author: RICE, J.

text:
    WISE et al. v. JOHNSON.
    (No. 5825.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 14, 1917.)
    1. Banks and Banking, @=153 i— “General Deposit.”
    Where the contractor to build a schoolhouse deposited the completion payment therefor in one bank, giving a lumberman a check on the deposit, directing that the balance of the account be sent by the bank to another, and deposited therein to his credit, which was done, the contractor drawing cheeks on the second bank, the deposit in such second bank was not a special hut a general deposit.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, General Deposit.]
    2. Assignments @=>49 — Equitable Assignment by Drawing Checks.
    Where a contractor to erect a schoolhouse deposited the completion payment in bank, gave a lumberman furnishing material a check for part of the amount, and directed that the balance be sent by the bank and deposited to the contractor’s credit in another bank, which was done, after which the contractor drew various checks on such other bank for small amounts., telling each of the payees at the time of delivery to them that he had no money in the bank, but that he soon would collect money for building the schoolhouse and would deposit it in the bank, after which the payees could present their checks and get their money, there was no equitable assignment of the fund in the second bank to the payees.
    3. Jury <§=387 — Disqualification of Juror by Interest — Surety on Garnishment Rond.
    A juror who was one of the sureties on the garnishment bond executed by plaintiff had no such interest in the subject-matter of the litigation as to preclude him from serving on the jury; the suit involving plaintiff, defendant, garnishee, and several interveners.
    4. New Trial <®=53 — Failure to'Challenge — Presentation of Question op Ineligibility on Motion for New Trial.
    Having failed to challenge a juror for his interest in the subject-matter of the litigation, interveners could not first present the question of his ineligibility on motion for new trial.
    5. Courts <®=oll7 — Records — Constructive Notice — Bailing Garnishment Bond.
    Where the garnishment bond executed by a juror as one of the sureties was on file, inter-veners, contending that they did not know the fact that the juror was a surety until after the trial, must be held to have had constructive notice of the fact.
    6. Garnishment <©=3102 — Return on Writ— Conclusiveness.
    The return on the writ of garnishment showing that it was served upon an officer of the garnishee bank by a sheriff of the county is conclusive on interveners of the question who served the writ, in the absence of pleading raising the question that the writ was not in fact served by the sheriff, but by one interested in the judgment and not an officer of the county, the absence of motion made to abate or quash the writ on such account, and the absence of issue raised by charge or otherwise on the trial as to the correctness of the writ.
    Appeal from San Saba County Court; J. T. Hartley, Judge.
    Action by J. D. Johnson against R. E. Berry. There was judgment for plaintiff, who caused writ of garnishment to be issued against tbe First State Bank of Ricbland Springs, A. H. Wise and others intervening. From a judgment for plaintiff for the amount of his debt, directing that tbe balance of the money remaining in the bank after paying the debt should be placed to the credit of defendant, and that the interveners take nothing, they appeal.
    Judgment affirmed.
    Walker & Burleson, of San Saba, for appellants. Walters & Baker, of San Saba, for appellee.
   RICE, J.

Appellee, Johnson, recovered a judgment in the justice court, precinct No. 1, San Saba county, against R. E. Berry, and thereafter caused a writ of garnishment to be issued out of said cause against tbe First State Bank of Ricbland Springs. It appears from the answer of the bank that at tbe time the writ was served on it it was indebted to said Berry in tbe sum of $225.82, and prayed the court to determine to whom it should be paid. W. L. Rodgers, T. C. Taylor, J. J. Bodine, and T. H. Stewart intervened in the justice court by reason of an alleged assign- ' ment to them ‘ of that portion thereof represented by certain checks that Berry had given them prior to the issuance and service of the writ on the bank. After trial in the justice court the case was appealed to the county court, where A. J. Wise and Oscar Wise, doing business under the firm name of A. J. Wise & Son, intervened, claiming that Berry had also assigned them a portion of said fund as represented by tbe amount of a check that he had given them prior to the issuance and service of writ of garnishment on the bank. On trial in the county court judgment was rendered in favor of Johnson for the amount of his debt, interest, costs, and attorney’s fees, and directing that the balance of the money remaining in the bank after paying Johnson’s debt should be placed to tbe credit of Berry. Judgment was rendered that the interveners take nothing, from which judgment they have prosecuted this appeal.

It appears from the evidence, briefly outlined, that Berry some time prior to the issuance of tbe writ of garnishment had erected a certain schoolhouse for tbe Shiloh common school district, in San Saba county, for which said district became indebted to him on its completion in the sum of about $1,300 or $1,400, which sum he thereafter deposited in the San Saba National Bank, and against which he gave to a lumberman furnishing material therefor a check for the sum of $1,050, directing that the balance be sent by said bank and deposited to his credit in the First State Bank of Richland Springs, which was done, after which, and before the issuance of tbe writ of garnishment, he gave to the respective interveners checks thereon as follows: To W. L. Rodgers, on March 30th, check for $31.50; to T. O. Taylor, on April 3d a check for $59.40; to J. J. Bodine, on the 3d of April, a check for $41; to T. IT. Stewart a check for $12.15, dated April 4, 1916; and a check to A. J. Wise & Son, on the 20th of March, for the sum of $89.25 — -telling each of said parties at the time of delivery to them of their respective checks that he had no money in the First State Bank of Richland Springs but that he expected soon to collect this money for building the schoolhouse, when he would deposit it in the First State Bank of Richland Springs, after which they could present their checks and get their money. Before this was done, however, ap-pellee Johnson caused to be issued and served on the bank a writ of garnishment. The bank, through its cashier, had been notified by Berry that be bad given certain checks against it, without stating their amount, or to whom the checks had been given. Two other checks had been given to other parties for small amounts against the hank. Berry testified substantially that, had he received any money from any other source during the time these chects were outstanding, he would have deposited it to his credit in the hank, out of which he would have expected these checks to have been paid.

We think this was not a special, but a general, deposit, and unless the circumstances show an equitable assignment of the fund in question appellants are not entitled to recover. They insist, however, that the facts disclose an equitable assignment of this fund by Berry in their favor. We differ with appellants in this1 contention, and hold that they do not constitute such an assignment of this fund, for which reason the court did not err in overruling their second assignment. First State Bank of Aransas Pass v. Fuson, 185 S. W. 1042; First Nat. Bank of Rising Star v. Texas Moline Plow Co., 168 S. W. 420; Peters v. H. H. Hardin & Co., 168 S. W. 1035; Provine v. First Nat. Bank of Honey Grove, 180 S. W. 1107.

Nor do we think there is any merit in their insistence that the juror, Kuyken-dall, one of the sureties on the garnishment bond executed by Johnson, had any such interest in the subject-matter as to preclude him from serving upon the jury in this case. But granting that he had, having failed to challenge said juror, they could not first present the question of his ineligibility on motion for new trial. See Rice v. Dewberry, 93 S. W. 715; I. & G. N. Ry. Co. v. Woodward, 26 Tex. Civ. App. 389, 63 S. W. 1051; Tweedy v. Briggs, 31 Tex. 74. It is contended, however, by appellants that this fact was not known to them until after the trial. The bond was on file of which fact they must be held to have constructive notice. W.e, therefore, overrule the first assignment complaining of this matter.

The return on the writ of garnishment, which was offered in evidence, shows that it was served upon an officer of the bank by Hugh Miller, sheriff of the county. It is urged by appellants, for the first time in their motion for new trial, that the writ was not in fact served by the sheriff, but by one Gardner, who was interested in the judgment, and not an officer of the county, and evidence was offered sustaining such allegation on the presentation of their motion for new trial. There is no pleading, however, raising this question, or motion made to abate or quash the writ on this account, and no issue was raised by charge or otherwise on the trial as to the correctness' of such return. We hold, in the absence of such showing, that the return of the sheriff must be held conclusive of this question, and overrule appellants’ third assignment presenting the question. In Seinsheimer et al. v. Flanagan, 17 Tex. Civ. App. 427, 44 S. W. 30, it was held that:

“Where a garnishee voluntarily appears, and without objection submits the matter to the court, he cannot, on appeal, urge defects in the affidavit for garnishment, or in the sheriff’s return of the writ.”

And this doctrine, we. think must be held applicable to interveners herein, since they failed to raise the question on the trial by motion to quash or otherwise and waited to present it in their motion for new trial, notwithstanding the fact it appears they had knowledge thereof prior thereto.

Finding no error in the record, the judgment of the court below is in all things affirmed.
      É=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <g=3For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HIGGINS, J. WALTHALL, J.,

license: Public Domain

text:
    FIRST STATE BANK & TRUST CO. OF ABILENE v. OVERSHINER, County Judge, et al.
    (No. 797.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 27, 1917.
    Rehearing Denied Nov. 21, 1917.)
    1. Appeal and Error <®=>1199 — Powers of Trial Court astee Remand — Vacating Judgment.
    The trial court had power to set aside a void judgment, though it had been affirmed on appeal, where the questions raised as to the validity of the judgment were not passed upon on appeal, and in so doing would not transgress the judgment of affirmance or disregard the mandate of the Court of Civil Appeals.
    2. Appeal and Eeeoe €=5119*9 — Powees of Trial Court after Remand — Vacating Judgment.
    Where defendants moved to vacate a judgment and enjoin execution thereon and the abstract thereof, after the affirmance of the judgment, on the ground that it was void for reasons not passed upon on the appeal, and the trial court denied the motion, but temporarily suspended the judgment and stayed execution and abstract until the order denying the motion should become final by lapse of time or by af-firmance, such suspension did not transgress the judgment or disregard the mandate on the former appeal.
    Walthall, J., dissenting.
    Original mandamus proceeding by the First State Bank & Trust Company of Abilene, Tex., against B. M. Overshiner, judge of the county court of Taylor county, Tex., and others.
    Mandamus refused.
    D. M. Oldham and W. D. Girand, both of Abilene, for relator. Sayles & Sayles and Eugene De Bogory, all of Abilene, for respondents.
   Statement of Case.

HIGGINS, J.

On January 1, 1916, in cause No. 3806, a judgment was rendered in the county court of Taylor county in favor of the First State Bank & Trust Company of Abilene, Tex., alleged to be a private corporation, against the defendants John Sayles, J. B. Knox, H. J. Bradshaw, and T. F. Scott, for the sum of $1,190.33, with interest and costs. From this judgment the defendants perfected an appeal to the Court of Civil Appeals for the Second Supreme Judicial District, in which district Taylor county is situate. Thereafter the appeal was transferred to this, the Eighth Supreme Judicial District, such transfer being made in accordance with an order to that effect made by the Supreme Court of the state. Thereafter the cause was submitted in this court, and the judgment of the lower court affirmed. Motion for rehearing was filed and overruled. The mandate of this court was then, issued and filed in the court below. Thereafter, on June 9, 1917, the defendants Sayles and Knox (and the sureties upon their appeal bond against whom judgment also had been rendered upon said affirmance) filed in the county court of Taylor county a motion in said cause, averring that the judgment and all proceedings therein were nullities, because of the following facts:

“Prior to the institution of this purported suit and continuously since,-there was, has been, and is no entity or being, natural or artificial, in fact or in law, named in the proceedings and purpoi-ted judgment in this purported cause as the plaintiff.”

The motion concluded with this prayer:

“Wherefore the said Sayles and Knox, styled defendants in this purported cause and -their said sureties on said purported supersedeas bond respectfully move and pray the court to vacate, set aside, and hold for naught said purported judgment and proceedings and dismiss and strike this purported cause from the docket of this court and adjudge all costs of this purported proceeding against the sureties on the cost bond of the purported plaintiff, and that pending final judgment on this motion the court order that no execution issue on said null and void purported judgment or under said null and void purported supersedeas bond and for general and equitable relief.”

Upon the foregoing motion thq court on June 11, 1917, entered this order:

“It is therefore ordered, adjudged, and decreed by the court that the issuance and levy of execution in this cause and the issuance and filing and recording of an abstract of the judgment heretofore rendered in this cause be and the same is hereby stayed until ten ■ days after the date of this order unless hereafter ordered to the contrary.”

On June 16, 1917, D. M. Oldham, Jr., an attorney qf the Taylor county bar, as amicus curiae, filed' an instrument voluntarily informing the court with reference to the foregoing motion and order, and called the attention of the court to alleged errors of law into which it- had fallen in considering or hearing said motion and in making the foregoing order. Thereafter, an amended motion was filed by Sayles, Knox, and said sureties, which reads:

“Under leave of the court this amended motion and petition for injunction is filed in lieu of the motion heretofore filed in this proceeding on June 9, 1917, to vacate the void judgment heretofore rendered in this proceeding.
“Now come John Sayles and J. B. Knox, styled defendants in the above entitled and numbered proceeding, and their sureties on the purported supersedeas bond heretofore filed in this proceeding, namely, Mac Sayles, Thos. Sayles, W. A. Curry, and A. H. Curry, hereinafter called applicants, all of - whom reside in Taylor county, Tex., except-applicant Mac .Sayles, who resides in Reeves county, Tex., and complain of the void judgment heretofore rendered in this proceeding shown by the minutes of this court, and complain of D. M. Oldham, Jr., and W. D. Girand, who reside in Taylor county, Tex., and who are attorneys of record for the purported plaintiff, the Eirst State Bank & Trust Company of Abilene, Tex., an extinct, dead, and fictitious person, and complain of the sureties on the cost bond filed herein of said extinct, dead, and fictitious plaintiff, whose names are unknown to applicants, but are shown by the records of this court, and who reside in Taylor county, Tex., and complain of J. D. Hilton, who resides in Taylor county, Tex., and as county clerk of Taylor county, Tex., and complain of J. T. Dodson, who resides in Taylor county, Tex., as sheriff of Taylor county, Tex., and complain of T. E. Scott and H. J. Bradshaw and J. C. Russell, who reside in Taylor county, Tex., all of whom are hereinafter called respondents, and respectfully show to the court:
“That prior to the institution in this court of this purported suit by the then extinct, dead, and fictitious plaintiff, the Eirst State Bank & Trust Company of Abilene, Tex., on September 17, 1915, applicants John Sayles and J. B. Knox and respondents T. F. Scott and H. J. Bradshaw, executed two purported promissory notes (for which respondent Russell was liable to the same extent as a signer thereof) payable to the order of the Commercial National Bank of Abilene, Tex., and on which purported notes the court rendered the void judgment complained of.
“That some time prior to the filing of the purported plaintiff’s petition and the institution of this sham and mock suit on September 17, 1915, there was a person existing by the name of the First State Bank & Trust Company of Abilene, Tex., a banking and trust company corporation under the laws of Texa-s (although such person at the time of the institution of this sham suit was extinct, dead, and fictitious), who acquired said purported notes, but said Commercial National Bank of Abilene, Tex., never indorsed same. .Said First State Bank & Trust Company transferred or assigned said notes prior to its extinction or death.
“However, prior to the institution of this mock and sham suit, the fictitious plaintiff, the First State Bank & Trust Company of Abilene, Tex., was extinct and dead, and the respondent Oldham, who prepared and filed the purported plaintiff’s petition in this mock suit as attorney of record, participated in the extinction and death of said person, the First State Bank & Trust Company of Abilene, Tex., and the said Oldham was during the trial and appeal of this mock suit, and is now, attorney of record for the fictitious, extinct, and dead plaintiff, and well knew that this purported suit and appeal thereof were a mock and a sham.
“That the First State Bank & Trust Company of Abilene, Tex., was incorporated ‘as a banking and trust company under title 14 of the Revised Statutes of Texas, and was not dissolved under the provisions of title 25, e. 10, arts. 1205, 1206, et seq. of the Revised Statutes of Texas, and could not be dissolved under such provisions, in that such provisions do not relate to banking and trust companies organized under title 1.4 of the Revised Statutes of Texas, but such provisions relate to other and different corporations. That said First State Bank & Trust Company had no 'business to wind up or close at the time of its extinction and death. That at the time said First State Bank & Trust Company of Abilene, Tex., became extinct and dead, it was solvent and was not dissolved under the provisions of title 14, c. 3, art. 453 et seq. of the Revised Statutes of Texas. That the First State Bank & Trust Company could have been, ' but' was not, dissolved under the provisions of title 14, c. 61, art. 561 et seq. of the Revised Statutes of Texas; but, on the other hand, it became extinct and dead and had no business to wind up..
“That by action of said Oldham and others, said First State Bank & Trust Company of Abilene, Tex., became extinct and dead prior to the filing of this sham suit, under the provisions of title 14, c. 5, art. 446 of the Bevised Statutes of Texas.
“That prior to the filing of this sham suit, the First 'State Bank & Trust Company of Abilene, Tex., had no charter, had no existence, real or artificial, had no assets or liabilities, had no franchise, had no name, had no stock, stockholders, directors, officers, agents, business, or property, and was totally extinct and dead, and in all such matters the said Oldham who filed and prosecuted this sham suit and the appeal thereof for said extinct and dead person as attorney of record participated.
“That the said First State Bank & Trust Company of Abilene, Tex., is a person within the meaning of subdivision 2, art. 5504, of the Bevised Statutes of Texas (171 S. W. 1021), and as such was extinct and dead at the institution of this sham suit.
“That B. S. art. 1827 requires ‘the petition shall set forth clearly the names of the parties and their residences, if known,’ but the said Old-ham did not do so, and, on the other hand, he named a dead, extinct, and fictitious person as plaintiff. That said provision requires that the plaintiff be a real person, natural or artificial (41 S. W. 102); but no real person, natural or artificial, was named in said petition or in said void judgment as plaintiff.
“That if said extinct, dead, and fictitious plaintiff had existed at the time of the institution of this sham suit as a natural person, as a partnership, as an association unincorporated or as a corporation not duly incorporated, this sham suit might have been maintained, if the defendants therein were required to plead in abatement ‘that the plaintiff alleged in the petition to be duly incorporated is not duly incorporated’ (B. S. art. 1906, subd. 7), but at 'the institution of this sham suit and continuously since, the extinct, dead, and fictitious plaintiff was not incorporated at all, much less duly incorporated. That said provision of the state applies only when there is a real person, either natural or artificial as plaintiff, and does not apply in the absence of a real person, nat-urál or artificial, and does not apply when an extinct, dead, and fictitious person is named as plaintiff (97 Am. Dec. 510; 23 S. W. 288), and that it did not, and does not, apply to this mock suit, and that said judgment is void.
“That said sham judgment is void a quo, and should be vacated and held for naught and enjoined by this court which rendered said void judgment and by no other court (23 Tex. 105; 9 Tex. 313; 58 Tex. 554; 29 S. W. 1063).
“That said Oldham and Girand have directed the said Hilton, as clerk of this court, to issue execution on said void judgment, against your applicants, and such execution is issued, and is now held by said Dodson as sheriff of Taylor county, Tex., and the said Oldham and Girand have directed the said Dodson as sheriff aforesaid to levy and otherwise execute said execution, and the said Dodson as sheriff aforesaid is about to do so.
“That if voluntáry or forced payment of said void judgment should be made, no one would be authorized to receive or receipt for payment, in that the purported plaintiff is extinct, dead, and fictitious, and the real person,- natural or artificial, who holds said purported notes would not be prevented from endeavoring to collect said purported notes.
“That if execution is issued and levied upon said void judgment on the real or personal property of the applicants, or either of them (applicants possessing in Taylor county, Tex., real and personal property subject to execution in excess of the amount of said void judgment), such execution will cast a cloud on applicants’ title to said property, and your applicants will suffer irreparable injury; your applicants being without ah adequate remedy at law. That said void judgment now amounts to the sum of $1,-190.33, with interest thereon from January 1, 1916, at 10 per cent, per annum and $50.25 costs of suit.
“That said Oldham and Girand have directed said Hilton, as clerk of this court and as county clerk of Taylor county, Tex., to issue, file, record, and index an abstract of said void judgment, and the said Hilton is about to do so. That your applicants possess many tracts of land in Taylor county, Tex., not their homesteads, and that the issuance, filing, recording and indexing of an abstract of said void judgment will cast a cloud upon applicants’ title to said real estate which exceeds in value the amount of said void judgment, and your applicants will suffer irreparable injury and have no adequate remedy at law. That if said void judgment is abstracted, no one can release same.
“Your applicants show further that their original motion to vacate said void judgment was filed in this court on June 9, 1917, and entered on the motion docket of said court, and a copy thereof was delivered by mail to said D. M. Oldham, Jr., attorney of record for the purported plaintiff the First State Bank & Trust Company of Abilene, Tex., same having been mailed at Abilene, Tex., June 9, 1917, addressed to said Oldham at Abilene, Tex., where he resides. That on June 13, 1917, the clerk of this court issued notice of said original motion directed to the sheriff of any constable of Taylor county, Tex., directing the delivery of a. copy of such notice to the First State Bank & Trust Company of Abilene, Tex., and that the sheriff of Taylor county, Tex., has returned said notice not executed for the reason that he could not find the First State Bank & Trust Company of Abilene, Tex. That the purported plaintiff, the First State Bank & Trust 'Company of Abilene, Tex., is apparently now without an attorney, in that the said D. M. Oldham, Jr., filed in this proceeding, on June 16, 19Í7, a paper signed by him as ‘amicus curias,’ wherein he says in part: ‘Comes now D. M. Oldham, Jr., an attorney of this bar, legally authorized and practicing in and before this honorable county court, and files this instrument and suggestion to this court, as an amicus curise to the court, and in no way appearing for or on behalf of the plaintiff First State Bank & Trust Company, but appears solely as'an attorney of this bar and volunteers the following information to this court, with reference to the above causé.’ This motion and application is also a replication to -said paper.
“Wherefore your applicants pray that due notice be given of this motion to vacate said judgment and • petition or application for injunction, and that the issuance and levy of execution under said void judgment against your applicants, or either of them, and that the issuance, filing, recording, and indexing of an abstract of said void judgment be now temporarily enjoined, and that the respondents, and each of them, their agents, attorneys, and successors in office, be now temporarily enjoined from doing any act or thing relating to the issuance and levy of such an execution or the issuance, filing, recording, and indexing of such an abstract of judgment, and that this motion and petition be now set down by the court for final hearing, and that on final hearing said void judgment be vacated and held for naught, and said temporary injunction prayed for be made perpetual; that the court order and adjudge that the sureties on the cost bond of the extinct, dead, and .fictitious plaintiff, the First State Bank & Trust Company of Abilene, Tex., and the respondents, jointly and severally, pay all costs of this sham suit as well as costs on motion to vacate said void judgment, and enjoining execution thereon and abstract thereof (applicants showing in this connection that applicant Sayles has diligently searched with the clerk of this court for said-cost bond, but same was not found and the names of said sureties cannot now be given); and applicants pray for such further and other relief, special and general, legal and equitable, that they may be justly entitled to.”

On June 18, 1917, the amended motion and suggestions of the amicus curiae were considered by the court and the following order entered:

“It is therefore ordered, adjudged, and decreed by the court that said motion of John Sayles, J. B. Knox, Mac Sayles, Thos. Sayles, W. A. Curry and A. H. Ourry, applicants, be in all things overruled and refused, and that the temporary injunction prayed for be in all things refused, and that said motion to vacate and hold for naught the judgment heretofore rendered in this cause in favor of the First State Bank & Trust Company of Abilene, Tex., and petition to enjoin the execution and abstract thereof be in all things denied; but it is further ordered, adjudged, and decreed that this judgment, decree, and order be suspended until this order, judgment, and decree oven-uling, refusing and denying said motion and petition for injunction and temporary injunction become final by lapse of time or by affirmance on appeal, and until same becomes final execution and abstract of said judgment heretofore rendered in this cause in favor of the First State Bank & Trust Company of Abilene, Tex., shall be stayed. It is further ordered that said applicants pay all costs expended in behalf of said motion to vacate judgment and petition for injunction.
“To all of which the applicants then and there in open court excepted and gave notice of appeal to our Court of Civil Appeals for the Second Supreme Judicial District of Texas at Ft. Worth, Tarrant county, Tex.”

Thereupon the First 'State Bank & Trust Company of Abilene, Tex., on June 22, 1917, filed in this court a petition for mandamus against Hon. E. M. Overshiner, judge of the county court of Taylor county, and Hon. J. D. Hilton, clerk of said county court, to require them to obey the mandate of this court issued upon the affirmance of said cause No. 3806.

The respondents have answered by a plea to the jurisdiction of this court, setting up that the county court'of Taylor county has jurisdiction to determine whether the judgment entered in said cause No. 3806 is void, and that an appeal from its decision upon that question lies to the Court of Civil Appeals of the Second Supreme Judicial District, and not to this, the Eighth Supreme Judicial District.

Opinion.

It will be noted that the relief sought by Sayles et al., in the motion filed by them in the county court of Taylor county is based upon the contention that the judgment rendered January 1,1916, in said cause No. 3806, is void. If that judgment be void, then that court has the authority to set it aside. Munson v. Newson, 9 Tex. 109; Dazey v. Pennington, 10 Tex. Civ. App. 326, 31 S. W. 312, Heath v. Layne, 62 Tex. 686; Milam County v. Robertson, 47 Tex. 222; Nunez v. MeElroy, 184 S. W. 531; Chambers v. Hodges, 3 Tex. 517; Burke v. Mathews, 37 Tex. 73; Burr v. Lewis, 6 Tex. 76. The cited cases hold that the trial court has the right to set aside a judgment of its own which is a nullity. It is also true, if that judgment was void, that the judgment of affirmance of this court would also be a nullity, and would impart no vitality to the judgment so affirmed. Chambers v. Hodges, 23 Tex. 104; Robinson v. State, 87 Tex. 562, 29 S. W. 649; Gille v. Emmons, 58 Kan. 118, 48 Pac. 569, 62 Am. St. Rep. 609; Land Co. v. Maddux, 109 Cal. 633, 42 Pac. 295, 50 Am. St. Rep. 67.

The question presented by Sayles et al. in their motion to set aside the judgment in cause No. 3806 was not raised upon the original appeal. Our opinion and judgment of affirmance in no wise passes upon or concludes the merits of that question. In that respect this petition for mandamus differs from Kendall v. Mather, 48 Tex. 585, cited by relator. If the question presented by the motion had been directly or by necessary implication adjudicated upon the appeal in cause No. 3806, then the judgment of affirmance of this court would have concluded that question, and the trial court would have had no authority to reopen the same. Any attempt so to do would have been in disregard of the judgment of this court, and could have been controlled by mandamus issued by this court. Kendall v. Mather would have been applicable. On the first appeal of Kendall v. Mather, supra, the judgment in question was in effect held to be valid, and upon the-second appeal it was held that the trial court • must abide by that holding. In Wells v. Littlefield, 62 Tex. 28, the court had reversed and remanded the case, with instructions. The trial court failed to obey the instructions, and it was held that mandamus would lie to compel the observance of the same. The inapplicability of that case to the question here presented is apparent.

If it be the law that the trial court has the authority to set aside a judgment which, is a nullity, notwithstanding it has been affirmed upon appeal, and the authorities first cited seem definitely to so hold, then it must follow that an order by the trial court setting aside such a judgment, is not in violation of the judgment of affirmance by the appellate court, and that a writ of mandamus will not lie from the appellate court to enforce its-mandate. An exception to this conclusion would probably exist where the validity of the judgment had been passed upon by the appellate court and the judgment upheld as in Kendall v. Mather, supra. Since the question of the nullity of the judgment in cause No. 3806 was not presented upon the appeal in that case, the judgment of affirmance did not conclude the same. It is an open one, and the county court of Taylor county has authority to pass upon it, and in so doing it will not transgress the judgment of affirmance of this court, and will not be in disregard of the mandate of this court, and unless it does transgress our judgment and disregard our mandate, tlie .writ of mandamus will not lie. Now, if an order absolutely, setting the judgment aside as null and void would not transgress the judgment of this court and be in disregard of its mandate, neither would an order temporarily suspending the judgment and staying execution thereon and abstract thereof (which is the order complained of by relator) transgress our judgment and be in disregard of our mandate.

In a suit to set aside a judgment asserted to be a nullity, it is almost always proper, in order to maintain the statu quo, that the plaintiffs in the judgment be temporarily enjoined from enforcing the same, until the validity of the judgment has been established. If the court below had temporarily enjoined the relators from enforcing the judgment in cause No. 3806 until the issue of its validity had been determined, this the majority hold would not be in disregard of our judgment of affirmance. The respondents asked for a temporary injunction, and this the court in terms refused, but in effect gave the same relief by suspending the judgment. In effect the order operates as a temporary injunction and we will regard its substance and effect rather than the form thereof.

We express no opinion upon the merits of the motion filed by respondents nor as to the correctness of the" order entered, nor as to whether an appeal would lié from the order entered, but simply hold that such order does not transgress the judgment of affirmance of this court and is not in disregard of its mandate, for which reason the writ of mandamus should be refused.

WALTHALL, J.,

dissents from the views herein expressed, and is of the opinion that the writ should be granted.

. Mandamus refused.
      <§=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    SOUTHERN TRACTION CO. v. ELLIS.
    (No. 5801.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 17, 1917.
    Rehearing Denied Dec. 5, 1917.)
    1. Appeal and Error @=>882(8) — Evidence Secured by Appeal — Reveesible Error.
    An assignment relating to evidence drawn out by appellant, and not of such a nature as to probably result in injury to him, presents no ground for reversal on his appeal.
    2. Carriers @=>321(12) — Interurban Lines— Collision — Instructions.
    In an action for injury sustained by plaintiff’s wife, a passenger in a collision between two interurban ears on defendant’s road, an instruction that the jury must believe that a reasonably prudent person would have anticipated the injury to the wife as alleged was properly refused; the correct rule being that the wrongdoer is liable, if he could have foreseen that any personal injury might result, although he could not have foreseen the particular injury complained of.
    3. Appeal and Error @=>742(5) — Assignments op Error — Questions Not Germane.
    Under an assignment complaining of court’s charge as to measure of damages, propositions as to negligence were not germane.
    4. Trial @=>255(11) — Submission op Issues— Waiver.
    Conceding that defendant was entitled to have the question of negligence submitted, he waived such right when he did not request the court to give an instruction upon that subject and except to the action of the court in refusing to do so.
    5. Trial @=3280 — Submission op Issues — Affirmative Error.
    If defendant had the right to have the jury pass on the question of its alleged negligence, the failure to submit that question constituted no ground of .objection to a special issue as to damages.
    6. Appeal and Error @=>882(9) — Harmless Error — Cross-Examination — Irrelevant Matters.
    In suit by plaintiff for injuries to his wife, defendant, who introduced testimony showing that the wife’s eyesight was defective, cannot complain that cross-examination of witness up-, on the subject was permitted.
    7. Damages @=3132(1) — Excessive Damages— Setting Aside.
    The undisputed evidence showing that severe injuries were sustained by a passenger in the collision, a verdict for $5,000 for such injuries is not so large as to warrant the appellate court in setting it aside or require a remittitur.
    Appeal from District Court, McLennan County.
    Action by Dee C. Ellis against tbe Southern Traction Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Nat Harris and Allan D. Sanford, both of Waco, . for appellant. Alva Bryan and W. IT. Stewart, both of Waco, for appellee.
   KEY, C. J.

This appeal is prosecuted by appellant from a judgment in favor of ap-pellee for damages on account of injuries alleged to have been sustained by appellee’s wife while a passenger on one of appellant’s interurban cars running between Dallas and Waco, Tex. The undisputed proof shows that a head-on collision occurred between two cars on appellant’s road; that appellee’s wife was a passenger on one of the cars, and as a result of the collision sustained serious injuries.

In the charge to the jury the trial court charged properly upon the burden of proof, etc., and gave the following instructions, which are complained of under several assignments in appellant’s brief:

“(2) Bearing the above definition in mind, you will answer tbe following special issue: Special Issue No. 1. What amount, if any, if paid now will be a fair and just compensation to plaintiff for the injuries, if any, sustained by his wife as the proximate result of the collision in question?
“(3) In this connection, you are instructed that you may take into consideration as elements of damage the nature and character of the injuries, if any, sustained by plaintiff’s wife, whether permanent or otherwise; physical and mental pain, if any, suffered or that will probably be suffered by plaintiff’s said wife in tbe future; such reasonable and necessary amount or amounts, if
any, as you may believe from the evidence to have been incurred by plaintiff for services of physicians, dentists, and for medicines, as the proximate, result of such injuries, if any.”

The first, second, third, and sixth assignments of error complain of the refusal of the trial court to give certain requested instructions directing the jury not to consider certain allegations in plaintiff’s petition in passing upon special issue No. 1, which was the only question submitted by the court to the jury. The contention is that there was no evidence tending to prove the injuries alleged in the specified paragraphs of appellee’s petition.

We cannot sanction that contention, because, in our opinion, there was testimony tending to support the averments referred to.

The fourth and fifth assignments in appellant’s brief were abandoned in oral argument.

The seventh assignment relates to evidence drawn out by appellant, and not of such a nature as probably resulted in injury to appellant, and therefore that assignment presents no ground for reversal.

The eighth assignment relates to the refusal of the court to give an instruction requested by appellant, telling the jury that, before they could find a verdict for the plaintiff, they must believe from the testimony that a reasonably prudent person, in view of all the facts, would have anticipated that the plaintiff’s wife would have suffered the injuries alleged in the plaintiff’s petition.

That instruction was properly refused, as the rule of law sought to be covered by it does not require that the proof shall show that a reasonably prudent person would have anticipated the specific injuries alleg'ed to have resulted from the wrong complained of. The rule is that the wrongdoer is responsible when the injuries complained of are the natural and probable result of the wrong, although such wrongdoer could not foresee that those particular injuries would result, if he could have foreseen that any personal injury might result.

The requested instruction, the refusal of which .is complained of in the ninth assignment, was properly refused, because it was ambiguous, confusing, and argumentative. In fact, the language there used, while it might have found a proper place in argument by counsel to the jury, should not have been incorporated in the charge of the court.

The tenth assignment complains of the third paragraph of the court’s charge as copied above. The only proposition submitted under that assignment asserts that the court should determine the issues that are made by the pleadings and evidence and distinctly present them to the jury, and instruct that body to consider only such issues. The correctness of that proposition may be conceded, but we hold that the court’s charge is in substantial compliance therewith. At any rate, appellant has not pointed out any positive or affirmative error in the court’s charge, nor complained of the-refusal of the court to give requested instructions supplying material omissions.

The eleventh assignment complains of special issue No. 1 contained in the charge of the court. The assignment does not point out any specific objection to the paragraph' of the charge referred to, and the two propositions submitted under that assignment assert: First, that one suing for damages resulting from negligence cannot recover on the grounds of negligence not alleged in the-petition; and, second, that where the petition alleges that the injury was the result of negligence, and thereafter sets up specific-acts of negligence, recovery will be confined to the specific acts of negligence alleged, and the allegations of general negligence cannot thereafter be considered, and the failure of the court to restrict the jury to the specific allegations alleged is reversible erfor. Neither of these propositions is germane to the-assignment of error. That assignment complains of the court’s charge relating to the measure of damages, and in no wise dealing with the question of negligence.

In replying to that assignment, counsel for appellee invoke the general rule that, when an injury results from collision between two trains or cars, negligence is presumed as a matter of - law, and the question need not be submitted to the jury. The trial court seems to have tried this case upon that theory, as no question of negligence was submitted to the jury; and, if the plaintiff had not pleaded specific acts of negligence on the part of the defendant, the rule referred to would be applicable. M., K. & T. Ry. v. Thomas, 132 S. W. 974. But, if it be conceded that appellant was entitled to have the question of negligence submitted to the jury, it must be held 'that it waived that right when it did not request the court to give an instruction properly framed upon that subject, and except to the action of the court in refusing to do so.

Appellant filed written objections to the-court’s charge, but the one copied in its brief as pertinent to the assignment under consideration was an exception to special issue No. 1, which, as above stated, related to the measure of damages, and not to the question of negligence. The objection was that special issue No. 1 ignored the fact that the plaintiff had alleged certain specific acts of negligence as being the proximate cause of the injuries, and it was proper and right that tire question of defendant’s liability be submitted to the jury for its determination. If it be conceded that appellant had the right to have the jury pass upon the question of its alleged negligence, still the failure of the court to submit that question to the jury constituted no ground of objection to special issue No. 1. As the court was submitting the case upon special issues, if the question of negligence had. been submitted, it should have been done separately and apart from special issue No. 1, and the finding of the jury upon either should have had no bearing upon the finding upon the other. The failure of the court to submit to the jury the question of negligence was an omission which did not constitute affirmative error, and did not in any wise affect the correctness of special issue No. 1 relating to the measure of damages.

The twelfth assignment relates' to the action of the trial court in not excluding certain testimony given by Dr. Sehenck, as to the condition of Mrs. Ellis’s eyesight. Mrs. Ellis testified that since the injury complained of she had suffered a great deal with headache, and Dr. Sehenck seems to have been placed on the stand by appellant for the purpose of showing tnat her headaches may have been caused by the condition of her eyes, as to which no injury had been alleged by the plaintiff. Dr. Sehenck testified, on direct examination by appellant, that he examined her eyes to determine whether there was any defect in the vision; that he discovered such defect; and, in substance, that a very marked defect in vision may produce a headache in sensitive people who are doing a great deal of eye work. On cross-examination the witness testified over appellant’s objection as follows:

“Q. Dr. Sehenck, the trouble you found with the sight (meaning the eyesight of plaintiff’s wife), could you determine from your examination how long that condition had prevailed? A. X would presume that that condition had been present for an indefinite period óf time, several years at least, because refractory air is due to the abnormal shape of the eyeball. Q. Is there any scientific way by which you can determine just the extent of time that that vision has been affected? A. I think not. Q. You cannot tell (you) that, can you? A. Unless it is the result of an injury.”

On redirect examination, he said:

“Of course, defective vision might be due to an injury. I do not know whether the defect in the vision of Mrs. Ellis dated from the time of the accident or not. I did find a defective vision.”

On recross-examinatihn, he testified:

“I made no statement with reference to injury to the eyes. An injury to the eye has never manifested itself. There was a defect in vision. I have referred to the defect of vision being present. I did say that I did not know when that manifested itself. I do not know whether it dated from the time of the accident, or some other time.”

Appellant objected to the testimony of Dr. Sehenck as elicited by the cross-examination, upon the ground that there was no pleading that raised the issue of injury to Mrs. Ellis’s eyesight, and therefore any evidence with reference to her eyesight was immaterial, irrelevant, and prejudicial; which objection the court overruled.

As shown by the foregoing statement, appellant and not appellee introduced the testimony showing the defective eyesight, and therefore appellant had no right to complain because the court permitted appellee to cross-examine the witness upon that subject. If it had been shown that counsel for appellee in argument to the jury asked for any compensation for injury to Mrs. Ellis’s eye, or if complaint was made of the refusal of the court to give a requested instruction directing the jury not to allow such compensation, a different question would be presented.

The thirteenth assignment is predicated upon certain language used by appellee’s counsel in the closing argument to the jury. If the language referred to impinges upon the rules invoked (which, however, we do not hold), it was not such a flagrant violation as entitles appellant to have the case reversed.

The fourteenth .and last assignment charges that the verdict for $5,000 damages is excessive. We have considered the testimony bearing upon that question, and, without undertaking to discuss it, have reached the conclusion that the verdict is not so large as to justify this court in setting it aside, or requiring a remittitur.

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

Affirmed.
      <5S=3For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    DAUGHERTY v. DAUGHERTY.
    (No. 7807.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 10, 1917.)
    1. Appeal and Error <⅜=>1032(1) — Failure to File Conclusions op Daw and Fact.
    Ordinarily failure of the trial judge to file his conclusions of law and fact where proper request is made is ground for reversal, unless the record shows that the failure resulted in no injury to appellant.
    2. Divorce <§=»184(12) — Harmless Error — Failure to File Conclusions op Law and Fact.
    In a wife’s divorce suit, where the statement of facts showed defendant husband was insane while the parties lived separate and apart, and was hopelessly insane at the time of trial, the court could legally only render verdict denying the petition, and its failure to file conclusions of law and fact, though requested, was harmless to the appellant wife.
    3. Divorce (®=»23 — Insanity—Statute.
    Rev. St. 1911, art. 4632, as amended by Acts 33d Leg. c. 97 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4632), providing that the act relative to divorce shall not apply to any case where either the husband or wife is insane, is an absolute prohibition against the granting of divorce in any case where either party is insane, no matter upon what ground the divorce is sought.
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    . Suit for divorce by Mrs. L. J. Daugherty against S. H. Daugherty. From a judgment for defendant, plaintiff appeals.
    Judgment affirmed.
    J. M. Terrell and A. U. Puckett, both of Dallas, and Lee R. Stroud, of Kaufman, for appellant.
   RAINEY, C. J.

Appellant sued appellee for divorce from ttie bond of matrimony, alleging cruel treatment before the insanity of appellee and that they had lived separate and apart for more than 10 years, as prescribed by the act of. the Legislature of 1913 (Acts 33d Leg. c. 97). The trial court denied the petition for divorce, and rendered judgment accordingly.

A request was made by appellant to the trial judge for the filing of the court’s conclusions of law and fact, which the court promised to prepare, but failed to do so; therefore none appear in the transcript.

There is a statement of facts appearing in the record which shows that appellee was guilty of cruel treatment toward his wife before he became insane, but also shows that after that he became insane and had been confined in the insane asylum at Terrell, Tex., ever since for the period of 24 years, and that they had not met for the space of 10 years.

The first ground sought for reversal of this case is the failure of the trial judge to file his conclusions of law and fact. Ordinarily such a failure to do so by the judge, where the proper request is made, is a sufficient ground for a reversal, unless the record shows that by so failing no injury has resulted to appellant. We think no injury resulted to appellant by the failure to file such conclusions. The statement of facts show that appellee was insane during the time they so lived separate and apart from each other, and that he was hopelessly insane at the time of trial. Such being the case, the trial court could not legally render any other verdict. Therefore the filing of conclusions of law and fact could not have availed anything to the benefit of appellant.

The third assignment of error is:

“Since it was only the intention of the law to make the insanity ^of the defendant an excuse for the plaintiff’s grievances or wrongs which constitute grounds for divorce, and since the new ground for divorce in the amendatory act of 1913 intends to provide for a divorce where the parties have not lived together for so long as 10 years, the question of cruel treatment or wrongful desertion or other grievance becomes immaterial in this new grounds for divorce, and only requires allegation and proof that the spouses have not lived or cohabited together for 10 years prior to the suit. It is error to refuse a divorce when the proof clearly shows (regardless of other statutory grounds) that the parties have not lived together for a period of 24 years.”

Under this assignment is submitted the following proposition:

“When a clause of a statute prohibits the granting of a divorce where it appears that a party to the suit is insane, but the clause is immediately followed by a proviso that, where the parties’ have lived separate for ten years, it shall bo a ground for a divorce, the proviso in such case will control the clause which it immediately follows.”

Article 4632, R. S. 1911, as amended in 1913 (Acts 33d Leg. c. 97 [Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4632]) reads:

“Plaintiff Must be Resident; Suit Not to be Seard Within 80 Days; Remarriage; Divorce Where Marriage was to Escape Penalties for Seduction; Additional Ground for Divorce. — No suit for divorce from the bonds of matrimony shall be maintained in the courts of this state unless the petitioner for such divorce shall at the time of exhibiting his or her petition, be an actual bona fide inhabitant of the state for a period of twelve months, and shall have resided in the county where the suit is filed six months next preceding the filing of the suit; provided, that such suit shall not be heard or divorce granted before the expiration of thirty days after the same is filed; and provided, further, that neither party to a divorce suit, wherein a divorce is granted upon the ground of cruel treatment, shall marry any other person for a period of twelve months next after such divorce is granted, but the parties so divorced rmay marry each other at any time upon obtaining a license as provided in article 4610: Provided that where a man marries the woman who he seduces to escape penalties of the law punishing for seduction, the man shall not be entitled to a divorce for any cause within three years after such marriage, provided that this act shall not apply to any case where either the husband or wife is insane:
“Provided further that in addition to the grounds for divorce now provided by statute, that where any husband and wife have lived apart without cohabitation for as long as ten years, the same shall be suflicient grounds for divorce.”

The provision relative to living apart without cohabitation for as long as ten years only added another ground to those prescribed by the statutes, and, following the proviso just preceding reading, “Provided that this act shall not apply to any case where either the husband or wife is insane,” said ten-year provision, as well as all other grounds prescribed by the statute, falls within the insanity prohibition, and when insanity exists a divorce will be denied.

We construe the statute to mean an absolute prohibition against the granting of a divorce in any case where either'party is insane, it matters not upon what ground it is sought.

Therefore the judgment is affirmed.
      cga^Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digest? and Indexes


author: HIGHTOWER, ' C. J.

text:
    BROWN v. HOUSTON, E. & W. T. RY. CO.
    (No. 142.)
    (Court of Civil Appeals of Texas. Beaumont.
    Nov. 14, 1917.
    Rehearing Denied Dec. 5, 1917.)
    1. Oabeiees <S=»380(4) — Passengebs — Petition.
    A petition that plaintiff passenger was in fear of defendant carrier’s conductor and was forced and compelled by said conductor to leave a moving train, etc., held not to present the conductor’s action in inspiring fear in plaintiff as a separate and independent ground of negligence.
    2. Appeal and Eebob‘§=>1082(2) — Habmless Eeeoe — Submitting Issues.
    Any error in submitting question whether defendant carrier was negligent in failing to stop its train for appellant passenger to alight is harmless, where the jury answered the question affirmatively.

      3. Appeal and Ekkob <§=>10G8(5) — Harmless Error — Instructions.
    Any error in failing to instruct that defendant carrier should stop its trains a reasonable time for appellant passenger to alight is harmless, where the jury found defendant negligent in not stopping.
    Appeal from District Court, Liberty County; J. Llewellyn, Judge.
    ■Suit by Steve Brown against the Houston, East & West Texas Railway Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    J. L. Manry, of Livingston, W. P. Cruse, of Cleveland, and E. B. Pickett, Jr., of Liberty, for appellant. Baker, Botts, Parker & Gar-wood and J. T. Garrison, all of Houston, for appellee.
   HIGHTOWER, ' C. J.

This suit was brought by the appellant, Steve Brown, against the appellee, Houston, East & West Texas Railway Company, to recover damages on account of personal injuries alleged to have been received by appellant at a station called Excelsior on July 25, 1914. The case was tried with a jury in the court below, and was submitted upon special issues, and upon the verdict returned in answer to the special issues, judgment was rendered in favor of ap-pellee. Motion for new trial was made by appellant, and was overruled, to which appellant duly excepted, and has brought the case here on appeal.

On July 25, 1914, appellant boarded appel-lee’s passenger train at the station of Shepherd, with the intention of being carried as a passenger to the station of Excelsior, and while alighting from the train at the station of Excelsior was injured on account of alleged negligence on the part of appellee’s agents and servants in charge of said train.

Since one of the main questions before us involves a construction of appellant’s pleading as to the cause of his injury, we think it best to here quote the following portions of his petition, commencing with paragraph 3, to wit:

“(3) That on or about July 25, 1914, plaintiff boarded a passenger train of the defendant at said town of Shepherd, as a passenger, for the purpose of being carried as such passenger to said town of Excelsior; that before boarding said train he attempted to buy a ticket from the agent of the defendant at Shepherd, but was told by said agent that he did not have time to make out a ticket (as the train was then nearing the station), but plaintiff could board the train and pay his fare to the conductor thereon, and after so boarding said train plaintiff did pay to the conductor upon said train the proper fare from Shepherd to Excelsior, and thereupon it became the duty of the defendant to well and safely carry and transport him over its road to Excelsior, and there stop its train so that plaintiff might safely alight therefrom.
“(4) That after so becoming a passenger upon said train and paying the proper fare for transportation to Excelsior, and as the train approached that place, the conductor upon said train told plaintiff, in substance, that this was
his town or stop, but that he (the conductor) did not have time to stop the train, as they were in a hurry to reach Houston in time to vote, but that the train would slow down so plaintiff could get off. Thereupon plaintiff requested the defendant to stop the train at Excelsior, as defendant was bound and obligated to do, but the conductor refused so to do, and plaintiff told him that he could not jump from said train while it was moving as rapidly as it was going, but wanted the train stopped so that he might get off of same; that the conductor refused to stop the train, and continued to run through the town of Excelsior at about the rate of 15 or more miles per hour,, and also continued to insist upon plaintiff that he must get off the train while it was so in motion, and while so running by and through the town of Excelsior, and while plaintiff was protesting that he could not then jump off the train without risk and danger of injury, the conductor took hold of plaintiff’s arm and led him to the steps of the passenger car in which he had been riding (though plaintiff still continued to tell him that he could not get off the train while thus in motion), and very roughly said to plaintiff that he had to get off, and made a move, so it appeared to plaintiff, as if he (the conductor) would kick plaintiff off the train, and thus being so threatened and subjected to the force and fear of said conductor, the plaintiff jumped from said train while so in motion, and was thereby seriously and permanently injured, etc., as alleged in next succeeding paragraph.
“(5) That when plaintiff was forced and compelled by the conductor of said train to jump therefrom, as above alleged, he was thrown violently against the ground, etc., and thereby stunned almost to complete unconsciousness for a few minutes, his right leg and right arm were badly cut and bruised, the knee and ankle of his said leg being bruised and cut and bleeding, his breast was painfully and seriously bruised and mashed, and further from said hurt and injuries he was caused to spit up blood, and he was made to suffer severe pains about his neck and in his stomach and breast; also his back was hurting as if strained or sprained and bruised, and plaintiff further suffered a severe rupture, which has caused him to undergo excruciating pain, and even yet he continues to suffer severely therefrom, and is compelled to wear a truss, which affords him only partial relief; that as a result of said fall and the injuries so received, plaintiff was confined to his bed for several weeks thereafter, and when first getting up from bed he was compelled to use crotches for a month or more; that by said fall and the injuries resulting therefrom, plaintiff’s physical strength has been greatly lessened, his body considerably weakened, and his general health impaired, and for a period of several months after being so injured he was unable to perform any manual labor without much pain and suffering.
“(6) Plaintiff alleges that at the time of being so injured as above alleged he was in good health, strong and robust in body, and only 26 years of age, and well able to earn a good livelihood by manual labor, and upon such labor plaintiff is compelled to rely for the support of himself, wife and three children; that prior to being so injured his average earnings were the sum of $3.50 per day, but now because of his weakened body and diminished strength, plaintiff is poorly equipped for performing manual labor, and he is wholly unable to perform the hard manual labor to which he was theretofore accustomed.
“(7) That by reason of the defendant’s negligence in failing and refusing to stop said train at Excelsior to allow plaintiff to alight therefrom, as it was the duty of defendant to do, and by reason of having forced and compelled the plaintiff to jump therefrom while the train was in motion, the plaintiff, as the direct and proximate result of the said negligence, etc., and misconduct of the defendant, has been caused to suffer great physical and mental pain and anguish, and he will, in all probability, so continue to' suffer for long years to come, and he has lost the wages he would have earned while unable to work as a result of said injuries, and also his earning power in the future has been materially and permanently impaired and diminished in all to his damage in the sum of $10,000.”

Appellee, as defendant below, answered by general demurrer, general denial, and the following general plea of contributory negligence:

“Further answering herein, this defendant says that the plaintiff was at the time, and De-fore the alleged accident, guilty of contributory negligence, which contributory negligence upon the part of the plaintiff was the direct and proximate cause of plaintiff’s injuries, if any he received, and that by reason of such contributory negligence plaintiff is not entitled to recover, and of this defendant prays judgment of the court.”

The trial court, after properly defining “negligence,” “proximate cause,” and “contributory negligence,” propounded to the jury the following questions, among others, to wit:

“Question No. 1: Did the defendant fail or refuse to stop the train upon which plaintiff was riding, at Excelsior, to allow plaintiff to alight therefrom? ”
To this question the jury answered “Tes.”
“Question No. 2: If you answer this question ‘Yes,’ then answer whether or not the defendant was guilty of negligence in so failing to stop said train.”
To this question the jury answered “Yes.”
“Question No. 3: Did the defendant force and compel the plaintiff' to jump from said train while it was in motion? ”
To this question the jury answered “No.”
“Question No. 4: If you answer the last above question ‘Yes,’ then say whether or not the defendant was guilty of negligence in forcing and compelling the plaintiff to jump from said train while in motion.”
To this question the jury answered “No.”
“Question No. 5: Was the plaintiff guilty of contributory negligence, as that term has been hereinbefore defined, in alighting from said train in the manner he did?.”
To this question the jury answered “Yes.”

From the portions of the plaintiff’s petition above quoted, it will be seen that appellant claimed that appellee was guilty of negligence in two respects: (1) In failing and refusing to stop the train at the station of Excelsior a reasonably sufficient time to allow appellant to alight therefrom; and (2) in forcing and compelling appellant to alight from the train while the same was in motion. It will be seen, also, from the jury’s answers above quoted, that the jury found that appel-lee did fail and refuse to stop the train as alleged by appellant, and that such failure and refusal on appellee’s part was negligence; but it will also be seen from the answers of the jury, as above quoted, that appellee’s conductor did not force and compel appellant to alight from said train, as alleged by him, and further that there was no negligence on ap-pellee’s part in that respect, and it will be further seen from the answer of the jury on that issue that appellant was guilty of contributory negligence in alighting from the train in the manner and under the circumstances he did so alight.

The first assignment of error by appellant complains of the action of the trial court in submitting to the jury question No. 3, as above quoted, and the second assignment complains of the action of the court in refusing special charge No. 1 requested by appellant, which special charge was as follows:

“Gentlemen of the jury: If you have answered question No. 3, as submitted to you in the court’s general charge, then consider and answer this special issue, as follows: ‘Question: Did 'the plaintiff’ jump from said train while it was in motion at Excelsior because he was in fear of the conductor of said train? ’ ”

This special charge was refused by the court.’

The third assignment of error complains of the action of the court in submitting question No. 4, as above quoted. These three assignments are grouped in appellant’s brief, and we find thereunder three propositions. Ry the first of these propositions, it is contended that when a case is submitted on special issues, every material issue raised by the pleadings and the evidence must be submitted to the jury for determination; that it is error to omit or refuse to do so, when the omission has been seasonably complained of, and a special charge has been requested upon the submitted issue. In this connection, it is contended by appellant in this case that the issue of whether or not the appellant jumped from the moving train because in fear of the conductor was raised by the pleadings and the evidence, and therefore the court erred in failing and refusing to submit that question as one of the special issues to be determined by the jury, as plaintiff 'requested in appellant’s special charge No. 1.

While we agree with the contention of appellant, as an abstract proposition, that it is the duty of the trial court in submitting a ease to the jury upon special issues to submit all issues which are properly made by the pleadings and proof, when properly requested so to do, yet we cannot agree with appellant’s contention in this connection that the court failed or refused to submit to the jury any issue which was properly raised by the pleadings and proof. We are of the opinion that the trial court followed the very language of appellant’s pleading as to the proximate cause of his injuries when the court submitted to the jury the issue as to whether ap-pellee’s conductor forced and compelled appellant to alight from the train while the same was in motion. While it is true that it is alleged in appellant’s petition that at the time he alighted from the train, he was in fear of appellee’s conductor, yet we think that a proper construction of the petition as a whole leads [to the conclusion that the pleader meant that the action of appellee’s conductor in putting appellant in fear constituted but a part of tlie acts and conduct of the conductor which, considered together, amounted to force and compulsion, and that it wás not intended by the pleader to charge that the action of the conductor in so putting appellant in fear should be construed as a separate and independent ground of negligence, and to be understood by the trial court as a separate and independent act of force or compulsion. But if we be mistaken in this, construing the pleading as a whole, we are, nevertheless, convinced that in that portion of appellant’s petition wherein he sets out the proximate cause of his injuries, he confines himself strictly to actual force and compulsion oh the part of appellee’s conductor in putting him off the train while the same was in motion, and this being true, the trial court did not err in propounding to the jury question No. 3, as complained by appellant, because that question fully embraced the only action of appellee’s conductor that was complained of as the proximate cause of appellant’s injuries, as will be seen from a careful reading of appellant’s petition hereinbe-fore quoted, and therefore the court was not required, and should not have given special charge No. 1 requested by appellant, as above quoted.

The second proposition under these assignments is that it was error for the charge to instruct the jury on an issue not raised by the evidence, and that, therefore, it was error for the trial court to submit to the jury question No. 3 hereinbefore quoted. In this connection, it is contended by appellant that the expression “force and compel” necessarily implied that in order for the jury to answer said question in the affirmative, they must find that, in fact, bodily force, that is, actual physical force or strength, was made use of by the conductor upon the plaintiff, and even that the same was of such violence as to irresistibly overcome plaintiff, and that thus he was actually and physically forced from the train, and that there was no evidence to warrant the trial court in so charging that suc-h was the issue to be decided.

In answer to this proposition, without intending to concur in the exact construction placed upon the charge by appellant, we simply say that the evidence in the case as given by appellant himself abundantly justified the submission of this issue to the jury in the very language in which the court submitted it. It would serve no useful purpose to go into a discussion of this evidence.

The third proposition is that it is never permissible, but always improper and erroneous, to charge only upon the plea or theory urged by the defendant, to the exclusion of the theory or contention upon which plaintiff bases his cause of action. In answer to this proposition, we hold that the trial court ■did not charge only upon the plea or theory urged as a defense by appellee,.to the exclusion of the theory or contention upon which appellant based his cause of action, and therefore we dismiss this proposition without further discussion.

We conclude that there is nothing in any of the assignments from 1 to 3, inclusive, and the same are overruled.

The fourth assignment complains that the court erred in submitting question No. 2 to the jury. Question No. 2 submitted by the court was, in substance, as follows:

“Was the defendant guilty of negligence in failing to stop its train at Excelsior, for the purpose of enabling plaintiff to alight therefrom? ”

This question was answered in the affirmative by the jury, and we cannot see how the submission of the question, if error, could be prejudicial to appellant. We overrule the assignment.

The fifth assignment complains, in effect, that the court erred in failing to tell the jury that the law of this state requires a railroad company to stop its passenger trains at stations for which it has passengers long enough to allow the passenger a reasonable time to alight. We do not see how the failure of the trial court to so instruct the jury in this ease could be error prejudicial to appellant, since the jury affirmatively found that appellee was guilty of negligence in not stopping its train at the station of Excelsior for appellant to alight on the occasion in question. We overrule this assignment without further discussion.

From what we have said, it follows that we are of opinion that there was no error committed by the trial court which could be considered prejudicial to appellant in this case, either in the charge of the court, as given to the jury, or in refusing the special charge requested by appellant; but even if there were errors in these respects, we are of opinion that the jury having found specifically that appellant was guilty of contributory negligence, under the general plea of contributory negligence interposed as a defense by appellee, that the trial court was correct in rendering judgment in favor of appellee upon such verdict, and that no other judgment could have been rendered. The finding of the jury to the effect that appellant was guilty of contributory negligence was not even assigned' as error in the motion for new trial below, neither is there any complaint of such finding in this court, and under the pleadings and evidence in this case, we hold that such finding of contributory negligence is a complete defense and bar to any recovery by appellant in this case.

'AH assignments of error are overruled, and the judgment of the trial court is in all things affirmed.
      cjfcsFor othei cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexed

      ig=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests, and Indexes


author: JENKINS, J.

text:
    JOHNSON et al. v. FIRST NAT. BANK OF MARLIN.
    (No. 5814.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 7, 1917.
    Rehearing Denied Dec. 12, 1917.)
    1. Executors and Administratobs <§=3435 — Action — Jurisdiction—Recovery on Land.
    Title and recovery of land and the barring of equity of redemption alone being involved, the district court has jurisdiction, though an administrator and guardian be defendants.
    2. Election of Remedies <§=37(1) — Bringing Action — Estoppel in Pais.
    The mere bringing of action, dismissed before judgment, and in which no element of estop-pel in pais has arisen, no advantage having arisen, and no detriment having been occasioned, is not an election.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Scries, Election.]
    3. Election of Remedies <§=»7(1) — Brin gins Action — Available Remedy.
    That the bringing of an action may be an election, the remedy sought must be available under the existing facts; and so not where the action is not maintainable because notes sued on had not been presented to administrator and guardian.
    4. Trespass to Try Title <§=350 — Costs.
    Costs should not be adjudged against unnecessary defendants in trespass to try title, who promptly disclaim; nor should costs incurred in improperly making such parties defendants be adjudged against the other defendants.
    Appeal from District Court, Falls County; Richard I. Munroe, Judge.
    Action by the First National Bank of Marlin against Maggie L. Johnson and others. From an adverse judgment, defendants appeal;
    Reformed and affirmed.
    (J. W. Barcus, of Waco-, for appellants. W. J. Finks and Spivey, Bartlett & Carter, all of Marlin, for appellee.
   Findings of Fact.

JENKINS, J.

The property in controversy, a house and lot in Marlin, was sold to R. II. Johnson for the expressed consideration of $1,000 cash and three vendor’s lien notes, one for $700, due March 11, 1910, one for $750, due March 11, 1911, and one for $850, due March 11, 1912, each bearing interest at the rate of 8 per cent, per annum, and providing for attorney’s fees, and retaining a vendor’s lien on the property to secure the payment of the notes, as did also the deed. On January 5, 1911, R. H. Johnson died, leaving surviving him his wife, Maggie L. Johnson, and his children, C. W., Joe E., H. Grady, Patón Ashley, Lola, and Bertie, now Bertie Magee, wife of J. H. Magee. The land in controversy was occupied by R. H'. Johnson during his lifetime as a homestead, and has been so occupied by Maggie L. Johnson up to the present time.

Maggie L. Johnson prior to the beginning of this suit became insane, and her son C. W. Johnson was appointed her guardian, and duly qualified as such. He also qualified and was acting at the time this suit was brought as administrator of his father, R. H. Johnson.

The notes above referred to, together with the-superior title reserved in said deed, were transferred to the appellee herein prior to October 9, 1914. On the date last above mentioned appellee filed suit in the district court of Falls county against Maggie L. Johnson and all of said children, and against C. W. Johnson, as administrator of the estate of R. I-I. Johnson, and as guardian of Maggie L. Johnson, to recover on said notes.

The appellants herein, defendants in said suit, excepted to the petition therein, in that it appeared therefrom that the notes sued on had never been presented to the administra-torof the estate of R. H. Johnson,-nor to the guardian of Maggie L. Johnson. The plaintiff in said suit dismissed the same without prejudice, and thereafter, on the 3d of March, 1915, filed this suit: First, in the ordinary form of trespass to try title against all of appellants; and, second,- in the alternative, to foreclose the vendor’s lien on said land, making the estates of R. H. Johnson and of Maggie L. Johnson and the said children parties for the purpose of barring their equity of redemption, but not seeking a personal judgment against any of them. It was agreed that the land in controversy did not at the time of the trial of this suit exceed the value of the notes sued on, and that there were back taxes due on the same to the amount of about $250, and that Mary L. Johnson had continuously occupied the same as a homestead without payment of rents. The case was tried before the court without a jury, and judgment was rendered that ap-pellee recover .the land in controversy.

The defendants C. W. Johnson, individually and as guardian of the estate of Patón Ashley Johnson, Lola Johnson, a feme sole, Joe Johnson, H. Grady Johnson, and Mrs. Bertie Magee, and her husband, J. H. Magee, promptly filed disclaimers to the land in controversy. The court rendered judgment against all of the defendants, both as to those who filed disclaimers, as well as against the estates of Maggie L. Johnson and R. H. Johnson, for all costs that had been incurred up to the time said disclaimers were filed, and against the estates for all costs that had been incurred since the disclaimers were filed.

After the death of R. H. Johnson, and prior to the filing-of either of the suits mentioned in this statement of facts, O. W. Johnson, in his capacity as guardian of the estate of Maggie L. Johnson, brought suit against the heirs of R. H. Johnson, deceased, alleging that the purchase money which was paid for the land in controversy was paid out of the separate estate of Maggie L. Johnson, and that said land was her separate property. Judgment was rendered establishing such claim.

Opinion.

The contentions of appellants are correctly stated by appellee in its brief as follows:

(1) That the plaintiff is not entitled to recover on the notes sued on, or for the land, because Maggie L. Johnson is a person of unsound mind, and guardianship of her estate as such is pending, and therefore the district court has no jurisdiction over her estate, or any part thereof; also that the guardian of her estate cannot pay the debts of his ward, except on orders of the probate court

(2) That the district court has no jurisdiction, because administration is pending on the estate of R. H. Johnson.

(3) That plaintiff cannot recover the land in the district court, because there was guardianship of the estate of Maggie L. Johnson, non compos mentis,, pending, and it appearing from the petition that the land is claimed by her.

(4) That plaintiff cannot recover on the notes, because they were never presented to It. H. Johnson, administrator, nor to the guardian of Maggie L. Johnson.

The Constitution of this state (section 16, art. 5) confers upon the probate court exclusive jurisdiction to settle, partition, and distribute estates of deceased persons, including in such distribution the setting aside of homestead for the survivor of the community and the minor children; but tbis is not a suit for either of said purposes. It is a suit to recover title and possession of land, and the district court has exclusive jurisdiction of suits of this nature. In so far as it was a suit in the alternative upon the notes, it was not to establish an indebtedness against the estate by reason of said notes, but simply to bar the equity of redemption, if any, in said estate. The allegations in plaintiff’s petition are that each of the defendants had forcibly entered said land and dispossessed plaintiff therefrom. There was no question of administration as to any of the defendants, except the administration of R. H. Johnson and Mrs. Maggie L. Johnson. Where plaintiff has an independent cause of action against others than the administrator, of which the district court has jurisdiction, an administrator may be joined in such suit Stewart v. Webb, 156 S. W. 537. Howevér, the allegation in this case is that both the administrator of R. H'. Johnson and the guardian of Maggie L. Johnson were trespassers. If such was the case, the district court would have jurisdiction, notwithstanding the pendency of administration.

It is true, as alleged by appellee, that the guardian of Mrs. Johnson could not pay her debt — treating the vendor’s lien as her debt —until such payment had been ordered by the probate court; but, if he desired to pay said notes, it was his business to have procured an order for such payment. Curran v. Mortgage Co., 24 Tex. Civ. App. 499, 60 S. W. 466.

Where one claims title adversely to an administrator, or a guardian, the district court has jurisdiction. Wadsworth v. Chick, 55 Tex. 241. Likewise the district court has jurisdiction to set aside a deed obtained by fraud, though administration be pending. Groesbeck v. Groesbeck, 78 Tex. 665, 14 S. W. 792. In short, the district court has jurisdiction in all cases involving title to land.

It is the contention of appellants that judgment should have been rendered in their behalf for the reason that by filing suit upon the notes, as recited in the findings of fact, the appellee has elected to treat the sale, which was executory upon its face, as executed, and to rely upon recovery of the debt as .evidenced by the notes. There are cases, where equity would treat such a suit as an election, as in the case of McCord v. Hames, 38 Tex. Civ. App. 239, 85 S. W. 504, cited by appellants, where it was shown that the notes were renewed six years after maturity, and that valuable improvements to the amount of $4,960 had-been put upon the land. The agreed consideration for the land was only $1,240, and the purchaser offered to pay the balance of the purchase money. There are no equities in this case which would demand a departure from the ordinary rule of law as to election of remedies. This doctrine is correctly stated in 9 R. C. L. 960, as follows:

. “An election of a remedy which has the effect of an estoppel in pais, or an estoppel by record, in that class of cases in which the remedies are really inconsistent, is generally considered made when an action has been commenced on one of such remedies. Some courts go so far as to say that in such cases the choice of a remedy once made cannot be withdrawn or reconsidered, though no advantage has been gained, nor injury done by the choice, and no injury would be done by setting the choice aside. But the more reasonable rule is that the mere bringing of an action which has been dismissed before judgment, and in which no element of estoppel in pais has arisen, that is, where no advantage has been gained, or no detriment has been occasioned, is' not an election.”

Stone Cattle Co. v. Boon, 73 Tex. 555, 11 S. W. 544, and Ufford v. Wells, 52 Tex. 617, are in line with this statement of the law.

The judgment of the district court upon this issue should be sustained for another reason, and that is that, in order to amount to an election, the remedy sought must be available (Bandy v. Cates, 44 Tex. Civ. App. 38, 97 S. W. 710). The remedy sought by ap-pellee in the first suit, namely, judgment upon the notes, was not available at that time, for the reason that said notes had not been presented to the administrator, nor the guardian, for his approval, and this defense was pleaded by appellants in abatement of that suit.

We think, however, that the court erred in its judgment as to costs. There is no reason shown why any costs should be adjudged against the defendants, who promptly pleaded disclaimer, nor against Maggie L. Johnson, for any costs incurred in improperly making such, parties defendants herein. Appellant alleged that the costs so incurred and adjudged against her amount to $71.40, and, as this is not controverted by appellee in its brief, we assume the' same to be correct.

For the reasons stated, the judgment of the trial court is here reformed so that the appellee shall recover of appellants all costs in this behalf expended in the trial court, except $71.40, in lieu of all costs as adjudged by the court below. As thus reformed, the judgment of the trial court is affirmed.

Reformed and affirmed.

RIGE, J., not sitting.
      ©uoFor otter oases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes