily see why the purchaser of his interest would be interested in having the special deposit referred to treated as a payment upon the plaintiff’s debt, because such payment would inure to his benefit, whereas, if the deposit is not so treated, then it belongs to appellant, and he is that much better off than he would be if it was credited on his indebtedness to the plaintiff.

3. Conceding that counsel for appellant are correct in the contention that the trial court committed error when it admitted in evidence proof of the bankruptcy proceedings against G. R. Brown, including the sale of his interest in the land here involved, the only harm that resulted therefrom to appellant is the failure of the decree to award to him the remainder of the proceeds of the foreclosure sale after paying the judgment and costs, and that error will be corrected in this court. For some reason, not apparent to this court, the trial court struck out Norvell’s plea of intervention; and, after doing so, there was no pleading before the court that authorized proof of what had been done in the bankruptcy court. After that plea was stricken out, the litigation was between the plaintiff bank and the defendant G. R. Brown, and the rights of no one else should have been considered. But, even if it had been proper to consider such rights, it was wholly improper for the trial court to incorporate in its decree a provision directing the sheriff, upon any contingency, to pay the surplus proceeds from the sale of the land to such person as the sheriff might conclude was the equitable owner of the land and entitled to such excess. Who was entitled to such excess was a. question of law which should have been determined and decreed by the trial court; and, being a judicial question, that court committed fundamental error when it undertook to delegate to the sheriff the decision of that question. Such decision involves the exercise of a judicial function, which the court could not delegate to the sheriff.

Therefore that portion of the judgment of the trial court relating to the disposition of whatever surplus may remain after paying the judgment, interest, and costs will be set aside, and the judgment so reformed as to require th’e sheriff to pay such surplus to appellant; and, as thus reformed, the judgment will be affirmed.

Reformed and affirmed.


source: Caselaw Access Project

author: HODGES, J.

license: Public Domain

text:
    BURTON & BEARD v. NACOGDOCHES CRATE & LUMBER CO.
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 20, 1913.)
    1. Sales (§ 161) —- Contracts — CONSTRUCTION.
    Where defendants ordered a car of crates to be shipped to third persons, the sellers, by delivering the shipment to the carrier in the time stipulated, comply with the contract and are entitled to recover the purchase price, even though the shipment is so delayed that the consignees refuse to receive it.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 377-380; Dec. Dig. § 161.]
    2. Sales (§ 82) — Contracts—Construction.
    Where goods are ordered to be delivered to a third person and charged to defendant, the purchase price cannot be collected until delivery.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §■§ 229-233; Dec. Dig. § 82.]
    3. Sales (§ 791 — Contracts—“F. O. B.”
    Where a defendant ordered one car of crates complete 6% f. o. b. Magnolia, the expression merely indicated that the price was to be 6% cents, including freight to Magnolia, and not that the goods were to be delivered at that place.
    [Ed. Note. — For other cases, see Sales, Cent; Dig. §§ 214-216; Dec. Dig. § 79.

    For other definitions, see Words and Phrases, vol. 3, p. 2636; vol. 8, p. 7659.]
    Appeal from Nacogdoches County Court; June C. Harris, Special Judge.
    Action by the Nacogdoches Crate & Lumber Company against Burton & Beard. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    King & King, of Nacogdoches, for appellant. Y. E. Middlebrook and Ingraham & Hodges, all of Nacogdoches, for appellee.

      J?or other cases see samé topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HODGES, J.

In 1905 the appellee was engaged in the business of manufacturing and selling crates and fruit baskets at 'Nac-ogdoches, Tex. In July of that year it received the following order from the appellants, Burton & Beard:

“Mt. Selman, Texas, July 6, 1905. Nacog-doches Orate & Lumber Company, Nacog-doches, Texas — Gentlemen: Inasmuch as the phone service was so poor this afternoon when we were trying to talk to you, we thought we had better write you also. The order was as follows: Ship to Gibson & Williams at Magnolia, Arkansas, one car 8,000 pine head crates complete at 6%<¡: f. o. b. Magnolia. Ship at once and follow with tracer. Send us B/L here, also invoice. • We will want about forty days on this car in order to allow parties time to sell their fruit. Tour prompt attention will oblige Burton & Beard.
“P. S. If you can allow us a brokerage on this car same will be appreciated.”

As indicated in the above letter, there had been some previous negotiations between the parties over a long distance telephone, but it is not contended that the letter quoted above does not contain substantially all the terms and conditions of the contract between the parties. The evidence shows that the goods were delivered by the appellee to the carrier at the point of shipment within the time contemplated by the parties, consigned to Gibson & Williams as directed. The following is introduced in evidence as the substance of the way bill:

“Houston East & West Texas Railway Company. Date: 7/11/1905. Series: S. W. No. 6. 1st via Shreveport, via Texas, via Arkansas, Cotton Belt. Weight at Nacog-doches: 61,800. Tare: 37,000. Net: 24,800. Car initials: S. W. No. 5132. Shipper: N. C. & L. Co. Consignee and destination: Gibson & Williams, Magnolia, Ark. Car crate weight: 30,000. Date and authority: 22. Freight charges: $66.00.”

For some reason, due probably to the fault of the railway company, the goods did not reach their destination as soon as Gibson & Williams thought they should, and upon their arrival the consignees declined to receive them. Payment being demanded and refused, the appellees brought this suit in the county court against the appellants, Burton & Beard, and the Houston East & West Texas Railway Company for the purchase price of the goods. A trial before the county judge without a jury resulted in a judgment for the appellees against the appellants, Burton & Beard, for the amount sued for. It appears that, upon exceptions interposed by the railway company in the trial court, it was dismissed from the suit.

There are several assignments of error, but all of them in substance complain of the action of the court in rendering a judgment against the appellants in view of the evidence presented. It is contended that under the undisputed facts the contract between the parties was one by which the seller bound itself to deliver the goods to Gibson & Williams at Magnolia, Ark., and-that, this contract not having been complied with, the appellants incurred no liability; that the proper remedy of the appellee was against the railway company for damages for conversion. The trial court did not put that construction on the contract but held that the appellee had complied with its agreement when it delivered the goods-to the carrier within the time stipulated by the parties. In this we think the court was correct. Grief & Bro. v. Seligman, 82 S. W. 533; Orthwein’s Sons v. Wichita Mill & Elevator Co., 32 Tex. Civ. App. 606, 75 S. W. 364. It is true, as contended by counsel for the appellants, that, when the parties to a contract of this kind stipulate that the seller shall deliver the goods to the consignee at some particular destination, the purchase price cannot be collected till the goods are delivered in accordance with the contract. According to the terms of the letter relied on as showing the contract between these parties, the goods were to be consigned to Gibson & Williams at Magnolia, Ark., and time was given to the appellants for the payment of the purchase price.

The expression “at f. o. b. Magnolia” does not necessarily imply that the goods were to be delivered f. o. b. at Magnolia. It merely indicated that the price was to be 6% cents with the freight allowed.

The judgment of the county court is affirmed.


author: PLEASANTS, C. J.

