author: GRAVES, J.

text:
    LAWRENCE et al. v. GORDON et al.
    (No. 7645.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 4, 1919.
    Rehearing Denied Feb. 27, 1919.)
    1. Highways <&=>30(3) — Opening Road — Requirements of Statutes.
    Where landowners were given notice in writing of time and place for laying out road, responding to which they attended upon, and filed with jury of view their claims for damages, and also went into commissioners’ court, where their damages were determined de novo, contending for more than jury had allowed, and protesting against approval of report and appealing to county court, there was no such failure to comply with Rev. St. 1911, art. 6889, as rendered proceedings of court null and void.
    2. Highways <§=>64 — Proceedings to Open —CONOLUSIVENESS OF ACTION OF COMMISSIONERS’ Court.
    Action of commissioners’ court in proceeding to open highway, in determining that juror of view was a freeholder, and in refusing to award landowners more damages than did jury, held conclusive except as landowners questioned it in exercise of right of appeal under Rev. St. 1911, art. 6882, and not to warrant injunction proceedings to restrain opening of road.
    Appeal from District Court, Chambers County; L. Llewellyn, Judge.
    Suit by A. B. Lawrence and another against J. B. Gordon and others. From judgment dissolving temporary injunction, plaintiffs appeal.
    Affirmed.
    E. B. Pickett, Jr., of Liberty, for appellants.
    Mabry E. Cain, of Anahuac, and Tharp & Tharp, of Houston, for appellees.
   GRAVES, J.

Lawrence and Winfree, appellants here, brought this suit in the district court of Chambers county against the county judge and all other members of the commissioners’ court of that county for an injunction to restrain them from opening a public road, or from going upon appellants’ lands for that purpose; the court granted a temporary injunction, but at a later hearing upon the merits dissolved it, from which latter judgment this appeal proceeds.

The judgment is assailed upon three grounds, it being claimed: (1) That appellants were not given notice of the time and place when the jury of view would assess the damages for the land to be taken in laying out the road, as is required by article 6880, Revised Statutes of 1911; (2) that one of the five members of the jury of view was not a freeholder; (3) that both the jury of view and the commissioners’ court grossly abused their discretion and transcended their authority in laying out the road, and in refusing to award appellants a sufficient amount of damages.

For the purposes of this opinion, the material parts of the trial court’s findings, which were not excepted to below, after recitation of an award of $149 damages to Lawrence and $33 to Winfree, are these:

“Third. That the plaintiffs were given written notice of the time and place when said road would be laid out, and they were present when the road was laid out and filed their claim for damages for lands taken by said road, with the jury of view. But the damages for lands' so taken for said road were awarded by the jury of view at a later date when said Lawrence and Winfree were not present, and they had no notice that damages would be assessed at said time.
“Fourth. I find that the juror, Charlie Vick-ers, is a freeholder, but even if he be not a freeholder, a majority of the jury of view were authorized to act without him.
“Fifth. I find that when the report of the jury of view was taken up and adopted (by the commissioners’ court) on or about the 14th day of May, 1917, A. B. Lawrence and E. W. Winfree were present in person and insisted that they be allowed a larger amount of damages than had been awarded them by the jury of view; and they also protested against the adoption of the report of the jury of view, which report was adopted, and they each appealed their claim for damages to the county court of Chambers county, which appeal is still pending.
“Sixth. I find that the commissioners’ court did not grossly exceed its authority, nor abuse its power, nor was it moved by personal animosity against plaintiffs or either of them in adopting the report of the jury of view.”

It thus appears that, not only were appellants given notice in writing of the time and place for laying out the road, responding to which they then attended upon, presented to, and filed in writing with the jury of view their claims for damages, but they also pursued the matter into, the commissioners’ court, where determination of the amount of the damages was made de novo, and there contended for more than the jury had allowed them, protesting against approval of its report on that ground; then when the commissioners’ court adopted the jury’s report anyway, they further appealed their claim for damages to the county court, where it was still pending at the time the court below entered the judgment here appealed from.

We are unable to hold that these facts present any such failure to comply with the requirements of article 6880 as rendered the proceedings of the jury of view and of the commissioners’ court approving them null and'void; it is true the power of eminent domain was therein being exercised, the prescribed procedure for which must bq strictly observed (McIntire v. Lucker, 77 Tex. 259, 13 S. W. 1027), but the facts- found do not, in our opinion, disclose that it was not so followed; the statute invoked (article 6880), stripped of its immaterial recitations, is as follows:

“The jury of freeholders provided for in article 6877 shall issue a notice in writing to the landowners through whose lands such proposed road may run, ⅜ * * of the time when they will proceed to lay out such road, or when they will assess the damages incidental to the opening of the same, which notice shall be served upon such owner, * * * at least five days before the -day therein named.”

It will be noted that only one notice is prescribed, which seems to us, by reason of the disjunctive form of the statement, to cover both contingencies of such a situation as here developed; that is, that one who has first been given advance written notice of the laying out of a road and directed to then appear and present in writing his claims for damages, such being the explicit provisions of the notice given appellants, would not also be entitled to a second notice of the time when damages would be assessed, in case that part of the process were deferred to a later date. The case is different from that presented in Crawford v. Frio County, 153 S. W. 388. There Crawford had no written notice of either action by the jury of view, nor did he present to them any claim for damages at all. He was- present when the road was laid out, but not at the time the damages were assessed, and claimed not to have even known when they were to be. It was held that, while Crawford’s actual presence at the laying out of the road estopped him to deny notice of that particular proceeding and rendered the five days’ statutory notice as to it unnecessary, according to the rule laid down in Onken v. Riley, 65 Tex. 468, the failure to give him such notice of the time for assessing damages, which, under the facts there shown, resulted in his presenting no claim therefor at all deprived him of a substantial right and left the county without authority to open the road over his protest ; but as the foregoing statement has disclosed, no such condition obtained here. These owners had legal notice of the time and place of viewing out the road, were present when that was done, presented and filed their respective claims for damages, which the jury of view considered and acted upon, appeared again before the commissioners’ court urging an increased amount, and finally appealed from an adverse decision there to the county court. Surely, we think, this gave them their day in court and afforded them every substantial right to which they were entitled under the statute.

As to the second and third contentions, an examination of the statement of facts discloses sufficient evidence to sustain the court’s findings that the complained of juror was a freeholder, and that neither the jury of view nor the commissioners’ court abused their discretion or exceeded their authority in the action taken. If, however, there were any doubt about that, a further and complete answer to both these objections is, we think, that the action of the commissioners’ court upon them was conclusive. Neither matter was complained of in that tribunal, nor was of such character as to render its judgment void. All members of the jury of view took the oath, participated in the decision, and signed the report, as required by article 6877, which by its terms permitted a majority of them to act The commissioners’ court, in turn, first passed upon the qualifications of the jury in appointing them, and again in subsequently approving their report. That court was vested by law with jurisdiction to do all it here undertook to do in the matter of opening the road (Revised Statutes, arts. 6864 to 6884, inclusive), and no showing is made that any of the requirements therein detailed were not complied with.

In these circumstances, we think, appellants were limited to their statutory right of appeal. Revised Statutes, art. 6882; Vogt v. Bexar County, 16 Tex. Civ. App. 567, 42 S. W. 127; Huggins v. Hurt, 23 Tex. Civ. App. 404, 56 S. W. 944; Howe v. Rose, 35 Tex. Civ. App. 328, 80 S. W. 1023; Hankamer v. County Commissioners, 154 S. W. 623.

From what has been said it is apparent that all assignments must be overruled, and the judgment affirmed; that order has been entered.

Affirmed.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    STEWART v. McALLISTER et ux.
    (No. 6146.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 22, 1919.
    Rehearing Denied March 12, 1919.)
    1. Appeal and Error <©=>281(1) — Motion for New Trial — Fundamental Error.
    Where there was no motion for new trial in trial court, there can be no assignments of error except those based on fundamental error, in view of Rev. St. 1911, art. 1607.
    2. Vendor and Purchaser <©=>33 — Misrepresentations — 'Value of Land — Rescission of Contract.
    Where contract to purchase land at $200 an acre was procured by misrepresentations that land was as valuable as certain developed land shown purchaser, and was worth $225 an acre, that surface land was of equal elevation, that railroad was approaching on both sides of land, that land could be irrigated, that water rights would give an abundance of water, that irrigation company would supply water on five days’ notice, and that land would produce abundantly and would not overflow, purchaser was entitled to rescission.
    3. Appeal and Error <©=>294(1) — Review-Evidence — Statement of Facts.
    In the absence of a motion for new trial and proper assignments based thereon, the Court of Civil Appeals will not consult the statement of facts to ascertain if the allegations were sustained by the evidence.
    4. Vendor and Purchaser <©=>33 — Misrepresentations — Statement of Facts — Opinions.
    The statement of the truth of a matter in the form of an opinion which the party is shown to know was false is a misrepresentation of fact.
    5. Vendor and Purchaser <®=>36(1) — Misrepresentations — Value of Land.
    Statements as to value, or as to land sold being as good as surrounding land, are actionable if made by a person holding a position of trust or confidence or by a party assuming to have special knowledge; the other being ignorant of the matter.
    6. Appeal, and Error <©=>281(1) — “Apparent” — “Error in LAW.”
    Under Rev. St. 1911, art. 1607, providing for trial on appeal or writ of error, where no “error in law” was “apparent” on the face of the record, an error discovered oy close scrutiny of the entire evidence is not “apparent,” and there is no error of law where there is any evidence whatever to sustain a judgment.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Apparent; Error of Law.]
    7. Appeal and Error <©=>281(1) — Sufficiency of Pleadings — Absence of Motion for New Trial — “Apparent upon Face of Record.”
    When the pleadings are sufficient to support judgment, and the findings of the jury also sustain the judgment, there is no error of law apparent upon the face of the record within Rev. St. 1911, art. 1607, and the judgment, in the absence of a motion for new trial and other requisites for an appeal, cannot be assailed.
    [Ed. Note. — For other definitions, see Words and Phrases, Second Series, Apparent on the Face of the Record.]
    Error from District Court, Hidalgo County; V. W. Taylor, Judge.
    Action by W. E. Stewart against E. G. McAllister and wife. Judgment for defendants, and plaintiff brings error.
    Affirmed.
    T. T. Vander Hoeven, of San Antonio, W. F. Zumbrunn, of Kansas City, Mo., and B. A. Greathouse and Don A. Bliss, both of San Antonio, for plaintiff in error.
    James A. Graham and Jones & George, all of Brownsville, and Silvers & Dawson, of Butler, Mo., for defendants in error.
   FLY, C. J.

This is a suit to recover on four promissory notes for $1,000 each, dated July 10, 1915, instituted by plaintiff in error, herein called plaintiff, against E. G. McAllister and his wife, Christine McAllister, defendants in error, herein called defendants, and to foreclose a vendor’s lien on certain lands sold by plaintiff to defendants, being lots 55, 56, and 57 of Stewart’s addition. Defendants answered that plaintiff, at the time he sold the land to defendants, was engaged in the business of colonizing lands in the Rio Grande valley in Hidalgo county; that defendants lived in Bates county, in the state of Missouri; that they were induced by plaintiff to join an excursion, organized by him, to the Rio Grande valley; that they were led to believe by the fraudulent representations of plaintiff, that the land which they afterwards bought was worth $225 an acre, but that he would, take $200 an acre for it; that a station for an electric railway, then partly built, and which would be rapidly completed, would be located on the land; that the land was susceptible of irrigation by gravity from the canals of the Louisiana-Rio Grande Canal Company as then constructed; that the lands were of equal surface elevation; that the supply of water was abundant at all times for all purposes, and would be furnished by the irrigation company five days after being demanded ; that the land never overflowed, was not subject to overflow, and never was inundated by water from the Rio Grande; that plaintiff would regrub 72 acres of the land and put it in condition to be plowed. It was alleged that the representations were false, but defendants believed them to be true and purchased the land giving therefor their Missouri farm and executed the note sued on. The cause was submitted to a jury-on special issues, and judgment was rendered on the answers thereto for $16,112.56 in favor of defendants.

No motion for a new trial was made and presented in the trial court, and consequently there can be no assignments of errors except those based on fundamental error, and, unless plaintiff can show that a fundamental error was made, he has no standing in an appellate court.

In article 1607, Revised Statutes of Texas, it is provided:

“In all cases of appeal or writ of error to the Courts of Civil Appeals, the trial shall be on a statement of facts or agreed statement of the pleadings and proof as agreed upon by the parties or their attorneys, or the conclusions of law and fact, as the case may be, certified to by the judge of the court below; or should the parties fail to agree, then the judge of the court below shall certify the facts; or on a bill of exceptions to the opinion of the judge; or on a special verdict; or on an error in law, either assigned or apparent on the face of the rec-^2»^ ⅜ ¾* ⅜ ^

Some doubt has been expressed by this court and the Supreme Court as to what is meant by the words “apparent on the face of the record.” Adams v. Faircloth, 97 S. W. 507; Wilson v. Johnson, 94 Tex. 272, 60 S. W. 242. In the case last cited the Supreme Court said:

“Since every error must, in one sense, appear upon the face of the transcript, it is difficult to tell what is meant by this language; but we incline to think it intended to signify a prominent error, either fundamental in character or one determining a question upon which the very right of the case depends.”

Whatever doub't may have been entertained by the Supreme Court when rendering the decision from which the quotation was made, doubt seems to have been eliminated from the mind of that court later, and in the case of Houston Oil Co. v. Kimball, 103 Tex. 94, 122 S. W. 533, 124 S. W. 85, it is held:

“This does not mean that an error which can be ascertained by looking into the record and considering the evidencei may be considered without an assignment; for that would include every error which can be considered at all. * * * The language ‘apparent upon the face of the record’ indicates that it is to be seen upon looking at the .face of the record, that is, the assignment itself, the fact pointed out by it must show a good and sufficient ground for the court to interfere to prevent injustice being done to one of the parties.”

It might be inferred from the language quoted that the court deemed the record as used in the statute to mean the assignments of error, but that theory can scarcely be maintained, because there are cases where errors of law “apparent upon the face of the record” are required to be considered in the absence of assignments of error.

In the case of Oar v. Davis, 105 Tex. 479, 151 S. W. 794, the definition of “error apparent upon the face of the record” as given in the Kimball Case is commended for its accuracy and comprehensiveness, but yet the court deemed it not inappropriate to add as a definition of the class of errors under consideration that error of law “apparent upon the face of the record” meant “such manifest error as when removed destroys the foundation of the judgment.”

Whatever may be the doubt as to what is meant by an “error of law apparent upon the face of the record,” it has been held by the Supreme Court and Courts of Civil Appeals that no such error can be predicated upon an examination of the entire statement of facts. Oil Co. v. Kimball, herein cited; Riggs v. Baleman, 198 S. W. 813; Barkley v. Gibbs, 203 S. W. 161.

The answer and cross-action of defendants alleged that they were induced by .fraud and misrepresentations to purchase the land from plaintiff. The misrepresentations were that the land was as valuable as certain developed land showed to defendants; that the land was worth $225 an acre; that the surface of the land was of equal elevation; that a railroad was approaching on both sides of the .land; that the space between the termini would be completed across the land with a station on it; that all the land could be irrigated; that the water rights would give an abundance of water; that the canal company would supply sufficient water for irrigation on five days’ notice; that the land would produce abundantly; that the land would not overflow; and that plaintiff would regrub certain cleared land. The pleading.was sufficient to justify a rescission of the contract if proof was made. In the absence of a motion for new trial and proper-assignments based thereon, this court will not consult the statement of facts to ascertain if the allegations were sustained by the evidence.

This case is argued by plaintiff as though an opinion inducing the purchase of land could under no circumstances be the basis for a charge of fraud. Such is not the law. The statement of the truth of a matter in the form of an opinion which the party is shown to know was false is a misrepresentation of fact. Morrison v. Adoue, 76 Tex. 255, 13 S. W. 166; Newton v. Ganss, 7 Tex. Civ. App. 90, 26 S. W. 81; Riggins v. Trickey, 46 Tex. Civ. App. 574, 102 S. W. 918; White v. Peters, 185 S. W. 659; Baugh v. Houston, 193 S. W. 242. Statements as to value or as to land sold being as good as surrounding land are actionable if made by a person holding a position of trust or confidence or by a pqrty assuming to have special knowledge, the other being ignorant of the matter.

“It is not the law that the expression of an opinion will not be cause for canceling a contract made through reliance upon the opinion whether ‘erroneous or untrue’ or not. The law is that, when a person makes a statement in the form of an opinion and knows of facts which make the opinion a sham and a fraud, he has really made a misrepresentation of fact.” White v. Peters, heroin cited, writ of error refused.

Proof of one or more of tlie grounds of rescission pleaded in the cross-action would justify the judgment of the court in rescinding the contract of purchase. The answers of the jury found all the facts essential to the support of the judgment, and in the face of the fact that the answers were not attacked in the trial court in any way, it is conclusive that they could not he successfully attacked, and were supported by the evidence.

The recitals in the judgment show that plaintiff was present in person and by counsel, and that no objection was made to the issues submitted by the court, and that no motion for new trial was filed. The trial seems to have been regular in every respect, and there is no “error of law apparent upon-the face of the record.”

An error discovered by a close scrutiny of the entire evidence could certainly not bé deemed “apparent,” and there could be no “error of law” where there is any evidence whatever to sustain a judgment, but it could only arise in the absence of all evidence to support the judgment. Even where a case has been properly tried in the lower court and all the requisite steps taken for an appeal, an appellate court is not called upon to read the whole of a statement of facts to discover error, and where no effort has been made to prepare for an appeal no such duty devolves upon a court. When the pleadings are sufficient to support the judgment, and the findings of the jury also sustain the judgment, there is no “error of law apparent upon the face of the record,” and the judgment, in the absence of a motion for new trial and other requisites for an appeal, cannot be assailed.

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


author: MOURSUND, J.

text:
    POOLE v. PIERCE-FORDYCE OIL ASS’N.
    (No. 6141.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 15, 1919.
    On Motion for Rehearing, March 5, 1919.)
    1.Justices oe the Peace <§=>174(25) — Plea of Privilege — Waive» in County of Court.
    Where defendant’s plea of privilege in justice court was overruled during December term, and the cause taken to county court on February 19th following certiorari returnable to the March term, and where motion to dismiss cer-tiorari which was filed during the March term was not disposed of until June 2d, when motion to strike out plea was made, there was no waiver of plea in county court.
    2. Justices of the Peace <©=>60 — Venue — Plea of Privilege — Waiver.
    That defendant’s plea of privilege was filed December 30th, during the December term of justice court, and was not called to the attention of the justice or passed without prejudice, is insufficient to show a waiver of plea; it not appearing when term expired, or that there was an opportunity to procure a hearing on the plea during said term.
    3. Evidence <©=>41 — Judicial Notice — Order of Commissioners’ Court.
    The Court of Civil Appeals cannot take judicial notice of the order of the commissioners’ court fixing term of justice’s court.
    4. Exceptions, Bill of <©=>43(1) — Failure to File in Time.
    A bill of exceptions not filed within the time prescribed by law cannot⅛ considered.
    5. Appeal and Error <@=>931(7) — Ground for Decision of Lower Court — Presumption.
    Where judgment of the county court striking out defendant’s plea of privilege shows on its face that it is based on conclusion that the plea is defective, no presumption can be indulged by the court on appeal that it was based on a finding of waiver. N
    6. Pleading <@=>104(2) — Plea of Privilege-Sufficiency.
    Rev. St. 1911, art. 1903, providing that plea of privilege shall be sufficient if it contains certain statements, is permissive, and defendant’s plea, stating that he was not a resident of the county at the time suit was instituted and at the time the plea was signed and sworn to, was sufficient.
    On Motion for Rehearing.
    7. Abatement and Revival <©=>81 — Plea of Pei VILE GE — AB AND ONMENT.
    One who presents a plea of privilege at a different time from that fixed by statutes and rule of court has the burden of showing that his plea has not been abandoned by his previous neglect.
    8. Certiorari <@=>42(3) — Plea of Privilege —Waiver.
    While allegations of petition for certiorari must be taken as true, certiorari is a remedy to which the strict rules applicable to appeals do not necessarily apply, and petition which disclosed that defendant’s counsel negligently failed to present and sustain plea of privilege cannot, where it also showed that such failure was not due to defendant’s own inexcusable neglect, be held to show waiver or abandonment of plea.
    9. Constitutional Law <@=>70(3) — Public Policy — Province of Courts.
    That statute excusing petitioner for cer-tiorari, if neglect to present and sustain plea of privilege is not his own, but that of his attorney, may be a bad statute does not justify the courts in imputing to petitioner the negligence of his attorney.
    Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Action in Justice Court by H. C. Pierce and another, trading as partners under the name of Pierce-Fordyce Oil Association, against John A. Poole, Sr. The cause was taken to the county court by certiorari, and from the judgment rendered there against defendant and the sureties on his certiorari bond defendant appeals.
    Reversed and remanded.
    L. H. Browne, of San Antonio, for appellant.
    Wm. H. Russell, of San Antonio, for ap-pellee.
   MOURSUND, J.

This is an appeal from a judgment rendered on April 20, 1918, for $152.80 in favor of- H. C. Pierce and S. W. Fordyce, Jr., trading as partners under the name of Pierce-Fordyce Oil Association, against appellant and the sureties on his certiorari bond. The appellee was cited to appear at the December term of the justice’s court, but service was had only five days before the beginning of such term. However, appellant, during such term, on December 30, 1916, filed his plea of privilege to be sued in Presidio county. This plea w-as overruled during the January term, to wit, on January 22, 1917. The cause was taken to the county court by certiorari on February 19,1917, and on March 31,1917, the appellees filed a motion to squash the certiorari, which was continued without prejudice to appellee’s rights on April 25, 1917, and overruled on June 2, 1917. On June 2, 1917, appellee filed a motion to strike out the plea of privilege on the grounds: First, that it did not negative defendant’s residence in Bexar county at the time the citation was served; and, second, that it had been waived by not being called to the attention of the justice’s court during the December term of said court. An order was entered on the same day granting such motion, the court reciting therein that he held the plea insufficient to present the issue of venue. Appellant’s bill of exceptions relating to such ruling contains the qualification reciting the facts with reference to what had taken place in the justice’s court with reference to the plea, as above detailed, and, further', that the cause came to the county court “on February, 1917, lay here without any action by defendant during the balance of the January term, all of the March and May, 1917, terms, and was not acted on or called to the court’s attention until June 2, 1917, and therefore the defendant waived his plea of privilege.”

The only question presented is. whether the court erred in striking out the plea of privilege. Of course if the plea had been waived, the error, if there was error, in sustaining an exception thereto would be an immaterial one.

As the writ of certiorari was returnable to the March term of the county court, no waiver can be predicated on the failure to obtain a ruling on the plea during the January term. During the March term a motion to dismiss the certiorari was filed, and until it was disposed of the plea of privilege would not be reached for consideration. We, therefore, hold there was no waiver in the county court.

It appears from the qualification to the bill of exceptions that the plea was filed on December 30, 1916, during the December term, 1916, of the justice’s court, and was not called to the attention of the justice or passed without prejudice. It is not shown when such term expired, or that any opportunity was had to procure a hearing on the plea of privilege during such term, and we believe the facts stated in the qualification are not sufficient to show a waiver. Aldridge v. Webb & Hill, 92 Tex. 122, 46 S. W. 224; Blum v. Strong, 71 Tex. 321, 6 S. W. 167; Harris Millinery Co. v. Melcher, 142 S. W. 100. The term may have expired on December 30th so far as. the record discloses. We cannot take judicial notice of the order of the commissioners’ court fixing the terms of said court. But, aside from, this, it appears that the bill of exceptions was not filed within' the time prescribed by law, and if therefore cannot be considered. Unknown Heirs of Criswell v. Robbins, 152 S. W. 210.

The judgment of the court striking out the plea shows on its face that it is based on a conclusion that the plea is defective, and therefore no presumptions can be indulged that it was based on a finding of waiver. As there is no presumption in support of such a judgment that evidence was heard to show a waiver, it is incumbent on appellee to affirmatively show a waiver, in order to obviate the effect of error, if error there was, in sustaining the- exception to the plea.

The only exception urged against the plea is that it failed to state that defendant was not a resident of Bexar county at the time the citation was served on him and at the time the plea was filed, and only states that he was not a resident of said county at the time the suit was instituted and at the time the plea 'was signed and sworn to. It is true that article 1903, R. S. 1911, provides that a plea of privilege shall be sufficient if it contains certain statements, among them those omitted in the plea in this case, but if said statute be construed as providing for an exclusive method of drawing a plea of privilege, the court’s ruling was correct. As the plea was signed and sworn to in the county of defendant’s residence, Presidio county, it is obvious that if it had contained the statement that at the time of the filing thereof defendant did not reside in Bexar county, such statement could at the utmost reflect only an intention not to remove to Bexar county before the filing of the plea. Prior to the enactment of said article 1903, it was well settled that if a petition disclosed on its face that the defendant was entitled to demand that he be sued in a different county than the one in which the suit was filed, he could raise the issue by exception. If the burden has been placed on defendant to allege that he has not been a resident of the county in which suit was filed at two particular periods subsequent to the time the suit was filed, it is obvious that in all cases the issue will have to be raised by a plea, and cannot longer be raised by exception. We do not believe the Legislature, intended to make such a sweeping change in our practice, and that the court was correct in holding in the case of Stevens v. Polk County, 58 Tex. Civ. App. 153, 123 S. W. 618, that article 1903 was intended as a permissive statute, the real purpose of which was to obviate the necessity of enumerating at great length the exceptions to the statute of venue for the purpose of negativing the existence thereof. The plea in this case is drawn under the rules established by our decisions prior to the enactment of article 1903, and specially negatives all exceptions which could bear on the issue. We hold that it is sufficient, and that under the law existing at the time it was overruled the defendant should have been given an opportunity to admit proof in support thereof, unless it was affirmatively made to appear that the plea had been waived.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

Appellees contend that we erred in not holding that it was the duty of appellant to call the attention of the court to the plea at the December term, and, if the business of the court would not fiermit a hearing thereon, to procure the entry of an order continuing the case without prejudice to such plea. They cite Aldridge v. Webb & Hill, 92 Tex. 122, 46 S. W. 224, which sustains such contention, and we believe it logically follows that a person who presents a plea at a different time than that fixed by the statutes and the rule referred to in said case has the burden of showing that his plea has not been abandoned by his previous neglect. In this case there is nothing to show that the plea was filed during the December term, except the qualification to a bill of exceptions, which cannot bp considered.

It is now also contended that the plea was waived by the failure, to be present on January 22, 1917, and present the same and introduce evidence to support the allegations thereof. It is true that the allegations of the petition for certiorari must be taken as true; and the contention is made that the petition, in showing a reliance by the httorney for appellant upon certain customs and usages with respect to continuances of pleas of privilege and the trial of causes in this particular justice’s court, discloses facts showing negligence on the part of the attorney. This might be admitted, and yet it would not be conclusive, for it appears that certiorari is a remedy to which the strict rules applicable in case of appeal do not necessarily apply. The applicant for the writ under the peculiar wording of the statute is not chargeable with - the negligence of his attorney. Lucas v. Harrison, 139 S. W. 659. The appellant showed that there was injustice to him in overruling his plea of privilege; that is, that the facts, if properly presented, required the sustaining of such plea. He also showed that he promptly employed an attorney and gave him the necessary information do enable the attorney to protect his rights, and that he caused a plea of privilege to be filed. The petition discloses that the failure to present the plea and sustain it by evidence was not caused by appellant’s own inexcusable neglect. The .petition, therefore, was not defective, and if the petition was sufficient as against a motion to dismiss, it appears to us it cannot be held to show an abandonment or waiver of the plea of privilege. To so hold would be to negative the right to resort to the remedy by certiorari to revise rulings on pleas of privilege, or to establish one rule as to petitions relating to pleas of privilege and another as to petitions relating to trials on the merits. The statute excusing petitioner, if the neglect be not his own, but that of his attorney, may be a bad one, but that would not justify the courts in imputing to the petitioner the negligence of his attorney.

We conclude the motion for rehearing should be overruled.
      <S=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LANE, J.

text:
    HILL et al. v. PAVELKA et al.
    (No. 7678.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 26, 1919.)
    1. Justices oe the Peace ⅞=197(1) — Cer-tiorari — Geounds—Negligence oe Attorney.
    Where petition for removal of case by cer-tiorari from justice to county 'court, under Rev. St. 1895, art. 345, showed that defendants had a good and sufficient defense, and did not in fact owe any part of the claim sued upon, and that they made a bona fide effort to avail themselves of that .defense by employing an attorney, who negligently allowed default judgment to be entered, court did not err in refusing to dismiss writ; negligence of attorney not defeating de-, fendants’ right.
    2. Justices of the Peace <®=5208(2) — Cer-TIOBAEI — FAILURE TO FILE FINDINGS AND Conclusions.
    Where record shows that cause of action stated by plaintiff was barred, that defendant by special exception pleaded the bar, and that judgment of county court on certiorari from justice court states that special exception was sustained and judgment rendered thereon, assignment that court erred in not filing findings of fact and conclusions of law will be overruled; there being no facts to be found, and failure to file conclusions of law, if error, being harmless.
    Error from Lavaca County Court; P. H. Green, Judge.
    Action in justice court by T. A. Hill and others against Frank Pavelka and others. There was judgment for plaintiffs in justice’s court, and defendants applied to the county court for a writ of certiorari, which was granted. Judgment for defendants, and plaintiffs bring error.
    Affirmed.
    Durell Miller, of Tookum, and A. J. Rabel, of Harlinger, for plaintiffs in error.
    A. E. Heilbron, of San Antonio, C. L. Stavi-noha, of Hallettsville, and C. L. McGill, of San Antonio, for defendants in error.
   LANE, J.

On the 9th day of January, 1917, plaintiffs in error brought suit in the justice court of precinct No. 1 of Lavaca county, Tex., against defendants in ehror Frank Pavelka, a resident of Bexar county, and one August Linhart, to revive a certain dormant judgment in favor of plaintiffs against the defendants.

In describing their cause of action in the written petition filed in said justice court, they alleged that the judgment sought to be revived was rendered on the 26th day of April, 1905, and that execution was issued on same on the 11th day of May, 1905, and returned the same day not executed, and that more than ten yéars had elapsed since the issuance of the last execution thereon. The appearance day in said justice court was the 24th day of January, 1917.

On the 18th day of January, 1917, A. E. Heilbron, an attorney of San Antonio, employed by Pavelka to represent him, mailed to E. G. Peterson, justice of the peace of said court, the answer of Pavelka for filing in said cause. This answer was received by said justice and filed in said cause on the 19th day of January, 1917. Contained in said answer was the following:

“T. A. Hill & .Son v. Frank Pavelka et al.
“Now comes the defendant Frank Pavelka, and specially excepts to the plaintiffs’ petition, because he says the same shows on its face that the judgment herein sued on is barred by statute of limitation, because there elapsed more than ten years between the issuance of the first and only execution on this judgment and the filing of this suit, and this he is ready to verify. Wherefore the defendant prays judgment of the court that plaintiff take nothing by this suit, and that he be discharged with his costs.”

Pavelka also pleaded bis discharge in bankruptcy as a defense against any recovery upon the claim of plaintiffs, and set out a certified copy of the judgment of discharge in his answer.

On the 18th day of January Heilbron, attorney for Pavelka, wrote the following letter to counsel for the plaintiffs:

“Jan. 18, 1917.
“Messrs. Miller & Rabel, Attorneys, Halletts-ville, Texas — Gentlemen: I this day inclosed to E. G. Peterson your J. P. for precinct No. 1, Lavaca county, the original answer of Frank Pavelka, one of the defendants in cause No. 628, T. A. Hill and Son v. Frank Pavelka and August Linhart brought to January term, 1917, with request that he file same amongst papers of said cause, and post as to setting of case. I call your attention to the fact that Frank Pa-velka received his final discharge in bankruptcy before the District Court of United States, for the Southern District of Texas, on the 1st day of May, 1906, and the claim in suit was one of those adjudicated. I am inclosing herewith a copy of his final discharge, the original of which I have. Will you therefore please address the referee in bankruptcy or the federal clerk for the Southern district of Texas, and satisfy yourself that the claim in suit was scheduled and adjudicated in the bankruptcy proceedings, otherwise I will apply for a. commission to take depositions to establish the very thing that you can satisfy yourself about for a two cent stamp, which depositions would cost $3.50.
“Kindly let me hear from you as to whether you insist upon we [our] proving up the matter.
“Tours truly, [Signed] E. A. Heilbron.”

No reply to this letter was received by Pavelka’s attorney.

On January 24, 1917, judgment was rendered against Pavelka by default for the sum sued for.

On the 6th day of February, 1917, the justice of the peace notified counsel for defendant Pavelka that said judgment had been rendered, and on the 27th day of February, 1917, Pavelka applied to the county judge of Lavaca county for a writ of certiorari to have said cause transferred to the county court of said county; the facts as above stated being fully set out in said application, which he alleged was a meritorious defense. The application was granted on the 1st day of March, 1917, and the transcript of the justice court was duly prepared and filed in the county court.

On 5th day of March, 1917, plaintiffs filed their motion to dismiss .the writ of certiorari, because the application for the writ was insufficient to entitle the applicant to the writ, in that it does not appear therefrom that the justice of the peace was without jurisdiction, or that,any injustice was done to the applicant by the judgment rendered in the justice court; nor does it appear therefrom that the judgment was not rendered against applicant because of his own inexcusable neglect.

This motion was continued from term to term without prejudice, until December 14, 1917, (it which time it was by the court overruled, and thereupon, on the same day, judgment was rendered sustaining defendant’s special demurrer to plaintiffs’ petition because it showed on its face that their cause as therein stated was barred by limitation, and judgment was then rendered for the defendant.

.By the first assignment it is insisted that the court erred in refusing to sustain the motion of plaintiff in error to dismiss the writ of certiorari. This assignment is followed with the proposition that:

“A defendant in an action at law who has a defense to the suit of which he is fully aware, which is cognizable in a court of law and within its jurisdiction, and which he has an opportunity to interpose, is chargeable with negligence if he fails to set up such defense and insist upon it, not being prevented from doing so by any fraud, accident, or surprise; and he cannot have relief in equity against the judgment in that action, on the same grounds which constituted such defense, however unjust or inequitable the judgment may appear to be. This rule applies to all defenses which are purely legal in their nature. It includes the defense that there had been a discharge of the defendant in bankruptcy proceedings and the defense of the statute of limitations.”

The petition for certiorari stated facts which showed that defendant in error had a good and sufficient defense to the cause of action asserted against him in the justice court; that he had employed an attorney to represent him, who negligently failed to do so. The petition for certiorari partakes of the qualities of a bill of review. It is but another mode of appeal from the justice court to the county court prescribed by the statute, and it has been held that such statute and proceedings thereunder should be liberally construed. Lucas v. Harrison, 139 S. W. 659; Rollison v. Hope, 18 Tex. 449; Seeligson v. Wilson, 58 Tex. 369.

In Rollison v. Hope, above cited, the court said:

“The affidavit is not in the most approved form. But a substantial compliance with the law is all that is required; and the law does not prescribe the terms of the affidavit; but only that the party applying shall make affidavit in writing, setting forth sufficient cause to entitle him to the writ. Hart. Dig. art. 1735. The practice has been to construe these proceedings liberally, and not to require the same strictness which is required in the proceedings in ordinary suits in the district court.”

In Lucas v. Harrison, supra, Judge Key of the Austin court, in speaking for the court said:

“The statute authorizing removal of the case by certiorari from a justice’s court to the county court requires the applicant for such writ to make affidavit in writing, setting forth sufficient cause to entitle him thereto; and article 345, R. S. 1895, defines ‘sufficient cause’ as follows: ‘In order to constitute sufficient cause, the facts stated must show that either the justice of the peace had not jurisdiction, or that injustice was done to the applicant by the final determination of the suit or proceedings, and that such injustice was not caused by his own inexcusable neglect.’ The petition in this case shows that appellants had a good and sufficient defense; and did not, in fact, owe any part of the claim sued upon; that they made a bona fide effort to avail themselves of that defense by employing an attorney, who promised to attend to the matter for them, and negligently failed to do so.
“It will be observed that the statute quoted requires the applicant for the writ of certiorari to show that injustice has been done him, and that such injustice was not caused by his own inexcusable neglect. In Hail v. Magale, 1 White & W. Civ. Cas. Ct. App. § 853, the Court of Appeals, construing this statute, held that the negligence of an attorney would not be imputed to his client, so as to deprive the client of his remedy by certiorari. That is the only case we have found construing that statute upon that point, and as that court had the same jurisdiction of this class of cases as this court now has, that 'decision should be followed, unless it clearly appears to be wrong. While it is true, as a general rule, that a litigant is chargeable with the negligence of his attorney, we think the words ‘his own,’ as used in this statute, are susceptible of the construction that the Legislature meant the personal negligence of the litigant himself. Such was the holding in the case just referred to, and we think that holding should be adhered to. Hence we hold that it was not necessapy for appellants to show that their attorney was not guilty of negligence; nor does it defeat their right to the writ of certiorari, because the facts stated in their petition disclosed the fact that such attorney was guilty of negligence.”

The assignment and propositions thereunder are overruled.

By the second assignment it is insisted that the court erred in not filing findings of fact and conclusions of law as requested by plaintiffs in error.

The record shows that the petition filed by plaintiff in error showed a cause of action barred by the statute of limitation if pleaded by defendant. The record also shows that defendant, by special exception to plaintiffs’ cause of action as stated in their petition, pleaded the ten-year statute of limitation in bar of plaintiffs’ right to recover, and the judgment of the trial court shows that the special exception of defendant was sustained, and that judgment was rendered for defendant upon said exception. These facts being made to appear from the record, it is also further apparent that there were no facts to be found by the court, and that the failure to file conclusions of law was harmless error, if error at all. The assignment is overruled, and the judgment of the trial court is affirmed.

Affirmed.
      (gssPor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    FULLER v. CAMERON.
    (No. 8094.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 18, 1919.
    Rehearing Denied March 8, 1919.)
    1. Sales @=130(4) — Damages on Rescission. Where buyer’s right to rescind for misrepresentations is established, the court should not only declare the contract void ab initio, but also to award the buyer judgment for all money paid on the contract, a cancellation of all unpaid liability, and all special or consequential damages or expense incurred by reason of the misrepresentation.
    2. Trial @=>368 — Submission on Agreed Statement oe Facts — Conflicting Facts.
    Where a case is submitted to court upon an agreed statement and facts prepared under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1949, and facts stated are in conflict, the court is authorized to resolve the contract according to the dictates of his judicial conscience.
    3. Sales @=^38(1) — Misrepresentations—Rescission of Sale — Liability of Buyer.
    One buying automobile upon misrepresentation that it would give satisfaction in the jitney service, who was able to use car only 13 out of 21 days following purchase, was entitled to a rescission.
    4. Appeal and Error @=>931(3) — Presumptions — Finding—Issues Not Passed Upon.
    The rule that every issue, whether submitted or not, necessary to support judgment, should be deemed to have been found by the court in such manner as to support a judgment is inapplicable to an issue in support of which there is no evidence.
    Appeal from Dallas County Court; T. A. Work, Judge.
    Action by Tom Fuller against R. L. Cameron. From the judgment rendered, plaintiff appeals.
    Reversed and rendered for plaintiff.
    Emmett Thurmon, of Dallas, for appellant.
    Houston Wood, of Dallas, for appellee.
   RASBURY, J.

Appellant sued appellee for rescission of a contract for the purchase of an automobile, the cancellation of a note given in part payment thereof, the recovery of $150, the cash payment thereon, and $65 consequential damages. The relief sought was grounded upon alleged misrepresentations by appellee inducing the purchase.

Appellee, in answer to the suit, denied generally the charge of misrepresentation, and specially pleaded and sought an affirmance of the contract with judgment for the unpaid balance on the debt, foreclosure of lien given to secure payment of the same, as well as for judgment for $102.75 representing the cost of certain repairs to the machine made by appellee after the purchase at the alleged special request of appellant, etc. The case was submitted to the court upon an agreed statement of facts prepared under the provisions of article 1949, Vernon’s Sayles’ Civil Stats. The substance of the facts agreed' upon are these: Appellant purchased an automobile from appellee for the agreed sum of $750, paying cash thereon $150, and executing his promissory note for $600 for the balance. The car was bought for use in the “jitney” service, and appellee represented that it was in condition to give satisfaction in that respect, upon which representation appellant relied, and by reason of which he was induced to purchase the automobile. The representation that the car was in condition to give satisfaction in the “jitney” service was not true when made, and was known to be untrue by appellee, or he should reasonably have known it. Appellant discovered the unfitness of the car about a week after he purchased same. Appellant retained the car 21 days before returning it, but returned same in a reasonable time. Appellant used the car in the jitney service for 13 days, and was unable to use it for 8 days. The 8 days lost were reasonably of the value of $40. Appellant necessarily expended $15 for a clutch for said car, and lost time in that connection of the reasonable value of $10. At the time appellant returned the car to appellee its reasonable market value was $400. Appellee, after expending $102.75 in repairs of the car, sold it for $600, retaining the $150 cash payment on the car and appellant’s note for $600.

Upon submission of the ease to the court on the facts recited judgment was entered canceling appellant’s note for $600, and rendering judgment for appellee for $37.75, from which this appeal was perfected.

Upon the various assignments of error presented by appellant we have reached the conclusion that the case should, in the light of the agreed and undisputed facts, be reversed and judgment rendered for appellee as hereinafter specified.

Appellant sued to rescind the contract of purchase on the ground of misrepresentation, inducing the purchase. On that issue appellee denied the misrepresentation, and affirmed the contract, and sought the relief authorized thereby. It then became solely a question of fact upon the issue so raised. If the facts authorized a rescission it was the duty of the court to hold the contract of purchase void ab initio and the rights of the parties to be the same as if no contract.had ever been made. Wintz v. Morrison, 17 Tex. 372, 67 Am. Dec. 658; Hunt County Oil Co. v. Scott, 28 Tex. Civ. App. 213, 67 S. W. 451. When the right to rescind was established, it was the further duty of the court to award appellant judgment for all money paid on the contract, a cancellation of all unpaid liability, and all special or consequential damages or expense incurred in respect to the contract as the result of the misrepresentation. Holland v. Western Bank & Trust Co., 56 Tex. Civ. App. 324, 118 S. W. 218, 119 S. W. 694. If the facts were in conflict, the court was authorized, of course, to resolve the conflict according to the dictates of his judicial conscience. Here, however, the facts are not in conflict. They have been stated as agreed to, and disclose every fact necessary to the relief sought by appellant, and none authorizing any other judgment. But the court did not, by its judgment, grant the relief sought by appellant and authorized by the facts. The judgment itself merely cancels the $600 note of appellant, and awards appellee judgment for $37.75; and while the record does not disclose on what basis the court proceeded in entering the judgment it did enter, the judgment is nothing less than an affirmance of the contract.

Obviously, the court, in reaching judgment, charged appellant with $750, the sale price of the automobile, and $102.75, the cost of repairs made after the return of the car, or a total of $852.75. Against the foregoing charges the court allowed as credits the cash payment of $150, the amount secured on resale of $600 and appellant’s damages of $65, or a total credit of $815. The difference between the debit and credit items is $37.75, in favor of appellee, and is the amount of the court’s judgment. The agreed statement contains no facts which will support such judgment. Counsel argues, however, that every issue, whether submitted or not, necessary to support the judgment, should be deemed to have been found by the court in such manner as to support the judgment. The rule, of course, proceeds on the assumption that the record contains evidence which will support the issues not found, and the difficulty in the present case is that there is no such evidence, and the rule is as a consequence of no controlling force.

The judgment will be reversed and the judgment here rendered for appellant, canceling the note for $600 given in part payment of the automobile, and for $215, the cash paid on the car, and the consequential damages proven, together with all costs in this court and the court below.
      @=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    JARRATT v. McCARTY.
    (No. 7626.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 12, 1918.
    Rehearing Denied Jan. 23, 1919.)
    1. Judgment <S=>17(8) — Pbocess to Suppokt— Recowvention — “Suit.”
    Where plaintiff’s action against defendant for breach of contract was, on the latter’s plea of privilege, transferred to the county of defendant’s residence, held that, where no citation on defendant’s subsequently filed plea of reconvention was served on plaintiff, a judgment cannot be rendered for defendant against plaintiff who failed to appear when the case was called for trial in the county to which it was transferred, for a plea in reconvention or a cross-bill is a suit within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1885, declaring that no judgment shall in any case be rendered against any defendant unless upon service of process, etc.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Suit.]
    2. Process <&=»4 — Necessity—Reconvention.
    While plaintiff in an action for breach of contract is charged with notice of any pleading filed by defendant in answer to his claim, plaintiff is not required to anticipate and take notice of any claim which defendant may assert against him by plea in reconvention.
    Appeal from Colorado County Court; E. B. Mayes, Judge.
    Action by C. D. Jarratt against A. M. McCarty. From a judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    Norman, Shook & Gibson, of Rusk, for appellant.
    Wurzbaeh & Wirtz, of Sequin, for appellee.
   PLEASANTS, C. J.

This suit was brought by appellant in the county court of Cherokee county to recover damages for the alleged failure of appellee to comply with a contract made by him with appellant for the sale of a carload of potatoes. At the time of filing this petition plaintiff sued out a writ of garnishment against the First National Bank of Jacksonville, seeking thereby to subject to the payment of plaintiff’s claim an alleged indebtedness of said bank to defendant.

Appellee appeared in said court and presented a plea of privilege to be sued in Colorado county, the county of his residence, and, subject to said plea, answered by general and special exceptions to plaintiff’s petition, and by general and special denials of the plaintiff’s allegations. This answer contained no plea in reconvention, and aslred for no affirmative relief of any kind.

Upon the hearing of the plea of privilege on March 12, 1917, it was sustained by the court and the suit transferred to the county court of Colorado county. The record from Cherokee county was filed in the county court of Colorado county on March 16, 1917.

Defendant, on April 9, 1917, in term time and with leave of the court, filed an amended answer which, in addition to the exceptions and denials in his original answer, contained a plea in reeonvention alleging that the writ of garnishment was wrongfully, illegally, and maliciously sued out by plaintiff, and praying for the recovery against plaintiff of actual and exemplary -damages in the sum of $500 and $400, respectively.

No citation was issued upon this plea in reconvention, and no notice of its filing was served upon plaintiff.

On the 13th day of April, 1917, the cause was called for trial in the county court of Colorado county, and plaintiff failed to appear. Thereupon the court proceeded to hear the ease, and rendered judgment against plaintiff on his claim for damages and in favor of defendant on his claim against plaintiff for the sum of $500, actual damages for the wrongful suing out of the writ of garnishment.

Under appropriate assignments of error appellant assails the judgment on the ground that the court below was not authorized to render judgment against him in favor of appellee on the latter’s plea in reconvention, because no citation thereon had been issued and served upon appellant, and he had not waived nor accepted service, and had made no appearance in said cause.

We think the. assignments should be sustained. Our statute declares:

“No judgment shall, in any case, be rendered against any defendant unless upon service, or acceptance, or waiver of process, or upon appearance by the defendant.” Article 1885, Vernon’s Sayles’ Civil Statutes.

It is well settled by the decisions of our Supreme Court that a plea in reconvention or a cross-bill is a suit or case in the purview of this statute. The defendant in the suit in which the plea in reconvention is filed becomes the plaintiff in the case made by the plea, and the plaintiff in the suit is the defendant in such case. The appellant in his petition in this case called the defendant into court to answer a claim for damages for breach of contract for the sale of a carload of potatoes. Plaintiff was charged with notice of any pleading of defendant in answer to plaintiff’s claim, but was not required to anticipate and take notice of any claim that defendant might assert against him in said suit. The rule which requires service of notice to defendant of a new cause of action set up by the plaintiff in an amended petition applies with equal force in favor of the plaintiff when the defendant, by a plea in reconvention or cross-bill, sets up new matter not embraced in his defensive pleading and seeks affirmative relief therein. Harris v. Schlinke, 95 Tex. 88, 65 S. W. 172.

We think the case cited determines the question presented by this appeal in appellant’s favor, and cannot agree with appellee that it tends to sustain the judgment of the trial court. The fact that in the opinion in the Harris Case the court notes the exception to the rule as to sureties upon bonds given to secure ordinary process does not sustain appellee’s contention that the exception also exists as to the plaintiff when the plea in reconvention is for damages for wrongfully suing but the process.

The exception as to sureties on injunction and other statutory bonds given to secure the issuance of process is predicated upon the long-settled construction of the statute regarding such bonds, that such statute contemplated that the sureties should be held liable for any damages caused by suing out the process without being made a party to the suit or being served with notice of the defendant’s claim for damages. By the terms of the bond the sureties assume liability for any damages caused by plaintiff’s wrongful use of the process, and any judgment rendered against the plaintiff for such damages can be also rendered against them; but it does not follow from this rule that the statute before quoted will not protect the plaintiff in such suit against a judgment which was rendered against him without service, acceptance, waiver of process, or appearance in the case made by the defendant’s claim for damages.

We are of opinion that the judgment of the trial court should be reversed, and the cause remanded, and it has been so ordered.

Reversed and remanded.
      ®=sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    MORRISON v. STATE.
    (No. 5334.)
    (Court of Criminal Appeals of Texas.
    March 5, 1919.)
    1. Witnesses i&wkey;337(6) — Cross-examination-Prior Prosecution — Admissibility.
    In prosecution for failure to support wife and children, it was competent on cross-examination of defendant, as affecting his credibility, to show that he had been prosecuted for adultery; adultery being a misdemeanor involving moral turpitude.
    2. Criminal Raw i&wkey;722% — Argument oe Counsel.
    In prosecution for failure to support wife and children, remarks of prosecuting attorney, referring to defendant as living in adultery with another woman, while his children at home were barefooted and cold, held, under the evidence, not to transcend the limitations upon a legitimate argument.
    Appeal from Tarrant County Court; Hugh R. Small, Judge.
    Early Morrison was convicted for failure to provide for the support and maintenance of his wife and children, and appeals.
    Affirmed.
    Mays & Mays, of Et. Worth, for appellant.
    E. A. Berry', Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction is for unlawfully, willfully, and without just cause deserting, refusing, and neglecting to provide for the support and maintenance of the wife and children of appellant.

He had a wife and four children, one 16, one 11, one 9, and one 6 years of age. The evidence showed failure to support them. On cross-examination of the wife, the appellant proved hy her that she had told him that she did not love him, and did not want to live with him, and was willing for him to have a divorce. She testified on redirect examination that he had sued for divorce because she had charged him with being untrue; that the reason “I thought that was because he boarded with this woman and stayed there with her. He was not living with me at the time.” There was evidence that the appellant’s wife and children received aid of charitable institutions and that their circumstances were such as to require it. Members of the associations testified that they had visited the family; that they had found the children on a cold day wearing slippers with holes in them; that they bore the appearance of being in destitute circumstances, and claimed to be. The wife took in washing, and thé members of the family were described as being hungry on several occasions.

Appellant testified on direct examination that he had filed suit for divorce; that his wife fussed, cursed him, and told him she did not love him. On cross-examination he said that she had accused him of improper relations with a certain woman; that he had been arrested for adultery with the woman mentioned; that his wife caused the complaint to be made against him. The cross-examination concerning the charge of adultery was objected to as within the rule inhibiting the proof of other independent offenses not involving moral turpitude. We are of opinion that the record does not sustain this contention. Adultery being a misdemeanor involving moral turpitude, proof of prosecution therefor was admissible on cross-examination to affect the credibility of the appellant as a witness. Sexton v. State, 48 Tex. Or. R. 498, S8 S. W. 34S.

Nor do we think that the remarks of the prosecuting attorney, referring to the appellant as living in adultery with another woman while his children were at home barefooted and cold, transcends the limitations upon a legitimate argument. The appellant did not deny in his testimony that he was living in adultery as charged by his wife, and there were circumstances proved which would at least be the proper basis for an argument drawing that inference. There was also testimony touching his failure to provide for his children, such, we think, as would not characterize the argument referring to them as barefooted and cold as one so obviously harmful as to require a reversal, in the absence of a request for its withdrawal by special charge.

The judgment is affirmed.
      ig=sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P.' J.

text:
    GONZALES v. STATE.
    (No. 5332.)
    (Court of Criminal Appeals of Texas.
    March 5, 1919.)
    Criminal Raw <&wkey;1124(3) — Review — Matters Depending upon Facts.
    Matters presented by motion for new trial cannot be reviewed in the absence of the testimony, where they relate to and depend upon the facts.
    Appeal from Criminal District Court, Cameron County; Walter E. Timón, Judge.
    Porfirio Gonzales was convicted of receiving and concealing stolen property, and he appeals.
    Affirmed.
    E. A. Berry, Asst. Atty. Gen., for the State.
   DAVIDSON, P.' J.

Appellant was convicted of receiving and concealing stolen property, his punishment being assessed at two years’ confinement in the penitentiary.

There were two special charges asked, one of which was given and the other refused. The other matters presented by the motion for new trial cannot be reviewed without the testimony, as they relate to and depend upon the facts. The evidence is not before the court; it does not accompany the transcript.

The judgment is affirmed. '


author: LATTIMORE, J.

text:
    EDWARDS v. STATE.
    (No. 5342.)
    (Court of Criminal Appeals of Texas.
    March 5, 1919.)
    1. CRIMINAL Law <&wkey;i097(4) — Appeal-Insufficiency or Evidence — Statement of Pacts.
    The Court of Appeals cannot pass on the question of, the insufficiency of the evidence, where there is no statement of facts. .
    2. Intoxicating Liquors &wkey;>239(9) — Criminal Prosecution — Instructions.
    A contention that the court failed to charge affirmatively that prohibition was in force when the offense was committed is without merit, where the charge, filed in November, 1918, states that the sale of liquors has been prohibited in the county since the spring of 1910.
    Appeal from Criminal District Court, Bowie County; P. A. Turner, Judge.
    T. S. Edwards, Jr., was convicted for violation of the local option law, and he appeals.
    Affirmed.
    E. A. Berry, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

In this case appellant was convicted in the criminal district court of Bowie county for violation of the local option laws, and his punishment fixed at one year’s confinement in the penitentiary.

The case is before us on appeal without statement of facts or bill of exceptions. The motion for new trial raises but two questions, to wit, the insufficiency of the evidence, and also that the court erred in failing to charge affirmatively that prohibition was in force when the offense was committed.

We cannot pass upon the first question raised because there is no statement of facts. Dpon the second, we find upon examination of the court’s charge that in the very first paragraph thereof the court stated, “The sale of intoxicating liquor has been prohibited by law in Bowie county, Tex., since the spring of 1910.” This charge was filed on November 13, 1918, and seems to negative the second contention made by appellant.

There being no error in the judgment of the lower court, the same is affirmed.
      <©=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MITCHELL v. STATE.
    (No. 5274.)
    (Court of Criminal Appeals of Texas.
    March 5, 1919.)
    1. Criminal Law <&wkey;7&2(l) — Homicide <&wkey; 301 — Defense of Son — Instruction on Excessive Force.
    In prosecution for murder, defendant setting up that he acted in defense of his son, deceased having insulted the son and put his hand to his hip, when defendant struck and killed him with a breast yoke, it was improper to instruct on the law of excessive force; charge relating to an issue not raised by evidence, and calculated to impress jury with idea that, in the opinion of the court, force used was excessive.
    2. Criminal Law <&wkey;448(ll) — Evidence—Relations of Parties.
    In prosecution for murder, defendant setting up that he acted in defense of his son, evidence that parties did not seem on good terms, and that deceased seemed to be in a good humor, was admissible.
    3. Criminal Law &wkey;1144 (18) — Appeal—Denial of New Trial — Presumptions Supporting Action of Court.
    Court of Criminal Appeals is not in position to pass on correctness of ruling of trial court in denying defendant’s motion for new trial based in part on newly discovered evidence, where evidence which influenced action of court is not preserved by bill of exceptions or statement of facts; presumption being that, if affidavits attached to motion were used in evidence, they were met by controverting facts supporting court’s action.
    Appeal from District Court, Limestone County; A. M. Blackmon, Judge.
    W. H. Mitchell was convicted of murder, and appeals.
    Reversed.
    J. A. Tucker, Wm. Kennedy, Jas. Kimbell, and W. T. Jackson, all of Groesbeck, for appellant.
    Callicutt & Johnson, of Corsicana, J. E. Bradley, of Groesbeck, and E. A. Berry, Asst. Atty. Gen., for the State..
   MORROW, J.

Appellant was convicted of the murder of Arthur Jordan.

The homicide resulted from a blow with a breast yoke inflicted upon the deceased by the appellant. The theory arising from the state’s testimony was that, while the deceased was in a quarrel with the appellant’s son, the appellant made the attack which resulted in the homicide, preceded by no demonstration on the part of the deceased threatening injury to the son of appellant. The appellant’s theory, supported by his own testimony and that of several of his witnesses, was that the deceased was armed with a pistol and had provoked a quarrel with appellant’s son, stating, with an oath, that lie was going to kill him, immediately followed by a demonstration indicating that he was about to draw his weapon, and that the appellant going hurriedly to the rescue of his son, picked up a breast yoke, and struck one blow, with the intent only to save his son from injury. The parties were on the premises of the deceased at a gathering at about 3 o’clock in the morning. Appellant claimed that he was out in a pasture in an automobile for the purpose of smoking when the deceased came out and began a difficulty with a witness named Walts in which the deceased made a remark to the •effect that he was in possession of a pistol; shortly thereafter the deceased engaged in abusive language towards appellant’s son, and appellant got out of the car to prevent a difficulty between them; that some one else interfered, and he, thinking the difficulty had ended, started back to a wagon to lie down, when he heard the deceased cursing, and, looking back, heard him say to appellant’s son, “You God damn long-legged-son of a bitch, I am going to kill you”; that appellant then started toward them, ran over a breast yoke, picked it up, and struck the deceased. At the time he struck the hand of deceased was on his hip, he was near the appellant’s son, and the appellant, believing that his son was about to be killed, struck the blow to protect him.

Several witnesses testified that the deceased was armed with a pistol, some of them indicating that he had it1 in his hand at the time appellant struck him. One of these, appellant’s son, testified that the deceased approached him, called him a “long-legged son of a bitch,” and said, “I am going to kill youthat it was nighttime, but that he saw in his hand what he took to be a gun. He and deceased were about three or four feet apart, and in a few seconds after the remark was made the appellant struck the deceased while he was in the act of using ¡his pistol.

The court, in connection with his charge on self-defense, gave the following:

“As heretofore instructed, a reasonable apprehension of death or of serious bodily injury to defendant’s son at the hands of the deceased, Arthur Jordan, will excuse the defendant in using all force necessary to protect his son from death or serious bodily injury, but you are further instructed that the defendant was authorized to use only such force as was necessary, and no more force than was necessary, to prevent the death or serious bodily injury of his son, and would not be justified in proceeding beyond the point where danger to his said son existed, as viewed from his standpoint at the time he acted.”

Exception was made to this charge in a timely manner and is properly reserved. It has often been declared that under such circumstances as those detailed it is improper to instruct the jury on the law of excessive force for the reason that it relates to an issue not raised by the evidence and is calculated to impress the jury with the idea that in the opinion of the court the force used was excessive. Branch’s Criminal Law, § 451; Branch’s Ann. Pen. Code, p. 1071, § 1920. The reasons controlling this position are succinctly and accurately stated by Judge Ramsey in Carson v. State, 57 Tex. Cr. R. 396, 123 S. W. 590, 136 Am. St. Rep. 981, and by Judge Davidson in Huddleston v. State, 54 Tex. Cr. R. 93, 112 S. W. 64, 130 Am. St. Rep. 875. We deem it unnecessary to repeat them.

The propriety of receiving evidence that the parties did not seem on good terms, and that the deceased seemed to be in a good humor, where they are relevant to the issues involved, has often been recognized. Bennett v. State, 39 Tex. Cr. R. 648, 48 S. W. 61; Logan v. State, 53 S. W. 694; Owens v. State, 52 Tex. Cr. R. 69, 105 S. W. 513; Gablor v. State, 49 Tex. Cr. R. 627, 95 S. W. 521; Branch’s Ann. Pen. Code, § 132. The complaint of this evidence is not sustained.

It appearing from the record that the appellant’s motion for new trial, based in part upon newly discovered evidence, was controverted, and that the trial court heard evidence thereon, this court is not in a position to pass upon the correctness of his ruling in deciding the issue against appellant, where the evidence which influenced the action is not preserved by bill of exceptions or statement of facts. On appeal the presumption, under the circumstances, is that, if the affidavits attached to the motion for new trial were used in evidence, they were met by controverting facts sufficient to support the trial court’s action. Lopez v. State, 208 S. W. 167; Reyes v. State, 196 S. W. 532, and cases listed.

Tire error in the charge mentioned requires a reversal of the judgment, which is ordered.


text:
    RUTHERFORD v. STATE.
    (No. 5312.)
    (Court of Criminal Appeals of Texas.
    March 5, 1919.)
    1. Receiving Stolen Goods <&wkey;3 — Elements of Offense — Knowledge.
    One who receives property without knowing at the time that it was stolen, but who thereafter comes into possession of such knowledge, and conceals or destroys the property with intent to aid the thief to escape punishment, or with intent to deprive the owners of the property, is guilty of receiving and concealing stolen property.
    2. Receiving Stolen Goods <&wkey;l — Value of Pbopekty.
    In order to make receiving stolon goods a felony, it must be shown not only that the property lost was of the value required by statute, but that which actually came into the possession of accused was of sufficient value to make it a felony.
    3. Receiving Stolen Goods &wkey;>8(3) — Evidence — Sufficiency.
    In a prosecution for receiving and concealing stolen property, evidence held not sufficient to show that the property concealed was of the value of $50 or over, so as to make the offense a felony.
    Appeal from District Court, Marion County; J. A. Ward, Judge.
    Ina Rutherford was convicted of receiving and concealing stolen property, and she appeals.
    Reversed and remanded.
    Sehlute'r & Singleton, of Jefferson, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

In this case appellant was tried in the district court of Marion county for the offense of receiving and concealing stolen property, and upon conviction was punished by confinement in the state penitentiary for two years.

It appears undisputed from the evidence that three negro men took a trunk belonging to a Mrs. Kirkland in such manner as that the taking constituted theft. After breaking open said trunk, they divided its contents into “three piles,” and each took one pile. The names of the negro men were Roy Calvin, Buddie Jackson, and one Fox. Fox seems never to have been apprehended, and the record does not disclose what became of his portion of the loot. Jackson was arrested, as was also Calvin, and both seem to have pleaded guilty. There is nothing in the record to show what was in the “pile” of either Jackson or Fox, nor is it shown what part of the property was recovered by the owner. The property was taken at night, and about 7 o’clock the next morning Calvin came to the place where appellant, a negro woman whose husband was dead, lived witb her four children and her father. Calvin brought with him a bundle wrapped in a quilt, which he asked appellant’s permission to leave in a certain box, in which he placed the bundle wrapped up in the quilt. Later in the day the sheriff came to the house, looked into the box, saw the quilt, and asked appellant about it, and she said it was hers; a fact, however, which she denied. After the sheriff departed Buddie Jackson, one of the original takers, who lived next door to appellant, was at her house, and she told him what had occurred, and of the fact that Calvin had brought this bundle to her house, and asked hiin if he supposed it was part of the things that were taken. He seems to have looked at it and told her that he expected it was, and that she had better destroy it, and also advised her to burn it, and the record discloses that shortly thereafter the property was carried into the yard and burned, but just exactly by whom there is some contradiction, which is immaterial. The only article which was not destroyed appeared to-be the quilt in which the other things were brought to appellant’s home, and this was later identified by Mr. Kirkland, the husband of the owner of the trunk. Appellant was convicted of a felony, and in order to sustain this verdict the state must have shown beyond a reasonable doubt, not only that she received and concealed stolen property, but that the aggregate value of such property was over $50.

We have no doubt but that one who receives property without knowing at the time that it was stolen, but who thereafter comes into possession of such knowledge, and after becoming aware of such fact conceals or destroys the property with intent to aid the thief to escape punishment or detection, or with intent to deprive the owner of the same, would be guilty of the offense herein charged; but, as stated above, in order to constitute such offense a felony it must be shown not only that the property lost was of sufficient value, but that which actually came into the possession of the party accused was of sufficient value to make it a felony.

In this case the state used as witnesses Roy Calvin, Buddie Jackson, two of the original takers of the property, Genevieve Jackson, the wife of Buddie Jackson, and one Elijah James, who was a boarder in appellant’s house, and seems to have aided in disposing of the property. Roy Calvin testified as to what property he carried to the appellant’s home, describing it on both direct and cross examination. Genevieve Jackson, the wife of Buddie Jackson, also testified to having seen the property while in appellant’s house, and she described the same also, and a careful comparison of their testimony shows that a great deal of the property mentioned in the indictment was never carried to appellant’s home; in fact we think it is a fair deduction, resulting from such examination of their testimony, to say that the property traced into appellant’s possession and set out in the indictment was a lace scarf, some unidentified lace, six napkins, one sheet, one handkerchief case, one ball of wool thread, one bedspread, some table covers (number not shown), two knitting needles, one towel, one dresser scarf, and one centerpiece.

Mr. Kirkland, husband of'the owner of the trunk, was the only witness as to values. He was asked specifically as to the value of each of the articles set out in the indictment, and as to those which were shown by the witnesses Roy Calvin and Genevieve Jackson to have been carried to appellant’s home, we reproduce here his testimony:

“I am acquainted with that lace scarf that was lost, but really I could not say whether it was worth $12 or more, or it might be a little less; X would judge a lace scarf like that would be worth from $7 to $10 or $12, or maybe more than that. X don’t know exactly what the handmade lace consisted of, or how much there was; she had a whole lot of lace, but I don’t know how much was in that trunk; there was a whole lot of lace in the trunk which was worth $10 or more. The value of the lace that was lost was $10 or $15. All of the items that are charged in that indictment were lost and a good deal besides that. As to the six linen napkins, they were 27" x 27" or 24" x 24"; they would cost from $7 to $10 a set; $7.50 is a reasonable price for those six napkins. * * * I was acquainted with the cash market value of that linen sheet; you can’t buy a linen sheet for less than $4 or $5. One handkerchief case was lost, but I am not acquainted with the value of it; I think my wife bought it at Christmas time. It had some value, and I think it would sell for $2 or $2.50. I don’t know about the picture. There were two balls of woolen thread, which cost 50 cents a ball; they were lost. I ' don’t know about the lace scarf; it might have been a lace piece of some kind. * * * $15 is cheaper than you could duplicate that same bedspread to-day for; it was a large size; one of those heavy work flowered counterpanes. The five table covers marked at $0 a piece'were worth more than you have got them down for; they were worth more than $6 a piece; you can’t get good table damask for less than $2 or $2.50 a yard. There were six of them, and they were made up. There was some silk thread lost; but X don’t know whether it was in that or not. I know my wife had some knitting needles, but I don’t know where she had them; my wife paid $1 for them. * * * The six plain towels, marked at $3, were in there, and I suppose they were worth $3.50, or 75 cents a piece, that size towel and that kind. * * * There was a dresser scarf which was used in front of her dresser; I suppose it was worth $3 or $4; I don’t know exactly, but I think that would be the right value for it. There was a centerpiece, the cash market value of which was $5 or $6⅞ it was one of those cro- \ cheted pieces for a library table, and I suppose it was worth $5 or $6.”

This is all the state’s testimony as to the value of the property which was carried to appellant’s home. It will be observed from reading said testimony that the witness says of the centerpiece, “I suppose it was worth $5 or $6;” and that he says of the dresser scarf, “I suppose it was worth $3 or $4; I don’t know exactly, but I think that would be.the right value for it;” and of the towels, “I suppose they were worth $3.50, or 75 cents a piece; that size towel and that kind;” and of the knitting needles, “I know my wife had some knitting needles, but I don’t know where she had them; My wife paid $1 for them;” and of the bedspread the witness said, “$15 is cheaper than you could duplicate that same bedspread to-day for; it was a large size, one of those heavy work flowered counterpanes;” and of the sheet he said, ‘T was acquainted with the cash market value of that linen sheet; you can’t buy a linen sheet for less than $4 or $5.” As to the napkins he say, “They would cost from $7 to $10 a set; $7.50 is a reasonable price for those six napkins.” As to the lace he says, “I don’t know exactly what the handmade lace consisted of, or how much there was; she had a whole lot of lace, but I don’t know how much was in that trunk; there was a whole lot of lace in the trunk which was worth $10 or more. The value of the lace that was lost was $10 or $15.”

Taking the whole of the articles shown by Roy Calvin and Genevieve Jackson to have been traced into the possession of appellant, and giving them even the supposed values shown by the testimony of the witness Kirkland, would barely make the aggregate value of the lot more than $50. But we. cannot sanction such proof as this. The witness Kirkland “supposed” the value of the centerpiece, of the dresser scarf, of the towels, to be such and such a sum. He says the bedspread could not be duplicated for $15; that the linen sheet cannot be bought for less than $4 or $5; that -his wife had a lot of handmade lace which was lost, which was worth $10 or more; that the lace scarf might be worth $12, or more or less; he really could not say; he judges it worth from $7 to $10 or $12, or maybe more than that.

Appellant is only an ignorant negro woman, but this court will subject the record in her case to the same legal test as to the sufficiency of the proof that it would of any other citizen convicted of crime. Evidence as to the value of the property that was claimed to have, been carried to appellant’s home is not shown with anything like the sufficiency required by law. The valúe of the property testified to by the witness with any reasonable degree of certainty falls far short of $50.

Eor the reason that the evidence does not show with sufficient certainty the value of the property carried to appellant’s house to be enough to make it a felony, the judgment of the lower court is reversed, and the cause remanded.
      <§z=?For other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes


text:
    HOFFMAN v. STATE.
    (No. 5340.)
    (Court of Criminal Appeals of Texas.
    March 5, 1919.)
    1. Homicide <&wkey;304 — Accidental Homicide —Instructions.
    In prosecution for homicide, based upon defendant’s negligent operation of an automobile, held, under the evidence, that court erred in failing to either give special requested charge accurately applying law of accidental homicide or embodying its substance in main charge.
    2. Witnesses <&wkey;372(2) — Inteeest oe Prosecuting- Witness — Cross-Examination.
    In prosecution for homicide, based upon defendant’s negligent operation of an automobile, resulting in collision with buggy in which deeéased was riding, it was proper, on cross-examination of deceased’s husband, to elicit testimony showing that a suit brought by him for damages for wife’s death was pending.
    3.” Homicide &wkey;>142(7) — Variance.
    In prosecution for negligent homicide, evidence held not to show a variance in that allegation was that defendant ran his automobile into and hit the person of deceased, while the proof showed that her person was struck by a part of the buggy, with which the automobile collided.
    4. Indictment and Information <&wkey;171 — Variance.
    The proof must correspond with the material allegation.
    Appeal from Hill County Court; R. T. Burns, Judge.
    Isadore Hoffman was convicted of negligent homicide, and he appeals.
    Reversed and remanded.
    J. E. Clarke and Dupree & Crenshaw, all of Hillsboro, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction is for negligent homicide.

The information charged:

That the appellant, while engaged in the performance of an unlawful act, “to wit, was then and there engaged in the driving and operating a motor vehicle upon a public highway, to wit, the public road known as the Abbott and Hillsboro road leading from Abbott, in Hill county, to Hillsboro, in Hill county, Tex., not then and there in a careful and prudent manner, and at a greater rate of speed than was reasonable and proper, having regard to the traffic and use of said highway, and at such rate of speed as to endanger the life and limb of persons and the safety of property, and in a reckless and careless manner, and on the wrong side of said public highway, and while he was driving and operating said motor vehicle as aforesaid, did then and there without first looking to see if any person was likely to be injured thereby, and negligently and carelessly ran into and hit the person of Mrs. Will Smith.”

The prosecuting witness, Will Smith, and his wife were in a buggy, and appellant was in an automobile at nighttime. This witness testified that he was driving on the right-hand side of the road, and saw the appellant coming from the opposite direction, and that when he saw appellant was not going to pull over that he pulled as nearly out of the road as he could get, and the front wheel of appellant’s car went on the inside of the front wheel of the buggy, and the center of the radiator of appellant’s car hit the front wheel of the buggy, snatching the horse loose from the buggy; that the horse snatched the witness out, or he fell out, and the front wheel) of the buggy where it was broke hit his wife in the side, and she fell out in the ditch away from the car. The witness estimated the speed of the car at 30 miles per hour.

The appellant testified that he was driving the car with a flat tire; was on the right-hand side of the road; that when he saw Smith in his buggy they were near together, and Smith was on the wrong side of the road. He had his wife in his lap, and he turned his horse just before they came together, and the front wheel of the buggy struck the rear wheel of appellant’s car, which was traveling slowly, about 10 miles an hour. He said that Smith told him immediately after the accident that he had bis wife on his lap, and could not see to drive, and to excuse him; that it was his fault as much as appellant’s. A passenger in the car testified that when they came in sight of the buggy that the car was on the right-hand side and the buggy on the left-hand side, the car going north and the buggy going south. Another witness who was in the car said that—

“When we seen we was going to have a collision we were fixing to go more in the ditch, and the negro come in his buggy and jumped up on us. When we first saw him we turned out a little bit to the right, and he turned his horse upon us, and our left back wheel hit his right front wheel. Just before we struck him he was turning towards us; went about the length of the automobile. When we struck the buggy the horse got scared, and he jerked right in the fence. Smith said, T didn’t aim to turn in that way and cause the wreck.’ He said he turned into the automobile, and to excuse him; that his wife was on his lap, and he couldn’t drive good.”

Other witnesses for the defendant gave ■substantially the same evidence.

Appellant excepted to the court’s charge on account of the failure to embody therein the phase of the law which would have excused the appellant from liability if the injury was the result of accident or misfortune. The court declined to correct his charge in this respect, and also refused a special charge requested by appellant which accurately applied the law of accidental homicide to the facts in the case, and under the evidence we think the court fell into error in failing to either give the special charge requested or embody its substance in the main charge. Owens v. State, 62 Tex. Cr. R. 129, 136 S. W. 1057; Calhoun v. State, 71 S. W. 279; Carr v. State, 48 Tex. Cr. R. 287, 87 S. W. 346; Hamilton v. State, 64 Tex. Cr. R. 177, 141 S. W. 966. If the jury believed the evidence of the appellant and his witnesses to the effect, in substance, th^it the injured party was on the wrong side of the road, and that appellant was on the proper side of the road and driving at a moderate rate of speed, and the injured party suddenly turned his horse so as to bring his buggy in contact with appellant’s car while appellant was trying to avoid accident by turning his bar further to the right side of the road, they would have been justified in concluding that the injury was not due to negligence on the part of appellant, but was the result of accident or misfortune.

The prosecuting witness, Smith, having testified in behalf of the state to a state of facts showing negligence on the part of the appellant in causing the injury, was asked on cross-examination if it were not a fact that he had brought suit to recover damages resulting to him from the death of his wife from the injuries received in the collision, which suit was pending at the time of the trial of this cause. His answer, which would have been an affirmative one, was excluded upon the objection of the state. His answer would have gone to show the jury his animus and interest in testifying to a state of facts showing culpability of the appellant in bringing about the collision; it was within a class of testimony which is always regarded as of value in enabling the jury to pass upon the credibility of the testimony given, and the weight which they will attach to it. Mr. Branch, in his Ann. P. C., deduces from various decisions of this court which he ■cites the statement that—

“The motives which operate upon the mind •of the witness when he testifies are never regarded as immaterial or collateral matters. * * * The defendant is entitled to show animus and prejudice on the part of the state’s witness towards him, and its extent, and in such examinations great latitude is allowed when the object is to impeach the credit of such witness.” Branch’s Ann. Pen. Code, p. 93, § 163.

The point was made and properly reserved upon the trial that there was a variance in the allegation and proof in that the allegation was that the appellant ran into and hit the person of Mrs. Will Smith, while the proof shows that her person was not struck by the appellant’s oar, but was struck by a part of the buggy wheel. Under the evidence, we are unable to say that this position is well taken.

The proof, of course, must correspond with the material allegation. We think, however, that the circumstances attending the injury would raise the issue of fact as to the exact manner in which she received said injury, if any, as befell her. The proposition advanced by appellant that the death of Mrs. Smith is not shown to have been the result of the injury presented a question upon which, in view of another trial in which the evidence may present a different aspect, we do not feel called upon to pass.

For the errors pointed out, the judgment is reversed, and the cause remanded.
      ÉmoEor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes