author: BRADY, J.

text:
    KIESCHNICK et ux. v. MARTIN et al.

    (No. 6004.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 30, 1919.
    On Motion for Rehearing, Feb. 19, 1919.)
    1. Justices oe the Peace <&wkey;135(4) — Restraining Execution — Petition — Sufficiency.
    A petition, in a suit to enjoin execution on a justice’s judgment from which an appeal had been taken, held sufficient as against a general demurrer, notwithstanding it did not specifically allege to what court the appeal was taken; it appearing that there was but one court to which such appeal could legally be taken.
    2. Courts <&wkey;480(3) — Injunction Suits — Restraint oe Legal Proceedings.
    The district court of one county has jurisdiction of a suit to enjoin execution on a justice’s judgment rendered in another county from which appeal has been taken to the district court of such county, notwithstanding Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4653, requiring writs of injunction to be returnable to the court where the suit is pending-; a justice court not having jurisdiction of injunction suits.
    3. Injunction <&wkey;110 — Jurisdiction op District Court.
    Unless restrained by statute, any district court where the venue is properly laid may exercise its constitutional right to issue injunctions.
    4. Courts <&wkey;480(3) — Restraint op Legal Proceedings — Jurisdiction op District Court — Venue.
    Where proceedings were brought to restrain execution on a justice’s judgment from which an appeal has been taken to the district court, the district court of another county wherein the injunction suit was pending had jurisdiction notwithstanding Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4643, relating to the district judge’s power to grant writs of injunction in case of disability of a resident judge.
    5. Justices op the Peace <&wkey;135(4) — Restraint op Execution — Appeal prom Justice’s Judgment.
    Since the effect of an appeal from a justice’s judgment is to annul the judgment and to confer jurisdiction on the county court, enforcement of an execution issued by the justice under ’ the judgment may be enjoined as a proceeding under a void writ.
    6. Courts <&wkey;480(3) — Conflicting Jurisdiction-Restraint op Legal Proceedings.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4653, providing that writs of injunction to stay legal proceedings shall be returnable to the court where the proceedings are pending, does not authorize an injunction writ to be returned to a court of the county where such judgment was rendered, instead of to the court where rendered.
    7. Justices of the Peace <&wkey;135(4) — Restraining Execution — Damages—Attorney’s Fees and Expenses.
    In a suit to restrain execution under a justice’s judgment from which appeal has been taken, actual damages for unlawful issuance and levy of the writ of execution do not include attorney’s fees or the expense of attending court.
    8. Damages <&wkey;87(2) — Exemplary Damages —Necessity op Actual Damages.
    Exemplary damages may not be recovered unless actual damages are alleged and proven.
    On Motion for Rehearing.
    9. Venue <&wkey;32(2) — Claim op Privilege — Waiver.
    To obtain the benefits of the venue provision of Vernon’s Sayles’ Ann. Civ. St. 3914. art. 1830, § 17, the privilege must be claimed seasonablj' and in due order of pleading, otherwise it will be deemed to have been waived.
    10. Venue <&wkey;32(l) — Claim op Privilege-Demurrer.
    A general demurrer, being merely intended to challenge the sufficiency of a petition or answer, cannot operate as a claim of the benefits of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830, § 17, relating to venue.

      Appeal from District Court, Milam County; John Watson, Judge.
    Suit by Richard Kieschniek and wife against Horace -Martin and others. From a •decree for defendants dissolving a temporary injunction, plaintiffs appeal.
    Reversed and remanded.
    Chambers & Wallace, of Cameron, for appellants.
    W. A. Morrison, of Cameron, for appel-lees.

      writ of error granted by Supreme Court March 2G, 1919.

   BRADY, J.

This suit was instituted in the district court of Milam county, by appellants against the appellees, to restrain the •enforcement of a judgment and execution issued out of the justice court of Crockett county, Tex., and levied upon certain cotton alleged to belong to appellants. A temporary injunction returnable to the October term of the district court of Milam county was granted upon the original petition filed September 25, 1916, against the appellees, the Thorndale Mercantile Company, and Horace Martin, constable of precinct No. 8, Milam county, Tex., enjoining said appellees .from enforcing the execution and from attempting to enforce the judgment, and from selling the cotton levied upon. To the original petition said appellees filed their original answer October 16, 1916, answering by general demurrer and by general- denial, and praying for dissolution of the injunction.

In their petition appellants alleged: That the Thorndale Mercantile Company had brought suit in the justice court of Crockett county upon an account which neither of them justly owed. That appellants were residents of Williamson county, Tex., and were privileged to be sued there, and that said suit was brought in Crockett county, in a county far remote from their residence, and practically inaccessible, to harass them into paying an unjust and illegal demand, and to ■defend which suit caused them great expense, including attorney’s fees. That the suit was for the sum of $44.47, and that on February 28, 1916, a judgment was rendered against appellants in said suit for that amount in the justice court of Crockett county, and that within 10 days from the rendition of said judgment they executed and delivered to the justice of the peace their appeal bond in due form of law, conditioned as required by law, and in a sum equal to double the amount of said judgment, and which appeal bond was a good and sufficient bond, duly certified by the county clerk of Milam county, Tex., as a good and sufficient bond, and that same was delivered to said justice of the peace in his official capacity, and was by him accepted and approved. That by the delivery of said appeal bond the said judgment was thereby set aside and thereafter rendered invalid, and the jurisdiction thereof transferred and removed to the appellate court.

Appellants further alleged that in addition to perfecting their appeal the said appeal was still pending, and had been postponed from time to time and term to term at the instance of counsel for appellants and said mercantile company, all of which was well known to said mercantile company.

Appellants further alleged that on the 25th day of August, 1916, the justice of the peace issued an execution upon said judgment, directed to the sheriff or any constable of .Milam county, Tex., and that the execution was by the justice of the peace and said mercantile company delivered to the constable, Horace Martin, in his official capacity, who was directed and required to levy upon the property of appellants, and to sell the same to enforce payment of said judgment; that the levy upon the cotton belonging to appellants was done by the constable at the special instance and direction of said mercantile company.

Appellants further alleged that, by reason of the fact that the amount involved in said suit in the justice court and the amount of the judgment therein, the jurisdiction to restrain the enforcement of such judgment and the execution issued thereon was in the district court of Milam county.

By amended petition filed March 27, 1917, appellants renewed the foregoing allegations, and made the justice of the peace, the ap-pellee W. M. Johnigan, a party defendant, alleging that all of the defendants had conspired and coiluded together- to injure and defraud appellants, in harassing, hounding, and punishing them in the payment of an unjust debt; and that the writ of execution so issued by said justice of the peace was caused by said mercantile company to be unlawfully issued and levied upon appellants’ property for the unlawful and unjust purpose alleged.

Appellees filed their amended answer September 10, 1917, in which they demurred generally to said petition, and they also filed 10 special exceptions to said petition. The trial court sustained the general demurrer and each of the special exceptions, and, appellants declining to amend, the cause was dismissed, and the trial court proceeded to dissolve the temporary injunction; from which decree of the court this appeal was taken.

The. first question presented is the correctness of the trial court’s ruling sustaining the appellees’ general demurrer to appellants’ petition. It is claimed by appellants that, the petition having shown affirmatively that the judgment upon which the execution was issued had been set aside and annulled by the perfecting of an appeal therefrom, the same was thereafter a void judgment, and the execution issued thereon a void writ, and that they were entitled to ah injunction to restrain the enforcement of the judgment and of the execution, and that the jurisdiction and venue lie in the Milam county district court, where the writ was levied, and where the constable resides, and the mercantile company has its domicile.

Appellees contend that the general demurrer was properly sustained, because appellants did not allege sufficient facts showing that the judgment of the justice court had been appealed and annulled, especially because the petition did not state to what court the appeal had been taken. They further contend that the general demurrer should have been sustained because the district court of Milam county was without jurisdiction to restrain the enforcement of the judgment or of the execution, but that the exclusive jurisdiction lies in the district court of Crockett county, where the alleged appeal is pending.

AYe will first consider the point that the petition does not allege sufficient facts to show that the judgment was duly appealed from, and thereby vacated or annulled. We have carefully examined the averments of the petition, and, while it is not specifically alleged to what court the appeal was,taken, the allegations substantially show that an appeal was duly perfected, and that the bond was filed with and approved by the justice of the peace, and the case on appeal continued from term to term at the instance of counsel both for appellants and appellees, and was at the time of the filing of the petition in this case still undetermined. It is stated in appellees’ brief, and it does not seem to be disputed, that the jurisdiction of the county court of Crockett county in all civil and criminal cases was diminished by the Sixteenth Legislature, and its jurisdiction in such cases transferred to and vested in the district court of Crockett county, and that such jurisdiction has not been restored. Therefore there was but one court to which such appeal could legally have been taken, and we regard the aver-ments of the petition in this respect as good against a general demurrer. We d0‘ not find that appellees in any special exception specifically pointed out the alleged defect in the petition in failing to expressly state the court to which said appeal was perfected. Furthermore, in appellees’ fifth special exception they claim that the district court of Milam county had no jurisdiction of this cause for the reason that it appears from the petition that the appeal bond was filed in the justice court, and therefore the jurisdiction of said cause was then transferred to and vested in the district court of Crockett county, and was a pending suit at the time of the institution of this suit; thus recognizing the sufficiency of the allegations to show an appeal duly perfected to the district court of Crockett county. For these reasons, we overrule the contention that the general demurrer was properly sustained for the alleged defect in pleading the appeal from the justice court.

We now come to the question whether the district court of Milam county was without jurisdiction to entertain appellants’ suit for injunction. If the district court of Crockett county was vested with exclusive jurisdiction of a suit to enjoin the justice court judgment and the execution issued thereunder, it follows that the general demurrer should have been sustained and the cause dismissed as to the suit for injunction; or at least that the district court of Milam county could not legally have proceeded further than to make the temporary injunction returnable to the district court of Crockett county.

In support of their contention that the district court of Milam county was without jurisdiction in this case, appellees rely upon article 4653, Vernon’s Sayles’ Civil Statutes, which reads as follows:

“Writs of injunction granted to stay proceedings in a suit, or execution on a judgment, shall be returnable to and tried in the court where such suit is pending, or such judgment was rendered; writs of injunction for other causes, if the party against whom it is granted be an inhabitant of the state, shall be returnable to, and tried in, the district or county court of the county in which such party has his domicile, according as the amount or matter in controversy comes within the jurisdiction of either of said courts. If there be more than one party against whom any writ’is granted, it may be returned and tried in ,the proper court of the county where either may have his domicile.”

Appellees also invoke the proviso in section 3, art. 4043, Vernon’s Sayles’ Civil Statutes,, which is as follows:

“Provided, that no district judge shall have the power to grant any writ of injunction returnable to any other court than his own, unless the application or petition therefor shall state that the resident judge, that is, the judge in' whose district the suit is, or is to be brought is absent from his district, or is sick and unable to hear or act upon the application, or is inaccessible, or unless such resident judge shall, have refused to hear or act upon such application for the writ of injunction, or unless such judge is disqualified to hear or act upon the application; and the facts of, and relating to, such judge’s absence, or sickness and inability,’ or disqualification, or inaccessibility, or refusal to act, must be fully set out in the application-for the writ, or in an affidavit accompanying said application. ⅝ * * Whenever an application or petition for fhe writ of injunction shall be made to a nonresident judge upon the ground that the resident judge is inaccessible as herein-before defined,.the party making such application, or his attorney, shall make and file with the application, as a part thereof or annexed thereto, an affidavit setting out fully the facts showing that the resident judge is inaccessible,, and the efforts made by the applicant to reach and communicate with said resident judge and the result of said efforts in that .behalf; and, unless it appears from said affidavit that the applicant has made a fair and reasonable effort to procure the action of the resident judge upon said application, no nonresident judge shall have the power to hear said application upon the 'ground of inaccessibility of the resident judge; and should any nonresident judge hear said application upon said ground of inaccessibility of 'the resident judge, and should grant the writ of injunction prayed for, said injunction so granted shall be dissolved upon it being shown that the petitioner has not first made reasonable effort to procure a hearing upon said application before the resident judge.”

If the first statute quoted above is applicable to this case, it follows that the general demurrer and the special exceptions raising the question of jurisdiction were properly sustained, and the temporary injunction made returnable to'the district court of Milam county was properly dissolved by that court, because the court was without power to issue an injunction returnable to any court except the court in which the judgment sought to be enforced was rendered. However, we do not think that either of these statutes is applicable in this case. By the Constitution, district courts are made courts of general jurisdiction and clothed with power to issue injunctions, whether cognizable under the rules of equity or whether authorized by statute. Unless restrained by some valid statute, this power may be exercised by any district court where the venue is properly laid. Under the Constitution and laws of this state, justice courts are without power to issue writs of injunction, or to determine issues dependent thereon. The amount in eon-'troversy in the justice court was less than .$200, as well as the judgment rendered therein; hence the justice court of Crockett coun'ty was without jurisdiction in a suit to enjoin that judgment, or the enforcement of "the execution issued thereon and the sale under such execution. The district court is by the Constitution and laws invested with the jurisdiction to entertain such an injunction, and, the jurisdiction of the county court of Crockett county having been diminished 'and vested in the district court, the question is 'whether the district court of Crockett county 'had the exclusive jurisdiction to enjoin the enforcement of the judgment and the exeeu- ' tion. We do not find any other statute which would have the effect of investing the district court of Crockett county with exclusive jurisdiction of this suit, and -article 4653 is inapplicable and of no effect in this case, because the justice court in which the-judgment was rendered is without power to hear or determine an injunction suit. This was held by the Court of Civil Appeals of the Second District in the case of Foust v. Warren, 72 S. W. 405. The same holding was made by the Court of Civil Appeals of the Fourth District in the case of Osborne v. Gatewood, 74 S. W. 72.

In the former ease the suit was to enjoin an execution on a void judgment of a justice court, and in the other an execution on a judgment that had been satisfied; and both suits were brought in the district court of counties other than those in which the justice court judgments were rendered. In both cases it was held- that the district court had jurisdiction, notwithstanding the judgments wore rendered in justice courts of other counties.

In the Foust Case it was held that the seventeenth clause of the General Venue Statute (article 1830) alone applies. This clause provides that suit brought to enjoin the execution of a judgment shall bo brought in the county in which such'judgment was rendered; but this is a mere privilege which maybe waived by a defendant, and which must be seasonably claimed in order to obtain its benefits. In the Foust Case it was held that appellants waived their privilege to require the injunction suit to.be brought in the county where the justice judgment was rendered, and in this case appellees answered to the merits, and have never filed any pleas of privilege, nor raised the question of venue under section 17 of • said article 1830, the General Venue Statute.

We believe that the above-cited cases announce the correct rule where the court which rendered the judgment is without jurisdiction to issue injunctions, and that therefore article 4653 does not apply in this case.

As to article 4643, it is clear to us that said statute also has no application for the very same reasons. At most, the latter statute applies only where an injunction is sought in one court which by law is made returnable to another court; and in such case a district judge is without power to issue such injunction returnable to the proper-court, except upon the conditions- provided and the showing required in such statute. This is not a case where the injunction is by law made returnable to any other court, because article 4653, invoked by appellees, is not applicable, and we know of no other statute that does make this ease ■ returnable to .either the justice court or the district court of Crockett county.

In reaching this conclusion, we wish to ■ emphasize that this is not a case in which a writ of injunction is sought to stay proceedings in a pending suit, but is to restrain the enforcement of a judgment that has been vacated and set aside by appeal, and to enjoin the execution issued thereunder. No order of the district court of Crockett county, nor any proceeding in that court in the case appealed thereto from the justice court, is involved in this case; but the injunction proceeding is solely to restrain the execution of the judgment rendered in the justice court, and the writ is not returnable to and cannot be tried in the court where the judgment was rendered, because that court is not -clothed with power to hear such suit. If this were a suit to stay proceedings in-the suit pending in (lie district court of Crockett county, or if tile court in which, the judgment was rendered had the power to try an injunction suit to enjoin its enforcement or execution, the question would be different, and it would, seem that the provisions of the above statutes would require the injunction to bet returned to and tried in the district court of Crockett county in the one instance, or in the justice court in the other. But this suit does not concern any proceeding in the pending suit in the district.court of Crockett county, and involves no orders of said court, but is entirely based on the judgment rendered in the justice court and the execution issued thereon after it had been appealed and vacated.

Under the statutes and decisions in this state, where a case has been appealed from a justice court, the trial is de novo, and the effect of the, appeal is to vacate and annul the judgment of the justice court. Jurisdiction of the cause is thereby transferred to the county court, and while the appeal is pending the justice court is without authority to enforce the judgment, and such judgment will not support an execution. Moore v. Jordan, 65 Tex. 395. Therefore a writ issued by the justice of the peace under such judgment while the appeal is pending and undetermined is a void writ, and its enforcement may be enjoined.

In this case, appellees, in effect, ask us to construe article 4653 as requiring a writ of injunction grarited to stay execution of a judgment to be returned to and tried in a court of the “county” where such judgment was rendered, rather than to the “court” where such judgment was rendered. The statute is mandatory and must be enforced as written, but we are not at liberty to extend the same beyond its terms and its plain meaning. The Legislature has seen fit to limit said statute so as to only require that in such class of cases the writ of injunction shall be returned to the “court” where the judgment was rendered. The justice court in which the judgment was rendered being without power, and having no jurisdiction to issue or try an injunction against the enforcement of the execution on such judgment, the statute is inapplicable, as we have shown, and to hold that the injunction must be returned to and tried in the district court of Crockett county, where the judgment was not rendered, would be to extend the scope of the statute invoked. This we have no authority to do.

Appellees rely upon the case of Thallman v. Buckholts State Bank, 181 S. W. 791. We have examined this case, and are of the opinion that it is not applicable. There the injunction applied for and issued was sued out in the district court of Bandera county, and made returnable to that court, although the order of sale, the execution of which was enjoined, was issued out of the district court, of Milam county. This was a case where, by virtue of article 4653, the writ, was clearly returnable to the district court of Ban-dera county, which had both the power and jurisdiction to try the injunction suit, and was by said article required to be tried in that court, where the judgment was rendered, and out of which the order of sale issued. It will also be observed that in that case the injunction sought to restrain a sale under an order of sale issued out of the district coui’t of Milam county, commanding and directing the sale of the specific property which was levied upon. The facts of this ease, we think, are clearly distinguishable from the instant case.

For the reasons above given, we hold that the trial court erred in sustaining the general demurrer and the special exceptions assailing the jurisdiction of the trial court in this cause, and for this error the case must be reversed.

Appellants also complain of the action of the trial court in sustaining certain special exceptions other than those presenting the question of jurisdiction, which we will now consider. These are special exceptions Nos. 8 and 9, which are addressed to the allegations of plaintiffs’ petition seeking damages, as contained in paragraph 6 of said petition. These exceptions are in substance speaking general demurrers, and will be so treated. We have considered the averments in said paragraph of the petition in connection with the prayer for the recovery of damages, and it is clear to us that appellants seek to recover actual damages by reason of the alleged un-' lawful issuance and levy of the writ of execution, and the alleged malicious and unlawful purposes in procuring the issuance of said writ and the levy upon two grounds only, namely, for the sum of $250 or $325 for expense in the employment of counsel and in attending court; and they seek the further recovery of the sum of $1,000, as punitory damages. Under the authorities, we do not think either attorney’s fees or expense of attending court are proper elements of actual damages or recoverable as such. Landa v. Obert, 45 Tex. 539; Wallace v. Finberg, 46 Tex. 47; Salado College v. Davis, 47 Tex. 133; Ry. Co. v. Oram, 49 Tex. 346; Johnson v. Ring, 64 Tex. 226; Ry. Co. v. Ware, 74 Tex. 50, 11 S. W. 918; Jones v. Ry. Co., 75 Tex. 382, 12 S. W. 998; Trawick v. Martin-JBrown Co., 79 Tex. 460, 14 S. W. 564; Neese v. Radford, 83 Tex. 585, 19 S. W. 141; Seal v. Holcomb, 48 Tex. Civ. App. 330, 107 S. W. 916.

It is settled doctrine in this state that exemplary or punitory damages may not be recovered unless actual damages are alleged and proven; and, of course, such actual damages must be legally recoverable before they can afford a proper predicate for the award of exemplary damages.

Being of the opinion that appellants did not allege facts sufficient to show a good cause of action for either actual of exemplary damAges, we approve the action of the trial court in sustaining appellees’ demurrers to that part of the petition. However, we would not he understood as intimating that appellants might not have alleged damages to their property rights arising out of the alleged unlawful issuance and levy of the execution or a sale thereunder, if such should be made. Neither ■are we to be understood as holding that attorney’s fees may not be properly considered by the jury or court in estimating or ascertaining exemplary damages in a case where actual damages recoverable by law are ■shown.

For the error of the trial court in sustaining the general demurrer and special exceptions upon the question of jurisdiction and in dismissing the cause, this case is reversed ¡and remanded.

Reversed and remanded.

On Motion for Rehearing.

In a motion for rehearing, savoring somewhat' of the intemperate, appellees’ counsel has assailed the opinion of this court with ■great vigor and directness; but the writer, recognizing to the fullest extent the ancient ■and inalienable privilege of the lawyers to '‘cuss” the court, has not permitted the animadversions of counsel to shake his judicial poise in the least. On the contrary, in an ■earnest endeavor to get right on this case, we have been led to re-examine with greater ■care the questions in the record, and will state our conclusions.

In their motion, appellees first complain of certain statements made in the concluding portion of the opinion, explaining our holding that appellants’ petition did not show a good causé of action for either actual or exemplary damages, and that the trial court properly ¡sustained appellees’ demurrers. The language objected to is as follows:

“However, we would not be understood as intimating that appellants might not have ah leged damages to their property rights arising out of the alleged unlawful issuance and levy of the execution, or a sale thereunder, if such should be made. Neither are we to be understood as holding that attorney’s fees may not be properly considered by the jury or court in estimating or ascertaining exemplary damages in a ■case where actual damages recoverable by law are shown.”

It is insisted by appellees’ counsel that these expressions were not called for by the facts of the case, and are obiter dicta. We are unable to agree with this contention. These statements were made merely to indicate the scope and extent of our holding, upon the question of damages, and to prevent a misapprehension thereon; and, seeing how ■easily an opinion may be misconceived, we think our precaution was not unwise.

The appellants had cited authorities in which it was held that attorney’s fees in certain instances were recoverable as damages, and it was to indicate our view that the cases were not in point, because such recovery was limited to cases of exemplary damages, and in an effort to distinguish those cases, that we used the expressions objected to. Appellants had also cited other cases where damages had been allowed for injury to property rights, in the levy of illegal process upon void judgments, and for a similar reason we tried to make it clear that our holding did not extend to include such damages in a proper case. We might add that appellees’ counsel in his brief made the broad contention that attorney’s fees were not proper elements of damage, and for this additional reason we added the precautionary language above quoted; and it will be allowed to stand as written.

Appellees next contend that this court erred in holding that the district court of Milam county had jurisdiction to issue the injunction or to entertain the suit for the purpose of enjoining the enforcement of the judgment rendered in the justice’s court of Crockett county, for the reason that the statute applicable to this cause is mandatory and fixes the venue and jurisdiction in the district court of Crockett county.

With what would ordinarily be an admirable display of candor, counsel for appellees takes upon himself the blame for not directing this court’s attention to section 17 of article 1830, Vernon’s Sayles’ Statutes, which it is contended is imperative and controls this case.

We exonerate counsel from any culpability whatever, especially as appellants’ counsel did not fail to call our attention to the statute, and more especially because we considered and discussed the statute in our original opinion, and held that it was inapplicable, because its benefits had been waived by appel-lees.

However, we will again consider the question. The statute now so strongly relied upon by appellees, section 17 of article 1S30, Vernon’s Sayles’ Statutes, is one of the exceptions to the general venue article, which provides that no person who is an inhabitant of this state shall be sued out of the county in which he has his domicile. This exception reads as follows;

“When the suit is brought to enjoin the execution of a judgment, or to stay proceedings in any suit, in which case the suit shall be brought in the county in which judgment was rendered, or in which such suit is ponding.”

This provision is a venue statute, is a mere personal privilege, and may be waived as any other matter of privilege. In the present case it appears from the record that appellees, whose residence and domicile were in Milam county where the suit was brought and the temporary injunction obtained, filed their original answer to the petition, in which they answered by general demurrer and general denial only. At the second term of court, and nearly a year after they had thus answered to the merits, they filed an amended answer, in which by special exceptions they for the first time raised the question of venue and jurisdiction, claimed to be in. the district court of Crockett county. No plea of personal privilege, invoking the benefits of section 17 af article 1830, was ever filed by ap-pellees, and the special exceptions filed by them did not specifically mention said provision. However, we will treat the special exceptions as raising that issue.

In, order to obtain the benefits of the venue provision of section 17, it is necessary that the privilege must be claimed seasonably and in due order of pleading. It is well settled. that this may be done either by plea or by special exception. In the instant case no plea of privilege was ever filed, and the special exceptions were not filed until long after answer to the merits. Under these circumstances, we were of the opinion, and still believe, that the, special exceptions came too late, and that the privilege was waived.

However, it is contended by counsel that the general demurrer raised the question, and in legal effect entitled appellees to the benefits of the venue statute cited. We think this contention entirely inadmissible. The office of a general demurrer is to challenge the sufficiency of a petition or answer to state a cause of action, and it may be conceded will suffice to raise a question purely of jurisdiction; but we have been cited to no authority, and know of none, which recognizes that a general demurrer is sufficient to claim a mere matter of personal privilege.

Appellees’ counsel seeks to distinguish the case of Foust v. Warren, 72 S. W. 404, cited in our original opinion, on the ground that the trial court himself raised the question of venue, and defendants’ counsel made no objection to the venue, but proceeded to trial, which resulted in a mistrial, and thereafter a plea of privilege was filed. It is conceded by counsel for appellees that, if this statute be regarded strictly as a venue provision, the decision in the ‘Foust Case was correct, and that the privilege there was waived.

We fail to see the distinction between that case and the present one. Wherein it is material that the trial court suggested the question of venue is not made to appear, and it is also not shown how the fact that there was a trial, resulting in a mistrial, would distinguish that case from this. There having been a mistrial, it was the same thing as if there was no intervening trial at all, and it was the failure to file the plea of privilege until after answer to the merits that constituted a waiver of the privilege.

■ It is also sought to distinguish the case of Osborne v. Gatewood, 74 S. W. 72; but we are convinced that .this case, as well as the Foust Case, sustains our original holding.

Appellees argue at great length that section 17 of article 1830 is mandatory, because of. the imperative nature of the language used therein. We think there can be no question that this statute is mandatory, when its benefits are properly and legally invoked, and there is nothing in our opinion to the contrary. The whole question is: Uid appellees waive their right to insist upon the provisions of section 17? If they did, no matter how mandatory its character, the statute is inapplicable.

In support of his contention, counsel cites two cases — 'Mitchell v. Porter, 194 8. W. 981, and Mitchell v. Hancock, 196 S. W. 694. We regard neither of these decisions as in point. They simply hold that article 2147, Yernon’s Sayles’ Statutes, providing that actions “may” be brought against receivers of a corporation in the county where the principal-office of the corporation is located, is a merely permissive statute, and must yield to subdivision 14 of article 1830, providing that suits for the recovery of lands “must” be brought in-the county in which the land or apart thereof may lie. In each of the cases cited a plea of personal privilege, invoking the benefits of subdivision 14 of the General. Venue Statute, was seasonably filed, and it was held that the suit must be brought, where the land was situated. We see nothing, in these decisions in conflict with our opinion-There was no waiver in either of those cases, as in the instant case.

Adhering to the view that our original opinion is correct, the motion for rehearing is-overruled.

Motion overruled.
      <§=^Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <S=oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RAINEY, C. J.

license: Public Domain

text:
    CECIL v. FOX.
    (No. 8039.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 18, 1919.)
    1. VENUE &wkey;32(2) — CONTRACT — COUNTY of Domicile — Waiver.
    Contract for sale of stock of goods situated in certain county and providing for deposit by buyer and seller as forfeits of certified checks with bank situated in such county was by im: plication partly to be performed in such county, and buyer under Rev.' St. 1911, art. 1830, § 5; waived privilege of being sued for breach in county of his residence.
    2. Evidence <&wkey;10(2) — Judicial Knowledge.
    Court of Civil Appeals judicially .knows-that Corsicana is in Navarro county.

      S. Vejóte <&wkey;7 — Performance of Contract —Place of Performance by Implication.
    Though contract may not plainly specify that it is to bo performed in a certain place, yet if contract by its terms leads to no other conclusion but that it is performable in that place, then jurisdiction will be given to that place.
    4. Appeal and Error <&wkey; 134(2) — Interlocutory Order — Plea of Privilege — . Dismissal.
    Where plaintiff contested defendant’s plea of privilege to be sued in county of domicile by special and general demurrers, entry of order after hearing “that the general demurrer * * * be sustained,” and that the “plea of privilege be, and the same is, overruled,” and adjudging costs against defendant, was sufficient to support an appeal under Vernon’s Ann. Civ. St. Supp. 1918, art. 1903.
    Appeal from District Court, Navarro County; H. B. Daviss, Judge.
    Action by Alexander Pox against C. W. Cecil and another. Prom ruling overruling plea of privilege of defendant named to be ’sued in the county of his residence, defendant named appeals.
    Affirmed.
    Walker & Baker, of Cleburne, and Davis & Jester, of Corsicana, for appellant.
    Richard 'Mays, of Corsicana, for appellee.
   RAINEY, C. J.

This suit was brought by appellee POx against C. W. Cecil and Cecil & Co., the latter a corporation, both alleged to be residents of Johnson county, Tex., to recover a forfeiture of $1,000 for the’ breach of a contract. O. W. Cecil filed a plea of .privilege to be sued in the county of his residence, which plea on a hearing was overruled, and from which ruling this appeal is taken.

Appellant’s plea of privilege recites, among other things:

“Pirst. That this defendant is now, and was at the time of the institution of this suit and service of citation, a resident of Johnson county, Tex., and that he is not now, and was not at the time of the institution of this suit or service of citation, a resident of Navarro county, Tex. Second. That none of the exceptions to exclusive venue in the county of one’s residence •mentioned in article 1830 or in article 2308 of the Revised Civil Statutes exists in this cause” ' — but omitted to allege “nor at the time of filing of such plea.” .

Appellee contested the plea of privilege 'by demurrers, general and special. The said plea came on to be heard ■ on the pleadings and evidence, and, after hearing the demurrers and evidence, it was taken under ad'visement pending the trial of case, and then the court rendered the following judgment:

“It' is therefore ordered and adjudged’ by the court that the general demurrer to the defend'ant’s plea of privilege be sustained. It is further ordered and adjudged by the court that, upon the evidence and merits of the case, said plea or privilege be, and the same is, overruled” —and adjudging costs against appellant.

The facts adduced on the hearing of the plea of privilege show that the district court of Navarro county had jurisdiction of C. W. Cecil to try this case. The contract entered into between appellant and appellee was reduced to writing, and provided for part of the contract to be performed in Navarro county, not in express words, but by implication, in the general agreement .as follows:

“The said Fox agrees and obligates himself to sell and convey to the said Cecil all and entire the stock of goods, wares and merchandise situated in a two-story brick building, No. 106, on the west side of South Beaton street, in the city of Corsicana, Tex., now owned by him, together with all fixtures in said building, and used in connection with said stock of merchandise, except the shelving and three box counters and one safe. The property conveyed constitutes a general dry goods stock of merchandise. The said Cecil now agrees "*to purchase and receive said stock of merchandise from said Fox, and pay him therefor the sum of twenty thousand ($20,000.09) dollars.”

This language says that this stock of goods is situated in a house in Corsicana, and we judicially know Corsicana is in Navarro county. The contract provides for ap-pellee to deliver the stock of goods and for appellant to receive them, and no other place is specified in the contract at which they are to be delivered; therefore we are forced to the irresistible conclusion that the contract was at least partly performable in Navarro county.

Another part of the contract provides:

“It is further agreed, that both the said Fox -and the said Cecil will and do put up as a forfeit, their certified checks, each in the sum of $1,000.00 payable to each other, and deposited with the Corsicana National Bank, as stakeholder, together with this contract to insure the performance of its terms.”

This part of the contract provides for something to be done in Navarro county; that is, to deposit a certified check for $1,-000 as a forfeit. This appellant .has failed to do and for which he is liable, and he in this, as well as in the other, section of the contract, waived his privilege to be sued in the county of Johnson and made himself subject to section 5 of article 1830, Rev. St., which provides :

, “Where a person has contracted in writing to perform an obligati.on in any particular coun'ty, in which case suit may be brought either in such county, or where- the defendant has his domicile.”

Although a written contract may not plainly specify that it is to be performed in a certain place, ’ yet if the contract, by its terms, leads to no other conclusion but that it is performable in that place, then jurisdiction will be given to that place.

The case of Brick Co. v. Cox & Co., reported in 33 Tex. Civ. App. 292, 76 S. W. 607, in principle applies to this case and we think is decisive of it, and we quote from it as follows:

“It will be seen that the contract does not, by express terms, upon its face, provide for performance in Bell county. This, however, is not necessary in order to confer jurisdiction under the article above referred to. ‘It is held that the question to be determined is whether the legal effect and purport of the written instrument is that it should be performed in the county where the suit is brought.’ Sayles’ Tex. Civ. Prac. vol. 1, p. 256; Henry v. Fay, 2 Willson, Civ. Cas. Ct. App. §§ 834, 835. In the case of Seley v. Williams, 20 Tex. Civ. App. 405, 50 S. W. 399, it is said: ‘It is to be observed that exception 5 to article 1194 does not provide that the contract in writing shall, by express words, require performance of the contract in a particular county; but if the contract be in writing, and must necessarily be executed in a county different from that of the domicile of the party contracting, then, for breach of the contract, he may be sued in either of these counties.’ See, also, Ry. Co. v. Browne [27 Tex. Civ. App. 437] 66 S. W. 343. We think the rule is correctly stated in the authorities cited. Applying them to the contract and the facts offered in evidence in this case, we are unable to escape the conclusion that the legal effect and purport of .the contract, interpreted in the light of the circumstances surrounding the parties and attending its execution, contemplated a delivery of the oil by ap-pellees in Bell county, Tex.”

In the third, proposition, sixth assignment, the appellant claims:

“As the court did not dismiss the plea of privilege or enter judgment sustaining the demurrer and heard the plea of privilege on its merits and overruled it, the judgment on the plea on the merits prevailed over the entry of the order on the demurrer. Merely sustaining the general demurrer without the entry of a judgment thereon dismissing the plea was ineffective and did not have the result of dismissing the plea of privilege. It was necessary for the court to go further and carry into effect his actions in sustaining the demurrer. As this was not done and the plea of privilege was overruled on its merits, the last order prevailed over the first one.”

The court entered the following order:

“It is therefore ordered and adjudged by the court that the general demurrer to the demurrer to the defendant’s plea of privilege be sustained. It is further ordered and adjudged by the court that upon the evidence anS merits of the case the plea of privilege be and the same is overruled.”

The court further adjudged that the costs expended as a result and disposition of the plea of privilege “for which plaintiff may have his execution.” The officers of court were adjudged execution of costs, and this judgment was duly entered upon the minutes.

The appellant cites Hand & Loan Co. v. Winter, 93 Tex. 560, 57 S. W. 39, in support of his contention. We think that that is a different case from the instant one. There no final judgment was entered as here. The law as then existed did not permit an appeal from an interlocutory order overruling a plea of privilege, and a similar order was not required in this case as in that. All that was necessary in this case was the entry on the minutes of what ruling was made by the court. The court was not making disposition of the parties to the suit, but was only settling one question, and the case had to remain on the docket for disposition until that question was settled by appeal. The order entered was sufficient to bring the case up on appeal or it could never have been determined, but as the law exists the overruling of the plea of privilege as in this case can be appealed from, and, in entering a judgment as was here done, an appeal will lie, and appellant’s proposition is overruled. Article 1903, Vernon’s Sayles’ St. Supp. 1918.

■ We find' no error in the judgment, and it is affirmed. ' ••
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author: WALTHALL, J.

text:
    PIQUERO & SMITH v. CARLIN.
    (No. 922.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 6, 1919.
    Rehearing Denied Feb. 20, 1919.)
    1. Justices of the Peace <&wkey;159(l) — Appeal and Error — Bond on Appeal — Necessity.
    In view of Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 2393, 2395, relating to appeals from a justice’s judgment, and of Const, art. 5, § 19, authorizing such appeals, the appeal will not be perfected so as to confer jurisdiction on the appellate court until a sufficient bond or affidavit in lieu thereof be given.
    2. Justices of the Peace <&wkey;155(3) — Appeals — Filins Transcript — Time for Filing.
    Where the transcript on appeal from justice’s court has not been filed within the prescribed time, the appeal has not been perfected, and, if the delay is not explained or excused, the case will be dismissed on motion seasonably made.
    3. Justices of the Peace <&wkey;159(12) — Appeal and Error — Bond on Appeal — Substitute Bonds.
    On appeal from a justice’s judgment where a bond was not filed within the time required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2397, but upon motion to dismiss a substitute bond to replace an alleged lost original bond was filed, such bond was not sufficient to confer jurisdiction of appeal, where it did not appear that the justice had approved the origi-Dal bond nor that the substitute bond was identical therewith.
    Appeal from El Paso County Court, at Law; W. P. Brady, Judge.
    Action by P. H. Carlin against Piquero & Smith. Judgment for defendant was rendered in the justice’s court, and from a judgment for plaintiff on his appeal to the county court defendant appeals.
    Remanded, with instructions.
    C. A. Kinkel, of El Paso, for appellant.
    M. Scarborough and P. E. Gardner, both of El Paso, for appellee.
   WALTHALL, J.

This case was brought, originally, by appellee against appellants in the justice court, on April 28, 1916, to recover a carload of bones of the agreed value of $198; the property being sequestrated by appellee. The case was tried on the 18th day of January, 1917, resulting in a judgment against appellee and his bondsmen in sequestration and in favor of appellants in the sum of $198, with interest and costs of suit. Appellee duly gave notice of appeal to the county court and filed some kind of a bond within 10 days. On the 4th day of December, 1917, being the fifth term of the county court after the rendition of the judgment in the justice court, there were filed in the county court of the original papers, the citation, writ, affidavit, and bond in sequestration, but no appeal bond, copy of the judgment, or transcript from the justice court.

On the 16th day of January, 1918, appellants filed their first motion in the county court to dismiss the appeal, on the ground of failure to send up transcript, or copy of judgment, or appeal bond. The motion was overruled, and appellants excepted. At the March term of the county court, 1918, neither transcript nor appeal bond having been sent up from the justice court, appellants filed their second motion to dismiss the appeal on the ground that no appeal bond, transcript, or copy of the judgment from the justice court having been sent up in the time and manner prescribed by law, the county court was without jurisdiction. On the day following the filing of the second motion to dismiss and before motion heard, appellee had the transcript filed, including the judgment, avsd an appeal bond dated and marked filed and approved, by the justice of the peace, of date March 8, 1918, with the notation:

“This bond is filed in lieu of the one which was lost, the original bond being filed January 25, 1918” — and signed by the justice.

The said second motion to dismiss was thereafter at that term heard and overruled, and appellants excepted. At the May term of the county court, the case was tried without the aid of a jury and judgment rendered for appellee.

Appellants urge as the two grounds of error the overruling of their two motions to dismiss' appellee’s appeal from the justice court to the county court. It is insisted that the duty to send up the transcript and appeal bond rests upon the party appealing and the justice of the peace, and that the failure to have the transcript and appeal bond filed in the county court within the time prescribed by article 2897, Yernon’s Sayles’, deprived the county court of jurisdiction over the case. In the second assignment, the appellants stress the point that the appeal bond sent up in lieu of the first bond lost was not filed as a substituted bond in place of the lost one.

The record clearly shows that the provisions of the statute prescribing rules for perfecting an appeal from the justice to the county court were not complied with. The Constitution gives the right of appeal from judgments of justice courts only “under such regulations as may be prescribed by law.” Const, art. 5, § 19. Judgment was rendered against appellee, plaintiff in the justice court, and his bondsmen in sequestration, in the sum of $198, thus necessitating the giving of an appeal bond 'within 10 days from the date of the judgment. The bond must have at least two good and sufficient sureties, must be filed with and approved by the justice, must be in double the amount of the judgment, made payable to the appellee (defendants below, appellants here), and conditioned as required by the statute. When such bond has been filed with' the justice, the appeal shall be held to be thereby perfected. Vernon’s Sayles’, arts. 2398 and 2895. Where a bond is required to confer jurisdiction, it must affirmatively appear from the record that such bond was given, or an affidavit filed in lieu thereof. Pace v. Webb, 79 Tex. 814, 15 S. W. 269; Harris v. Robinson & Martin, 109 S. W. 400. The statute provides that, when the appeal has been thus perfected, it is the duty of the justice to transmit correct copies of all entries made on his docket and the original papers to the clerk of the county court by, at least, the second term of the court. Mr. Justice Reese, in Cariker v. Dill, 140 S. W. 843, in commenting upon the provisions of the statute subsequent to the giving of the bond, said that it was clearly the duty of the person prosecuting such appeal to see that this is done. While some of the courts have suggested that a failure to have filed in the county court within the prescribed time a proper transcript from the justice court is an irregularity merely (Ry. v. Conerty [Tex. App.] 15 S. W. 504; King v. Lacy [Tex. App.] 17 S. W. 143), yet all of the cases we have examined hold that, where the transcript provided for has not been filed within the prescribed time, the appéal has not been perfected, and if such delay is not explained, nor excused, the case should be dismissed on motion seasonably made.

Appellee insists, however, the record shows the filing of a proper appeal bond in the justice court within the required time. After the second motion to dismiss the appeal for want of an appeal bond and transcript, and after more than a year had elapsed since the rendition of the judgment, the justice approved the appeal bond filed with the notation that the bond then approved and sent up was in lieu of the one lost. There is hot even a suggestion in the statement of the justice or otherwise as to the lost bond, whether it conformed to the requirements of article 2393, Vernon’s Sayles’, nor whether the bond had been approved by the justice. The record does not show the bond filed to be a substituted bond; nor does it appear that the bond filed was identical with the bond -lost. When a valid appeal bond is presented to a justice of the peace by a party desiring to appeal, which bond is satisfactory to the justice, and he gives assurance to the party presenting same of its acceptance and that he will file same, the appeal ié thereby perfected. Jones v. Orange Wells, 3 Willson, Oiv. Cas. Ct. App'. §§ 94 and 95; Burdett v. Marshall, 3 Tex. 24; Insurance Co. v. Wagley, 36 S. W. 997. We think that, had it-appeared that the lost bond had been approved by the justice of the peace, and that the bond filed in the county court was identical with the lost bond, so as to know its terms as the obligation required to be given, though not substituted under the statute, and had the bond filed in lieu of the lost bond been sent up to the county court within any reasonable time and a reasonable showing made (why the bond and transcript were not sooner sent up, it should have been recognized by the county judge in the absence of any attack upon it, and, if found defective, the party appealing should have been permitted ’to file another bond. Galveston, H. & S. A. Ry. Co. v. Burris, 186 S. W. 381, and cases ' cited. It seems to us that, in the absence of any of the facts that could be considered at • all persuasive of a perfected appeal, and with appellants attacking the record as filed in the county court even to the second motion, it should be held that, if Carlin ever had a notion of appealing from the judgment of the justice court, he abandoned it, and that by reason of the facts shown in the record jurisdiction had never attached in the county court.

• Appellee cites and stresses Patty v. Miller, • 5 Tex. Civ. App. 308, 24 S. W. 330, as being in point and most cited, and as sustaining his contention. In that case, the required appeal bond was given in due 'time; but the transcript, though prepared, was not filed as required. In that case, after the appeal had been dismissed, it was reinstated upon appellant’s motion and affidavit that he had filed a proper appeal bond and made request to the justice of the peace to file the transcript in the court to which the appeal was taken, but that, for reason stated, the justice had refused to do so. After the case had been reinstated, it was thereafter on motion of appellee dismissed, because the transcript had not been filed within the time required.

The Fourth Court of Appeals held the dismissal error, as jurisdiction attached by the filing of a proper appeal bond, and that appellant ought not to be deprived of his appeal through the default of the officer. It will be seen that in that case, not only had,a sufficient appeal bond been duly filed and approved, but the party appealing had requested the justice to prepare and transmit the transcript. The "justice had prepared the transcript, but a controversy arose as to payment of cost resulting in the delay of sending the original papers and transcript to the upper court. We think there is enough difference between the facts in that case and this to destroy the analogy. After reviewing many cases not altogether harmonious as to what is essential to perfect an appeal, we have concluded that the record shows such condition of facts as to justify a holding that the appeal should have been dismissed.

For reasons stated, the case is remanded, with instruction to the county court at law that the case be dismissed.


author: KEY, C. J.

text:
    WATSON v. SCHULTZ.
    (No. 6012.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 25, 1919.
    Rehearing Denied Feb. 19, 1919.)
    1. Coukts <&wkey;121(l) — Jurisdiction—Amount in Controversy.
    In proceeding in district court of Robertson county under Acts 35th Leg. e. 96, § 14, where the return did not show the value of property levied on, which plaintiff was claiming, but the sheriff made an indorsement upon the replevy bond given by plaintiff, stating that he assessed the value of the property at $222.50, and it was agreed that such was its value, court properly overruled a motion to dismiss, on the ground that the value of the property in controversy was less than $200.
    2. Execution <&wkey;143 — Levy — Who May Question Validity.
    Manner of levy on partnership property cannot be questioned by claimant, who is not a party to the partnership.

      3. Execution <&wkey;143— Manner oe Levy — Waiver.
    Manner of levy on personal property under execution is waived by a claimant, who executes a claimant’s bond and takes possession.
    4. Execution <&wkey;143 — Manner oe Levy — Waiver — N otice.
    -A claimant of property levied on under execution, who executes a bond and takes possession, cannot complain that levy should have been liiade by giving notice, and not by actual seizure.
    5. Homestead <&wkey;S3 — Leasehold.
    A mere cropper has no such title to a crop as will support a plea of homestead.
    C. Judgment <&wkey;25G(2) — Findings — Conformity.
    Where jury found that personalty sold to a creditor was worth considerably more than debt, and that the creditor was a bona fide creditor, court was not precluded from passing upon issue of constructive fraud, which was not submitted to the jury; court having defined “bona fide” as meaning “real.”
    7. Fraudulent Conveyances <&wkey;187 — Good Faith — Constructive Fraud.
    A bona fide sale of personalty in payment of a debt was constructively fraudulent to extent of difference between debt and reasonable value of property, where creditor knew debtor was insolvent and debt was much less than value of property.
    8. F’raudulent Conveyances <&wkey;269(l) — Pleading — Proof.
    Under pleading charging that sale was in fraud of creditors, party was properly allowed to show that sale was constructively fraudulent to extent of difference between consideration paid and reasonable value of property, in that purchaser knew vendor was insolvent.
    Appeal from District Court, Robertson County; H. S. Moreliead, Judge.
    Suit by Paul Schultz against H. B. Watson. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    W. M. Johnson and H. A. Bush, both of Franklin, for appellant.
    Perry & Woods, of Franklin, for appellee.
   KEY, C. J.

Appellee concedes the correctness of the statement of the nature and result of this suit contained in appellant’s brief, which is as follows:

“This was a suit in the district court of Robertson county, at the Novcmber-December term, 1917, under the statutory provisions for the trial of the lights of property, in which suit Paul Schultz (appellee) was plaintiff, and H. E. Watson (appellant) was defendant.
“On the 15th day of September, 1917, appel-lee was the judgment creditor of one J. R. Watson, in the sum of $253.08, which judgment was in the county court of Robertson county. On said date be caused to be issued out of said court a certain writ of execution, which was executed by Geo. W. Davlin, sheriff of .Robertson county, by levying upon certain personal property as the property of the judgment debtor.
“After the levy of said execution, appellant filed his statutory affidavit as claimant of said property. The sheriff fixed appellant’s bond at $450, which was duly executed, and which the sheriff accepted and approved.
“This cause was docketed in the name of Paul Schultz, Plaintiff, v. H. E. Watson, Defendant, in the district court of Robertson county, under an act of the Thirty-Fifth Legislature conferring all jurisdiction heretofore exercised by the county court of said county on the district court.
“Upon the trial of the case plaintiff pleaded in substance the following issues:
“That he was the owner of the aforesaid judgment, which he was entitled to collect out of any property of the judgment debtor subject to execution. That he caused to be issued the' aforesaid execution and the levy made thereunder, and that the property seized was the property of the judgment debtor, subject to execution, and in his possession at the time of the levy. That appellant filed his claimant’s oath and bond in statutory form. That his claim was based upon a false, simulated, and void transfer, made for the purpose of hindering, delaying, and defrauding creditors. That plaintiff therefore was entitled to recover against defendant and his sureties.
“Defendant answered by pleading in substance the following: A general demurrer; certain special exceptions and motions to quash; a specific denial of any fraudulent, simulated, or void transfer for the purpose of delaying and defrauding creditors. He pleaded affirmatively that the judgment debtor was justly indebted to Mm in the sum of approximately $270, and that he purchased said crop for the sole purpose of collecting his debt, and in addition assumed an outstanding mortgage debt against the crop in the sum of $150. He further pleaded a rent contract between one Z. P. Phillipps and J. R. Watson, the judgment debtor, which would create the relation of landlord and tenant, the latter being the tenant, and that on the date he purchased the crop the same was grow-, ing, immature, and was therefore, as a matter of law, exempt from forced sale. That, immediately after he purchased said crop, he went upon the premises, took charge of the same, and with his own labor, and at his own expense, harvested and marketed said crop.
“In answer to defendant’s issues, plaintiff pleaded that the real value of the crop alleged to have been purchased was greatly in excess of the consideration alleged to have been paid, and was in fraud of the rights of plaintiff, esvho should recover of and from defendant and his sureties the excess, under the equitable rule of marshaling of assets.
“The case was tried before a jury, and was submitted by the court on special issues. The jury found that the sale of said crop was bona fide. But they found the intrinsic value of an individual one-half interest in and to said crop, on the 29th day of August, 1917, the date of the sale, to be $58.75 in excess of the consideration' paid.
“The court entered judgment in favor of plain■tiff and against defendant and Ms sureties on his bond in the sum of $58.75, together with •statutory damages of 10 per cent, thereon, and together with all costs of suit.
“Appellant, within the proper time, filed his motion for new trial, complaining of the errors-hereinafter shown. The motion was overruled. The case has been brought to this court by appeal duly perfected.”

Opinion.

The first assignment of error complains -of the action of the trial court in refusing to sustain appellant’s motion to dismiss the cause upon the theory that the value of the property levied upon was less than $200, and therefore the trial court had no jurisdiction.

By legislative enactment, the district court ■of Robertson county was vested with jurisdiction of all cases of which the county court would otherwise have jurisdiction, and therefore, if the property in controversy was worth more than $200, the district court had jurisdiction. It may he conceded that, strictly speaking, the return of the sheriff did not show the value of the property; but he made •an indorsement upon the replevy bond given by appellant, stating that he assessed the value of the property levied upon at $222.50, and it was agreed by the parties at the trial, as disclosed by the statement of facts, that such was its value. Therefore we hold that the court ruled correctly in overruling the motion to dismiss.

Appellant’s second, third, and fourth assignments of error complain of the action ■of the court in refusing to sustain exceptions, and quash the levy made by the sheriff upon the property in controversy.

Replying to appellant’s contention under those assignments, appellee submits two propositions, both of which are deemed by this court to be sound, and to sufficiently answer appellant’s contention. These propositions are: (1) The manner of a levy upon partnership property cannot be brought in question by a claimant who is not a party to the I>artnership; (2) the manner of the levy on personal property is waived by claimant thereof, who executes a claimant’s bond therefor, and takes possession of the same from the officer making the levy. Kessler v. Halff, 21 Tex. Civ. App. 91, 51 S. W. 48; Davis v. Jones, 32 Tex. Civ. App. 424, 75 S. W. 63; 17 Cyc. 1213.

In the case at bar it it contended that the levy should have been made by giving notice, and not by actual seizure. Davis v. Jones, supra, seems to be directly in point, and the court there said:

“The first two [propositions] raise the question whether the court erred in rendering judgment on the claimants’ bond after finding that one of the claimants owned a half interest in the property; the contention being that, as this claimant was in possession as joint owner, the levy, which was made in the usual way, by seizing the property, instead of by giving notice as provided in article 2349 * * * of the Revised Statutes, was null and void. But we do not so understand the law. The manner of levy was waived by appellants when they employed this speedy and informal method of testing their rights to the property.”

The court submitted the case to the jury upon special issues, one of which required the jury to find whether, at the time in question, J. R. Watson was a tenant or a cropper, and the jury found that he was a cropper. The charge also gave to the jury substantially correct definitions of the terms “tenant” and “cropper,” and there is testimony which supports the^nding of the jury in that respect.

While it has been held that a tenant or lessee has such title as will support a plea of homestead, and that a creditor has no right to have an execution or other process levied upon a growing crop on a homestead, it has also been held that such right of exemption does not apply to one who is a mere cropper, and therefore we overrule appellant’s numerous assignments relating to that branch of the case. Webb v. Garrett, 30 Tex. Giv. App. 240, 70 S. W. 902; Ellis v. Bingham, 150 S. W. 602.

While it is true that the jury found that appellant was a bona fide creditor of J. R. Watson at the time he took a bill of sale of all of his interest in the crop in question, they also found that at that time the property referred to was worth considerably more than J. R. Watson’s indebtedness to appellant. The charge of the court defined the term “bona fide” as meaning real, and not a feigned condition or transaction, and therefore, when the jury found that appellant was a bona fide creditor of his brother, J. R. Watson, that finding did not preclude the court from passing upon the issue of fraud, which was not submitted to the jury.

Recitals in the judgment show that the court found that, although the sale and transfer from J. R. Watson to appellant was a bona fide sale, because of the fact that áp-pellant had knowledge of the fact that J. R. Watson was wholly insolvent, and purchased the property for a consideration much less than its real value, such sale was a constructive fraud upon the rights of the plaintiff, to the extent of the difference between the consideration paid and the reasonable value of the property, and the court held that appellant was liable to appellee for the latter sum. Appellee charged in his pleading that the sale referred to was in fraud of the rights of creditors, and there was testimony which sustained the finding of tire court referred to, and therefore we overrule appellant’s assignments of error relating to that subject. Elser v. Graber, 69 Tex. 222, 6 S. W. 560; I-Ialff v. Goldfrank, 49 S. W. 1095; Schuster v. Farmers’ & Merchants’ Nat. Bank, 23 Tex. Civ. App. 206, 54 S. W. 777, 55 S. W. 1121, 56 S. W. 93.

There are some other assignments of error in appellant’s brief, which relate to questions which we do not deem necessary to discuss in this opinion. All of the assignments have been considered, and are decided against appellant.

Judgment affirmed.

Affirmed.
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author: MOURSUND, J.

text:
    BAKER v. SHAFTER.
    (No. 6124.)

    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 22, 1919.
    Rehearing Denied Feb. 19, 1919.)
    1. Appeal and Error <&wkey;930(3) — Review — Findings op Fact — Presumptions.
    Where answers to special interrogatories are in themselves an incomplete verdict, it will be presumed on appeal that the trial court made the necessary findings to support the judgment, if there is evidence justifying such findings.
    2. Railroads &wkey;>352 — Findings.
    Where plaintiff, struck at a railroad crossing, pleaded that engine was carelessly operated and engineer failed to use brakes, a finding on the issue of discovered peril was within the pleading.
    3. Railroads <&wkey;348(2) — Personal Injuries ■ —Actions—Evidence—Supeiciency.
    In an action for injuries to a pedestrian, struck by a locomotive while crossing a street without maintaining a proper lookout, evidence held sufficient to warrant the court in completing a special verdict by a finding of negligence on the part of the engineer which proximately caused the injury.
    4. Negligence <&wkey;83 — Proximate Cause — Discovered Peril.
    Where plaintiff’s negligence continues to the time of injury, if defendant has discovered plaintiff’s danger and realizes that he is ignorant thereof, but negligently fails to prevent the accident, defendant’s negligence is the proximate cause of the injury, and plaintiff’s negligence only remote.
    Appeal from District Court, Bexar County; J. T. Sluder, Judge.
    Action by Victor Shatter against the International & Great Northern Railway Company and James A. Baker, its receiver. Judgment for plaintiff, and defendant Baker appeals.
    Affirmed.
    John M. King, of Houston, Marshall Esk-ridge and F. C. Davis, both of San Antonio, and A. V. Wright, of Leakey, for appellant.
    J. D. Childs, of San Antonio, and Martin Faust, of New Braunfels, for appellee.

      writ of error granted by Supreme Court April 2, 1919.

   MOURSUND, J.

Victor Shatter sued the International & Great Northern Railway Company and James A. Baker, its receiver, for damages for personal injuries alleged to have been sustained through the negligence of the defendants. The defendants answered by general denial and plea of contributory negligence. Plaintiff dismissed as to the railway company, and a judgment was rendered against the receiver for $3,000, upon a special verdict, which each of the parties contended entitled him to a judgment.

The court, after defining negligence, submitted the following questions, in addition to the one relating to amount of "damages, each of which was answered in the affirmative:

“No. 1. Was the defendant, James A. Baker, receiver of the International & Great Northern Railway Company, his agents and employés, guilty of negligence in operating its engine at the time and place, under the circumstances, in running its engine ov.er the plaintiff and inflicting the injuries which you may find from the evidence were so inflicted on the plaintiff?
“No. 2. Was the plaintiff guilty of negligence in attempting to cross the railroad tracks of the defendant at the time and place and under the circumstances which you may find from the evidence he so undertook to cross said tracks when he was struck by the engine of the defendant?”

No request was made for submission of questions relating to proximate cause, and the verdict is incomplete; that is, in such form as to be insufficient on its face to entitle either party to a judgment. We must presume that the trial court made the necessary findings to complete the verdict, so that it will support the judgment, provided there is evidence on which such findings could be based. The findings to be supplied are, first, that defendant’s negligence was a proximate cause of the injury suffered by plaintiff; and, second, that plaintiff’s negligence did not proximately cause or contribute to cause such injury. Appellant contends that the evidence is of such character that as a matter of law neither of such findings can be sustained.

Plaintiff was struck by the switch engine at the intersection of Lakeview avenue and Salado street. The engine, with no cars attached, was running north on Salado street, and plaintiff crossed such street diagonally, and was in the center of Lakeview avenue, when struck by the engine. Lakeview avenue is 65 or 75 feet wide. The engineer testified he was running at the rate of about 6 miles an, hour; another witness, Alford, estimated the speed of the engine at 10 miles an hour. An expert witness testified that a switch engine, without cars attached, going at the rate of 10 miles an hour, could be stopped within 8 or 10 feet. The fireman testified (and, his testimony being conflicting, we state that most favorable to plaintiff, in deference to the judgment) that he called the engineer’s attention to stop when he was 75 feet from Lakeview avenue, at which time he saw plaintiff about to get on the track. Taking this as true, the engineer had. at least 100 feet in which to stop the engine. Again, the fireman testified the engine went about 40 feet after he called to the engineer before it struck plaintiff. The engineer was at his post and had his hand on the lever when the fireman called to him. The engine went about 10 or 12 feet after striking plaintiff. Alford who saw the engine when it was about 75 or 80 feet south of the crossing, testified:

“The engine did not decrease its speed any from the time I first observed it, so that you could notice it.”

This statement, coming as it did right after the description of the accident, was obviously intended to apply to the time intervening between the accident and when he first saw the engine. The plaintiff had a muffler around his head, and looked straight ahead as he crossed the street diagonally in a northeasterly direction facing nearly away from the engine.

The court was authorized to find that plaintiff’s negligence consisted in the failure to keep a proper lookout, that it continued up'to the time he was injured, and that he did not become aware of the danger until struck by the engine. He was authorized to find that the fireman discovered that plaintiff was negligently undertaking to cross the track, and not aware of the approach of the engine; that such discovery was made in ample time to prevent injury to plaintiff by stopping the engine; that the circumstances were not such as to justify the fireman in acting upon an assumption that plaintiff would of his own accord get out of the way and avoid the danger, and that the fireman did not act on any such' assumption; that he called to the engineer to stop the engine, and the latter heard the call; that the engineer was negligent in his operation of the engine after being thus notified to stop, with the result that plaintiff was run down and injured.

Question No. 1 submitted to the jury did not limit the inquiry to any particular act or method of operating the engine, and was broad enough to include the failure to apply the brakes and bring the engine to a stop as quickly as could have been done without endangering the lives of the engineer and fireman. The pleading was general, and contained the averment that the engine was carelessly operated and that brakes were defective, “or the operatives of the engine negligently failed to use them at said time and place.” There was no specific plea raising the issue of discovered peril, but as the doctrine of discovered peril or last clear chance simply furnishes a means for determining whether the plaintiff’s negligence is a remote or proximate cause of the injury, and is based on the principle that a party who has the last opportunity of avoiding accident is not excused by the negligence of any one else, that his negligence and not that of the one first in fault is the sole proximate cause, it seems clear that the issue of discovered peril is involved in the general issue of proximate cause. We do not mean to say that a plaintiff cannot by his pleading place himself in such a position as to deprive himself of the benefit of discovered peril, for he may so restrict his averments as to raise no issue to which the fact of discovery of the danger could apply. But when the issue is raised in a general way as to failure to stop the engine, we believe the inquiry whether that act was the proximate cause of the injury necessarily includes an inquiry into the situation of the parties and their opportunities for avoiding the accident. We have found no Texas case on this point, but cite in support of our view the case of Mosso v. Stanton Co., 75 Wash. 220, 134 Pae. 941, L. R. A. 1916A, 943.

If the testimony of the fireman is taken as true with reference to the time when he called to the engineer, and is considered in connection with that relating to the distance in which an engine could be stopped, as well as that of Alford to the effect that he was unable to perceive any slowing up of the engine, the conclusion must be reached that the court was warranted in finding that the engineer either failed to use his brakes or used them negligently, and that, had he made proper use of all the means at hand to stop the engine, plaintiff would not have been injured.

It appears to be well settled that, even if plaintiff’s negligence continues up to the time he is run over, if the defendant has discovered plaintiff’s presence in a situation of danger, and realizes that plaintiff is ignorant of such danger, and negligently fails to take such steps as, if taken, would have prevented the accident, the defendant’s negligence will be deemed the proximate cause of the injury, and plaintiff’s negligence only a remote cause. Notes, 45 L. R, A. (N. S.) 896; 36 L. R. A. (N. S.) 957; 7 Ij. R. A. (N. S.) 132. Applying this rule to the facts of this case, as we must deem them to have been found by the court, it appears that the court was warranted in making such findings as support the judgment and are not contradictory of anything found by the jury.

The judgment must therefore be affirmed.
      (&wkey;>Foi other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes