text:
    SOUTHERN TRACTION CO. v. GEE.
    (No. 7803.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 24, 1917.)
    1. Railroads <§=350(13) — Collision at Crossing — Questions for Jury.
    In an action for injuries sustained by plaintiff when defendant’s car collided with his wagon at a crossing, held a peremptory verdict for defendant was properly refused.
    2. Railroads <§=352 — Collision at Crossing — “Indirect Cause.”
    A finding that the speed of defendant’s car or the holes in the crossing were the “indirect” cause of the collision was insufficient to support a verdict for plaintiff, “indirect” being not direct in relation ol* connection; not having an immediate bearing or application; not related in a natural way, etc.
    3. Railroads <§==>352 — Injury at Crossing— Special Issues — Inconsistent Findings.
    Where the jury found upon special issues that the speed of defendant’s car and the holes in the crossing wore the indirect cause of the collision with plaintiff’s wagon, and that plaintiff was negligent in not looking while approaching the crossing, a judgment for plaintiff was unwarranted, although the jury found, in answer to an issue embraced in a special charge, that the speed of defendant’s ear and the holes were the proximate cause of plaintiff’s injuries.
    4. Trial <§=349(4) — Special Issues — 1“Gener- .' al Charge.”
    The special charge that, if the line of defendant’s railway at the time plaintiff’s wagon was struck by defendant’s car, approached the crossing through a cut, and that other obstructions existed along the railway, which obstructed the view of defendant’s car from plaintiff, as he approached the crossing, and that defendant negligently permitted said crossing to become out of repair, and that defendant’s car, which struck plaintiff’s wagon, was being run at the time, and under all the conditions as they then existed, at a. high and dangerous rate of speed to the plaintiff, and that one or more of said acts or omissions, if any, was or were negligence, “then you will answer the following question: Did such negligent act or acts or omissions, if they were negligent, either singly or combined, proximately cause plaintiff’s injuries, if any” — was in effect a “general charge,” and was inappropriate where special issues were submitted.
    [Ed. Note. — Eor other definitions, see Words and Phrases, Second Series, General Charge.]
    5. Trial <§=244(4) — Instructions — Prominence to Portions of Testimony.
    It is improper for the court to select a certain portion of the testimony, and give undue prominence thereto, which is calculated to unduly influence the jury.
    6. Railroads <§=>351(12) — Crossing Accident —Doctrine oe Eminent Peril.
    Where plaintiff’s negligence, if any, occurred from his act in approaching a railroad crossing, a charge on imminent peril in connection with contributory negligence, in reference to plaintiff urging his mules in trying to cross the track just ahead of the car, was error.
    7. Railroads <§=>351(10) — Collision at Crossing — Speed—Instructions.
    Where the court submitted the issue whether defendant’s car, approaching a crossing, “was run at a dangerous rate of speed,” it erred in refusing a charge, for guidance of the jury, that, if defendant’s employés were operating the car as persons of ordinary care, caution and prudence would under similar circumstances, defendant would not be liable; the law not fixing any limitations as to speed.
    8. Trial <§=>350(7) — Crossing Accident — Failure to Submit Issues.
    In an action for injury at a railroad crossing, evidence as to contributory negligence, in that plaintiff failed to have his team under control, when approaching the crossing, held to call for submission of such issue.
    9. New Trial <§=73 —Jury Findings —Uncertainty.
    Where the findings of the jury were conflicting on several pertinent issues, rendering their conclusions as to the controlling facts uncertain, it was error to refuse a new trial.
    Appeal from District Court, Ellis County; F. D. Hawkins, Judge.
    Action by William Gee against the Southern Traction Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    J. L. Gammon, of Waxahachie, and Tem-pleton, Beall & Williams, of Dallas, for appellant. Farrar & McRae, of Waxahachie, for appellee.
   RAINEY, C. J.

This suit was brought by appellee against appellant to recover dara-agesk for personal injuries received at a public road crossing at a place where it was crossed by appellant’s track at practically right angles. Appellee was driving four mules to a wagon loaded with seed cotton, and just as he was getting across appellant’s track, the rear end of the wagon was struck by a car of appellant, demolishing the wagon and injuring appellee. The collision was alleged to have been caused by the negligence of. appellant, in operating its car at too great a rate of speed, the approach to the crossing being obstructed by trees and undergrowth and a cut in the embankments and. the bad repair of the crossing between the rails. The appellant answered by general exception and denial, and specially the want of care on the part of appellee in approaching the crossing, and contributory negligence. The court submitted special issues to a jury, and upon return of their answers thereto judgment was rendered for appellee, from which this appeal is prosecuted.

A peremptory verdict was asked by appellant and refused by the court, of which action complaint is made. We think there was no reversible error in the court’s action, as the evidence was such that it required the determination of the jury.

The answers of the jury to the issues propounded are complained of as not warranting the judgment rendered by the court. Among them are issues which form the basis for the second assignment of error- as follows:

“The court erred in not rendering judgment for the defendant, upon the answer of the jury to special issues Nos. 3, 7, 11, and 12, which are as follows:
“To question No. 3, ‘If you have answered the two preceding questions in the affirmative, then answer this question, Was the speed of said car the direct cause of the collision between it and plaintiffs wagon?’ we answer, ‘Indirect.’
“To question No. 7, ‘If you have answered questions Nos. 4, 5, and 6 in the affirmative, then answer this question, Was the fact (if it was a fact) that there were holes or excavations in the crossing between the rails the direct cause of the collision between defendant’s car and plaintiffs wagon?’ we answer, ‘Indirect.’
“To question No. 11, ‘As plaintiff approached the crossing, and before he got so close to the track as to he in a dangerous position, could he have seen the approaching car?’ we answer, ‘He could at intervals.’ ■
“To question No. 12, ‘Would an ordinarily prudent person in the exercise of ordinary care for his own safety have looked to discover if a car was approaching from the south?’ we answer, ‘Yes.’
“Because the contributory negligence of the plaintiff is fully established by the great preponderance of the evidence, and found by the answers of the jury to issues Nos. 11 and 12, and because the jury failed and refused to find that the negligence alleged by plaintiff’s petition was the direct cause of plaintiff’s injuries.”

The proposition submitted by appellant is:

“In order to recover in this case the burden of proof rested upon the plaintiff to show that the speed of the ear was not only negligent, but also was the direct and proximate cause of plaintiff’s injury, or that the holes or excavations in the crossing, if any, constituted negligence and were the direct and proximate cause of plaintiff’s injury.”

In order for the appellee to recover it was necessary for the jury to have found the negligence alleged, that is, the speed of the car or the holes or excavations in the crossing were the direct and proximate cause of the injury sustained by appellee. This was not done, but the jury answered that it was the “indirect” cause. “Indirect,” as defined by the Century Dictionary and Cyc., is “not direct in relation or connection; not having an immediate bearing or application; not related in the natural way,” etc:, which is not the same meaning as direct, nor equivalent thereto. Further, the jury’s answer to issue No. 7 was that, in approaching the crossing, appellee could have seen the approaching car at intervals, and that an Qrdi-narily prudent person in the exercise of ordinary care would have looked to discover its approach, which failure shows negligence on the part of appellee, and which is inconsistent with the court’s rendering judgment for appellee.

But it is insisted by appellee that the jury answered the following issue affirmatively, which is embraced in the special charge and given by the court, as follows:

. “You are further instructed that, if you believe from the evidence that the line of defendant’s railway, at the time plaintiff’s wagon was struck by defendant’s car, approached the crossing, known as the McDaniel crossing, through a cut, and that other obstructions existed alongside of said line of railway which obstructed the view of defendant’s car from the plaintiff and obstructed.the view of the plaintiff from the operatives of said car as plaintiff approached said crossing; and you further believe that the defendant negligently permitted said crossing and its tracks to become out of repair by allowing holes and excavations to exist therein; and you further believe that defendant’s car which struck the plaintiff’s wagon was being run at the time and under all the conditions as they then existed at a high and dangerous rate of speed to the plaintiff; and you further believe that any one, or more, of said acts, or omissions, if any, was, or were, negligence-then you will answer the following question: Did such negligent act or acts, or omissions, if they were negligent, either singly or combined, proximately cause plaintiff’s injuries, if any?”

