author: HODGES, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. ROBERTSON.
    (No. 1661.)
    (Court of Civil Appeals of Texas. Texarkana.
    Oct. 26, 1916.)
    1. Railkoads <&wkey;312(3), 313 — Crossing Accident-Failure to Give Signal.
    Where a person was thrown from a wagon because, when he approached a crossing, a train standing nearby was started and moved partly over the crossing without giving the statutory signal or ringing the bell, the railroad company was liable; the failure to give the signal under the circumstances being negligence per se.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 990, 1002; Dec. Dig. &wkey;312(3),
    2. Railroads <&wkey;313 — Signals—Substituted Warning.
    When some other character of warning is relied upon by a railroad as a substitute for the statutory signals, it must appear that the injured party had actual notice of the substituted warning.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1002; Dec. Dig. <§==5313.]
    3. Railroads <&wkey;350(29) — Crossing Accident — Contributory Negligence — Question eob Jury.
    Where one crossing a set of tracks was suddenly told by a brakeman that a train on another track was to be moved, and was injured by being thrown from his wagon when he attempted to get out of the way, the question of his contributory negligence was for the jury, although if he had remained in the situation he was when warned he would not have been injured, since a person who is injured while acting upon the reasonable appearance of danger and in an effort to extricate himself is protected by the same rules which apply when the danger is real.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1188; Dec. Dig. <&wkey;350(29).]
    4.Trial <&wkey;242 — Coneusing Instructions.
    In action for injuries from crossing accident, an instruction that if the jury believed from the evidence that plaintiff was injured as alleged by him in petition and “that the same was the proximate result of the negligence of defendant * * * as alleged * * * in his petition, in either of the manners set out in paragraph 2, 3, 4, or 5,” without contributory negligence by plaintiff, then to find for plaintiff, etc., was erroneous as confusing, and apt to mislead, since the language used virtually told the jury that if the facts stated in any one of the paragraphs were found by them to be true, this was sufficient proof of negligence by defendant, although the acts and omissions mentioned in detail in paragraphs 4 and 5 were not charged therein to be negligent.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 569-576; Dec. Dig. &wkey;242.]
    5. Negligence <&wkey;141(8) — Contributory Negligence — Instruction.
    In action for negligent injuries, an instruction that if the jury believed that plaintiff’s injury was the proximate result of his own negligence and not due to the negligence of the defendant to find for defendant, was error as requiring the jury, in order to find for defendant, to find not oniy plaintiff’s contributory negligence, but also absence of any negligence of defendant.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. § 391; Dec. Dig. <&wkey;>141(8).]
    6. Trial <&wkey;256(l) — Instructions.
    A party desiring a more explicit or comprehensive presentation of an issue by the court should request it by appropriate instructions.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628, 633; Dec. Dig. &wkey;256(l).]
    Appeal from District Court, Marion County; J. A. Ward, Judge.
    Action by W. D. Robertson against the Missouri, Kansas & Texas Railway Company of Texas. From judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Seliluter & Singleton, of Jefferson, and Chas. C. Huff, of Dallas, for appellant. S. P. Jones and T. P. Harte, of Marshall, for ap-pellee.
   HODGES, J.

This appeal is from a judgment awarding the appellee $5,000 as damages for personal injuries sustained at a public crossing in the city of Jefferson, Tex. The facts show that the appellee resided in the country, and had gone to Jefferson that day with a wagonload of cotton, which he delivered at a warehouse near the appellant’s depot. The depot was located between two streets which crossed the appellant’s track at right angles. In going to the warehouse, which was on the east side of the railroad, appellee crossed the tracks north of the depot and turned south. While he was at the warehouse unloading his cotton a freight train came into the station from the north, and in due time openings were made so as to prevent blocking the street crossing; the train being divided into three sections. Appellee saw this train, and knew that it was still there when he left the warehouse. He returned by the same route he traveled in going, and undertook to cross the railroad at the same point north of the depot. A part of his route was parallel with the railroad, and he went on the crossing at an oblique angle. There were several sidetracks at that point, in addition to the main line. While he was attempting to drive his team around a box car standing on the main line, he fell from or was thrown out of his wagon and sustained the injuries for which he sued.

The first error assigned complains of the insufficiency of the evidence to support the verdict. In stating his cause of action the appellee sets out four distinct, and to some extent inconsistent, grounds of negligence. After proper preliminary ayerments, lie states liis cause of action in paragraphs 2, 3, 4, and 5 of his. petition. We shall state only the substance of these paragraphs, as follows:

Second. “The street leading from the cotton platform to appellee’s home was partially blocked, but a sufficient opening had been left to enable persons to cross. After the cars had been standing for some ten minutes or longer, plaintiff started to drive his team across the track; and after he had driven upon one of the tracks, and while in the act of driving his team across another immediately in front of him, one of the employés of the railway'company rushed suddenly from behind some cars and spoke abruptly, frightening the plaintiff’s team and causing same to shy and throw the plaintiff from his wagon against one of the cars or some other hard substance.”
Third. “When he was driving his team across the tracks, one of the employés of the defendant rushed from behind the cars and ordered the plaintiff to stop. Plaintiff, being in a perilous situation and not being able to tell whether the cars on the main line or one of the side tracks were about to be moved, endeavored to drive across the track, believing that was the safest course to take. The employe spoke in a loud tone of voice while he rushed from behind the car, which frightened the plaintiff’s team, causing them to shy and throw him from his wagon.”
Fourth. “While plaintiff was passing over the tracks of the defendant railway company, the defendant, its servants and employés in charge of the cars, without giving any warning whatever to the plaintiff, suddenly started the cars in motion, or struck them, making a loud noise, which caused plaintiff’s team to become frightened and jump or run, which jerked or threw him from the wagon, inflicting the injuries of which he complains.”
Fifth. “When the plaintiff approached the railroad tracks the cars were standing still, and there appeared to be nothing to prevent him from driving across. The employés of the defendant gave no signal or warning of any character that indicated that it was not safe for him to drive across or that there was any intention upon their part to cause the cars to move, until after plaintiff had driven his team upon the tracks and had placed the same in such position that any warning given to him only tended to confuse him. That he was in a position where he could not extricate himself from the dangers in a better way than by endeavoring to drive his team across all of the tracks. That while so doing the persons in charge of the train, without warning, started or struck the same, which caused a loud rattling noise, which frightened the plaintiff’s team and caused them to jump or run, by reason of which he was thrown from the wagon and injured.”

The appellee testified at length in his own behalf. His account of how the injury occurred is substantially as follows: A train came into the depot after he got to the eot-tonyard. He took it to be a freight train. This was between 2 and 3 o’clock in the afternoon. There were some wagons ahead of him, and he 'had to remain some little time before he could unload his cotton. There were three tracks to be crossed — two east of the depot, and one west of the depot. In going out from the platform he drove on the first track; and while his team was within three or four feet of the second track a man appeared and called to him in a loud voice, saying:

“Stop! You are going to be killed! 'Don’t you see that engine coming in there?”

The person seemed to be excited and in a hurry. When he heard that command he stopped his team and looked to see if he could discover the engine. He looked down the track some distance from him and saw the engine, which was emitting smoke or steam. He could not tell which track the engine was on. There were three or four c-ars on the track on which he had driven. When he discovered the engine in that situation he thought the best thing he could do would be to get off of this track. He knew that if the engine came back on that track it would be bound to hit his wagon, and thought if he could get in between the tracks, and probably cross, that would be the best way out. He says:

“I wanted to move on because I knew I could not stay where I was. I was afraid I would get hurt.”

The wagon was then on the east track, and the heads of his horses were on the next track. The first thing that occurred to him was to get off the side track and then get across the other. He then started his team and immediately turned round and called to his son, who was in another wagon following, not to come on to the crossing. At that time the team was moving slowly. He heard a “racket” and felt the team jerk. It was a bumping or knocking noise; he could not tell just what it was; it sounded like the train had started; it was right at his left towards the depot. When this occurred the horses jumped and jerked the wagon a little forward, turned to the right, and threw him out. He was standing up in the wagon at the time because he had no seat. The wagon bed was about a foot or more in depth. Another party, by the name of Bryant Williams, was in the wagon with him. He further testified that the bell was not rung or the whistle blown; that he heard no one warn him not to come on the track, until after he had crossed the first track. At the time the horses jumped he was looking back talking to the man in the next wagon. He states that he does not know definitely what frightened his team — whether it was some man coming from behind a car, or the noise of the train. He denied that the fall was caused by the wheel sliding along the side of the rail. He admitted, however, that the wheel did strike the rail at an oblique angle. He says:

“I could not swear what frightened my team. They shied to the right and cut the wagon, and it just flopped me out of it. I think the wheel struck the rails when they jumped; it was after I started the wagon — after I had stopped when the wagon slided when it struck the rails after I started the second time. I did not see the cars move. I don’t .know positively what frightened the horses. It was the fuss or something. They did not run away. I had the lines in my hands when I fell.”

The testimony of Bryant Williams, a witness for the plaintiff, is, in substance, that he was in the wagon with Robertson, resting on his knees, with his back towards Robertson, looking in a different direction from that in which the wagon was moving. He saw no one give Robertson any warning or signal to stop. Robertson did not stop his wagon, but kept on moving; and just as the team was going around the end of a car standing on the main line the string of cars was struck by the engine, causing them to move. The horses shied to the right and jerked the wagon. He turned his head just in time to see Robertson as he was falling.

Appellant introduced a considerable amount of testimony, all of which tended to show that the cars were not moved, and that Robertson had been warned not to go on the track. In rebuttal the appellee introduced two witnesses, Jones and Olds, who were present at the time the accident happened.

Jones testified that the train was standing on the main line, and he and others were waiting for it to move; that the train did move before Robertson fell out of the wagon. The brakeman had signaled the engineer to back up, and the train had just started to moving as Robertson was coming on up towards the railroad. The brakeman saw him coming, and “hollowed” to him to stop, but the latter kept on coming. The brakeman then ran to the other side to flag the engineer to stop. The train was moved about 15 feet. It and the wagon met on the crossing just as the train stopped. “The car had a little the edge on the wagon; that is, it had more of the crossing; and the wagon just ran in against the bos car, and the tongue hit the bos car and the man fell out head foremost.” On cross-esamination this witness said that Robertson was down in the flat when the brakeman called to him to stop; he had not gotten to the crossing, was some 40 or 50 feet from it. He heard the brakeman say “Stop” twice, but Robertson failed to heed the warning. Robertson was traveling so fast in the wagon the brakeman just had time enough to run back on the other side and flag the engineer. The team did not become frightened; did not offer to move, but stood perfectly still.

Olds testified that- he was present at the time, and that the section of the train at the crossing where Robertson fell did not move before the fall occurred. On cross-esamination he stated that Robertson was down in the flat, coming up on the incline, when he first saw him, about 20 feet from the track; that Weems, the brakeman, called to him to stop, and waved his hand; that Robertson continued to drive on as if he did not hear him. The brakeman called to him two or three timqs, but Robertson never stopped until he drove into the car and it knocked him out of the wagon. He struck the end of the car with the wagon tongue. 1-Ie further stated that Robertson was coming pretty fast, rushing his team, and the brakeman was calling to him all the time to stop.

A careful examination of the statement of facts fails to show any evidence to support the finding that the appellee’s team was frightened by an agent or employé of the railroad company suddenly coming from behind the car or yelling to him in a loud voice. While the appellee says that he does not know whether the horses were frightened by the noise of the cars or by some one coming suddenly from behind the car and making a loud.noise, there is no affirmative evidence that they were frightened in that manner. That conclusion eliminates from further consideration paragraphs 2 and 3 of the plaintiff’s original petition.

We come, then, to the question: Was the evidence sufficient to sustain a finding that the appellee was injured as the proximate result of the acts and omissions set out in paragraphs 4 and 5? The jury was justified in finding that at the time Robertson approached the crossing a train standing near was started and moved partly over the crossing without giving the statutory signal or ringing the bell. The failure to give that signal under the circumstances made a case of negligence per se.

The next question then is: Was that negligence the proximate cause of the injury? The rule seems to be that when some other character of warning is relied on by the railroads as a substitute for the statutory signals, it must appear that the injured party had actual notice of the substituted warning. M., K. & T. Ry. v. Taff, 31 Tex. Civ. App. 657, 74 S. W. 89. In this instance the evidence does not show that the appellee had any actual notice that the train was to be moved till his team had passed over and his wagon was on the first side track. In other words, he was at the time of receiving the notice on the crossing. The jury might have concluded that he was in that situation by reason of the failure of the appellant’s employes to ring the bell, and might also have found that Robertson himself was free from negligence in failing to sooner observe the warnings given by the brakeman, who was then trying to attract his attention. It is true the evidence shows that appellee was not at that time in a place of actual danger, and that had he remained in that situation he would not have been injured. But, according to appellee’s testimony, he thought he was in a place of danger, and made the effort to cross over to the other side of the remaining tracks _ in order to escape, believing that was the safest .course to pursue. The issue thus presented becomes one of contributory negligence, and the jury had a right to determine whether a reasonably prudent person would, under the circumstances, have concluded that,the situation was dangerous. A party who acts upon the appearance of danger and is injured in an effort to extricate himself is pro-teeted by the same rules which apply when the danger is real; provided, of course, there be reasonable grounds to. apprehend danger under the existing circumstances. Lodwick Lbr. Co. v. Mounce, 46 Tex. Civ. App. 230, 102 S. W. 142; Williams v. Railway Co., 34 Tex. Civ. App. 145, 78 S. W. 45; I. & G. N. Ry. Co. v. Neff, 87 Tex. 303, 28 S. W. 283. The state of the evidence is such that the jury might have concluded that the appellee acted without sufficient reason to apprehend danger, or that he was guilty of contributory negligence in taking the course that he did under all the circumstances; 'but we cannot say as a matter of law that such a finding should have been made. We therefore overrule the assignment complaining of the insufficiency of the evidence.

The court gave the following as a part of his general charge:

“Now, therefore, bearing in mind the foregoing instructions, if you believe from a preponderance of the evidence in this ease that the plaintiff W. D. Robertson on or about the 16th day of December, 1914, was injured in his person as alleged by him in the petition, and that the same was the proximate result of the negligence of the defendant, its servants or employes, as alleged by the plaintiff in his petition, in either of the manners set out in paragraph 2, 3. 4, or 5, and without any negligence on the part of the plaintiff, then you will find for the plaintiff such damages as you may find from the evidence he has sustained as the proximate result of defendant’s negligence, not to exceed the amount sued for.”

The appellant complains that this charge is on the weight of the evidence. By the express terms of this charge paragraphs 2, 3, 4, and 5 of the appellee’s original petition are in effect made exhibits to be considered by the jury in applying the instruction given. The language “that the same was the proximate result of the negligence of the defendant, etc., as alleged by the plaintiff in his petition, in either of the manners set out in paragraphs 2, 3, 4, or 5,” was doubtless understood by the jury to mean the same as if the court had said “that the same was the proximate result of the ‘negligent conduct’ of the defendant,” as set out in paragraphs 2, 3, 4, or 5. This instruction virtually tells the jury that if the facts stated in any .one of the paragraphs were found to be true, this was sufficient proof of negligence on the part of the appellant to justify a finding to that effect. Nowhere in paragraphs 4 and 5 is it charged that the acts and omissions mentioned in detail were negligent. It is true that in other portions of the appellee’s petition those essential averments are made, but the jury was not in that connection referred to those other portions. Considering the sharp conflict in the evidence, we think it probable that the verdict of the jury was influenced by this instruction, and for that reason we have concluded that the error is of sufficient importance to justify a reversal of the judgment. The charge, considered in the light most favorable to the appellee, was calculated to confuse and mislead the jury.

A third assignment is based upon the failure of the court to give a proper and full charge upon the issue of contributory negligence. In a general way the jury was instructed that a verdict for the plaintiff must rest upon a finding that he was himself not guilty of negligence in bringing about the injury. A special charge on contributory negligence, covering one phase of the defense, was given at the request of the appellant. The court also gave as a part of his general charge the following:

“If you believe from the evidence the plaintiff was injured as alleged by him on the 16th day of December, 1914, but you further believe from the evidence that the same was the proximate result of the plaintiff’s own negligence and that the same was not due to the negligence of the defendant, then you will find for the defendant.”

This doubtless was intended as a charge favorable to the appellant on contributory negligence. It will be observed, however, that it requires the jury to find not only that the plaintiff was himself guilty of negligence, but that the injury was not due to the negligence of the defendant. This does not submit the issue of contributory negligence. The defense of contributory negligence is made out when it is shown that the negligence of the plaintiff concurred with that of the defendant in bringing about the injury. However, if the appellant desired a more explicit or comprehensive presentation of the issue of contributory negligence, it should have been requested by appropriate instructions.

We venture the foregoing criticism upon that particular charge, in view of the fact that the case is to be tried again. We would also suggest, for the same reason, that in stating the issues the court should avoid submitting those grounds of recovery which are without evidence to sustain them.

For the reasons stated, the judgment is reversed, and the cause remanded.
      <5n»For other cases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RAINEY, O. J.

license: Public Domain

text:
    WISENHUNT et al. v. PARK.
    (No. 7588.)

    (Court of Civil Appeals of Texas. Dallas.
    Oct. 14, 1916.
    Rehearing Denied Nov. 18, 1916.)
    New Trial &wkey;>120 — Late Motion — Excuse-Discretion.
    No sufficient excuse being shown why defendants were not represented on the trial or why they did not file their motion for new trial in the two days prescribed by statute, there is no abuse of discretion in denying the motion.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. § 244; Dec. Dig. &wkey;>120.]
    Appeal from District Court, Kaufman County; F. L. Hawkins, Judge.
    Action by J. W. Park against J. L. Wisen-hunt and others. Judgment for plaintiff. Motions1 of the named defendant and another for new trial overruled, and they appeal.
    Affirmed.

      Ross & Zumwalt, of Dallas, for appellants. Huffmaster & Huffmaster, of Kaufman, for appellee.

      Application for writ.of error pending in Supreme Court.

   RAINEY, O. J.

On January 13, 1915, ap-pellee brought suit against W. G. Wisenhunt and wife, Della Wisenhunt, J. L. Wisen-hunt, and the Farmers’ State Bank of Justin, Tex. The object of the suit was to recover on certain promissory notes executed by W. G. Wisenhunt for the purchase of certain land and to foreclose the lien thereon. J. L. Wisenhunt and the Farmers’ State Bank were setting up some kind of title or claim to said land, and prayed for judgment on the notes and foreclosure of the lien, etc. All parties were duly cited, none of which answered except the bank, but made default. “On March 2, 1915, the Farmers' State Bank of Justin, Tex., appellant herein, filed its answer, in which it alleged that there was another note similar in all its provisions as the notes sued on, given by said W. G. Wisen-hunt to said Park in part payment of said land, and that it was agreed by and between the said W. G. Wisenhunt and the said J. L. Wisenhunt that if the latter would pay off said first note, he should be subrogated to all the rights of the holder of said notes, and with said understanding the said J. B. Wisen-hunt did pay off said note, together with interest on said other notes, and that to secure him for the money so paid, the said W* G. Wisenhunt executed to him a deed of trust on said land, and that the said Farmers’ State Bank loaned J. B. Wisenhunt the money to make said payment; that by reason thereof and by said payment said J. B. Wfts-enhunt became subrogated to the rights of the plaintiff herein for said amounts, and is entitled to have the same repaid by the plaintiff, or to share in the proceeds arising from the sale of said land; that in case of foreclosure sale the said J. B. Wisenhunt is entitled to have all his said payments repaid in full before the payment of the notes held and sued on by the plaintiff; that said payments, contract, and deed of trust were executed and made with the knowledge and consent of plaintiff, and he had full notice thereof before filing this suit; that this defendant loaned the said J. B. Wisenhunt the sum of money paid as aforesaid upon such understanding and agreement, and in order to protect this defendant the court should, in case of foreclosure, decree the full payment of said note and interest paid as aforesaid. Prayer that the court declare the rights of said J. B. Wisenhunt to be superior to that of the plaintiff herein and for costs.” To this answer of the Bank of Justin, the plaintiff, J. W. Park, filed supplemental petition on March 3, 1915, containing special exceptions and a general denial. Neither of the appellants, nor their attorney, was present on'the trial of the case, which was on March 22, 1915, and judgment was rendered for appellee for the amount due on the notes and foreclosure of lien on the land with cost taxed against the appellant. On April 14, 1915, the bank filed a motion in said case for a new trial, and on April 30,1915, J. B. Wisenhunt filed a motion. On April 29, 1915, appellee filed exceptions to the. bank’s motion for new trial, on the ground that no sufficient diligence is shown, and no reasonable excuse given why said motion was not filed within the two days prescribed by the statute, and, second, in effect, that the motion shows upon its face no good reason for it not being present at the trial and presenting its- defense. On April 30, 1915, both motions for rehearing were heard by the court. The exceptions to the bank’s motion were sustained, and both motions overruled, and notice of appeal was taken, and the action of the court is before us for review.

We concede that the bank’s plea set up a just claim to have the amount of its demand included in the decree of foreclosure, and provided in the division of the proceeds of the sale of said land, had it been present at the trial and presented evidence to sustain said plea. But we are of the opinion no sufficient excuse is shown why it was not represented on the trial. This applies also to J. B. Wjisenhunt. No legal reason is shown why the motions of the bank and Wisenhunt were not sooner filed in the' district court. On March 22, 1915, their attorney was notified by the district judge that the case had been tried and judgment rendered on that day, and the bank did not file its motion until 22 days later, and Wisenhunt filed his over 1 month thereafter. We think no legal excuse existed for such delay, and .under the circumstances the trial court did not abuse his discretion in not granting the motions for a new trial.

The judgment is affirmed.
      <&=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    TEXAS & PAC. RY. CO. v. HANSON.

    (No. 1663.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 9, 1916.
    Rehearing Denied Nov. 16, 1916.)
    1. Removal op Causes <&wkey;27 — Right op Removal. ■
    Under Act Cong. Jan. 28, 1915, c. 22, § 5, 38 Stat. 804, declaring that no federal court shall have jurisdiction of any action or suit against any railroad company, upon the ground that such company was incorporated under an act of Congress, the fact that a railroad company was incorporated by congressional act does not entitle it to remove an action from the state to the federal courts.
    [Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 64-68; Dec. Dig. i&wkey;>27.]
    2. Carriers <&wkey;320(ll) — Carriage of Passengers — Actions—Negligence—Evidence.
    In an action against ‘a railroad company for injuries received by a passenger who fell in stepping on a round piece of wood lying on the car floor, the question of the negligence of the servants of the company in failing to remove the piece of wood held,, under the evidence, for the jury.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1179, 1190, 1305; Dec. Dig. &wkey; 320(11).]
    3. Carriers <&wkey;330 — Carriage op Passengers — Contributor's: Negligence op Passenger.
    A carrier of passengers being bound to exercise a high degree of care, a passenger who fell on stepping upon a round piece of wood left in the aisle of a railroad car cannot be held guilty of contributory negligence in failing to discover it, because the servants of the carrier who failed to discover the piece of wood were negligent, for the passenger might proceed on the assumption that the carrier had performed its duty.
    [Ed. Note. — For other cases, see Carriers, Gent. Dig. §§ 1370, 1372, 1373; Dec. Dig. &wkey; 830.]
    4. Trial <&wkey;252(10) — Instructions—Applicability to Evidence — Passengers.
    In an action for injuries received by a passenger who fell upon stepping on a piece of wood, an instruction, directing the jury to find in his favor if the carrier’s employés permitted the piece of -wood to be placed in the car, or caused and permitted it to be left in the car, cannot, in view of other instructions, be held erroneous, because there was no evidence that the employés consented to or directed the placing of the piece of wood on the floor of the car, for the jury obviously could not have understood the instruction to relate to actual direction by the employés or the giving of special permission.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 603; Dec. Dig. &wkey;252(10).]
    5. Damages &wkey;>132(3) — Personal Injuries— Measure op Damages.
    An award of $25,000 in favor of a passenger injured in a fall on a train so that both of his legs were paralyzed, one arm was paralyzed, and he was totally helpless cannot, where it appeared that the injuries were permanent, be held excessive.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 374; Dec. Dig. &wkey;132(3).]
    Appeal from District Court, Gregg County; W. C. Buford, Judge.
    Action by H. H. Hanson against the Texas & Pacific Railway Company. From' a judgment for plaintiff, defendant appeals.;
    Affirmed.
    Appellee was a passenger on one of appellant’s trains from Longview to Dallas. Appellant’s station (referred to in the testimony as the “City Depot”) in Dallas, where appellee intended to leave the train, is 4,300 feet beyond the Union Station. After the train passed the station last mentioned ap-pellee went from the the seat he occupied about the center of the coach he was in to the rear end thereof to get a drink of water, when he stepped upon a round piece of woo.d, about 314 inches long and three-fourths of an inch in diameter, lying on the floor of the coach, which, rolling under his foot, caused him to fall violently to the floor, whereby he sustained injuries to his spine, resulting (the testimony on his behalf indicated) in a páralysis of almost his entire body. Claiming that the presence of the piece of wood on the floor of the car was due to negligence on the part of appellant, appellee sued and recovered of it -the judgment for $25,000 from which the appeal is prosecuted.
    Young & Stinchcomb, of Longview, and Geo. Thompson and R. S. Shapard, both of Dallas, for appellant. Lacy & Bramlette and W. C. Shoults, all of Longview, and D. W. O’Dell, and Gaines B. Turner, both of Ft. Worth, for appellee.

      Application for writ of error pending in Supreme Court.

   WILLSON, C. J.

(after stating the facts as above). [1] The trial court did not err in holding appellant was not entitled to remove the cause from the state to a federal court, on the ground that it was incorporated under an act of Congress. Section 5 of the act approved January 28, 1915, part 1, U. S. Statutes 1914-15, p. 803. In the statute cited Congress declared:

“No court of the United .States shall have jurisdiction of any action or suit by or against any railroad company upon the ground that said railroad company was incorporated under an act of Congress.”

In support of a contention it makes that the court erred in refusing its request to instruct the jury to find in its favor, appellant' insists there was ño testimony tending to show negligence on its part. It is urged that the testimony did not show how, nor when, nor by whose agency, the piece of wood came to be on the floor of the car, and did show that appellant’s employés used due care to discover and remove it. It must be conceded that the direct testimony with reference to the presence of the piece of wood in the car went no farther than to show that it was there when appellee fell, but we think it authorized inferences which warranted the finding involved in. the verdict that appellant’s employés did not use the care they should have used to discharge the duty they owed ’appellee as a passenger to discover and remove it in time to .prevent the injury to appellee. It appeared tliat the Dallas Fair, to which great numbers of people resort was open, and that the train was heavily loaded. The train porter testified:

“I cleaned the car between Terrell (81 miles from Dallas) and Forney (20 miles from Dallas). If I had seen the piece of wood on the floor I Would have picked it up.. I am most sure that I would have seen it if it had been there on the floor when I was cleaning the car. I did not see it when I cleaned the car.”

The brakeman testified that it was a part of his duty “to look through the train and keep the aisle clear.” He further testified:

“On this day there was a great many banana peelings, orange hulls, and goober peas on the floor of the aisle, and I was looking after that— they were not in the aisles so much as they were between the seats—wherever they were, I knew there was danger in their being there. * * * Supper time was coming on in the meantime (as the train moved from Terrell to Dallas), and people were getting busy eating. There is more throwing of refuse on the floor between Terrell and Dallas than anywhere else along about supper time. Dallas is usually the getting-ofE place. Dallas is a good large place, the largest city on the line; that is, it is the largest one that we go through. * * * After leaving the Union Station and before getting to the City Station I walked through the three coaches and then came back to where Mr. Hanson was hurt. When I called the City Station I did not see Mr. Hanson walking along right behind me. I don’t think I looked back as. I went out the door. * * * I was in a hurry, and just glanced over the ear and directed the people who asked, questions. If I had looked I could have seen this umbrella handle (referring to the piece of wood which caused appellee to fall) if it had been there.”

This testimony, it seems to us, when considered in connection with that of appellee that the piece of wood was on the floor of the car as he approached the water cooler, tended strongly to show negligence on the part of the brakeman, and made it the duty of the court to submit the case to the jury; for if the piece of wood was then on the floor, it would have been reasonable to conclude it was there when the brakeman, who was just ahead of appellee as he approached the water cooler, passed by same; and if the brakeman could, as he said he could, have seen it, and did not, the inference would have been a reasonable one that he did not see it because he failed to discharge the duty he owned to appellee to discover it.

In support of the same contention appellant further insists that the “undisputed testimony” showed appellee to have been guilty of contributory negligence which barred his right to a recovery because of negligence on its part. The argument is that “if the employés of the. defendant should be held to he guilty of negligence in not finding and removing the stick, it is axioma.tic that appellee should be held guilty of contributory negligence.” If the respective duties of appellant and appellee were the same the argument would be valid. But they were not the same. Appellant owed to ap-pellee the duty to exercise a high degree of care to discover and remove the piece of wood from the car. A duty to discover the piece of wood on the floor did not rest upon appellee. He had a right to assume that appellant had discharged its duty to discover and remove anything from the floor which rendered it dangerous for him to use it; and, in the absence of anything putting him on notice that the floor was unsafe for the use he made of it, he was not called upon to act otherwise than the way the testimony showed he did act. Railway Co. v. Shetter, 94 Tex. 199, 59 S. W. 533.

It follows from what has been said we are of opinion the second, and also the fifteenth and sixteenth assignments, should be overruled.

The court instructed the jury to find for appellee, other conditions concurring, if they believed appellant’s employfis in charge of the train “permitted” the piece of wood “to be placed in the car, or caused and permitted it to he left in said car.” It is urged that this instruction was erroneous, because, it is asserted there was no evidence to show that said employes “permitted” or “caused” the piece of wood to be on the floor of the car. It is true there was no testimony showing that appellant’s employés “caused” the piece of wood to be where it was, or “permitted” it to be there, in the sense that they had knowledge of or had consented to its being there. But, we think, looking to the entire charge, as it should be assumed they did, the jury would not have understood that the words were used in that sense, and hence were not misled to appellant’s injury as to the issue submitted to them. Railway Co. v. Keefe, 37 Tex. Civ. App. 588, 84 S. W. 682. We do not understand the ruling just made to be in conflict with the one made in Southwestern Telegraph & Telephone Co. v. Sanders, 173 S. W. 865, cited by appellant. In that'case it appeared from undisputed testimony that the rope there in question, when furnished by the defendant to the plaintiff, was dry and perfectly safe for the use to be made of it, and that it was wet and unsafe when used by the plaintiff and his fellow servants because they had dragged it over wet ground. “In this state of the evidence,” the court said, “the wet condition of the rope could not be attributed to any fault of the company, and an instruction which permitted its being held responsible for such condition was plainly unauthorized and prejudicial. It is equally clear that the submission of the issue of the company having furnished Sanders with a wet rope was erroneous ; there being no evidence that it had done so.”

Appellant vigorously insists that the verdict is excessive. It has not been without hesitation that we have reached the conclusion that the contention should be overruled. There is nothing in the record, unless the amount of the verdict alone does so, which suggests that the jury in returning the verdict might have been influenced by any consideration other than that of their duty. The cause was tried after more than a year’s time had elapsed from the time appellee suffered the injury he complained of. He testified:

“The last time I had the use of either of my legs so far as I hare knowledge was at the time just before I stepped on the stick. Since that time I have never been able to turn over in bed without assistance. My legs feel numb, and it feels like there is a chain or something around each one of my legs, and a little tingling sensation that feels sorter like ants crawling on me or something, and at times it worries me nearly to death. The sensation feeling like ants crawling on me extends the full length of my legs from the crotch down, and sometimes it gets up in this arm again just like it used to when I couldn’t use it. * * * Whenever they lay me down and wherever they lay me down I stay right there. I have to stay there, because I can’t move. * * * When they raise me up I can stay that way about an hour. When they lay me down, it takes me a day or two to get where I can get rest, and I have very severe pains in my head and neck when they straighten me up that way. * * * My bowels move involuntarily at times. * * There is no involuntary movement of the kidneys that I am conscious of. My underwear is damp sometimes, and I don’t know what causes it.”

Physicians who examined and treated him testified that in their opinions appellee would never recover from the condition he was in.

When the testimony referred to and other testimony ‘in the record is looked to, which the jury had a right to believe, we do not think it can be said that the sum found in appellee’s favor will more than fairly compensate him for the financial loss and physical and mental suffering he has sustained, and in the future will sustain.

We have considered all the assignments in the briefs not disposed of by what has been said, and are of the opinion none of them presents a reason why the judgment should be reversed. Therefore it is affirmed.
      (£=sPor other oases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    STATE ex rel. WALTON, Tax Collector, v. YTURRIA et al.
    (No. 5710.)

    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 26, 1916.
    Rehearing Denied Nov. 15, 1916.)
    1. Adoption <&wkey;21 — Statute—Inheeitance.
    The law of adoption (Rev. St. 1911, art. 2), applies only to heirship and the right to maintenance and support, but gives the adopted heir, for all purposes of inheritance, the same rights as the child born in lawful wedlock, bringing him effectually within the general laws of descent and distribution.
    [Ed. Note. — For other cases, see Adoption, Cent. Dig. §§ 35, 36, 38-40; Dec. Dig. &wkey;21.]
    2. Taxation &wkey;>875(2) — Inheeitance Tax — Exemptions — Peofebty Passing to Adopted Child — Statute—‘ ‘Dieect’ ’ — “Lineal”— “Descendant."
    Under the inheritance tax law (Rev. St. ■ 1911, art. 7487), exempting property passing to direct lineal descendants, property passing by testator’s will to his adopted children was exempt from the inheritance tax, in view of article
    2, entitling an adopted heir to all the rights and privileges, both in law and equity, of the legal heir of the party adopting, since “direct,” used in the exemption clause of the inheritance tax law, signifies being in the natural or usual course or line, immediately up or down, the opposite of collateral, while “lineal” has much the same signification, and “descendant” does not mean one exclusively who is connected in the descending line by blood with the person owning the estate.
    [Ed. Note. — Eor other cases, see Taxation, Cent. Dig. § 1691; Dec. Dig. &wkey;>875(2).
    For other definitions, see Words and Phrases, First and Second Series, Descendant; Direct; Lineal.]
    3. Statutes <&wkey;225% — Construction—Ref- . EEENCE TO JUDICIAL CONSTBUCTION. •
    In construing the language of the inheritance tax law (Rev. St. 1911, art. 7487), it must be presumed to have been used in the same sense which it bears in laws on kindred subjects, as construed by decisions made before the law was enacted.
    [E'd. Note. — For other cases, see Statutes, Cent. Dig. § 306; Dec. Dig. &wkey;>225%.]
    Appeal from District Court, Cameron County; W. B. Hopkins, Judge.
    Action by the State of Texas, on the relation of W. B. Walton, Tax Collector of Cameron County, against Daniel Yturria and others, to recover an inheritance tax. From a judgment that plaintiff take nothing by his suit, he appeals.
    Judgment affirmed.
    A. M. Kent and Harbert Davenport, both of Brownsville, for appellant. R. B. Creager and F. W. Seabury, both of Brownsville, and Denman, Franklin & McGown, of San Antonio, for appellees.

      Application for writ of error pending in Supreme Court.

   FLY, C. J.

The state of Texas, upon the relation of W. B. Walton, tax collector of Cameron county, sued Daniel Yturria, Her-minio Yturria, Fausto Yturria, Ysabel Garcia, joined with her husband, Migual Garcia, Miguel Francisco Garcia, Juan Antonio Garcia, Jose Alejandro Garcia, and Maria del Rosario Garcia, to recover an inheritance tax amounting to $26,762.12. The cause was tried by the court, and judgment rendered that appellant take nothing by his suit.

We adopt the findings of fact of the trial judge:

. “Francisco Yturria, now deceased, was, during his lifetime, the owner of the property upon which inheritance tax is sought to he collected by this suit. Francisco Yturria was lawfully married to Felicitas Trevino Yturria, who is still living. On January 8, 1897, the said Francisco Yturria and Felicitas Trevino de Yturria, his wife, duly and legally, and in all things in conformity with the laws of the state' of. Texas, adopted Daniel Yturria and Ysabel Dominguez Yturria (now the wife of Miguel Garcia, and sued herein under the name of Ysabel Garcia), who are two of the defendants herein, as the legal heirs of them, and each of them, the said Francisco Yturria and wife. Francisco Yturria died without issue of his body, on June 15, 1912, domiciled in Cameron county, Tex., and leaving a large estate, consisting wholly of his one-half of the property belonging to the community of his aforesaid marriage. Francisco Yturria left a last will .and testament which has been duly and legally probated in tbe county court of Cameron county, Tex., and thereby devised and bequeathed all of his property as follows: To said Felicitas Trevino de Yturria an estate for her life in one undivided half of same; to said Daniel Yturria, of defendants, an estate for his life, in one undivided one-fourth of same; and to Ysabel Garcia, of defendants, an estate for her life, in one undivided one-fourth of same. The remainder in the property, the life estate in which so passed to Daniel Yturria, was devised and bequeathed to Herminio Yturria and Fausto Yturria, children of the said Daniel Yturria, who were born in lawful wedlock, and who are of defendants herein. The remainder in the property, the life estate in which 'so passed to Ysabel Garcia, was devised and bequeathed to Miguel Francisco Garcia, Juan Antonio Garcia, Jose Alejandro Garcia, and Maria del Rosario Garcia, children of the said Ysabel Garcia, born to her in lawful wedlock, and who are of defendants herein. The remainder in the property in which the life estate so passed to Felicitas Trevino de Yturria was devised and bequeathed to the above-named children of Daniel Yturria and Ysabel Garcia. The entire estate left by Francisco Yturria at his death, with the exception of the life interest in one-half thereof which passed to his widow, as aforesaid, passed to his said two lawfully adopted heirs, and their children, begotten in lawful wedlock, who are the defendants in this suit.”

It is provided in article 7487 of the Revised Statutes of Texas:

“All property within the jurisdiction of this state, real or personal, corporeal or incorporeal, and any interest thex-ein, whether belonging to inhabitants of this state or not, which shall pass absolutely or in trust by will, or by the laws of descent of this or any other state, or by deed, grant, sale or gift made or intended to take effect in possession or enjoyment after the death of the grantor or donor, shall upon passing to or for the use of any person except the father, mother, husband, wife or direct lineal descendants of the testator, intestate, grantor or donor, or any'public corporation or charitable, educa1' tional or religious organization within this state when such bequest, gift or devise is to be used for chai’itable, educational or religious purposes within this state, be subject to a tax for the benefit of the state. * * *”

The only question in this case is: Are children, legally adopted under the laws of Texas, comprehended and included in the term “direct lineal descendants,” and therefore not subject to the inheritance tax prescribed by the quoted statute? This suit is-based on the proposition that the term includes only the direct -issue of the person from whom the estate descended. Of course the answer to the question must be made under and in view of the statutes as to adopted children in Texas, in connection with Texas cases, assisted by opinions of courts of the United States and other states construing similar statutes. No Texas decision has been rendered on the direct question involved herein, but there are a number of Texas decisions which tend to establish the relation that adopted children sustain as to the property of their parents by adoption. The word, “direct,” used in the statute providing for the inheritance tax, bears its usual signification of being in the natural or usual course or line, immediately up or down. It is the opposite of collateral. Black’s Law Diet. p. 370. The word, “lineal,” has much the same signification and its force and effect is not increased by the use of the word, “direct,” nor is it weakened. A lineal descendant is one - who comes in a line, as from father to son, and the construction must depend, in the ultimate analysis, on the position occupied by the adopted child towards his adopted parents.

The law of adoption was unknown to the common law, but was a well-known practice under the Roman law and is the practice in all countries where the civil law prevails. In Texas and many other states the rule has, to a certain extent, been made statutory. Under the civil law, however, it was provided that the adopted child cannot inherit if the person adopting him has a legitimate child living, but it made the adopted child a member of the family and invested him with the privileges and duties peculiar to the relation of parent and child. Under the Texas law the adopted child is not made a member of the family, but it clothes him with all “the fights and privileges, both in law and equity, of a legal heir of the party so accepting him,” and it is provided that if the party adopting him shall have—

“at the time of such adoption, or shall thereafter have, a child begotten in lawful wedlock, such adopted heir shall in no case inherit more than one-fourth of the estate of the party adopting him.” Article 2, Rev. Stats.; Eckford v. Knox, 67 Tex. 200, 2 S. W. 372.

The law of adoption applies only to heir-ship and the right to maintenance and support, and in the statute of adoption the person adopted is described as the adopted heir. It has reference alone to material things, and does not attempt to give or place upon the adopted heir the privileges and duties peculiar to the relation of parent and child, as is done by the civil law. Taylor v. Deseve, 81 Tex. 246, 16 S. W. 1008. It gives the adopted heir for all purposes of inheritance the same rights as the child born in lawful wedlock, and brings him effectually within the purview of the general laws of descent and distribution, as limited by article 2, hereinbefore adverted to.

The word, “descendant,” as used in article 7487, does not mean one exclusively who is connected in the descending line by blood with the person owning the estate, but undoubtedly was used in the same sense that descendant is used in the statutes of descent and distribution. The effect of the adoption of an heir is to put him in the same attitude towards the adopting parents as if he was their own child. He becomes as much a descendant as though a child born unto the parents. Clark v. West, 96 Tex. 437, 73 S. W. 797; Virgin v. Marwick, 97 Me. 578, 55 Atl. 520.

In .construing the language of the law on the inheritance tax, it must be presumed to have been used in the same sense which it "bears in laws on kindred subjects, as construed by decisions made before the law was enacted. The decisions in Texas are as one in holding that, so far as property rights are concerned, the adopted heir stands in exactly the same position as the child of the body of the parents. In a well-considered opinion, written by Associate Justice Rasbury for the Court.of Civil Appeals of the Fifth District, after a review of many decisions, the following from a Kentucky case was affirmed :

“That it is the event of adoption that fixes, under the law authorizing the adoption, the legal status of the adopted child; and the child, by the event of adoption, becomes the legal child of the adopting parents, and stands, as to the property of the adopting parent, in the same light as a child born in lawful wedlock, save in so far as the exceptions in the statute authorizing the adoption declare otherwise. And, when the statute authorizes a full and complete adoption, the child adopted thereunder acquires all of the legal rights and capacity, including that of inheritance of a natural child, and is under the same duties.” Harle v. Harle, 166 S. W. 674.

Article 2, Revised Statutes, entitles the adopted heir “to all the rights and privileges, both in law and equity, of a legal heir of the party so adopting him,” and if it is a privilege to a child of the body to be exempted from taxation on his inheritance, it is a privilege to the adopted child who occupies, under the law, the same status, as to property, as the child born in lawful wedlock. The law as to taxation of inheritances did not seek to deprive him of this right, but left him occupying the same status as before its adoption. The inheritance tax law considers the right to inherit, and not the relationship, and has reference to the heritable status, and not to any relationship to the deceased person. The law had fixed the heritable status of the adopted heir, as equal, so far as this question is concerned, to and on the same plane with the lawfully begotten child, and the Legislature evinced no desire to disturb that status. The decisions of other states, passing on similar statutes, sustain this proposition.

The judgment is affirmed.
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text:
    FARMER v. WITCHER et al.
    (No. 1658.)
    (Court of Civil Appeals of Texas. Texarkana.
    Oct. 26, 1916.)
    1. Justices oe the Peace <&wkey;162(l) — Judgments — Effect oe Appeal.
    Although^ when an appeal from the justice court to the county court has been perfected, the judgment of the justice court is superseded, and is thereafter unenforceable, if the case be one of which the appellate court cannot take cognizance, or if the appeal was not legally perfected, judgment of the justice court remains undisturbed.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent Dig. §§ 600, 603; Dec. Dig. <®=3l62(l).]
    2. Appeal and Ekeok <&wkey;934(l) — Review— PRESUMPTIONS.
    In the absence of something in the record to the contrary, the court of civil appeals must assume that a judgment of a justice was rendered upon proper grounds.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3777, 3780, 3781; Dec. Dig. &wkey;934(l)J
    3. Justices oe the Peace <&wkey;141(6) — Jurisdiction oe Appeal.
    A judgment of the county court upon the question of its jurisdiction of an appeal from the justice court, although erroneous, is conclusive of that issue until set aside in a proper proceeding.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. § 476; Dec. Dig. <&wkey;> 141(6).]
    Appeal from District Court, Upshur County; R. M. Smith, Judge.
    Suit for injunction by J. M. Farmer against W. E. Witcher and others. From an order of the district judge refusing in vacation a temporary injunction, plaintiff appeals.
    Affirmed.
    Martin & Nelson, of Longview, for appellant. W. E. Witcher and R. L. Wallace, both of Gilmer, for appellees.
   HODGES, J.

In March, 1916, the appellant, J. M. Farmer, filed his original petition with the district clerk of Upshur county, seeking a writ of injunction restraining the appellee Witcher and one R. L. Wallace, a justice of the peace, from enforcing a judgment theretofore rendered in the justice court of Upshur county. It is alleged, in substance, that on the 13th day of March, 1915, in the justice court of precinct No. 5 of Upshur county W. E. Witcher recovered a judgment against the appellant, Farmer, before R. L. Wallace, a justice of the peace, for the sum of $8 and costs of suit. The judgment also awarded a foreclosure of a. lien on a colt valued at $35. It is further alleged that the appellant, J. M. Farmer, appealed to the county court of Upshur county within due time, and in the county court insisted upon a plea of privilege to be sued in precinct No. 1 of Gregg county, Tex.; that the plea of privilege was submitted to the county court at the September term, 1915; that the county judge stated to the parties at that time that he was of the opinion that the plea should be sustained, and that the defendant Farmer and his attorneys need not appear any more in that court; that he would give the attorney for the plaintiff time to show authorities on the proposition, and upon his failure to furnish them he would render judgment sustaining the plea. It is averred that the appellant, relying upon the statements made by the county judge, concluded that the court did make the order at the September term sustaining his plea of privilege, but that on the 28th of February, 1916, without any notice to the appellant, the appeal was dismissed, and an order entered to that effect by the county judge, and also an order directing the issuance of a writ of procedendo to the justice court; that such a writ was issued by the clerk, thereby depriving the appellant of his right to a trial on the issues involved in that case. Then follows a detailed statement of the defenses which the appellant had as a defendant in that suit. It is also alleged that an execution had been issued upon the judgment rendered in the justice court by the justice of the peace, and placed in the hands of the proper officer for the purpose of enforcing the collection of that judgment which it is charged was void. The petition was sworn to in proper form.

This appeal is by Farmer from an order of the district judge refusing in vacation the temporary injunction applied for. No briefs or assignments of error have been filed. Counsel for appellant in an oral argument urged that the judgment of the justice court was void; that it had been superseded and annulled by the appeal, and that a dismissal of the appeal could not revive it; hence the justice of the peace was without authority to issue an execution from his court for the purpose of collecting the amount of the debt.

It is true that when an appeal from the justice court to the county court has been perfected the judgment theretofore rendered in the justice court is superseded and is thereafter unenforceable. Harter et al. v. Curry, 103 S. W. 445, and cases there referred to. Appeals of this character are to be tried de novo, and the appellate court should finally dispose of the controversy. This rule obtains, however, only in those instances where the appellate court acquires jurisdiction through a compliance with all of the essential proceedings required by law, and when the subject-matter is within its judicial cognizance. If the case be one of which the appellate court cannot take cognizance, or if the appeal is not legally perfected, the judgment of the justice court remains undisturbed. Roberts v. McCamant, 70 Tex. 744, 8 S. W. 543; Kingsley v. Schmicker, 60 S. W. 332.

We must determine the question involved in this appeal. solely from the facts ■stated in the appellant’s original petition. He alleges “that J. M. Farmer appealed said ■cause of action to the county court of Upshur county within due time.” That is rather an indefinite statement. He fails to say ■either that he perfected an appeal or that he took the steps necessary to perfect one. But treating the averment as sufficient, it is further alleged that the county court, dismissed the appeal. No reason for such a dismissal is stated. It may be that it was for lack of jurisdiction. We must assume that when a judgment was rendered it was rendered upon the proper grounds, unless there is something in the record showing the contrary. Conceding that the conclusion of county court upon the question of jurisdiction was erroneous, and that the case should not have been dismissed upon that ground, still the county court had a right to pass upon that question, and its judgment is conclusive of that issue until set aside in a proper proceeding.

The case of Roberts v. McCamant, above referred to, has many features similar to this case. There the effort was to restrain the enforcement of a judgment from a justice court upon the ground that the judgment had been superseded and annulled by an appeal to the county court. In his petition for the injunction the complainant had alleged the facts essential to show that it was an ap-pealable case and that an appeal had been perfected. He also alleged that the appeal was dismissed for'want of jurisdiction. An execution was thereafter issued upon the judgment of the justice court. Justice Gaines, in rendering the opinion of the Supreme Court, said:

“It seems to us that Roberts was entitled to-his appeal, and he alleges in his petition that it was perfected. But the county court had jurisdiction to determine these questions, and it appears from the petition that it did determine that it did not have jurisdiction of the case and dismissed the appeal on that ground. The judgment of the county court may be erroneous, but it is none the less conclusive until set aside by proper proceedings, and estops the appellant from saying that the case had been properly appealed. It follows, as we think, that the justice was authorized to issue execution for the amount recovered and the costs of his court.”

We tbiink what is there said is decisive of the principal issue in this appeal, and the order refusing the temporary injunction will be affirmed.
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text:
    GARLINGTON v. COTTEN.
    (No. 1646.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 29, 1916.
    On Motion for Rehearing, Oct. 5, 1916.)
    4. Sequestration <&wkey;21 — Wrongful Issuance of Writ — Actions—Pleading.
    In a counterclaim for wrongful issuance of writ of sequestration, the allegations that the writ was issued because the party who sued it out desired to prevent a sale by the defendant and to secure the profit from such sale for himself are not as to too remote damages, but, being on the issue of exemplary damages, are proper.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 50-54; Dec. Dig. &wkey;321.]
    2. Sequestration <&wkey;21 — Excessive Damages.
    Where goods were damaged by rain to the amount of $75, and the owner lost the use of land of the value of $150, and while he was out of possession the land was damaged between $500 and $1,000 in value, a verdict of $400 as actual damages for wrongful issuance of writ of sequestration was not excessive.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 50-54; Dec. Dig. <&wkey;21.]
    Appeal from District Court, Henderson-County; John S. Prince, Judge.

      Action by J. W. Gáriington against W. T. Cotten and J. H. Harrison and another. Judgment for. plaintiff against all defendants, and for defendant W. T. Cotten on his counterclaim against plaintiff, and J. W. Gar-lington appeals from so much of the judgment as is adverse to him.
    Affirmed. On motion for reheáring. Motion granted, judgment set aside, and judgment rendered reforming the judgment, and the judgment as so reformed, affirmed.
    In 1906 appellant sold and conveyed a tract of land in Henderson county to J. H‘. Harrison, in consideration, in part, of the latter’s four promissory notes for $200 each, payable, respectively, January 1, 1909, 1910, 1911, and 1912. In October, 1911, Harrison sold and conveyed the land to appellee and his son T. M. Cotten, who afterwards conveyed his interest in the land to appellee, in consideration, in part of their assuming the payment of the notes he had made to appellant. In December, 1911, by agreement of the parties, the times for the payment of the notes, respectively, were extended to January 1, 1914, 1915, 1916, and 1917. Each of the notes, it seems, contained a stipulation that a failure to pay it, or accrued interest on it, when due, at the option of the holder should operate to mature all of them. Neither of the notes having been paid, this suit was brought by appellant against Harrison and the Cot-tens to recover the amount, principal, interest, and attorney’s fees thereof, and to foreclose a vendor’s lien retained on the land to secure them. At the time he commenced the suit appellant applied for the issuance of a writ of sequestration, on the ground that he feared the “defendants,” quoting, “who are in possession, will make use of their said possession to injure said property during the pendency of this suit.” Having procured the issuance of the writ, appellant, on January 28 and 29, 1915, had the sheriff to execute it by ejecting appellee and his wife and children, who were residing upon and using the premises as their homestead, from the dwelling house thereon, and so deprived them of further possession and use of the land. Harrison and T. M. Cotten did not answer the suit. Appellee answered, and by a plea in reconvention, in which he alleged that the writ was wrongfully and maliciously sued out, and that he and his family by virtue of same were wrongfully ejected from and deprived of the possession and use of the land, sought a recovery against appellant of damages, actual and exemplary, which, he alleged, he thereby suffered. The jury found in appellant’s favor against Harrison, T. M. Cotten, and appellee, for the amount (principal, interest, and attorney’s fees) o£f the notes, and for a foreclosure of the vendor’s lien asserted, and in favor of appellee against appellant for $400 actual and $75 exemplary damages. The appeal is by Garlington alone from the judgment on the verdict so far as it was against him.
    Miller & Miller, of Athens, J. L. Rudy, of Bowie, and R. S. Npblett and Gordon' Damon, both of Corsicana, for appellant. Richard! son & Watkins, of Athens, for appellee. "
   WILLSON, C. J.

(after stating the facts as above). [1] In his plea in*reconvention ap-pellee alleged that just prior to the time when the suit was instituted he had contracted to sell the land to one Kidd for a sum $500 in excess of the sum due appellant on the notes sued upon; that the statement made by appellant in his application for the writ of sequestration that he feared appellee would make use of his possession thereof to injure the premises during the pendency of the suit was false, and known by appellant to be so at the time he made it; and that appellant’s real purpose in procuring the issuance and execution of the writ was to obtain possession of the land at once so that he could, and appellee could not, sell and deliver possession thereof to Kidd. Appellant excepted to the allegations in the plea, so far as they referred to a sale of the land to Kidd, and complains of the action of the court in overruling his exceptions. The ground of the exceptions was that damages, if appellee suffered any, by reason of appellant’s interference as charged in the negotiations with Kidd, were too remote to be made the basis of a recovery. It is a sufficient answer to the complaint to say that it is apparent from the plea as a whole that the allegations were not intended by the pleader, nor treated by the court in his instructions to the jury, as a basis for the recovery of actual damages, but were made in support of the charge that appellant’s acts in procuring the issuance and execution of the writ were malicious.

The contentions made, that the verdict, in so far as it was for appellee for $406 as actual damages, was excessive, and in so far as it was for appellee for $75 as exemplary damages, was without evidence to support it, must be overruled. It appeared from appellee’s testimony as a witness that the damage by rain to his household goods moved by the sheriff from the dwelling house was $75; that the value of the use of the land while he was deprived of it was $150; and that the land was damaged while he was excluded from its possession from $500 to $1,000. The jury had a right to believe this testimony, and, evidently, they did believe at least a part of it. As to the exemplary damages, there was testimony, we think, which authorized the jury to find that the writ of sequestration was wrongfully and maliciously sued out and executed.

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

On Motion for Rehearing.

Further consideration of the record has convinced us that we erred in holding there was testimony to support the finding by the jury of exemplary damages in favor of ap-pellee. Therefore the motion will be granted, the judgment of this court affirming the judgment of the court below will be set aside, and judgment will be here rendered so reforming the judgment of the court below as to decree a recovery by appellee of only the actual damages found in his favor, and, as so reformed, the judgment of that court will be affirmed.
      ■tfe^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
      WELLS FARGO & CO. EXPRESS v. CRITTENDEN.
    (No. 1654.)
    (Court of Civil Appeals of Texas. Texarkana.
    Oct. 12, 1916.)
    1. Courts &wkey;12i(5) — Courts of Civil Appeals — Jurisdictional Amount — Interest.
    Where interest is allowed upon the claims for damages, it is treated as a part of the damages, and not interest, within the meaning of the statute fixing the jurisdictional limits of the courts.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 419, 420; Dec. Dig. &wkey;121(5).]
    2. Courts <&wkey;169(8) — Jurisdiction—Amount —Fictitious Credit.
    When the amount which the plaintiff is entitled to recover appears from his allegations to be a fixed sum, he will not be permitted to enter a fictitious credit for the sole purpose of giving jurisdiction.
    [Ed. Note — For other cases, see Courts, Cent. Dig. §§ 428-436; Dec. Dig. &wkey;169(8).]
    3. Courts <&wkey;122 — Jurisdiction—Amount in Controversy — Petition.
    In determining the amount in controversy in any given case, the court will look to the aver-ments in the body of the petition, and not alone to the prayer for relief.
    [Ed. Note — For other cases, see Courts, Cent Dig. §§ 413, 427; Dec. Dig. &wkey;122.]
    4. Damages &wkey;157(4) — Recovery—Pleading.
    To recover interest upon an unliquidated claim for damages, interest must he asked for or embraced in the aggregate amount laid as damages.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 438, 449-451; Dec. Dig. &wkey; 157(4).]
    5. Appeal and Error <&wkey;65 —Appealable Judgments — Jurisdictional Amount.
    In a suit in justice court for damages for the negligent failure to deliver a package of films intended for use in a moving picture show, wherein the petition alleged that in consequence plaintiff was without films and could not get others, to his'damage in the sum of $100, and asked for damages, costs of suits, and general relief, without specifically asking for interest, the amount in controversy did not exceed $100, and the judgment of the county court for plaintiff on appeal was final, so that the appeal therefrom would be dismissed.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 315-328; Dee. Dig. <5&wkey;65.]
    Appeal from Fannin County Court; E. L. Agnew, Special Judge.
    Suit by A. Crittenden against the Wells Fargo & Company Express. Judgment in county court, affirming judgment in justice’s court for plaintiff, and defendant appeals.
    Dismissed.
    Thos. P. Steger, of Bonham, and Baker, Botts, Parker & Garwood, of Houston, for appellant. J. W. Gross, of Bonham, for ap-pellee.
   HODGES, J.

In September, 1914, the ap-pellee filed this suit in the justice court of Fannin county against the appellant, seeking a recovery of damages for failure to promptly transport and deliver a package of films intended for use in a moving picture show. He filed a written original petition, which stated a cause of action for negligence, and recovered judgment for $100 in the justice court, and also in the county court upon appeal. The express company has appealed from that judgment.

The appellee has filed a motion asking that this appeal be dismissed for want of jurisdiction in this court. He contends that neither the judgment nor the amount in controversy exceeds $100, and that under the statute the judgment of the county court is final. The appellant, on the other hand, insists that the pleadings of the appellee were such that the amount for which a judgment might have been rendered in his favor exceeded $100.

The plaintiff’s petition, after alleging the facts essential to his cause of action, contains the following:

“That in consequence of defendant’s said negligence, as aforesaid, plaintiff was without any films for his moving picture show on said date, and could not get any others, and therefore could not have any show on the afternoon and night of said date. That by reason thereof he was damaged to the amount of $100.”

The petition then proceeds to state facts necessary to show that the appellant had reason to expect the consequences which followed, as a result of the failure to deliver the goods promptly. It concludes with the following:

“That the plaintiff reasonably expected to take in and would have taken in from said show on July 4, 1914, the sum of $100. Wherefore plaintiff prays that defendant be cited to answer the petition, and on trial hereof he have judgment for the amount of his damages, costs of suit, and general relief.”

In reply to the motion to dismiss the appeal, counsel for appellant contends that upon those pleadings the appellee might have a judgment for interest on the sum of $100 at the rate of 6 per cent, per annum from the date of the injury, and thus the amount put in controversy exceeded the final jurisdiction of the county court.

It is generally held that, where interest is allowed upon claims of this character, it is treated as a part of the damages, and not interest, within the meaning of the statute which fixes the jurisdictional limits of the courts. Schulz v. Tessman, 92 Tex. 491, 49 S. W. 1031. It has also been held that, when the amount which the plaintiff is entitled to recover appears from his allegations to be a fixed sum, he will not be permitted to enter a fictitious credit for tlie sole purpose of giving jurisdiction, and further that in determining the amount in controversy in any given ease the court will look to the aver-ments in the body of the petition, and not alone to the prayer for relief. Pecos & N. T. R. R. Co. v. Canyon Coal Co., 102 Tex. 481, 119 S. W. 294; Hoffman v. Loan Ass’n, 85 Tex. 410, 22 S. W. 154. In order to recover interest upon an unliquidated claim for damages, interest must be asked for or embraced in the aggregate amount laid as damages. In the case of Pecos & N. T. R. R. Co. v. Rayzor (Sup.) 172 S. W. 1103, the suit was to recover damages for an injury to a shipment (of pianos. After alleging that the plaintiff had been damaged in the sum of $975, and that defendants became justly indebted to him in that sum, the petition concluded as follows:

“Wherefore plaintiff prays that the defendants be cited to answer this petition, and that on trial hereof he have judgment for his said damages in the sum of $975, with legal interest thereon, for costs of suit, and for general relief.”

It may be remarked that, if interest had been computed upon the $975 from the date of the injury, the total amount would have exceeded $1,000 and would have effected the jurisdictional question involved. In an opinion by Justice Phillips the Supreme Court said:

“Interest was * * * recoverable in this character of case only as damages. Baker v. Smelser, 88 Tex. 26, 29 S. W. 377 [33 L. R. A. 163], And if it be true that the prayer is subject necessarily to the construction that recovery of interest upon the $975 was sought as a part of the judgment, as distinct from legal interest upon a judgment for $975, the case would be one where the amount sought to be recovered exceeded the jurisdiction of the court. But is the prayer reasonably subject to only that construction? We think not. It is as readily subject to the construction of a prayer for a judgment for $975, the amount of his alleged damages, with legal interest on the judgment. That is the construction, therefore, which should be applied.”

The case of Baker v. Smelser, referred to' above, is one upon which counsel for appellant seems to rely as sustaining his view of the law. In that case Chief Justice Gaines said:

“It is apparent from the record before us that the plaintiff must have claimed in his petition $1,000, the value of the goods converted, and additional damages for the conversion, measurable by the interest on that value from the date of the conversion to the time of the trial. If these items are to be treated as interest within the meaning of that term as used in the section of the Constitution from which we have quoted, then the record fails to show that we have jurisdiction.”

After discussing that question at some length, it was decided that what was there called “interest”’ should be treated only as damages, and not interest, within the meaning of the constitutional provision referred to by the court. It was accordingly held that the amount in controversy in that case exceeded $1,000.

S. A. & A. P. Ry. Co. v. Addison, 96 Tex. 61, 70 S. W. 200, is a case in which the Supreme Court enunciated a principal which we think is applicable to the issue before us. The suit wás one for damages, in which the plaintiff sought a recovery of $130 for injuries to a shipment of horses. After discussing some other questions involved, the court said:

“In cases of this character interest may be allowed by way of indemnification as a part of the damages, but is never allowed eo nomine, and therefore, in order to recover interest, the damages claimed in the pleadings must be laid in a sufficient amount to cover the loss at the time of the accrual of the cause of action, and the interest thereon from that date to the time of the trial. In this case the damages claimed were only $130. The recovery was necessarily limited to that amount.”

In that case, as in this, the plaintiff had laid his damages in a certain amount, had not asked specifically for interest on that amount, but only prayed for general relief. Following the rule deducible from the foregoing case, we conclude that the amount in controversy in this case did not exceed $100, and that the judgment of the county court was final.

The appeal will therefore be dismissed.
      ifeAFor other cases see same topic and KEY-NUMBER in all Key-Numbered 'Digests and Indexes


text:
    DARDEN et al. v. VANLANDINGHAM et al.

    (No. 1596.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 24, 1916.
    Rehearing Denied Oct. 5, 1916.)
    1. Trespass to Tet Title <&wkey;41(l) — Pbima Facie Case.
    In a suit by heirs to recover land of their ancestor, partitioned on his death from a party who through successive conveyances took title from the purchaser at partition sale, the partition proceedings having included only part of the ancestor’s lands, by proof of heirship from the ancestor, the admitted common source of title, plaintiffs established a prima facie right of recovery to the extent of the land not involved in the original pleadings of the partition suit.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 62; Dec. Dig. <&wkey;>41(l).]
    2. Reformation of Instruments <&wkey;13(3)— Correction of Deed — Alternative Relief.
    If all heirs inheriting land are free from legal disability and join in a conveyance, proof that a single tract, for which they receive pay, and intend to convey, is by mistake omitted from their 'deed, authorizes a court of equity to reform the instrument, or to grant such relief to the purchaser as correction would confer.
    [Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. §§ 43-60; Dec. Dig. &wkey;13(3).]
    3. Reformation of Instruments <&wkey;19(l)— Mutual Mistake.
    A mistake, to justify the reformation of an instrument or deed, must have been participated in by all the parties in interest.
    [Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. §§ 74, 76-78; Dec. Dig. &wkey;19(l),]

      4. Partition &wkey;H09(4) — Relief Against Mistake in Partition Suit.
    Where heirs joined in a suit to partition their ancestor’s land, a part being omitted from the original pleadings, to establish a mutual mistake of all the parties in interest sufficient to authorize relief to the successor in title of the purchaser on partition sale, it was necessary to prove that such original purchaser was a party to the mistake whereby part of the land was omitted from the pleadings.
    [Ed. Note. — Eor other cases, see Partition, •Cent. Dig. §§ 380-386, 388-390; Dec. Dig. &wkey;> .109(4).]
    5. Trespass to Try Title <&wkey;38(l) — Defense —Burden of Proof.
    In suit by heirs to recover part of their ancestor’s land, against a party claiming through successive conveyances from the purchaser at a sale on partition, the burden of proof to show that the purchaser on partition sale was a party to the mistake whereby part of the land of the heirs’ ancestor was omitted from the pleadings in the partition suit was on defendant, who relied upon the defense of mutual mistake.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 53; Dec. Dig. <&wkey;> 38(1).]
    6. Partition <&wkey;109(l) — Remedies of Successor of Purchaser — Urging Mistake.
    Where a purchaser of land on partition sale could not have urged, as ground for a claim of title to land omitted from the original pleadings in the partition suit, that the omission was by mistake, no subsequent purchaser claiming under him can do so.
    [Ed. Note. — For other cases, see Partition, •Cent. Dig. §§ 375, 376, 387; Dec. Dig. &wkey; 109(1).]
    7. Partition <&wkey;109(l) — Remedy of Purchaser-Deficiency in Amount of Land.
    Where a purchaser of land at partition sale at a stated price per acre paid for more land than he got, the partitioning heirs receiving more money than they were entitled to, any remedy against the heirs is confined to the purchaser, the party with whom they dealt, and is based on the right of reimbursement for the excess paid.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 375, 376, 387; Dec. Dig. <&wkey;> 109(1).]
    8. Partition <&wkey;109(4) — Omitted Land — Remedy of Purchaser.
    Where the joint owners of land failed to include all the land in their petition for partition, the purchaser on partition sale could not claim title to land consequently omitted from the commissioner’s deed to him on the ground that the tract was omitted from the original pleadings by mistake, since the equitable doctrine of relieving against the consequences of a mistake by correcting a written instrument, or by treating that as done which the parties intended to do in making their contract, has no application to the case, involving the judgment of a court; the purchaser’s remedy, if any, being a demand for reimbursement.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 380-386, 388-390; Dec. Dig. &wkey; 109(4).]
    9. Partition &wkey;l 09(1) — Equities of Purchaser-Personal Character.
    Whatever equities the purchaser of land on partition sale might have asserted against the plaintiffs by reason of mistake in failing to include a tract of land in the suit was personal to him, and, in the absence of conveyance by him, could not be asserted by any subsequent purchaser under a conveyance which did not purport to convey the omitted tract.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 375, 376, 387; Dec. Dig. <&wkey; 109(1).]
    Appeal from District Court, Ellis County; F. L. Hawkins, Judge.
    Suit by Earnest Darden and others against M. L. Vanlandingham and others. From a judgment for defendants, plaintiffs appeal.
    Judgment reversed, and judgment rendered for plaintiffs, the case being remanded to be disposed of in accordance with the prayer for a partition.
    W. H. Fears, of Waxahachie, for appellants. J. T. Spencer and G. C. Groce, both of Waxahachie, for appellees.

      Application for writ of error pending in Supreme Court.

   HODGES, J.

In February, 1915, the appellants filed this suit against appellee, seeking to recover an undivided nine-tenths interest in ten acres of land described as a part of the Z. Wilson survey, situated in Ellis county. They also sought to have the land sold and the proceeds partitioned among the several claimants. The appellee presented defenses claiming the exclusive title to the entire tract. The material issues of fact are practically undisputed.

It was shown upon the trial that the land was formerly owned by J. R. Darden and wife, both of whom are dead; that Darden and wife had ten children, and the appellees represent all of their heirs except one, H. C. Darden. J. R. Darden left two tracts of land. One of them is described as containing 165 acres, less 32 acres which had been sold. This tract was purchased by Darden in 1880, and the deed duly placed on record. The other tract, the one involved in this litigation, was purchased by him iu 1892, but the deed was not recorded until a short time before the institution of this suit. This latter tract adjoins the other on the north. In 1906 the Darden heirs instituted a suit iu the district court of Ellis county for the purpose of partitioning the lands left them by their parents. It seems that all then agreed that H. O. Darden, who was the oldest child, and the one most familiar with the property to be divided, should be given the power to arrange with an attorney for instituting the suit and to control the conduct and the proceedings to follow. The heirs intended to include in that suit all of the real estate left them by their deceased parents, but for some reason only the larger tract was described in the original pleadings; no mention being made of the other. Judgment was rendered in due course of time, directing the land to be sold at private sale for cash by a special commissioner appointed for that purpose. At the sale which followed the land was purchased by W. R. McDaniel at 835 per acre, and the price paid was based upon an estimate of 133 acres. The evidence shows that McDaniel purchased at the instance of and for H. O. Darden, to whom he immediately executed a conveyance. In 1907 H. 0. Darden and wife conveyed to J. H. Goodloe. In December, 1911, Goodloe and wife conveyed to the appellee. ihe deed from McDaniel to Darden, and' that from Darden to Goodloe, contained a description only of the larger tract of land; but the deed from Goodloe to the appellee included in its description the land involved in this suit. The evidence also shows that the judgment of the court, the various orders made, and the report of the commissioner followed the description in the original petition of the plaintiffs, and did not include the land in controversy.

At the conclusion of the evidence the appellants requested a peremptory instruction in their favor. This was refused, and the court propounded interrogatories to the jury, in response to which the following findings of fact were made: (1) That J. R. Darden owned 133 acres of land; (2) that the heirs intended to include all the land he owned at his death in the partition suit; (3) that they believed that the sale made in those proceedings disposed of it all; (4) that the purchaser under the partition sale believed he was getting all of the lands belonging to the estate of J. R. Darden; (5) that the Darden heirs through that partition proceeding received pay for 133 acres of land. Upon these findings the court entered a judgment in favor of the appellee, and denied aiíy recovery to the appellants. This judgment is attacked upon the ground that it is unsupported by the evidence.

It may be conceded that all of the facts found above are true; yet it does not follow that the relief granted in the court below should have been given. By proof of heir-ship from J. R. Darden, an admitted common source, the appellants established a prima facie right of recovery to the extent prayed for. To defeat that prima facie right the appellee relied solely upon the grounds that the appellants have received pay for all the land they inherited from their ancestors, and that the failure to include in the partition suit the tract in controversy was the result of a mistake on the part of all those interested. If all the heirs had been free from any legal disability and had joined in a conveyance to McDaniel, proof that one tract of the land for which they received pay, and had intended to convey, had been by mistake omitted from the deed, would authorize a court of equity to reform the instrument of conveyance, or to grant such relief to the purchaser as that correction would confer. Durham v. Luce, 140 S. W. 850; Howell v. Lumber Co., 62 Tex. Civ. App. 584, 132 S. W. 848; Avery v. Hunton, 23 Tex. Civ. App. 353, 56 S. W. 210. In such cases the rule applied is founded upon the powers of a court of equity to correct clerical mistakes and enforce the real contract which the parties made. But the mistake must be one participated in by all the parties in interest. Under the facts before us the immediate and first victim of the mistake charged was McDaniel, who purchased at the commissioner’s sale. While the evidence shows that he purchased for H. O. Darden, it is made clear that he did not in so doing act as the agent-of Darden. He paid his own money, not money that was furnished by Darden. He paid cash and sold to Darden on time, and conveyed by a deed containing a general warranty. He also reserved in the deed a vendor’s lien to secure the purchase-money notes. Evidently the agreement between Darden and McDaniel amounted simply to this: That McDaniel should buy the land for cash and sell it to Darden on time. Had Darden failed to pay at maturity the purchase-money notes which he gave, McDaniel could have foreclosed his vendor’s lien. This he could not have done had McDaniel been merely an agent or trustee for Darden in purchasing at the sale by the commissioner. Hence, in establishing a mutual mistake of all the parties in interest sufficient to authorize the relief sought by the appellee in this case, it was necessary to prove that McDaniel was a party to that mistake. The burden of doing this . rested upon the appellee, who relied upon that defense. According to McDaniel’s testimony, he knew nothing about the land to be partitioned, except that it was the Dar-den estate, and that the number of acres amounted to 133. He did not know whether it was embraced in one tract or two. Neither does it appear that he knew anything about the identity of the land. It is not shown that he expected to get this particular tract of land in the conveyance from the commissioner. The only mistake of which he could complain was the shortage in the number of acres conveyed in his deed. If McDaniel could not have urged that mistake as ground for a claim of title to the land omitted, that cannot be done by any purchaser claiming under him. His bid for the land, as shown by the report of sale-, was $35 per acre, and the court approved the sale in that form. In the deed from the commissioner the tract" was described as containing 133 acres. In the metes and bounds given the length of each line was stated. A mathematical calculation shows that according to those dimensions the shortage amounted to 8 or 10 acres. It therefore appears that McDaniel paid for more land than he got, and that the heirs received moré money than they were entitled to. In such a case the remedy against the heirs, if any, is confined to the party with whom they dealt, and is based upon the right of reimbursement for the excess paid.

But there is another and a stronger reason why this judgment cannot be sustained. The equitable doctrine which felieves against the consequences of a mistake, by correcting a written instrument so as to make it a true record of the real contract, or by treating that as done which the parties intended to do in the making of their contract, has no application to the case before us. Here the muniment of title in which the mistake is said to have occurred is not a voluntary conveyance by the parties, but the judgment of a court. McDaniel acquired his title by a judicial sale made in pursuance of a judgment in all things regular and in conformity with the pleadings of the parties. In such cases the rule of caveat emptor applies, and the purchaser is charged by law with notice of the subject-matter of the suit. He cannot after his purchase claim that he thought he was getting property not included in the partition decree. If he paid for a greater number of acres than was conveyed to him, his remedy, if any, is a demand for reimbursement. He cannot claim a title by estoppel in a case where the judgment of a court is essential to the passage of title. The failure of the joint owners of the Darden estate to include in their petition for a partition all of their land merely had the legal effect of leaving their title undisturbed as to that which was omitted. The rights of the purchaser at the sale made by the commissioner must be determined, not by what the joint owners intended to have sold, but by what the court’s decree directed to be sold. Moreover, whatever equities McDaniel might have asserted against the appellants by reason of the mistake in failing to include the smaller tract in the partition suit was purely personal to him, and in the absence of a conveyance by him could not be asserted by any subsequent purchaser. Darden could not claim by estoppel a right which McDaniel, his grantor, held only by estoppel. McDaniel’s deed to Darden conveyed only the larger tract, and there is no evidence tending to show that McDaniel intended to convey any other land.

The judgment of the court will be reversed, and judgment here rendered in favor of the appellants for the interests sued for. The case, however, will be remanded for the purpose of being disposed of in accordance with the prayer for u partition.
      áSwFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      other eases see same topic and KEY -NUMBER in all Key-Numbered Digests and Indexes