author: HALL, J.

text:
    WESTERN UNION TELEGRAPH CO. v. WHITE.
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 6, 1913.
    Rehearing Denied Jan. 10, 1914.)
    1. Courts (§ 405) — Territorial Supreme Court — Appeals to Federal Courts — Statutes — “Unless Otherwise Provided by Law.”
    Under Judiciary Act (Act Cong. March 3, 1891, c. 517, §§ 5, 6, 15, 26 Stat. 827, 828 [U. S. Comp. St. 1901, p. 549]), designating the cases which may be taken to the federal Supreme Court and giving the Circuit Court of Appeals, unless otherwise provided by law, appellate jurisdiction over final judgments of the district and circuit courts and territorial Supreme Courts, an appeal from a territorial Supreme Court from a judgment for $2,000, rendered in a suit between parties having diverse citizenship, lies only to the Circuit Court of Appeals, notwithstanding Act Cong. March 3, 18S5, c. 355, 23 Stat. 443 (U. S. Comp. St. 1901, p. 572), providing for appeals to the federal Supreme Court since the words “unless otherwise provided by law” in the act of 1891 refer only to contemporaneous or subsequent acts and do not include provisions of prior acts.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1097-1099, 1101, 1103; Dec. Dig. § 405.]
    2. Evidence (§ 34) — Judicial Notice — Federal Statutes.
    The courts of a state will take judicial notice of federal statutes.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 49, 50; Dec. Dig. § $4.]
    3. Courts (§ 96) — Precedents — Federal Courts — Effect in Territory.
    A decision of the United States Circuit Court of Appeals of the Eighth circuit, which is the appellate court of the territory of New Mexico, that there can be no recovery of damages for mental anguish occasioned by delay in the delivery of a telegram is the law of the territory of New Mexico on that point, but the decision does not cover a ease where, in addition to an action for mental anguish, plaintiff seeks to recover the price paid for transmitting the message.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 325, 327, 328, 334; Dec. Dig. § 96.]
    4. Evidence (§ 35) — Laws of Foreign Jurisdiction-Burden of Proof.
    A telegraph company, when sued in Texas for mental anguish occasioned by its failure to deliver a message received in New Mexico for transmission to one temporarily in Texas, has the burden of proving the laws of New Mexico as to the right to recover for mental anguish in order to defeat a recovery on the ground that, under the laws of New Mexico, there can be no recovery for mental anguish.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 35, 51; Dec. Dig. § 35.]
    5. Evidence (§ 35) — Laws of Foreign Jurisdiction-Manner of Proof.
    The laws of a sister state must be established by proof like any other fact.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 35, 51; Dec. Dig. § 35.]
    6. Telegraphs and Telephones (§ 68) — Damages — Mental Suffering — Laws of Foreign Jurisdiction.
    Proof that the common law prevails in New Mexico does not show that damages for mental anguish occasioned by a delay in delivering a message are not recoverable there, and does not defeat an action against a telegraph company for mental anguish occasioned by the failure of the company to promptly deliver a message received in New Mexico for delivery in Texas.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 69, 70; Dec. Dig. § 68.]
    7. Trial (§ 136) — Question for Court or Jury — Laws of Foreign Jurisdiction.
    Where the evidence of the laws of a sister state consists of reports of judicial decisions of the state, the effect of the decisions is for the trial court, though, where the evidence consists of parol testimony of experts, the jury must determine what the foreign law is.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 318, 320, 321, 323-327; Dec. Dig. § 136.]
    8. Evidence (§ 571) — Opinion Evidence-Laws of Sister States — Question for Court.
    The testimony of a lawyer of the territory of New Mexico as to the course a case would take under the laws of the territory and what in his opinion was the court of final resort is not binding on the trial court, where the matter depends on federal statutes of which the trial court must take judicial notice.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2395-2398; Dec. Dig. § 571.]
    9'. Evidence (§ 80) — Presumptions—Laws of Sister States.
    Where, in an action against a telegraph company for mental anguish for delay in the delivery of a telegram received in New Mexico for delivery in Texas and for the price paid for transmission, the company sought to show the law of New Mexico and to prove that where an action was for mental anguish alone the law of the forum controlled, the court correctly indulged in the presumption that the law of New Mexico was the same as the law of the forum, authorizing a recovery for mental anguish.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 101; Dee. Dig. § 80.]
    10. Telegraphs and Telephones (§ 37) — Delivery of Message — Free Delivery Limits.
    Where a telegraph company establishes free delivery limits, the burden rests on it to ascertain whether the addressee of a message resides within or without the limits and, if necessary, make demand for the requisite fee for delivery beyond the limits, and, in the absence of such demand, the duty rests on it to deliver without reference to the residence of the addressee.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 23, 24, 29, 30, 32; Dec. Dig. § 37.]
    11. Telegraphs and Telephones (§ 38) — Delay in Delivery of Messages — Error in Transmission — Effect.
    Where a message received by a telegraph company for transmission was addressed to the sendee, followed by the words “Organizer of Ladies’ Circles,” was during ' transmission changed to “Organizer of Ladies’ Clubs,” and there was no club in the city of destination, but there was a ladies’ circle there as an auxiliary of the Woodmen of the World, the company could not excuse a delay in delivery on the ground that the message was addressed to the sendee in care of a ladies’ club.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 33; Dee. Dig. § 38.]

      12. Appeal and Eeeoe (§ 742) — Questions Reviewable — Assignments op Eeeoe.
    Assignments of error complaining of the refusal of requested charges will not be considered, where the statements do not set out any testimony showing the applicability of the charges, nor refer to the record as required by the rules of the court, nor show that the substance of the charges requested was not embodied in the general charge.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    13. Telegbaphs and Telephones (§ 54)— Delay in Deliveey op Messages — Estop-pel — Limitation op Liability.
    Where the receiving agent of a telegraph company agreed to transmit the message immediately and collected the day rate, the company was estopped to claim that its liability for delay in delivery was governed by the part of the contract relating to night messages.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 39-47; Dee. Dig. § 54.]
    14. Appeal and Eeeoe (§ 742) — Questions Reviewable — Assignments op Eeeoe.
    An assignment of error which is not a proposition in itself, and is not presented as a proposition, and has neither proposition nor .statement subjoined, will not be considered, especially where the matters therein urged were not shown to have been called to the attention of the trial court in the motion for new trial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    Appeal from District Court, Potter County; J. N. Browning, Judge.
    Action by Mrs. Etta M. White against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Jno. W. Veale, of Amarillo, and N. L. Lindsley, of Dallas, for appellant. Gustavus & Jackson, of Amarillo, for appellee.

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

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

   HALL, J.

On a former appeal the facts of this case were clearly stated, as reported in 149 S. W. 790, to which reference is made. In this opinion we will make such additional statement as may be required in considering the several assignments presented in appellant’s brief. The pleadings of the appellee alleging her residence to be in New Mexico set out the message and allege that the defendant contracted to deliver the same promptly and with ordinary care to plaintiff; that at said date plaintiff resided in Currie county, N. M., but was temporarily residing in Amarillo, Tex., while her husband was in the country near Tucumcari, N. M.; that a casualty befell plaintiff’s husband at Ft. Sumner, N. M., as was indicated in the message, and thé body of the deceased taken to Tucumcari in the plaintiff’s absence and buried; that if the message had been seasonably delivered plaintiff could and would have gone by auto or otherwise to Tucumcari in time to have been present at the funeral and burial of her husband, which she would have done but for the defendant’s negligence in failing to deliver the message; that the message which was dated July 17, 1909, was not delivered until several days thereafter, and if the same had been delivered that day she could have been present at the funeral or would at least have received the message in time to have had the burial of the body postponed, which could have been done, so as to have enabled her to attend the funeral. She alleged that she had been in Amarillo for several weeks where she was known to quite a number of people and was receiving mail and communications addressed to her at said place; that Simon Katz delivered the message to appellant’s agent for transmission about 4: 30 o’clock p. m. on July 17th, telling the agent that appellee was residing with a sister and had a post office box by which she could be easily located; that he paid 40 cents for the transmission of the message, and that the agent agreed to send it immediately; that appellee had been engaged in organizing ladies’ circles; that thereafter she paid to and refunded to Simon Katz 40 cents paid defendant by him; that the message was negligently transmitted, using the word “club” for “circle,” and the word “train” for “team,” which changes proximately contributed to the failure of delivery. The suit was for mental and physical suffering and to recover the cost of the message. The defendant demurred generally, specially, pleaded the general issue, .alleged that it was a corporation organized under the laws of New York, and specially answered in substance that the contract for the transmission of the message was made in what was then the territory of New Mexico, and was to be performed in Amarillo, Tex.; that, having been made in the territory of New Mexico, it was therefore one which was governed and controlled by the laws of such territory; that under the laws of the territory as then existing mental anguish, unaccompanied by physical pain or injury and such as is here claimed in this suit, was not actionable as construed by the courts of last resort governing the territory, and that there could be no recovery under the laws of said territory, where the contract was made in cases of this character. Further, that if it received said message, as claimed by plaintiff, on the 17th day of July, 1909, then it received it at 7:40 p. m. on said day and with the express understanding that it should be sent to its office at Amarillo as a night message, for the consideration of the reduced rate paid for such service; that said message was sent with the express agreement and understanding between the parties making the contract that the same should be transmitted and delivered only after the opening of the office hours of the company at Amarillo on July 18, 1909, and it therefore owed no duty under the contract made for the transmission of the said message to the plaintiff to make de-livéry of the same on July 17th or prior to tlie opening of tlie defendant’s office liours on tlie morning of July 18th. Defendant fur-tlier alleged that under the terms and conditions attached to said message, and subject to which the same was sent, it was an unrepeated message, and defendant would not be liable for any mistakes made in the transmission thereof in consideration of the reduced rate; that it was sent with the express understanding that it should only be delivered within the established free delivery limits of the terminal office, and that if delivered at a greater distance a special charge should be and would be made to cover the costs of said delivery; that in accordance with its contract it transmitted the message to Amarillo, at 8 a. m. on July 18, 1909; that defendant immediately sent its servants throughout the city of Amarillo and made proper and diligent search for the addressee, and, failing to find the plaintiff, the defendant, at 11: 05. a. m., wired Ft. Sumner, N. M., and its office at said place, asking for a better address and advising its agent at Ft. Sumner that the message could not be delivered; that the defendant’s agent at Ft. Sumner called on the sender, Simon Katz, who was unable to give any better address; that said message remained in the office of the defendant, subject to be called for until about the 22d day of July, 1909, when it was called for by plaintiff and delivered to her; that at said time the city of Amarillo was a place of about 14,000 population; that plaintiff did not reside nor was she within the free delivery limits of the city of Amarillo, but, in truth and in fact, resided in what is known as Glenwood addition to the city-more than two miles from defendant’s office in Amarillo by the nearest and most practical route; that the failure of Katz, who was plaintiff’s agent, to give a more definite address, was the proximate cause of her failure to receive the message seasonably. In reply to this pleading the plaintiff filed a supplemental petition containing general and special exceptions, and specially setting up the fact that defendant was estopped to claim the message was a night message and to be transmitted as such, because of the fact that it had collected charges at day rates; and further under oath plead failure of consideration to the stipulation on the .back of the message. The trial was before a jury, resulting in a verdict in favor of plaintiff for $2,000.

According to the view we take of the case, the most important question is raised by appellant’s fourth assignment of error. It is contended under this assignment that the court should have either peremptorily instructed the jury that under the laws of the territory of New Mexico no recovery could be had for mental anguish as a basis for actual damages, unaccompanied by physical pain or injury, or else should have submitted the issue to the jury for determination. Appellant introduced one McElroy, an attorney of Tucumeari, N. M., to prove the laws of the territory on this point. His testimony is somewhat contradictory, and his meaning uncertain upon some points. The substance of it is that there is no decision of the territorial Supreme Court upon the question, and no territorial statute relating to it, but that if the case had been filed in New Mexico its determination would have been controlled entirely by the common law; that the amount involved, being only $2,000, the case could not be appealed from the territorial Supreme Court to the United States Supreme Court, but that, in his opinion, it would be appealable to the Circuit Court of Appeals of the Eighth circuit. On cross-examination, however, he expressed grave doubts upon this point. He further testified that the common law, in so far as it was not in conflict with or modified by statute or constitution, or any treaty of the United States, was now and at the time this cause of action arose in force in New Mexico; that the Supreme Court of the United States had designated the Circuit Court of Appeals of the Eighth district as the tribunal in which cases appealed from the territorial Supreme Court should be heard. Appellant then introduced in evidence the entire opinion of the court in the case of Western Union Telegraph Co. v. Burris, 179 Fed. 92, 102 C. C. A. 386, decided by the Circuit Court of Appeals for the Eighth circuit. This was introduced for the purpose of proving what the law of New Mexico was relative to the recovery of damages for mental anguish arising from the failure of the telegraph company to deliver a message in the absence of a statute conferring the right. McElroy, the New Mexico expert, testified that he thought this decision would control the decisions of the territorial court on that question and that it is the law of New Mexico. Upon cross-examination, he stated that the Supreme Court of New Mexico would not necessarily follow the decision in the Burris Case, but that as a general rule the New Mexico territorial courts observe the rule of stare decisis.

Section No. 6 of the act of Congress of March 3, 1891 (c. 517, 26 Stat. 828), known as the Judiciary Act (4 Fed. Stat. Ann. 409 [U. S. Comp. St. 1901, p. 549]), is in part as follows: “The Circuit Courts of Appeals established by this act, shall exercise appellate jurisdiction to review by appeal or by writ of error, final decisions in the district court and the existing circuit courts in all cases other than those provided for in the preceding section of this act, unless otherwise provided by law, and the judgment or decrees of the Circuit Courts of Appeals shall be final in all cases in which the jurisdiction is dependent entirely upon the opposite parties to the suit or controversy, being aliens and citizens of the United States or citizens of different states; also in all cases arising under the patent laws, under the revenue laws and under the criminal laws and in admiralty cases,” etc. Section 15 oí the same act (4 Fed. Stat. Ann. 431) provides that the Circuit Court of Appeals in cases in which the judgments of the Circuit Courts of Appeals are made final by the act, shall have the same appellate jurisdiction by writ of error or appeal to review the judgments, orders, and decrees of the Supreme Courts of the several territories as by the act they may have to review the judgments, orders, and decrees of the district and circuit courts, and for that purpose the several territories shall by orders of the Supreme Court, to be made from time to time, be assigned to particular circuits.

Appellee contends that under the act of March 3, 1S85, section 1, c. 355, 23 Stat. 443 (4th Ed. Fed. Stat. Ann. 463 [U. S. Comp. St. 1901, p. 572]), providing that no appeal or writ of error shall hereafter be allowed from any judgment or decree in any suit at law or in equity, in the Supreme Courts of any of the territories of the United States, unless the matter in dispute, exclusive of costs, shall exceed the sum of $5,000, is effective,' and by its provisions would limit the right of appeal in this case, if filed and prosecuted in New Mexico, to the territorial Supreme Court, and while, in section 6 of the act quoted, the above decision of the Eighth Circuit Court of Appeals would be final, “unless otherwise provided by law,” that the act of March 3, 18S5, is a law providing otherwise and denying the right of appeal from the territorial Supreme Court in this case, because the amount in controversy is less than $5,000. In Lau Ow Bew v. U. S„ 144 U. S. 47, 12 Sup. Ct. 517, 36 B. Ed. 340, it is said that the words, “ ‘unless otherwise provided by law’ were manifestly inserted out of abundant caution, in order that any qualification of the jurisdiction by contemporaneous or subsequent acts should not be construed as taking it away, except when expressly so provided. Implied appeals were intended to be thereby guarded against. To hold that the words referred to prior laws would defeat the purpose of the act and be inconsistent with its context and its repealing clause.” In the Paquete Haba-na v. U. S., 175 U. S. 677, 20 Sup. Ct. 290, 44 B. Ed. 320, the court said: “It is settled that the words ‘unless otherwise provided by law,’ in this section, referred only to provisions of the same act, or of contemporaneous or subsequent acts, and do not include provisions of earlier statutes. Mason v. Pewabic Min. Co., 153 U. S. 361 [14 Sup. Ct. 847, 38 L. Ed. 745]; American Construction Co. v. Jacksonville, etc., R. R. Co., 148 U. S. 372 [13 Sup. Ct. 158, 37 B. Ed. 486]; Hubbard v. Soby, 146 U. S. 56 [13 Sup. Ct. 13, 36 B. Ed. 886].” Section 5 of the Judiciary Act, designates the cases which may be taken from the federal, district, and circuit courts direct to the Supreme Court and clearly does not include the instant case. There being allegations showing diverse citizenship, and this suit, being for only $2,000, if filed in New Mexico would necessarily be filed in the territorial rather than the federal courts, and the statutes quoted above (of which we must take judicial notice) make the Circuit Court of Appeals for the Eighth circuit a court of last resort. Hence we conclude that the law as declared in the Burris Case, supra, is the law of that jurisdiction, and would control the decision of the case if the action had been brought and prosecuted in New Mexico. While it is held in that case that mental anguish alone is not recoverable for failure to deliver or delay in delivering a death message, where no claim is made for personal injury or pecuniary loss, Riner, J., uses this language: “The action here is to recover damages for mental anguish because of the negligence of the defendant in failing to deliver the telegram, and it is therefore not an action upon contract but in tort. The tort, which is the gist of the action, is the negligence of the defendant in failing to perform a duty imposed upon it by law.” He further quotes with approval the language of the Supreme Court of Arkansas in Western Union Telegraph Co. v. Ford, 77 Ark. 536, 92 S. W. 529, 7 Ann. Cas. 228, as follows: “In fact, the right of an addressee to recover damages at all is not based upon contract as none exists;” and proceeds: “If the action is one in tort, and we think it is, the plaintiff’s right of recovery is governed by the law of the state wherein the act of negligence occurred.” The form of the remedy — the method of pursuing it — is regulated by the lex fori. By reason of the fact that the testimony in that case showed that the negligence occurred in St. Eouis in the state of Missouri, and it was further conceded that under the laws of Missouri, where the negligence occurred, there can be no recovery for mental anguish alone, unaccompanied by personal injury or pecuniary loss, it was held that a plaintiff was not entitled to damages by reason of negligence occurring in Missouri.

The burden was upon the telegraph company in this case to prove the laws of New Mexico upon this issue, and the laws of a foreign state must be established by proof, like any other fact.

It is true that McElroy testified that the common-law rule prevailed in New Mexico and would control the decision of this ease, but Conner, C. J., in Western Union Telegraph Co. v. McNairy, 34 Tex. Civ. App. 389, 78 S. W. 969, said that proof that the common law prevailed in New Mexico does not show that damages for mental anguish are not recoverable there, and does not defeat an action against a telegraph company for mental anguish occasioned by the failure of the company to promptly deliver a telegram delivered to it in New Mexico for delivery in Texas. Appellant’s evidence, in our opinion, proves that, if the telegram in question had originated in New Mexico and that its destination was some point in New Mexico, the case would he appealable to the Eighth Circuit Court of Appeals, and that mental anguish would not he an element of damages, but that, if the telegram originated in New Mexico to be delivered to the addressee at some point in a foreign state, the law of the forum would govern the rights of the parties. The Burris Case does not decide what the rights of a plaintiff would be even in the courts of New Mexico, where, in addition to an action for mental anguish, plaintiff sought to recover the price paid for transmitting the telegram and to that extent fails to prove what the law of New Mexico is with reference to this particular action even in that jurisdiction. Edison, J., in Western Union Telegraph Co. v. Sloss, 45 Tex. Civ. App. 153, 100 S. W. 354, said: “Plaintiff in error alleged that the laws of Arizona upon the question involved were different from those of Texas, but, before we would be authorized to say that the court below erred in not giving the jury plaintiff in error’s peremptory instruction, we must conclude that the uncontroverted evidence showed what the laws of Arizona upon the question were, and that they were different from those of Texas. The expert testimony embraced in the record shows that the courts of Arizona .have never passed upon the question under consideration, neither has the Supreme Court of the United States.”’ While in this case we think the Circuit Court of Appeals for the Eighth circuit being the court of last resort for this litigation, if filed in New Mexico, yet that court in passing upon the question in the Burris Case, holding that the lex fori controls, proves too much to entitle plaintiff to a peremptory instruction or even to have the matter submitted to the jury.

It is said in St. L. & S. F. Ry. Co. v. Conrad, 99 S. W. 209: “Where the laws of one state are sought to be proven in another state, and the evidence thereof ‘consists entirely of statutes and reports of judicial decisions of the former, the construction and effect of the statutes and decisions are usually for the court alone.’ But where the decisions are conflicting or inferences of fact must be drawn, or where the evidence consists alone of the parol testimony of expert witnesses as to the construction given a statute by the tribunals of the state where the statute was enacted, the question of what the foreign law is becomes one of fact for the determination of the jury.” Talbot, J., further quoting from Kline v. Baker, 99 Mass. 253, states the rule in the following language: “When the evidence consists of parol testimony of experts as to the existence or prevailing construction of a statute, or to any point of unwritten law, the jury must determine what the foreign law is, as in the case of any controverted fact depending upon like testimony.” “The rule that the fact of a foreign law must be proved to the jury, like any other fact, while questions of competency and of construction are for the court, is that which now generally obtains.” Wharton on Conflict of Laws (3d Ed.) vol. 2, § 773. The same author, in section 773a, uses this language: “There is nevertheless a decided difference of opinion among the courts as to the respective functions of the court and jury in this connection. If the statements be taken to mean merely that the jury are to ascertain whether a particular statute has been enacted or certain judicial decisions have been rendered in a foreign jurisdiction, and that the court is to then determine the construction and effect of such statute or judicial decisions, no difficulty is encountered in separating the functions of the court and the jury. Some of the later decisions expressly adopt this position, and the tendency of the later cases as a whole is perhaps in this direction. • Some of the cases which take this view expressly refer the construction and effect of the foreign law, when evidenced by statutes or judicial decisions, to the court upon the general principle of evidence that the construction of written instruments or documentary evidence is for the court. The application of this general principle to the subject under consideration seems to be generally conceded, or at' least not denied when the evidence consists of a single statute or judicial decision,” etc. We think this the rule by which we should be guided in the decision of this case.

The opinion in the Burris Case having been introduced, the effect of the opinion was for the trial court. The testimony of MeEl-roy, with reference to the course the case would take under the laws of New Mexico, and what in his opinion was the court of final resort, was not binding upon the trial court, because these were matters depending entirely upon the federal statutes of which the trial court must take judicial notice. The witness’ testimony that there was neither statute nor decision of the territorial Supreme Court relative to the question, and that its decision rested in the common law, and that the Supreme Court of the United States had placed New Mexico in the Eighth Circuit Court of Appeals district were undisputed. In our opinion, there was no fact to be submitted to the jury, since there was no controversy upon any part of the testimony of McElroy, except upon those questions settled by the United States statutes and the language of the decision itself, which he attempted to construe. Since these were matters for the court, we think there was no error either in refusing to give the peremptory instruction or in refusing to submit the issue to the jury.

The evidence having failed to show what the law of New Mexico was in this particular case, and, on the other hand, appellant having proved that where the action was for mental anguish alone the law of the forum would control, we think the trial court was correct in indulging the presumption that the law of New Mexico in this case was the same as it is in Texas.

Plaintiff: filed the following exception: “(7) The allegations setting out the terms on the reverse side of the message and the allegation pertaining thereto in reference to delivering messages within established free delivery limits, in Amarillo, Tex. (are insufficient), because defendant wholly fails to show or allege that it or its agent demanded from the party sending said message any extra charge for transmitting and delivering said message beyond its delivery limits, and, further, because it was defendant’s duty to request a special charge from the sender to guarantee delivery of such telegram, to the plaintiff, and defendant fails to allege or show that such extra charges were demanded by its agent either from the sender at Et. Sumner, N. M., or from plaintiff at Amarillo, Tex.”

The court having sustained this exception, such action forms the basis of appellant’s first assignment of error. Upon the back of the message, amongst others, appeared the following stipulation: “Messages will be delivered free within the established free delivery limits of the terminal office. Eor delivery at a greater distance, a special charge will be made to cover the cost of such delivery.” By appropriate propositions, appellant insists that it was not incumbent on defendant to ask for the extra charges necessary to make the delivery outside of its free delivery limits, when it had no notice that the addressee resided without such limits. This question was carefully considered and discussed at length by the Supreme Court, speaking through Dibbrell, J.,, in Western Union Telegraph Co. v. Harris, 148 S. W. 284, holding that, where a telegraph company established free delivery limits, the burden rests upon the company to ascertain whether the addressee of a message resides within or without such limits, and, if necessary, to make demand for the requisite fee for delivery beyond the limits. So that, in the absence of such demand, the duty rests on the telegraph company to deliver the message without reference to the residence of the addressee; and where this exception from liability is interposed to an action by the addressee, and the plea fails to allege that a demand was made by the company on the sender for an extra delivery charge and that such extra charge being demanded the sender failed to pay or guarantee the same, the plea was insufficient. Upon the authority of this case appellant’s first assignment of error is overruled. It was the duty of appellant to exercise ordinary care to deliver the message in question whether appellee resided within or without appellant’s delivery limits. It was neither alleged nor proven that any notice was mailed to appellee in Amarillo, but the allegations are simply that an effort was made to find appellee by a messenger boy and by ’phoning. Telegraph Co. v. Vance, 151 S. W. 904; Western Union Telegraph Co. v. Houghton, 82 Tex. 561, 17 S. W. 846, 15 D. R. A. 129, 27 Am. St. Rep. 918. The action of the court in sustaining the eighth special .exception was not, as contended by appellant, in effect, a holding that the law required telegraph companies to insure the safe transmission and delivery of its messages. The second assignment is overruled.

The third assignment of error is predicated upon the refusal of the court to peremptorily instruct the jury to find in appellant’s favor, because, as insisted by defendant, the uncontradicted evidence shows that the message was addressed to plaintiff in care of the “Ladies’ Club,” and that she did not reside within the city limits of Amarillo, and that there was no such club in Amarillo as the “Ladies’ Club” or “Ladies’ Circle.” The uncontradicted evidence discloses that there was a ladies’ circle in Amarillo with a large membership; that it was an auxiliary of the Woodmen of the World, which had a still larger membership. It further showed that the message was negligently transmitted in changing the words “Organizer of Ladies’ Circles,” to “Organizer of Ladies’ Clubs.” Katz, the sender of the message, testified that he told the receiving agent that any Woodman could tell where appellee could be found because she was an organizer for the Woodmen’s Circle. This assignment' is therefore overruled.

The fifth, sixth, and seventh assignments are defectively briefed, in that they do not set out any testimony in the statements following the assignments, tending to show that the charges refused would be applicable thereto. No references are made to the record, as required by the rules. C. R. I. & Gr. Ry. Co. v. Thompson, 124 S. W. 144; Railway v. Olds, 112 S. W. 787; C. R. I. & G. Ry. Co. v. Trout, 152 S. W. 137. Nor is it shown that the substance of these charges was not given in the general charge.

In this connection, however, we will state that the plaintiff plead and proved that the defendant’s receiving agent agreed to transmit the message immediately, and collected 40 cents charges, which were shown to be the day rate. Under these facts, defendant was estopped to claim that its liability was governed by that part of the contract relating to night messages.

The eighth assignment of error is without merit, because there is sufficient evidence in the record to show that the body of plaintiff’s husband could have been held and the funeral postponed until her arrival. The proposition under the eighth assignment of error, which by reference in appellant’s brief is made the proposition under its ninth assignment, is not germane. However, the error, if any, in tlie admission of tie testimony of the witnesses Patterson and Neafus was cured by tbe admission of the testimony of the embalmer, Koch, without objection, and the further testimony of Neafus, showing that the Woodmen’s Lodge at Tucumcari had the body in charge, and he, as its presiding officer, was actively managing the arrangements relative to its disposition.

The tenth assignment of error is objected to by appellee because it is not a proposition within itself, is not presented as a proposition, and has neither proposition nor statement subjoined; and further does not show that the matters therein urged were called to the attention of the court in a motion for new trial. These objections are well taken and the assignment is considered waived.

The eleventh assignment is disregarded for the same reason.

Since there is no reversible error in the record, the judgment is affirmed.


source: Caselaw Access Project

author: KEY, C. J.

license: Public Domain

text:
    SCHACKLE v. FOGLE et al.
    (Court of Civil Appeals of Texas. Austin.
    Nov. 19, 1913.
    Rehearing Granted Dec. 24, 1913.)
    Appeal and Error (§ 1127*) — Affirmance on Motion.
    The Court of Civil Appeals has no jurisdiction to affirm on certificate, where the certificate of the clerk is not accompanied by a copy of the appeal bond, though the clerk certifies that such bond was given.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4432-4440; Dec. Dig. § 1127.*]
    Appeal from District Court, Caldwell County.
    Action between Jacob Sehaekle and C. E. Fogle and others. From the judgment, Sehaekle appeals.
    A, motion to affirm on certificate was overruled, and the appellee thereafter filed an amended motion to affirm accompanied by a copy of the appeal bond, on which motion the judgment was affirmed.
    E. B. Coopwood and T. B. Monroe, both of Lockhart, for the motion.
   KEY, C. J.

Appellees have filed in this court a motion to affirm on certificate. The motion is accompanied by a certificate oí the clerk containing a copy of the judgment and order of the court overruling the motion for new trial, and reciting the fact that notice of appeal was given, but no copy of the appeal bond has been sent up. However, the clerk has certified that an appeal bond has been filed and approved.

Nine years ago, in Supreme Council v. Anderson, 36 Tex. Civ. App. 615, S3 S. W. 207, following decisions of the Supreme Court in House v. Williams, 40 Tex. 351, and H. & T. C. Ry. Co. v. Greenwood, Id. 362, this court held that, in order to confer jurisdiction and authorize an affirmance upon certificate, a certified copy of the bond, in cases where an appeal bond was required, should be sent up with the motion to affirm; and since that time the ruling there made has been adhered to by this court. . If the clerk’s statement that an appeal bond has been given is sufficient, then the same effect ought to be given to his certificate, stating that a judgment had been rendered; but the contrary was held in the cases cited.

In addition to the question of the lack of jurisdiction, we think it a sound rule of practice to require a copy of the appeal bond to be sent up, in order that judgment for costs in this court may be rendered against the sureties on such bond. It is nothing but fair to require this to be done as a protection to the officers of this court. Therefore, because no copy of the appeal bond has been brought up, the motion to affirm on certificate is overruled.

Motion overruled.


author: JENKINS, J.

text:
    BURNET FUEL CO. v. ELLIS.
    (Court of Civil Appeals of Texas. Austin.
    Dec. 3, 1913.
    Rehearing Denied Jan. 14, 1914.)
    1. Appeal and Error (§ 757) — Questions Reviewable — Assignments oe Error — Briefs of Appellant.
    An assignment of error complaining of the refusal of a requested charge will not be considered, where the charge is not set forth in appellant’s brief.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. § 757.]
    2. Trial (§ 194) — Instructions—Weight of Testimony.
    Where the petition in an action for injuries to an employé in a coal mine alleged that it was his duty to fasten together five or six coal cars, and he testified that at the time of the accident there were only five cars, an instruction that if the jury found that the employe fastened together five cars, etc., was not on the weight of the evidence as informing the jury that the employs fastened together only five cars.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.]
    3. Appeal and Error (§ 742) — Questions Reviewable — Assignments of Error.
    Where assignments of error are submitted as propositions, and are followed by a statement referring to other assignments followed by statements of considerable length, and no reference is made to the pages of the brief nor of the statement of facts, the assignments will not be considered for want of compliance with the rules of court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dee. Dig. § 742.]
    4. Master and Servant (§§ 288, 289*) — Injury to Servant — Contributory Negligence-Assumption of Risk.
    Whether an employs in a coal mine, engaged in assembling loaded cars, assumed the risk of injury by the breaking of the cable drawing the cars, or was guilty of contributory negligence in entering on the track before the cars had passed over the track, held under the evidence for the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1068-1090, 1092-1182; Dec. Dig. §§ 288, 289.]
    Appeal from District Court, Travis County; Geo. Calhoun, Judge.
    Action by Shed Ellis against the Burnet Fuel Company.' From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Appellee brought suit to recover damages for injuries received under the following circumstances: He was an employé of appellant, his business being to assemble the loaded cars in appellant’s coal mine, fasten them together, and fasten to the front car the cable with which the cars were pulled out of the mine for a distance of about 90 feet to what is called the knuckle; the angle being about 45 degrees. The cars ran on a track through a tunnel. On each side of this tunnel, at a distance of about 25 feet, alternating on each side, there was a lateral tunnel, leading into chambers where coal was being mined. There were switches to the track, by which the ears were switched into the entrances to the lateral tunnels, and there loaded and then pushed out on the main line to be taken out. It was the business of appellee to push these cars onto the main track and fasten five or six of them together, and then fasten a cable to the front car, and a drag to the rear one to prevent the ears from running back, in case the cable broke. When all was in readiness, appellee would give the signal, and the cars would be pulled out by means of a drum, some 1,200 feet distant. After the cars passed over the knuckle, they then ran on a level to the place where they were emptied. By standing in the openings on the side of the tunnel, one would be out of danger, in the event the cable broke and the cars ran back. Appellee had been instructed by the former superintendent to watch the cars until they passed the knuckle, and to give warning to the miners working-further down the tunnel to keep off the track until the cars had passed out of the tunnel. The track was so narrow that there was not room enough for a man to stand on either side of the cars. Appellee had also been instructed to have other cars ready for the next load when the empties were returned. On the occasion of the injury, ap-pellee had fastened five or six cars together, had attached the cable to the front, and had asked his helper, whose business it was to attach the drag to the rear, if everything was ready, and received the reply that it was. He then gave the signal, and the cars were started toward the knuckle, and he started down the track to the next side tunnel for another car to be pushed by him out for the next trip. When the cars had been drawn 25 or 30 feet, the cable broke, and the cars were precipitated against him, and he was injured as alleged. His alleged cause of action was the alleged negligence of appellant in furnishing a cable that was worn, rusted, and too weak to draw the cars out of the tunnel. Appellant pleaded contributory negligence on, the part of appellee: (a) In not putting the drag upon the rear ear, or in the same not being put on by his fellow servant; (b) in going upon the track before the cars had passed over the knuckle; (c) in fastening together six'loaded cars, when he had been instructed to fasten together only five; and also assumed risk, in that appellee knew the weakened and dangerous condition of the cable. There was a judgment for appellee for $3,500.
    Warren W. Moore, of Austin, and Young & Stinchcomb, of 'Longview, for appellant. Hart & Patterson and L. A. Hill, all of Austin, for appellee.

      For other cases see same topic and section NUMBER in Deo. Dig. ⅜ Am. Dig. Key-No. Series & Rep’r Indexes

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

   JENKINS, J.

(after stating the facts as above).

1. The first assignment of error complains of the refusal of the court to give special charge No. 3. Appellant does not comply with the rules as to this assignment, for the reason that it does not copy in its brief all of the charges requested, and hence this assignment will not be considered. However, we will state that there was no error in the court’s refusing to give the requested charge.

2. In the second assignment of error, appellant complains of the eighth paragraph of the court’s charge as being upon the weight of the evidence, in that it tells the jury that appellee fastened together only five cars. The charge is not subject to this criticism. Appellee had alleged that it was his duty to fasten together five or six cars; he testified that on this occasion there were only five cars. The court instructed the jury that if they found from the preponderance of the evidence that appellee fastened together five cars, etc. This certainly was not telling the jury that there were only five cars fastened together.

3. Appellant submits as propositions its third, fourth, and fifth assignments of error. These three assignments are followed by what purports to be a statement. The fourth and fifth assignments are not propositions within themselves. The only statement subjoined to these three assignments is as follows: “Statement. A portion of the statement under the first assignment and sixth assignment in this brief touching the duties of appellee and his Mexican helper.” There are five pages of the statement under the first assignment and 15 pages under the sixth assignment. No reference is made to the pages of the brief, nor of the statement of facts. This is not a compliance with the rules, for which reason the third, fourth, and fifth assignments have not been considered by us.

4. The sixth assignment complains of the refusal of the court to peremptorily instruct a verdict for appellant. If appellee was guilty of contributory negligence as matter of law, or if, as matter of law, it must be held that he had assumed the risk, this instruction should have been given. The evidence shows that the accident occurred by reason of the dable being small, rusted, and worn, and fully establishes the allegations of negligence on the part of appellant in using such cable. This cable was worn and had broken on the end next to the car prior to this time, which fact was known to appellee; but the evidence shows that the end which broke had been put upon the drum, and the other end was used to fasten to the cars. Appellee testified that he knew of this change, and that he believed the cable to be safe thereafter, and that he did-not know of its unsafe condition. From this evidence we cannot say, as a matter of law, that he assumed the risk. He knew that it was dangerous to go upon the track before the cars had passed over the knuckle, in the event the cable should break; but it was perfectly safe to be upon the track if the cable did not break. In going upon the track for the purpose of walking down the same and having another car ready, he was in the discharge of his duty; and if he did not know, or have reason to believe, that the cable was unsafe, we cannot say that his conduct in going upon the track was negligence; at least, under his testimony we cannot say so as a matter of law, but hold that the evidence was sufficient to raise this issue, and that the court properly submitted the same to the jury.

For the reasons herein stated, the judgment of the trial court is affirmed.

Affirmed.


author: HODGES, J.

text:
    DAVIS et al. v. HOUSTON OIL CO. OF TEXAS.
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 10, 1913.
    Rehearing Denied Jan. 8, 1914.)
    1. Appeal and Eeeoe (§ 748) — Questions Reviewable — Assignments of Eeeoe — Compliance with Rules of Couet.
    . The Courts of Civil Appeals deriving their power to review assignments of error from the statute may consider assignments of error faiR ing to comply with the rules adopted by the Supreme Court, where the record shows that a palpable injustice has been committed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3058-3064; Dec. Dig. § 748.]
    2. Tenancy in Common (§ 15) — Advebse Possession.
    A cotenant entering into possession cannot, by mere occupancy, acquire title by adverse possession against another cotenant, but he must give notice of his adverse claim, and a secret intention to claim the entire title is insufficient.
    LEd. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 42-52; Dec. Dig. §
    3.Tenancy in Common (§ 15) — Advebse Possession.
    Evidence held not to sustain a finding that a cotenant entering into possession acquired title by adverse possession against another co-tenant.
    [Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 42-52; Dec. Dig. § 15.]
    4.Teial (§ 194) — Insteuctions—Weight of Evidence.
    In trespass to try title wherein a party claimed title through a tenant in common acquiring title by adverse possession and payment of taxes, an instruction that the mere fact that the tenant in common purchased the interests of some of the heirs and sought to purchase the interest of others was not, of itself, an admission of the title of the latter or that the possession of the former was not adverse, as he had the right to buy his peace without detriment to his limitation title, was objectionable as on the weight of the evidence; for the fact stated was for the' jury as evidence of the absence of any hostile claim on the part of the tenant in common.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436,. 439-441, 446-454, 456-466; Dec. Dig. § 194.]
    Appeal from District Court, Newton County; W. B. Powell, Judge.
    Action by E. M. Davis and another against the Houston Oil Company of Texas. From a judgment for defendant, plaintiffs appeal.
    Reversed and remanded.
    Holland & Holland, of Orange, for appellants. Hightower, Orgain & Butler, of Beaumont, for appellee.

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

   HODGES, J.

This is an action of trespass to try title to the Nancy Cooper survey of 640 acres of land, instituted by the appellants against the appellee in the district court of Newton county. It is the second appeal in this case; the former is reported in 132 S. W. 808. The case had been carried to the Court of Civil Appeals of the First Supreme Judicial District by the defendant, ap-pellee in this appeal, and the judgment was reversed on grounds different from those here involved. The appellants claim title to the land in controversy as the heirs of the original grantee, Nancy Cooper. The appel-lee claims through one W. R. Fuller, and relies upon proof that W. R. Fuller had acquired a title by adverse possession and the payment of taxes for more than five years between 1880 and 1888. Fuller’s adverse claim, according to the evidence offered by the appellee, began with a tax deed dated June 4, 1S78. It appears from the record that practically the only issue involved in the last trial was the question of adverse possession and the payment of taxes for the period of time required to perfect Fuller’s title by limitation under the five-years statute. It is conceded that the appellants are entitled to recover a part of the land at least in this suit, unless their title has been lost by the adverse possession of Fuller. A trial in the court below resulted in a verdict and judgment in favor of the appellee.

The first assignment of error charges that the verdict is contrary to the law and the evidence. Objection is made by the ap-pellee to the consideration of this assignment, because it fails to refer to the motion for a new trial as required by the rules adopted by the Supreme Court. We. have heretofore announced that it was the purpose of this court to follow the precedents set by several of the other Courts of Civil Appeals in refusing to consider assignments of error where the parties have failed to comply with the .requirements prescribed in the rules. It is proper, however, to say in this connection that we do not feel inclined to permit the mere failure of attorneys in the preparation of their briefs to conform to the rules of practice to stand in the way of dispensing justice. Rules of procedure are generally to be construed as directory only. The Courts of Civil Appeals derive their power to consider assignments of error from the statute, not from the rules adopted by the Supreme Court. While an orderly system of briefing cases is an accomplishment which we, with all of the other Courts of Civil Appeals, are strongly inclined to encourage, yet we are not disposed to push that encouragement to such an extreme as would result in a miscarriage of justice. Without undertaking to outline any clear-cut system which we expect to follow in the future in the consideration of 'assignments presented in violation of the rules, we content ourselves with saying that we shall, in each particular instance, exercise such discretion as we may have, with a view to determining each particular case on its merits. However, we wish to impress upon the members of the bar the importance of conforming to the rules as they are laid down. There is little excuse for a failure to do this; otherwise we might be more lenient in overlooking such derelictions. The frequency with which objections to the consideration of assignments of error are made in cases submitted for our consideration shows that many of the attorneys are either unaware of the requirements of the present rules, or that they overlook them in the preparation of their briefs. We expect to deviate from the rule heretofore adopted only in those cases where the record shows that a palpable injustice has been committed in the judgment appealed from.

We do not believe that the verdict rendered in this case is the proper one which, under the evidence, should have been returned. If it were necessary to consider an assignment of error not properly presented in order to reverse this case, we should unhesitatingly overlook the failure to conform to the rule. W. R. Fuller himself never occupied-the land. In 1880, according to the testimony, H. C. Fuller, a son of W. R. Fuller, moved on the land, built a house, and occupied the premises till about 1888 -as the tenant of his father. During all of that time, it is asserted, W. R. Fuller claimed the land adversely to all other parties. H. O. Fuller in his testimony admits, however, that both he and his father were aware of the fact that the appellants and other heirs of Nancy Cooper claimed an interest in- the property. His testimony as a whole strongly tends to-show that the validity and justness of those claims were recognized by both him and his father during his alleged adverse occupancy. The record shows that Fuller’s tax deed was dated the 4th day of June, 1878, and was • filed for record July 8th of the same year.. It is further shown that on the 19th day of June, 1878, before the recording of his tax deed, and on the 26th day of January, 1882,. September 12, 1883, and November 23, 1S78,. W. R. Fuller acquired the interests of other parties in the land in controversy. Two of those conveyances are dated anterior to the-time he claims that his adverse occupancy began. It follows, then, that when Fuller through his tenant entered into the possession of the premises he was a tenant in common with the remaining heirs of Nancy Cooper, and had the legal right to occupy the' premises as such cotenant. The rules by which to determine whether or not he subsequently acquired a title by limitation are those which apply to controversies between tenants in common, where one is relying upon possession adverse to the others. In such eases the mere occupancy of the premises by one cotenant, although accompanied with a secret intention to claim the entire title, is not sufficient. Such hostile tenant must go'further and fix upon his cotenants notice of' his adverse claim. Moody v. Butler, 63 Tex. 210; Phillipson v. Flynn, 83 Tex. 582,, 19 S. W. 136; Alexander v. Kennedy, 19 Tex. 488, 70 Am. Dec. 358; Scofield v. Douglass, 30 S. W. 818. And the burden rests upon him to show that he has done this if he wishes to establish a title by adverse occupancy. In Moody v. Butler, referred to above, the court had under consideration a question much like that here involved. Chief Justice Willie, in disposing of it, said: “When the appellees took possession of the land they did not by any overt act give notice that they intended to hold it in opposition to their cotenants in common. No secret intention on their part, nor intention expressed to third parties, but not brought home to the knowledge, or presumed knowledge, of Moody’s heirs, could give the appellees the benefit of an adverse possession, or one hostile to their cotenants. The mere possession itself would be referred to that right which, every. tenant in common has to possibly settle upon and enjoy the occupation of the common property without ousting his cotenant. Hence such occupancy was not in itself sufficient to charge the appellants with notice-that their interest in the land was disputed, . and that the benefit of the statute of limitation would be claimed by their cotenants if suit were not brought within time to prevent its bar.” H. C. Fuller is the principal witness relied on in this case to show the facts upon which the appellee depends to establish a title by limitation. Without undertaking to reproduce his testimony in detail, we deem it proper merely to say that it is far from being satisfactory upon that issue. It shows that he went into possession as a tenant of W. R. Fuller in 1880, and remained on the land till 1888. As to the payment of taxes, he sáys: “After he [W. R. Fuller] commenced claiming that land, he paid his taxes regularly every year, I think. I know I paid mine every year, and I think my brother paid his. My father was a man that was usually prompt in paying his taxes. I-Ie was a good business man in matters of that sort — very particular about paying his taxes and his debts.” This language at best is a weak attempt to discharge the burden which the law imposes upon one claiming title under the five-year statute. The extent to which the witness goes is merely to say that he thought his father had paid the taxes; that witness had paid his. In referring to his own taxes, he evidently meant taxes on that portion of the land consisting of 160 acres which his father afterwards deeded to him as compensation for his occupancy of the land in an effort to acquire for his father a title by limitation. As to the hostile claim of W. R. Fuller and its notoriety, the testimony is no stronger. H. C. Fuller practically admits that during his occupancy both he and his father recognized the fact that the appellants had an interest in the property, and that W. R. Fuller desired to purchase it. He states thattsome time during his occupancy, without indicating particularly when, he wrote to the appellant Davis concerning his interest and that of other heirs, and indicated a desire to purchase those interests for his father. 1-Ie also testified that in 1895 he wrote another letter to Davis, in which he asked' Davis to visit the premises and see if they could not arrange for an adjustment of their respective rights. We do not undertake to state literally what the contents of that communication were, but merely its substance. Nowhere does Fuller say that he gave notice to the appellants of any hostile holding by his father, or of any intent to deny them their right of joint possession of the premises. So far as this record discloses, the only evidence of an adverse claim which Fuller displayed was the recording of his tax deed in 1S78.

The court gave the following as a portion of his main charge: “The mere fact that H. O. Fuller purchased some of the heirs’ interest in the land, and sought to buy the interests of others in the land, would not of itself be an admission of their title to the land or that his possession for his father was not adverse, as he would have the right to buy his peace without detriment to his limitation title.” Appellants contend that this charge is on the weight of the evidence, and we think the contention is correct. It appears to be founded on the language used by Associate Justice Reese, of the Second judicial district, in disposing of the case on the former appeal. In discussing the contention of the appellant in that appeal, the' appellee in this, that the ■evidence showed a perfect title in it by limitation, the court used the following language: “The fact that H. C. Fuller after getting his tax title bought out the interests or claims of certain of the Nancy Cooper heirs would not of itself prevent his possession from being adverse to them. He could buy his peace without admitting their title. But the testimony goes further than this in showing in the language of the witness that Fuller always recognized their claim during the time that he was undertaking to buy them all out.” Appellee undertakes to justify the giving of that charge by saying that it is only a part of the general charge of the court and should not be considered without its appropriate connection with the other portions of the charge. It is true that this portion of the charge is separated from that which precedes and that which follows only by commas, but a reading of the entire context will show that it is an independent sentence, and is the enunciation of a distinct rule for the guidance of the jury. It is not qualified in any sense by that which precedes or that which follows. Appellee also insists that this is a correct enunciation of the law, and refers to the opinion of Associate Justice Reese as authorizing it. It will be observed, from a comparison of the language employed in the charge and that used by Justice Reese, that there is a material difference. In the opinion the justice said: “The fact that Fuller after getting his tax title bought out the interest or claims, etc., would not prevent his possession from being adverse to them. This charge says: “The mere fact that Fuller purchased some of the heirs’ interest in the land and sought to Tmy the interest of others in the land,” etc., would not be an admission of their title to the land or that the possession of his father was not adverse. We may concede that the language employed by Justice Reese is the law; yet it was improper for the court to thus particularize that group of facts and undertake to tell the jury that they could not be considered as evidence against a hostile claim on the part of Fuller. In the excerpt from the opinion referred to the justice was merely saying that in the then condition of the record it could not be held as a matter of law that the transactions mentioned negatived the fact of an adverse holding on the part of Fuller. Evidently he did not intend to say that negotiations between tenants in common, where one seeks to purchase the interest of another, do not under any circumstances carry with them a concession on the part of the prospective purchaser that the other lias an interest which is to form the subject-matter of the purchase. Counsel for appellee in discussing another assignment of error use this language: “The fact of his [Puller’s] seeking to buy out some of the heirs and his in fact having purchased the interest of some of the heirs is an equivocal act. It might or might (not) show that Puller’s possession was held in recognition of the claim of the title of the heirs of Nancy Oooper, according as the jury would draw the inference of fact one way or the other from the entire testimony.” This appears to be practically a concession that the jury had a right to consider those offers to purchase as evidence of the absence of any hostile claim on the part of Fullqr. We think that counsel were correct in thus stating the nature of that testimony. We shall therefore use one portion of their argument to answer the other.

The objections urged in the third and fourth assignments of error are not tenable.

The fifth assignment complains of the action of the court in giving a special charge. Wé know of nothing in the record which called for the giving of this charge. The testimony referred to, having been admitted, could be considered by the jury for all legitimate purposes, and it was not of that character which required the court to place a limitation upon its consideration. While we do not think the charge contains any harmful error, it had no legitimate place in appropriate instructions to the jury under the facts of this case.

For the errors previously discussed, the judgment of the court is reversed, and the cause remanded.


author: HENDRICKS, J.

text:
    PENN v. BRISCOE COUNTY et al.
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 20, 1913.
    Rehearing Denied Jan. 17, 1914.)
    1. Appeal and Ebrok (§ 171) — Theory in Lower Court — Establishment op Boundary.
    Where all the parties to an action to establish the boundary of plaintiffs land' with reference to a public road and the court treated a particular corner as the beginning corner of the survey, a judgment based on that theory will be affirmed in the absence of ’error of law.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §⅜ 1053-1063, 1066, 1067, 1161-1165; Dec. Dig. § 171.]
    2. Trespass to Try Title (§ 46) — Special Verdict — Construction.
    In trespass to try title involving the location of plaintiffs land with reference to a county road, the first special issue submitted stated that the jury should find in the verdict that plaintiffs patent correctly described the south line of his land, unless it found that said line is elsewhere than claimed by plaintiff, in which event the jury should say by its verdict that it found that it was different, and how much, if any, north or south, and, if the jury found that the line was as Surveyor Jones ran it, then it should place it at the south fence of plaintiff, and a third issue stated that if the jury found that the county recognized the road as claimed by plaintiff, and that the south line of his fence was recognized as the north line of the road, and plaintiff acted and relied on that as being the public road when he purchased, then that would be deemed in law the road, regardless of where the true section line ivas or the road was actually laid out, and the county would be estopped from denying the location of the road. The only answer of the jury was: “We, the jury, find for the defendant on the first issue as to location of the Jones survey, and also that plaintiff shall move his fence 30 feet north of said survey.” Held, that the finding was one for defendant to the effect that the beginning corner could not be located from the Jones survey, and was also a finding against plaintiff on the issue of estoppel.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 68; Dec. Dig. § 46.]
    3. Appeal and Error (§ 930) — Presumptions.
    It must be presumed that the jury read special issues submitted to them.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3755-3761; Dec. Dig. § 930.]
    4. Trial (§ 355) — Special Findings — Construction.
    The form of answers to special issues is immaterial if the jury’s meaning is clear, and the answer may be construed to include matters resulting by necessary implication from facts expressly found.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 846-848; Dec. Dig. § 355.]
    5. Appeal and Error (§ 843) — Review — Questions Considered.
    Whether plaintiff in trespass to try title can recover by showing estoppel where an affirmative answer is interposed, which is also an ordinary action to try title, need not be considered on appeal, where the jury found that there was no estoppel.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3331-3341; Dec. Dig. § 843.]
    Appeal from District Court, Briscoe County; L. S. Kinder, Judge.
    Action by J. W. Penn against Briscoe County and others. From a judgment for defendants, plaintiff appeals.
    Affirmed. •
    Dalton & Russell, of Plainview, for appellant. K. Ewing Bain, of Silverton, for ap-pellees.

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

   HENDRICKS, J.

The town of Silverton, the county seat of Briscoe county, Tex., is situated on section No. 20, block A, Arnold & Barrett survey. Section No. 96, block B-l, Beatty, Seale & Forwood survey is situated directly east and adjoining survey No. 20. In June, 1892, by virtue of an order of condemnation of the commissioner’s court of Briscoe county, a jury of view, assisted by one Waller, the county surveyor of that county at that time, laid out and surveyed a county road of the first class, beginning at Silverton and terminating at the east boundary line of said Briscoe county. One J. W. Penn, in 1899 purchased the southwest quarter of section 96, which at that time was un-patented school land and finally patented by him in the year 1907. The field notes of the survey of the county road recite a beginning at the southeast corner of the public square in said Silverton; thence east with the center of Commerce street to the center of. Park street; thence south with the center of Park street to the south line of section No. 20 (upon which said Silverton is situated); thence east 525 varas to the southeast corner of said section No. 20; and from there surveyed south, calling for different mounds at specific distances in the same direction, except as indicated by calls from short distances in an easterly direction and in the line of the survey, calling for a well-known corner designated as “the monument” several miles from Silverton, and which “monument” is the southeast corner of section No. 1, Beatty, Seale & Forwood survey, Block B-l, the same block in which is situated section 96, the southwest quarter of which is owned by the plaintiff immediately adjoining the town section 20. J. W. Penn sued the county in ' the ordinary form of trespass to try title, also J. W. Burson, who it is not necessary to further mention with reference to this litigation ; the county answering by plea of not guilty and further answering in the ordinary form of trespass to try title, and praying affirmatively for a judgment for the title and possession of the land described in plaintiff’s petition and for writ of restitution.

The trial court, after a general charge explanatory of the issues in the case, submitted the case on special issues as follows:

“First issue. As to location, you .are charged that you will find and so say by your verdict that plaintiff’s patent. correctly describes the south line of the S. W. ¼ of 96, unless you find and believe from the evidence that said line is elsewhere than claimed by the plaintiff, in which event you will say by your verdict that you find that it is different, and hów much, if any, north or south. If you find it is (as) Surveyor Jones ran it, then place it at the south fence of plaintiff.

Second issue. You will find and so say by your verdict that the present location of the road is as it was originally run out by the surveyor N. G. Waller and the jury of view, unless you find and believe from the evidence that it was originally run out from the ■S. E. corner of town block 147; then if you do then place center of the road 45 feet north of plaintiff’s south line, marked by center of present road, and make it 60 feet wide.

Third issue. If you find and believe from the evidence that Briscoe county, through its authorities, recognized the road as claimed by the plaintiff, and that the south line of his fence was recognized as the north line of the road, and that plaintiff acted and relied on that as being the public road when he purchased the ½ section and improved and patented it, that this has been done all along, then that will be deemed in law the road, regardless of where the true line of the section is and regardless of where the road was actually laid out, and the county will be estopped to deny the road as it now is, and you will find for the plaintiff on this issue and so say by your verdict; otherwise you will find for the county on this issue.”

The jury, in answer to the issues submitted by the trial court, returned the following verdict: “We, the jury, find for the defendant on the first issue as to location of the Jones survey, and also that plaintiff shall move his fence ¿0 feet north of said survey.” The appellant in this court (the plaintiff in the trial court) insists by his first assignment of error that this verdict is not responsive and meaningless as to the real points at issue; that there is really no verdict in the cause which settles this case for that the. second and third issues are not answered and the question is still open as to where the road was actually run on the ground and the starting point for the same. This assignment, or at least the greater part of it, is quite involved and argumentative, intermixed with conclusions, although the propositions — at least the first, third, and fourth thereunder — segregate and rather specifically point out the error which.is attempted to be specified and complained of in this court. The statement of facts in this case is rather inadequate and unsatisfactory and difficult to determine from it the rights of the parties in litigation. The field notes of the public road, as stated, begin at the southeast corner of the public square in Silverton; thence east with the center of Commerce street to the center of Park street; thence south with the'center of Park street to the south line of section No. 20 (the section upon which the town was situated); thence east 525 varas to the southeast corner of said section No. 20. Ordinarily the beginning recited cases of the field notes for objects of this character in a survey would become very important where course and distance from another object is attempted to be invoked as contravailing with reference to the original location, as much so as the well-recognized “monument” in the line of this survey. In this case, however, both sides seem to have joined upon the issue that the southeast corner of section No. 20, as it existed in June, 1892, at the time the jury of view, accompanied by the surveyor, laid out the road, was the real beginning corner of the survey of this road, and no stress is made whatever to the southeast corner of the public square, the center of Commerce street, and the center of Park street, as natural objects upon the ground, with reference to the location of the road survey, or the relocation now, as it existed then, when the road was condemned. The appellant, plaintiff in the trial court, has briefed the ease upon the theory that the beginning field notes of the road survey have nothing to do with the original location of this survey. The charge of the court seems to exclude those matters from consideration in submitting the caso to the jury, and the testimony of one Gregg, one of the viewers of the jury qf view, is to the effect that the distances from the southeast corner of the public square in Sil-verton to the southeast corner of survey No. 20 were not measured, nor was any line surveyed by the surveyor who assisted the jury of view in laying out the road; that the county surveyor, whom the jury of view entirely relied upon, took them to a ‘.‘stob” or “stake” as the S. E. corner of survey 20, and instructed them to begin running the road from that point; and as this was the only actual point on the ground where the survey began, we shall also treat this case the same as the trial court and appellant and appel-lee; that is,, the crucial question being the southeast corner of this survey No. 20, as the beginning corner of the road. The county contends that on account of the uncertainty of this corner upon the ground and the difficult discovery of same by any physical evidence at this time, as the start of the footsteps of the surveyor, that a survey by course and distance from the well-known “monument” in the line of the survey is the only way at this time to ascertain the beginning corner of said road survey, and which was done by the present county surveyor of the county by a carefully checked and verified survey. We have carefully considered this evidence, and have concluded that the county’s contention with reference-to this proposition is correct. It is true that in March or April, 1802, prior to the road survey in June of the same year, there was a survey beginning at some point east on the block lines between A and B-l, in connection with what was then known as the old “E fence,” and a corner was then established as 'the southeast corner of survey No. 20, and known in this record as the “cogwheel” corner, and with reference to which corner there is harmony and connection by extension of lines with the survey of Penn’s quarter in section 96; but the trouble is that we are unable to ascertain from this record that there is any connection whatever between this cogwheel corner and the corner of survey No. 20, which Waller and the jury of view assumed, whether correct or incorrect, in June, 1892, in surveying the road. All evidences of where Waller and the jury of view began are gone, or at least, are not testified to in the record.

Gregg, one of the jury of view, simply says that Waller began them at a “stake,” but where that stake was situated then with reference to any object or call or bearing-point which can be ascertained now is entirely indefinite and the record silent; and all parties,, including the court, treating, that particular corner as the real beginning corner of the survey, unless some error of law was committed by the court, this judgment should be affirmed. Penn contends that the road survey in 1892 would permit him to leave his fence where it now stands if confined to the cogwheel corner, with which the survey of his land, made in 1907, when patented, is in harmony; or at least should not cut as much from his land as the Jones resurvey, by course and distance from “the monument,” will take, if the road is adjusted to that work; and, in the alternative, if the Jones survey, now made by course and distance from “the monument” is correct as establishing the old road survey, the county is estopped to claim it on account of user. If the trial jury sufficiently answered the special questions, we are bound by their verdict. While the subject is not free from difficulty, we are inclined to think that a reasonable construction of the verdict concludes the question.

In short, the jury evidently found against the plaintiff and for the defendant, and that the Jones survey, under the evidence, was the only survey and the only method by which,’on account of the uncer.tainty of the beginning corner of survey No. 20, that corner could not be found; and on the issue of estoppel submitted by the court in the third issue, that part of the jury’s verdict which is to the effect that plaintiff should move his fence 30 feet north of the Jones survey may reasonably be construed as an answer to the submission of - that issue. In reality, upon a thorough consideration of the record, we find that the finding by the jury that the Jones survey, made by course and distance from the only known point in the line of survey, is- an ascertainment of the original survey, and, this having been found, a further finding that plaintiff’s fence should be moved 30 feet north of the same is, in reality, a complete finding as to any material issues which could and should have been submitted.

It is true that, in a sense, when you consider punctuation, and a lack of reference in the verdict to the issues submitted as 2d and 3d, it may be said that those issues were not specifically answered, 'but when you read the evidence upon the contentions of the two parties litigant,, upon the presumption that the jury read the issues submitted, the findings by it, although not specifically expressed as a direct answer, the implication is such as that it is a necessary deduction that the. jury intended to answer the material issues submitted.

The case of Moore v. Moore, by the Supreme Court, 67 Tex. 297, 3 S. W. 285, cited by the appellant, for the purpose of sustaining its contention in this matter, enunciates this principle: “It may be conceded that it matters not how a finding is expressed, so that the meaning of the jury is clearly tangible; and it may be that what is not expressed may be implied, provided the implication be a necessary deduction from that which is directly stated.” The court, in submitting the third issue, in rather a clear and ■succinct presentation of estoppel, directed the jury that if they found certain elements the county will be confined to a certain road, {the present traveled road) regardless of where the road was actually laid out, and would, be estopped to deny the road as traveled at the present time, and that if they find those elements to find for the plaintiff ■ against the county. When the jury found for the defendant, and in favor of the Jones -survey, and said that the plaintiff shall move his fence 30 feet north of the Jones survey, which latter survey the evidence shows was approximately close to the fence of the plaintiff, it seems to us that the implication is a .necessary deduction that the jury did not believe that the county was estopped, and was a finding upon that point.

The question whether a plaintiff in the •ordinary form of trespass to try title can prove and maintain estoppel, where an affirmative answer is also merely trespass to try title by defendant added to not guilty, -is undecided; upon our consideration of this ■ case, if the jury found against estoppel, it ■becomes an academic question, and our conclusion is that, upon the whole record, the .judgment of the trial court should be affirm■ed, and it is so ordered.


text:
    CANTRELL v. CAWYER et al.
    (Court of Civil Appeals of Texas. Austin.
    Dec. 17, 1913.)
    1. Courts (§ 169) — Jurisdiction — County Court — -Petition—Sufficiency.
    A petition in an action in the county court, which shows that the amount sought to be recovered is within the jurisdiction of the court, and which seeks to foreclose a chattel mortgage on property, the value of which is not disclosed, states a cause of action within the jurisdiction of the court, in the absence of any. suggestion of want of jurisdiction based on the value of the property.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. |§ 413-425, 428-436, 443, 456, 458, 465; Dec. Dig. § 169.]
    2. Courts (§ 170) — Jurisdiction — County Court — Petition—Sufficiency.
    Though the jurisdiction of the county court must appear on the face of the petition, yet, when it appears therefrom that the amount sought to be recovered is within the jurisdiction of the court, and no other fact is alleged from which it affirmatively appears that the ■court is without jurisdiction, the jurisdiction appears on the face of the petition.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 427; Dec. Dig. § 170.]
    3. Courts (§ 170) — Jurisdiction — County Court — Objections to Jurisdiction.
    Where, in an action in the county court, the petition sought to recover an amount within the jurisdiction of the court, and sought to foreclose a chattel mortgage without disclosing the value of the property, the defendant to avail himself of the want of jurisdiction of the court must allege and prove that the property was of value in excess of jurisdiction.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 427; Dec. Dig. § 170.]
    4. Courts (§ 169) — Jurisdiction — County Court — Foreclosure of Chatted Mortgages.
    Where, in an action in the county court for a money judgment within the jurisdiction of the court and for the foreclosure of chattel mortgages on horses and cotton of value in excess of the jurisdiction, the undisputed evidence showed that all of the cotton had been sold and delivered to the mortgagee prior to the action, and the court, without objection, submitted the issue of foreclosure only as to the horses worth about ¡¡>225, the court had jurisdiction; for it must be assumed that plaintiff abandoned his suit in so far as it appertained to á foreclosure of the mortgage on the cottoni.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413-425, 428-436, 443, 456, 458, 465; Dec. Dig. § 169.]
    5. Chattel Mortgages (§ 110) — Debts Secured.
    A mortgage executed to secure a note of 8100 and a future indebtedness does not secure an indebtedness incurred after full settlement of the indebtedness contemplated by the parties when the mortgage was executed; for a mortgage is but an incident of the debt, and is extinguished when the debt is paid, and is not revived by a subsequent debt.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 192; Dec. Dig. § 110.]
    6. Chattel Mortgages (§ 241) — Renewal Notes — Effect .
    The giving of a new note does not operate as an extinguishment of a debt evidenced by a prior note nor a cancellation of the mortgage securing it.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 503, 504; Dee. Dig. § 241.]
    . Appeal from McCulloch County Court; Harvey Walker, Judge.
    Action by John B. Cawyer and another against C. N. Cantrell. From a judgment for plaintiffs, defendant appeals.
    Reversed and remanded.
    C. C. House and Sam MeCallum, both of Brady, for appellant. J. E. Shropshire, of Brady, for appellees.

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

   Findings of Fact.

JENKINS, J.

On May 29, 1909, appellant executed to appellees a note for $100, payable 12 months after date. At that time appellant was not indebted to appellees. Appellant was a farmer, and appellees were merchants. The note was executed as a basis for credit to be extended to appellant by appellees for the year 1909, both parties estimating that $100 would be the extent of supplies that appellant would need to purchase from ap-pellees during that time. The amounts and dates of appellant’s purchases were not shown, but it was shown that he paid ap-pellees on account as follows: September 23, 1909, $62.88; October 7, 1909, $33.43-; October 14, 1909, $81.65; January 15, 1910, $50; total, $227.96. At the time of the execution of said note, appellant, to secure the same, executed to appellees a mortgage on two horses, and two bales of cotton out of his 1909 crop. This mortgage recited that it was also intended to secure any other debt that he might thereafter owe appellees. On May 19, 1910, appellant executed another note to appellees for $325, due September 25, 1910, and also to secure the same a mortgage on the first ten bales of cotton picked out of his crop of 1910. At this time appellant was indebted to appellees in the sum of $225, and $100 was added to secure future indebtedness for the year 1910. Appellees alleged that said notes were unpaid, and prayed for the recovery of their debt, and for foreclosure of their mortgage lien on all of the property mentioned in said mortgages. Appellee answered that he had paid the $100 note in full, the last payment thereon being made on January 15, 1910, and also that he had paid the $325 note. There was judgment for appellees for $111.07, with foreclosure of the mortgage on the two horses.

Opinion.

1. Appellant did not except to appel-lees’ petition as not showing jurisdiction, nor allege that the property upon which the mortgage was- sought to be foreclosed exceeded $1,000 in value; and the evidence did not show such fact. Neither did the appellant suggest the want of jurisdiction in his motion for a new trial, but he here insists that there was fundamental error in rendering judgment against him for that this was a suit to foreclose a mortgage on personal property, and the appellees’ petition did not allege the value of such property. This contention is sustained by the decisions in Stricklin v. Arrington, 141 S. W. 189, Bates v. Hill, 144 S. W. 289, and Wilson v. Ford, 159 S. W. 73; but we decline to follow these decisions. We do not think they are sustained by authority or by sound reason. They cite in their support the cases of Cotulla v. Goggan, 77 Tex. 34, 13 S. W. 742, Ry. Co. v. Rucker, 38 Tex. Civ. App. 592, 88 S. W. 815, and Smith v. Carrol, 28 Tex. Civ. App. 330, 66 S. W. 863.

2. Cotulla v. Goggan, supra, was a suit in justice’s court for $155.11, and to foreclose a mortgage on a piano, the value of which was not alleged by plaintiff. But the defendant plead to the jurisdiction of the court, alleging that the piano exceeded in value $200. Upon the trial of the case the district court, to which it was appealed, overruled this plea. In passing upon this point, the Supreme Court said: “It was the right of the defendants to insist upon their dilatory plea, and to prove that the value of the piano exceeded $200, and thereby defeat the jurisdiction, and secure a dismissal of the suit.” (Italics ours.) If the suit should have been dismissed for the reason that the plaintiff had not alleged the value of the piano, there would have been no necessity for the defendants’ proving its value. Ry. Co. v. Rucker, supra, was a suit in justice court for $55.50, and to foreclose a lien on personal property of the alleged value of $900. Smith v. Carrol was a suit in justice court for. $170, and to foreclose a lien on property of the value of $300. Under the authority of Cotulla v. Goggan, supra, it was properly held in the , two cases above mentioned that the .justice court was without jurisdiction to try them. The cases of Ware v. Clark, 125 S. W. 618, Gregory v. Ry. Co., 20 Tex. Civ. App. 272, 48 S. W. 888, and Albritton v. Bank, 85 S. W. 1008, cited in Bates v. Hill, supra, are not in point. Those cases were appeals from county courts. The record affirmatively showed that the amounts in controversy were less than $200, and no other fact appeared of record to show jurisdiction in the county court.

3. We think the honorable Courts of Civil Appeals for the First and Second districts fell into error in the cases of Stricklin v. Ar-rington, Bates v. Hill, and Wilson v. Ford, supra, in supposing that the Supreme Court meant to hold in Cotulla v. Goggan that the value of the mortgaged property alone determined the jurisdiction of the court. We do not so construe that decision. We think the proper construction is that given by this court in Walker v. Rainey, 154 S. W. 317, wherein we held that the jurisdiction would be determined by the value of the property upon which the lien was sought to be foreclosed, if such value was in excess of the jurisdiction of the court, otherwise it would be determined by the amount sued for.

4. It is true that the jurisdiction of the court must appear upon the face of the petition, but, when it appears therefrom that the amount sought to be recovered is within the jurisdiction of the court, and no other fact is alleged from which it affirmatively appears that the court is without jurisdiction to try the case,, the jurisdiction of the court does appear upon the face of the petition.

5. While the failure of the petition to state the value of the property upon which a lien is sought to be foreclosed does not in itself, show a want of jurisdiction, it is the privilege of the defendant to allege that such property is of value in excess of the jurisdiction of the court, and if his proof sustains such allegation, the case must be dismissed. Cotulla v. Goggan, supra; Schwartz v. Frees, 31 S. W. 214.

6. The contention of appellant that this case should be dismissed for want of jurisdiction in the trial court must be overruled for another reason. The undisputed evidence shows that all of the cotton mentioned in the mortgages had been sold and delivered to appellees by appellant prior to the institution of this suit. Without objection of either party, the court submitted the issue of foreclosure only as to the horses, shown by the evidence to have been of the value of about §225. Under these circumstances, it must be assumed that appellees abandoned tbeir suit in so far as it appertained to a foreclosure of their mortgage on the cotton. No useful purpose could be served in reversing this case for want of jurisdiction, when it appears from the record that upon another trial the court would have jurisdiction to try the case.

7. Appellant assigns error upon the following portion of the charge of the court: “Now I charge you that the mortgage introduced in evidence of date May 29, 1909, if found to have been executed and delivered by defendant to plaintiff, would create a valid and legal lien in favor of plaintiffs to secure any indebtedness accruing thereafter in favor of plaintiffs. That the mortgage, if so executed in 1909, would create a valid lien against the horses therein described to secure the indebtedness, if any, accruing to the plaintiffs from the defendant during the years 1910 and 1911.” The- jury returned the following verdict: “We the jury find in favor of plaintiffs in the sum of $111.07, and we further find that said amount is secured by a valid lien on the horses described in the mortgage given in 1909, and we hereby find in favor of foreclosing the said lien.” Judgment was entered in accordance with the verdict. This assignment must be sustained. Both appellant and appellees testified that the note and mortgage of 1909 was given to secure the anticipated indebtedness of appellant to appellees for the year 1909. Appellant testified that when he made the $50 payment on January 15, 1910, such payment settled in full all of his indebtedness to ap-pellees, and that he then asked for his $100 note, and that a member of appellees’ firm told him that it had been misplaced, but that he would look it up and deliver it to him. If this be true, and appellant thereafter, on a different contract, became indebted to appellees, the fact that the mortgage provided that it should secure future indebtedness would not constitute it a mortgage as to indebtedness incurred after a full settlement of all indebtedness contemplated by the parties when such mortgage was executed. A mortgage is but an incident of a debt, and when the debt is paid the mortgage is extinguished; and, when once extinguished, it is not revived by a subsequent debt, not in contemplation of the parties when the mortgage was executed. This is in accordance with the terms of the mortgage in this case, which provides that, upon the payment by the mortgagor of all of his indebtedness to the mortgagees, the mortgage was to become void.

8. On the other hand, one of the ap-pellees, the bookkeeper, testified that after giving appellant credit for all of his payments he still owed the $100 note in addition to a considerable amount on the subsequent indebtedness. If this be true, appellees were entitled to a foreclosure of their mortgage on the horses.

9. Appellant contends that if he did not pay off said note prior to May 15, 1910, that the amount due thereon, as well as any other amount that he might have been owing prior to that time, was included in the note for $325 which he then gave, and that by giving said note he thereby paid the $100 note and all indebtedness accruing on the 1909 transactions, to secure which the mortgage was given. The giving of a new note did not operate as an extinguishment of the debt, nor a cancellation of the mortgage. Type Founder Co. v. First Natl. Bank of Teague, 156 S. W. 300.

For the error in the charge of the court as above indicated, the judgment herein is reversed, and the cause remanded.

Reversed and remanded.


author: FLY, C. J. PLY, O. J.

text:
    INTERNATIONAL & G. N. RY. CO. v. WALKER.
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 21, 1914.
    Supplemental Opinion, Feb. 19, 1914.)
    Appeal and Error (§ 882) — Invited Error -Requesting- Instructions.
    If appellant requested charges on contributory negligence, he cannot complain on appeal that the question was submitted.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 8S2.]
    On motion for rehearing.
    Motion overruled.
    For former opinion, see 161 S. W. 961.

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

   FLY, C. J.

The ordinance, under which appellant claims that appellee was guilty of contributory negligence per se, provides that “no vehicle shall cross any street or bridge or make any turn at street intersections at a greater speed than one-half the legal speed rate, upon such street.” The evidence shows that appellee was not crossing “any street or bridge,” and was not making any turn at a street intersection. He was not crossing a street when struck, but was crossing appellant’s right of way, which is not in a street, and is inclosed with a wire fence. The ordinance has no application to the facts of this case, and the question of contributory negligence was for the jury. There was testimony which justified the finding that appellee was not guilty-, of contributory negligence.

If the facts had shown a ease of negligence per se upon the part of appellee, appellant not only failed to ask a peremptory instruction, but requested charges on contributory negligence. One of the requested charges was copied bodily into the charge of the court, clearly indicating that the special charges were requested before the charge of the court was given. Appellant, having invited the charge submitting the question of contributory negligence to the jury, cannot now be heard to attack such submission. Poindexter v. Receivers, 101 Tex. 322, 107 S. W. 42; Alamo Beef Go. v. Yeargan, 123 S. W. 721; Railway v. West, 131 S. W. 839; Railway v. Rodriguez, 133 S. W. 690.

The evidence showed that appellee was running his car along a street in the city of San Antonio at the legal rate of speed, and was negligently struck by a locomotive belonging to appellant, which was running at a high rate of speed.

The motion for rehearing is overruled.

Supplemental Opinion.

PLY, O. J.

The writer of the opinions in this case intended to withdraw that part of the first opinion as to invited error, because he thought it in conflict with the opinions cited in the opinion on motion for rehearing, but neglected to do so, and there is an apparent inconsistency between the two opinions on the subject of invited error. The opinion of the court, however, as to invited error, is slated in the opinion on rehearing.