The answer to this last issue was in the affirmative, and is contradictory to those just above quoted, or, at least, is inconsistent with them, and does not justify a verdict. Besides, the said special charge is, in effect, a general charge, which is improper when special issues are Submitted. La Grone v. Railway Co., 189 S. W. 99. Said charge includes a finding on part of the evidence; that is, in regard to the obstruction of the view in approaching the track. It is improper for the court to select out a certain portion of the testimony and give undue prominence thereto, as in this charge, which is calculated to unduly influence the jury. The permitting of the view to the approach to be obstructed was not itself negligence per se. It is only a circumstance to be considered in reference to the negligence in operating trains, or of contributory negligence. In tjie case of Railway Co. v. Rogers, 91 Tex. 52, 40 S. W. 956, where a railroad crossing was obstructed, and the trial court in its charge assumed it to be an act of negligence, the court said:

“The fact that the view of the track was obstructed would not give a right of action if the railroad company exercised such care in the operation of its train as a prudent person under similar circumstances, having due regard for the safety of those traveling upon the highway over that road, would have exercised. * * *
But the question to be submitted to the jury was whether or not, under the surrounding conditions and circumstances at that place, the defendant exercised such care as a prudent person would have exercised under like conditions.”

The specifying of said obstructions as one of the acts to be found by the jury in order to constitute negligence was improper.

The finding of the jury that appellee was not guilty of contributory negligence was contrary to their finding in issue No. 12, where they found that an ordinarily prudent person, in the exercise of ordinary care for his own safety, would have looked to discover if a car was approaching from the south. It. was uncontradicted that a car was approaching the crossing from the south, and that appellee did not look to discover it.

The charge of the court on sudden and imminent peril in connection with his charge on contributory negligence in reference to appellee urging up his mules in trying to cross the track just ahead of the car was error. The evidence shows, we think, that if he was guilty of contributory negligence it occurred from his act in approaching the crossing, and was not due to the operation of the train. Railway Co. v. Neff, 87 Tex. 304, 28 S. W. 283.

The court erred in refusing the charge requested by appellant as follows:

“The law does not prescribe the rate of speed at which defendant shall run its cars at such places as that at which plaintiff was struck, and in this connection you are further charged that if the defendant’s employes, in approaching McDaniel Stop at the time plaintiff was struck, was operating the car in question as persons of ordinary care, caution, and prudence under similar circumstances and conditions would have done, then you will answer special issue No. 1, No.”

Special issue No. 1, requested by appellant and refused by the court, is as follows:

“You are instructed as to the law of this case touching the speed of the car that the running by the defendant of its car upon its track in approaching McDaniel Stop was authorized by law, and that the law does not impose any rule as to the rate of speed of said car.”

Instead the court submitted the following issue:

“Upon the occasion of plaintiff’s wagon being struck by the car of defendant company, was the car approaching said crossing under existing conditions being run at a dangerous rate of speed to persons approaching the crossing on the public road?”

The court gave the jury no guide by which they could determine what was a dangerous rate of speed. The law does not fix any limit as to how fast or how slow a train or ear should be operated, but leaves it to be governed by circumstances in every case. The only rule it lays down is that, What rate would an ordinarily prudent man observe in operating a train, to be governed by circumstances of each ease? The propelling of an electric passenger car over the country, is dangerous at crossings at all times at any rate of speed, and the rule just given is the only one that can reasonably be stated for the operation of railroads which serve the public. If there was any necessity for giving a charge on the speed of the train in this case, some rule should have been stated by the court by which the jury were to be governed. Railway Co. v. Harrison, 163 S. W. 332; Railway Co. v. Johnson, 59 Tex. Civ. App. 354, 125 S. W. 933; Railway Co. v. Shetter, 94 Tex. 196, 59 S. W. 533.

The fifteenth assignment is based upon the refusal of the court to present the following issue:

“Did plaintiff, in approaching said crossing, ¡mcl in going on the same, permit his lines to hang loose in such a manner that he had no proper control of his team? If you have answered the foregoing question in the affirmative, then answer the following question: Would an ordinarily prudent person, in the exercise of ordinary eai'e for his own safety, have approached and driven upon said crossing with his lines in such condition? If you have answered the two questions above in the affirmative, then answer the following: Did said act of plaintiff in permitting his lines to hang loose as he was approaching and going upon said crossing directly cause, or contxúbute to cause, the collision of the interurban car with the plaintiff’s wagon?”

Under this assignment is submitted the following proposition, viz.:

“There being evidence that plaintiff, in approaching the track at the crossing, did so in an unconcerned manner, and with his lines hanging loose so that he could not promptly control his team, the court, upon timely request, should have, upon the issue of negligence or contributory negligence, submitted this matter to the jury by appropriate questions, and its refusal to do so constituted reversible error.”

One witness testified, in effect, that he saw the man in the wagon as he approached that crossing after the car began to whistle; that the lead mules were some five or eight feet back from the crossing at this time. The mules had not gotten to the rails; that when he looked around arid saw the location of the team the man on the wagon was leaning back on his right elbow, but changed his position and commenced gathering up his lines. They seemed to be loose in his hands, and he' pulled them up, all four lines in his left hand. At this time the wheel mules were just getting upon the track. Witness says that before the lead mules got to the crossing, and between the time that the man grabbed his lines, the man was leaning back in his wagon with his elbow in the cotton; that when he heard the car whistling and noticed the team it was still coming ahead, the negro leaning back in his wagon. Witness said he did not know what the negro was doing with the lines at the time, but the team got faster, but that he guesses he was slashing them with the lines. That negro raised up quick.

The appellant having pleaded contributory negligence on the part of appellee in approaching the crossing, and “that the same was negligent, careless, and reckless, and that plaintiff failed to have his team under control so as speedily to have stopped his wagon,” etc., it was sufficient to admit the evidence, and the evidence was such that it called for the submission of the issue requested-, and it was error for the court to refuse to do so. Railway Co. v. Hall, 98 Tex. 480, 85 S. W. 786.

In view of the findings of the jury on the various issues presented, we are of the opinion the judgment should not be permitted’ to stand. On several pertinent issues we construe the findings of the jury to be conflicting, which render their findings uncertain as to what their conclusions were on the controlling points as to appellant’s liability. Such being the ease, the court erred in not granting a new trial.

The judgment of the court below is therefore reversed and cause remanded.
      <g=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    KIRBY et ux. v. MORRIS.
    (No. 8705.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    July 2, 1917.
    On Motion for Rehearing, Oct. 20, 1917.)
    1. Parent and Child <⅜=>2 (4) — Custody of Child — Visiting — Authority of District Court.
    ' The district court, in suit over the custody,, care, and control of minor children by the maternal grandmother against the grandaunt, has-authority to require the adoptive parents of a little girl, the grandaunt and her husband, to allow the child to visit in the home of her grandmother, where she might see her brothers and sister.
    2. Parent and Child <©=>2 (4) — Custody of Child — Appeal—Presumption.
    On appeal in suit over the custody of children, the Court of Civil Appeals must presume that the grandmother, to whom custody of some of the children is awarded, with right to have the other visit her for a day once a month, will obey the court’s injunction to refrain from any efforts to prejudice the mind of the visiting child against her grandaunt and latter’s husband, awarded her custody.
    3. Parent and Child <@=>2 (3) — Custody of Children — Interest.
    In controversies over the custody and guardianship of children, the custody will be awarded with reference to the interests of the children as the controlling consideration.
    On Motion for Rehearing.
    4. Appeal and Error <©=^437 — Enforcement After Appeal by Process from Trial Court — Appeal on Bond for Costs — Statute.
    The judgment of the trial court, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2100, never having been suspended upon appeal, which was prosecuted on bond for costs only, and not on supersedeas bond, it can be enforced, notwithstanding the appeal, by proper process issued from the trial court.
    Appeal from District Court, Denton County; C. F. Spencer, Judge.
    Suit by Mrs. R. J. Morris against J. O. Hussey, P. Kirby, and Sallie Kirby, Ms wife. From a portion of the judgment, Kirby and wife appeal.
    Affirmed.
    Sullivan & Hill and Luther Hoffman, all of Denton, for appellants. E. I. Key, of Den-ton, for appellee.
   DUNKLIN, J.

This is a controversy over the custody of three minor children, Ray Hus-sey, a boy about eight years of age, Kenneth Hussey, a hoy about five years of age, and Jewell Geneva Hussey, a girl about three years of age. Mrs. Samuel Teresa Hussey, the mother of the children, having died, her mother, Mrs. R. J. Morris, instituted this suit against J. O. Hussey, the father of the children, and P. Kirby and Sallie Kirby, seeking a decree of court awarding the custody, care, and control of said children to her. Mrs. Sallie Kirby is the aunt of J. O. Hussey, and hence the grandaunt of the children.

On February 9, 1916, J. O. Hussey, by an instrument in writing duly signed and acknowledged as deeds are required to be, transferred Ms parental authority and custody over Geneva Hussey to defendants P. Kirby and his wife, Sallie Kirby, as provided in article 3, 1 Vernon’s Sayles’ Texas Civil Statutes, and on the same day P. Kirby and wife executed an instrument in writing, which was duly asknowledged as deeds are required to be, by the terms of which they adopted Geneva Hussey as their legal heir, as provided by article 1, Vernon’s Sayles’ Texas 'Civil Statutes. Both of said instruments were duly filed and recorded.

Mr. and Mrs. Kirby claimed custody of Geneva Hussey only, and based their claim upon the deed of adoption and the transfer to them by J. O. Hussey of Ms parental authority and custody over said child referred to above.

The ease was tried by the court without the aid of a jury, and by the judgment rendered the custody of the two boys mentioned was awarded to plaintiff, Mrs. R. J. Morris, while the custody of Geneva Hussey was awarded to Mr. and Mrs. Kirby. The judgment contains the following provisions:

“The court further finds and is of the opinion that the minor daughter of Ollie Hussey and his deceased wife should be left in care and custody of her adopted parents, Mr. and airs. P. Kirby; the court being of the opinion that it is for the best interest of said minor child that she be so left.
“The court is of the further opinion, however, that it is for the best interest of said minor daughter that. she should spend at least one day out of each month with her little brothers and grandmother at the home of her said grandmother, and to this end the court finds that it is proper that Mrs. P. Kirby permit said minor daughter to make such visits at such time, and the court is of the opinion that the first Saturday in each month is a proper day for said minor daughter to spend with her little brothers and grandmother, and that she should be delivered to said Mrs. Morris in person at the home of the said Mrs. Kirby at 9 o’clock a. m., and returned by the said Mrs. Morris not later than 6 o’clock p. m. on the first Saturday of each month.
“The court is further of the opinion that all of the parties hereto should teach all of said children to have proper respect for the other parties hereto, and that neither of them should teach any of said children to dislike or have a distaste for the others. * * *
“It is further ordered, adjudged, and decreed that the said minor daughter now with Mr. and Mrs. P. Kirby shall be delivered by them to Mrs. R. J. Morris on the first Saturday in each month at 9 o’clock a. m. for the purpose of being taken by the said Mrs. Morris, who shall return said minor daughter to the home of Mr. and Mrs. P. Kirby not later than 6 o’clock p. m. on said day.”

In plaintiff’s petition she also asked for the custody of another child, a- girl aged about ten months, who is also the daughter of Samuel Teresa Hussey. The decree of court fails to make any disposition of the custody of this child. We presume that this failure was due to the fact that we find in the record the testimony of Mrs. Morris to the effect that she had already adopted this child, and we suppose that such adoption was in accordance with the statutes, and that J. O. Hussey had transferred to Mrs. Morris his parental authority over that child.

J. O. Hussey, the father of the children, has not prosecuted any appeal from the judgment, but Mr. and Mrs. Kirby have appealed from that portion of the judgment requiring visits by Geneva Hussey to her grandmother and brothers and little sister one day out of each month.

In the findings of fact filed by the trial judge the following appears:

“I find that the best interests of Ray and Kenneth will be subserved by placing them with their grandmother, Mrs. Morris, plaintiff herein, who is very desirous of having the custody and rearing of said two boys, she having the infant triplet.
“I find that she is amply able (financially and morally) to raise and care for and properly educate and keep and maintain said Ray and Kenneth. * ⅜ ⅜
“I also find that Mr. and Mrs. P. Kirby are good people, and are well qualified from every standpoint (financially and morally) to rear and care for and educate said Geneva Hussey, and that they are anxious and willing to do so and that it is for the best interest of said child that they be permitted to do so.
“I also find that it is for the best interest of said Geneva that she be permitted to spend at least one day of the month with her little brothers and grandmother at the grandmother’s home, where her said little brothers will be kept, as I find that the best interest of the said Geneva will be subserved by permitting her the association of her grandmother, Mrs. ‘Robert Morris, and her little brothers at the home of the said Mrs. Morris.”

In his conclusions of law the trial judge held that he had authority to require such visits by the child under the decision of our Supreme Court in Legate v. Legate, 87 Tex. 248, 28 S. W. 281.

No attack has been made by appellants upon the trial court’s findings of fact, and the only assignment of error presented by them reads as follows:

“The court erred in finding as a matter of law that the court had authority to divide or limit the parental authority of the adopted parents, P. Kirby and wife, Sallie Kirby, and to permit the child Geneva Hussey to spend one day out of each month with Mrs. R. J. Morris, appel-lee.”

The case of Legate v. Legate, supra, was a suit by the parents to recover custody of an infant from one to whom they had voluntarily relinquished such custody and who had legally adopted the child. In that case our Supreme Court announced the rule that in such controversies the paramount and controlling issue to which all others must be subordinated is: What is the best interest of the child? In the opinion the following was said:

“The state, as the protector and promoter of the peace and prosperity of organized society, is interested in the proper education and maintenance of the child, to the end that it may become a useful instead of a vicious citizen; and while as a general rule it recognizes the fact that the interest of the child and society is best promoted by leaving its education and maintenance, during minority, to the promptings of paternal affection, untrammeled by the surveillance of government, still it has the right in proper cases to deprive the parent of the custody of his child when demanded by the interests of the child and society.”

And after referring to the transfer of parental custody of the child to the foster parent who had adopted her and was in every respect qualified to care and provide for her, and after holding that the contract between the parties could not he enforced as such because neither the child not its custody was a subject-matter of contract, the court said further:

“The parents, on the one hand, offer to take back their child to the family circle, from whence they voluntarily allowed it to be taken nearly two years since, at the tender age of three months; and, on the other hand, its foster parents insist upon its remaining, with all the privileges of an adopted child, in the home where it has been tenderly and lovingly cared for through the critical period of infancy. Two homes are thus offered the child, who is in no wise responsible for this unfortunate controversy, and has not sufficient discretion to select. We hold, as a matter of law, that it is entitled to the benefit of that home and environments which will probably best promote the interest of the infant. The question as to whose custody will be most beneficial to the infant is one of fact of which this court has no jurisdiction, hut which is to be determined in the first instance by the district court upon hearing all the evidence tending to shed any light upon these two homes and the people inhabiting them, including their entire connection with, affection for, and present and future ability to care and provide for this little girl, in order that the court may be able to determine upon the whole case the difficult question of fact above stated.”

To the same effect are State v. Deaton, 93 Tex. 243, 54 S. W. 901, Noble v. Noble, 185 S. W. 318, Ex parte Reeves, 100 Tex. 617, 103 S. W. 478, and many other cases which might be cited. In Ex parte Reeves, just cited, our Supreme Court said:.

“Under the common law and equity system of England which was adopted in Texas as early as 1840 the courts of chancery exer-qised jurisdiotion to appoint guardians for minors and to supervise their conduct with reference to the persons and estates of their wards. 3 Pomeroy’s Equity (3d Ed.) § 1308 et seq. In section 1307 the same author says: ‘In addition to its power to appoint guardians, the court of equity will also exercise its jurisdiction, in a proper case, and to promote the highest welfare of the infant, where there is already a guardian, natural or legal, by controlling the person of the infant, and by removing it personally from the custody of its natural or legal guardian, even from the custody of its own parents.’ That this latter jurisdiction may be lawfully exercised by the district courts of this state is held in Legate v. Legate, 87 Tex. 248 [28 S. W. 281], and in other cases which need not be cited.”

Article 7 of our statutes, which was enacted since the rendition of the leading decision of Legate v. Legate, supra, and others which have followed it, reads as follows:

“Nothing in this article shall prevent a court of competent jurisdiction from taking away from such adoptive parent the custody of the adopted child and awarding the same to its natural parents, or either of them, or to any other person, upon proof of the had moral character of such adoptive parent, or upon proof of abuse, neglect, or ill treatment of such adopted child by the adoptive parent.”

Appellants insist that article 7 implies a denial to courts of authority to deprive the adoptive parent of the custody of the adopted child for any reason except those specified in' that article. None of our statutes purports to change the rule of decisions theretofore established in so far as applicable to the question of custody of a child by his natural parents, and it -would be unreasonable to conclude that by article 7 of the statutes the Legislature intended to give to the adoptive parent a right of custody superior to that of the natural parent. We are inclined to think that conditions might exist aside from those mentioned in article 7 which would lead to the conclusion that the welfare of a child would be best subserved by transferring its custody from the adoptive parent to another; but a decision of that question in the present case is unnecessary, because: First, to require the adoptive parents to allow the child to visit in the home of her grandmother in no sense deprives appellants of the custody of the child. Such provisions are often made in cases of like character, and the authority of the court to so decree is well settled. Ex parte Ellerd, 71 Tex. Cr. R. 285, 158 S. W. 1145, Ann. Cas. 1916D, 361. Second, it is too plain for argument that the welfare and happiness of the child Geneva Hussey will be materially advanced by association with her brothers, little sister, and grandmother, especially if the grandmother obeys, as we must presume she will do, the court’s injunction to refrain from any efforts to prejudice the mind of the child against her foster parents. Nor has the finding of the court to that effect, as a matter of fact, been questioned by appellants by any assignment. And the refusal of appellants to permit such visits by the child, or to permit such visits to the child by her grandmother, as shown by the evidence, would be a neglect of the welfare of the child within the meaning of article 7 of the statutes.

Appellants have cited the decision of the Supreme Court of Louisiana in Re Succession of Louise Marie Reiss, 46 La. Ann. 347, 15 South. 151, reported in 25 L. R. A. 798, in which it was held that the court had no authority to require the father of his children whose mother was dead to send the children to visit their grandmother. It appears that the objections on the part of the father to such requirement were based solely upon personal differences and incompatibilities between the father and grandmother of the children, and the children were of the tender age of six and eight years. In the opinion the court states that the question involved was one of first impression in the state of Louisiana. Reference is made to the Civil Code of France, with the remark that it is similar to the Code of Louisiana upon the subject, and, after referring to the conflict in the authorities upon the subject, the court uses the following language:

_ “We refer approvingly to the French authorities only so far as they lay down the principles that it is not a vinculum juris, and that the obligation ordinarily to visit parents is moral, and not legal. There may be cases of downright wrong and inhumanity demanding judicial intervention, even to the extent of dismissing the father and tutor from his trust. The case at bar does not disclose so grave an issue. Ill feeling and bad blood separate the father and grandmother. The former admits the respect due the latter by the children. The ties of nature will prove more efficacious in restoring kindly family relations than the coercive measures which must follow judicial intervention.”

In a note to that decision it is stated that the decision is the first of its kind in this country, and following that statement is the further statement of the general rule prevailing that the custody of children will be awarded with reference to the interest of the children as the controlling consideration, and numerous authorities are cited which announce the rule the same as announced in the decisions of our own state, which latter decisions we consider binding upon this court, and which we believe to be sound in principle. Accordingly appellants’ assignment of error noted above is overruled.

Appellee, Mrs. Morris, has filed a cross-assignment of error to the action of tlie court in refusing to award the custody of Geneva Hussey to her grandmother instead of to appellants, R. Kirby and wife. By another cross-assignment it is insisted that at all events the trial judge should have allowed Geneva Hlussey the privilege of visiting in her grandmother’s home at least once a week, and appellee asks that the decree of the trial court should be so reformed as to allow these additional visits, in the event the first cross-assignment of error should be overruled.

As the trial judge had all the witnesses before him, we feel unable to disturb his decision upon either of the questions presented in the two cross-assignments of error, although it seems to us that the facts would have justified a finding requiring more frequent visits than required by the court’s decree. It appears from appellants’ brief that their personal animosity towards the grandmother alone forms the only basis for their objections to visits by Geneva Hussey to her grandmother and brothers and sister. It is not contended that any harm will result to the child from such visits, and it is difficult for us to reconcile the decision of the adoptive parents to deny such visits altogether with the love and affection which they assert for the child, and their alleged interest in the child’s welfare. It is to be noted that the trial court did not find that the welfare of the child would not be subserved by more frequent visits, but his findings are to the effect that the visits should be at least once a month. The decision is in no sense res ad-judicata upon the child, herself, and will be no bar to a requirement for more frequent visits in the future, if the conditions should change, or if, for any reason, within the opinion of the court, the welfare of the child would be promoted by more frequent visits. Accordingly the appellee’s cross-assignments will be overruled, but we deem it not amiss to suggest in the interest of the child, who is in no rüanner responsible for, these unfortunate animosities between appellants and appellee, that the record suggests no reason why the parties could not forego such personal differences for the sake of the child alone, if not for other reasons, since both parties manifest deep interest in the child’s welfare.

The judgment with respect to the custody of Geneva Hussey is affirmed. The judgment in favor of Mrs. Morris against J. O. Hussey for the custody of the other two children, of which no complaint is made, is undisturbed.

On Motion for Rehearing.

This appeal was prosecuted not on a super-sedeas bond, but on a bond for costs only. By article 2100, V. S. Tex. Civ. Stat., it is expressly provided that, when an appeal or writ of error is prosecuted solely upon such a bond, and not upon a supersedeas bond, the same shall not have the effect to suspend the judgment, but execution shall issue thereon as if no such appeal or writ of error had been taken.

As the judgment of the trial court has never been suspended, the same can be enforced, notwithstanding the appeal by proper process issued from the trial court. Accordingly appellee’s motion for the issuance of such process from this court is overruled.

Appellants’ motion for rehearing likewise is overruled.
      cte>For otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    WRIGHT v. M. M. GRAVES CO.
    (No. 1252.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 21, 1917.)
    Corporations <®=3503(2) — Venue — Actions on Contract.
    Where a contract, subject to confirmation by defendant corporation, was executed by plaintiff and defendant’s agent in L. county, and was confirmed by a telegram submitted to plaintiff, and consented to by him in L. county, the agreement was completed there, and plaintiff’s action for breach, was properly brought in such county, although defendant resided in another, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2308, subd. 4, providing that suit upon a contract in writing can be brought •in the county in which such contract was to be performed, and subdivision 10, providing that suits against private corporations may be brought in any county in which the cause of action arose.
    Appeal from Lubbock County Court; J. H. Moore, Judge.
    Suit by L. B. Wright against M. M. Graves Company. Plea of privilege was sustained, and the cause ordered removed to another county, and plaintiff appeals.
    Reversed and remanded.
    Bean & Klett, of Lubbock, for appellant. W. H. Bledsoe, of Lubbock, for appellee.
   HALL, J.

Appellant Wright sued appellee, a corporation, in the justice court of precinct No. 1, Lubbock county, to recover damages to' the extent of $187.50, for breach of a written contract previously entered into by and between the parties. Defendant filed a plea of privilege in the justice court, alleging that it was a corporation; that at the time of the institution of the suit and at the time of service of process, the company’s principal office and domicile were in the city of Houston, in precinct No. 1, Harris county, Tex., and prayed that the cause be transferred to the justice court of said last named precinct. This plea was sustained by the justice of the peace, and upon appeal to the county court it was again sustained, and the cause ordered removed as prayed for.

The controversy is presented here upon one assignment of error, and the proposition is advanced that the venue of a suit against a private corporation for breach of contract. is maintainable in the precinct where the contract was made, on the ground that the cause of action, or a part thereof, arose there. The contract introduced in evidence states that the appellee has sold to L. B. Wright, of Lubbock, Tex., certain merchandise described in the order, and further contains these two provisions:

“Terms cash, as shipped. All bills date from bill of lading and are payable with Houston exchange, it being- hereby agreed that all moneys due under this contract are to be paid and all obligations imposed hereby are to be performed and discharged in Houston, Harris county, Tex.”
“It is understood and agreed that all representations and agreements on which this contract is based are embodied herein, subject to confirmation of M. M. Graves Company.”

The following telegram was introduced in evidence:

“Houston, Texas, March 17, 1915. Luther Williams, Plain view, Texas. Confirm Wright and Kelsey sales, provided price is basis Texas common points as specified on our quotations, customers paying the differential in freight to Lubbock and Lorenzo. * ⅜ * M. M. Graves Co., Inc.”

There is an agreed statement of facts in part as follows:

“It is agreed that the defendant, M. M. Graves Company, is a corporation with its domicile in Houston, Harris county, Tex.; that it has never had an office or agent in Lubbock county, Tex.; that the contract sued on was signed by L. B. Williams for M. M. Graves Company, as sellers, and by plaintiff, L. B. Wright, as purchaser in the said L. B'. Wright’s store in precinct No. 1, Lubbock county, Tex., on March 16, 1915, the said L. B. Williams taking the original of the contract, and the plaintiff, L. B. Wright, taking the carbon copy thereof; that on- Biarch 17, 1915, the said Williams, while in' Plainview, received a .telegram from Graves, which has been introduced in evidence; that in a day or two said Williams called at said store and showed plaintiff said telegram, and told him said contract was confirmed, said telegram being directed to Luther Williams, who it is agreed is L. B. Williams.”

Vernon’s Sayles’ Civil Statutes, art. 2308, relating to venue in the justice court, provides as follows:

“Every suit in the court of a justice of the peace shall be commenced in the county and precinct in which the defendant, or one or more of the. several defendants, resides, except in the following case, and such other cases as are or may be provided by law.”

Subdivisions 4 and 10 of this article, being part of the exceptions referred to in the above-quotation, are as follows:

“4. Suits upon a contract in writing promising performance at any particular place may be brought in the county and precinct in which such contract was to be performed.”
“10. Suits against private corporations, associations and joint-stock companies may be brought in any county and precinct in which the cause of action or part thereof arose, or in which such corporation, association or company has an agency or representative, or in which its principal office is situated.”

In the case of Western Wool Commission Co. v. Hart (Sup.) 20 S. W. 131, the Supreme Court, approving the commissioners’ decision, held:

“ * * * In the case under consideration the plaintiff seeks a recovery on the ground that ‘a part of the cause of action arose’ in Howard county, Tex. That a part of it arose in that county is manifest, because if the facts [the dealings and transactions between plaintiff and Robinson, appellant’s agent in Howard county] be eliminated from this controversy, plaintiff could not recover. That part of the cause of action which arose in that county is so essential to the existence of the cause of action as a whole that there would be none without it. It has been held that, where ‘the cause of action, to be within the jurisdiction of the. court, must have arisen within its territorial jurisdiction, the phrase means the whole cause of action.’ This necessarily includes every fact to be proved to entitle the plaintiff to succeed, and every fact the defendant would have a right to deny. 3 Am. & Elng. Enc. of Law, p. 46, note 1. It was doubtless one of the purposes of the Legislature to authorize the plaintiff to sue in those counties where ‘a part of the cause of action arose’ against corporations, and’ not to restrict him to the vigorous requirement that every fact necessary to constitute the whole cause of action should occur in a county to give jurisdiction.”

In Mangum v. Lane City Rice Milling Co., 95 S. W. 605, Pleasants, J., said:

“Under section 23, art. 1194, suits against private corporations may be brought in any county in which the cause of action or a part thereof arose, and it is .well settled that a cause of action growing out of a breach of contract arises, in part, in the county in which the contract was made, although the breach may wholly occur in a different county. A cause of action consists of the right of the plaintiff, as well as of the injury to that right, and when the right arises from or is based upon a contract, such right comes into existence at the time or place of the making of the contract, and it necessarily follows that a cause of action growing out of a breach of contract arises, or comes into existence, in part, at the place at which the contract was made.”

The statute above quoted does not require that the plaintiff shall file his suit in the county where the obligation is made payable, but subdivision 4 expressly provides that it may be brought in such county, and according to the clear language of subdivision 10, when the suit is against a private corporation, the plaintiff may institute it in the' county and precinct in which a part of the cause of action arose. As said by the Supreme Court, in Carro v. Carro, 60 Tex. 395:

“Those exceptions which are of a dissenting character are provided for the benefit of the plaintiff, and give him choice between the different counties in selecting thq place in which he will commence his action. Kinney v. MeCleod, 9 Tex. 78. * * * If these are all discretionary, being enacted for the advantage of the plaintiff, we see no reason why he should not have the full benefit of the enactment, and be allowed to choose which of them he will adopt.”

In the light of the above-quoted language from article 230-8, under the agreed statement of facts that the contract was executed in Lubbock county, it is our opinion that the court erred in sustaining the plea of privilege and ordering the transfer to Harris county.

The appellee contends that, since the contract provided that it was subject to confirmation of M. M. Graves Company the contract was not binding in the county where it was made, but became binding only at the time and place where it was approved by the company. As shown, this contract was approved by the telegram quoted above upon the conditions named in it, and when the telegram was submitted to appellant the conditions were assented to, thus completing the agreement in Lubbock county. In Westinghouse E. & Mfg. Co. v. Troell, 30 Tex. Civ. App. 200, 70 S. W. 324, Neill, Justice, discussing the consummation of a contract which was subject to approval, said:

“A cause of action is made upon the contract and breach of it. It takes these two parts, at least, in this and like cases, to constitute the whole cause of action, within the meaning of the statute quoted; otherwise the added phrase, ‘or a part thereof,’ would be without meaning (citing authorities). The contract having been made and entered into between the parties in Guadalupe county (for its approval by a.n executive officer of the company in Pennsylvania, related to the time and place it was made, and was only a ratification of it), we must hold, under the authorities cited, that a part thereof accrued or arose in that county, and that appellant’s plea of privilege of being sued in the county of the residence of its agent was properly overruled.”

For the reasons stated, the judgment is reversed, and the cause remanded.
      <j£xoEor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MEACHAM v. O’KEEFE.
    (No. 8709.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 20, 1917.
    On Motion for Rehearing, Nov. 24, 1917.)
    1. Judgment <§=>603 — Causes oe Action Barred — Successive Causes oe Action.
    A lease for 26 months for a rental payable monthly was a divisible contract and authorized a suit for each monthly installment of rent as it became due and unpaid, and a judgment for the rent for several months, though satisfied, did not bar a subsequent action against the lessee and a guarantor for the rent for subsequent months.
    2. Chattel Moetgages <§=>138(3) — Priority Between Moetgage and Landlord's Lien.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5490, providing that the landlord’s lien for rent shall not continue or be in force for longer than the current contract year, divides a lease for more than one year into a series of yearly contracts, and where after the tenancy commenced the lessee gave a chattel mortgage which was not filed forthwith but was filed before the commencement of the second year of the term, the lien of the chattel mortgage was superior to the landlord’s lien for the rent for the second year.
    3. Guaranty <©=>62 — Discharge—Release oe Other Security.
    Where a chattel mortgage was a lien superior to a landlord’s lien on property levied on by the landlord under a distress warrant, a guarantor of the rent was not discharged by the landlord’s surrender of the property to the mortgagee.
    4. Trial <©=>256(12) — Instructions — Necessity oe Requests.
    In an action against a lessee and a guarantor for rent and' to foreclose a landlord’s lien, where the guarantor did not request an instruction telling the jury to find the value of any property levied on by a distress warrant, except such as was covered by a chattel mortgage and surrendered to the mortgag'ee, the failure to tell the jury to find the market value of other goods was not error.
    On Motion for Rehearing.
    5. Appeal and Eeror <§=832(4) — Failure to Raise Questions Below — Assignments oe Error.
    In an action against a lessee and a guarantor for rent and to foreclose a landlord’s lien, where the guarantor did not plea that the landlord’s lien had been waived by the taking of a mortgage, but on the contrary specially pleaded that the landlord had a lien which he had lost by releasing the property to a chattel mortgagee < and thereby had discharged the guarantor, and the contention that the landlord’s lien was waived by taking the mortgage was not presented in any assignment of error, such contention could not be urged for the first time on motion for rehearing.
    Appeal from Tarrant County Court; Charles T. Prewitt, Judge.
    Action by C. A. O’Keefe against T. O. Meacham and another. From a judgment for plaintiff, the defendant named appeals.
    Affirmed.
    Charles T. Rowland and Marvin H. Brown, both of Ft. Worth, for appellant. Bryan, Stone & Wade and W. C. Blalock, -all of Ft. Worth, for appellee.
   DUNKLIN, J.

O. A. O’Keefe leased a building situated in Ft. Worth to L. EJ. Day. The lease was in writing dated June 8, 1914. and covered a period of 26 months, beginning July 1,1914, and ending August 31,1916. Indorsed on the lease and bearing same date was an instrument in writing signed by T. O. Meacham, stipulating that for a valuable consideration paid to Meacham, he, the said Meacham—

“hereby becomes surety on this lease and agrees that he is held and firmly bound for the faithful performance of this lease and for the payment of all sums of money hereafter becoming due under and by virtue of all the terms and conditions of this lease. I waive all notice of default on the part of lessee.”

Day was engaged in the saloon business and leased the building for that purpose. The rental contracted to be paid was $225 per month, payable monthly. This suit was instituted by O’Keefe against Day, as principal, and Meacham, as guarantor, to recover rents for the months of March, April, May, and June, 1916, which were alleged to be unpaid, and to foreclose a landlord’s lien upon certain property owned by Day and situated in the building. From a judgment in favor of plaintiff, Meacham alone has appealed.

One of the defenses pleaded by Meach-am was a special plea to the effect that theretofore, on August 18, 1915, plaintiff had instituted a suit upon the same lease contract which had terminated in a final judgment in his favor on December 9, 1915, in the sum of $460, which had been satisfied, and by reason of said judgment and the payment thereof, Meacham had been released from any further liability upon his contract of guaranty. A special exception addressed to that plea was sustained, and this ruling has been assigned as error. Notwithstanding that ruling, proof was made of the facts alleged in the plea. Those facts were as follows: Suit was filed September 30, 1915, in the district court of Tarrant county, to recover the rents due under said contract up to the date of the final trial of the suit, the petition containing an allegation that Day had defaulted in some of the monthly installments of rent. On December 9, 1915, a judgment was rendered in that suit in plaintiff’s favor for the sum of $460, which judgment was afterwards paid off and satisfied in full, as shown by plaintiff’s written receipt dated April 8, 1916.

In addition to a complaint of the action of the court in sustaining an exception to the special plea noted, appellant insists that under the proof mentioned the court should have granted his request for an instructed verdict in his favor. The contention is predicated upon the proposition that the lease contract was not severable, but was an entire contract, and that there could be but one recovery and satisfaction thereunder. This contention is overruled.

The contract was clearly divisible, and authorized a suit ior each monthly installment of rent as it became due and was unpaid, and the former judgment mentioned was no bar to the present suit. Racke v. Anheuser Busch Brewing Ass’n, 17 Tex. Civ. App. 167, 42 S. W. 774; Davidson v. Hirsch, 45 Tex. Civ. App. 631, 101 S. W. 269; Williams v. Houston Cornice Works, 46 Tex. Civ. App. 70, 101 S. W. 839, 1195; Jones v. Gammel Statesman Publishing Co., 100 Tex. 320, 99 S. W. 701, 8 L. R. A. (N. S.) 1197.

On July 9, 1914, nine days after his tenancy had begun, Day executed a chattel mortgage to August A. Busch & Co. upon all the furniture and fixtures in his saloon to secure an indebtedness in the sum of $600, evidenced by a promissory note of even date with the mortgage, due one day after date. That mortgage was not filed for record until August 15, 1914, one month and six days after the date of its execution.

In the present suit a distress warrant sued out by the plaintiff was levied upon the property covered by the chattel mortgage, as well as upon certain goods found in the saloon. After the levy of the writ, Busch & Co., the holder of the chattel mortgage, demanded a release of the furniture and fixtures covered by the mortgage from the levy made under the distress warrant. After some controversy and negotiations between the representative of Busch & Co. and one of the attorneys for O’Keefe, the latter finally decided to comply with the demand made by Busch & Co. and accordingly released the levy upon the property covered by the chattel mortgage and turned the same over to Busch & Co., who removed the same from the premises and no recovery was sought upon that property.

Appellant specially pleaded those facts in connection with the allegation that plaintiff had a landlord’s lien upon the property covered by the chattel mortgage which was superior to said'mortgage, and that by virtue of the release of the said property to Busch & Co., he, appellant, as surety for Day, had also been released and discharged from any liability under his contract of suretyship or guaranty, and, at all events, to the extent of the market value of the property so released, which the jury found to be the sum of $450. Several assignments of error have been presented to the action of the court in overruling that defense.

By article 5490, Vernon’s Sayles’ Texas Civil Statutes, it is provided that the landlord’s lien for rents upon any residence, storehouse, or other building, shall not continue or be in force for a longer period than the current contract year. And it is well settled by the authorities that the effect of that statute is to divide a lease contract for more than one year, so far as the lien is concerned, into a series of yearly contracts corresponding with the number of years covered by the lease. See Low v. Troy Laundry Machinery Co., 160 S. W. 136; Allen v. Brunner, 33 Tex. Civ. App. 128, 75 S. W. 821. Under those authorities it thus appears that plaintiff had a landlord’s lien to the exclusion of the mortgage lien for the rents due the first year of the lease which ended July 1, 1915, but that the landlord’s lien for the second year beginning July 1, 1915, and ending July 1, 1916, did not accrue until the beginning of that year.

While Busch & Co. did not file their chattel mortgage forthwith, within the meaning of the registration statute (Austin v. Welch, 31 Tex. Civ. App. 526, 72 S. W. 881), nevertheless having been filed on August 15, 1914, prior to the beginning of the plaintiff’s landlord’s lien for the second year, it took precedence over the lien for the rents accruing during that year. See Moore v. Masterson, 19 Tex. Civ. App. 308, 46 S. W. 855; American Type Founders Co. v. First National Bank, 156 S. W. 300.

As noted already, this suit was for the rents due for the months of ’March, April, May, and June of the year 1916, which was secured by landlord’s lien for the second year of the lease contract, and hence the mortgage lien was superior to the landlord’s lien for those rents, and the surrender of the property covered by the mortgage did not operate as a release of appellant Meacham from liability under his contract of guaranty.

Since appellant did not request an instruction to the jury to find the value of any of the property levied on by the distress warrant, except such as was covered by the chattel mortgage, the ninth assignment, submitted here apparently as fundamental error, as it does not appear to have been made one of the grounds for a new trial in appellant’s motion therefor, to the failure of the court to instruct the jury to find the market value of other goods levied upon under the distress warrant, and upon which he alleges no foreclosure was decreed, must be overruled.

For the reasons stated all assignments of error are overruled, and the judgment affirmed.

On Motion for Rehearing.

Appellant in his motion for rehearing for the first time now contends that appellee waived his statutory landlord’s lien by taking from the tenant, Day, a mortgage lien on all property placed in the building by the tenant during the tenancy, as specifically stipulated in the lease contract itself.

In the trial court plaintiff alleged and claimed his statutory landlord’s lien to the exclusion of such mortgage lien. Not only did appellant fail to plead that the landlord’s lien had been waived by the taking of such mortgage lien, but he specially pleaded that plaintiff was entitled to a landlord’s lien which he had lost by reason of his release of property covered thereby to August A. Busch & Oo. Nor was the contention now urged that the landlord’s lien was waived by taking the mortgage lien, presented in any assignment of error. Hence it is too clear to require argument that he is in no position to urge that contention now. Scarbrough v. Alcorn, 74 Tex. 858, 12 S. W. 72; Etna Ins. Co. v. Holcomb, 89 Tex. 404, 34 S. W. 915; Tex. Produce Co. v. Turner, 27 S. W. 583; Moody v. Rowland, 100 Tex. 363, 99 S. W. 1112.

The motion for rehearing is overruled.

CONNER, C. J., not sitting, serving on writ of error committee at Austin.
      <fc»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONNER, O. J.

text:
    HARTMAN et al. v. KEYS.
    (No. 8754.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 30, 1917.
    Rehearing Denied Oct. 13, 1917.)
    Banks and Banking ⅞^>287(4) — National Banks — Actions Against Receivers — Injunction.
    Under Rey. St. U. S. § 5242 (U. S. Comp. St. 1916, § 9834), providing that no attachment, injunction, or execution shall be issued against a national banking association or its property before final judgment in any suit or action in any state, county, or municipal court, the court had no authority to grant a preliminary injunction in a suit against the receiver of a national bank to enjoin him from suing on a note given by directors to make good an impairment of the capital of the bank.
    Appeal from District Court, Eastland County; Joe Burkett, Judge.
    Suit by J. W. Hartman and others against Paul C. Keys, receiver. From an order dissolving a preliminary injunction, plaintiffs appeal.
    Affirmed.
    J. J. Butts, of Cisco, for appellants. D. K. Scott, of Cisco, for appellee.
   CONNER, O. J.

This appeal is from an order in chambers of the Hon. Joe Burkett, judge of the Forty-Second judicial district, dissolving a preliminary writ of injunction theretofore issued in the above-styled cause. Appellants J. W. Hartman, W. W. Moore, J. A. Chesley, and J. J. Butts, who sought and obtained the original writ of injunction, alleged in their petition therefor the following facts, briefly and substantially stated, viz.: That on the 13th day of October, 1913, the Merchants’ & Farmers’ National Bank of Cisco, Tex., was a banking corporation organized and created under and by virtue of the laws of the United States authorizing the incorporation of national banks, and then was and for a long time prior thereto had been engaged in the banking business at Cisco; that such business continued until on the - day of November, 1915, when the bank became insolvent and its assets were placed in the hands of Paul C. Keys, as receiver, by the Comptroller of Currency of the United States; that one J. Alexander together with the plaintiffs were members of and constituted the board of directors of said bank and were acting as such at the time the bank was placed in the hands of a receiver, as stated; that the defendant, Paul C. Keys, qualified as such receiver and was continuing to so act at the time of exhibiting the petition for the injunction. It was further alleged that theretofore, on the 13th day of October, 1913, one Hutt, a national bank examiner, made an examination into the condition of the bank, and then and there directed and required the board of directors to charge off certain bills receivable then being carried on the books of the bank as assets, which was then and there accordingly done; that the effect was to impair the capital of the bank to the extent of $2,500, which said bank examiner required to be made good, either by an assessment to be levied upon the shares of the capital stock of the bank or otherwise; that the board of ■directors fearing that an assessment on the shares of the stock of the bank would, should the fact become known, seriously militate against the interest of the bank and probably result in a run being made on it, finally, as was suggested could be done, executed a joint note payable to the bank for an amount sufficient to cover the impairment of the capital stock caused by charging off unapproved assets, as stated. It was alleged that said note was in the sum of $2,500, and was executed by the petitioners, together with the said J. Alexander and W. H. Tebbs, cashier; that the sole purpose and consideration of the note was to prevent and avoid an assessment being made on the shares of stock in the bank and for the protection and accommodation of the stockholders and of each and every one of them, and'for no other purpose, and that, accordingly, all stockholders by an agreement in writing alleged to be in the possession of the defendant receiver, consented and agreed that the note could be paid out of the earnings of the bank; that thereafter the sum of $500 had been paid on the note so executed out of the earnings of the bank, and the note was renewed and the time of payment extended by the execution of a new note for the sum of $2,000, the new note, as was the old, being made payable to the bank, and which it was alleged was now held by the defendant receiver. It was further averred that the receiver had collected the sum of $300 on the bills receivable that had been charged off which had been credited on the $2,000 note, but that the remainder was unpaid; that since the appointment of the receiver no assessment had ever been made against the shares of the stock of the bank; that at least 50 per cent, of the assets of the bank were still in the possession of the receiver, and it was believed that from such assessment and the proceeds of such assets all liabilities of the bank could be extinguished without resort to the unpaid balance on said $2,000 note, but notwithstanding which it was charged that the receiver was threatening to sue the petitioners for a recovery, and the injunction was sought in order to restrain him from so doing, until, at least, it should become necessary, if at all, after having exhausted lawful assessments against the stockholders and their assets in the hands of the receiver.

As indicated, upon presentation of the petition, which was duly verified, an order therefor was duly made and a preliminary writ of injunction was duly issued, enjoining the receiver in terms as prayed for, but thereafter the receiver presented his motion to dissolve the injunction, which motion was sustained, the injunction dissolved, and this appeal prosecuted, as stated.

It appears that the writ was dissolved on the ground that the court, under the circumstances alleged, was not authorized to issue the writ, and in so determining we think the honorable judge ruled correctly. Section 5242 of the Federal Statutes Annotated, vol. 5, bottom page 1SS, is as follows:

“All transfers of the notes, bonds, bills of exchange, or other evidences of debt owing to any national banking association, or of deposits to its credit; all assignments of mortgages, sureties on real estate, or of judgments or decrees in its favor ; all deposits of money, bullion, or other valuable thing for its use, or for the use of any of its shareholders or creditors; and all payments of money to either, made after the commission of an act of insolvency, or in contemplation thereof, made with a view to prevent the application of its assets in the manner prescribed by this chapter, or with a view to the preference of one creditor to another, except in payment of its circulating notes, shall be utterly null and void; and no attachment, injunction, or execution, shall be issued against such association or its property before final judgment in any suit, action, or proceeding, in any state, county, or municipal court.”

The history of the section is traced by the Supreme Court of the United States in the case of Pacific National Bank of Boston v. Mixter, 124 U. S. 721, 8 Sup. Ct. 718, 31 L. Ed. 567, and the conclusion there reached was that the provision that “no attachment, injunction, .or execution shall be issued against such association, or its property, before final judgment in any suit, action or proceeding, in any state, county, or municipal court,” operates as a prohibition upon all attachments against national banks under the authority of a state court. That the provision “stands now, as it did originally, as the paramount law of the land that attachment shall not issue from state courts against national banks, and writes into all state attachment law an exception in favor of national banks. Since the act of 1873 all the attaeh,ment laws of the state must be read as if they contained a provision in express terms that they were not to apply to suits against a national bank.” It is impliedly conceded, as indeed it must be, that what was thus said by the 'Supreme Court of the United States applies with equal force to writs of injunction ; the prohibitory words of the -sec-tion applying to writs of attachment and to writs of injunction alike.

Appellants’ only contention in this respect is that what was said in the case of the Bank v. Mixter in relation to the want of power in state courts to issue the writs referred to against a national bank was not necessary to the decision in that case, and hence obiter, and of no binding force, and the case of Robinson v. National Bank of New Berne, 81 N. Y. 385, 37 Am. Rep. 508, is cited in opposition. In the latter case the plaintiff, who resided in the state of New York,' was a creditor of the defendant National Bank located in North Carolina, and instituted a suit in the state court of New York against the defendant, and procured the issuance of a writ of attachment, and caused the same to. be levied upon property of the defendant in the state of New York. The defendant moved to dissolve the attachment on the grounds: (1) That the state court had no jurisdiction over the action; and (2) that it had no jurisdiction to grant the writ of attachment. The trial court held that it had jurisdiction and upheld the attachment proceedings, and on appeal to the Court of Appeals the judgment of the trial court was sustained. The appellate tribunal of New York, after reviewing section 5242 of the Federal Statutes, concluded that the object of the entire section is to prevent one creditor of a corporation whose assets are insufficient to meet its liabilities from obtaining a preference, whether it is sought through a voluntary assignment or in the form of a legal proceeding, and that, hence, the case before it. not being one of that kind, the court below had the power to issue the attachment there under consideration. The New York decisions are not available to us, but we infer from references in decisions before us that the holding in the case of Robinson v. National Bank was later abandoned by the appellate courts of that state. At all events, it must, we think, be held no longer maintainable even there. See Henry Van Reed, Plaintiff in Error, v. People’s National Bank of Lebanon, Pa., 198 U. S. 554, 25 Sup. Ct. 775, 49 L. Ed. 1161, 3 Ann. Cas. 1154. The case last cited was one in error to the Court of Appeals of the state of New York reviewing a judgment of the appellate tribunal vacating attachment proceedings issued in behalf of the plaintiff in error. In disposing of the appeal, the Supreme Court of the United States, among other things, said:

“The-right of Congress to determine to what extent a state court shall be permitted to entertain actions against national banks and how far these institutions shall be subject to state-control is undeniable. National banks are quasi public institutions, and for the purpose for which they are instituted are national in their character, and, within constitutional limits, are subject to the control of Congress and are not to be interfered with by state legislative or judicial action, except so far as the lawmaking power of the government may permit.” ■ ■ •

' The court then quotes section 5242, to which we have referred, and further says:

“The language of the latterclause of.this section would seem to he too plain to admit of discussion as to its meaning. It in terms forbids the issuing of an attachment, injunction, or execution against a national bank, or its property, before final judgment in any suit, action, or proceeding in any state, county, or municipal court.”

And the case of National Bank v. Mixter, hereinbefore mentioned, was expressly cited with approval, and with reference to that case it was said: -

“Since the rendition of that decision,_ it has been generally followed as an authoritative construction of the statute holding that no attachment can issue from a state court before judgment against a national bank or its property.”

And cases from Massachusetts, Georgia, Minnesota, Vermont, Tennessee, and a federal decision are cited in support of the statement. See, also, Freeman Mfg. Co. of North Adams v. National Bank of Republic of Boston, 160 Mass. 398, 35 N. E. 865, by the Supreme Judicial Court of Massachusetts, and Meyer et al. v. First National Bank of Coeur d’Alene et al., 10 Idaho, 175, 77 Pac. 334, by the Supreme Court of Idaho, in both of which cases an asserted right to an injunction against national banks was expressly denied on the authority of section 5242 of the Federal Statutes, and of the decision in the case of National Bank of Boston v. Mixter, and of other cases cited.

We conclude that the equities of appellants’ petition are only available after final judgment in the receivership case, and that in the meantime no authority on the part of the state court exists to interfere with the custody and control of the receiver of the note executed by appellants to the Cisco National Bank, either by attachment, injunction, or otherwise.

The order of the court below, therefore, dissolving the injunction, is in all things affirmed.
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author: BUCK, J.

text:
    HALE v. McKENZIE.
    (No. 8728.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 10, 1917.)
    1. Partnership @=>219(3) — Judgment of Partner in Individual Capacity — Suit for Funds.
    Ordinarily it is error to enter judgment for a partner in his individual capacity, entitling him to recover funds shown to belong to the partnership.
    2. Parties @=>80(2½) — Nonjoinder—Waiver op Question.
    Defendant in a partner’s suit in his individual capacity to recover partnership funds, who failed at the proper time to have plaintiff’s partner brought in as a party, and to have his rights determined, waived any question of nonjoinder of parties.
    3. Judgment @=>262 — Motion in Arrest oe Judgment — Nonjoinder op Party.
    Nonjoinder of parties, when presented for the first time after judgment,, will not support a motion in arrest of judgment, but must be specially pleaded before trial.
    4. Appeal and Error @=>1073(3) — Harmless Error — Judgment for Individual Partner.
    In a suit for commission against the owner of the ranch sold, who paid unpaid part into court and interpleaded plaintiff and defendant, where defendant claimed part of commission on ground that plaintiff’s claimed partner had agreed to share it, though such claimed partner was not a party to the suit, judgment for plaintiff against defendant for the part of the commission which the owner had paid into court was not error prejudicial to defendant, where there was no agreement hy plaintiff’s claimed partner to pay defendant.
    5. Parties @=>96(1) — Omission of Persons Interested — Consent or Disclaimer.
    Where persons who may be interested consent to a decree sought, or expressly disclaim all interest in the controversy, they are not necessary parties, unless their presence is required for the protection of other parties before the court, and any error in omitting them originally is cured by a subsequent consent or disclaimer.
    Appeal from Taylor County Court; E. M. Overshiner, Judge.
    Suit by J. E. McKenzie against W. M. Coleman, who interpleaded R. P. Hale. From a judgment for plaintiff, defendant Hale appeals.
    Judgment affirmed.
    J. M. Wagstaff, of Abilene, for appellant. Mahaffey & Fulwiler, of Abilene, for appel-lee.
   BUCK, J.

J. E. McKenzie sold certain ranch property in Taylor county belonging to W. M. Coleman, for the sum of $48,500, at an agreed commission of 3 per cent, on the selling price. R. P. Hale claimed that he was entitled to one-third of the commission, by reason of the alleged fact that he had pointed out to R. C. Burleson the Coleman ranch, and told said Burleson that he (Hale) had it for sale, and that if he (Burleson) and McKenzie would get a purchaser for it that he (Hale) would divide the commission with them, and that Burleson, whom Hale claimed was a partner with McKenzie in the real estate business, agreed to this arrangement. Coleman paid 2 per cent, of the commission claimed by McKenzie, and upon suit being filed by McKenzie against him 'for the other 1 per cent., he deposited in the registry of the court the 1 per cent., represented by $485, and in answer to plaintiff’s suit pleaded that he owed some one the $485, and alleged that there was a controversy between Hale and McKenzie as to the right to this amount, and he prayed that the court determine the rights of the claimants McKenzie and Hale to this fund, and that he (Coleman) be discharged with his costs.

McKenzie denied that either he or R. C. Burleson entered into any agreement with Hale, who had been made a party defendant, whereby they agreed to divide any commission with Hale, and denied that any agreement had been entered into between him and Burleson, whereby they were to give Hale one-third of the commission for the sale of said land, and denied that he and Burleson were partners in the real estate business or were acting together in the sale of said land, hut alleged that he had begun preparations to sell said land before he ever heard that Hale was trying to sell same, and that he in person made a contract for the sale of said land with the defendant Ooleman.

The cause was submitted to a jury on special issues, and the jury found: (1) That at the time Hale claimed to have made an agreement with Burleson as to a division of commissions on the sale of the Ooleman ranch, said Burleson and McKenzie were partners in the sale of said ranch; (2) that said Burleson did not agree to pay Hale a part of the commission on the sale of the ranch. Thereupon the court entered a judgment that McKenzie recover from Ooleman and Hale the sum of §485, then deposited in the registry of the court, and that Hale take nothing by his cross-action, and that McKenzie recover from Hale all costs. From this judgment, Hale has appealed.

Appellant urges in his first assignment that the judgment entered on the special finding of the jury is contrary to the law and the evidence, in that the jury found that McKenzie and Burleson were partners in the sale of the Ooleman ranch, and therefore were partners in the fund sued for, and that plaintiff having brought suit in his individual capacity, and Burleson not being a party to the suit, it was error to render judgment for McKenzie for the funds in dispute; that the court should have set aside the judgment and required the other partner to be brought into court and be made a party to the suit.

Appellant cites the cases of Speake v. Prewitt, 6 Tex. 257, and Houghton v. Puryear, 10 Tex. Civ. App. 383, 30 S. W. 583, and many others might be cited, to sustain the proposition that ordinarily it is error to enter judgment for plaintiff in his individual capacity, entitling him to recover funds shown to belong to the partnership. This rule of law is established for a dual purpose: First, to (protect the other partners who have a community interest in the fund or property sought to be recovered, and, second, to protect the adverse party, against whom a judgment may have been obtained, from having to respond to a second suit brought by the partner or partners not made parties litigant in the first suit. If appellant here, defendant below, desired to have Burleson made a party to the suit, he could have done so by a proper motion or pleadings, and had Burleson brought in and his rights determined. Having failed so to do at the proper time, he must be held to have waived any question of nonjoinder of parties. Nonjoinder of parties, in cases like the present, when' presented for the first time after judgment will not support a motion in arrest of judgment. It must be specially pleaded before trial. De Perez v. Everett, 73 Tex. 431, 433, 11 S. W. 388; Railway Co. v. Smith, 19 Tex. Civ. App. 114, 47 S. W. 279, writ denied.

Moreover, in this case the jury having found that in fact there was no agreement by Burleson to pay Hale a part of the commission, the appellant failed to show any error prejudicial to him by reason of the judgment entered. M. P. Ry. Co. v. Smith, 84 Tex. 348, 351, 19 S. W. 509; 2 Rowley’s Modern Law of Partnership', § 802, p. 1106. Burleson testified that he was not a partner with plaintiff in the land business, and that he did not agree with Hale that they would sell the Ooleman ranch and divide the commission. McKenzie, in his testimony, also denied the partnership with Burleson in the land business, or in the sale of this particular ranch. He testified that Burleson was his son-in-law, and that frequently they divided profits in the cattle business, and that he had divided commissions with Burleson in the sale, made shortly before this transaction, of the ranch belonging to Hale, because he desired to help his son-in-law along. In Bank v. Seton, 1 Pet. 299, 306, 7 L. Ed. 152, 155, it is said:

“The general rule¡ as to parties, undoubtedly is that when a bill is brought for relief, all persons materially interested in the subject of the suit ought to be made parties, either as plaintiffs or defendants, in order to prevent a multiplicity of suits, and that there may be a complete and final decree between all parties interested. But, this is a rule established for the convenient administration of justice, and is subject to many exceptions; and is, more or less, a matter of discretion in the court; and ought to be restricted to parties, whose interest is involved in the issue, and to be affected by the decree. * * * It is a well-settled rule that no one need be made a party, against whom, if brought to a hearing, the plaintiff can have no decree.”

Even as against Ooleman, who is not a party to this appeal, and therefore makes no complaint of the judgment rendered, no error is shown, inasmuch as Burleson, who testified in the case and denied that any partnership existed, would be estopped from setting up any claim as against Ooleman in the amount of the commission deposited by Ooleman in the registry of the court.

“Where persons who may be interested consent to a decree sought, or expressly disclaim all interest in the controversy, they are not necessary parties unless their presence is required for the protection of other parties before the court, and any error in omitting them originally is cured by a subsequent consent or disclaimer.” 15 Encyc. of Pleading and Practice, page 625.

Finding no prejudicial error'in the judgment rendered, appellant’s single assignment is overruled and the judgment is affirmed.

CONNER, C. J., not sitting, serving on writ of error committee at Austin.
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