author: CONNER, C. J.

text:
    TEXAS & P. RY. CO. v. JONES et al.
    (No. 8585.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 7, 1917.
    Rehearing Denied May 12, 1917.)
    1. Appeal and Error <&wkey;>1027 — Harmless Error — Reptjsal to Request.
    The refusal of a requested charge on the subject of accident in action for deceased’s death at a railroad crossing was harmless, where under the evidence and other instructions the result would have been the same had the request been granted.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4033.]
    2. Railroads <&wkey;398(4) — Injury to Person on Track — Contributory Negligence — Evidence.
    Evidence that deceased had - discovered the approaching train which killed him and ran along the track towards a cattle guard and crossing tended to show that deceased was guilty of contributory negligence.
    [Ed. Note. — For other ■ cases, see Railroads, Cent. Dig. §§ 1360, 1361.]
    3. Railroads &wkey;>398(3) — Injury to Person on Track — Precautions—Evidence.
    Evidence held sufficient to show that locomotive engineer could have reasonably anticipated that deceased might fall into a cattle guard, and that engine might overtake him before he reached the street crossing, .thus justifying- refusal of an instruction that the engineer was under no duty to attempt to stop the train until deceased fell into the cattle guard.
    [Ed. Note. — For other cases,'•see Railroads, Cent. Dig. § 1359.]
    4. Railroads <&wkey;397(9) — Injury to Person on Track — Admission op Evidence — Operation of Locomotive.
    Where plaintiff had pleaded negligence of railway company’s employés in operating train, expert evidence showing that under the circumstances it was improper to reverse the engine was admissible.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1353.]
    5. Railroads <&wkey;400(8) — Injury to Person on Track — Question for Jury — Operation of Locomotive.
    The question of whether an engineer exercised due care in attempting to stop locomotive to avoid an impending accident was for the jury.
    [Ed. Noto. — For other eases, see Railroads, Cent. Dig. § 1375.]

      6. Heath <&wkey;99(4) — Railway Accident — Excessive Damages.
    A judgment of ¿20,000 for the death of a stock dealer aged 46 years with a life expectancy of 24.6 years, who was a generous provider, and who left surviving him a wife and five children, held not to be grossly excessive, and the fact that deceased had some indebtedness or that his two oldest daughters were nearing their maturity was immaterial, since a daughter’s expectancy of pecuniary help from an indulgent father is not to be limited to the years of her minority, especially when unmarried, and in most cases her expectancy may extend up to, if not beyond, tho hour of the father’s death.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 125, 126, 129.]
    7. Judgment <&wkey;199(l) — Notwithstanding Verdiud-Special Verdict.
    Where a special verdict was rendered, the court could not render a judgment non obstante veredicto in view of Rev. St. art. 1990, making it the duty of the court to render judgment thereon unless such verdict be set aside and a new trial granted, and article 1994, providing that a judgment must conform to the pleading, the nature of the case proved, and the verdict; and the court had but two alternatives, either to set aside the verdict and grant a new trial, or to render judgment in accordance with the verdict.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 367, 374, 375.]
    8. Raítlroads &wkey;39S(l) — Sukgtciency oe Evidence to Support Verdict.
    In action for deceased’s death on tho track, evidence held sufficient to sustain a verdict for plaintiff.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1356, 1303.]
    Appeal from District Court, Denton County; C. F. Spencer, Judge.
    Suit by J. R. Jones, as executor of B. G. Bradford, and others, against the Texas & Pacific Railway Company.
    Judgment of $20,000 for plaintiffs, and defendant appeals. Affirmed.
    Head, Dillard, Smith, Maxey & Head, of Sherman, and IT. R. Wilson, of Denton, for appellant. Sullivan & Hill, of Denton, and Carden, Starling, Carden, Hemphill & Wallace, of Dallas, for appellees.
   CONNER, C. J.

This suit was instituted in the district court of Denton county by J. R. Jones, as tbe executor of B. G. Bradford, against the Texas & Pacific Railway Company, to recover damages on,account of the death of said Bradford, who was run over apd killed by one of defendant’s trains in the city of Pilot Point. That portion of the track where deceased was killed runs north and south through the city of Pilot Point It had long been used by pedestrians going to and from the business portion of the city. The deceased resided on the west side of the tracks, and had lived in Pilot Point many years. About 9:35 a. m. on the morning of November 6, 1914, he was walking north on defendant’s track, when a regular passenger train of defendant, due at Pilot Point at 9:38 a. m., approached him from the south, and in attempting to cross a cattle guard at a public street crossing h.e fell into it and was run over by said passenger train and instantly killed.

The grounds of negligence alleged were: That the train was run at an excessive rate of speed, that the employés operating the train failed to exercise ordinary care to keep a lookout for persons on the track, and that said employés discovered that- deceased had fallen into the cattle guard and realized his danger and peril, and by the use of the means at hand could, by the exercise of due care, have slackened the speed of the train sufficiently to have given deceased time to extricate himself from the cattle guard and get off the track, or to have stopped the train before reaching that point, but that they failed to use said means to avoid in-jurying and killing deceased.

The defendant answered by the general denial, a specific denial of each material allegation in the plaintiff’s petition; that the death of deceased was caused by his own negligence in continuing on the track with knowledge of the approach of the train in ample time to have left the track; that the employés operating the train saw deceased on the track and gave him warning of the approach of the train by sounding whistles and ringing the bell, and had reason to believe and did believe that he heard the warnings and could and would leave the track before the train reached him; that the deceased was not in any danger until he fell into the cattle guard, and that as soon as he fell they saw him, and realized his danger, and immediately used all the means they had to stop the train and avoid striking deceased, but could not do so; and that the deceased falling into the cattle guard was a thing that was not expected or reasonably anticipated by the employés, and his death was therefore directly and proximately caused by an accident.

The court withdrew from the jury all issues of fact as to liability except the issue of discovered peril, which he submitted in the form of special issues. The special issues with the answers of the jury thereto are as follows:

“(1) Did the engineer of the defendant railway company operating- the engine which struck the deceased, B. G. Bradford, discover and realize the dangerous and perilous situation of the deceased before the engine struck him?”

To which the jury answered: “Yes.”

“(2) If you have answered the first question in the affirmative, then you will answer the following question, to wit: After the engineer operating the engine discovered and realized the perilous and dangerous situation deceased, Bradford, was in, could he, by the use of all the means at hand, consistent with the safety of himself, the engine, and train, and persons thereon, have stopped or slackened the speed thereof and avoided killing him?”

To which the jury answered: “Yes.”

“(3) If you have answered the first question in the affirmative, then you will answer the following question, to wit: After lie discovered and realized the dangerous and perilous situation of the deceased, Bradford, did the engineer operating such engine fail to exercise ordinary care to use all the means at hand consistent with tho safety of himself, the engine, and train, and the persons riding thereon, to stop the engine and to prevent injuring said Bradford?”

To which the jury answered: “Yes.”

In addition to the special issues the court, at appellant’s request, also gaye the following instructions:

“No. 3. In connection with an explanation of questions Nos. 1, 2, and 3 in tho court’s main charge, you aro instructed that, if the deceased, Bradford, lcnew that the train was approaching, and it reasonably appeared to the engineer that he had such knowledge and could leave the track and get out of the way of the train, then tho engineer had the right to assume that he would leave the track in time to avoid being' struck by the train, and further had the right to act on said assumption and continue to run the train until such time as he actually discovered and realized that deceased either would or could not leave the track and get out of the way of the ti*ain.
“No. 4. Before you would be authorized to answer question No. 3 of the main charge of the court in the affirmative, the burden rests unon the plaintiffs to show by a preponderance of the evidence, which means the greater weight and degree of credible testimony, that the engineer operating the engine on the occasion in question discovered and realized that deceased, Bradford, was in a dangerous and perilous position, and that after such discovery and realization of the peril and danger of the deceased the engineer failed to exercise ordinary care to use all means he had at hand, consistent with the safety of the train and the passengers thereon, to stop the engine and avoid striking and injuring deceased, and, unless this is done, you will answer said question ‘No.’ * * *
“No. 6. If you find and believe from the evidence that the whistle on the engine was sounded when the train was such a distance south of the deceased as that deceased would have had time and opportunity to have left the track before it reached him, and if you further believe from the evidence that, instead of leaving the track, he remained thereon and continued to travel north with a view of getting off the track at Main street crossing, and if you further believe from the evidence that it was not until he fell into the cattle guard at Main street crossing that the engineer discovered and realized that ho was in a position of peril and danger, then the engineer was not under duty of making any effort to stop the train until deceased fell into the cattle guard.”

Upon the verdict of the jury as returned' the court entered up a judgment for the plaintiff in the sum of $20,000, apportioned as follows:

“To Mary S. Bradford, $5,000.00", to Herbert Bradford, $4.500.00; to Robert Bradford, $4,-500.00'; to Miss Florine Bradford, $1,500.00; to Miss Billie Bradford, $2,000.00; to Miss Jewell Bradford, $2,500.00.”

From that judgment the defendant has duly prosecuted an appeal.

Appellant first assigns error to the action of the court in refusing the defendant’s requested charge as follows:

“Was the death of the deceased, Bradford, the result of an accident?
“In connection with and in explanation of the above question you are instructed that by the word ‘accident,’ as used herein, is meant where a thing occurs unintentionally and without negligence of any one directly causing same.”

The issue of accident was pleaded by the defendant and in the brief of the appellant the testimony is reviewed for the purpose of showing that the issue of accident was raised by the evidence. But if it be ádmitted that the issue of accident was raised, we yet think the error of the court, if any, in refusing the requested charge, is not one which, under our rules, will require a reversal. To constitute reversible error, it must be one such as in our opinion “amounted to such a denial of the rights of the appellant as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in the case,” etc. See rule 62a (149 S. W. x) for the government of the Courts of Civil Appeals; Flynn v. Radford Gro. Co., 174 S. W. 902; Braun v. Hickman, 176 S. W. 879. Considering the requested instruction from this viewpoint,' it will be noted that, under the charge and explanation herewith given, there could properly have been no finding that the death of the deceased was the result of an “accident” without a determination that there was no negligence “of any one” directly causing the death.

One of the witnesses, Bettie Drake, who placed herself in a favorable position to witness the circumstances involved, testified that:

“He [deceased! was looking forward until he got to the cattle guard, then he looked hack over his shoulder, and kept walking and stepped into the cattle guard.”

«This with other testimony tending to show that the deceased had probably shortly before descovered the approaching train, and thereupon ran in the direction of the cattle guard in order evidently to attain the public street crossing just beyond, would tend to show that the deceased himself was guilty of negligence, under the circumstances. There was also evidence, as will be hereinafter more particularly shown, which undoubtedly tended to show that the operatives of the engine which ran over and killed the deceased were guilty of negligence after having discovered the deceased’s perilous position. The issue of appellant’s negligence after the discovery of the deceased’s perilous position was fully and fairly, as it seems to us, submitted to the jury, particularly when considered in connection with the explanatory charges requested by appellant’s counsel and given by tbe court. The issue of appellant’s negligence'thus presented was based upon and determined by the jury in the ap-pellee’s favor, as will be seen by a consideration of the special issues with the answers of the jury thereto, as hereinbefore set out. If these findings must be supported, as we will later have occasion to consider, then we are confronted with the judicially determined fact that there was at least negligence on the part of the operatives of appellant’s engine, which proximately caused the death of the deceased. It is altogether improbable, we think, that the jury would have thus found in favor of appellee under the charges submitted, and at the same time rendered a verdict favorable to appellant upon the same issue necessarily involved in the requested charge. The error therefore, if any, whatever else may be said in answer to the assignment, did not, in the language of the rule, amount “to such a denial of the rights of the appellant as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment.” The assignment will accordingly be overruled.

By another assignment appellant insists that the court should have given its requested special charge No. 7, which reads as follows:

“No duty rested upon the engineer to attempt to stop the train until deceased, Bradford, fell into the cattle guard.”

The insistence is that it appears by the “undisputed evidence” that the deceased was not in a “perilous position” until he fell into the cattle guard.

The engineer, among other things, testified, in substance, that he was sitting in his proper position on the right side of the engine in the cab keeping a lookout, and could see down the track; that he first saw deceased when he was some 250 or 275 feet from the Main street crossing, where he was killed walking between the rails going north; that at this time he, the engineer, was some 1,000 to 1,500 feet south of the deceased running at the rate of about 12 or 15 miles an hour; that he then blew the crossing whistle; could not tell whether deceased noticed the sound of the whistle at that time or not; that when the train was about 900 feet south of deceased he blew the whistle again, regular crossing whistle; blew it for the crossing, but could not tell whether deceased noticed the blowing of the whistle at that time; that he next blew the station whistle when the train was about GOO feet from the deceased; that when he blew the station whistle the deceased had gotten within 150 feet of the Main street crossing; that just after the station whistle was given tie deceased started to walk faster, which led the witness to believe that he had heard the whistle; that the train was then speeding between 12 or 15 miles an hour; that when the front of the engine got within about 200 feet of the crossing at Main street, where the deceased was killed, and deceased was within about 40 feet of the crossing, witness blew (¡lie stock whistle which is a rapid sharp toot of the whistle five or six times ; that when the stock whistle was blown deceased then started to run in the same direction he was going up the track; that when the witness blew the station whistle when deceased was- about 600 feet north of the engine he quickened his pace and began to walk faster, which made the impression on the witness’ mind that he heard the whistle and he was looking for him to get off the track; that all he had to do was to step off; that when -the stock whistle was blown and deceased did not get off the track, but started to run, witness was of the impression that the purpose of the deceased was to get off at the crossing; he ran up the track, and when he got to the cattle guard he fell in it; the engine was then about 100 feet from him when he fell into the cattle guard; that, when the deceased fell into the cattle guard, witness put the brakes immediately into emergency position, which gave all the power he had, and he then' immediately opened the sand lever, and then reversed the engine; that he made Ms best efforts and did all he could to stop the train after deceased fell into the cattle guard, but could not stop it before it struck the deceased.’

Other testimony perhaps might be cited of the same tendency, but it will be observed from the testimony of the engineer, the substance of which on this point we have stated, that the engineer must have been some 150 to 200 feet south of the deceased when the deceased heard the stock whistle and began to run up the track, presumably between the rails towards the cattle guard and crossing. The engineer says that Ms impression at the time was that the purpose of the deceased was to get off at the crossing. Other evidence was to the effect that the engineer had been engaged in operating trains over the track, at the place in question for many years, and thus must have known of the precise location and condition of the cattle guard in question. A reasonable inference is that the engineer then knew that the deceased was not going to leave the track, even though he might have been able to so do. If so, the evidence, as it seems to ns, undoubtedly was sufficient to raise the issue that the deceased from the very time he began to run up the track was in a perilous position, for the engineer and others testified that at the rate of speed the engine was traveling it would not be stopped under 300 or 400 feet. It cannot be said, we think, as a matter of law, that the engineer could not have reasonably anticipated that the deceased .might fall into the cattle guard, or that the engine would overtake the deceased before be reached the road crossing. It is also perhaps worthy of notice that in the special instruction requested by appellant and given by the court no attempt was made to restrict the jury in determining the precise moment when the engineer first discovered the deceased to be in a . perilous position. At all events, we think, under the evidence, the instructions given were preferable' to the rejected charge under consideration. .

Under appellant’s proposition under its third assignment of error it is insisted that the court erred in permitting certain witnesses to testify to the effect that, under the circumstances and conditions at the time deceased was killed, in stopping the train they would not reverse the engine, because to do so would decrease the retarding effect rather than to increase it, ior the reason that no such issue of negligence was presented in the pleadings. We find no error in the court’s ruling in this respect, however. The appellee pleaded in various forms that the operatives of the train failed to exercise ordinary care to avoid injuring the deceased, and the evidence objected to was relevant to this issue. The engineer in support of appellant’s contention that due care was exercised was permitted to testify, among other things, that he did reverse the engine. Whether or not in so doing he exercised due care was-a question for the jury, and it was entirely proper, as we consider, for appellee to show, if he could, that a reversal of the engine under the circumstances was not the careful or prudent thing tó do. It is conceivable that a jury might find that it was not the proper thing to do under the circumstances, and yet further find from all of the evidence that the engineer on the whole did exercise ordinary care. In other words, the question relating to the reversal of the engine was not of itself an issue of liability, but one of the evi-dentiary circumstances not necessai’y to plead proper for consideration in determining the issue of liability which undoubtedly was alleged.

It is further urged that the verdict and judgment against defendant is so “grossly excessive” as to show conclusively that the jury were influenced by passion or prejudice. There was evidence tending to show that the deceased at the time he was killed was 46 years of age, with a life expectancy, according to a standard mortality table, of 24.5 years; that he was a stock dealer whose profits ran “from $300 to $500 or $600 per month,” which was equally divided with his partner; that he was kind, affectionate, and helpful to his wife and children; to the surviving widow, Mrs. Mary S. Bradford, the deceased had been married about 3 years, and of this union were born the minors, Herbert and Robert, 2 years and 11 months old, respectively, at their father’s death; that the deceased was a generous provider, their yearly household expenses being something like $2,200; that his oldest daughter, Florine Bradford, about 20 years old when her father was killed, first finished her educational training in the high school at Pilot Point, and then went to Texas Christian University in Ft. Worth during the years 1912-13, after which Florine part of the time taught school and part of the time remained at home; that the father paid the expenses of Florine while attending her schools and while at home, supporting her and paying for her clothing. She testified that:

“When I needed any millinery or notions I usually would get them and have them charged. * * * When I needed any spending money I would get it from my father.”

Lillie Bradford was about 18 years old when her father died, She was required by her father to attend school, and graduated at the Pilot Point High School the year of her father's death. Jewell Bradford was but about 16 years old at the time her father died.- The evidence shows that the father took great interest in all of his children, advising and admonishing them “as to what things were proper and what things were improper.” He did not drink, chew, or smoke, and on the whole we do not think it can be said that the verdict was excessive, especially to an extent -which indicated passion or prejudice on the part of the jury. The mere fact that the deceased had some indebtedness or that the two oldest girls were nearing their maturity does not affect our conclusion. A daughter’s expectancy of pecuniary help from a kind and indulgent father is not to be limited to the years of her minority, especially when unmarried. On the contrary, in most cases her expectancy may extend up to if not beyond the hour of his death. Ft. Worth & N. O. R. Co. v. Wallace, 74 Tex. 581, 12 S. W. 227; G., C. & S. F. Ry. Co. v. Dorsey, 66 Tex. 148, 18 S. W. 444; G., H. & S. A. Ry. Co. v. Gibson, 38 S. W. 480; T. & G. Ry. Co. v. Hall, 58 Tex. Civ. App. 598, 125 S. W. 71 (writ of error denied).

Appellant’s final assignment of error (the fifth) is that:

“The court errec! in overruling defendant’s motion to set aside the verdict, and, notwithstanding the verdict, enter judgment for defendant.”

Under our practice in' all cases the judgment of the court must conform to the pleading, the nature of the case proved, and the “verdict, if any,” etc. Revised Statutes, art. 1994. And in cases where, as here, there is a “special verdict of the jury,” it is made the duty of the court, “unless the same be set aside and a new trial granted, to render judgment thereon.” Revised Statutes, art. 1990. Under this latter article particularly the court cannot properly render a judgment non obstante veredicto, as sought in appellant’s motion, which the court overruled. The court had but two alternatives: First, to set the verdict aside and grant a new trial; or, second, to render judgment upon and in accordance with the verdict. It could not decline to pursue either course and render judgment contrary to the verdict. Scott v. Bank, 66 S. W. 485, and authorities therein cited.

In the case before us it is not even contended that the verdict as returned does not authorize the judgment. The verdict undoubtedly does. so. It cannot therefore be said, we think, that:

“The court erred in overruling defendant’s motion to set aside the verdict, and, notwithstanding the verdict, enter judgment for defendant.”

But giving, as we should pej-haps do in view of the size of the verdict, the assignment the most favorable construction, and interpreting it as appellant has done in its proposition thereunder, as one attaching the verdict as contrary to the overwhelming preponderance of the testimony and unsupported by the evidence, we nevertheless think that both tlie assignment and proposition should be overruled. The evidence has partially been stated. All of it, however, has been carefully considered. In addition to what we have stated, at least two witnesses whose qualification as experts seems ample testified to the effect that, with the air and equipment shown by the evidence to be under the control of the engineer, the locomotive could have been stopped within less than 100 feet after the peril of the deceased was undoubtedly discovered. Henry Orr testified, among other things, that:

“When the engine was 150 or 200 feet away from deceased, the engineer blow a warning whistle at him, that is, three or four short blasts of the whistle. That when the engineer blew the warning whistle deceased commenced running north down the track between the rails and stepped in the cattle guard.”

The engineer himself, as we have seen, places his engine “about 100 feet” from the deceased when he fell in the cattle guard. J. Y. Paul testified to a wide experience as a locomotive engineer and as connected with electrical and locomotive engine operations, and gave it as his opinion that under the conditions existing at the time of the accident the train could he stopped in “from 65 to 80 feet.” The witness J. W. O’Brien testified that he had an experience of about 12 .years as a locomotive engineer, and that in his opinion the train under the conditions •existing “could be stopped in from 80 to 85 •feet.” So that, considering the evidence as ■a whole, we entertain no doubt of its sufficiency to sustain the verdict of the jury on .every issue submitted to it.

All assignments of error are accordingly overruled, and the judgment affirmed.
      <§^=3For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§q=aFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: KING, J.

license: Public Domain

text:
    TOLIVAR v. BEAUMONT TRACTION CO.
    (No. 208.)
    (Court of Civil Appeals of Texas. Beaumont.
    June 7, 1917.)
    Appeal and Ekboe <&wkey;75S(3) — Bbiees — Rules oe Coubt— Statute.
    Where appellant’s brief is not in conformity with rules 24 and 25 of the Court of Civil Appeals (142 S. W. xii) and Vernon’s Sayles’ Ann. Civ. St. 1914, art. Í612, in that it does not set out the particular error in the action of the court with" sufficient certainty to identify it, and makes no reference to the page in the transcript on which, motion for new trial is made, the brief cannot be considered.
    , [Ed. Note. — For other cases, see Appeal and ¡Error, Cent. Dig. § 3093.]
    Appeal from District Court, Jefferson County; W. IT. Davidson, Judge.
    Suit by C. R. Tolivar against the Beaumont Traction Company. From the judgment,, plaintiff appeals.
    Affirmed.
    ITowth & Adams and F. G. Vaughn, all of Beaumont, for appellant. Orgain, Butler & Bolinger, of Beaumont, for appellee.
   KING, J.

Appellant sued appellee for damages to an auto truck, the result of a collision between said truck and appellee’s street car. Final judgment was rendered by the court in appellant’s behalf in the sum of $478.02. ,

Appellant’s brief is not in accordance with the rules of this court, in that it violates rules 24 and 25 of the Court of Civil Appeals (142 S. W. xii) for the government of the preparation of briefs, in that it does not set out the particular error in the action of the court with sufficient certainty to identify same, and no reference to the page or motion for new trial or in the transcript is made. The record discloses that. appellee asked for a new trial, and no motion for new trial was made by appellant. No assignment of error was filed in the trial court by appellant befox-e he took out the transcript, and an inspection of the record discloses that the assignment complained of in appellant’s brief is not contained in the l’ecord.

Appellant’s brief not being in conformity with the rales of this court and article 1612 of Vernon’s Sayles’ Texas Civil Statutes, 'the same cannot he considered by the court; and, there being no fundamental errors of law apparent of record, the judgment of the lower court is affirmed.


author: RAINEY, O. J.

text:
    GILMORE et al. v. LADELL et al.
    (No. 7906.)
    (Court of Civil Appeals of Texas. Dallas.
    May 26, 1917.
    Rehearing Denied June 23, 1917.)
    1. Appeal and Ebeoe, <&wkey;1188 — Right to Mandate.
    Either party, after decision of an appeal by the Court of Civil Appeals, had a right to procure the issuance of a mandate.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4643.]
    2. Appeal and Ebeoe <$=^1188 — Failube to Peocube Mandate — Statute.
    Where judgment against defendant was reversed, if he desired to have the matter retried in the same action, he should have procured issuance of mandate within 12 months of the decision of the Court of Civil Appeals, as required by Rev. St. 1911, art. 1559, and, having neglected to do so, as did plaintiffs, defendant cannot, in action by him, take advantage of dismissal of the former case from the docket for the then plaintiffs’ failure to secure issuance of mandate; the parties stand as though no suit was ever brought, and former plaintiffs’ cause of action is not barred by reason of not procuring issuance of mandate within 12 months.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4643.]
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Suit by.J. G. Gilmore and others against J. L. Ladell and others. From a judgment for defendants, plaintiffs appeal.
    Affirmed.

      B. G. Senter, of Waco, for appellants. Murphy W. Townsend, of Dallas, for appel-lees.
   RAINEY, O. J.

This is an appeal from a judgment denying appellants a mandatory injunction to deliver over to appellants the possession of certain real estate situated in the city of Dallas.

The material facts are that the title of the lot or parcel of land is in the name of appellant Gilmore. There is standing on it a church house which is possessed, occupied, and used by appellees, the congregation of the Mt. Rose Baptist Church, which is an unincorporated religious body of negroes. In the year 1907 the congregation of the Mt. Rose Baptist Church brought a suit in the district court of Dallas county against J. G. Gilmore, one of the appellants, asking for a decree adjudging that said congregation was the beneficial and equitable owner of said property, and removing cloud on title claimed to exist on account of the record title being in Gilmore’s name. Said cause was styled “B. L. Brown et al. v. J. G. Gilmore,” No. 27Slc, was tried in the Sixty-Eighth district court of Texas, Dallas county, and resulted in a verdict and judgment in favor of the congregation and against Gilmore. From this judgment Gilmore appealed; the case was transferred from the Court of Civil Appeals for the Fifth Supreme Judicial District to the Court of Civil Appeals at San Antonio, which on October 23, 1912, rendered judgment reversing the judgment of the trial court and remanding the cause for a new trial. Said case is reported in Gilmore v. Brown, 150 S. W. 964. On November 20, 1912, said Court of Civil Appeals overruled the motion for rehearing presented on behalf of the congregation, and plaintiffs in said suit failed to take out a mandate from said Court of Civil Appeals. After more than a year had elapsed from the date said motion for rehearing was overruled, J. G. Gilmore, the appellant in that cause, obtained a certificate from the clerk of said Court of Civil Appeals showing that no mandate had been taken out within 12 months after said motion for rehearing was overruled, which certificate was filed by Gilmore in said Sixty-Eighth judicial district court, and thereupon said court dismissed said cause from the docket thereof. The defendants in this cause, acting in the capacity of a church organization, are now in possession of the property in controversy.

A decision of the question involved requires a construction of article 1559, R. S. 1911, and the legal effect to be given the same. Said article is as follows:

“In eases which are, by the Supreme Court, or Courts of Civil Appeals, reversed and remanded, no mandate shall be taken out of either of said courts and filed in the court wherein said cause originated, unless such mandate shall be so taken out within the period of twelve months after the rendition of final judgment of the Supreme Court, or Court of Civil Appeals, or the overruling óf a motion for rehearing. And if any cause is reversed and remanded by the Supreme Court, or Court of Civil Appeals, and if the mandate is not taken out within twelve months as hereinbefore provided, then, upon the filing in the court below of a certificate of the clerk of the Supreme Court, or Court of Civil Appeals, that no mandate has been taken out, the case shall be dismissed from the docket of said lower court.”

The proposition submitted by appellants is;

“The statute cited is one of limitation, and when the time for the issuance of a mandate in any cause shall expire, under its operation limitation is complete against said cause of action.”

In support of this proposition the case of Scales v. Marshall, 96 Tex. 140, 70 S. W.. 945, is cited. That case merely holds that the statute of limitation of 12 months applies to the issuance of a mandate from an appellate court, and in no wise construes the effect of the statute further than to announce that upon the issuance of a certificate-by the appellate court that “cause of action, shall be dismissed from the docket of the lower court,” which is but following the wording of the statute.

The judgment of the appellate court did not adjudge the rights of either party to the suit, but merely reserved it for a new trial upon errors of proceeding, and the only thing that could be done as far as that particular action was concerned was to dismiss it, which' leaves the parties without any right settled, and 'the effect of such a proceeding is as though no suit had been instituted. Either party to the suit had a right to procure the issuance of a mandate.

The reversal of the case was favorable to appellant, and if he desired to have the matter retried under the former action he should have procured the issuance of a mandate within the 12 months, but, having neglected to do so, he cannot take the advantage here sought of the dismissal from the docket of the ease, but the parties stand as though no. suit had ever been brought.

No case of our Supreme or appellate courts has been cited placing such a construction upon our statute as here contended for that we know of. The appellee cites two authorities from Illinois, which construe a similar statute of that state, to wit: Bradshaw v. Atkins, 110 Ill., 323, and Koon v. Nichols, 85 Ill. 155. In the Bradshaw Case, 110 Ill. 323, where the court passed upon the Illinois statute, it said:

“As the statute provides “that if neither party to a cause which is remanded by the Supreme Oourt shall file a transcript of the remanding order in the court from which the cause was removed, within two years from the time of the making of the finql order of reversal, the cause-shall be considered as abandoned, and no further-action shall be had therein (Rev. St. e. 110, § 84), it is insisted that the. failure to file the remanding order within the time prescribed is a bar to the maintenance of this suit. There is clearly nothing in this point. All the effect of not filing the transcript of the remanding order within the time is, that it is an abandonment qf' that particular case, and not a bar or abandonment of the lights involved in the case.”

In principle this holding is in point, from which-we hold that defendants’ cause of action was not barred by reason of not procuring the issuance of a mandate within 12 months, and for that reason we conclude that appellants were not entitled to a mandatory injunction; but if they are entitled to redress they must seek some other remedy.

The judgment of the court below is affirmed.
      <&wkey;For other oases see same topic and KEY-NUMBER, in ail Key-Numbered Digests and Indexes


author: DUNKDIN, J.

text:
    ROSS v. HAYNES.
    (No. 8580.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 31, 1917.
    Rehearing Denied May 5, 1917.)
    1. VENDOR AND PURCHASER <&wkey;112(l) — DEFECTIVE Title — Right to Rescind.
    Where a vendor, who has agreed to deliver a full and sufficient warranty deed when the purchaser has paid $150, continues unable, on demand, to make a deed to the property clear of any incumbrance thereon for more than a year after the appointed time, the purchaser may rescind the contract and recover the money paid by him.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig.- §§ 199, 200.]
    2. Vendor and Purchaser &wkey;jlll — Defective Title — Right to Rescind.
    The right of a purchaser under a contract for the sale of real estate to rescind a contract and recover the money paid by him on account of the purchase price, because of the failure of the vendor to tender a full and sufficient warranty deed at appointed time, cannot be destroyed by a subsequent tender of such a deed at ■the trial of the suit for rescission.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 198.]
    3. Vendor and Purchaser i&wkey;254(l) — Remedies — Dien for Purchase Money.
    In an action by purchaser to rescind a contract for the sale of real estate and to recover the purchase price, an equitable lien may properly be decreed to secure its repayment.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 634, 641, 648, 649, 651.]
    Appeal from District Court, Tarrant County; R; B. Young, Judge. " ’
    Action by Dan W. Haynes against D. S. Ross. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    A. C. Heath, of Ft. Worth, for appellant. T. W. Dunn, of Ft. Worth, for appellee.
   DUNKDIN, J.

D. S. Ross entered into a written contract with Dan W. I-Iaynes to sell him a certain lot in the city of Ft. Worth; the purchase price of the lot being $350, payable $10 in cash and $5 each succeeding month until the full amount was paid. The contract stipulated that when the sum of $150 was paid on the purchase price, then Ross would execute to the purchaser and the purchaser would accept “a full and sufficient warranty deed” to the property, retaining the vendor’s lien for any unpaid balance then due. After Haynes had paid $250 under that contract, he instituted this suit to recover the amount he had paid upon allegations of a breach of the contract on the part of the seller to execute to him a deed in accordance with 'the terms of the contract, and from a judgment in his favor awarding him that relief, Ross has prosecuted this appeal.

The proof showed without controversy that after Haynes had paid $150 on his con- ' tract to purchase, he went to the office of the ' defendant and applied to the defendant’s agent in charge of his business for a deed of conveyance to the lot in accordance with the terms of the contract. At that time Ross was absent from the state, and Haynes was advised by the agent to continue his payments in view of the fact that Ross was not then in a position to make a deed to the property clear of any prior incumbrances thereon, as there was an outstanding mortgage against the property. Haynes acted upon that advice, and continued the monthly payments under the contract until the payments made by him aggregated the sum of $250. He then made further efforts to procure a deed from Ross, but was unable to do so by reason of the absence of the latter from the city. He wrote a letter to Ross, which was long delayed in reaching him, but when it was received Ross replied by letter, stating, in effect, that he would furnish plaintiff a deed as soon as he could procure a release of the prior mortgage lien which covered the lot and other property. But the record further shows that the release proposed was not secured by Ross until about 17 months thereafter, and more than a year after the insti'tution of this suit. According to testimony offered by Ross, after he returned to Ft. Worth he made several efforts to find Haynes with the intention to tender him a deed and also a release of the prior lien, but was unble ■ to find him. But the evidence' further shows without contradiction that at that time plaintiff had elected to rescind the contract for failure of Ross to comply with its terms and to claim the return of the purchase money paid by him under the contract. Under the undisputed facts as stated, Haynes undoubtedly had the right asserted by him to rescind the contract and to sue for the recovery of the money paid, and hence there was no error in the peremptory instruction by the court to the jury to return a verdict iu plaintiff’s favor for that amount.

The suit was instituted on October 14, 1914, after the plaintiff had claimed the right of rescission. Upon the trial, which was on March 27, 1916,' the defendant tendered to the plaintiff a deed reciting a consideration of $250 paid and the execution by Haynes of a promissory note for $100, which shows to have been acknowledged by Ross on March 15, 1916, 12 days before the trial •of the suit. This tender was refused. Ross further testified that the holder of the prior 'mortgage against tlie property, which covered other property as well, had agreed with him to release this lot from the lien upon the payment of $100, and in his testimony he referred to an Instrument in writing, shown to him by counsel interrogating him, as such a release so executed by mortgagee, which he says was dated December 17, 1015, and the statement of facts also contains a statement by Ross’ counsel upon the trial of the suit, to the effect that he also tendered to plaintiff that release. But the .release itself is not shown in the. statement of facts, and we cannot say whether or not it was legally sufficient to clear that lot of the prior lien. And we will say further in passing that it does not seem that counsel for plaintiff questioned its sufficiency upon the trial, if such a release was in fact tendered. Ross further testified that he had been ready, willing, and able at all times to procure this release, but_ there is no proof that he ever actually ten-’ dered to plaintiff either a deed or the release prior to the trial.

If, as found by us already, I-Iaynes had the right to rescind the contract and to sue for the purchase money, as he elected to do, that right could not be destroyed by the subsequent tenders made upon the trial of the suit more than 17 months after the institution of the suit.

• The foregoing general observations are made without regard to assignments Nos. 1, 13, and 30, presented- in appellant’s brief, which are clearly too general and .the propositions thereunder too multifarious to require consideration. j

By another assignment, appellant insists, that the court erred also in decreeing and foreclosing an equitable lien upon the • lot mentioned to secure the payment of the personal judgment rendered in plaintiff’s favor. The propositions submitted under this assignment are to the effect that no equities are shown entitling plaintiff to such a lien, and that the petition contained, no .allegation to the effect that time was of the essence of the! contract. We are of the opinion that both the pleadings and the evidence clearly show that plaintiff was entitled to a deed after the payment of $150 of the purchase price, and that time was of the essence of the contract, to the extent and the circumstances invoked by plaintiff.

It was further alleged in plaintiff’s petition, and shown by the evidence, that notwithstanding plaintiff’s indulgence by continuing the payments for more than 12 months after he had a right to demand, and did demand, a deed of the defendant’s agent, he again demanded a deed and made every reasonable effort to procure one, but was unable to procure it. The evidence further shows without controversy that by reason of the defendant’s failure to make a deed the plaintiff lost the opportunity to make an advantageous sale of the lot.

And we are of ¡the opinion-,- further, that the court did not err in decreeing an equitable lien upon the lot to secure the repayment of the purchase money paid by the plaintiff. Ramirez v. Barton, 41 S. W. 508; Galbraith v. Reeves, 82 Tex. 357, 18 S. W. 696.

For the reasons indicated, the judgment is affirmed.
      <&wkey;For other oases see same topic and KEY-NUMBER in all Kej-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    ECHOLS BROS. v. STEVENS.
    (No. 8448.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 26, 1917.)
    1. Evidence <&wkey;317(6) — Hearsay.
    In damage action against building contractors, plaintiff owner’s testimony that other contractors had advised him it would cost certain amounts to remedy the alleged defects is inadmissible, because hearsay.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. § 1179.]
    2. CoNmAcrs &wkey;>322(2) — Action eob Breach —Admissibility or Evidence.
    In damage action against building contractors, evidence that the building leaked is ad-missable, where such leakage was shown to be caused by defects in a fire wall due to noncompliance with the terms of the contract.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1891, 1815.]
    3. Appeal and Ebbob <&wkey;>733 — Assignments op Error — Sufficiency.
    In damage action against building contractor's, assignments- of error that the recovery of certain items, was not authorized by the contract or not sustained by proof, but not complaining of any ruling by the court or of the jury’s verdict, are insufficient.
    ■ [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3025-3027.]
    ■ Appeal from Tarrant County Court; Charles T. Prewett, Judge.
    - ■ Action by E. L. Stevens against Echols Bros. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded.
    Gaines B. Turner, of Ft. Worth, for appellants. Jordan Y. Cummings, of Ft. Worth, for appellee.
   DUNKLIN, J.

Echols Bros, were building contractors and entered into a contract with E. D. Stevens" to build him a house. After the house was constructed, it was accepted by Stevens, and the contract price therefor was fully paid. This suit was instituted by Stevens' to recover damages for an alleged breach of the contract by Echols Bros, in the failure to finish certain portions of the .work in accordance with the terms of the contract, such defects having been discovered after payment made to the contractors, and from a judgment in plaintiff’s favor the defendants! have appealed.

The evidence was sufficient to support a finding that the house was not completed in accordance with the contract, but the only proof offered to show .the measure of -plain-1 tiff’s damage was his own testimony. That testimony consisted of his estimate of the amount which would be required to complete the work according to the terms of the contract, and plaintiff testified that the only basis for such estimate was estimates made by other building contractors in reply to requests therefor byl the plaintiff. After specifying the different defects upon which his suit was predicated, he testified as follows:

“I have submitted the various matters that I have above stated to various contractors, and had them go over the building, and the least bid or estimate that I have had to finish the house in a first-class workmanlike manner in accordance with the contract was $145, and the highest bid was $185. I can only state the amount of damage from these estimates, and using these estimates as a basis, I will say that it will cost anywhere from $145 to $185 to put the house in a first-class workmanlike order according to the terms of the contract.”

The verdict and judgment in plaintiff’s favor was for $150.

We think it clear that the court erred in admitting the hearsay testimony relative to statements made to the plaintiff by other contractors, and used by him as a basis for his estimate of damages given upon the witness stand, and for that error the judgment must be reversed.

There was no error in admitting proof that the building leaked, in view of other testimony tending to show that the leak was caused by defects in the fire wall, which would not have existed if the fire wall had been completed according to the terms of the contract.

Assignments 3, 4, and 5 consist merely of general statements that plaintiff was not entitled to recover certain items of damages, either by reason of the fact that such a recovery was not authorized by the building contract or was not sustained by proof, but in none of these assignments is any complaint made of any rulings by. the court during the trial, or of the verdict of the jury. Hence they cannot be considered.

For the reasons indicated the judgment is reversed, and the cause remanded for a new trial of plaintiff’s suit, but the judgment denying appellants a recovery on their counterclaim is affirmed.
      itesFor other cases see same topic and KRY-NUMBER- in all Key-Numbered-Digests and Indexes


author: GRAVES, J.

text:
    TEXAS FIDELITY & BONDING CO. v. ROSENBERG INDEPENDENT SCHOOL DIST. et al.
    (Court of Civil Appeals of Texas. Galveston.
    June 21, 1917.)
    Appeal and Ekeob &wkey;>S43(2) — Necessity oe Decision.
    Where defendant surety company’s liability is founded on common-law principles, it is unnecessary to consider appellee’s contention that it is also liable under the statute pursuant to which it was incorporated.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3331.]
    Appeal from District Court, Ft. Bend County.
    On motion for rehearing.
    Overruled.
    For original opinion, see 195 S. W. 298.
   GRAVES, J.

In the original opinion (195 S. W. 298) it was inadvertently stated that the school district, in paying the accounts of $530.79 for labor and of $1,764.51 for materials, took from the holders assignments of both items; whereas, the record shows that the latter, but not the former, account was so assigned. That finding is, accordingly, corrected.

In the motion for rehearing it is very earnestly insisted that:

“This court erred in holding that the contract and bond under consideration should not be construed strictly in favor of the surety, for the reason that such holding and finding of the court is contrary to the decision of the Supremo Court in the case of Lonergan v. San Antonio Trust Co., 101 Tex. 76, 104 S. W. 1061 [106 S. W. 876, 22 L. R. A. (N. S.) 364, 130 Am. St. Rep. 803], and the previous decision of tliis-court in the case of Insurance Co. v. Waples Lumber Company, 176 S. W. 651.”

An examination, of those cases, however, will not uphold this contention. In the first place, in neither of these cases was it shown that the surety company involved was chartered under the laws of Texas, as was the bonding company in the case at bar; indeed, in the Lonergan Case it affirmatively appeared that the American Surety Company was a New York corporation, while in the Waples Lumber Company Case there is no showing as to where the bonding and casualty insurance company was organized. In the latter case there was but a single question determined, stated by the court to be as follows:

“The only questions presented for our determination are whether the bond inured to the benefit of the plaintiff Waples Lumber Company and other materialmen, whose claims plaintiff holds, and whether it could bo enforced by the plaintiff or Breath and wife, as trustees, for its use.”

After finding as a fact that the bond there under consideration contained no provisions evidencing an undertaking to become liable to tbe materialmen, the court decided that sole question in this language:

“It is the well-established law of this state that a building contractor’s bond, conditioned as in the instant case, is simply an expression of a condition upon which the liability of the surety to the owners is defined, and for a breach of which the surety will be Hable to the owner only, and does not inure to the benefit of mate-rialmen, in the absence of a provision evidencing such an undertaking. The bond, then, being an indemnity bond to W. F. Breath and wife, does not give a right of action to the plaintiff, as a materialman, against the surety on the bond. It follows from this that the materialman, not having any right of recovery on the bond in his own behalf, cannot recover through the obligees as trustees.”

Surely that decision, based as it was upon a wholly different state of facts, in that the bond here was expressly made payable to materialmen, etc., determined a question not here involved, and cannot be in conflict with our holding in this case.

The Lonergan Case, decided by our Supreme Court, is likewise plainly distinguish-, able from this one. In so far as the surety company was concerned, there was but a single question decided in that case also, which was as follows:

“We conclude that the changes made in the contract, without the consent of the American Surety Company, operated to discharge that company from liability upon the bond.”

The contract provided:

“No alterations or extra work to be done except upon the price and additional time necessary to complete same being agreed upon beforehand, and indorsed upon the contract.”

The court found that a number of such ma^rial changes as to destroy the contract as made and to substitute a new one, for which the surety company had not contracted to be responsible, were in direct violation of this provision in the bond made before abandonment or completion of the work by the contractors, without the surety company’s knowledge and consent, and, as above quotation from the opinion shows, upon this ground alone held it not bound. By way of argument in reaching that conclusion, different subsidiary propositions are discussed and decided, among them that there is no difference in the rights of a compensated and a voluntary surety; but the single conclusion stated, and the given foundation of fact upon which it rested, is all the case decides as affects the liability of tbe surety company. There the building fell after completion, or part completion; tbe contractors refused to replace the fallen portion, and the trust company owner sued them and their bondsman, the surety company, for damages; the contractors defended upon the ground that the building had fallén, not through any defective material nor unskillful work put into it by them, but on account of inherent defects in the specifications furnished them by tbe owner upon which to construct it, and for which they were not responsible. In holding the contractors liable, the court said:

“We are of the opinion that Thos. Lonergan & Co., having failed to comply with their agreement to construct and complete the building in accordance with the contract and the specifications, must be held responsible for the loss, notwithstanding the fact that the house fell by reason of its weakness arising out of the defects in the specifications and without any fault on the part of the builder.”

The surety company made common cause with the contractors in presenting the defense thus sustained in favor of the latter, and then further, independently iu its own behalf, urged the alleged changes in the bond and contract already referred to, with the separate result previously shown. As the recitation of the salient facts in our original opinion shows, no such conditions as obtained in the Lonergan Case existed here.

Finally, it is contended with much force by the appellees that appellant was liable as an insurance company, under and by virtue of tbe very terms of the law of its creation. Chapter 13 of title 71, Revised Statutes of Texas. But as we have held it liable under tbe age-old principle lying back of these statutes, that as men by their acts and contracts bind themselves so shall they be bound, we have thought it not essential, as stated in the original opinion, that we pass upon that suggestion.

After careful consideration of the motion for rehearing, we are convinced that, when applied to the developed facts of the case before us, no authority cited inveighs against the conclusion announced in the original opinion, and it is adhered to.

The motion is, accordingly, overruled.

Overruled.
      ©=»IPor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    SWEENEY v. ALDERETE.
    (No. 781.)
    (Court of Civil Appeals of Texas. El Paso.
    May 31, 1917.)
    1. Injunction &wkey;>143(2) — Notice.
    That defendant, having replevied an automobile claimed by plaintiff, was threatening to sell it without right, justified granting a temporary restraining order against defendant without a hearing, because delay would likely result iu the disposal of the property.
    [Ed. Note. — Por other cases, see Injunction, Cent. Dig. § 315.]
    2. Cotjets <&wkey;180 — County Coubts — Injunction.
    Since Rev. St. § 4643, subd. 2, expressly gives county court judges jurisdiction to enjoin a party to a pending suit from doing some act respecting the subject of the litigation which would tend to render' the judgment ineffectual, defendant, enjoined by county judge from threatened sale of $200 automobile replevied in litigation appealed from justice court, could not urge such judge’s lack of jurisdiction because of the amount.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 467.]
    3. Injunction <&wkey;126 — Adequate Remedy at Law,
    That plaintiff, enjoining defendant’s threatened sale' of automobile in litigation, originally sued for its possession, with no count for its value, raises a presumption that it is of some peculiar personal value, for which a mere money judgment would not adequately compensate.
    [Ed. Note. — F'or other cases, see Injunction, Cent. Dig. § 276.]
    Appeal from El Paso County Court; E. B. McClintoek, Judge.
    Suit by I. Alderete against F. E. Sweeney. From order for plaintiff, defendant appeals.
    Affirmed.
    Jackson, Isaacks & Lessing, of El Paso, for appellant. C. D. Vowell, of El Paso, for ap-pellee.
   HARPER, C. J.

This is an appeal from a temporary restraining order granted April 11, 1917, by the county judge upon the petition of appellee, in vacation. Substantially, it is alleged: That Alderete, being tbe owner of an automobile, brought suit iu justice court against Sweeney for possession; alleged its value to be $200. There he secured is-’ suance and levy of writ of sequestration. Sweeney replevied, and now has possession thereof. That he secured judgment in the justice court for title and possession of the machine, from which an appeal was taken to the county court. That defendant is threatening to sell the automobile, having so notified plaintiff in writing that he would do so on May 12, 1917. That if defendant is permitted to sell, a judgment in plaintiff’s favor in county court for possession would be ineffectual, because he is not seeking a moneyed judgment. That defendant has no lien of any nature upon the automobile. That he is not indebted to defendant in any sum for labor or repairs, etc.

The first assignment is that the court erred in granting the writ without a hearing. Temporary injunctions may be granted without notice, but it is not always proper to do so. Soto v. State, 171 S. W. 279. This is one of a class of cases where it should be done, because delay would likely result in the disposal of the property involved in the litigation.

The second is that the county court did not have jurisdiction because of the amount in controversy. The courts in many cases hold directly to the contrary. Moore v. Vogt, 127 S. W. 234; McRimmon & Co. v. Moody et al., 87 Tex. 260, 28 S. W. 279. Besides, jurisdiction is expressly bestowed by subdivision 2 of article 4643, R. S. 1911, to prevent a party to a pending suit doing some act respecting the subject of litigation which would tend to render judgment ineffectual.

The third assignment is that the court erred in granting the writ because the petition does not show that he had no adequate remedy at law.

The fourth is that it was error to grant the writ because, by his petition, appellee shows that he has an adequate remedy at law.

The fifth: “The judge erred in granting the injunction because the petition does not allege facts which would show injury.”

The answer is, the original suit is for possession of an automobile, with no count for its value. If, therefore, appellant were to sell the machine, it might result in its loss, and if he prevails in his suit, he is entitled to recover the property sued for, and have possession. It seems a logical presumption to indulge that where a party brings his action for a definite article and does not ask for its i alue, that there is some peculiar personal value attached to it, for which mere money judgment would not adequately compensate. Article 4643, Rev. Stat. 1911, gives the plaintiif the remedy as a matter of right, whether the proceedings in sequestration is a remedy at law or not. Sumner v. Crawford, 91 Tex. 129, 41 S. W. 994. The first portion of the article provides that injunctions may issue where it may “appear 'that the party applying for such writ is entitled to the relief demanded, and such relief or any part thereof requires the restraint of some act prejudicial to the applicant” and “to prevent a party to a pending suit doing some act respecting the subject-matter of pending litigation which would tend to render judgment ineffectual.” For plaintiff to recover a judgment for the automobile replevied, he could only get judgment against the principal and his bondsmen “for the value of the property replevied”; the actual value to be fixed by the court or jury, as the case might be. Article 7111, R. S. 1911. This would not get plaintiff’s machine, which he is entitled to have judgment for first; then, if he prevails in his suit in the county court, his judgment would be upon the bond, as provided by statute, in case the machine is not forthcoming. So, to repeat, the plaintiff is entitled to recover his machine, and having shown by his verified pleading that the defendant is about to sell it, ponding litigation, the act of sale was properly enjoined by the county court. Green v. Gresham, 21 Tex. Civ. App. 601, 53 S. W. 382; McRimmon & Co. v. Moody et al., 87 Tex. 260, 28 S. W. 279.

Theré is no reversible error in the record, and the cause must therefore be affirmed. It is so ordered.
      <§^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PHILLIPS, C. J.

text:
    LAURAINE v. ASHE et al.
    (No. 2794.)
    (Supreme Court of Texas.
    June 27, 1917.)
    1. Mandamus &wkey;>172 — Issue.
    In a mandamus proceeding to compel the judge of a district court to vacate, as to the property of a decedent, a receivership pending in the court, and to order delivery of the property to relator as administrator, the only question presented was as to relators right to have the judge vacate the receivership and order the delivery -of the property to him, and whether the district court had authority to sell the property was immaterial.
    [Ed. Note. — For other eases, see Mandamus, Cent. Dig. §§ 381-385.]
    2. Courts &wkey;472(4) — Exclusive Jurisdiction oe Probate Court — Sale oe Prop-EKXy.
    The general rule is that the jurisdiction of the probate court to sell property of a decedent upon whose estate administration has been commenced is exclusive.
    [Ed. Note — For other eases, see Courts, Cent. Dig. § 1204.]
    3. Mandamus <&wkey;172 — Absence oe Record in Case Involved.,
    In a mandamus proceeding to compel the judge of a district court to vacate a receivership as to property of decedent and order delivery to relator as administrator, the record of the cause in the district court not being before the ■'Supreme Chart, it cannot determine whether the case in the district court is such as to render it not subject to the rule that exclusive jurisdiction to sell property of decedent on whose estate administration has been commenced is in the probate court.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 381-385.] '
    On motion to modify opinion.
    Motion granted in part.
    For former opinion, see 191 S. W. 563.
    Williams & Neethe, of Galveston, and Gill, Jones & Tyler and H'. N. Atkinson, all of Houston, for respondents. Cooper & Merrill and Jno. G. Tod, all of Houston, for relator.
   PHILLIPS, C. J.

In denying a mandamus to require the District Judge to vacate the receivership proceeding pending in his court and deliver the property held by the receiver into the custody of the temporary administrator of Mrs. Allen’s estate, it was stated in the original opinion (191 S. W. 563) that while the District Court had jurisdiction to establish against the estate the indebtedness set up in the suit there pending, it was, with the administration of. the estate pending, without any power to direct the sale of the property.

It is urged in the motion that most of the indebtedness referred to was the joint indebtedness of Mrs. Allen and A. C. Allen, who is still living; that the mortgages upon the property involved were jointly executed by .Mrs. Allen and A. C. Allen, most of the property being jointly-.owned by them; and that it is the right of the mortgagees to have the interests of A. C. Allen and Mrs. Allen sold together instead of separately. It is also suggested that adjustment of the rights of the Allens as between themselves will become necessary in the determination of the District Court controversy.

These and other considerations are advanced as ground for the contention that authority to sell the property is essential to the jurisdiction with which the District Court is already invested and is a necessary part of that jurisdiction. We are accordingly asked to modify the opinion in the case and to hold that the District Court has the power to cause the sale of the property if Jti should find that to be necessary to the adjudication and enforcement of the rights involved in the cause.

Whether the District Court has authority to sell the property was not a necessary part of the question before us in the mandamus proceeding. The only question there presented for decision was as to the right of the relator to have the District Judge vacate the receivership and order the delivery of the property into his hands. What was said in the opinion ini respect to the authority of the District Court to direct the sale was for the purpose of calling attention to the general rule, that the jurisdiction of the Probate Court to sell property of a decedent upon whose estate administration has been commenced, is exclusive; and to make it plain that our decision of the mandamus question was in recognition of that rule. That such is the general rule as affirmed in the decisions of this court, is undoubted. Rogers v. Kennard, 54 Tex. 30; Smithwick v. Kelly, 79 Tex. 564, 15 S. W. 486; Atchison v. Smith, 25 Tex. 228; Cannon v. McDaniel, 46 Tex. 303.

Whether there is anything in this case as it stands in the District Court which renders it not subject to the general rule, we do not in this proceeding feel called upon to determine. The record of the cause is not before us; and this, of itself, would preclude its determination. We decline to affirm that the case is not subject to the rule, and deem it preferable that we here express mo opinion upon the question. The original opinion is therefore modified to the extent that it indicates a holding upon the authority of the District Court in the suit there pending to direct a sale of the decedent’s interest in the property. The determination of the question as arising in such a case was not necessary to the disposition of the mandamus proceeding; it is left open for decision until such time as it may be properly presented. The motion is granted in part.
      citesFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SAN ANTONIO & A. P. RY. CO. v. BLAIR.
    (No. 3947.)
    (Supreme Court of Texas.
    June 27, 1917.)
    1. Courts <&wkey;42(3) — Writ of Error — Statute —Constitutionality.
    Acts of 1917, e. 76, authorizing the Chief Justice or any two other Justices of the Supreme Court to designate a committee of justices of the Courts of Civil Appeals to pass upon petitions to the Supreme Court for writs of error is constitutional.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 170, 181-183.]
    2. Courts <&wkey;42(S) — Constitution of.
    Since under the statute prescribing that “a majority of the several courts of Civil Appeals shall constitute a quorum for the dispatch. of business” a lawful court of Civil Appeals is constituted by two members present and acting, Acts 1917, c. 76, p. 142, providing for a committee of justices of the Courts of Civil Appeals to pass upon petitions to the Supreme Court for writs of error, does not leave courts from which members of committee are taken unable to perform their functions.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 170, 181-183.]
    3. Courts <&wkey;42(8) — Creation of.
    Acts 1917, c. 76s authorizing designation of a committee of justices of Courts of Civil Appeals to pass upon petitions to the Supreme Court for writs of error, does not create a court, but simply adds certain duties to those of justices of courts already existing, to be discharged by them only in their capacity as such.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 170, 181-183.]
    4. Courts <S=>42(8) — Duties of Judge — Power of Legislature to Confer.
    Since under Const, art. 5, § 6, the Legislature may confer generally on Courts of Civil Appeals other jurisdiction than that specifically conferred by the Constitution, it may impose on the justices of them additional judicial duties, such as that of passing on petitions to the Supreme Court for writs of error, which have relation simply to a method of appeal of causes determined by those courts.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 170, 181-183.]
    5. Constitutional Law <&wkey;o6 — Powers of Jud ge — Statute.
    A judge of a Court of Civil Appeals may, notwithstanding constitutional provision declaring that the judicial power of the state shall be vested in the courts named in article 5, § 1, and in such others as may be provided by law, be empowered to perform a judicial act, such as that of passing on petitions to the Supreme Court for writs of error, having direct and proper relation to the exercise of the jurisdiction of the court of which he is a member, though in so doing he does not act as a court, whore there is no constitutional provision to the contrary.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 62-05.]
    6. Courts <&wkey;43 — Manner of Ajppeal — Legislative Control.
    Since under Const, art. 5, § 3, the Legislature may limit and change the appellate jurisdiction of the Supreme Court, the Legislature, in the absence of any constitutional provision as to how such jurisdiction may be invoked, may establish in all its particulars the mode in which an appeal from the Court of Civil Appeals shall be taken, and in so doing declare that-the- authority of determining the right to have it entertained shall rest in a committee of judges of the Courts of Civil Appeals.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 164-170, 181-183.]
    7. Courts <&wkey;43 — Writ of Error — Regulation by Legislature.
    The Legislature which inaugurated the writ of error practice as the method whereby the appellate jurisdiction of the Supreme Court may be acquired, and lodged in it authority of determining the merits of the grounds advanced for the issuance of the writ, may change that method.
    [Ed. Note. — For other cases, see Courts, Cent. Dig1. §§ 164-170, 181-183.]
    8. Appeal and Error &wkey;3l — Right of Appeal-Legislative Control.
    Unless granted by the Constitution, the right of appeal itself is but a privilege, not an irrevocable right, and may be restricted, changed, and regulated by the Legislature at discretion.
    [Ed. Note. — For other oases, see Appeal and Error, Cent. Dig. §§ 1-4.]
    9. Courts <&wkey;43 — Right of Appeal — Determination-Power to Confer.
    The Legislature has power to give to the Courts of Civil Appeals the authority of determining when an appeal from their judgments •shall lie.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 164-170', 181-183.]
    10. Courts &wkey;>43 — Appellate Jurisdiction-Legislative Control.
    The manner or mode of acquiring jurisdiction is essentially a matter of legislative control in the absence of some express constitutional direction on the subject.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 164-170, 181-183.]
    11. Constitutional Law &wkey;=48 — Validity of Statute.
    A statute is to be held valid unless forbidden by the Constitution, either in express terms or by necessary implication.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 46; Statutes, Cent. Dig. § 56.]
    Hawkins, J., dissenting.
    Action by H. A. Blair against the San Antonio & Aransas Pass Railway Company. Plaintiff died during its pendency, and the action was revived in the name of Mrs. Lula Blair, administratrix. From a judgment for plaintiff, defendant appealed to the Court of Civil Appeals, where the judgment was affirmed. 184 S. W. 566. Defendant brought error. The Supreme Court referred the petition to a committee of judges of the Court of Civil Appeals under Acts 1917, c. 76, which refused the writ.
    Motion of defendant for consideration of petition by Supreme Court overruled.
    See, also, 173 S. W. 11S6.
    Boyle & Storey, of San Antonio, Williamson & Klingemann, of Karnes City, and Proctor, Vandenberge, Crain & Mitchell, of Victoria, for appellant. C. C. Harris and Arnold, Cozby & Peyton, all of San Antonio, for ap-pellee.
   PHILLIPS, C. J.

This motion assails the constitutionality of the recent act of the Legislature. (Acts of 1917, chapter 76, page 142), authorizing the Chief Justice of the Supreme Court, or any two of the Justices thereof, to designate a committee of three of the Justices of the Courts of Civil Appeals, empowered to pass upon petitions for writs of error seeking a review of causes by the Supreme Court, except in certain classes of cases, referred to them by the Supreme Court, and grant or refuse the writ, or dismiss the petition, in accordance with the practice of the Supreme Court. ' It is urged that on account of the invalidity of the act we should consider the petition for writ of error in the case, it having been previously by us referred to the Committee of Judges and passed upon by them adversely to the plaintiff in error. A number of similar motions have been filed in other cases.

The act became immediately effective upon its approval by the Governor. Its administration was inaugurated by the court’s designation, on March 28, 1917, of three Justices selected from different Courts of Civil Appeals to serve in the capacity authorized until its further orders, and the reference to them of pending petitions for writs of error, except in the classes of cases exempted from the act’s operation. The act was set in motion because of the court’s view that it was constitutional and valid, the various grounds urged against it in all these motions having been fully considered. Had we not determined it to be a valid act, we would not have proceeded under it. It was intended, therefore, that our action in inaugurating it should serve as in effect a judgment in respect to its validity, and should be so understood.

In view of these motions it is but proper, however, that we should state the grounds which in our opinion sustain the act. We have not the time now, in the closing hours of the term, nor the inclination to pursue the subject at length. The validity of the act may be established upon principles so plain and unmistakable, that any extended discussion of the question is in our judgment unnecessary,

It should be stated that Mr. Justice Hawkins did not agree with the majority of the court in their determination of the validity of the act. He accordingly dissented from the court’s action in proceeding under it, announcing that he would later file an opinion expressing his views. He has not completed his opinion, but will file it when finished. Because of the court’s previous settlement of the question, he concurs in its present action in overruling this and other like motions, referring, however, to his opinion, to be filed, for a statement of his position.

The act, as is revealed upon its face, had for its purpose relieving this court, for a season, from the necessity of reviewing the large number of petitions for writs of error presented to it, so as to enable it, during such period, to devote its time to its cause docket and bring an end to its congested condition. For a number of years the petitions for writs of error filed annually in the court, seeking revision of judgments of the Courts of Civil Appeals, have been in excess of 500 in number, gradually increasing each year. Each requires deliberate and accurate consideration. To keep abreast of them, practically the whole time of the court has been required throughout each term. The result was an enforced neglect of causes in which writs of error had been granted and which were pending for submission and decision. Postponement of the decision of those causes by the condition thus brought about amounted in many instances to a denial of justice. By giving the petitions for writs of error its constant attention, the court had been able to keep that docket fairly cleared. But this was true only because it had given them nearly its whole time in each term. Had its time been given in equal degree to the decision of pending causes, the congested condition of the latter docket might have been obviated; but it recognized that in that event the petitions for writs of error would accumulate so rapidly as to result in a similar congestion in respect to them.

It is sometimes overlooked that with the inauguration of the Courts of Civil Appeals as a part of our judicial system, the jurisdiction of the Supreme Court was fixed in the Constitution for the review, originally, of causes determined by but three of such courts, and only three of those courts were originally established. The Courts of Civil Appeals have, however, been trebled in number. There are now nine of them. In the meantime, the jurisdiction of the Supreme Court has remained substantially unchanged, —to no appreciable extent diminished in respect to the time necessarily required for its proper examination of causes presented to it on petition for writ of error. With the jurisdiction of the Supreme Court, in other words, originally adjusted so as to enable it to properly review causes emanating from but three appellate courts, it has of late years, with substantially no change in its jurisdiction, been charged with the duty of reviewing causes emanating from nine appellate courts. It was the realization of this that has caused it during this latter period to chiefly give its time to the consideration of causes presented on petition for writ of error in an effort to dispose of them as currently filed, leaving it, as already stated, no sufficient time for. the decision of pending causes.

This was a condition imperatively demanding relief in the interest of an efficient administration of the law. To relieve it in a practical and inexpensive way by making use of the existing judicial machinery of the State was the design of this act. The thought of its framers doubtless was that under its operation for a short period the Supreme Court could clear its docket and be in position to resume the consideration of cases on petition for writ of error. For that reason the operation of the act is in effect limited to the ■ time necessary for that purpose.

The invalidity of the act is asserted both as it affects the duties and powers of the Courts of Civil Appeals, and as it relates to the exercise by the Supreme Court of the jurisdiction with which it is invested by law.

The effect of the act upon the Courts of Civil Appeals and their Justices will be first considered.

It is claimed that, the use for the purposes of the act of three Justices from three different Courts of Civil Appeals will leave the courts of which they are members unable to perform their functions. This question was settled in City of Austin v. Nalle, 85 Tex. 520, 22 S. W. 668, 960. It was there held that under the statute prescribing that “a majority of the several Courts of Civil Appeals shall constitute a quorum for the dispatch of business,” a lawful Court of Civil Appeals is constituted by two members present and acting.

The act, as it plainly shows, does not create a court. It simply defines and adds certain duties to those of the Justices of the Courts of Civil Appeals already existing. The duties thus added are those which the Justices are to discharge as Justices of such courts and only in their capacity as such. The Constitution — section 6 of article 5, — after defining tire jurisdiction of the Courts of Civil Appeals, provides that “said courts shall have such other jurisdiction, original and appellate, as may be prescribed by law.” Under this provision the Legislature has without challenge conferred other jurisdiction upon those courts, namely, jurisdiction of causes not arising within their districts, but transferred to them under order of the Supreme Court from other districts. If the Legislature may bestow, generally, upon the Courts of Civil Appeals other jurisdiction than that specifically conferred by the Constitution, no sound reason can be advanced for denying it the right to equally impose upon the Justices of them additional judicial duties which have relation simply to a method of appeal of causes determined by those courts.

The Constitution declares that the judicial power of the State shall be vested in the courts named in section 1 of article 5 and in such other courts as may be provided by law. But this does not mean that no judge may be empowered by law to perform a judicial act having direct and proper relation to the exercise of the jurisdiction of the court of which he is a member. At an early time it was recognized that rights would suffer if judges were deprived of all authority to act except as courts. As the result, their exercise of judicial power in vacation and at chambers became an established practice. The writ of error has always been treated by this court as but a mode of securing revision of causes as upon appeal. Luckett v. Townsend, 3 Tex. 119, 49 Am. Dec. 723; Magee v. Chadoin, 44 Tex. 488. Granting that the allowance of the writ involves the exercise of judicial power, where is the constitutional provision which denies to the Justices of the Courts of Civil Appeals the authority to allow an appeal from those courts to the Supreme Court? Not only is no such inhibition to be found, but the Constitution is utterly silent in respect to any method to be employed for the obtaining of a review by the Supreme Court of causes determined by those courts. Nothing is better settled than that in the absence of constitutional provision to the contrary, the Legislature may confer upon judges the authority to perform judicial acts necessary to a due administration of the law. As related to the revision of causes, a familiar instance of the exercise of such power by a judge, as distinguished from a court, is that authorized by the Federal statute which empowers the Chief Justice of a State Supreme Court to grant a writ of error in a certain class of cases as a means for their review by the United States Supreme Court. See Gleason v. Florida, 9 Wall. 779, 19 L. Ed. 730; Butler v. Gage, 138 U. S. 52, 11 Sup. Ct. 235, 34 L. Ed. 869. No doubt has ever existed, as we are aware, as to the authority of the Chief Justice of a State Supreme Court to so allow the writ, notwithstanding provisions of State constitutions which vest in the State Supreme Court, as distinguished from its judges, the judicial power which they are to exercise. His act in such instances is valid simply for the reason that it is the exertion of a part of the judicial power reposed in the court, by a constituent member of the court acting for that purpose in a capacity not forbidden by the organic law of the State. If such a power may be constitutionally exercised by a judge of the Supreme Court of a State as applied to causes reviewable by the United States Supreme Court, it is difficult to perceive why it may not be also validly exerted by Justices of the Courts of Civil Appeals as applied to causes not final in those courts.

Attention has already been directed to the fact that the Constitution has made no provision whatever in respect to the method by which the appellate jurisdiction of the Supreme Court is obtained over causes which it is empowered to review. It is the absence of any such constitutional provision that determines the validity of this act. The Constitution merely declares that its appellate jurisdiction “shall extend to questions of law arising in cases of which the Courts of Civil Appeals have appellate jurisdiction, under such restrictions and regulations as the Legislature may prescribe.” Article 5, section 3. Not only is no method provided by which its appellate jurisdiction may be called into exercise, but it is to be further noted that the Constitution does not irrevocably define: and fix any certain appellate jurisdiction for the court, except that it “shall extend to questions of law arising in cases of which the Courts of Civil Appeals have appellate jurisdiction.” A subsequent part of section 3 in terms conferred upon it appellate jurisdiction over three certain hinds of cases, hut that jurisdiction was to subsist only “until otherwise provided by law.” To restrict is to limit, as said by Chief Justice Gaines in Maddox v. Covington, 87 Tex. 454, 29 S. W. 465. The clause, “under such restrictions and regulations as the Legislature may prescribe,” means under “such limitations and regulations” as that body may enjoin. Hence, it is within the power of the Legislature to limit and to change the appellate jurisdiction of the court. Maddox v. Covington.

It would seem as scarcely open to debate that if the Legislature is thus authorized to limit and change the jurisdiction itself of the court, — its very power to hear and determine causes, it is equally competent for it to establish in all its particulars the mode under which its jurisdiction is to be invoked and by the observance of which it may be obtained.

The Constitution will be searched in vain for any provision which ordains the method by which a cause decided by a Court of Civil Appeals shall gain entrance into the Supreme Court; or which gives to the Supreme Court the authority of determining its right to entrance there. Neither the right of appeal to the Supreme Court nor the manner of its exercise is mentioned in the Constitution.

With this true, it is not to be questioned that the Legislature has the authority to establish the manner in which the appeal shall be taken, and, in doing so, declare where shall rest the authority of determining the right to have it entertained. Titus v. Latimer, 5 Tex. 433.

To fix any given mode for an appeal is but to prescribe a regulation by means of which jurisdiction to hear the appeal may be acquired. To vest in the appellate court itself, or in some other authority, a discretionary power of deciding whether the appeal shall lie, is equally only a regulation of the manner in which the appeal is to be taken, — a part of the mode enjoined for the appeal, and to be observed if the appellate jurisdiction is to be lawfully obtained. With the Constitution declaring that the Supreme Court shall possess and exercise appellate jurisdiction only under such limitations and regulations as the Legislature may prescribe, to do either, therefore, is only to do that which the Legislature is empowered to do by express provision of that instrument.

The Legislature inaugurated the writ of error practice as the method whereby the appellate jurisdiction of the Supreme Court might be acquired. It also lodged in the Supreme Court the authority of determining the merits of the grounds advanced for the issuance of the writ and, hence, when it should be allowed. But there is no vested right ini that mode of appeal. These provisions of the law did not come from the Constitution. They are the creatures of the Legislature. What the Legislature may create, it may alter. Unless granted by the Constitution, the right of appeal itself is but a privilege ; it is not an irrevocable right. It pertains merely to the remedy, and may be modified by the Legislature at discretion. If, for illustration, instead of adopting the writ of error practice in respect to the review by the Supreme Court of causes from the Courts of Civil Appeals, the Legislature had established the giving of bond, with the approval of which the Supreme Court should have nothing to do', as the mode of appeal from those courts, it cannot be doubted that such an act would have been valid. With the right of appeal in such cases not a constitutional right, but a creation purely of the statute law and subject to the limitations of that law, with it thus pertaining merely to the remedy which the Legislature has full authority to restrict, to change and to regulate, neither can it be doubted that it would have been competent, as a mere question of legislative power, for the Legislature to have given to the Courts of Civil Appeals, themselves, the authority of determining when an appeal from their judgments should lie.

Such an authority is not novel in the legal procedure of the country, whatever may be the divergence of views in respect to the wisdom of it. In a number of jurisdictions the right of appeal has had a, like restriction imposed upon it. In 3 Corpus Juris, page 1080 (notes), will be found a collection of eases instancing such a limitation upon the right as found in the legislation of different states. In Tennessee, for illustration, it was provided by the Code at the time of the decision of Sigler v. Vaughn (1883) 11 Lea (Tenn.) 131, that it was within the discretion of the chancellor to grant an appeal from the overruling of a demurrer by the chancery court. In Alabama, it was likewise ruled in Griffin v. Bank, 9 Ala. 201, that an appeal from an interlocutory decree dissolving an injunction in the chancery court, must be taken before the chancellor. In Connecticut, it was determined in Montville Street Railway Co. v. New London, etc., Co., 68 Conn. 418, 36 Atl. 811, that an appeal from the decision of a single judge of the superior court, must be allowed by him.

There is, of course, an obvious differ-' ence between jurisdiction,- — the power of a court to hear and determine causes, and the doing of those things necessary to call that power into play. To confer jurisdiction upon a court' is not to give it authority to determine the mode of resort to its jurisdiction, or the power of deciding how, when, and in what manner its jurisdiction may be obtained. Some means must be provided as the instrumentality of bringing the cause under tlie power of the court in order for the court to have and exert power over it. Such means are purely remedial in their nature. 'They pertain merely to the manner or mode by which jurisdiction is acquired, not to its exercise after it is acquired. They are essentially matters of legislative control in the absence of some express constitutional direction upon the subject. This was clearly recognized by the court in Schleicher v. Runge, 90 Tex. 456, 39 S. W. 279, where it was said:

“Under amended section 3 of article 5 of the Constitution, as we have seen, this court is to exercise its appellate jurisdiction under such restrictions and regulations as the legislature may prescribe. When, therefore, the. Legislature prescribed that the petition for the writ of error should be filed with the clerk of the Court of Civil Appeals within thirty days from the overruling of the motion for a rehearing in that court, we think that it was intended that a compliance with that requirement should be as a condition precedent to exercise of the jurisdiction.”

An act of the Legislature is not to be lightly struck down. It is to be held valid unless forbidden by the superior law of the Constitution either in express terms or by necessary implication. As before stated, the Constitution does not purport to deal with the question of the regulation of appeals to this court from the Courts of Civil Appeals except in its remission of the entire subject to the legislative authority. The act is in our opinion a valid act, and the motion is accordingly overruled.

HAWKINS, J., dissents. See 196 S. W. 115a
      &wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes