text:
    BYRNE et ux. v. TEXAS LUMBER & LOAN CO.
    (No. 1833.)
    (Court of Civil Appeals of Texas. Texarkana.
    Oct. 25, 1917.)
    1. Appeal and Error <§=>230 — Presentation of Grounds of Review in Court Below— Instruction — Objections—Necessity.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1971, requiring objections to the charge to be made before it is read to the jury, and declaring that unless so made they shall be waived, objections to a peremptory charge are waived if not made before the charge is read, and in such case assignments of error complaining of the charge cannot be considered on appeal.
    2. Exceptions, Bill of <§=>43(1) — Time for Filins.
    A bill of exceptions, not filed until long after the time in which to file allowed by the court’s order expired, cannot be considered.
    3. Appeal and Error <§=>230 — Presentation of Grounds of Review in Court Below— Necessity — Fundamental Error.
    Where no objections to a peremptory charge were made until after it was read to the jury, all objections were waived, Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1971, applying to peremptory charge as well as others, and the propriety of the charge cannot be reviewed on appeal on the theory that it amounted to fundamental error.
    Error from District Court, McLennan County; E. J. Clark, Judge.
    Action by the Texas Lumber & Loan Company against G. H. Byrne and wife. There was a judgment for plaintiff, and defendants bring error.
    Affirmed.
    D. C. Woods, of Waco, for plaintiffs in error. E. M. Mann, of Mart, for defendant in error.
   WILLSON, C. J.

The assignments are predicated upon the action of the trial court in peremptorily charging the jury to find in favor of defendant in error against plaintiffs in error, who were the defendants in that court. As it does not appear from anything in the record we are authorized to consider that plaintiffs in error presented to said court the objection they urge to the charge, before same was read to the jury, they are in the attitude of having waived the objection and are not entitled to have their assignments considered here. Article 1971, Vernon’s Statutes; Railway Co. v. Wadsack, 166 S. W. 42; Railway Co. v. Brown, 168 S. W. 867; Heath v. Huffhines, 168 S. W. 974; Railway Co. v. Crutchfield, 165 S. W. 551; Johnson v. Hoover, 165 S. W. 900; Case Cutlery Co. v. Folsom, 170 S. W. 1066; Williams v. Phelps, 171 S. W. 100; Railway Co. v. Chumbley, 169 S. W. 1107; Railway Co. v. Lewis, 176 S. W. 68. The bill in the record showing that plaintiffs in error objected to the charge was not filed until long after the time in which to file it allowed them by the court’s order had expired, and for that reason cannot be considered. Canal v. Quinn, 160 S. W. 151; Criswell v. Robbins, 152 S. W. 210; Rishworth

v. Moss, 191 S. W. 843. But had it been filed in time to entitle it to consideration, we would have to hold it to be insufficient because it fails to show that the objection was presented to the court before he read the charge to the jury. Railway Co. v. Sharpe, 167 S. W. 814; Fuller v. Commission Co., 174 S. W. 931; Railway Co. v. Fogleman, 172 S. W. 558.

The contention made, that the error (if it was one) of the trial court in peremptorily charging the jury to find for defendant in error was a fundamental one entitling plaintiffs in error to have the action of that court reviewed whether they objected to it or not, is overruled. This court and other Courts of Civil Appeals have repeatedly, and we think correctly, held to the contrary of the contention. Railway Co. v. Wilson, 176 S. W. 619; Railway Co. v. O’Bannon, 178 S. W. 731; McCall v. Roemer, 186 S. W. 409; Thorne v. Dashiell, 189 S. W. 986; Pearce v. Lodge, 190 S. W. 1156; Carr v. Bank, 189 S. W. 988; Strong v. Harwell, 185 S. W. 676; Ry. Co. v. Wheat, 173 S. W. 974; Gestean v. Bishop, 180 S. W. 302. The right of a litigant to appeal from a judgment against him and his right to a review by an appellate court of proceedings resulting in the judgment are statutory ones. • The litigant is not in a position to demand such a review until he makes it appear in the way required by the lawmaking power that he has complied with conditions to its exercise prescribed by that power. One of those conditions, as is shown by article 1971, Vernon’s Statutes, cited above, is that the litigant shall present to the trial court his objections to the charge before it is read to the jury. The statute contains no language evidencing an intention on the part of the Legislature that the requirement shall not apply if the charge is a peremptory one to find in favor of the litigant’s adversary, and, keeping the object of the Legislature in view, we see no reason why the statute should be held to be inapplicable to such a charge.

The judgment is affirmed.


source: Caselaw Access Project

author: HODGES, J.

license: Public Domain

text:
    GULF, C. & S. F. RY. CO. v. TAYLOR.
    (No. 1827.)
    (Court of Civil Appeals of Texas. Texarkana.
    Oct. 18, 1917.)
    Railroads <§=>446(7) — Rights of Way — • Fences — Switching Limits.
    The mere fact that the point where plaintiff’s horse was killed by defendant’s locomotive was within what was commonly called the-switching limits of the defendant-railroad company does not as a matter of law establish that the'place was not one which defendant should inclose with a fence, in order to avail itself of' protection against the killing of stock.
    Appeal from McLennan County Court;; Geo. N. Denton, Judge.

      Action by W. J. Taylor against the Gulf, Colorado & Santa Fé Railway Company, begun in justice court and appealed by defendant to the county court. From a judgment there for plaintiff, defendant again appeals.
    Affirmed.
    Nat Harris and Spell & Sanford, all of Waco, for appellant. Allen Beadel, of Moody, for appellee.
   HODGES, J.

This suit originated in the justice court of precinct No. 5 of McLennan county. A judgment was rendered in both the justice and the county courts in favor of the appellee against the appellant for the sum of $150 as damages for the killing of a horse on the appellant’s right of way by one of its locomotives.

The contention on this appeal is that the facts attending the killing of the animal required the court to determine, as a matter of law, that the plaintiff was not entitled to recover. It is insisted that the undisputed evidence shows that the animal was killed within the appellant’s switching limits in the town of Moody, and that this fact alone was sufficient to show that the place where the injury occurred was not one which might have been fenced by the railway company. It is not alleged that the employés of appellant were guilty of any negligence, and the judgment must be supported alone upon the ground that the railway company had failed to inclose its tract with a fence at the place where the injury occurred. It has been held in this state that the mere fact that a point is within what is commonly called the “switching limits” of a railway company is not alone sufficient to determine, as a matter of law, that such place was not one which the railway company should inclose with a fence in order to avail itself of the protection against the killing of stock. H. & T. C. Ry. Co. v. Holbert, 182 S. W. 1180; Ft. W. & D. C. Ry. Co. v. Decatur Cot. Seed Co., 193 S. W. 392. There are other cases where language is used that would seem to bear a different construction, but we know of none in which the facts are such as to cause a conflict upon the legal proposition involved.

We concur in the ruling made in the above-cited case, and affirm the judgment of the trial court.
      ®=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, O. J.

text:
    HOUSTON & T. C. R. CO. v. ORIENTAL OIL CO.
    (No. 1838.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 1, 1917.)
    Carriers <®=> 121 — Tank Cabs — Loss oe Oil— Liability.
    Where a tank ear was unloaded by removing a tap on a pipe in the bottom and connecting a pipe, and then opening a valve from the top of the tank, the railroad is not liable for loss of oil by reason of the valve being open when the tap was removed at destination; the tank being filled by plaintiff before starting.
    Appeal from Robertson County Court; J. L. Goodman, Judge.
    Suit by the Oriental Oil Company against the Houston & Texas Central Railroad Cdm-pany. Judgment for plaintiff, and defendant appeals.
    Reversed, and judgment rendered.
    Having loaded it with oil at Sherman, ap-pellee had appellant haul a tank car over its line of railway to Calvert, where appellee unloaded the car by means of a pipe extending from the inside of the tank through the bottom thereof. The pipe was equipped with a tap at its lower end and with a valve at its upper end. When the tap was removed, preparatory to connecting the pipe with the receptacle into which the oil was to be unloaded, the flow of oil from the tank could be controlled by means of the valve, which was operated from the top of the tank. The oil would flow if the valve was open, but would not if it was closed. Because it was open, when it should have been closed, oil flowed from the tank and was wasted on the ground, after appellee removed the tap, before it could either make the connection necessary to carry it to the receptacle it had provided for it or close the valve. Alleging that the loss of the oil wasted as stated was due to negligence on the part of appellant, in that the appliances for unloading the car were defective, appellee sued and recovered the judgment for $251.71 against appellant from which the appeal is prosecuted.
    A. P. McCormick, of Waco, Perry & Woods, of Franklin, and Baker, Botts, Parker & Gar-wood, of Houston, for appellant. H. S. More-head, of Franklin, for appellee.
   WILLSON, O. J.