text:
    WILLETT v. HERRIN et al.
    (Court of Civil Appeals of Texas. Galveston.
    Oct. 17, 1913.)
    1. Justices op the Peace. (§ 141) — Appeal— Jurisdiction.
    The county court acquires no jurisdiction upon appeal in an action originating in the justice court but over which that tribunal was without jurisdiction.
    [Ed. Note. — For other cases, see Justices of the Peace', Cent. Dig. §§ 467-476; Dec. Dig. § 141.]
    2. Justices op the Peace (§ 44) — Actions— Pleading.
    In an action in justice court, the jurisdictional amount is determined by the amount shown in the statement of the cause of action; hence, where the petition stated a cause of action for the recovery of $200 delivered to defendant under an agreement that he should repay on demand, the jurisdiction of the justice court is not ousted by the general averment of $500 damages for the defendant’s refusal to pay.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 157-172; Dec. Dig. § 44.]
    3. Justices op the Peace (§ 91) — Actions— Jurisdiction — Petition.
    A petition in an action in justice court, alleging that plaintiff delivered $200 to defendant, receiving his obligation in writing to repay the money on demand, with interest, but that defendant failed to repay the same, states a cause of action upon contract, and the claim of interest, being for interest eo nomine and not as damages, does not oust the justice of jurisdiction.
    [Ed. Note. — Eor other cases, see Justices of the Peace, Cent. Dig. §§ 307-323; Dec. Dig. § 91.]
    4. Justices of the Peace (§ 159) — Appeal— Defective Bond — EffeoN-Review—HARMLESS ERROR.
    Where plaintiffs’ cause of action was dismissed by the justice and the only judgment against them was for costs, no bond is required to perfect an appeal to the county court; and hence the defendant cannot move to dismiss the appeal because the bond given was defective.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 544, 550-578; Dec. Dig. § 159.]
    5. Justices of the Peace (§ 45) — Actions— Jurisdiction — Pleading.
    In an action in justice court, where defendant set up a counterclaim alleging several amounts, the total of which exceeded $200, the ■counterclaim was beyond the jurisdiction of the justice, even though defendant prayed for a recovery of only $200.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 173-175; Dec. Dig. § 45.]
    6.Justices of the Peace (§ 174) — Review-Harmless Error.
    Where defendant’s counterclaim was beyond the jurisdiction of the justice court, defendant cannot complain that on appeal to the county court that tribunal improperly allowed , plaintiff to interpose a defense not pleaded in ' .the justice court.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 665-693; Dec. Dig. § 174.]
    7. Appeal and Error (§ 742) — Review—Assignments.
    Assignments of error complaining of the ■charge, when not followed by propositions subjoined to a sufficient statement to explain the propositions, as required by rule 31 (142 S. W. xiii), will not be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    & Interest (§ 31) — Recovery—Amount.
    Where an obligation providing for the return of money did not stipulate any rate of interest, the obligee can recover only the legal rate of 6 per cent.
    ,[Ed. Note. — For other cases, see Interest, Cent. Dig. §§ 64-67; Dee. Dig. § 31.]
    9. Appeal and Error (§ 1068) — Review — Harmless Error.
    In an action on an obligation providing for the payment of $200, without mention of interest, the error of the court in charging that the jury might find for plaintiffs, with 10 per cent, interest, is harmless, where the record does not show that they' did so find and the judgment for plaintiff only carries 6 per cent.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.]
    Appeal from Newton County Court; W. E. Gray, Judge.
    Action by Mrs. S. P. Herrin and others against H. L. Willett, begun in justice court, where the cause was dismissed. From a judgment for plaintiff on appeal to the county court, defendant appeals.
    Affirmed.
    Forse & Wigley, of Newton, for appellant. Wightman & Hancock, of Newton, for ap-pellees.

      For other eases see same topic and section NUMBER in Dec. 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

   PLEASANTS, C. J.

This suit was brought by appellees against the appellant in a justice court of Newton county. Plaintiffs’ original petition filed in the justice court on August 29, 1911, contains the following allegations and prayer: “That heretofore, to wit, on the 30th day of August, 1907, defendant executed and delivered to plaintiff his obligation in writing to pay to plaintiff in the sum of $200, which obligation was given for $200 in cash, which plaintiff delivered to defendant to be kepi for plaintiff by defendant subject to her order; fhat at the time of receiving said $200 defendant agreed to pay plaintiff 10 per cent, interest on said $200 for such time as he should keep said money; that said obligation in writing is hereto attached and made a part hereof; that said sum of $200 and interest thereon at 10 per cent, is now due and unpaid; and that defendant, though often requested, has hitherto failed and refused and still refuses to pay the same or any part thereof, to plaintiff’s damage in the sum of $500. Wherefore plaintiff prays the court that defendant be cited to appear and answer this petition and that she have judgment for her debt in the sum of $200 and interest and cost of suit, and for such other and further relief, special and general, in law and in equity, and that she may be entitled to and in duty bound will ever pray,” etc.

The defendant on the day the cause was called for trial in the justice court filed a motion to dismiss the suit on the ground that the amount in controversy was beyond the jurisdiction of the court He also filed an answer containing a general demurrer and a special exception challenging the petition on the ground that it showed on its face that plaintiffs’ cause of action accrued more than four years before the suit was filed, a general denial, and the following plea of offset or counterclaim: “Now comes the defendant in the above cause, by his attorney, and says that the said plaintiff before and at the time of the commencement of this suit, to wit, on the 29th day of August; 1911, was and still is indebted to this defendant in the sum of $200 for a doctor bill for 39 trips made by the defendant to visit the plaintiffs’ child while sick, which is reasonably worth $5 per trip, which makes the sum of $195, by cash paid by defendant to plaintiff, $10, for medicine sold and delivered to the plaintiff by defendant, $3.90. That said visits were made to see the plaintiffs’ child, while sick, at the special instance and request of plaintiff, and that said medicine was sold and delivered to the plaintiff by the defendant at the special instance and request of the plaintiff, and that said $10 in cash was paid to the plaintiff by this defendant at the special instance and request of the plaintiff; in consideration whereof the ’ said plaintiff promised and became liable and bound to pay this defendant the sum of $200 for prices charged therefor, which said sum of money is so due and unpaid, and it is yet due this defendant by the plaintiff, as above set forth, which exceeds the damages sustained by the plaintiff by reason of the matters alleged in their petition, and out of which said sums this defendant is ready and willing, and hereby offers, to offset and allow to the said plaintiffs the full amount of their said damages, and of this he is ready to verify. Wherefore the defendant prays judgment of the court, that the plaintiffs take nothing by their suit, and that this defendant do have and recover from them judgment for all costs in this behalf expended.”

The justice court sustained the motion to dismiss for want of jurisdiction and entered the following judgment: “On this the 4th day of November, A. D. 1911, came on to be heard the above-entitled and numbered cause. The plaintiff appeared by attorney and announced ready .for trial, whereupon came the defendant by attorney and pleaded to the jurisdiction of this court. After hearing said plea and argument of counsel, the court was of the opinion that the law is with the defendant, and that said plea in all things be sustained, and that said cause be dismissed for want of jurisdiction, and that the defendant recover of and from the plaintiff all costs in this behalf expended, for which let execution issue.” Plaintiffs excepted to the judgment and gave notice of appeal to the county court of Newton county. Thereafter plaintiffs executed an appeal bond, and the. transcript from the justice court was duly filed in the county court.

Defendant moved in the county court to dismiss the suit on the ground that the amount in controversy was beyond the jurisdiction of the justice court, and therefore the county court acquired no jurisdiction by the appeal, and also on the ground that the appeal bond was fatally defective because it misdescribed the judgment appealed from.

Plaintiffs filed an exception to defendant’s counterclaim or plea of offset on the ground that the amount claimed in said plea was beyond the jurisdiction of the justice court, and also excepted to said plea on the ground that the cause of action therein set up by defendant was barred by the statute of limitation of two years. They also pleaded a general denial and limitation of two years. The defendant excepted to the plea of limitation on the ground that it was not pleaded in the justice court.

The motion to dismiss and all of the exceptions presented by each of the parties were overruled by the 'court. The cause was tried with a jury and resulted in a verdict in favor of the plaintiffs for the sum of $129.20. Upon this verdict judgment was rendered in favor of plaintiffs for said amount, with interest from date of the judgment at the rate of 6 per cent, per annum.

We shall not discuss the various assignments of error in detail but will content ourselves with a decision of the material questions presented by appellant’s brief. It is first contended that the trial court erred in not sustaining appellant’s motion to dismiss for want of jurisdiction because: First, the petition shows that the amount in controversy was $500, which amount is above the jurisdiction of the justice court; and, second, that the interest claimed in the petition was claimed as damages and not as interest eo nomine, and that such damages, added to the $200 claimed, produced a sum beyond the jurisdiction of the justice court.

It is unnecessary to cite authority to sustain the proposition that if the justice court, in which the suit originated, was without jurisdiction, the county court acquired no jurisdiction by the appeal, and the only question for us to determine is whether upon the face of the petition the amount in controversy was beyond the jurisdiction of the justice court.

The only question upon this issue which presents any difficulty is whether the general allegation in the petition that by the failure and refusal of the defendant to pay the $200 and interest, in accordance with his contract, the plaintiffs were damaged in the sum of $500, coupled with the prayer of the petition for general and special relief, shows that the amount in controversy was the sum of $500. It has been generally held that the amount shown in the statement of the cause of action, and not the amount for which recovery is sought in the prayer of the petition, must be looked to in determining the amount in controversy in a suit, and that the sum of the items shown in the statement of the cause of action, and not the general statement of the amount claimed to be due, will determine the question of what is the amount in controversy. Railway Co. v. Coal Co., 102 Tex. 478, 119 S. W. 294; Railway Co. v. Hood, 125 S. W. 983; Times Pub. Co. v. Hill, 36 Tex. Civ. App. 389, 81 S. W. 806; Oppenheimer & Co. v. Fritter, 3 Willson, Civ. Cas. Ct. App. § 263. In all of these eases, except the one last cited, the question was whether, when the sum shown to be due in the statement of the cause of action was above the jurisdiction of the court, the plaintiff could confer jurisdiction upon the court by praying for a sum within the jurisdiction. Whatever conflict on this question there may have formerly been in the authorities, it is now well settled that the prayer of the petition will not control, and that the amount in controversy is the sum of the indebtedness shown in the statement of the cause of action. In the case last cited this rule was applied where the petition, as in the instant case, contained in addition to a specific statement of the indebtedness due by the defendant, which was an amount within the jurisdiction of the court, a general allegation that, by the failure of the defendant to pay the indebtedness so due, the plaintiff was damaged in a named sum which was above the jurisdiction of the court. The court in that case said: “This suit being upon a promissory note, it is manifest that plaintiff could recover no more than legal interest as damages, and in fact his suit is brought to recover no more than the principal and interest of the debt. The ad damnum allegation in the petition claiming $1,000 damages is surplusage and should have been so treated. The real amount in controversy was the debt and interest thereon, and of this amount the court had jurisdiction.” This decision was approved and followed by the Court of Appeals for the Fifth District in the case of Ellis v. Bank, 38 Tex. Civ. App. 619, 86 S. W. 776, in which case a writ of error was refused by our Supreme Court.

The general rule seems to be that when the demand is on a note or contract that the principal and interest due upon the instrument declared upon will control the amount •of the judgment that should be rendered in the case, regardless of the amount claimed in the general ad damnum allegation, and if the sum laid as damages in the ad damnum allegation does not correspond with the amount of the principal and interest due on the note or contract, it will be regarded as a clerical misprision. Kennedy v. Young, 25 Ala. 563; Johnson v. Rider, 84 Iowa, 50, 50 N. W. 36.

We think the decisions above cited sustain the trial judge in his holding that the amount in controversy in this cause was the $200, with interest, and not the sum of $500 alleged to be the damages sustained by the plaintiffs because of the failure of defendant to pay the amount due upon his contract.

The second ground upon which the jurisdiction of the justice court is attacked is wholly untenable. There is no element of tort in the cause .of action alleged by plaintiffs, and the interest claimed is not claimed as damages. The demand is upon a contract for the payment of money, and the statute allows interest upon such demand from the time the payment was due, which in this case was upon the request or demand of the plaintiffs. Clearly in such case the interest claimed is claimed as interest eo nomine and not as damages. Schulz v. Tessman, 92 Tex. 489, 49 S. W. 1031. This disposes of appellant’s motion to dismiss the appeal because the justice court was without jurisdiction.

The next contention is that the trial court erred in refusing to dismiss the appeal on the ground that the appeal bond filed in the justice court was fatally defective in that it misdescribed the judgment appealed from. This objection to the bond is sustained by the record, but the trial court did not err in refusing to dismiss the appeal on this ground. The judgment in the justice court being against plaintiffs for cost only, they were not required to execute an appeal bond in order to perfect their appeal to the county court. Railway Co. v. Stock Farm, 91 Tex. 628, 45 S. W. 375. No appeal bond having been required, it necessarily follows that the trial court properly refused to dismiss the appeal on the ground that the bond filed by plaintiffs was insufficient.

Defendant’s exception to plaintiffs’ plea of limitation against defendant’s counterclaim on the ground that said plea was not filed in the justice court was valid, but the refusal of the court to sustain the exception was not prejudicial to appellant because the counterclaim was for an amount beyond the jurisdiction of the justice court, and plaintiffs’ plea to the jurisdiction of the court to hear and determine such counterclaim should have been sustained. The sum of the amounts alleged to be due by said counterclaim, -before set out, exceeded the amount of which the justice court had jurisdiction, and under the authorities before set out; that sum was the amount in controversy, notwithstanding the defendant only asked to recover the sum of $200. It goes without saying that the appellant cannot complain of the refusal of the trial court to sustain exceptions to a plea of limitation against a claim which could not have been adjudicated in the suit.

The several assignments of error complaining of the charge of the court are not entitled to consideration because none of them is followed by a sufficient statement from the record as required by rule 31 (142 S. W. xiii). If this objection to the assignments should be waived and all of them be considered, the only one which presents any error is that complaining of the paragraph of the charge which permits th'e jury to find in favor of plaintiffs for 10 per cent, interest on the amount due upon the instrument on which the suit is based. This instrument is as follows: “Aug. 30th, 1901. Received of Mrs. S. P. Terry the sum of $200.00 two hundred dollars the same to be taken care of and returned at her request at any time. [Signed] H. L. Willett, M. D.” No interest being stipulated in the written instrument, in the absence of allegations and proof of fraud or mistake, plaintiffs could not show by parol that the agreement between the parties was that defendant should pay interest on the $200 at 10 per cent, and only the legal rate of 6 per cent, could be recovered. But the error of the court in submitting to the ’jury the question of whether the parties agreed that the $200 should bear interest at the rate of 10 per cent, was harmless because the record fails to show that the jury found in favor of plaintiffs on this issue, and the judgment rendered by the court only bears 6 per cent, interest.

The appellees would be entitled to a reversal of the judgment on their cross-assignment complaining of the refusal of the trial court to sustain their exception to appellant’s counterclaim on the ground that the amount claimed thereon was beyond the jurisdiction of the Justice court, but they ask that the judgment be affirmed.

There being no error in the record of which the appellant can complain, the appel-lees being satisfied with the judgment, notwithstanding the error against them in submitting appellant’s counterclaim to the jury, it follows that the judgment should be affirmed, and it is so ordered.

Affirmed.


author: McMEANS, J.

text:
    RATCLIFF v. RATCLIFF et al.
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 11, 1913.
    Rehearing Denied Dec. 4, 1913.)
    1. Appeal and Ekbob (§ 877) — Persons Entitled to Allege Error.
    In trespass to try title, where plaintiff counted on adverse possession, and defendant set up that the property was deeded to her as trustee, and that' she held for the beneficiary, plaintiff cannot complain that the court allowed the beneficiary to file a plea of intervention setting up the same facts as those alleged by defendant; the rights of the beneficiary under the trust not affecting his claim.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3560-3572; Dee. Dig. § 877. i
    2. Trusts (§ 31) — Establishment.
    A showing of accident, fraud, or mistake is not necessary to ingraft a trust upon a deed conveying the legal title on its face.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. § 42; Dec. Dig. § 31.]
    3. Appeal and Error (§ 194) — Exceptions— Waiver.
    Exceptions to the answer of an intervener, where not called to the attention of the trial court, must be regarded as waived.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1241-1246; Dec. Dig. § 194.]
    4. Evidence (§ 598) — Weight and Sueei-CIENC5T.
    A finding of fact in a cause tried to the court without a jury may be based upon the positive testimony of one witness, though it was contradicted by that of another.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2450-2452; Dec. Dig. § 598.]
    5. Adverse Possession (§ 85) — Actions— Evidence — Sueeicienct.
    In trespass to try title, where plaintiff claimed only by adverse possession, evidence held sufficient to sustain a finding that the holding was not adverse for the whole period of limitation.
    [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 (§ 43) — Possession oe Trustee.
    Where a party who held land in trust for another, although his conveyance was absolute on its face, possessed the property adversely to other claimants, the trustee’s adverse holding inured to the benefit of the cestui que trust.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 213-224; Dec. Dig. § 43.]
    7. Trial (§ 397) — Findings — Support in Pleadings.
    In trespass to try title plaintiff counted on adverse possession, and defendant, who was his former wife, alleged that the property was conveyed to her by an absolute deed to hold in trust for her stepfather, that her possession and that of plaintiff was with his consent, and that the beneficial interest in the property belonged to the stepfather’s heirs. It appeared that after the stepfather had purchased the land suit was brought against him, in which the plaintiff recovered, but that the property was-quitclaimed to the stepfather and defendant. Held that, as defendant traced no title through the quitclaim deed, and as plaintiff made no-claim thereunder, he could not insist that the court should have found that such deed gave defendant an interest in the property, part of which would pass to him as community estate; there being no foundation for those claims in the pleadings or issues.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 940-945; Dec. Dig. § 397.]
    Appeal from District Court, Jefferson County; J. M. Conley, Judge.
    Action by Eli Ratcliff against Sarah Rat-cliff, in which Lou Turner intervened. From a judgment for defendant and intervener, plaintiff appeals.
    Affirmed.
    V. A. Collins, of Beaumont, for appellant. W. W. Cruse, of Beaumont, for appellees.

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

   McMEANS, J.

Action of trespass to try title brought by Eli Ratcliff against Sarah Ratcliff to recover one-half of a certain tract of land in Jefferson county. In addition to the ordinary allegations in suits of trespass to try title, the plaintiff pleaded the statute of limitations of ten years. Defendant answered by general denial and a plea of not guilty and further pleaded that in 1893 the land in controversy was deeded to her by one George Turner, the deed reciting a consideration of $1 paid and love and affection, but that said deed was in fact a deed in trust, and that no title passed or was intended to be passed thereby, and that there was no real consideration for its execution, but that said deed was made by said George Turner to her in order that she and the plaintiff, Eli Ratcliff, who was then her husband, might get a house built on the land, and with the understanding and agreement that the land would be reconveyed by plaintiff and defendant to said George Turner at some future date. Lou Turner, alleging that she was the widow of George Turner, deceased, and that he left no children, that the land -in question was community property and that she was his sole heir, that there had been no administration of the estate of said George Turner, deceased, and no necessity for any, intervened in the suit, alleging in substance the same facts alleged by Sarah Ratcliff, and further pleading the statutes of limitation of five and ten years. The case was tried before the court without a jury and resulted in a judgment for the intervener, Lou Turner, and from this judgment the plaintiff has appealed.

The court upon proper request of appellant filed findings of fact and conclusions of law. The evidence in the record justifies the following fact findings, which in substance accord with the court’s findings of fact: The land in controversy was deeded to George Turner, the husband of intervener, Lou Turner, by Long & Co. on March 16, 1882. On October 5, 1893, George Turner conveyed to defendant Sarah Ratcliff, his stepdaughter, the land in controversy; the deed reciting as a consideration the payment of $1 and love and affection, and was so conveyed for the purpose of enabling said Sarah Ratcliff and her husband, the plaintiff, Eli Ratcliff, to mortgage the land, in order to secure lumber to build a house thereon for a home. It was understood and agreed between George Turner and Sarah and Eli Ratcliff at the time of the execution and delivery of this deed that Eli should build the house and pay for it, and that he and his wife, Sarah, should use and occupy the same as their home. It was also understood and agreed at the time said deed was made that, after the purposes above stated had been accomplished, the land should be reconveyed to George Turner by Sarah and Eli, but said conveyance was never made. The house was built in the spring of 1895 by George Turner and Eli Ratcliff. Turner paid part of the purchase money for the lumber that went into the house, and Eli paid the balance. Eli and Sarah moved into the house July 4, 1895, and occupied it continuously Until the spring of 1901, at which time they moved to the city of Beaumont and occupied a house belonging to George Turner, where they resided for three years without paying any rent therefor, and during said time George Turner had the actual possession of the land in controversy occupying and using it, keeping up the fences, raising crops on it, and rented the house to tenants, and collecting and keeping the rents. In April, 1903, Eli and Sarah moved back on the land and lived there until September 28, 1911, when Eli abandoned Sarah and moved into the city of Beaumont, but Sarah retained possession of the land through a tenant. Thereafter Sarah sued Eli for and obtained a divorce, and it was after this that Eli brought this suit for a half interest in the land. The court found as a fact, and the evidence-in the record justified the finding, that George Turner was in possession of and exercised ownership over said land, except that actually used by Eli and Sarah during their periodical occupancy, continuously from 1893 to the time of his death in 1912; that he paid all taxes on the land from 1883 to 1911, inclusive; from 1893 to the time of his death he cultivated a portion of the land each year and kept up the fences and at various times sold off portions of the land to various persons. He died in February, 1912, and there is no administration upon his estate and none necessary. Lou Turner, the intervener, is his surviving wife and his sole heir. After George Turner purchased the land in 1882 from Long & Go., suit was brought against him in the district court of Jefferson county therefor, and the land was recovered by the plaintiff, and thereafter the successful party to that suit, Y. A. Collins, conveyed the land by quitclaim deed to Sarah Ratcliff, George Turner, and J. Y. Flemming.

On the trial in the court below Eli Rat-cliff did not claim the land in controversy under the deed from George Turner to Sarah Ratcliff but asserted title only under the ten years’ statute of limitation, and Sarah Ratcliff asserted that she was holding the legal title thereto in trust for George Turner.

Under substantially the foregoing facts the court concluded as a matter of law, and we think correctly so, that the proof failed to show title in Eli Ratcliff under the ten years’ statute of limitation, and that plaintiff therefore having no title to the land, and defendant Sarah Ratcliff asserting that her possession was for George Turner, Lou Turner, his sole heir, was entitled to recover, and rendered judgment accordingly.

Appellant by his first and second assignments of error complains of the refusal of the court to sustain his general demurrer to the intervener’s petition; his contention being: First, that there was no allegation therein of fraud or mistake in the execution of the deed by George Turner to Sarah Rat-cliff ; and, second, that the facts stated therein were not sufficient for setting the deed aside.

As stated in our fact findings, appellant did not claim under the deed in question but only under his claim of adverse occupancy for a period of time sufficient to perfect the-title in himself by limitation, and therefore the question of whether Sarah Ratcliff held the absolute title to the land under the deed to herself from George Turner, or whether she held the legal title in trust for him, were matters of no concern to appellant. We think the averments of the pleading assailed, when tested by general demurrer, were sufficient. It is not true that in cases such as this a trust cannot be ingrafted upon a deed which upon its face shows the legal title in the grantee, except where there, are other allegations to show that the failure to express the trust in the deed itself was the result of accident, fraud, or mistake. Du Perier v. Du Perier, 126 S. W. 10.

Appellant’s third, fourth, fifth, seventh, and eighth assignments of error are predicated upon the alleged refusal of the court to sustain his several special exceptions to the answer of the intervener. The record does not disclose that these exceptions were called to the attention of the trial court or that they were ruled upon; therefore they must be regarded as waived. Miller v. Barler, 26 S. W. 1105; Pullman v. Vanderhoeven, 48 Tex. civ. App. 414, 107 S. W. 147; Sterling v. Railway co., 38 Tex. civ. App. 451, 86 S. W. 659.

The ninth assignment attacks that part of the court’s findings of fact wherein it was found that, during the three years that Eli and Sarah Ratcliff did not live on the land, George Turner collected the rents.

The eleventh assignment assails the finding of the court to the effect that the deed from George Turner to Sarah Ratcliff was executed for the purpose of enabling the latter to mortgage the land to secure lumber to build a house upon it, and in further finding that there was an understanding between George Turner and Eli Ratcliff to that effect, and in further finding to the effect that it was the understanding between George Turner and Eli Ratcliff that the land should belong to the former but should be occupied by the latter and his wife for the use and benefit of George Turner. These facts were testified to by Sarah Ratcliff, and, although her testimony on this point was contradicted by Eli, it nevertheless warranted the findings complained of.

The thirteenth assignment complains that the court found as a fact that the conveyance from Y. A. Collins to George Turner passed the title to the land in the latter. We do not find that the court so found; the only finding in that regard being that V. A. Collins “made a quitclaim deed to George Turner and Sarah Ratcliff for the land in controversy.”

By his fourteenth assignment appellant bomplains that the court erred in holding that the evidence failed to show that plaintiff had title under the ten years’ statute of limitations, and in' further holding that the burden was upon plaintiff to make out' his title as against the claim of intervener, who was claiming the title against both plaintiff and defendant. He contends in his first proposition under this assignment that where the undisputed proof shows that plaintiff in person or by tenant has held peaceable and adverse possession of a tract of land of 160 acres or less, cultivating, using, and enjoying the same from July 4, 1895, to November 1, 1912, it is error for the court to hold that his title is not perfect under the statute of ten years’ limitation. The proposition is sound but assumes the very question in issue. Were we left with the appellant’s testimony alone, we would probably conclude that the judgment against him was radically wrong. The record does not bear out the contention that the undisputed evidence shows that Eli had and held such possession and for such length of time as to perfect his title by limitation, for there is abundant evidence in the record from which a contrary conclusion would be warranted. In this connection Sarah Ratcliff testified that during the time she lived on the land she was holding it for George Turner; that she heard Eli admit in George Turner’s presence that he was not claiming the land, and the first she knew of his claiming it was after Turner’s death; that she had discussed with Eli the matter of reconveying the land; that he did not set up any claim to it then; that he would not claim it; and that he said the reason why he would not do anything more on the place was because it was not his. Lou Turner testified that Eli “never in my presence claimed the land, always George’s land. He told me it was George’s land. * * * I never heard him claim this land until after George died.” The further complaint in the fourteenth assignment that the court held that the burden of proof was upon plaintiff to make out his title against inter-vener does not appear to be sustained by the record. It does not appear that the court made any ruling as to who had the burden of proof in the case.

