text:
    BAKER v. ROBERTSON et al.
    (Court of Civil Appeals of Texas, Ft. Worth.
    Nov. 15, 1913.
    On Appellant’s Motion for Rehearing, Dec. 20, 1913.
    On Appellee’s Motion for Rehearing, Jan. 17, 1914.)
    1. Bankruptcy (§ 161) — Title of Trustee— Property Assigned Before Bankruptcy.
    Under the express provision of Bankruptcy Act July 1, 1898, c. 541, §§ 67e, 70, 30 Stat. 564, 565 (U. S. Oomp. St. 1901, pp. 3449, 3451), defining the property vesting in the trustee, title to vendor’s lien notes, assigned as collateral security within four months prior to a judgment of bankruptcy against the assignor, vested in the trustee.
    [Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 261-263; Dec. Dig. § 161.]
    2. Homestead (§ 76) — Incumbrance—Pro-ceeds — 'Vendor’s Lien Notes.
    The assignor of lien notes had no claim thereto as exempt property on the ground that his assignment of them was made with the purpose of applying the proceeds to pay a debt due upon his business, homestead.
    [Ed. Note. — For other cases, see Homestead, Dec. Dig. § 76.]
    3. Appeal and Error (§ 273) — Bill op Exceptions— Sufficiency.
    A bill of exceptions failing to give the ground of objection to the admission of evidence may be disregarded.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1590, 1606, 1620-1623, 1625-1630, 1764;, Dec. Dig. § 273.]
    4.Frauds, Statute op (§ 131) — Interest in Real Property — Executed Contract op Exchange.
    Where a contract for the exchange of real property was executed in part by delivery of the properties, including a certain house and lot, the statute of frauds had no application to a supplemental oral agreement relating to substitution of a house in lieu of a note which the owner was to assign.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 283, 284; Dec. Dig. § 131.]
    On Appellant’s Motion for Rehearing.
    5.Exchange op Property (§ 8) —Assumption of Liability — Rights and Remedies op Parties.
    Plaintiff, who, under a written contract for the exchange of properties, assumed a $4,000 indebtedness upon a storehouse of defendant, who contracted to transfer to him vendor’s lien notes for $3,100 previously indorsed to a third person as security for the same debt assumed by plaintiff, for- the purpose of reducing pro tanto plaintiff’s assumption of such indebtedness, was not entitled, in an action for breach of the contract, to a judgment for their value against defendant, so as to secure satisfaction out of such property, in view of a possible collection of the notes by the transferee and an application on the indebtedness to plaintiff’s benefit.
    [Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §§ 14-18; Dec. Dig. § 8.]
    Appeal from District Court, Johnson County; O. L. Lockett, Judge.
    Action by E. W. Robertson against J. T. Baker and M. C. H. Park, his trustee in bankruptcy. Judgment for plaintiff and defendant Park, and defendant Baker appeals.
    Reversed and remanded on rehearing.
    O. T. Plummer and W. E. Myers, both of Cleburne, for appellant. Walker & Baker, of Cleburne, and J. D. Williamson, of Waco, for appellees.

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

   CONNER, C. J.

Appellee instituted this suit in the district court of Johnson county, declaring upon a written contract between himself and J. T. Baker for the exchange of numerous properties in the contract mentioned. The contract was dated on the 12th day of June, 1912, and the plaintiff alleged, among other, things, that, of the property which the defendant Baker had contracted to transfer to him, $3,100 in vendor’s lien notes had not been assigned as agreed upon. It was further charged that the defendant Baker had been adjudged a bankrupt, and that his trustee in bankruptcy, M. C. H. Park, was setting up some claim to the notes mentioned, and Park was accordingly made a party defendant. ■

The case was submitted on special issues, the court, however, peremptorily instructing the jury to find for the trustee in bankruptcy, Park, and later adjudged Park as the holder of the legal title, and the first and principal question presented to us for determination is whether the court erred in giving this peremptory instruction.

The undisputed facts show that appellant Baker was duly adjudged a bankrupt on the 14th day of February, 1912, and that Park was the duly appointed and qualified trustee of his estate; that, on January 18, 1912, preceding the adjudication of bankruptcy, Baker transferred the $3,100 vendor’s lien notes in controversy to W. W. Addicks, who is not a party to this suit, as collateral security for the payment of an indebtedness of $4,000 due upon the two-story stone building situated in Morgan, Tex., exempt to Baker as his business homestead at and prior to the several times herein specified, and which by the terms of the contract of exchange was to be conveyed to E. W. Robertson. Save as hereinbefore and hereinafter mentioned, both Baker and Robertson each delivered to the other the several pieces of property in accordance with the terms of the contract of exchange, each party, with the exceptions stated, receiving possession of the property to which he was entitled under the terms of the contract.

We fail to see wherein appellant Baker has legal cause to complain of the court’s peremptory instruction and judgment in favor of the trustee in bankruptcy. Paragraph E of section 67 of the Bankrupt Act (see Fed. Stat. Anno. vol. 1, p. 692) provides, among other things, “that all * * * property of the debtor conveyed, transferred, assigned or incumbered, as aforesaid shall, if he be adjudged a bankrupt, and the same is not exempt from execution and liability for debts by the law of his domicile, be and remain a part of the assets and estate of the bankrupt and shall pass to his said trustee, whose duty it. shall be to recover and reclaim the same by legal proceedings or otherwise, for the benefit of the creditors.” Section 70 of the same act (ib. p. 697) reads: “The trustee of an estate of a bankrupt, upon his appointment and qualification, and his successor or successors, if he shall have one or more, upon his or their appointment and qualification, shall in turn be vested by operation of law with the title of the bankrupt, as of the date he was adjudged a bankrupt, except in so far as it is to property which is exempt to all ⅜ * ⅜ property which prior to the filing of the petition he could by any means have transferred or which might have been levied upon and sold under judicial process against him.” See, also, In re Novak (D. C.) 111 Fed. 161; In re Kellogg (D. C.) 113 Fed. 120.

Appellant by his indorsement and transfer to Addicks, January, 1912, certainly conferred upon Addicks as between those parties the superior title to the $3,100 vendor’s lien notes, and the equity of redemption, if of any value, as between appellant and his trustee in bankruptcy by virtue of the statutes and decisions quoted (the transfer having been made within four months prior to the judgment of bankruptcy), passed to the trustee for the benefit of appellant’s creditors, and it was not only the right, but the duty of the trustee to assert his title, and this assertion he was at liberty to make in the state courts, if indeed the claim was cognizable at all before a federal court. Especially is this true where, as here, he makes no complaint of the state court’s jurisdiction over him. See Gardner v. Planters’ Natl. Bank, 54 Tex. Civ. App. 572, 118 S. W. 1146; section 23 of the Bankrupt Act (Fed. Stat. Anno. vol. 1, p. 590); and Bardes v. Hawarden Bank, 178 U. S. 524, 20 Sup. Ct. 1000, 44 L. Ed. 1175; Wall v. Cox, 181 U. S. 244, 21 Sup. Ct. 642, 45 L. Ed. 845. Of course, the relative rights of Ad-dicks, the holder of the vendor’s lien notes, and appellant’s trustee in bankruptcy are not affected by this proceeding, and the judgment herein cannot be construed as doing so. Indeed, the judgment does not undertake to dispose of any issue cognizable by the bankrupt court that may arise as between either Addicks and the trustee, or appellant and the trustee, the judgment herein as between the parties to this suit being merely that; “The title to the $3,100 second lien notes held by W. W. Addicks (describing them) is now, and has been since the adjudication in bankruptcy of J. T. Baker vested in the defendant M. G. H. Park, the trustee in bankruptcy of J. T. Baker. That the plaintiff take nothing by his suit as against the defendant M. O. H'. Park, trustee, for the recovery of said $3,100 second lien notes, but as to said suit the defendant Park go hence and recover his costs.”

It follows that the court properly rendered judgment in appellee Robertson’s favor for the value of the vendor’s lien notes referred to as ascertained by the verdict of the jury, and properly found and foreclosed in appel-lee Robertson’s- favor an equitable lien upon the property specified in the judgment, which appellant Baker had received from appellee Robertson pursuant to the terms of the contract of exchange.

This conclusion, of course, involves the further conclusion on our part that under the undisputed facts appellant had no claim to the $3,100 vendor’s lien notes as exempt property under our statute on the ground that his assignment of them to Addicks had been made with the purpose of applying the proceeds to pay the debt due upon his business homestead.

It further appears that on the trial appellee Robertson was permitted to show by his own oral testimony and that of another that in lieu of a $1,000 note, which under the terms of the contract Robertson was to assign to appellant Baker, the latter agreed to substitute and take a certain house and lot described in the testimony, and error is assigned to the action of the court in permitting the introduction of this testimony. The bill of exception, however, as set out in appellant’s brief fails to give the ground of objection which would authorize us to disregard the assignment, but, even if we have regard to the objection indicated in appellant’s argument and proposition that the supplemental agreement was not in writing and hence in violation of the statute of frauds, requiring a -Written memorandum of the transfer of an interest in land, we would feel impelled to overrule it on the ground that the evidence tends to show that the contract of exchange was executed in part at least by the deliveries of the properties therein specified including, as we infer from the record, the house and lot which was the subject of the supplemental contract.

Error is also assigned to the action of the court in refusing several special charges requested in behalf of appellant, but, in so far as the charges referred to were applicable, we think the questions sufficiently disposed of by what we have already said. It is accordingly ordered that all assignments of error be overruled, and the judgment affirmed.

Affirmed.

On Appellant’s Motion for Rehearing.

On consideration of appellant’s motion for rehearing, we conclude that we were in error in affirming the judgment. Appellee was given a judgment, among other things, for the value of the vendor’s-lien notes transferred to Addicks by appellant, as shown in our original opinion, with a foreclosure of a vendor’s lien upon all property conveyed by Robertson to Baker under the terms of the agreement between them, with an order of execution for the enforcement of the judgment so rendered. We think this was error, for the reason that it is undisputed that, in the exchange of properties between the parties, Robertson assumed the $4,000 indebtedness upon the storehouse situated in Morgan, Tex., and it seems evident that appellant’s contract to transfer to appellee the $3,100 vendor’s lien notes that had theretofore been indorsed to Addicks was for the purpose of reducing pro tanto appellee’s assumption of the $4,000 indebtedness. Both parties knew that the notes had been indorsed to Addicks, and that Addicks held them either as collateral security for the $4,000 indebtedness, or under an agreement to collect the $3,100 vendor’s lien notes and apply the proceeds to such indebtedness; hence it must have been understood at the time of the exchange of the properties between appellant and appellee that appellant could not make a transfer of these notes to appellee in any other sense than that appellee was to receive the benefit of appellant’s contract with Baker. In other words, that appellee was to be, as it were, substituted to the rights of appellant in the contract with Addicks. If, therefore, Ad-dicks should collect the $3,100 vendor’s lien notes and apply the proceeds to the extin-guishment of the $4,000 indebtedness assumed by appellee, appellee, in effect, would receive the full benefit of the vendor’s lien notes as effectually as if, in fact, they had at the time been formally indorsed and delivered to him. For aught that the record shows us, Addicks may have or soon shall collect these notes, and may have or soon shall apply the proceeds to the extinguishment pro tanto of the $4,000 indebtedness owned by him, and it would therefore be inequitable for the judgment to be so framed as to authorize the appellee not only to receive the benefit of the $3,100 notes, and also to recover a judgment for their value against appellant and secure satisfaction out of the property transferred to him under the terms of the agreement between them.

In order to correct. this error, if all the parties were before u¡3, it would only be necessary to reform the judgment so as to provide that execution should not issue in behalf of appellee for the collection of that part of the judgment resting upon the $3,100 vendor’s lien notes in event Addicks complied with his agreement as to the application of their proceeds, but Addicks is not a party to - this suit, and the judgment, therefore, cannot bind him. We think, therefore, that the judgment should be reversed, in order that Addicks may be made a party to the end that the relative rights not only of appellant and appellee, but also of Addicks and the trustee in bankruptcy, may be determined.

Accordingly it is ordered that the motion for rehearing be granted, and the judgment reversed, and the cause remanded.

On Appellee’s Motion for Rehearing.

Appellee presents insistent motions for rehearing, but we yet think we should adhere to our conclusion as stated in the opinion reversing the judgment. While it is true that, as between Baker, Robertson, and the trustee in bankruptcy, Park, the title to the $3,100 in second vendor’s lien notes was properly vested in the trustee, yet we did not undertake to decide, and could not decide, as is indeed conceded, the relative rights as between the trustee and Addicks, who received the second vendor’s lien notes prior to the adjudication in bankruptcy. Addicks may be in position to insist upon his right to collect the second vendor’s lien notes and apply the proceeds upon the debt resting upon the Winston Building in Morgan secured by Robertson, or possibly Robertson, as against all parties, might present the question of a right to have Addicks first resort to the security afforded by the $3,106 vendor’s lien notes before foreclosing his lien upon the building named. We do not say that the facts are such as, to authorize any such course, but we do say that the parties before the court and the pleadings and evidence now before us in no event authorize the determination of Addick’s rights as between him and the trustee, or any of the other parties herein.

We accordingly overrule the motion for rehearing.


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    LACY v. CHANDLER.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 29, 1913.
    Rehearing Denied Jan. 10, 1914.)
    Bankruptcy (§ 163) — Voidable Pbeper-ences.
    While under Bankr. Act July 1, 1898, c. 541, 30 Stat. 548 (U. S. Comp. St. 1901, p. 3424) § 6, providing that bankrupts shall be entitled to exemptions allowed by the state, a bankrupt has the legal right to sell nonexempt property for cash and apply the proceeds in liquidating an incumbrance outstanding against his homestead, a transfer by a bankrupt of nonexempt property upon the eve of bankruptcy, in consideration of his grantee assuming and agreeing to pay an incumbrance upon the bankrupt’s homestead, is voidable as a preference, where the substitution of debtors is not assented to by the owner of the incumbrance.
    [Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 247, 24S; Dee. Dig. § 163.]
    Appeal from District Court, Taylor County; Thomas D. Blanton, Judge.
    Action by Hoyt Lacy, as trustee, against Emmett Chandler. From a judgment for defendant, plaintiff appeals.
    Reversed and rendered.
    B. A. Cox, of Abilene, for appellant. Scarborough & Hickman, of Abilene, for appellee.

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

   DUNKLIN, J.

Jesse Mercer Chandler having been adjudged a bankrupt upon his voluntary petition in the United States District Court, Hoyt Lacy was appointed trustee, and thereafter the trustee instituted this suit against Emmett Chandler, son of the bankrupt, to subject to the payment of the bankrupt’s debts 320 acres of land, which the bankrupt had conveyed to the defendant two days prior to the filing of the petition in bankruptcy, and which plaintiff alleged was transferred with the intent upon the part of the bankrupt, which intent was known to the defendant, of defrauding his creditors, and therefore void. The case was tried before the court without the aid of a jury upon an agreed statement of facts, which facts were embraced in the trial judge’s findings of fact, and upon such facts a judgment was rendered in favor of the defendant. Erom that judgment plaintiff had appealed.

The findings of fact and conclusions of law filed by the trial judge are as follows:

“Findings of Fact.
“The court adopts the agreed statement of facts herein as the court’s findings of fact, which are as follows, to wit:
“(1) That Jesse Mercer Chandler was on February 6, 1913, and prior thereto, insolvent and a bankrupt, and was duly adjudged a bankrupt on February 8, 1913, before Hon. K. K. Legett, referee in bankruptcy for the United States District Court, Northern District of Texas, Abilene Division, at Abilene, Tex., in cause No. 340 upon the docket of said court on his voluntary petition, and that the scheduled assets of said Jesse Mercer Chandler, the bankrupt, are not sufficient to pay the provable debts due his creditors.
“(2) That the plaintiff, Hoyt Lacy, was at the first meeting of creditors of said bankrupt, regularly held on February 21, 1913, duly elected as trustee in bankruptcy in said cause No. 340, and thereafter and before this suit was filed duly qualified as such trustee and is now the duly qualified and acting trustee in bankruptcy in said bankrupt estate in cause No. 340.
“(3) That on February 6, 1913, said Jesse Mercer Chandler, the bankrupt, was the owner of the south half of section No. 15, in block No. 6, S. rP. Ry. Co. survey of land in Taylor and Callahan counties, Tex., containing 320 acres, as described in plaintiff’s petition, and that said land was not the homestead of said bankrupt and for no reason exempt to him under the exemption laws of the state of Texas.
“(4) That said land described in subdivision 3 above, and the land in controversy in this suit, was not included in the schedules of assets belonging to said Jesse Mercer Chandler, as filed by him in said bankruptcy matter in said cause No. 340, February 8, 1913, and was not included under the head of recently conveyed property and in no way referred to by said bankrupt in his said schedules of assets or liabilities filed by him in said bankrupt matter.
“(5) That on February 6, 1913, and within two days of filing his petition in bankruptcy in said cause, the bankrupt, Jesse Mercer Chandler, made a deed in writing conveying said 320 acres of land, described in plaintiff’s original petition, to his son Emmett Chandler, defendant herein, and that said deed is of record in Deed Records of Taylor county, Tex.
“(6) That the only consideration for the execution of said deed and the conveyance of said land by Jesse Mercer Chandler, bankrupt, to his son, Emmett Chandler, defendant herein, was the assumption in said deed by defendant, Emmett Chandler, of the payment of $1,080, as it was claimed to exist on December 1, 1912, on the homestead of the bankrupt situated in College Heights addition to the city of Abilene, in Taylor county, Tex., and $600 due against said land, held by Henry James.
“(7) That the said deed of conveyance from the bankrupt to his son, the defendant herein, was made with full knowledge of the facts of the bankrupt and insolvent condition of Jesse Mercer Chandler at the time on the part of his son, Etamett Chandler, defendant herein, and the defendant, Emmett Chandler, accepted said deed to said land with full knowledge of the bankrupt and insolvent condition of his father, Jesse Mercer Chandler, the bankrupt; they both having talked over the matter, and before said deed was so made and accepted. The defendant, Emmett Chandler, knew at the time the deed was made to him that his father, Jesse Mercer Chandler, contemplated going into bankruptcy.
“(8) That the said Emmett Chandler is now in possession of said land and claiming the title and possession of the same solely by virtue of the said deed of conveyance from his father, Jesse Mercer Chandler, the said bankrupt.
“(9) That about two or three days prior to February 6, 1913, the date of the deed from Jesse Mercer Chandler to his son, the defendant, Emmett Chandler, conveying said land, the said Jesse Mercer Chandler, the bankrupt, who was at that time insolvent and bankrupt, paid $500 of his own money on the alleged $1,080 debt due upon his said homestead, which said $1,080 was thereafter assumed by the defendant, Emmett Chandler, as part consideration for the 320 acres of land in controversy in this suit, and that at the time the deed was made by Jesse Mercer Chandler, the bankrupt, and accepted by the defendant, Emmett Chandler, the defendant herein conveyed the 320 acres to his son Emmett Chandler; there was only owing of said alleged debt $1,080, as assumed on said homestead, $580, and not $1,080, as claimed in said deed.
“(10) That the plaintiff herein has been duly ordered by said referee in bankruptcy, in said cause No. 340, to bring this suit for the recovery of the land in controversy in this suit.
"(11) The 320 acres of land is of the value in cash of $580 above the amount due Henry James.
“(12) That on February 6th, and for many months prior thereto, Jesse Mercer Chandler was the owner in fee simple of lots 3, 4, 5, and 6, in block 25, College Heights addition to the city of Abilene, in Taylor county, Tex., and that said property was used and occupied by himself, wife, and children as a homestead; that the $600 assumed by the plaintiff on the land in controversy was a valid obligation to Henry J ames, and both of said obligations are still valid and subsisting; that the $580 assumed by the defendant, Emmett Chandler, was a valid obligation against the homestead of Jesse Mercer Chandler, as above described (that is $600 to Henry James and $580 on said homestead).
“Conclusions of Law.
“The court concludes as a matter of law that the sale made of said property was not in fraud of the rights of the creditors, and that the same should be upheld, and that the plaintiff should take nothing by this suit.”

We are of the opinion that, upon the facts so found, a judgment should have been rendered in favor of the plaintiff, subject only to the outstanding lien thereon in favor of Henry James for $600, the validity of which is not questioned by appellant.

It cannot be doubted that the necessary effect of the sale by the bankrupt to his son was to place his equity in the land beyond the reach of his creditors; that such was his purpose in making the conveyance; and that his purpose in so doing was known to the defendant. Elser v. Graber, 69 Tex. 222, 6 S. W. 560. At the time of the transaction with his son, the bankrupt unquestionably had the legal right to sell the land for cash and to apply the proceeds in liquidation of the in-cumbrance outstanding against his homestead, even though the grantor in the conveyance was at the time a bankrupt and made the conveyance for the purpose of placing the proceeds beyond the reach of his creditors. Chase v. Swayne, 88 Tex. 218, 30 S. W. 1049, 53 Am. St. Rep. 742. Perhaps, upon principle, the same legal effect could have been given to the conveyance in question if, prior to the institution of the bankruptcy proceedings, defendant’s obligation to the bankrupt to pay $580 had been accepted by the holder of the incumbrance against the homestead in full satisfaction of that lien. Property exempt as a homestead under the laws of the state in which the bankrupt has his domicile is expressly recognized as exempt in bankruptcy proceedings, and the acquisition of a homestead by an insolvent debtor is not a fraud upon his creditors. Section 6 of the Bankruptcy Act, Fed. Stat. Anno. vol. 1, p. 552 (U. S. Comp. St. 1901, p. 3424); In re Irvin, 120 Fed. 733, 57 C. C. A. 147. It appears, however, that the attempted sale by the bankrupt to his son was not for cash, but entirely on a credit. Defendant’s obligation to pay $580 to the holder of incumbrance against the bankrupt’s homestead was a contract made with the bankrupt alone, and there is no evidence tending to show that this obligation had even been accepted by the holder of that incumbrance. We know of no law in our state which exempts that obligation from the payment of the bankrupt’s debts. If, in lieu of the obligation, the defendant had paid the bankrupt $580 in money, with the understanding that the same should be applied in liquidation of the homestead incumbrance, the money, while in the hands of the bankrupt and before it had been paid to and accepted by the holder of the incumbrance, would have been subject to the payment of the bankrupt’s debts.

Accordingly the trial court’s findings of fact are adopted, and upon those facts the judgment of the trial court is reversed, and judgment is here rendered in favor of appellant for the land in controversy, subject only to the lien mentioned above in favor of Henry James.


author: SPEER, J.

text:
    GULF, C. & S. F. RY. CO. v. DRAHN et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 20, 1913.)
    Í. Negligence (§ 1) — Definition.
    Negligence is the failure to exercise that care that would be exercised by a person of ordinary prudence under the same or similar circumstances.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. § 1; Dec. Dig. § 1.

    For other definitions, see Words and Phrases, vol. 5, pp. 4743-4763; vol. 8, pp. 7729-7731.]
    2. Carriers (§ 226) — Action fob Injuries to Live Stock — Parties.
    The real parties in interest are proper parties plaintiff, and may recover in their own right for loss or damage to a shipment of live stock, even though the contract of shipment was made in the name of another.
    [Ed. Note. — For other cases, see Carriers, Dec. Dig. § 226.] '
    3. Evidence (§ 471) — Opinion Evidence — Usual Time fob Transportation.
    In an action for negligence in handling a shipment of live stock, plaintiff’s testimony as to the usual time of transportation between the places in question, in the absence of objection as to his qualification to express such opinion, was admissible, not coming within the rule forbidding a witness to express an opinion on a mixed question of law and fact.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.]
    Appeal from Denton County Court; S. H. Hoskins, Judge.
    Action by J. F. Drahn and others against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.

      Hopkins & Milliken, of Denton, for appellant J. A. Templeton, of Ft. Worth, for ap-pellees.

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

   SPEER, J.

This is an ordinary cattle shipment case, in which J. F. Drahn and Edgar Kerr, plaintiffs, recovered against the Gulf, Colorado & Santa Fé Railway Company for the negligent handling of two ears of cattle, originating at Beaumont and High Island, respectively, and destined to North Ft. Worth. The defendant company appeals.

The charge of the court is first criti-cised because of the definition of negligence given. It is as follows: “Negligence is the failure to exercise care that would be exercised by a person of ordinary prudence under the same or similar circumstances.” We find no fault with this definition. Lacking perhaps the word “that” or “such” preceding the word “care,” the charge is in the usual and approved form.

The court properly permitted the ap-pellee Drahn to testify that the cattle in question were the property of himself and Edgar Kerr even though they were not formal parties to the contract of shipment, since the rule is in such a case that the real parties in interest are proper parties plaintiff, and such owners are entitled to recover in their own right even though the contract of shipment is made in the name of another person. This being true, the court did not err in refusing to instruct a verdict for the defendant.

Neither did the court err in permitting this witness to testify as to the usual and customary time which it took to transport stock by railway the distance these cattle were transported as against the objections that the same would be an opinion, and would involve a mixed question of law and of fact. True, the answer was an opinion, but that constitutes no legal objection to its admissibility, and no objection is made that the witness was not qualified to express an opinion upon the subject inquired about. What is the usual and customary time is not, as we understand it, a mixed question of law and fact, and in no manner involves a consideration of the question of negligence, and, therefore, not within the condemnation pronounced in the authorities forbidding a witness to express an opinion on a mixed question of law and fact.

There is no error in the judgment, and it is affirmed.


author: CONNER, C. J.

text:
    RULE MERCANTILE CO. v. OPRY.
    (Court of Civil Appeals of Texas, Ft. Worth.
    Jan. 10, 1914.)
    Justices of the Peace (§ 86) — Amendment of Wbit — Signature of Justice.
    Where a writ of attachment was properly dated, and the date of its issuance was indorsed on the back thereof and signed on the back by the issuing justice, the writ could be amended by having the justice’s signature affixed to the face of the writ, if that were necessary.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 280-294; Dee. Dig. 86.]
    Appeal from Haskell County Court; A. J. Smith, Judge.
    Action by the Rule Mercantile Company against Alston Opry, aided by attachment. From a judgment quashing the writ of attachment and entering judgment for plaintiff only for the debt with foreclosure of a mortgage, plaintiff appeals.
    Reformed and affirmed.
    H. G. McConnell, of Haskell, Gordon B. McGuire, of Dallas, and Theodore Mack, of Ft. Worth, for appellant. W. H. Murchison, of Haskell, for appellee.

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

   CONNER, C. J.

The appellant company instituted this suit against the appellee in a justice’s court of Haskell county upon a promissory note due December 1, 1910, for the sum of $125, with interest at 10 per cent, from its date and attorney’s fees. The plaintiff in the suit also sought the foreclosure of a chattel mortgage upon a buggy given to secure the notes sued upon, and at the time of the institution of the suit also caused the issuance of a writ of attachment, which was levied upon certain horses described in the return. Upon a trial in the justice’s court no defense appears to have been made to a recovery upon the note, or in opposition to a foreclosure of the mortgage lien. Appellee, however, moved to quash the attachment proceedings upon the ground, briefly, that the writ of attachment had not been signed by the justice issuing it, and that the return of the officer who levied the writ had been, signed merely as deputy, without affixing the signature of the sheriff for whom he so acted. An objection to the bond was also made in that the date of its filing among the papers of the cause had not been indorsed thereon. The justice of the peace, as appears from the record, permitted the plaintiff in the suit to obviate the defects suggested by amendment, and entered judgment for the plaintiff for the debt as sued upon and foreclosing both the mortgage and the attachments liens, whereupon the appellee appealed to the county court. In the county court the motion to quash the attachment proceedings was renewed, and that court permitted the deputy who had executed the wilt of attachment to amend his return by affixing thereto the signature of his principal, the sheriff of Haskell county, but declined to permit the amendment of the writ of attachment which had been made by the justice below in affixing his signature on the face of the writ. The county court thereupon sustained the motion to quash the writ of attachment, and entered judgment for the appellant herein for its debt as sued upon, with a foreclosure of the mortgage lien, but denied the foreclosure of the attachment lien. The ruling of the county judge in quashing the writ of attachment appears to be the only material question presented for our consideration.

We think the county judge erred in declining to permit the amendment sought by appellant, and in quashing the writ of attachment. The writ was in due form. It was properly dated, and the date of its issuance indorsed on the back, and there signed by the justice of the peace who issued, it. The only ground for objection was that the writ had not been signed by the justice at its conclusion on the face of the' writ. While the statute (Revised Statutes 1911, art. 251) requires that the writ of attachment be dated and attested as other writs, there is no specific direction that it shall be authenticated by the officer’s signature at the conclusion of the writ, and we think the signature of the justice.formally affixed upon the back of the writ was sufficient to authenticate the writ, it being otherwise regular, and having been delivered .by the justice to the officer who executed it. At least the plaintiff’s motion to amend the writ by having the justice affix his signature on its face, as was in fact done in the justice’s court, should have been permitted. Munzesheimer & Lein v. Heinze & Co., 74 Tex. 254, 11 S. W. 1094; First Natl. Bank of Cleburne v. Graham, 22 S. W. 1101; Ryan v. Goldfrank, Frank & Co., 58 Tex. 356; Arnold v. Kreissler, 22 Tex. 581.

We conclude that the judgment should be reformed and here affirmed in appellant’s favor for the debt, interest, and attorney’s fees as recovered below, together with a foreclosure, not only of the mortgage lien, as adjudged below, but also of the attachment lien as prayed for, together with all costs of the court below and of this court.


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    FT. WORTH & D. C. RY. CO. v. HARRISON.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 13, 1913.
    Rehearing Denied Jan. 17, 1914.)
    1. Railroads (§ 350) — Crossing Accident-Evidence — Sufficiency.
    In an action for damages to an automobile which was struck at a crossing by defendant’s train, evidence of the negligence of defendant’s servants in failing to keep a lookout held insufficient to go to the jury.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.]
    2. Railroads (§ 320) — Crossing Accident-Presumptions.
    Those in charge of a train have the right to presume that persons about to cross a railroad track in plain view of an approaching train will either stop before attempting to cross or will hasten across the tracks, and hence the fact that the speed of the train is not decreased will not establish the failure to keep a proper lookout.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1014-1016, 1019; Dec. Dig. § 320.]
    3.Railroads (§ 316) — Crossing Accident-Dangerous Speed.
    A showing that a railroad train was running 15 or 20 miles an hour when it passed a crossing some distance out of a little town will not in itself establish that it was run at a dangerous or negligent speed.
    [Ed. Note. — For other eases, see Railroads. Cent. Dig. §§ 1006-1008, 1011, 1012; Dec. Dig. § 316.]
    Appeal from Wise County Court; E. M. Allison, Judge.
    Action by E. A. Harrison against the Ft. Worth & Denver City Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Thompson & Barwise, of Ft. Worth, Mc-Murray & Gettys, of Decatur, and J. M. Chambers, of Ft. Worth, for appellant. R. E. Carswell, of Decatur, and H. E. Lobdell, of Bridgeport, for appellee.

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

   CONNER, C. J.

Appellee recovered a judgment for the sum of $400 as damages to an automobile owned by him, and which it was alleged had been damaged by reason of appellant’s negligence. It appears that the collision in question occurred a short distance south of Saginaw, a small station a few miles north of the city of Ft. Worth. At the point in question the line of appellant’s railway extends approximately north and south, while the wagon road over which appellee and his chauffeur were proceeding extended east and west. The whistling post on the railway was some 400 yards north of the road crossing, and it was alleged that, as appellee was crossing the tracks of the appellant railway, one of its trains rapidly approached from the north without warning and struck and demolished his conveyance. It was charged that the injury complained of was proximately caused by the negligence of the appellant in three particulars: First, in a failure on the part of defendant’s em-ploySs to give plaintiff and his driver due warning of the approach of the train by ringing the bell or blowing the whistle at a distance of at least 80 rods from the crossing; second, in the failure of said employes operating the train to keep a lookout for persons or vehicles that might be passing over-said crossing; and, third, in operating said train at a high and dangerous rate of speed in approaching the crossing. Appellant’s answer was a general denial and a plea of contributory negligence. The court submitted the case upon the evidence and the issues of negligence as alleged. But the verdict and judgment was for appellee, as before indicated.

We are of the opinion that appellant’s assignments attacking the court’s charge on the ground that the evidence was insufficient to authorize the submission of the second and third issues of negligence hereinbefore named should be sustained. Each of these clauses was submitted as distinct grounds of recovery, but we find no evidence of sufficient probative force which would support a recovery on either the ground of negligence in a failure to keep a lookout or in running the train at an unreasonable rate of speed. The evidence will not be quot^g., but, on the issue of keeping a lookout, it fin the main is that of the engineer and fireman operating the train. The engineer testified to the effect that, after he blew the crossing whistle at the whistling post, he saw something approaching the railway track and, immediately after blowing the crossing whistle, began to sound the stock alarm, and that when he got within about 500 feet of the crossing he saw the car stop on the track but did not know then what it was. That he at once put on the emergency brake and did everything that he could to stop. The fireman testified that he was on the left-hand side of the engine when the stock alarm sounded; he looked and saw something on the right of way, but could not tell just what it was; that it was not then on the track; and that when he saw they were going to hit the ear he got down on the deck of the engine to avoid being hit. The only other circumstance apparently relied upon to support the allegation of negligence in a failure to keep a lookout (also urged to sustain the issue of negligence in running at an unreasonable rate of speed) is the fact testified to by some of the witnesses that after the collision the train ran some 15 car lengths past the crossing before the engineer could stop it. This testimony, we think, is not sufficient to support the conclusion that the operatives of the train were negligent in keeping a lookout. The mere fact that there was no apparent cessation in the speed of the train until near the point of collision is not sufficient to overcome the contradicting testimony of the engineer and fireman to the effect that they saw the approaching automobile some time before they reached the crossing. We must credit the operatives of the train with entertaining a reasonable presumption that persons about to cross a railway track in plain view of an approaching train would stop before attempting to cross, or would be enabled to cross before the arrival of the train at the crossing. Railway v. Shetter, 94 Tex. 197, 59 S. W. 533. In the case before us it appears that just as the chauffeur drove upon the track, the front wheels of the automobile having crossed the first rail, he undertook to change the gear on the machine, when for the first time he and appellee both testified they discovered the near approaching train, when they hastily left the auto to its fate. To announce that the operatives of passenger and other railway trains of the country are required to anticipate that an appoaching vehicle will stop upon the track without the happening of any previous circumstance so indicating, and to retard their speed or progress so as to be able to stop within a few feet, is to impose an unreasonable burden upon public trafile.

The only evidence not adverted to, relating to the issue of running the train at a rapid and dangerous rate of speed, was the testimony of several witnesses to the effect that it was running 15 or 20 miles an hour, testimony which in our judgment, under the circumstances of this case, is altogether too inconclusive to authorize a recovery for damages on this ground.

Other questions need not be noticed, but, for the errors of the court’s charge mentioned, it is ordered that the judgment be reversed, and the cause remanded.


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    SLOVER v. GOODE.
    (Court of Civil Appeals of Texas, Ft. Worth.
    Dec. 20, 1913.
    Rehearing Denied Jan. 31, 1914.)
    1. Trial •(§ 260) — Instructions — Cure by Other Instructions — Breach of Warranty.
    In an action on a warranty of soundness of a mule, an omission to instruct that for a verdict for plaintiff there should be a finding that defendant made the alleged representations was cured by defendant’s special instruction that the jury could not render judgment for plaintiff unless it found that defendant, at the time of the sale, made a “direct, positive, and unqualified statement to plaintiff that the mule was sound.”
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    2. Trial (§ 296) — Instructions — Cure of Error.
    Even if defendant’s representation as to the value of a mule was a mere matter of opinion, a charge authorizing a verdict for plaintiff if the jury found the mule not worth the money paid for it by plaintiff was not reversible error, where it was also charged that a verdict was not authorized thereby. without a finding that defendant, not only made this representation, but also falsely alleged that the mule was sound.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.]
    3. Trial (§ 296) — Instructions—Cure,d by Special Charge.
    Any error in a charge authorizing a recovery for plaintiff “regardless of defendant’s knowledge” of the unsoundness of a mule, where defendant’s contention was that his statement at the sale was “that the mule was sound so far as I knew,” was corrected by defendant’s special charge “that a statement that the mule was sound so far as he knew would not be sufficient to constitute” the warranty alleged.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.]
    4. Appeal and Error (§ 1003) — Conflicting Evidence.
    Where there was some evidence to sustain a finding that the seller of a mule knew that it was unsound, the verdict cannot be disturbed on appeal because the preponderance of the evidence was the other way; the weight of the evidence being for the jury.
    [Ed. Note.—Eor other cases, see Appeal and Error, Cent. Dig. §§ 3938-3943; Dec. Dig. § 1003.]
    Appeal from Wise County Court; E. M. Allison, Judge.
    Suit by R. P. Goode against Tom Slover. Judgment for' plaintiff, and defendant appeals.
    Affirmed.
    R. E. Carswell, of Decatur, and H. E. Lobdell, of Bridgeport, for appellant. Ford & Ratliff and J. V. Patterson, both of Decatur, for appellee.

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

   CONNER, C. J.

Appellee sued for the sum of $110 in the justice’s court, alleging the breach of a warranty of the soundness of a mule which appellee had purchased from appellant. The verdict and judgment in the justice’s court was in appellee’s favor, whereupon appellant appealed to the county court. In the county court appellant again suffered an adverse verdict and judgment, the judgment being for the sum of $75, and this appeal has been prosecuted.

In the first and fourth assignments of error complaint is made of the court’s charge on the ground that a verdict was authorized, without a finding that appellant had in fact made the alleged representations as to the soundness of the mule. The charge does seem subject to this criticism, but the error was one of omission, and seems to have been entirely cured by appellant’s special charge No. 3, which the court gave. In this special charge the jury were instructed, among other things, that a verdict for appellee could not be rendered unless the jury found “from a preponderance of the evidence that defendant at the time of the sale made a direct, positive, and unqualified statement to plaintiff that the mule was sound.”

In the second assignment the charge is complained of as authorizing a verdict in event the jury found the mule not worth the money appellee paid for it; the contention being that a representation of value, if made, was but an opinion, which would not authorize a recovery. It it be conceded, however, that appellant’s representation as to the value of the mule is to be construed as a mere matter of opinion, yet the charge is not reversibly erroneous, for the reason that a verdict was not authorized thereby, without a finding that appellant not only made this representation, but also made the false representation, as alleged, that the mule was sound.

In the third assignment the charge is objected to on the ground that it authorized a recovery “regardless of whether or not the defendant knew” of the unsoundness of the mule; it being appellant’s contention that his statement was “that the mule was sound so far as I knew.” If it be conceded that the charge was deficient in the respect here pointed out, it was certainly corrected by the special charges given at appellee’s request. In one of them the jury were specifically instructed “that a statement by 'Slover that the mule was sound so far as he knew would not be sufficient to' constitute” the warranty alleged.

The only remaining assignment of error complains of the action of the court in overruling defendant’s motion for new trial upon the ground “that the preponderance of the evidence shows that if the mule was unsound when traded to plaintiff, defendant was ignorant of such unsoundness, and only represented the mule to be sound so far as he knew.” It is only necessary to state, in answering this assignment, that appellee and one or more others testified to the unsoundness of the mule; that at the time of the exchange involved appellant made the positive representation that it was sound, and one or more other witnesses testified to circumstances tending to show that appellant knew that the mule was not sound at the time he traded it to appellee. These facts, we think, were properly left to the jury. It is not within our province to determine the weight of the testimony, this being the exclusive function of the jury.

We accordingly overrule all assignments of error, and affirm the judgment.


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    JARVIS et al. v. TAYLOR COUNTY.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 20, 1913.)
    Municipal Corporations (§ 642) — Appellate Jurisdiction op County Court.
    Const, art. 5, § 16, provides that the county court shall have appellate jurisdiction in cases, civil and criminal; of which justice courts have original jurisdiction. Code Or. Proc. 1911, art. 106, provides that justices of the peace shall have original concurrent jurisdiction with other courts in all cases arising under the criminal laws of the state, in which the punishment is by fine not exceeding $200. Const, art. 5, § 22, provides that the Legislature can increase, diminish or change the civil and criminal jurisdiction of county courts. Rev. Civ. St. 1911, arts. 903-922, relating to cities and towns, establishes recorders’ courts, and article 904 gives such courts jurisdiction over all cases arising under the ordinances of the city, and also concurrent jurisdiction with justices of the peace. Rev. Civ. St. 1911, art. 921, declares that appeals from judgments rendered by such corporation courts shall be heard by the county court. Held, that an appeal would not lie from the recorder’s court in a case arising under the ordinances of the city, but would only lie in those cases wherein it had jurisdiction concurrently with a justice of the peace, since the statutes establishing the recorder’s court did not have the effect of enlarging the jurisdiction of the county court, as originally defined by the Constitution.
    [Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1412-1415; Dee. Dig. § 642.]
    Appeal from- District Coutt, Taylor County; Thomas L. Blanton, Judge.

      Action by Burt T. Jarvis and others against Taylor County. From a judgment for defendant, plaintiffs appeal.
    Reversed.
    D. G. Hill, of Abilene, for appellants. H. R. Keeble, of Abilene, for appellee.

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

   CONNER, C. J.

This is an appeal from a judgment in favor of appellee for the sum of $51.45 against Burt T. Jarvis as principal and W. L. Grogan and C. M. Tandy, sureties upon what is termed a “convict bond,” executed by virtue of Revised Statutes 1911, art. 6251. The district court, which it has been held has jurisdiction to try such suits (see Hill Co. v. Atchison, 19 Tex. Civ. App. 664, 49 S. W. 141) filed the following conclusions upon which the ease has been presented to us, viz.:

“I. The court finds that a complaint was duly filed in the recorder’s court of the city of Abilene, Tex., duly signed and sworn to, against one Harry Newton, charging the said Harry Newton with violating an ordinance of the city of Abilene, such charge being as follows, to wit: ‘That one Harry Newton, on or about the 29th day of July, 1909, did then and there unlawfully go upon the platform of a railroad company, to wit, the Texas & Pacific Railway Company’s passenger station platform while a passenger train was standing in front of said station and pulling out of said station, and while he, the said Newton, was pursuing the calling of a driver for a vehicle, to wit, a bus, for the purpose of soliciting customers and patronage of persons for said vehicle, and did then and there so solicit customers and patronage of persons for said vehicle, contrary to said ordinance, and against the peace and dignity of the state. And the said Harry Newton, as aforesaid, did on or about the 29th day of July, A. D. 1909, within the territorial limits of the city of Abilene, Taylor county, Tex., then and there while pursuing the calling of a driver of a vehicle, to wit, a bus, unlawfully go upon the platform of a railroad company, to wit, the Texas & Pacific Railway Company’s passenger station platform, while a train was standing in front of said station and pulling out of said station, for the purpose of soliciting patronage and customers of persons for said vehicle, and did then and there make representations to induce persons to patronize said vehicle, contrary to said ordinance, and against the peace and dignity of the state.’
“II. That there was such an ordinance existing in the city of Abilene, Taylor county, Tex., prohibiting a person from doing these things charged against the said Harry Newton in said complaint.
“III. That the said Harry Newton was duly tried in the said recorder’s court of the city of Abilene, Taylor county, Tex., and convicted upon said charge, and from the judgment of conviction in said corporation court, said Harry Newton duly perfected an appeal to the county court of Taylor county, Tex.; that said appeal, when perfected in the county court as aforesaid, became cause No. 3188, against the said Harry Newton, and upon a trial de novo in said county court at the February term, 1910, judgment was duly rendered against said Harry Newton, ■ convicting him of said offense, his punishment being assessed by said judgment at a fine of $10 and all costs; that said fine and costs amounted to the sum of $51.45 being as follows:
County attorney’s fees.$10 00
County clerk’s fees. 5 70
District clerk’s fees. 1 75
Sheriff’s fees. 3 60
Witness fees . 3 00
Fees in city court. 14 65
Fine . 10 00
Trial fee. 5 00
Judge’s fee for approving bond. 1 50
Capias provine. 75
$55 95
“That the plaintiff asks for judgment only for the sum of $51.45 waiving the balance as being fees taxed up subsequent to the giving of the bond.
“IV. That in order to release the defendant from custody, the following convict bond was entered into, to wit:
“ ‘The State of Texas, County of Taylor. Know all men by these presents: That we, Burt T. Jarvis as principal * * * as sureties, are held and firmly bound unto T. A. Bledsoe, county judge of "Taylor county, and his successors in office in the penal sum of fifty-one and -te/100 dollars for the payment of which well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. The condition of this obligation is such that, whereas, the above bounden, Burt T. Jarvis has this day hired from the said T. A. Bledsoe, county judge, one Harry Newton, a convict, of said county, agreeing to pay for said convict at the rate of twenty dollars per month until he shall have discharged the sum of fifty-one and isi/ioo dollars, the same being the amount of fine and costs adjudged against him in cause No. 3157, in the county court of said county at its February term, A. D. 1910, the same being due and payable as follows: $20.00 on the 26th day of March, 1910. $20.00 on the 26th day of April, 1910. $11.45 on the 26th day of May, 1910. Now, should the said Burt T. Jarvis promptly and faithfully pay to the said T. A. Bledsoe, county judge, at his office in Abilene, Taylor county, Texas, as aforesaid, or his successors, in office, all such sums of money as may become due under and according to the tenor of this bond and treat said convict humanely while in his employment, furnishing him with a sufficient quantity of good and wholesome food and comfortable clothing and medicine when sick and not require the convict to work at unreasonable hours or for a longer time during any one day than other laborers doing the same kind of labor or accustomed to work, then tbis obligation shall be null and void, otherwise to remain in full force and effect.
“ ‘Witness our hands this the 26th day of February, A. D. 1910. Burt T. Jarvis. W. L. Grogan. G. M. Tandy.
“ ‘Approved: T. A. Bledsoe, County Judge.’
“The above document has an affidavit on the back of it made by Harry Newton that he is too poor to pay the fine and costs adjudged against him.
“The bond bears the file mark of the county clerk of Taylor county, Tex., under date of February 26, 1910, and has No. 3032, at the top of it, as an indorsement.
“V. That said bond is due and unpaid and that there has been a default in the payment of the same, and that proper demand has been made of the defendants herein for the payment hereof, which demand was refused, and that the said bond is taken for no other offense than the said offense charging the defendant with the ‘violation’ of an ordinance of the city of Abilene, Taylor county, Tex., but which cause was tried in the said county court on appeal, and culminated in said county court judgment.
“Conclusions of Law.
“The court concludes, as matter of law, that the bond which was given to the county judge of Taylor county, Tex., being based upon a judgment rendered in that court for fine and costs, was a valid bond, and is enforceable under the law, and, so concluding, the court renders judgment in favor of the county against the parties thereto.”

It will be observed that the offense for which Harry Newton, the alleged convict, was convicted is not one defined as a criminal offense in the penal laws of the state, but is an offense only by virtue of a violation of a city ordinance, relating alone to its particular government.. The question, therefore, arises whether in such case an appeal from the recorder’s court of the city of Abilene was appealable to the county court of Taylor county. If it was, the county court judgment is conclusive, and in such case there can be no question of the legality of the bond sued upon in this case, or of the judgment rendered. If not, the judgment upon which the bond in question rests is void, and the county’s suit must fail.

The constitutional provisions defining the jurisdiction of county courts (see article 5, § 16), so far as here pertinent, are as follows: “The county court shall have original jurisdiction of all misdemeanors of which exclusive original jurisdiction is not given to the justice’s court as the same is now or may hereafter be prescribed by law. ⅜ * * They shall have appellate jurisdiction in cases, civil and criminal, of. which justices’ courts have original jurisdiction,’1’ etc. What, then, is the jurisdiction of a justice of the peace in criminal cases upon which the appellate jurisdiction of the county court is made to depend? It is thus defined in article 106 of the Code of Criminal Procedure; “Justices of the peace shall have and exercise original concurrent jurisdiction with other courts in all cases arising under the criminal laws of this state in which the punishment is by fine only, and where the maximum of such fine may not exceed two hundred dollars, except in cases involving official misconduct.”

The Constitution further provides, however, that the Legislature shall have the power to “increase, diminish or change the civil and criminal jurisdiction of the county courts,” conforming the jurisdiction of other courts to the change. See Constitution, art. 5, § 22. So that in determining the vital question involved it becomes important to consider the legislation on the subject to see whether the appellate jurisdiction of the county court as prescribed in section 16, art. 5, of the Constitution has been changed.

Act of 1899, p. 40, carried forward in chapter 5, tit. 22, of the Revised Statutes 1911, relating to cities and towns, provides for the establishment of recorders’ courts, land declares (see article 904) that said court shall have jurisdiction within the territorial limits of the city, town, or village wherein it is established “in all criminal cases arising under the ordinances of said city, town or village * * ⅞ and shall also have jurisdiction concurrently with any justice of the peace in any precinct in which said city, town, or village, is situated in all criminal cases arising under the criminal laws of the state in which the punishment is by fine only,” etc. The chapter further provides (article 921) that “appeals from judgments rendered by such corporation courts shall be heard by the county court” except in cases not necessary to here notice. The Code of Criminal Procedure (article 101) also declares that “the county courts shall have appellate jurisdiction in criminal cases of which justices of the peace and other inferior tribunals have original jurisdiction.”

A consideration of these and other articles leads us to the conclusion that under our law a justice of the peace is not given jurisdiction over an offense not defined by the laws of the state, and that the appellate jurisdiction of the county court is limited by the Constitution to such cases only as justices’ courts may take original jurisdiction. We find no authority, and none has been cited, which would authorize a justice of the peace to entertain jurisdiction and, try an offender for a violation of an ordinance of a city which is not a violation of a state law, and which relates alone to some internal regulation of the city. Article 921 of the Revised Statutes and article 101 of the Code of Criminal Procedure, relating to appeals to the county court, should not be given the effect of enlarging the appellate jurisdiction of the county court as defined by the Constitution, unless the legislative purpose to do so is expressed or arises by necessary implication, and this we do not think is the case. These statutes, we think, when properly construed, are in harmony with the constitutional provisions. Article 921 of the Revised Statutes, which declares that “appeals from judgments rendered by such corporation courts shall be heard by the county court,” etc., does not declare that all cases tried by a recorder-may be appealed to the county court, nor undertake to define the character of ease that may be so appealed. It is certainly true that under the Constitution certain of the eases tried by a recorder’s court may be so appealed, for the recorder, as has already been seen (article 904) has been given jurisdiction to try, not only all criminal cases arising under an ordinance of the city, but also, concurrently with any justice of the peace, to try criminal cases of which the justice’s court has original jurisdiction, and to the latter class of cases alone article 921 should be held to apply. So article 101 of the Code of Criminal Procedure, already quoted, is in harmony with the jurisdiction of the county court as defined by the Constitution, for it is there said that the appellate jurisdiction of the' county court applies “in criminal cases of which the justice of the peace and other inferior tribunals have original jurisdiction.” That is to say, the appellate jurisdiction extends to criminal cases of which both a justice of the peace and the inferior tribunals have original jurisdiction. In case of recorders this is true only of misdemeanors of which a justice’s court has original jurisdiction.

»The view expressed also seems to be in harmony with other provisions of the statutes. Chapter 5, tit. 22, already referred to, provides (article 913) that all costs and fines imposed by the recorder’s court shall be paid in the city treasury of the city, town, or village, for its use and benefit. Article 836, c. 4, of the title confers authority upon the city council or board of aldermen to compel and force all offenders against any ordinance of the city found guilty by a recorder or mayor, and sentenced to a fine and imprisonment, to labor on the streets and alleys of the said city, or any public work, under such regulations as may, by ordinance, be established. The next article also confers authority upon the council to compel any person who may be convicted of a violation of any of the ordinances of the city, and who may have been committed to jail in default of payment of the fine and costs adjudged against him, to be hired out to any individual company, or corporation, within the county in which the conviction is had, for the purpose of paying off and discharging said fine and costs under such regulations as may be prescribed by ordinance, and to pass such ordinances as may be necessary to the regulation and enforcement of said contract of hire. These provisions are entirely distinct .from, and seem just as comprehensive as, similar provisions of the statute relating to county convicts over which commissioners’ courts have been given control, and by virtue of which the bond sued upon in this case was executed. See chapters 3 and 4, tit. 104, Revised Statutes 1911. In cases of county convicts fines and the proceeds derived from county convict bonds go to the county and not to the city. The implication is strong that the legislative purpose in thus providing separate regulations for the enforcement and collection of fines imposed in criminal cases was to enable a city, to the exclusion of the county, to appropriate to its own use fines imposed for a violation of its ordinances not defined as a misdemeanor under the state law. But little effect could be given to this purpose if in such cáses an appeal may be taken to the county court where the trial is de novo, and where the fine, if adjudged, goes to the county. See Revised Statutes, arts. 1421, 1423, 1438, 6253. Not only do the legislative provisions carefully define the respective rights of the city and county to fines, but it is also apparent that it was intended by expressly giving a right of appeal where the case is one over which a justice court has original jurisdiction to deprive the city of absolute or final control in matters of general concern denounced by a statutory law. A corresponding right of the city to independent control and supremacy in the enforcement of all lawful ordinances regulating its purely internal government would seem to be reasonable, and doubtless accounts for the failure of the Legislature to expressly confer the right of appeal in such cases. At all events, in the .absence of more explicit legislative expression, we feel unwilling, from the statutes -found, to imply a right of appeal in the class of city cases indicated, contrary, as we think, to the plain intendment of section 16, art. 5, of the Constitution.

The law provides, upon an appeal to the county court from a criminal case of which it has appellate jurisdiction, that the trial shall be de novo. The bond sued upon in this case was executed by virtue of the judgment of the county court as specified in the court’s conclusions, and «we are therefore of the opinion that the judgment of the county court is a nullity for want of jurisdiction, and that hence the bond sued upon in this case must fall, together with the judgment upon which it rests, for it will be accepted as true, we think, without the citation of authority, that a statutory bond given to secure an enlargement of the person from illegal restraint is nonenforceable. The trial court’s conclusions of fact are therefore adopted, but the judgment is reversed and judgment here rendered for appellants- in accordance with the foregoing opinion.

Reversed and rendered for appellants.


text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. STATE.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 22, 1913.
    Rehearing Denied Jan. 10, 1914.)
    1. Trial (§ 295) — Instructions—Construction — Action for Penalty.
    In an action by the state to recover a penalty from a railroad company for failing to keep the water-closet at its depot, and the grounds adjacent thereto, lighted at night, a charge Jveld, when construed as a whole, not erroneous as requiring defendant to keep lighted the toilet and grounds in the daytime as well as at night.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 703-717; Dec. Dig. § 295.]
    2. Appeal and Error (§ 742) — Assignments op Error — Propositions.
    Where propositions submitted under an assignment were not germane to the assignment, but raised entirely different questions, the assignment was properly overruled.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    3. Railroads (§ 254) — Operation—Action for Penalty.
    In an action by the state to recover from a railroad company the penalty prescribed for its failure to keep lighted the. water-closet at a depot, as required by Rev. Civ. St. 1911, art. 6593, the defense that it had made an honest effort to light it, but trespassers had destroyed the lights, should have been pleaded, that being matter in avoidance.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 764-772; Dec. Dig. § 254.]
    4. Railroads (§ 254) — Operation—Action for Penalty.
    Where, in an action by the state to recover from a railroad company the penalty prescribed for its failure to keep lighted the water-closet at a depot, as required by Rev. Civ. St. 1911, art. 6593, the evidence did not show the extent of the railroad’s efforts to maintain lights, or how many such lights were destroyed by trespassers, it was not error to refuse to peremptorily instruct for defendant if it had honestly tried to light the premises and trespassers had destroyed the lights. .
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 764r-772; Dee. Dig. § 254.]
    5. Railroads (§ 254) — Operation — Statutory Re&ulations — Action for Penalty.
    Evidence held to show that a railroad company did not keep its depot toilet and grounds adjacent thereto lighted, as required by Rev. Civ. St. 1911, art. 6593.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 764-772; Dec. Dig. § 254.]
    6. Railroads (§ 254) — Operation — Statutory Regulation-*-Action for Penalty.
    In an action by a state to recover from a railroad company the penalty prescribed for failing to keep lighted its depot toilet and grounds adjacent thereto, as required by Rev. St. 1911, art. 6593, it was no defense that, during a part of the time charged, the moon was shining.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 764-772; Dee. Dig. § 254.]
    Appeal from District Court, Montague County; C. F. Spencer, Judge.
    Action by the State, to recover a penalty against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    A. S. Coke, of Dallas, and John Speer, of Montague, for appellant. Paul Donald and W. W. Alcorn, both of Montague, for the State.

      Fo-r other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   SPEER, J.

This is an appeal by the Missouri, Kansas & Texas Railway Company of Texas from a judgment in favor of the state of Texas for a penalty for failure to keep the railroad company’s water-closet at the town of Belcher lighted in the nighttime, as required by article 6593, Revised Statutes, 1911.

The first assignment is that the court erred in the fourth paragraph of his charge for the reason under the terms of that paragraph it was necessary for the company to keep its water-closet well lighted in the daytime rather than at night alone, as required by law, and is more onerous upon defendant than required by law. The charge complained of is as follows: “Now if you find and believe from the evidence that the defendant, the Missouri, Kansas & Texas Railway Company of Texas, between the period of January 1, 1911, and June 24, 1912, operated a line of railway through Montague county and that it had its station and depot at Belcher, Tex., and that the schedule time of the arrival of its passenger train there was at any time in the night, and at said station and depot said passenger train stopped and received and discharged passengers, and that during said time they failed and neglected to maintain a water-closet or privy well lighted for a period of 30 minutes before and 30 minutes after schedule time of the arrival of its passenger train, then you will find in favor of the state the sum of $50 for each week said railway company so failed or neglected to keep such water-closet or privy well lighted for said period before and after schedule time for the arrival of its passenger train.”

In another paragraph, in defining the duty generally of the defendant, the jury were advised that railroad corporations are required to keep the water-closets and depot grounds adjacent thereto well lighted at such hours in the nighttime as its passengers and patrons of said station may have occasion to be in the same. The charge, when construed as a whole, leaves no reasonable room to doubt that the jury understood appellant was only required to light its water-closet and adjacent grounds in the nighttime. Besides, the propositions submitted under this assignment, which necessarily limit its scope to the questions of law presented in such proposition, are not germane to the assignment, but raise' entirely different questions to the one discussed. The assignment, therefore, is overruled.

There was no error in refusing to give the peremptory instruction ■ to find for the defendant upon the grounds stated in the second assignment, to wit, that it had made an honest effort to light its premises, and that trespassers had, from time to time, destroyed the lights. This defense, which was in the nature of an avoidance, was not pleaded, but if the excuse has been pleaded, the most that can be said of the evidence is that it raised such issue, but still was not so conclusive as to demand a summary instruction. The extent of the efforts of the company to maintain lights, or the number of lights broken, was not shown, and we cannot say that the failure of the appellant to maintain lights was due to vandalism or trespassing.

We also overrule assignments complaining that the evidence does not support the verdict. True, this is a penalty casé, yet the rule is that the plaintiff is entitled to recover upon a preponderance of the evidence, as in other civil cases. The testimony of the witnesses is to the effect that they visited the premises of the defendant company nearly every night during the period of time covered by the inquiry, and that no lights were maintained at or about the water-closet, and that, if there had been such lights, they could have been seen. While the witnesses do not undertake to testify as to every night during this period, yet their testimony fairly covers the entire time, and the .jury were authorized to find that no lights were maintained on those nights when the witnesses were not about the premises. There is no merit in the suggestion that during at least a part of the time for which the recovery has been had the moon shone, and there was therefore no necessity for lights about the water-closet. The Legislature, the members of which, of course, were cognizant of the fact that the moon shines periodically, have not made this a defense or an excuse against the requirements of the statute that the company, and not the moon, is required to light up the premises. Furthermore, unless the water-closet were a roofless one, it is difficult to see how the rays of the moon, however bright, would suffice to light the interior thereof.

There is no error in the judgment, and it is affirmed.


text:
    CROWELL INDEPENDENT SCHOOL DIST. v. FIRST NAT. BANK OF BENJAMIN.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 10, 1914.)
    1.Exceptions, Bill op (§ 4) —Matters Subject — Ruling on Plea op Privilege.
    The ruling of the trial court upon defendant’s plea of privilege, being a part of the record proper, could not, under rule 53 (142 S. W. xxi), governing procedure in the district and county courts, be shown by bill of exceptions, but must appear in the minutes.
    [Ed. Note. — For other cases, see Exceptions, Bill of, Cent. Dig. §§ 5, 6; Dec. Dig. § 4.]
    2. Schools and School Districts (§ 86)— Action Against School District — Petition.
    Since, under _ Rev. Civ. St. 1911, arts. 2850-2866, providing for the organization of school districts, article 2853 vests the trustees with full control of the schools, and article 2857 authorizes them to levy and collect an annual tax for the purchase, construction, and repair of buildings, the tax mentioned constitutes the only fund for the purposes stated, a petition against a school district to recover for the construction of buildings which failed to allege the levy of the tax or the existence of a fund was insufficient and the demurrer should have been sustained.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 203-205; Dec. Dig. § 86.]
    3. Appeal and Error (§ 193) — Review— Fundamental Error.
    Where the absence of the allegations in a petition was fundamental error, the fact that defendant in the lower court waived its demurrer was immaterial, and the question could nevertheless be raised on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1226-1238, 1240; Dec. Dig. § 193.]
    4.Schools and School Districts (§ 124)— Claims Against District — Enforcement op Judgment.
    A judgment against a school district cannot be enforced by execution; mandamus being the proper remedy.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 281; Dec. Dig. § 124.]
    Appeal from District Court, Knox County; Jo A. P. Dickson, Judge.
    Action by the First National Bank of Benjamin against the Crowell Independent School District. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    J. H. Milam, of Benjamin, and G. W. Walthall and Robert Cole, both of Crowell, for appellant. D. J. Brookreson, of Benjamin, for appellee.

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

   DUNKLIN, J.

The First National Bank of Benjamin recovered a judgment against the Crowell Independent School District and E. J. Rogers and W. F. Bisbee for $3,219.47, from which the Crowell Independent School District has appealed.

Appellant was alleged to be an independent school district of Foard county, and its trustees entered into a contract with Rogers & Bisbee, by the terms of which Rogers & Bis-bee, as contractors, agreed to build a schoolhouse in that district for an agreed consideration of $15,500. The contractors drew a draft upon the trustees in favor of appellee bank for the balance which they claimed to be due them under said contract and guaranteed the payment thereof, and the suit was to recover the amount so claimed.

The suit was instituted in the district court of Knox county, where Rogers & Bisbee resided, and under several assignments of error appellant complains of the court’s failure to sustain its plea of privilege to be sued in Foard county. None of these assignments cap. be considered for tbe reason that tbe only showing presented in the record "that the trial court overruled the plea is by bills of exception. The ruling upon the plea would at common law constitute a part of the record proper, and under rule 53 governing procedure in the district and county courts (142 S. W. xxi) the same could not be shown by a bill of exceptions, but must appear in the minutes of the court. Withers v. Crenshaw, 155 S. W. 1189.

Chapter 16, tit. 48, of the Revised Civil Statutes (1911), provides for the organization of independent school districts, for the election of a board of trustees, and defines the powers of the trustees. Article 2853 of that chapter reads as follows: “The trustees elected in accordance with the preceding article shall be vested with the full management and control of the free schools of such incorporated town or village, and shall in general be vested with all the powers, rights and duties in regard to the establishment and maintaining of free schools, including the powers and manner of taxation for free school purposes that are conferred by the laws of this state upon the council or board of aldermen of incorporated cities and towns.” By article 2857 the trustees are authorized to levy and collect “an annual ad valorem tax not to exceed twenty-five cents on the one hundred dollars for the purchase of sites and the purchasing, construction, repairing, or equipping public free school buildings within the limits of such incorporated district.” Taxes so raised constitute the only fund which could be used for the purposes stated. The petition filed by the plaintiff in this case contained no allegation that such a tax had been levied by the board of trustees, and no attempt is made in the petition to show any funds belonging to the Crowell Independent School District which would be subject to the payment of the debt for which this suit was instituted. In the absence of such a showing, the petition failed to state a cause of action against the appellant, and therefore the judgment must be reversed. Peek-Smead Co. v. City of Sherman, 26 Tex. Civ. App. 208, 63 S. W. 340; McNeal v. City of Waco, 89 Tex. 89, 33 S. W. 322; Noel v. City of San Antonio, 11 Tex. Civ. App. 580, 33 S. W. 263.

The appellee bank calls attention to the fact that the record does not show that a ruling by the trial court was invoked by appellant upon its general demurrer to the plaintiff's petition, and insist that the demurrer was therefore waived. This would make no difference, since the absence of allegations in the petition of the character above noted was fundamental error and can be raised in this court for the first time.

In view of another trial, we deem it proper to suggest that, even though it should be held that appellant is liable to the bank for the debt claimed, execution could not be awarded for the collection of the same as was decreed in the judgment from which this appeal was prosecuted. 28 Cye. 1773.

For the reasons noted, the judgment is reversed, and the cause remanded.


author: HABB, J.

text:
    PANELL v. FIRST NAT. BANK OF DICKENS.
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 24, 1914.)
    Fraudulent Conveyances (§ 308)— Question foe Juey.
    Where a chattel mortgage is alleged to have been executed in fraud of creditors, whether the conveyance was fraudulent is a question for the jury,, unless the fraudulent intent is apparent on the face of the instrument, or is admitted, or unless some interest, inconsistent with the conveyance, has been reserved.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 923-940; Dec. Dig. § 308.]
    Error to District Court, Dickens County; Jo. A. P. Dickson, Judge.
    Action by the First National Bank of Dickens against Calvin Panell. Judgment for plaintiff, and defendant brings error.
    Reversed and remanded.
    R. S. Holman, of Spur, and Dalton & Russell, of Plainview, for plaintiff in error. B. G. Worswick, of Dickens, and B. D. Glasgow, of Spur, for defendant in error.

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

   HABB, J.

September 23, 1911, J. N. Ballard executed his note, payable to defendant in error, in the sum of $986.63, stipulating for 10 per cent, interest and containing the usual provision for attorneys’ fees. On April 27, 1912, defendant in error filed this suit against Ballard, J. B. Baw, and the plaintiff in error, alleging that, when Ballard gave the note, he was solvent, and that after the execution thereof Ballard and Baw, with intent to defraud the bank, and placing Ballard’s property beyond the reach of his creditors, made two bills of sale conveying certain property not necessary to be described here; that Ballard on December 27, 1911, gave plaintiff in error a mortgage to secure a note for $1,600, payable to plaintiff in error, of even date with the mortgage, and due October 27, 1912; that said mortgage conveyed ten saddle horses and other personal property described therein; that, when plaintiff in error received the mortgage from Ballard, he knew of the fraudulent intent of Ballard; and that the mortgage was not bona fide, the debt which it was given to secure was fictitious, and that there was no consideration to support the mortgage. There was a prayer for writ of attachment which was issued and levied upon the property. Ranell was cited by publication and answered by general denial and specially that he was the legal and equitable owner and holder oí the note and mortgage, and that the note was due and unpaid, and prayed for Judgment against Ballard for foreclosure of the lien and against defendant in error for conversion of the mortgaged property, and set up the fact that the property had been sold and proceeds deposited in the registry of the court. Panell was not present at the trial and did not testify by deposition. Ballard testified that the debt represented by the note to Panell was not a fictitious debt but was given for services which had been rendered by Panell, at the request of Ballard, in caring for and attending Ballard’s insane father; there was also included in the note an amount representing money loaned by Panell to Ballard. Notwithstanding the fact that the case was tried before a jury, the learned trial judge instructed a verdict in favor of defendant in error. A judgment was rendered for the amount and decreed that the chattel mortgage from Ballard to Panell be set aside and held for naught as against the plaintiff, and that the proceeds of the sale of the property levied on and sold under the attachment be turned over to plaintiff (except $160 which was turned over to Ballard), foreclosing the attachment, and that the plaintiff in error take nothing by his suit. Neither Ballard nor Law have appealed, and the judgment is final as to them.

We think it is clear that the learned trial judge erred in peremptorily instructing the jury. The rule is that, where fraud is alleged in a conveyance, it is a question for the jury alone, unless the fraudulent intent is apparent upon the face of the instrument or admitted, or unless some interest inconsistent with the conveyance was reserved. The record discloses nothing of this kind. Van Hook v. Walton, 28 Tex. 59; Kruschell v. Anders, 26 S. W. 249; Briscoe v. Bronaugh, 1 Tex. 326, 46 Am. Dec. 108; Peiser & Co. v. Peticolas, 50 Tex. 638, 32 Am. Rep. 621; Van Bibber v. Mathis, 52 Tex. 406; Bailey v. Mills, 27 Tex. 434.

Because the court erred in peremptorily instructing the jury, the judgment is reversed, and the cause remanded.


author: MOTJRSUND, J.

text:
    INTERNATIONAL & G. N. RY. CO. v. BANDY.
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 28, 1914.)
    1. Railboads (§ 442) — Killing Animals— Action — Evidence — Settlements with Othebs.
    Evidence, in an action for the killing of a horse by a train, that animals of a third person had been killed by the train near there, and the company had always paid him therefor, is irrelevant and prejudicial.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1596-1607; Dec..Dig. § 442.]
    2. Railboads (§ 443) — Killing Animals— Negligence — Evidence.
    Evidence, in an action for the killing of a horse by a train at a place not required by law to be fenced, is insufficient to show negligence, where it is not shown when it got on the track, or whether its approach thereto was discoverable by those in charge of the engine in time to avoid the accident. . ‘
    [Ed. Note.-r-For other cases, see Railroads, Cent. Dig. §§ 1608-1620; Dec. Dig. § 443.]
    3. Teial (§ 252) — Killing Animals — Negligence — Stopping Tbain — Submission of Issue.
    The issue of negligence in not stopping the train, in an action, for the killing of a horse by a train, should not be submitted where no facts are shown on which negligence in not stopping it can be predicated.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    4. Railboads (§ 446) — Killing Animals— Negligence — Omission of Statutoby Signal.
    The killing of a horse by a train not being at a crossing, failure to give the statutory signal is not negligence per se.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1627-1641; Dec. Dig. § 446.]
    5. Tbial (§ 252) — Killing of Animals— Negligence — Omission of Signals — Submission of Issue.
    The submission of the issue of the killing of a horse by a train being caused by failure to ring the bell and sound the whistle is not justified, where there is no evidence that it was killed in such proximity to a crossing that failure to give the statutory signal could have any bearing on the question of negligence, or that it was on or approaching the track at a time when signals by bell and whistle would probably have availed to prevent the accident.
    [Ed. Note. — For other cases, see Trial, Cent Dig-. §§ 505, 596-612; Dec. Dig. § 252.]
    6. Trial (§ 241) — Instructions—Statutes.
    When it is proper for an instruction to refer to a statute, its provisions should be stated, and the jury informed as to what bearing they have on the case.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 562, 563; Dec. Dig. § 241.]
    Appeal from Frio County Court; Crawford Laxson, Judge.
    Action by J. E. Bandy against the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded for new trial.
    S. T. Phelps, of Pearsall, and Wilson, Dab-ney & King, of Houston, for appellant.

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

   MOTJRSUND, J.

Appellee SHed appellant in justice’s court, to recover $150 damages for the alleged negligent killing of a mare belonging to appellee, and recovered a judgment for said amount. An appeal having been taken to the county court, the trial in said court resulted in a verdict and judgment in favor of appellee for $150. No written pleadings were filed.

By the first assignment of error complaint is made of the admission of the testimony of the witness McFadden, to the effect that he had several animals killed by the train near the place where appellee’s mare was killed, and where the track was not fenced, and the railway company had always paid him for such animals. This testimony was irrelevant and prejudicial. The assignment is sustained. Railway v. Rowland, 82 Tex. 166, 18 S. W. 96.

The second assignment is based upon the refusal of a peremptory instruction to find for appellant because of insufficiency of evidence to show negligence; and by the fifth assignment the verdict is attached as unsupported by the evidence. The evidence, so far as it relates to, the issue of liability, briefly stated, was as follows: Between 5 and 6 o’clock in the morning, on November 3, 1912, one of appellant’s trains was seen to stop at a certain place near the depot, where the track was not required by law to be fenced, and later appellee’s mare was carried off on a push car by appellant’s section hands and buried. The witness who saw the mare buried testified that upon returning to the depot from the place where the mare was buried he saw a pool of fresh blood and some hair on the railway track about 40 steps north of the depot, and saw where an animal had been dragged. Another witness testified that he did not hear the train whistle. The testimony is insufficient to support a verdict. No one saw the mare alive before the train came up; but, conceding that the evidence shows she was killed by appellant’s train, still there is no evidence showing when she got upon the track, or whether “from the viewpoint of those in charge of the engine, her approach to the track was discoverable in time to have avoided the injury.” It may be that the mare tried to cross the track at a time when the train was so close that neither warning by whistle nor bell, or attempts to stop the train, could avail to prevent running over her. Railway v. Bennett, 126 S. W. 607; Railway v. Graham, 155 S. W. 653; Railway v. Bailey, 150 S. W. 962; Railway v. Conley, 142 S. W. 36, Railway v. Anson, 101 Tex. 198, 105 S. W. 989; Railway v. Mathews Bros., 158 S. W. 1048. The opinions in the cited cases are referred to for discussions of what is necessary to be proven when an animal is killed upon the track at a place not required by law to be fenced.

The court instructed the jury as follows: “If yon believe from the evidence that the train operated by the defendant, alleged to have killed plaintiff’s mare, could have been stopped by the exercise of ordinary care and prudence, before running over said mare, and that by reason of such neglect to stop said train the mare was run over and killed by said train, then the jury are instructed to find for the plaintiff to the amount of the value of the animal killed.” We do not know what issues were raised by the pleadings, but this charge submits incorrectly an issue not made by the evidence. There was no'evidence that the engineer saw, or could have seen, the mare on the track, or going upon the track, in time to have stopped the train before reaching her. Unless some facts are shown upon which negligence in failing to stop the train can be predicated, such issue should not be submitted. Railway v. York, 74 Tex. 364, 12 S. W. 68.

The court also instructed the jury as follows: “You are further instructed that, though you may believe from the evidence that plaintiff’s mare was killed by train of defendant, and that defendant failed to ring its bell or sound its whistle, as required by statute, this will not be enough on which to base a verdict for the plaintiff, unless the jury find that the killing of plaintiff’s mare was caused by reason of the neglect of defendant to ring its bell or sound its whistle. If you do not so believe, you will so state by your verdict and find for the defendant.” We find no testimony that the bell was not ringing, nor any evidence that the mare was killed at a crossing. Unless killed at a crossing, the failure to give statutory signals would not constitute negligence per se. Railway v. Mallard, 127 S. W. 1117; Railway v. Sanders, 101 Tex. 255, 106 S. W. 321; Railway v. Huegle, 158 S. W. 198. There was no evidence that the mare was killed in such proximity to a crossing that failure to ring the bell and sound the whistle could have had any bearing on the question of negligence, nor any testimony showing that the mare was upon the track or approaching the track at a time when the giving of signals by bell and whistle would probably have availed to prevent the killing of her. It is clear that the evidence did not justify the submission of the issue sought to be submitted. When it becomes proper to refer to the statute, the provisions thereof should be stated, and the jury informed what bearing the same have upon the case. The charge assumes that appellant was negligent if the signals were not given, and merely leaves it to the jury to decide whether such negligence caused the death of the mare.

The judgment is reversed; but, as the record justifies the conclusion that the case has not been fully developed, we will remand the same for another trial.