(after stating the facts as above). The theory on which appellee sought and recovered the judgment was that appellant, being bound to use care to furnish a tank car equipped with appliances for unloading it at Calvert without loss of any of the oil, violated its duty by negligently furnishing a car with the appliances for the purpose stated so defective as to cause the loss complained of when it (appellee) attempted to unload the car. But appellee, as appears from the record sent to this court, utterly failed to prove any such violation of duty on the part of appellant. The ear was equipped with appliances which, if in good repair and properly used, would have prevented waste of the oil in unloading the car. There was no evidence whatever that any of the appliances were defective in any way at the time the car was delivered to appellee in Sherman. Indeed, it appeared with reasonable certainty, if not conclusively, that the appliances were not in any way defective either then nor when the car was unloaded at Calvert, and that the oil lost to appellee in its attempt to unload the car was lost because of the failure of appellee to close the valve before loading the car at Sherman and its failure to discover that the valve was open at Calvert and close it before it removed the tap from the pipe through which the oil escaped. On the case as made by appellee’s pleadings and the testimony it was not entitled to recover anything of appellant, and the court below should have told the jury so. Railway Co. v. Wittnebert, 101 Tex. 368, 108 S. W. 150, 14 L. R. A. (N. S.) 1227, 130 Am. St. Rep, 858, 16 Ann. Cas. 1153.

The judgment will be reversed, and judgment will he here rendered that appellee take nothing by its suit against appellant.
      <fe»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ARNOLD et al. v. MEYER.
    (No. 1880.)
    (Court of Civil Appeals of Texas. Texarkana.
    Oct. 18, 1917.)
    Mobtgages <⅜^>469 — Rbcetveks—Petition.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2128, subd. 2, authorizing appointment of receiver in mortgage foreclosure proceedings, where property is in danger of being materially injured, etc., a petition alleging generally that defendant was insolvent, and would injure the property pending suit, is insufficient to authorize an ex parte appointment of a receiver.
    Appeal from District Court, Smith County ; J. R. Warren, Judge.
    Suit by Joe Meyer against Horace Arnold and others. Prom the order appointing a receiver, the defendants appeal.
    Reversed and remanded.
    T. N. Jones, of Tyler, for appellants. Simpson, Lasseter & Gentry, of Tyler, for appellee.
   HODGES, J.

This appeal is from an order made in vacation appointing a receiver. The suit was instituted by the appellee against the appellants, R. S. Arnold and Willie Clay to recover a judgment on certain promissory notes and to foreclose liens given to secure their payment. The first note described.in the petition is one on which a balance of $354.45, exclusive of interest and attorney’s fees, was claimed to be due. This note, it is alleged, was secured by a mortgage upon certain horses, cattle, farm implements, and crops to be grown during the years of 1916, 1917, and 1,918. The plaintiff also sought a judgment on a group of notes given for the purchase price of a tract of land and secured by a vendor’s lien. The petition closed with a prayer for the appointment of a receiver empowered to take charge of both the land and the personal property incumbered by the liens referred to. As grounds for appointing a receiver to take charge of the personal property, it was alleged as follows:

“That the property covered by said mortgage is wholly insufficient to discharge the debt for which the same was given to secure, and that said property is in danger of being materially injured pending this suit; that the condition, of the mortgage hereinbefore described has not been performed; that the defendant Olay is insolvent, will use said property during the pen-dency of this suit and not pay anything for the use, hire, or increase thereof, but will illtreat and injure same pending this suit.”

For reasons which will hereafter appear it will be unnecessary to refer to the aver-ments authorizing the appointment of a receiver to take' charge of the real estate. The petition was sworn to by F. D. Taylor, who is described as an agent of the plaintiff below. Upon presentation of this verified petition, the trial judge in chambers entered an order appointing Will Wright receiver, with authority to take charge of the personal property alone upon the filing of a bond in the sum of $800 to be approved by the clerk.

It is contended by the appellants that the facts set out in the verified petition were insufficient to authorize the appointment of a receiver without notice to the owner of the property involved. Subdivision 2 of article 2128 provides for the appointment of receivers in suits of this character, and is as follows :

“In an action by a mortgagee for the foreclosure of his mortgage and sale of the mortgaged property, when it appears that the mortgaged property is in danger of being lost, removed, or materially injured, or that the condition has not been performed and the property is probably insufficient to discharge the mortgage debt.”

While -the statute does not prescribe that the defendant shall be notified and given an opportunity to contest the application for a receiver, the courts have generally held that such notice and opportunity should be given, except when it is made to appear that a delay for that purpose would probably result in injury to the property or to the rights of the applicant. Simpson v. Alexander, 188 S. W. 285; Butts v. Davis, 146 S. W. 1015. A receivership not only entails considerable cost, which must fall upon the defendant, if cast in the suit, but it deprives him of some of the benefits resulting from the lawful possession of the mortgaged property up to the issuance of an order of sale. There appears to be no reason in this case why a writ of sequestration would not have furnished the applicant all the protection needed and which he could secure by the appointment of a receiver. To deprive the defendant of the right to contest such an appointment can be justified only upon a clear showing, not only that the proper legal grounds exist for the appointment of a receiver, but that the rights of the petitioner would be jeopardized by the delay necessary to give notice. See cases above cited.

The averments of fact in the petition in this case are vague and general. They are not sufficient to justify the legal inference that the property was in such danger of being wasted or injured as to authorize the court to act without notice to the opposite party. Practically, these averments amount to no more than a statement of conclusions of fact which may or may not be well founded. Such evidence we regard as too indefinite and unsatisfactory to warrant an ex parte proceeding.

The judgment will therefore be reversed, and the cause remanded, in order that the appellants may be heard in resisting the application.
      other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    DUNSMORE v. BLOUNT-DECKER LUMBER CO.
    (No. 1779.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 22, 1917.)
    1. Logs am Logging <®=>3(7) — Sale ox Timber — Time fob Removal.
    If a deed conveyed timber in fee as an interest in the land, the assignee of the grantee therein could enjoin the owner of the land from cutting the timber; but, if it granted the timber as personalty, the purchaser had no such right, where the agreed time for cutting and removal had expired.
    2. Logs and Logging <®=33(7) — Timbee Sales — Construction oe Contract.
    A deed conveying all merchantable timber on a certain tract, providing that the grantees should have 10 years to cut and remove it, and permitting the grantees to enter the land for the purpose of cutting and removing the timber, followed by habendum and a warranty clause, conveys the timber as personalty.
    3. Injunction <®=>136(1) — Right to Writ-Destruction oe Property.
    In determining the allowance of a temporary injunction, the rule is that it will be allowed, if there is a case of probable right and probable danger to the right without the injunction.
    Appeal from District Court, Cherokee County ; L. D. Guinn, Judge.
    Suit by the Blount-Deeker Lumber Company against A. C. Dunsmore. From an order granting a temporary injunction, defendant appeals.
    Reversed and set aside.
    The appeal is to review an order made by the district judge granting a temporary injunction. The petition of appellee, on which the order was granted, alleges that J. A. Smith and wife executed a deed to Summers and Musick on October 25, 1907. The deed conveys:
    “All that certain merchantable timber on the following described tract of land: [Here follows description. The deed then continues:] It is fully understood and agreed that the said Summers and Musick shall have the period of ten years from the first day of January, 1907, in which to cut and remove said timber from off said above-described land. And it is also agreed and understood that said Summers and Musick shall have the right to enter said tract of land with railroad trainroad, log wagons, and others at any point or points which may be most convenient for the purpose of cutting and removing said timber.”
    This is followed by a habendum and a warrants'' clause. The petition then alleges:
    “That subsequent to said date said .Summers and Musick conveyed said pine timber to the plaintiff, and that A. O. Dunsmore is the as-signee of J. A. Smith and wife and owns the land above described, but with notice of plaintiff’s rights. That by the terms and legal effect of said deed plaintiff became the absolute owner in fee simple of the pine timber situated on said land, and now is and has continued ever since to be the owner of said pine timber, and that the timber situated on said land is now reasonably worth the sum of seven hundred dollars. That the defendant is now in possession of said land, but that plaintiff is the owner of all of the pine timber situated thereon. That a large portion of said premises, to wit, about 100 acres, consists of standing pine timber of great value, to wit, the value of seven hundred dollars. That the defendant is threatening to cut said timber and to dispose of same, and unless restrained by your gracious writ will cut the same down. That the defendant is setting up some claim to said timber, notwithstanding tlieir conveyance to same, and that plaintiff is the absolute owner of said timber.”
    The prayer is for a restraining order to prevent the defendant from cutting or disposing of the timber on the said tract and that plaintiff have judgment for the title and possession of the pine timber situated on the land, and that the injunction be made perpetual. The' petition was filed Jánuary 8, 1917, and the judge’s order was made on same date.
    Perkins & Perkins, of Rusk, for appellant. Norman, Shook & Gibson, of Rusk, for appel-lee.
   LEVY, J.

(after stating the facts as above).

The appellee’s right to the timber depends upon the terms and legal effect of the deed set up in the petition. If the instrument should properly be construed as intending to convey the timber in fee simple as an interest in the land on which it stood, then, under the authority of Lodwick Lumber Co. v. Taylor, 100 Tex. 270, 98 S. W. 238, 123 Am. St. Rep. 803, the appellee would be entitled to have the restraining order granted by the judge; but if the instrument should properly be construed as expressing the intention of the parties to convey the timber as personalty, and not as in the nature of an interest in the land on which it stood, then the restraining order is not allowable and should be denied. For, as disclosed by the record, the agreed limitation upon the right of the purchaser had expired at the time of the injunction, and as a legal consequence the appellant, as owner of the land and timber, would have the legal right to cut the timber as against appellee. The deed in suit, as we conclude, clearly expresses the intention of the parties thereto to deal with the timber as personalty, and not in the nature of realty, and provides a fixed time for the expiration of the right granted. As we have heretofore thoroughly considered and announced the principle of law in respect to the very question here involved, and on similar conveyances, we believe that the ruling in those cases should be adhered to and followed. Beauchamp v. Williams, 115 S. W. 130; Carter v. Clark & Boice Lumber Co., 149 S. W. 278; Lancaster v. Roth, 155 S. W. 597; Lumber Co. v. McWhorter, 156 S. W. 1152. The rule to be followed in determining the allowance of a temporary injunction is that of whether there is a case of probable right and probable danger to the right, as alleged, without the injunction. Whitaker v. Hill, 179 S. W. 539; Miles v. Bodenheim, 184 S. W. 633. And we conclude, as a matter of law, in the construction of the deed, a probable right is not apparent to the appellee.

The temporary restraining order of the judge is reversed and set aside.
      ÉcsFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    STAMPER et al. v. ALICE STATE BANK & TRUST CO.
    (No. 6000.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 31, 1917.
    Rehearing Denied Nov. 28, 1917.)
    1. Appeal and Ebbob <S&wkey;781 (7) — Dismissal— Moot Questions.
    An appeal from an interlocutory order requiring the hoard of trustees of an independent school district to convene and open bids to become the depository for the district, and to award the contract to the successful bidder, and enjoining' a bank from acting as depository under a contract previously awarded, will be dismissed where the board, in obedience to the order, has opened the bids and awarded the contract to the same bank to which it was previously awarded; as the questions presented are moot questions.
    2. Appeal and Ebbob i&wkey;781(7) — Dismissal —Moot Questions.
    In such case a dismissal of the appeal rather than a dismissal of the suit would be the proper practice, as, the appeal being from an interlocutory order, a dismissal of the appeal would work no injustice.
    Appeal from District Court, Jim Wells County; J. F. Mullally, Judge.
    Suit by the Alice State Bank & Trust Company against H. N. Stamper and others. From an interlocutory order in favor of plaintiff, defendants appeal.
    Appeal dismissed.
    R. R. Mullen, of Alice, for appellants. C. C. Ferry and W. R. Perkins, both of Alice, for appellee.
   MOURSUND, J.

This is an appeal from an interlocutory order requiring H. N. Stamper, Alex Grant, G. C. Azbill, Walter G. Weaver, and • J. A. Richards, who constitute the board 0‡ trustees of the Alice Independent school district to convene and to consider and open bids to become the depository for said district, and to award the contract to the successful bidder, and enjoining the Citizens’ State Bank from acting as depository under a contract awarded at a meeting held September 8, 1917.

Appellee has filed a motion to dismiss the appeal on the ground that on September 22, 1917, the school board convened, and in obedience to the order appealed from opened the bids, and awarded the contract to the appellant Citizens’ State Bank, requiring of said bank a bond in the sum of $50,000, which bond was duly executed and filed with the board of trustees.

The motion is supported by a copy from the minutes of the meeting of the board, certified to by the secretary, and also by affidavit of one of the attorneys for appellee.

The answer to the motion contains a general denial of the allegations of the motion, but is not sworn to, and we take it for granted that the facts alleged in the motion are true.

As the order of the court has been complied with by the school board, and its action in making a new award of the contract for depository has been acquiesced in and complied with by the Citizens’ State Bank, it would be a profitless undertaking to determine whether the order appealed from should have been made by the trial court. We conclude that the questions presented upon appeal are moot questions, in view of what has taken place since the interlocutory order was entered. Electric Park Co. v. S. A. Baseball Ass’n, 155 S. W. 1189; Rogers v. Ivy, 191 S. W. 728.

Appellants contend that, if any relief be granted upon appellee’s motion, it should take the form of an order dismissing the case, instead of the appeal. It is true that in some cases our courts have found it proper to dismiss the case when the questions presented upon appeal became moot, but it cannot be held that it is proper to do so in all eases. In suits to determine title to an office it was deemed proper to dismiss the cause when the term of office had expired, so that the judgment appealed from could not be urged as an adjudication of the right to the emoluments of the office, and this is peculiarly just when an appellant hasi been deprived of his appeal by lapse of time and not by his own act. This is an appeal from an interlocutory order, and to dismiss the appeal will not work any injustice. . We believe it to be the proper practice in this case to dismiss the appeal.

Appeal dismissed.


author: ELY, C. J.

text:
    JACKSON v. SERE.
    (No. 5908.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 14, 1917.)
    1. Coubts &wkey;>122 — Jubisdiction—Petition.
    In the absence of any proof of fraud as to jurisdiction, the averments in the petition as to the amount involved will establish the jurisdiction of the court.
    2. Courts <®=»121(4) — Jurisdiction—Amount Involved.
    Though the amount of a note in suit was less than $200, yet, where plaintiff sought sequestration of a motorcar of the value of $350, and foreclosure of a chattel mortgage thereon, the county court had jurisdiction.
    3. Appeal and Ereob <&wkey;1010(l)—Review-Findings.
    A finding of fact in an action tried to the court is conclusive on appeal, when supported by evidence.
    4. Pleading- &wkey;>8(4) — Petition — Conclusions op Pleader.
    In a suit on a note and for the foreclosure of a chattel mortgage, an averment that the mortgaged chattel, a motorcar, was of the value of $350 is not a conclusion of the pleader.
    Appeal from Bexar County Court; John H. Clark, Judge.
    Action by R. Sere against E. J. Jackson. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Diedrieh A. Meyer, of San Antonio, for appellant. C. J. Adams, of San Antonio, for appellee.
   ELY, C. J.

This is a suit to recover on a promissory note for $211.50, instituted by appellee against appellant, and to foreclose a chattel mortgage on an automobile given to secure payment of the note. No jury was demanded and the court heard the cause and rendered judgment in favor of appellee for the amount of his note, Interest, and costs, and a foreclosure of the chattel mortgage.

There was no plea of non est factum, but, on the other hand, it was admitted that appellant executed the note for $211.50. The jurisdiction of the court -was fixed by the allegations of the petition, in the absence of any proof of fraud as to jurisdiction. Hoffman v. Building & Loan Association, 85 Tex. 409, 22 S. W. 154; Ablowich v. Bank, 95 Tex. 429, 67 S. W. 79, 881; W. U. Tel. Co. v. Arnold, 97 Tex. 365, 77 S. W. 249, 79 S. W. 8; Railway v. Marshall, 184 S. W. 643; Wells Fargo & Co. v. Crittenden, 189 S. W. 296.

In the petition, as well as application for sequestration, the automobile was alleged to be of the value of $350, and if the amount of the note had been less than $200, as contended by appellant, the court would still have had jurisdiction, because the amount in controversy would be the alleged value of the chattels on which a foreclosure was sought. Cotulla v. Goggan, 77 Tex. 32, 13 S. W. 742; Reeves v. Faris, 186 S. W. 772.

No objection was made to the amount of the judgment in the trial court, but for the first time the judgment is assailed in this court because the sum of $3 was not credited on. the note. It is true that appellant testified that he had made a “sign” for an employe of appellee, but appellee testified positively that appellant “never paid me a cent on said note and mortgage and everything is due me.” The court credited that statement, and this court cannot question the decision. The second assignment of error is overruled.

The evidence clearly showed that appellee paid appellant $200 in cash as a loan, and, with the consent and at the request of appellant, paid an attorney $10 for examining the title to the automobile and preparing the mortgage, and $1.50 for acknowledgment and registration of the same. Two witnesses swore to those facts, and the court credited their statements rather than those of appellant to the effect that the $11.50 was usurious interest. This court is bound by the court’s action in the matter.

The allegation of value of the automobile in the petition was not a mere conclusion of the pleader, but the allegation of a fact. Appellant fails to state in what other manner value could have been alleged.

There is no error presented in the brief of appellant, and the judgment is affirmed.
      <&wkey;>For other cases see same topic and KEY-NUMDER. in all Key-Numbered Digests and Indexes


author: MOTJRSUND, J.

text:
    SALINAS et al. v. SHAW.
    (No. 5895.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 31, 1917.
    Rehearing Denied Nov. 28, 1917.)
    1. Adverse Possession <&wkey;27 — Sufficiency of Evidence—Holding by Tenant.
    In trespass to try title, evidence held sufficient to support a finding that defendant had acquired title by adverse possession through a tenant.
    2. Adverse Possession <&wkey;29 — Holding by Renter—Notice of Claim.
    Where one rents land to another, such tenancy is sufficient notice of adverse possession although he never mentioned his claim to any one.
    3. Adverse Possession <&wkey;85(3)—Nature of-Possession—Evidence.
    Evidence held sufficient to support a finding that defendant took possession of land adversely for himself- and not as agent of another.
    Appeal from District Court, Duval County; Y. W. Taylor, Judge.
    Trespass to try title by F. G. 'Salinas and others against J. W. Shaw. Judgment for defendant, and plaintiffs appeal.
    Affirmed.
    J. O. North, of F'alfurrias, and J.. T. Fly, Gordon Bullitt, and Alex C. Bullitt, all of San Antonio, for appellants. S. H. Woods, of Alice, and Hicks, Hicks, Dickson & Bobbitt, of San Antonio, for appellee.
   MOTJRSUND, J.

This is a suit in trepass to try title by Francisco G. Salinas, Gregoria G. de Garcia, joined herein by her husband, Vidal Garcia, Gorgonia Garcia Salinas, Jaco-ba Garcia Trevino, joined herein by her husband, Jose Ma, Trevino, Jesusa G. de Garcia, joined herein by her husband, Severo Garcia, Victoria G. Rogers, joined herein by her husband, T. C. Rogers, and Alberto G. Salinas, against Joe Shaw, Mensalado Presas, and Wallace-Landes Company, to recover 100 acres of land in Duval county. Weusala-do Presas, sued as “Mensalado Presas,” disclaimed. Shaw answered by general denial, plea of not guilty, and plea of title by limitation under the ten-year statute. ’ He also pleaded a cross-action against plaintiffs for the land. Plaintiffs dismissed as to Wallace-Landes Company. Judgment was rendered in favor of Shaw, and plaintiffs appealed.

The findings of fact by the trial court are, in substance, as follows: (1) That the record title to the land is in plaintiffs. (2) That defendant Shaw, in 1904, claimed and took possession of the land in controversy, which was inclosed by a fence, and since said date has been continuously cultivating, using, and enjoying the same, through his tenant, Weu-salado Presas, up to the filing of this suit on November 16, 1916; that such possession was actu'al, visible, continuous, peaceable, and adverse; that Weusalado Presas during all of said time recognized 'Shaw as his landlord, and has never at any time asserted any title in himself to the land.

It is contended by appellants that Shaw had never asserted any claim to the land in controversy until less than five years prior to the filing of this suit; that Shaw claimed through a renter, and had never at any time openly asserted or claimed that the person in possession of the land was his renter, and had never openly asserted or claimed any title adverse to the plaintiffs’ through said person.

The contention is based upon the admission by Shaw that, aside from his renter, he had not told any one of his claim until within two years of the trial. In this connection, he also testified, in substance, that his ownership had not been challenged and no occasion had arisen for announcing his claim. Shaw did not enter upon the land under plaintiffs, and was not called upon to give notice to them that he claimed the land as his own. The acts of ownership exercised by his tenant were ample to put plaintiffs upon inquiry as to who claimed to own their land, and the testimony as a whole supports the finding of the trial court that Shaw claimed to own the land during the time testified to by him and his tenant. His failure to mention his claim to people was a circumstance to be considered by the court in connection with the other facts in the case, but cannot be given the controlling effect desired by appellants.

It is also contended that the evidence conclusively showed that Shaw took possession of the land as the agent of the Wallaee-Landes Company, and that there is no evidence that he ever notified said company of his repudiation of the agency or that knowledge thereof was acquired by the company in any other way. This contention must also be overruled, for the reason that the testimony wholly fails to show that Shaw took possession of the land in 1904 as the agent of said company. It merely shows that in 1902 as agent for said company he took charge of land acquired by said company, described as 2,030 acres of land in block 2, and that aft-erwards a survey was made by the company and said 100 acres was left out; that “when they checked up their lands they left out this 100 acres, as they did not assert any title to it.” Thereafter Shaw took possession of it and claimed it as his own. The fact that he was still the agent of the company as to the lands claimed by it would not prevent his acquiring title for himself to land not claimed by the company.

The “findings of fact” made by the trial court are supported by the testimony, and will be adopted as our conclusions of fact.

The assignments of error raise only the questions above discussed, and are overruled for the reasons stated.

The judgment is affirmed.
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author: SWEARINGEN, J.

text:
    ALTGELT v. AUE et al.
    (No. 5994.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 31, 1917.
    Rehearing Denied Nov. 28, 1917.)
    1. Waters and Water Courses &wkey;>156(2) — Easements — Use oe Water — Construction —“Allow.”
    Where the owner of land conveyed a portion thereof, by deed reciting, “I have further agreed to allow” the grantee, his heirs or assigns, “at all times, free access to and use of a running spring” on the portion retained, after which both parties used the water as their needs arose, the grantee acquired only an easement and not the exclusive right to the water, the word “allow” not meaning “grant.” .
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Allow.]
    2. Deeds <&wkey;101 — Construction—Evidence-Acts oe Parties.
    Interpretation of a clause in a deed given it by the parties is relevant to explain its meaning.
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Suit by Geo. C. Altgelt against Herman Aue and others. From an order refusing temporary injunction, plaintiff appeals.
    Affirmed.
    Geo. C. Altgelt, of San Antonio, for appellant. Carlos Bee, Ed. H. Lange, and Martin & Martin, all of San Antonio, for appellee.
   SWEARINGEN, J.

This is an appeal from an order refusing a temporary injunction.

Appellant’s claim for the temporary injunction is founded upon an alleged grant of Leon Springs by Max Aue to George Plehwe, whose right appellant acquired by purchase, which right appellant alleged was being violated by appellees by using water from the spring for the purpose of operating a laundry. The evidence disclosed that some of the appellees were using 15 barrels of water from the spring each week for a laundry. The well is producing about 10 barrels of water an hour. Appellant has, without objection or interference, been permitted to use all the water from the spring except the 15 barrels a week.

In 1854, Max Aue owned a tract of land, out of which he sold 108 acres by metes and bounds to George Plehwe on January 10, 1S54. On the portion of the tract of land not sold, but retained by Max Aue, was situated Leon Springs. This spring was near the boundary of the tract sold to Plehwe. In the deed from Max Aue to Plehwe, a right to use a running spring, admitted to be Leon Springs, is expressed in the following words:

“And I have further agreed to allow the said George Plehwe, his heirs or assigns, at all times, free access to and use of the running spring near his S. E1. corner in the remainder of the land.”

It is admitted that appellees have whatever right to the spring that Max Aue retained after executing the deed to George Plehwe. As suggested by appellant, the only question for determination is, What right to the running spring did the deed convey to Plehwe?

Appellant insists that by the words, “allow * * * free access to and use of the running spring,” the exclusive right to use all the water from the spring was granted. No words indicating “all” the water nor “exclusive” use are used. There is nothing in the context that gives to the word “allow” the meaning of the word “grant.” There is nothing in the context that definitely determines what use was to be made of the running spring. The meaning of the sentence will therefore have to be ascertained from extraneous facts — among them, what use was contemplated by the parties? For instance, was it intended that Plehwe should irrigate with the water from the spring? Did he have a great many cattle? The use m’ost probably meant was to supply the needs of George Plehwe at the time of the conveyance. Then again the interpretation given the sentence by the parties themselves after the execution of the deed will be relevant to explain the meaning. From the evidence it appears that Plehwe needed to use the water for domestic purposes, drinking, washing, and watering a few cows and teams. He had no large number of stock and no irrigation system. At the date of the deed, Max Aue had no other source of supply of water for his own domestic purposes nor for his cattle and horses, but depended entirely upon this spring for his own necessities. It further appears that Max Aue at that time had a garden and an orchard which were irrigated by the water flowing from this spring. These circumstances render it wholly improbable-that Max Aue and George Plehwe intended that the deed should exclude Max Aue from the running spring on Max Aue’s land.

The acts of the parties, for a number of years after the conveyance, show that they did not understand the sentence to exclude Max Aue from the spring, for Plehwe merely used the spring to supply his ordinary domestic purposes and Max Aue used the bulk of the water for domestic purposes and for irrigation as he had previously done. This is accentuated by the suit between these original parties, which suit is cited by appellant. Max Aue contended he had merely allowed Plehwe a license to use the water and have access to the well, which license was revocable at his pleasure. The court determined, in so far as we are able to understand from the meager statement of that suit, that the right was not revocable; but did not undertake to determine the nature and the extent of the use. There seemed to be no dispute as to how much of the water Plehwe was to use nor for what purpose. No effort was made to deny Max Aue the right to use the water for domestic purposes nor for irrigation.

We are of the opinion that Aue’s lessee did not infringe upon the rights of appellant by the use of 15 barrels of water a week, and that the trial court did not err in its order refusing a temporary injunction.

Affirmed.
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