By his fifteenth assignment appellant complains that: “The court erred in his conclusions of law that intervener had such title or possession of said premises as would entitle her to recover against the claim of plaintiff herein. The court having held in paragraph 8 of his findings of fact that the quitclaim deed from V. A. Collins to Sarah Ratcliff, George Turner, and J. Y. Flemming passed title to the grantees to the land in controversy, he erred in not holding that at least one-half of the title so passed in said deed to Sarah Ratcliff was the property of Eli Ratcliff; it being shown in evidence that Eli Ratcliff and Sarah Ratcliff were husband and wife at the date of the execution of said deed, and it not being shown that it was conveyed to Sarah Ratcliff for her own separate use and benefit.” Under this assignment the following proposition is advanced: “Where an intervener claiming against both plaintiff and defendant introduces a certain deed to show common source and attempts then to show said deed ineffectual to pass title, but offers another deed from another source which, if effectual to pass title, puts some interest in plaintiff, intervener must then trace the common source of title to the sovereignty of the soil and show it superior to the other title she has introduced before she will' be permitted to recover against plaintiff.” We will not pause to determine the accuracy of the proposition as an abstract question of law. That it has no application to the facts of this case we have no doubt. We repeat that the court did not hold that the deed from V. A. Collins passed the title to George Turner, Sarah Ratcliff, and J. V. Flemming. The court found as a fact that neither party claimed title under the deed executed by George Turner to Sarah Ratcliff in 1893. This finding is not questioned. The court further found that the plaintiff claimed the land under the statute of limitation of. ten years. This finding is not attacked. The court in effect further found, and we think the finding is warranted by the evidence, that from 1895, the time when Eli and Sarah moved onto the land, to the date of George Turner’s death, such possession as they held was held for Turner. Any title perfected by their adverse possession inured to Turner. In Thomson v. Weismann, 98 Tex. 170, 82 S. W. 508, the Supreme Court holds that one who has bought and paid for land, the deed to which was taken in the name of a third party who held in trust for the purchaser, could prescribe under the statute; the other requirements of the statute having been fulfilled. See Kirby v. Hayden, 44 Tex. Civ. App. 207, 99 S. W. 747. It is true that the deed by V. A. Collins might have vested title to a portion of the land in Sarah and at such a time as to make it the community property of Sarah and Eli, but Sarah did not assert title under this deed but asserted that such title as she held was held in trust for George Turner. Eli did not claim title under this deed but expressly asserted title by limitation; and, having so pleaded and having failed to prove the allegations of his petition in this regard, he was not entitled to recover.

We find no reversible error in the record, and the judgment of the court below is affirmed.

Affirmed.


author: REESE, J.

text:
    WILBORN v. TERRY et al.
    (Court of Civil Appeals of Texas. Galveston.
    Oct. 31, 1913.
    Rehearing Denied Dec. 4, 1913.)
    1. Waters and Water Courses (§ 118) — Subface Waters.
    Where a lower landowner erects a dam or other obstruction which -prevents ordinary surface waters from flowing over his land, thus obstructing natural drainage, though not interfering with the water course, he is not liable for injuries caused to the lands of other proprietors upon which the surface waters are thrown- back.
    [Ed. Note. — Eor other cases, see Waters and Water Courses, Cent. Dig. §§ 128-130; Dec. Dig. § 118.]
    2. Waters and Water Courses (§ 38) — What Constitutes “Water Course’’ — Marsh.
    A depression of the ground in a flat ¡marshy country, filled with rank vegetation, from ■ a quarter of a mile to a mile in width, with no defined banks and no channel, and through which water only oozes, is not a water ■course.
    [Ed. Note. — Eor other cases, see Waters and Water Courses, Cent. Dig. § 30; Dec. Dig. §

    For other definitions, see Words and Phrases, vol. 8, pp. 7410-7413, 7833.]
    8. Waters and Water Courses (§ 118) — Surface Waters.
    A landowner who erected a dam, thus collecting 'surface waters in a lake upon his own property and retaining them so that they were thrown back on the land of higher proprietors, is liable for the injury.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 128-130; Dec. Dig. § 118.]
    -4. Waters and Water Courses (§ 126) — Surface Waters — Actions.
    In an action for damages for damming a lake so that surface waters were collected and thrown back on plaintiff’s land, evidence held insufficient to show that the dam cast water upon plaintiff’s land, at most showing only that it prevented the surface water from flowing off as rapidly as before.
    [Ed. Note. — Eor other cases, see Waters and Water Courses, Cent. Dig. §§ 139, 141, 142; Dec. Dig. § 126.]
    Appeal from District Court, Chambers County; L. B. Hightower, Judge.
    Action by George F. Wilborn against J. W. Terry' and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    A. W. Marshall and R. J. McMurrey, both of Anahuac, and E. B. Pickett, Jr., of Liberty, for appellant. C. F. Stevens, of Liberty, and Ballinger Mills, of Galveston, for ap-pellees.

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

   REESE, J.

The following statement of the nature and result of the suit is taken from appellant’s brief, which is admitted by appellees to be correct:

The appellant, George F. Wilborn, filed this suit on August 16, 1912, against J. W. Terry, Daniel Ripley, and F. G. Pettibone. Before trial the suit, as to Pettibone was dismissed. Recovery of damages in the sum of $3,534 is sought, and to support his action appellant alleged that he is the owner of sections 1, 3, and 7, T. & N. R. 'R. Co. survey, in Chambers county, which are located northeast and east of Lake Stephenson, and that about December, 1910, and January and February, 1911, defendants, having leased said lake, and a strip of land bordering and entirely surrounding same, from the owners thereof, constructed a dam at the head of Gordy Marsh, into which Lake Stephenson flows, said dam being 2,410 feet in length and 2 feet high; that the natural outlet and drainage of Lake Stephenson is into said Gordy Marsh, which flows into Lone Oak bayou, and that bayou empties into Trinity Bay; that such course is the natural flow and drainage of the water from plaintiff’s said lands when not obstructed, and that other lands in the vicinity thereof drain into Lake Stephenson, but that the dam, as erected by defendants, did and does obstruct the natural" flow of water from Lake Stephenson and banks the water up in said lake, thus obstructing the natural flow of the waters of said lake and that which falls upon the adjoining lands and naturally flows into said, lake, thereby backing said waters upon plaintiff’s lands and causing same to remain thereon, thus damaging and destroying the grass and for a time depriving him entirely of his pasture, to which purpose only is the land devoted, and that that is practically its only valué. Plaintiff further alleged that defendants still maintain said dam, and that the natural flow of tho waters of said Lake Stephenson and adjoining lands is thereby obstructed, and that the water will thereby be caused to continue to back up and cover plaintiff’s land, as above stated, if said obstruction is permitted to remain. In addition to tbe damages prayed for, an injunction is asked to require defendants to remove tbe dam and permit tbe waters from said Lake Stephenson, and those that accumulate therein from’ adjoining lands, to flow therefrom in their natural course, as above indicated, without obstruction.

Terry answered by general denial and pleaded specially that he and his associate' had leased from the owner the body of water known as Lake Stephenson and a strip of land 200 feet in width around the lake, and that he had had the dam in question erected for the purpose of preventing the inflow of salt water from the bay into the lake in order to prevent the killing of vegetation in the lake and to preserve the water fresh for use as drinking water for his cattle. The purpose in preventing the destruction of the vegetation by salt water was to preserve and increase the value of the lake for hunting purposes. Wild ducks resorted to the lake to feed upon this vegetation. It is not necessary further to set out the allegations of defendants’ pleadings. Ripley adopted Terry’s answer.

The case was tried with a jury, and, after the conclusion of the evidence, the court instructed the jury to return a verdict for defendants, which was done, and judgment rendered accordingly, from which plaintiff appeals.

Lake Stephenson (sometimes spoken of as White’s Lake) is a body of shallow water, never more than about two feet deep, collected in a natural depression of the ground in the flat plain lying along the bays connecting with the Gulf of Mexico. The lake is about one mile wide and about 1% miles long. It is fed by the collection of rainwater naturally draining into it as surface water from the surrounding territory and is much resorted to by wild ducks during the winter,' which feed on. the vegetation of the lake. The entire surrounding territory is flat and marshy but affords pasturage for cattle. At the north end of the lake there is a wide depression of the ground, which extends north-wardly to Lone Oak bayou, which leads into Trinity Bay. During seasons of heavy rainfall, filling up the lake with surface water above the level of this marsh, this water drains off from1 Lake Stephenson through this marsh into Lone Oak bayou and thus finds its way into Trinity Bay, and in the same way, at seasons of very high tides, the waters of Trinity Bay find their way, through this bayou and marsh, into the lake. The undisputed evidence with regard to this marsh is that it is simply a depression of the ground with no defined banks, varying in width from a quarter of a mile to a mile or more. The length of the dam, at the junction with the lake, 2,410 feet, indicates its width at that point. About 1 y2 miles below this dam there begins something like a defined way of exit, or water course, called Lone Oak bayou. The bed of this marsh is covered with a rank growth of grass and sea cane. There is no defined channel in the marsh for the passage of water, which just oozes through the vegetation in the marsh without perceptible current. Appellant is the owner of three sections of land lying north and east of Lake Stephenson. The nearest point of any one of these sections is from a half to three-quarters of a mile from’ the lake, and east of if. These sections are inclosed and used by appellant for pasturage for his cattle. This land is all low, flat, and marshy, and after anything like a heavy rainfall, before as well as since the erection of the dam, at least that part of the land claimed to be affected by the backwater from the lake on account of the erection of the dam is to some extent covered with water. This surface water falling on appellant’s land finds an outlet, some of it into East Bay, and some of it into Lake Stephenson. The evidence leaves no doubt that the erection of the dam obstructs to some extent the 'outflow of water from the lake through Gordy Marsh, whenever there is a sufficient accumulation of water in the lake. The surrounding country is so flat that engineers, in making surveys, compute elevation in inches and fractions thereof.

Appellant’s contentions are generally thát by reason of the dam in question, after a heavy rainfall, the water accumulating in the lake backs up over and upon his land and remains there for such a length of time as to injure and destroy his grass. It is not contended that water would not accumulate and lie on his land in such circumstances, to some extent, without this dam, but' that it would not be so deep and remain so long. Appellant contends: Eirst, that Gordy Marsh is a water course and on this account its obstruction, to his damage, unlawful; and, second, that if this is not true the effect of the erection of the dam is to collect in the lake the surface water from the surrounding lands, filling up the lake and casting the water there collected back upon his lands, and that he was damaged thereby. If there was any evidence to support either of these last two contentions, the ease should have been submitted to the jury. These questions maybe more satisfactorily disposed of without confining ourselves to a discussion seriatim of the several assignments of error as they are presented in the brief of appellant. It is sufficient to say that the questions discussed are sufficiently presented by the assignments. If the effect of the dam was only to obstruct or prevent the outflow from appellant’s land of the surface water arising from rain falling thereon- or falling on other lands surrounding, and which, in seeking an outlet, flowed over appellant’s lands, there would be no liability on the part of appellees, unless Gordy’s Marsh had the characteristics of a water course. Passing upon this last question first, our conclusion is that the undisputed evidence shows that this marsh cannot be treated as a water course in dealing with the questions presented. The various definitions of what is meant in tMs connection by water course, and the enumeration of the characteristics thereof, are voluminous, and in conforming to these definitions it is sometimes difficult to determine whether in the particular case the obstruction of the flow of water is unlawful on tMs account; but in the present case, we tMnk, there is no difficulty, and it would not be profitable to incumber this opiMon with a discussion of the essential characteristics of a water course, as distinguished from the ordinary flow of surface water from Mgher to lower ground, as determined by the general topography of the country. A depression of the ground, in a flat marshy country, from a quarter of a mile to a mile in width, with no defined banks and no channel in the depression over the entire width of which surface water passes, without perceptible current, to lower ground, has not an element of a water course. Farnham on Waters, § 455a et seq.; 40 Cyc. 553 et seq.; Gross v. Lampasas, 74 Tex. 195, 11 S. W. 1086; Gramann v. Eicholtz, 36 Tex. Civ. App. 309, 81 S. W. 756.

While appellees, then, would not be liable if the effect of the erection of the dam would be merely to obstruct the drainage from appellant’s land of its natural surface water (Barnett v. Irrigation Co., 98 Tex. 355, 83 S. W. 801, 107 Am. St. Rep. 636), he would be liable if such effect was to collect in Lake Stephenson the surface water falling upon the lands surrounding it and throw tMs water on appellant’s lands. Gembler v. Echterhoff, 57 S. W. 313. There was plenty of testimony that appellant’s lands were covered with water after a heavy rainfall, both before and after the erection of the dam. From the flat, marshy topography of the country, tMs was inevitable, and there was plenty of testimony that the dam obstructed the passage of water out of Lake Stephenson through Gordy Marsh. TMs also was its necessary consequence. But this is about as far as the testimony goes. Appellant testified that: “Before the building of that dam I never did see water backed up on my land and pasture between my pasture and Stephenson’s Lake to the extent I saw it last winter; that is, I do not think it was ever a foot and a half. The pasture remained in that flooded condition from December, 1911, until March.” The evidence showed that this was a season of unusually heavy rainfall. TMs was not disputed. The nature of the country must be considered and the distance of appellant’s land from the lake. A map made by appellant’s witness and introduced in evidence by him shows that a point of one of appellant’s sections runs down to within 3,468 varas of the lake, but very little of Ms land lies witMn a mile, ana most of it was much over a mile from the lake. We have examined the evidence very carefully; and we can find none that would have authorized a verdict for appellant. The most that can be gotten out of it for appellant is that, on account of the erection of the dam, the surface water did not flow off as readily as it did before. To the extent that this was done at all, the ease falls within the doctrine of Barnett v. Irrigation Co., supra, and does not come within the doctrine of Gembler v. Echterhoff, supra.

We have carefully examined the several assignments and the propositions thereunder presented in the able brief of appellant and conclude that none of them presents any ground for reversal. The trial court did not err in instructing a verdict for appellees. Binding no error, the judgment is affirmed.

Affirmed.


author: PDEASANTS, C. J.

text:
    PRICKETT v. STEINER et al.
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 14, 1913.)
    Injunction (§ 59) — -Right to.
    Defendant, the proprietor of a moving picture show, agreed to admit plaintiff and his family free in consideration for permission to use the walls of plaintiff’s building as supports for the roof of a picture show and a strip of land adjacent to the walls. Held that, defendant being insolvent, an injunction restraining him from refusing plaintiff and his family permission to visit his show was proper, where, defendant at the instance of his lessor, who claimed that plaintiff had no right to the strip of land in question, had refused such permission, for the continuation of plaintiff’s visits to the show would not affect the title to the land in controversy; and the denial of plaintiff’s right might deprive him of any remedy against the defendant.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 114-116, 128; Dec. Dig. § 59.]
    Appeal from District Court, Colorado County ; fit. Kennon, Judge.
    Suit by Dave Steiner and others against B. E. Prickett. From an order granting temporary injunction, defendant appeals.
    Affirmed.

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

   PDEASANTS, C. J.

This appeal is from an order of the district judge of Colorado county, made in chambers, granting a temporary injunction in a suit for injunction brought by appellees against appellant. The petition upon which the injunction was granted alleges in substance: That plaintiffs are the owners of certain lots in the city of Columbus, which are fully described in the petition. That some time in the spring or summer of 1912 the defendant, who was the lessee of a lot adjoining the lots so owned by plaintiffs, placed a temporary uncovered inelosure around said lot and began to exhibit or conduct therein a moving picture show. That said inclosure, wMeh was erected with, plaintiffs’ consent, connected with the walls of the buildings situated on the lots owned by plaintiffs and covered a strip of land along the .south line of one of plaintiffs’ lots 18 inches in width and 66% feet long and a strip along the east line of the other lot owned by plaintiffs-3 feet wide and 31% feet in length. “That thereafter defendant conceived the idea of continuing the operation of said show through the following winter, and in order to keep out the cold and rain decided to place a roof over said open structure and was proceeding to carry out said idea when plaintiff protested and caused him to desist and to refrain from using plaintiffs’ said land or further connecting with their said walls, whereupon defendant importuned plaintiffs to allow him the use of said lands and walls as he could not conduct his show throughout the winter without placing a cover over his said structure, and that it would occasion him great .expense and loss, if plaintiffs refused him the use of said lands and said walls, in that he would be compelled to build two other independent walls upon which to construct his said covering, and he did then and there promise and agree with plaintiffs that, if plaintiffs would allow him to continue to use said lands and said walls, as a consideration therefor that plaintiffs and the following parties should have free access to said inclosure and to the nightly performances of his said picture show, and which right was to be also reserved by plaintiffs so long as defendant should continue to operate said theater, and that they would not be prevented from such access and attendance nor be charged any fee for admission whatever, said parties’ names being as follows: Leo Steiner, son of plaintiff, and his wife, Susie E. Steiner, A. L. Steiner, son of plaintiff, and his wife, Ruth Steiner, Vivian Steiner and Melvin Steiner, children of the said A. L. Steiner and wife, Mrs. O. Wampold, mother of Mrs, Ruth Steiner, and Emma Moulden, a small girl living with the family of said A. L. Steiner. Whereupon, and because of said consideration, plaintiffs accepted said proposition, and because of which defendant became bound and obligated himself that he would allow plaintiffs and said above-named parties free access and entry into said theater and said nightly performances, as aforesaid, without let or hindrance and without charge. That immediately after plaintiffs had accepted said proposition defendant at once placed a roof on said inclosure, joining same to plaintiffs’ said walls and otherwise attaching same to plaintiffs’ said two buildings, and which had the effect of obstructing said light, and by reason of which defendant made the said open structure a warm, comfortable, weather and rain proof building .and which it so continued until this time. That, acting under and by virtue of said agreement, defendant permitted plaintiffs and all of said parties above mentioned to enter his said theater without charge or molestation and to attend said nightly performances continuously and at all times that they so desired until the 26th of October, A. I). 1912, when the defendant, in utter disregard of his 'agreement and of his obligations not to refuse plaintiffs and the above-named parties access free of charge in his said theater and to his said nightly performances, and notwithstanding his obligations and. agreement that he would Collect no entrance fees from plaintiffs or said above-named parties, nor in any other manner hinder. or refuse them admission, as aforesaid, did fail and refuse to carry out and comply with his part of said contract and did refuse to allow plaintiffs and the above-named parties to enter said theater and. to ' attend said nightly performances, and-did refuse to allow them to so enter and attend said performances free of charge, but on the contrary did demand. that plaintiffs and said above-named parties-should pay to him the price charged all other people before he would allow them to.enter said theater or attend his said nightly performances, and did, upon plaintiffs’ and said above-named parties’ demanding such entrance, procure the services of an officer, and did through such officer prevent plaintiffs and said above-named parties from entering into said theater and from access thereto, thereby ejecting plaintiffs and said above-named parties therefrom in violation of his said undertaking. And plaintiffs now say that defendant still refuses and threatens to continue to refuse to allow plaintiffs and the above-named parties free access to said theater and to said nightly performance and is threatening to use the same force to prevent plaintiffs and said above-named parties from entering said theater and attending said nightly performances, and by which means defendant will entirely prevent plaintiffs and said above-named parties from entering said theater and of obtaining the benefit of the said nightly performances.”

It is then alleged ¿at the fees charged by defendant for admission to the performances given in said structure vary from 10 cents to 35 cents; that said performances are highly entertaining and instructive, especially to the younger of the persons for whose benefit said agreement was made, and not to be obtained elsewhere in the city of Columbus, where plaintiffs reside, there being no other moving picture theaters in said city, and that the refusal of defendant to comply with his said contract works an irreparable injury to plaintiffs, for which they have no adequate remedy at law; that defendant is insolvent; and there is no way of arriving at the measure of damages plaintiffs have suffered and will suffer by 'the continued breach by defendant of said contract.

It is further alleged that defendant is claiming that the strip of land before described, which belongs to plaintiffs, is owned by the party from whom he leased the lot adjoining plaintiffs’ said lots and is thereby casting a cloud upon plaintiffs’ title and has entered into a conspiracy with said party for the unlawful purpose of acquiring plaintiffs’ said land by prescription.

The prayer of the petition is as follows: “Wherefore plaintiffs bring this suit, upon hearing, pray judgment that defendant be required to specifically perform his said agreement, and for a temporary mandatory injunction enjoining defendant from refusing plaintiffs and said above-named parties from free access to said theater and attendance upon said nightly. performances and from charging or collecting or demanding from plaintiffs and said above-named parties anything for admission to said theater and to such performances, and from forcibly preventing and ejecting plaintiffs and said above-named parties from entering said theater and attending said nightly performances, as aforesaid, and that defendant be enjoined from acknowledging or atoning to any other person, firm, or corporation as landlord or as owner of plaintiffs’ said two strips of land in order that plaintiffs’ said rights be maintained in statu quo, and that same be made perpetual upon final hearing, for costs of suit and general and special relief in equity. In the alternative, plaintiffs pray for possession of said premises and for a temporary mandatory injunction compelling defendant to remove his said structure away from off of plaintiffs’ said land, and from in any manner obstructing plaintiffs’ said light, or from tortiously and unlawfully seeking to obtain prescriptive title to plaintiffs’ said property upon final hearing, for costs of suit and general and special relief, both at law and in equity.”

The defendant presented a general demurrer and numerous special exceptions to plaintiffs’ petition, and, answering same under oath, denied many of the allegations of said petition, and especially denied that plaintiffs owned the strip of land claimed by them, and averred that same was the property of the I. O. O. P. Lodge of Columbus, from whom he had leased the lot occupied by' him. He admitted the execution of the contract as alleged by plaintiffs. He also specially denied that he was insolvent. His,answer also contains the following aver-ments: “Defendant further says that after he and plaintiffs entered into the agreement hereinbefore set out, and in accordance with the terms of said agreement, he permitted not only plaintiffs’ immediate family free entrance into each and every, performance of said show thereafter but also permitted Leo Steiner and his wife, Susie E. Steiner, A. L. Steiner and his wife, Ruth Steiner, Vivian Steiner, Melvin Steiner, Mrs. C. Wampold, and Emma Boulden free entrance to each and every performance until about the 28th day of October, A. D. 1912, when defendant was informed by the representatives and some of the members of the I. O. O. P. Lodge that the plaintiffs, owned no portion or part of the land and' premises within the walls of the Airdome theater, and he was then and there requested by them not to recognize any rights or title that plaintiffs may assert or claim in or to any portion of the premises then occupied by him, for the reason that a recognition on his part at time, being acquiesced in by them, might possibly be construed as an admission on their ‘part that plaintiffs owned and were entitled to a portion or part of the lot upon which is situated said Airdome and is inclosed by the Airdome theater walls. Said agents and representatives also representing to defendant that all of said premises so inclosed and the title thereto belonging to said I. O. O. P. Lodge in fee simple, and by right of prescription, as said lodge, has been in and held actual, notorious, adverse, and peaceable possession of all the property and premises so inclosed, and had been using, claiming, and enjoying the same and paying all taxes due thereon, claiming the same under deeds registered in the office of the county clerk of Colorado county, Tex., for more than three, .for more than five, and for more than ten years prior thereto, and by reason of which said lodge claimed title to said property and premises. Defendant further says that said representatives and agents of said lodge informed him that, if plaintiffs claimed any portion of said premises, they did so fraudulently and without any good or sufficient reason and for the purpose of gaining free admission to defendant’s show. Thereupon defendant informed plaintiffs that said lodge denied plaintiffs’ ownership and claim to any portion of said premises, and he then requested plaintiffs to confer with said lodge and for them to determine the ownership of the property in dispute, defendant agreeing that if the property in dispute was shown to belong to plaintiffs he would continue to’ carry out the terms of his contract with them, or that he would lease the property in dispute and pay a reasonable rental therefor, but that defendant could not, as the tenant of said lodge, recognize plaintiffs’ claim to any portion of said premises until the matter was finally settled between plaintiffs and said lodge. But plaintiffs refused to adjust this matter in this way, but on the contrary demanded and tried to induce this defendant to- recognize plaintiffs’ claim by executing a written lease therefor, for which he was to pay as rental therefor the sum of $1 per month. This lease is hereto attached and marked Exhibit D and made a part hereof. Defendant thereupon submitted said lease to said lodge for their approval, which they refused to approve. For the reasons hereinbefore assigned this defendant refused to carry out the terms of his contract and agreement with said plaintiffs, but for no reason whatsoever did he so refuse.. Defendant specially denies tliat, as reason for refusing to abide by tbe terms of said contract on his part, he was a minor at the time that he entered into said agreement, but on the contrary defendant alleges and says that while it-is true that at the time he entered into said agreement with said plaintiffs he was then a minor, but that he became of legal age thereafter, to wit, on the 29th day of October, A. D. 1912, and he thereafter was ready and willing to ratify said contract and is now ready and willing to so ratify the same should the title to the premises in dispute be satisfactorily shown to be in plaintiffs.”

Upon a hearing before the judge upon the bill and answer and affidavits and oral testimony offered by the parties, the judge made the following order: “In chambers, Columbus, Tex., June 30, 1913, upon notice and hearing of the within petition, I am of the opinion that the injunction should be granted. Therefore, upon the plaintiffs giving bond as required by law in the sum of $250, W. C. Papenberg, Esq., clerk of' this court, is hereby directed to issue the writ of injunction prayed for, restraining B. E. Prickett, his agents, attorneys, servants, and employés, until further orders of this court, from refusing Dave Steiner, Henrietta Steiner, Leo Steiner, Susie E. Steiner, A. L. Steiner, Ruth Steiner, Vivian Steiner, Melvin Steiner, Mrs. C. Wampold, and Emma Moulden free access to the Airdome theater of the said Prickett, and attendance upon the nightly performances thereof and from charging, collecting, or demanding of said parties, or either of them, anything for admission to said theater and to said nightly performances, and from forcibly preventing said parties, or either of them, from entering said theater and from attending said nightly performances, and from ejecting said parties, or either of them, therefrom. To all of which defendant excepts and gives notice of appeal to the Court of Civil Appeals at Galveston, Tex.”

There are no assignments of error and no brief filed by either party.

We do not think, from an examination of the pleadings and the affidavits presented on the hearing, that the learned trial judge erred in granting the injunction in the terms of the order above set out. Upon the issue of defendant’s insolvency, the affidavits are conflicting, and the judge was justified in finding that he was insolvent. The order granting the injunction can have no possible effect upon the issues as to the ownership and right of possession of the property, which are the main issues raised by the pleadings. If defendant is insolvent, plaintiffs cannot by any action at law be compensated for the damages they may sustain by the continued refusal of the defendant to permit them to attend the performances as he agreed and contracted to do, and as he expresses a willingness in his answer to continue to do if upon a trial it is found that plaintiffs own the strip of land claimed by them.

In these circumstances the injury to plaintiffs which would result from a refusal to grant the injunction is much greater than any that defendant could possibly sustain by reason of said injunction. The doctrine of “balance of convenience” is applicable to the case made by the pleadings and evidence, and the judge, sitting as a chancellor, did not err in granting the injunction. Townsite Co. v. McFaddin, Weiss & Kyle, 56 Tex. Civ. App. 611, 121 S. W. 721; Canal Co. v. Markham Irr. Co., 154 S. W. 1176; Houston Electric Co. v. Glen Park Co., 155 S. W. 965.

The judgment is affirmed.


author: HIGGINS, J.

text:
    STONE & WEBSTER ENGINEERING CORPORATION v. BREWER.
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 20, 1913.
    Rehearing Denied Dec. 11, 1913.)
    Negligence (§§ 121,134) — Injuries to Servant — Proximate Cause.
    Not only must negligence upon defendant’s part be shown, but the causal connection between it and the injury must be shown. Neither negligence nor causal connection will be presumed from the fact of injury alone.
    [Ed. ,Note. — Eor other cases, see Negligence, Cent. Dig. §§ 217-220, 224-228,' 267-273; Dec. Dig. §§ 121, 134.]
    Appeal from District Court, Harris County; Wm. Master son, Judge.
    Action by Reid Brewer against the Stone & Webster Engineering Corporation. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Baker, Botts, Parker & Garwood, of Houston, for appellant. Dowell & Dowell, of Houston, for appellee.

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

   HIGGINS, J.

This is an appeal from a judgment in appellee’s favor in the sum of $2,500, account damages arising from personal injuries. Appellant was engaged in the construction of a line of railway between th'e cities of Galveston and Houston, and appellee was in its employ as driver of a track automobile. While driving the automobile in the discharge of his duties, the same was derailed, and appellee sustained the injuries complained of. Appellant is alleged to have been guilty of negligence in furnishing a defective automobile for appellee to drive, in that the rear axle was defective, which negligence is alleged to have been the proximate cause of the derailment and consequent injuries.

Under the view entertained by the court of the state of the evidence, it becomes unnecessary to review the numerous - assignments presented except those which relate to the sufficiency of the evidence. In view of a retrial, however, it may be remarked that it would be well to avoid the criticism made of the court’s charge under the fifteenth, sixteenth, and seventeenth assignments, relative to the master’s duty. A question is here presented which may be readily avoided.

The evidence disclosed a rear axle had become defective as alleged, and appellant’s failure to replace same with a new one would warrant a finding of negligence; but it conclusively appears that it had been temporarily repaired by a process of “bushing,” and had been so repaired by appellee upon the date of the accident. It will serve no useful purpose to discuss the evidence further than to say that the same wholly fails to show with any degree of certainty any causal connection between the negligence alleged and the accident. Not only must negligence upon appellant’s part be shown, but the causal connection between the negligent act or omission and the injury as well. Neither negligence or causal connection will be presumed from the fact of injury alone; but it must be proven by competent evidence. Railway Co. v. Shoemaker, 98 Tex. 451, 84 S. W. 1049; Railway Co. v. Porter, 73 Tex. 307, 11 S. W. 324; Railway Co. v. Crowder, 63 Tex. 505; Railway Co. v. Baker, 99 Tex. 452, 90 S. W. 869.

As stated above, the facts here proven are wholly insufficient to show any causal connection between the appellant’s alleged negligence and the accident from which appel-lee’s injuries resulted. Only by conjecture and surmise could the jury have found that the accident resulted from the negligent acts complained of, and this is insufficient. Railway Co. v. Greenwood, 40 Tex. Civ. App. 252, 89 S. W. 810; English v. Railway Co., 44 Tex. Civ. App. 467, 98 S. W. 914; Duerler, etc., v. Dullnig, 83 S. W. 889; Railway Co. v. Baker, 99 Tex. 452, 90 S. W. 869; Railway Co. v. Anson, 101 Tex. 198, 105 S. W. 989; Jones v. Railway Co., 47 Tex. Civ. App. 596, 105 S. W. 1007; Railway Co. v. Robinson, 53 Tex. Civ. App. 12, 114 S. W. 658; Coffman v. Railway Co., 126 S. W. 619; Railway Co. v. Byrd, 124 S. W. 738; Railway Co. v. Hall, 46 Tex. Civ. App. 493, 102 S. W. 740; Parks v. Railway Co., 29 Tex. Civ. App. 551, 69 S. W. 125; Broadway v. San Antonio, etc., 24 Tex. Civ. App. 603, 60 S. W. 270; Railway Co. v. Faber, 77 Tex. 154, 8 S. W. 64; Patton v. Railway Co., 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 364; 3 Ency. of Ev. 70; 14 Id. 76, 99.

We desire to comment upon the brief filed herein by appellant. It is framed in utter disregard of the rules which have been promulgated by the Supreme Court respecting the manner and form of briefing. Appellant’s counsel have evidently preferred to brief the case according to their own idea of a proper method of briefing rather than with regard to the rules which it was intended they should observe. Violations of this character do not commend themselves to this court where counsel knew the rules, and in the instant case no indulgence of ignorance or inexperience can be indulged in, and the violation can be explained upon no other theory except that the rules have been deliberately disregarded. Such disregard is inexcusable, and in the instant case is tolerated only because the appeal did not originate in this district, but came to this court upon transfer, and because the various trial and appellate courts have so long permitted practically all of their rules to be violated and disregarded at will that the bar, perhaps, can scarcely be blamed for regarding them as dead letters, to be observed or not as they chose.

Reversed and remanded