author: MOURSUND, J.

text:
    SCHLEICHER et al. v. SCHMEDT.
    (No. 6126.)
    '(Court of Civil Appeals of Texas. San Antonio.
    Eeb. 5, 1919.)
    1. Process ⅞⅜155 — Citation — Defect in Copt — Motion to Quash.
    There being no defect in original citation to ■defendant, if he wished to take advantage of defect in copy, it should have been done by motion to quash supported by proof, and not by exception.
    2. Process ©=w49 — Citation — Complying with Statute.
    Gen. Laws 1917, c. 91, § 6 (Vernon’s Ann. Civ. St. Supp. 1918, art. 30), did not take effect until August, 1917, and citation issued on May 14, 1917, commanding defendants to appear on the second Monday after the first Monday in September, as provided by said section, was void; the term of court in San Patricio ■county fixed by law then in force being on the sixth Monday after the first Monday in September.
    3. Appearance <®=»19(3) — Questioning Jurisdiction-Jurisdiction oe Person.
    The court does not acquire jurisdiction over the person of a defendant by his appearance for the purpose alone of questioning the jurisdiction.
    4. Appeal and Error <®=»1173(5) — Joint Defendants — Reversal as to One.
    Judgment, being one canceling a lien and note held jointly by defendants, should be reversed as to both, where there was no valid citation or appearance giving jurisdiction of one ■defendant, and assignment that it should be held that the other defendant entered an appearance is immaterial.
    Error from District Court, San Patricio ■County; F. G. Chambliss, Judge.
    Suit by Henry Sehmedt against Georgo J. Schleicher and another. Judgment for plaintiff, and defendants bring error.
    Reversed and remanded.
    G. E. Pope, of Goliad, and Jones & Childers, •of Sinton, for plaintiffs in error.
    Beasley & Beasley, of Beeville, for defend-ant in error.
   MOURSUND, J.

This is a suit by defend-ant in error to recover a certain sum claimed to have been overpaid on certain purchase-money notes and to cancel two certain promissory notes and- the vendor’s lien held by plaintiffs in error. The suit was filed May 14, 1917, and on May 18, 1917, citations were issued which commanded plaintiffs in error to appear on the second Monday after the first Monday in September, 1917. The citations were served respectively on May 24, 1917, and May 26, 1917. On September 14, 1917, plaintiff in error Geo. J. Schleicher filed an exception to the citation to him, alleging that said citation commanded his appearance on the third Monday, after the first Monday in September, 1917, same being the 17th day of September, 1917, and that such citation was therefore ambiguous and duplicitous, and failed to comply with the statute which requires the citation to state the time and place of holding court.

On the same day plaintiff in error Lee Joseph filed an instrument which recites that he appeared only for the purpose of filing a special exception, pointing out a defect in the citation to his codefendant, which alleged defect was described just as it was in his codefendant’s exception. He averred that his codefendant was a necessary party to the cause of action as stated in plaintiff’s petition, and that he could not have his rights adjudicated without having such codefendant in the case. He closes his exception with the statement, “and of this he prays judgment of the court.”

The court overruled such exceptions, and on October 23, 1917, entered a judgment on the merits in favor of defendant in error, in which he recited that the defendants appeared by special exceptions to the citations and failed to answer and otherwise failed to appear.

There is no merit in the assignments complaining of the overruling of the exceptions. There was no defect in the original citation to Schleicher, and if he wished to take advantage of a defect in the copy, it should have been done by motion to quash, supported by proof.

A more serious question is raised, however, by plaintiff in error’s third assignment of error.

At the time the citations were ‘issued the term of court was fixed by law to begin in San. Patricio county on the sixth Monday after the first Monday in September, but on March 20, 1917, an act was approved changing the time for holding such court to the second Monday after the first Monday in September. Such act provides in section 5 “that this act take effect and be in force from and after the first day of August, A. D. 1917.” Chapter 91, General Laws 1917 (Vernon’s Ann. Civ. St. Supp. 1918, art. 30). At the time the clerk issued the citation said act changing the time for holding court had not taken effect, and therefore was without vitality, and could not he any guide to the clerk in the performance of this statutory duty to state in the citations the time of holding the next term of court. M., K. & T. Ry. Co. v. State, 100 Tex. 420, 100 S. W. 766; Halbert v. San Saba Springs Land Ass’n, 89 Tex. 230, 34 S. W. 639, 49 L. R. A. 193. It was his duty to observe the law then in force in writing the citation. In the case of Watson v. Miller, 55 Tex. 289, it was held that a citation which was returnable on the third Tuesday of April was defective, although the court actually convened at that time under ordinances adopted by the constitutional convention which had gone into effect prior to such date, but which had • not become effective at the time the clerk issued the citation. The language of the court is applicable in this case, as follows:

“On the second of March, when this petition was filed, there was no law authorizing the district clerk of Bell county to issue citation returnable at any other than the regular term, according to the law then in force, viz. the first Monday in May. A citation issued by him returnable on the third Tuesday' of April was without authority of law.”

This court has recently held that a citation returnable to the term fixed by the law in force at the time of its issuance is valid, and that the clause of an act changing the term of court which provides that all process returnable to the term theretofore fixed by law should be returnable to the new term had the effect of making the citation returnable to the new term. Queiroli v. Simon & Dunlap, 206 S. W. 123; Queiroli v. Whitesides, 206 S. W. 122. The act under consideration in this case contains a similar clause, but none purporting to validate process invalid at the time of its issuance because it stated a time for holding court not fixed by any law then in force.

The citation issued in this case was a nullity, and the default judgment cannot be sustained. In addition to the case quoted from we cite in support of our conclusion Neill v. Brown, 11 Tex. 17; Covington v. Burleson, 28 Tex. 368; Cave v. City of Houston, 65 Tex. 619; Pruitt v. State, 92 Tex. 434, 49 S. W. 366. These cases, while not directly on the point at issue, show the strictness with which the statutory requirements relating to citations must be complied with.

Appellee contends that the filing of the exceptions constituted an appearance, provided such exceptions were properly overruled; in other words, that the failure to point out a defect constitutes a waiver thereof. This would be a good rule, but, there being no statute which so provides, we believe it must be held that the court does not acquire jurisdiction over the person of a defendant by his appearance for the purpose alone of questioning the jurisdiction. He must either enter an appearance for some other purpose or be cited as provided by law.

It is further contended that, as the appearance of Lee Joseph was for the purpose of questioning its jurisdiction, not as to himself, but as to his codefendant, it should at least be held that he entered an appearance. We are inclined to the belief that the contention should be sustained, but regard this as immaterial, for the reason that, as the judgment is one canceling a lien and note held jointly by plaintiffs in error, we conclude that it should be reversed as to both of them. Of course, it is unnecessary to further cite either of them, as the statute provides that appearance for the purpose of questioning jurisdiction shall operate as an appearance for all purposes for the next term of court.

The judgment is reversed, and the cause remanded.
      «ScpFor other cases 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:
    BECKHAM v. MUNGER OIL & COTTON CO.
    (No. 8056.)
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 21, 1918.
    Rehearing Denied Eeb. 22, 1919.)
    1. Judgment <⅞=>197 — Dismissai>-Merits.
    Where, after the court held that plaintiff could prove damages that accrued under some of the paragraphs of the petition, plaintiff announced he would offer no evidence, that was an abandonment of the case, authorizing a judgment of dismissal instead of a judgment for defendant on the merits.
    2. Dismissal and Nonsuit <s=>60(2) — Abandonment oe Case — -Refusal to Offer Evidence.
    Where plaintiff abandoned his case by refusing to offer evidence as to damages under paragraphs of petition to which exception was not sustained judgment of dismissal should be entered.
    3. Appeal and Ebeob <§=80(6) — Decisions Appealable — Paet oe-Controversy.
    A plaintiff who abandoned his case by refusing to offer proof in support of the part of petition sustained on exception is not entitled to appeal from the judgment against him, as only part of the case would be brought up for review.
    4. Appf.al and Ebkob <@=>801 (4) — Dismissal —Mekits.
    It is not the practice of the Court of Civil Appeals to review any question affecting the merits of the controversy on motion to dismiss the appeal.
    5. Appeal and Eebok <@=>712 — Review—Rec-obd.
    The Appellate Court is bound by the record, and a decision cannot be based on matters ¡ not shown by the record.

      Appeal from District Court, Limestone County; A. M. Blackmon, Judge.
    Action by Jobn J. Beckham against the Munger Oil & Cotton Company. From a judgment for defendant, plaintiff appeals.
    Judgment reformed so as to be ofae of dismissal, and as reformed affirmed.
    O. Kennedy, of Mexia, and W. T. Jackson, of Groesbeck, for appellant.
    C. S. Bradley, of Groesbeck, and Coke & Coke, of Dallas, for appellee.
   RAINEY, C. J.

This suit was brought by appellant to recover of appellee damages caused by appellee’s removing from a tract of land a gin plant that it had built near appellant’s farm and which it had contracted to maintain. Appellant’s petition alleged various grounds of damages, and appellee answered by various exceptions, general and special, general denial, and special defenses. The cause came on regularly for trial. Both parties announced ready. The exceptions of defendant were presented and sustained in part and overruled in part, “the court holding that plaintiff could prove and show any damages that have accrued under paragraphs 6, 9, and 11 up to this date.” The plaintiff in open court excepted. “Thereupon the plaintiff announced that he would not offer any evidence, and the court thereupon rendered judgment for defendant,” the judgment being in effect that plaintiff take nothing of defendant and that defendaht go hence and recover all costs, for which let execution issue. Plaintiff in open court then and there excepted and gave notice of appeal.

The legal effect of plaintiff’s refusal to introduce evidence to prove such damages that the court held he could prove was to abandon his case. By so doing the whole case could have been reviewed, and such relief granted plaintiff as he is entitled to, but by pursuing the course he did he is not'entitled to an appeal, as only part of the case is before us for decision. O’Neal v. Wills Point Bank, 64 Tex. 644; Caruthers v. Slaughter (Sup.) 2 S. W. 526; Sorrell v. Stone, 60 Tex. Civ. App. 51, 127 S. W. 300.

The court erred in rendering the judgment it did, which is a final judgment, but should have rendered one of dismissal for want of prosecution. Under these circumstances this court will take cognizance of this proceeding and grant the appellant relief from the judgment rendered and reform it so that it will be one of dismissal.

On a former day of this term the ap-pellee presented a motion to dismiss this appeal on the ground of abandonment, which we have discussed above. We overruled that motion, believing a consideration thereof would require a full examination of the record, which should be done only when the case was taken up for final consideration. The practice of this court is not to review any question affecting the merits of the controversy upon ths motion to dismiss. Elliott’s Procedure, §§ 521, 522.

In appellant’s argument he claimed that in refusing to introduce proof he announced to the court that all damages which the court said he could prove he would' abandon, and would insist only on those which the court overruled. There is no record showing this proceeding, and we can only adhere to the record, which shows that counsel refused to offer any evidence to substantiate any claim for damages. Nothing was left for the court to do but dismiss the case.

The judgment is reformed so as to be one of dismissal, and as reformed it will be affirmed.
      <S=>Por other, cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J,

text:
    HONEY v. WILSON BROS. MERCANTILE CO.
    (No. 5999.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 22, 1919.)
    Gaming <S=>49(3) — Contkacts—Evidence.
    Evidence held to show a contract for sale of cotton was a mere gaming transaction or dealing in futures, the parties not contemplating actual delivery.
    Appeal from McLennan County Court; Jas. P. Alexander, Judge.
    Action by the Wilson Bros. Mercantile Company against T. D. "Honey. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    John Maxwell and Alva Bryan, both of Waco, for appellant.
    Pat M. Neff, of Waco, for appellee.
   JENKINS, J,

This is a companion case to J. M. Pate v. Wilson Bros. Mercantile Co., 208 S. W. 235, this day decided by this court. The contract is the same as therein set out, except as to the name of the seller and the amount of cotton mentioned.

For the reasons stated in the case referred to, we hold that the contract sued on is illegal, and therefore cannot be made the basis of a suit for damages.

In this case there was evidence introduced as to the intention of the parties to the contract in reference to the delivery of the cotton. Appellant, and two other witnesses who were, present at the making of the contract, testified that it was expressly agreed at the time the same was made that no cotton need be delivered; that the agent of plaintiff said that all they wanted was the difference. If cotton went up, they would pay the difference in the price, and, i£ it went down, appellant could pay the difference. Said agent denied making this statement. But disregarding this testimony oí appellant and his witnesses, we think the testimony of said agent shows that it was his intention that the contract might be settled on the margin of profit or loss. He did not testify that it was his intention that the cotton should be delivered, but that the contract should be settled by payment of the difference in the market value. On cross-examination he said:

“I never did demand the delivery of the cotton. . X wrote Mr. Honey a letter, as I did all others, asking him to come in and settle up his contract.”

His testimony further shows that, as he would buy “a batch” of cotton, he would sell the same for future delivery at the time the contracts called for. In other words, he appears to have been in the business of both buying and selling futures.

Eor the reasons stated, we reverse the judgment of the trial court, and here render judgment for the appellant.

Reversed and rendered.
      <@=3lTor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. SILBER.
    (No. 2076.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 6, 1919.)
    1. Appeal and Error <®==>1064(1) — Harmless Error — Instructions.
    In an action for failure of carrier’s agent to protect person at station from assault and robbery, an instruction, if erroneous as assuming negligence on part of agent if acts complained of were committed in his presence, held harmless in view of conflicting evidence as to whether acts of violence actually occurred; the agent justifying his noninterference on ground that no assault occurred.
    2. Carriers <⅜=3284(2) — Duty to Passenger —Protection prom Assault and Robbery.
    Where a passenger possessing a ticket and waiting at a carrier’s depot for the train was being assaulted and robbed, and called upon the carrier’s agent for help and protection, the carrier owed the duty of exercising a high degree of care for his reasonable protection.
    Appeal from Wood County Court; R. E, Bozeman, Judge.
    Suit by S. Silber against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    R. B. Howell, of Winnsboro, and Jones te-jones, of Mineóla, for appellant.
    E. A. Tharp, of Mineóla, for appellee.
   HODGES, J.

This appeal is from a judg-

ment in favor of the appellee for $500 as-damages for an assault and personal indignities at the hands of third parties from which, appellant’s agent failed to furnish the proper protection. According to the appellee’s pleadings and evidence, he had gone to the-appellant’s depot for the purpose of taking passage on one of its trains and had secured, a ticket. While there and awaiting the arrival of his train, he was assaulted by third' parties in the presence of the appellant’s-agent. 1-Ie was robbed of about $80 in money, and was taunted and abused in a manner that caused him to suffer humiliation and shame. 1-Ie appealed without effect to the appellant’s-agent for protection.

The assignments assail tbe charge of the court. The first complains that in submitting the issues of fact and the legal, grounds upon which the appellee might recover a judgment the court assumed negligence on the part of the agent, if the acts-complained of were committed in his presence. The record discloses a sharp conflict in the evidence as to whether the acts of violence complained of actually occurred. The ap-pellee, who was in part supported by another witness, testified that they did occur and in the presence of the agent; that before then-occurrence he appealed to the agent for protection, but failed to get it. The agent and some of the parties charged with the offensive conduct denied that the violence complained of ever occurred, or that any abuse towards the appellee was indulged in by any one. No issue was made as to whether the agent could have Interfered, or as to whether or not he failed to see what was going on. The agent justified his noninterference upon the ground that the appellee was not assaulted or improperly treated by any one. If the appellee was a passenger upon that occasion and was being mistreated in the manner charged by him, the agent of the appellant owed the .duty of exercising a high degree of care to furnish him reasonable protection. It is undenied that the agent saw what did occur, and it is not claimed that he could not have prevented it, or that he made any effort to do so. The charge, if technically erroneous, was not calculated to do the appellant any injury.

The remaining assignments, which complain of other portions of the charge, are-overruled.

There was no error in refusing to grant a. new trial for newly discovered evidence.

The judgment is affirmed.
      <S=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    BRYAN v. S. F. BOWSER & CO.
    (No. 8084.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 8, 1919.)
    Corporations <S=»642(1) — Foreign Corporation — “Transacting Business” in State.
    Sale and installation of gasoline container and pump by a foreign corporation held a transaction of business within the state by it within Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1314-1321.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Transacting Business.]
    Appeal from Dallas County Court; T. A. Work, Judge.
    Suit by S. F. Bowser & Co., a corporation, against E. P. Bryan. From judgment for plaintiff, defendant appeals.
    Reversed, and cause dismissed.
    E. P. Bryan and Claude M. McCallum, both of Dallas, for appellant.
    Burgess, Burgess, Christman & Brundidge, of Dallas, for appellee.
   TALBOT, J.

This suit originated in justice court of precinct No. 1 in and for Dallas county, Tex., and appellee recovered judgment in that court. Appellant duly perfected his appeal from this judgment to the county court of Dallas county 'at law, Dallas county, Tex.

The suit was brought by appellee against appellant to recover the sum of $176, balance alleged to be due upon a written contract dated Dallas, Tex., March 15, 1915, for the sale and installation of a gasoline tank, pump, and accessories, for interest and attorney’s fees, and for a foreclosure of a chattel mortgage. The written contract upon which the suit was based was attached to and made a part of appellee’s petition. Ap-pellee, among other things not necessary to be stated for the purposes of this appeal, alleged that its domicile and principal place of business was at Ft. Wayne, in the state of Indiana, and that it was engaged in interstate commerce trading, and that the sale of the said pump covered by the said contract, copy of which is marked Exhibit A, was an interstate commerce transaction, that the plaintiff was not at the time of the making of this contract, nor at any time since February, 1914, engaged in business in the state of Tesas, that it has no stock of goods or salesroom in the state of Texas, and that the goods covered by contract herein sued upon were not in the state of Texas at the time said contract was made, but that the said contract was accepted in the state of Indiana and the goods thereafter shipped to the defendant. The appellant, so far as need be stated, pleaded a general denial, and specially that appellee is a foreign corporation and is maintaining an office in Texas, that it has agents in Texas, and that the said order for the pump, tank, and other articles mentioned in appellee’s petition was solicited by plaintiff’s agent in Texas, and that said pump, tank, etc., were to be installed complete by appellee at Dallas, Tex., and that all the labor and a great deal of the material required for the installation were obtained in Texas, and that under said agreement plaintiff was to install same ready for use at Dallas, Tex. And defendant says that plaintiff was not and at the time of making said contract, and at the time of installation of said machinery, did not have its articles of incorporation on file with the secretary of state, and did not have a permit to do business in the state of Texas.

The case was tried before the court without a jury, and judgment again rendered in favor of appellee, and the appellant perfected an appeal to this court.

There is but one assignment of error, and the sole question to be decided is whether or not the facts and circumstances in evidence, which are practically uncontroverted, show that the appellee transacted business in this state within the meaning and purpose of the provisions of chapter 26, vol. 1, Vernon’s Sayles’ Texas Civil Statutes, relating to foreign corporations. These provisions of the statute, among other things, provide that any corporation for pecuniary profit, except as therein provided, organized under the laws of any other state, desiring to transact business in this state, or solicit business in this state, or establish a general or special office in this state, shall file with the secretary of state a duly certified copy of its articles of incorporation, and thereupon the secretary of state shall issue to such corporation a permit to transact business in this state; that no such corporation can maintain any suit or action, either legal or equitable, in any of the courts of this state, upon any demand, whether arising out of contract or tort, unless at the time such contract was made, or tort committed, the corporation had filed its articles of incorporation, under the provisions of said chapter, in the office of the secretary of state for the purpose of procuring its permit. The facts show that the ap-pellee’s cause of action is founded upon a contract with appellant made on. the 15th day of March, 1915, and that appellee at that time was, and since has been, a foreign corporation with its domicile and principal place of business at Ft. Wayne, in the state of Indiana, without a permit to transact business in the state of Texas. The contract was entered into between appellant and J. O. White, soliciting sales agent of appellee, at Dallas, Tex., but was not binding until forwarded to and accepted by appellee, S. F. Bowser & Co. at their office in Ft. Wayne, Ind. After its execution it was so forwarded and accepted. By the terms of the contract appellee agreed to prepare according to instructions, ship, deliver, and-install at Dallas, Tex., one gasoline tank, fully described, “complete with meter, filter, 10-foot suction hose, two-way nozzle, portable nozzle, and fill box,” in consideration of which appellant agreed to pay ap-pellee the lump sum of $219, as follows: Cash with order $27 and balance, of $192 payable as evidenced by promissory note, with interest — the contract providing that the note mentioned was “given as evidence of said indebtedness, and not in payment thereof.” There are other provisions of the contract which need not be stated in this opinion. B. L. Prince testified that he was district manager for appellee, located at No. 1911 Commerce street, Dallas, Tex.: that everything connected with the pump and tank installation at appellant’s place of business in Dallas, Tex., involving the system in question here was shipped to Dallas complete from appellee’s factory at Ft. Wayne, Ind., except the ordinary galvanized pipe which makes the connection between the tank and the pump. He further said: ,

“As to this job in question we took the contract to do the installation. Occasionally we make contracts wherein the purchaser is to do the installing of the system-. In the type of outfit that Mr. Bryan [appellant] has in a majority of cases S. F. Bowser & Co. [appel-lee] does the installing work. Probably 90 or 95 per cent, of the installation of this kind is done by us. The people who performed the labor of putting in this system for Mr. Bryan [appellant] live in Dallas. They were hired and paid to do this work by S. F. Bowser & Co.”

Appellant, Bryan, among other things, testified:

“S. F. Bowser & Co. installed the pump in question, it being a gasoline pump, with a tank attached to hold gasoline; the tank being 285-gallon capacity. I run and am the proprietor of the Southland Garage, at 1109-11 Commerce street, Dallas, Tex. In putting in this pump and tank in question they had to take up the sidewalk in front of my place of business and to excavate under the sidewalk a pit about six feet deep, six feet long, and five feet wide, and the gasoline tank was placed in that excavation. It was the understanding and agreement that in making and replacing this excavation that they were to put in concrete. The tank was installed on the inner side of the sidewalk, towards the building, and the pump was .put in the building inside the house. The distance between the pump and the tank is about twelve feet, connected with each other by a large pipe. They had to excavate deep enough to put the pipe about three feet under the ground from the surface, the pipe connecting the tank and the pump, but they had to dig down six or seven feet deep to make a hole big enough to contain the tank. The fill pipe extends up from the tank above ground so that wagons bringing gasoline there can unload from the wagon into the tank into this fill pipe. They put this fill pipe in. The lower pipe connects with the pump. On the left side here one is a vent pipe, and this one on the extreme left goes from the sidewalk down into the' tank. Now, these pipes here didn’t come with the pump at all, but these pipes were bought here. The man supervising the installation of' this pump and tank for the plaintiff, whose name is Brown, bought these pipes from a local Dallas firm, Briggs-Weaver Machinery Company, but Mr. Brown had a helper who did the manual labor in this work. I did not pay for any of the labor for installing this machinery, because plaintiff was having the work done for- me. After the job was completed they were to fix the cement sidewalk back like it was, and they did send a man to do that, which was done and paid for by the plaintiff. I think they had a cement man to do that.”

We are of the opinion that the facts disclose the transaction out of which appellee’s alleged cause of action arose to be one of transacting business in this state in violation of the provision of the statute referred to, and is not one the execution and performance of which constitutes interstate commerce. The execution of the contract in question was not merely a purchase and sale of the gasoline tank and pump, but involved the furnishing thereof, together with other necessary equipment, by the appellee, and complete installation for appellant’s use. For the machinery and i^§ installation appellant contracted to pay the gross sum of $239. The shipment and delivery of the machinery agreed to fee furnished by appellee alone would not have been a full performance of the contract entitling appellee to its enforcement. The contractual obligation can be treated in procedure only as an entirety, and nothing less than the delivery of the machinery and its installation according to the terms of the contract would have constituted such performance and matured the right of appellee to recover the amount agreed to be paid therefor by appellant. The facts show that appellee delivered the machinery and installed it, but the installation thereof required the expenditure of considerable time and labor and purchase of material in this state. Indeed, all the labor employed in the installation of the machinery was secured by appellee in this state, and certain material necessary therefor was purchased in this state. The performance of the contract was necessarily to be had in Texas. The employment of state labor and the purchasing of a portion of the material in this state for the installation of the machinery furnished appellant was in line with appellee’s business and for pecuniary profit. The price agreed upon was not for the machinery alone or any part of the machinery, but was for the installation of" the gasoline tank and pump, including all material and labor, and “was in competition with citizens of this state transacting similar business.”

Our conclusion is that ,the performance of the contract sued upon necessarily required the transaction of business in this state, and, as appellee had no permit to transact business here, the trial court erred in holding that it could maintain this suit. This conclusion is warranted and sustained by the following cases decided upon similar facts: Smythe Co. v. Ft. Worth Glass & Sand Co. et al., 105 Tex. 8, 142 S. W. 1157; Buhler v. E. T. Burrowes Co., 171 S. W. 791; York Mfg. Co. v. Colley, 172 S. W. 206; St. Louis Expanded Metal Fireproofing Co. v. Bielharz, 88 S. W. 512. The case seems to have been fully developed, and it becomes our duty under the statute to render the judgment that should have been rendered in the county court.

It is therefore ordered that the judgment of the county court be reversed, and the cause dismissed.

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


author: KEY, C. J.

text:
    MANN et al. v. SOUTHLAND LIFE INS. CO.
    (No. 5993.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 18, 1918.
    Rehearing Denied Feb. 19, 1919.)
    Limitation of Actions <©=127(13) — Amendment — New Cause of Action.
    Where defendant set up counterclaim for breach of contract, and subsequently filed supplemental answer alleging different contract and breach thereof more than four years prior to the filing of such answer, its cause of action on such breach was barred by limitations, though the original answer setting up counterclaim was filed within the four-year period of limitations.
    Appeal from District. Court, McCulloch County; J. O. Woodward, Judge.
    Action by the Southland Life Insurance Company against Jas. T. Mann and another. Judgment for plaintiff, and defendants appeal.
    Affirmed. .
    Shropshire & House, of Brady, for appellants.
    F. M. Newman, of Brady, and Seay & Seay, of Dallas, for appellee.
   KEY, C. J.

On July 13, 1912, the South-land Life Insurance Company instituted this suit against J. T. and O. D. Mann for the purpose of establishing and restoring a deed of trust and the lien thereon, to secure the payment of $9,000, as evidenced by 10 promissory notes. The plaintiff alleged that the notes and deed of trust were lost, and that the defendants had refused to execute substitutes therefor. On August 23, 1912, the defendants filed an answer, admitting the plaintiff’s cause of action, as set forth in the petition, except so far as it might be defeated by the facts set forth in the defendants’ answer. On March 14, 1914, the defendants filed a special answer, admitting that they signed and delivered the notes and trust deed described in the plaintiff’s petition, but alleged: That a subsequent contract was entered into in lieu of the original, by the terms of which plaintiff agreed to lend to the defendants $15,000, to be expended as follows: $2,500 to be applied to the payment of a debt for that amount owing by defendants to the plaintiff; and second, that the balance was to be advanced by the plaintiff to the defendants to enable them to construct a certain building larger than the one originally contemplated when the $9,000 indebtedness was incurred, and that on account of the plaintiff’s failure to promptly furnish the $15,000 the defendants werd unable to complete the building within the time contemplated by them and disclosed to the plaintiff. That as a result of such delay the defendants had lost the rent of the building for six months, a matter of $1,800, for which they set up a counterclaim against the plaintiff. On September 19, 1914, the plaintiff filed a supplemental petition, reiterating its former plea concerning the original contract, and alleging that subsequent thereto the defendants requested the plaintiff to increase their loan to $15,000, and that plaintiff refused to do so, but finally did agree to increase the loan to $12,000, but that this was the maximum amount they would loan upon the security offered; that defendants insisted upon the sum of $15,000 being loaned to them, which plaintiff refused; and that the contract set up by defendants to that effect was never, in fact, entered into. On September 17, 1917, more than four years after the original petition had been filed, the defendants in a plea styled by them supplemental answer, for the first time alleged that the plaintiff had failed to furnish the full amount of the $9,000 originally contracted for within the time agreed upon, and as a result thereof construction of the building had been delayed, and the defendants- damaged, and sought to recover such damage from the plaintiff..

There was a jury trial, and in response to special issues the jury found: First, that the plaintiff did agree to loan to the defendants the sum of $9,000; second, that the plaintiff agreed to increase the amount of the loan to $12,000; third, that the defendants furnished to the plaintiff satisfactory additional security for the sum of $12,000; fourth, that there was no agreement to extend the loan to $15,000, as alleged by the defendants; and, fifth, that the plaintiff had'furnished to the defendants $5,300 of the $9,000 originally agreed upon.

Tlie court also submitted certain other questions not to be answered if the jury found that there was no contract extending the loan to $15,000, which questions, if answered, would have determined the amount of damage resulting from the breach of the latter contract.

The defendants have brought the casq to this court upon four assignments of error, which, in substance, are: First, that the court should have granted the defendants’ motion and rendered judgment for them upon their cross-action; second, that error was committed in refusing to give an instruction requested by the defendants relating to their cross-action founded upon the breach of the original contract; third, that the trial court erred in applying the four-year statute of limitations to the cross-action referred to; and, fourth, that error was committed in refusing to submit to the jury questions as to the ability of appellants to have completed their building by August 1, 1912, if appellee had advanced the amount covered by the contract.

We overrule all of the assignments, and affirm the judgment.

Appellants first predicated their cross-action upon a subsequent contract by which the loan was to be increased to $15,000, but the jury found that no such contract was made. The .only other claim for damages asserted by appellants was predicated upon the breach of the original contract, but the jury did not find, and the proof did not show, that that contract was breached; and, if it was, such breach occurred more than four years before the plea asserting that cause of action was filed, and, as the plaintiff pleaded the statute of limitations, appellants were not entitled to recover thereon even if the jury had found that they had been damaged by reason of such breach.

No error has been shown, and the judgment is affirmed.

Affirmed.
      <©s^For other cases see same topic and KEY-NXJMBER in all Key-Numbered Digests and Indexes


author: WALTHALL, X

text:
    CHICAGO, R. I. & P. RY. CO. v. LOPEZ.
    (No. 910.)

    (Court of Civil Appeals of Texas. El Paso.
    Jan. 30, 1919.
    Rehearing Denied Peb. 20, 1919.)
    1.Railroads <®=»212 — Receivership — Liability op Railroad.
    Railroad not being primarily liable for acts of receiver arising from his negligence, because receiver is an independent agent of the court, in suit against railroad after discharge of receiver to enforce obligation or liability incurred by receiver, a state of facts must be shown creating liability of railroad.
    2. Railroads <§=>212 — Receivership — Liability of Railroad.
    Damages for personal injuries to railroad’s servant while railroad is operated by receiver are part of receiver’s expenses incurred in operating, payable out of current earnings of railroad, which earnings, if diverted by receiver, and placed in permanent improvements, or turned over to railroad without ■ sale, make it liable to extent of earnings diverted or turned over.
    3. Railroads <®^212 — Receivers—Assumption of Liability. ⅝
    Railroad company held to have assumed all liabilities of its receiver or receivers when it received back its properties pursuant to order of court, in view of decree, in connection with indemnity agreement.
    4. Estoppel <§=>68(1) — Inconsistent Position in Judicial Proceedings.
    Party will not be allowed to maintain inconsistent position in judicial proceedings, a rule not one strictly of estoppel, but resting more on considerations of orderliness, regularity, and expedition of litigation.
    5. Railroads <§=>212 — Receivership — Assumption of Liability — Betterments.
    If railroad unqualifiedly assumed liability of receiver as to injured servant’s cause of action and secured discharge of receivership and redelivery to it of all properties without sale, issue of betterments is immaterial in fixing railroad’s liability to servant, though he alleges railroad’s liability rests upon betterments rather than upon assumption.
    6. Railroads <§=>212 — Receivers—Assump-
    tion of Liability — Allegation of Better-ments.
    In action by injured servant against railroad previously under receivership, evidence held sufficient to show betterments by receiver, at least prima facie.
    7. Master and Servant <§=>278(19) — Injuries to Servant — Negligence of Foreman —Sufficiency of Evidence.
    Evidence held to sustain finding that railroad receiver’s foreman of section hands was guilty of negligence in ordering plaintiff, a minor, to ride on a hand car overcrowded with eight other men.
    8. Master and Servant <§=>218(3) — Injury to Servant — Assumption of Risk.
    Where minor servant of railroad’s receiver did not know of dangers of working on hand car under circumstances surrounding him at time he received his injuries, he did not assume the risk.
    Appeal from District Court, El Paso County; Ballard Coldwell, Judge.
    Suit by Antonio Lopez against tlie Chicago, Rock Island & Pacific Railway Company. From judgment for plaintiff, defendant appeals.
    Affirmed.

      W. A. Hawkins and W. M. Peticolas, both of El Paso, for appellant.
    O. R. Armstrong, of El Paso, for appellee.

      Writ of error denied April 2, 1919.

   WALTHALL, X

This is a personal injury suit brought by Antonio Lopez, a minor, by next friend, against appellant, Chicago, Koeb Island & Pacific Railway Company, to recover damages received by him on the 8th of October, 1916, while a section hand on a division of appellant’s road in the state of Oklahoma, and while operating a hand car in the discharge of his duties. The negligence assigned is that, on said date, appellee and nine other employés of appellant were directed by appellant’s foreman to enter upon a hand car and operate same, placing appellee near the outer edge in an unsafe position thereon; that there was insufficient space on said hand car to safely accommodate all of the employés thereon, and insufficient spaee on the handle bars of the hand car for him to grasp a hold thereon along with other em-ployés ; that while in the upward and downward motion of the handle bars in propelling the hand car, on account of insufficient space and the slippery nature of the handle bars, he was'thrown from said car and severely and permanently injured. Appellant alleged that he was a minor, and inexperienced in operating a hand car, did not know and was not informed of the danger to which he was thereby exposed, was unable to protect himself and avoid the injury which came suddenly and unexpectedly. He alleged a receipt from appellant of $100, but paid so shortly after the injury and after certain injections of such character as to make him sick and impair his mental condition to such extent that he was not in his right mind and did not know that same was in settlement of his injuries; alleged the inadequacy of the sum paid.

While alleging that, at. the time he was injured, the appellant was in hand of receiver, Jacob M. Dickinson, he alleged the receiver had been discharged at the time of the filing of his suit; that all of its properties had been returned to appellant by the court, without sale, in a bettered condition.

Appellant answered by genersíl demurrer, general denial, pleaded the receivership at the time of the accident causing the injury, the various and sundry orders in the matter of the receivership, a reorganization of appellant under said receivership, the approval by the court of the plan of its reorganization, and the entry of the court’s final decree and the provisions of said decree claiming thereby immunity from any cause of action, save under said decree; pleaded that appellant was of full age and a settlement of said claim by reason of the payment to appellee of $100; denied the negligence alleged; and pleaded contributory negligence. The cause was tried without a jury, resulting in a judgment for appellee in the sum of $2,000.

The trial court, at request of appellant, made and filed findings of fact and conclusions of law, as follows:

“That the plaintiff, at the time complained of, was returning to his home station, riding on a hand car, in the course of his employment. That plaintiff was then employed by the receiver of the Chicago, Rock Island & Pacific Railway Company at the place mentioned in plaintiff’s petition (El Reno, Old.). That there were nine men on the hand ear. That nine men on the hand car crowded the hand car; the hand car was a pump hand car. That the receiver’s foreman, in charge of plaintiff, was guilty of negligence in ordering plaintiff to ride on the hand car in its crowded condition, and that the negligence of the foreman proximately contributed to plaintiff’s injuries, and that the foreman was the vice principal of the receivers of the defendant railroad. That while plaintiff was riding on the hand car a negro coem-ployé, in pumping the hand car, jostled plaintiff, causing plaintiff to lose his balance and causing him to fall from the hand car, crushing his heel and ankle. That plaintiff suffered continual pain for nine months. That plaintiff’s capacity to earn money has been materially diminished. That plaintiff suffered damage in the sum of $2,100. That thereafter the receiver’s claim agent, on the 12th day of October, 1916, four days after plaintiff had suffered severe injury and while plaintiff was in the hospital, sought a release from plaintiff and paid plaintiff $100 for a release. At the time of obtaining the release introduced in evidence, plaintiff was incapable of contracting by reason of the medicines he had taken and the severe pain, which deprived him of the use of his senses and judgment, which fact was known to receiver’s claim agent. That at the time of the accident, and ever since, plaintiff was a minor, under the age of 21 years. Plaintiff was not negligent himself in riding on the platform of the hand car, and that plaintiff did not appreciate the danger of riding on the platform. That the receivers who employed plaintiff, while in the charge of the properties of the Chicago, Rock Island & Pacific Railway, made large improvements and betterments of the property, in excess of a million dollars, and that the property, with the improvements and better-ments, was turned back to the original owners, the Chicago, Rock Island & Pacific Railway Company, and that the original owners of the property, defendants in this suit, were the owners and managers of the property at the time of the institution and trial of this suit.
“Conclusions of Law.
“That defendant, railroad company, is liable to the plaintiff in the sum of $12,000 with interest from the date of the judgment at the rate of 6 per cent, per annum. That plaintiff did not assume the risk. That plaintiff was not guilty of contributory negligence. That plaintiff, by his next friend, J. E. Cawthorn, should have judgment against the defendant for the sum of $2,000 with interest at 6 per cent, per annum from date of the judgment until paid. That the release obtained from plaintiff is not a binding obligation or release upon the plaintiff. That defendant should bo credited with $100 paid to plaintiff by the receivers.”

Appellant presents nine assignments of error. It is claimed by the first assignment that the evidence does not sufficiently show betterments. It is well established in this state that a railroad company not being primarily liable for the acts of the receiver, arising from his negligence, on account of the receiver being an independent agent of the court and not .the agent of the railroad, a state of facts must be shown creating the liability of said company. Railway v. McFadden, 89 Tex. 138, 33 S. W. 853; Hicks v. I. & G. N. Ry. Co., 02 Tex. 40; I. & G. N. Ry. Co. v. Perkins et al., 185 S. W. 657; Ft. Worth & R. G. Ry. Co. v. Zidell, 202 S. W. 351.

Appellee was injured while an employé of the receiver, as such, of appellant’s railroad, and engaged in operating the railroad. Damages occurring while the railroad is operated by the receiver are a part of the receiver’s expenses incurred in operating the railroad and are payable out of the current earnings of the road, which earnings, if diverted by the receiver and placed in permanent improvements, or turned over to the railroad company without sale, make said company liable to the extent of the earnings diverted or turned over to the railroad company. Railway Co. v. Johnson, 76 Tex. 421, 13 S. W. 463, 18 Am. St. Rep. 60, and same case on appeal to United States Supreme Court, 151 U. S. 81, 14 Sup. Ct. 250, 38 L. Ed. 81; Holman v. G., H. & S. A. Ry. Co., 14 Tex. Civ. App. 499, 37 S. W. 464; I. & G. N. Ry. Co. v. Perkins, 185 S. W. 657; M., K & T. Ry. Co. v. Chilton, 7 Tex. Civ. App. 183, 27 S. W. 272. At the time of filing this suit, the receiver had been discharged, and, to fix a liability for his cause of action on the appellant railroad, appellee alleged that the railroad properties had been returned to the company with betterments.

We think we need not quote in full the several exhibits, mostly in the nature of receipts from the railroad on final discharge, reports of the receiver, and final orders of the court accepting the report and discharging the receiver. The record does not show an inventory of the money and properties coming into the hands of the receiver from the railroad company on taking possession thereof under the orders of the court.

The appellant in its answer, after stating the fact of the receivership and the necessity therefor, its inability to meet the current demands upon it out of its current resources, alleged that appellant and the joint reorganization committee made a plan and agreement of reorganization, by which appellant and the committee offered to make provision of all indebtedness of appellant and of the receiver; that the holders of approximately 95 per cent, of debentures and 99 per cent, of the stock of appellant united in a plan and agreement of reorganization, under which it was contemplated that the railroads and properties of appellant should either be acquired by a new company or be reorganized through the present company for the benefit of all creditors and stockholders, and that such new or reorganized company should own and operate said railroads and properties after such reorganization; that the holders of 95 per cent, of the debentures and 99 per cent, of the stock of appellant agreed to the terms of said plan and to the offer of the reorganization committee, under which plan the stockholders were obligated to make payments in cash at the rate of $40 per share held by them, in return for which the stockholders were to receive 7 per cent, preferred stock of appellant, and agreed to accept as of July 1,1917, cash representing interest unpaid upon tljeir debentures, and to accept new 6 per cent, preferred stock of appellant .in lieu of the principal of said debentures; and said reorganization plan provided that general claimants and creditors, except only those whose claims did not exceed $200, should be paid in the same way, i. e., limited so that, out of the assets and funds of appellant in the custody and control of the court, they should receive interest in cash, but principal in 6 per cent, preferred stock; that, in the absence of such a plan or reorganization, it would have been necessary to sell the property of appellant to pay the judgment recovered in the suit in which the receivership was had; that the court in which the receivership was pending approved said plan of reorganization and adopted same and provided specifically that all persons having claims against appellant or its receiver should present such to the master in chancery not later than July 14, 1917.

Pursuant to the provisions of a final order of discharge of the receiver as proposed by the said reorganization plan, appellant, through its president, filed in the court in which the receiyership was pending an offer to the effect that it “will indemnify and hold harmless, and does hereby agree to indemnify and hold harmless, Jacob ⅞£. Dickinson, his heirs, Executors, and administrators, from and against any and all claims, demands, liabilities, damages, costs, expense, or other matters whatsoever arising or accruing from all or any of his acts as receiver of” appellant. On the same day of the execution and delivery of the above obligation of indemnity, the receiver, Dickinson, executed to appellant a transfer of all of the properties of appellant then held by him as receiver. Among the properties transferred are those itemized and shown by Exhibit H introduced in evidence, showing additions and betterments, expenditures from April 20, 1915, to June 24, 1917, stating in the aggregate “total expenditures for additions and betterments, $6,370,529.70.” Note made a part of the exhibit recites:

“The expenditures are for additional tracks, structures, equipment,, etc., and for betterments of existing facilities.”

The court, by its order of July 27, 1917, after citing the final report of the receiver as in compliance with its previous order of June 12,1917, and also a statement of his receipts and disbursements as receiver, “and additions and betterments made by him as receiver to the property of the defendant railway company,” approved the receiver’s accounts filed, and, stating that the receiver having discharged his duties as receiver, accounted for all' properties and assets, and “having fully carried out and performed all the duties placed upon him herein, or having secured the undertaking of the' defendant, railway company, to perform the same, as provided in the final decree,” discharged the receiver and his sureties upon his bond from all liability accruing subsequent to that time. The court, in its final decree embracing many lengthy paragraphs, after reciting the history of the case then pending, the various orders theretofore made, reviewed the plan of reorganization above outlined, the offer of appellant, and the joint reorganization committee as above stated, and decreed, among other things:

“The defendant railway company shall take over and assume the defense of all actions and suits at law or in equity against the defendant railway company and the receivers or receiver herein (there having been two receivers at one time) or against either or any of them, or in which they or any of them are or is a party defendant, pending and undetermined at the date of the entry of this decree, in any court or tribunal; that the property and assets of the defendant railway company are to be hable for the amounts of any judgments eventually obtained in any such actions and suits.”

Appellee suggests that in view of the assumption by appellant of the defense of all liability of the receiver, and the acceptance by the court thereof and its order turning over all property to appellant and discharge of the receiver with the decree as above, it was not necessary to show betterments. We are of the opinion the record does show that appellant assumed all liabilities of the receiver. The above-quoted order of the court, without the indemnity agreement, might be construed to limit the assumption of liability to suits pending and undetermined at the date of the entry of the decree; but we think the decree read in connection with the indemnity agreement can well be construed to embrace any and all liabilities of the receiver incurred during the receivership. If we properly construe the court’s decree, we are not out of harmony with Railway v. McFadden, and Ry. v. Zidell, supra.

If we have properly construed the court’s decree and indemnity agreement, in view of appellee’s pleading, alleging appellant’s liability to rest upon betterments rather than upon an assumption of liability, is appellee relieved of the burden of showing betterments? The rule that a party will not be allowed to maintain inconsistent positions in judicial proceedings is not one strictly of estoppel, but rests more on considerations of orderliness, regularity, and expedition of litigation. It is like an agreement on the facts. If appellant unqualifiedly assumed the liability of the receiver as to appel-lee’s cause of action, and by reason thereof secured the discharge of the receivership and redelivery to it of all properties, without sale, we believe the issue of betterments is immaterial in fixing appellant’s liability. M., K. & T. Ry. Co. v. Chilton, 7 Tex. Civ. App. 183, 27 S. W. 272, and eases cited. But if we should be in error in so holding, we are of the opinion that the reorganization plan as perfected and the several orders, receipts, admissions, and assumptions found in the record in connection with Exhibit H is sufficient to show betterments, prima facie at least. The appellee, being an employé of the receiver at the time of his injury, and engaged in the operation of the properties,, was entitled to payment by the receiver out of current receipts, if the injury resulted through the negligence of the receiver. In the absence from the record of any explanation of certain receipts executed to the re^ ceiver and of Exhibit H, we think it shows, prima facie, an expenditure of large sum? of money in additions and betterments to the equipment of the road, and large sums of money, cash on deposit in various banks, amounts on deposit with stated agents, for the payment of interest and-divisions, and amounts on deposit with trustees under indentures, and turned over by the receiver to appellant on final discharge. In the absence of a showing that these expenditures were made from moneys delivered to the receiver by appellant and reported as money received in the inventory taken at the beginning of the receivership, it seems fair and reasonable to presume that such expenditures were made from current earnings.

By second, third, fourth, and fifth assignments, it is contended that there was nothing in the final decree of the court in the receivership charging liability against appellant except upon condition that claims be presented to the special master in chancery. \Ye have quoted and referred to the indemnity agreement and the court’s order accepting same and discharging the receiver, in discussing the first assignment. The authorities we refer to do not sustain appellant’s contention. M., K. & T. Ry. Co. v. Chilton, 7 Tex. Civ. App. 183, 27 S. W. 272, and cases cited, both state and federal. Appellant refers us to T. & P. Ry. Co. v. Stanton, Administrator of Bloom, 164 U. S. 639, 17 Sup. Ct. 216, 41 L. Ed. 580. We think the case does not sustain appellant’s contention. The injuries there laid were received in 1888, before the enactment of article 2141, Vernon’s Sayles. While the property was returned to the railroad company, without sale, it was not on petition of the company under an agreement of indemnity against any and all liability, and not on an order of the court, as here, that the railroad company take over and assume the defense of all actions and suits at law or in equity, both against the railway company and receiver, and the court’s order of discharge of the receiver, wa .think, is necessarily and materially different from the order in the case at bar. We think we need not review the case.

We cannot say that the court erred in finding that the receiver’s foreman was guilty of negligence in ordering appellee to ride on the hand car, as claimed in the sixth and seventh assignments. Appellee was a minor and inexperienced in the use of hand cars. Bopez said there were four men pumping the car on the end he was on, and he was at the end of the handle. He said:

“A colored man was next to me. He was a large man. I fell off because, as we were pumping the car, every time we made a motion downward the colored man would strike me with his shoulder on my shoulder.”

He said:

“There were four Mexicans, four negroes, and two white men on the hand car when my accident occurred.”

Foreman Thompson said:

“Eight inen is about the limit on a hand car, and the foreman generally rides on the water keg rack; that gives three on each end and one on each side between the handle bars.”

The eighth assignment asserts that the facts show as a matter of law that appellee assumed the risk, and that therefore the judgment is contrary to the law and evidence. The proposition is based on the statement that at the time of the injury appellee was returning from work upon an interstate railroad over which the court judicially knows interstate trains pass, and the risk is governed by the common law. Conceding that both appellant and appellee, at the time of the injury, were engaged in interstate commerce, which we do not decide, the cases to which we are referred, C., R. X. & P. Co. v. De Bord (Sup.) 192 S. W. 767, and Patton v. Dallas, 108 Tex. 321, 192 S. W. 1060, do not sustain appellant’s contention. In this case, there is the total absence of all evidence that appellee knew of the danger of working on the hand car under the circumstances surrounding him at the time he received his injury, and the trial court so found. The facts in this case do not justify the application of the principle invoked.

We have already discussed the question-presented in the ninth assignment, and it is overruled.'

Justice HIGGINS is' of the opinion that the evidence is sufficient to sustain the finding of the trial court as to betterments made by the receiver, and that therefore the property, upon its return to defendant, stood charged with the payment of appellee’s claim. It is upon this theory that he concurs in the holding that appellant is liable for the payment of the claim. He expresses no opinion as to the liability of defendant under the order of the court discharging the receiver, nor upon the holding that the record shows appellant assumed all liabilities of the' receiver.

Finding no reversible error, the case is affirmed.
      <§cxoFor other cases see same topic ahd KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    COBO v. RODRIGUEZ et al.
    (No. 908.)

    (Court of Civil Appeals of Texas. El Paso.
    Jan. 16, 1919.
    Rehearing Denied Feb. 20, 1919.)
    1. Master and .Servant @=3330(3) — Employment oe Unlicensed Plumber — Evidence —Sufficiency.
    In an action for damages by fire caused by negligence of plumber hired by defendant, evidence that such employé was a tinner did not establish that he was an unlicensed plumber who was doing plumbing work unlawfully.
    2. Negligence @=3136(17) — Setting Fire to Property — Direction oe Verdict.
    In an action for damages by setting fire to hay through alleged negligence of defendant’s employés, a peremptory instruction was properly given, where there was no evidence that the fire was caused by any negligence traceable to defendant, direct or indirect.
    Appeal from District Court, El Paso County; Ballard Coldwell, Judge.
    Action by Jose Cobo against Petra Rodriguez and others. From a judgment for defendants on an instructed verdict, plaintiff appeals.
    Affirmed.
    M. W. Stanton, of El Paso, for appellant.
    W. H. Pelphrey, of El Paso, for appellee.

      Writ of error dismissed for want of jurisdiction March 12, 1919.

   HIGGINS, J.

Cobo sued appellees to recover as damages the value of certain hay alleged to have been destroyed by fire through the negligence of defendants. From an instructed verdict and judgment in defendants’ favor, he appeals.

It appears that appellees were the owners of certain premises upon which there was a warehouse filled with hay belonging to Cobo. Adjoining the warehouse was a toilet which became out of repair. To repair the same, Petra Rodriguez employed a man. ’While the repairs were being made, the hay caught fire and was destroyed.

Viewed in its aspect most favorable to ap-pellee, the evidence simply shows that the man making the repairs was doing so with the assistance of his young son as a helper, and that while so engaged the hay caught fire. It wholly fails to show in what manner the fire originated. There is nothing to show that it originated through the negligence of the eanployé or the helper. The most that can be inferred is that the origin of the fire in some manner was connected with the work being done.

One of the grounds of negligence alleged was that the man employed was not a licensed plumber and that under the city ordinances it was not lawful for one not so licensed to do plumbing work. There is evidence that the man was a tinner, but none that he was not a licensed plumber. The fact that a man is a tinner does not prevent him from being also a plumber. It does not follow that he is not licensed to do plumbing simply because he is a tinner. There is no evidence that this man was not so licensed. Eurthermore, the ordinance does not make it unlawful to employ one to do plumbing work who is unlicensed.

There being no evidence that the fire was caused by any negligence traceable to defendant, directly or indirectly, the peremptory instruction was properly given.

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


author: •HARPER, C. J.

text:
    DUNNE v. VOGELEY.
    (No. 929.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 13, 1919.)
    Appeal and Error <s==>654 — Record—Supplying Omissions — Stipulation as Constituting Pleading.
    A stipulation whereby defendant, in consideration of an extension of time, agreed that judgment might be taken against him, is a pleading in the nature of a confession of judgment (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2007) and not a matter of evidence, which, when certified as being left out of the transcript by mistake, would have to be certified by the trial court.
    Error from District Court, El Paso County ; P. R. Price, Judge.
    Suit by E. H. Vogeley against Joe Dunne. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    M. W. Stanton, of El Paso, for plaintiff in error.
    Jones, Jones, H’ardie & Grambling, of El Paso, for defendant in error.
   •HARPER, C. J.

This action is here by writ of error sued out from a judgment in favor of E. I-I. Vogeley against Joe Dunne for $2,432.32 and S per cent, interest from date and foreclosure of an attachment lien on certain lots in the city of El Paso, Tex.

The petition shows this to have ‘been a suit upon certain promissory notes with vendor’s lien, and the prayer is that plaintiff have judgment for the amount of the notes, and foreclosure of the lien. The judgment appealed from recites that:

“The plaintiff appeared and announced that he would no further prosecute his suit as against Lackland, and others named, and announced ready for trial upon his suit against Joe Dunne, and thereupon all matters of fact as well as law in plaintiffs’ suit against Joe Dunne were submitted to the court, and a jury not having been demanded, ⅜ * * and thereupon the court having heard the pleadings and the evidence, and being fully advised in the premises, doth find. ⅜ ⅜ * ”

Appellee suggests that this an agreed judgment and that, if any errors were committed, ‘they were cured by the agreement. Parks v. Knox, 61 Tex. Civ. App. 493, 130 S. W. 203; Live Stock Co. v. West Texas Co., 111 S. W. 418. No statement of facts.

There is nothing in the decree entered to indicate that it was an agreed judgment. However, appellee has by certiorari brought up a certified copy of a paper signed “Joe Dunne” from the trial court amending the transcript as filed, which is an agreement, in consideration of an extension of time, that a judgment may be taken for the full amount of the notes, interest, and attorney’s fees as claimed by plaintiff’s petition, and also that the attachment lien may be foreclosed upon the lots described in the judgment.

The district clerk certifies that it is a true and correct copy of a stipulation filed in this office on the 5th day of February, 1918, in cause No. 14794, in which E. H. Vogeley is plaintiff and Joe Dunne is one of the defendants, and “the original is on file in my office; said instrument was left out of the transcript by mistake.” Appellant does not in any way question its authenticity. If this instrument was a thing in the nature of evidence, then it would be necessary for appellee to have had the trial court certify to it in the form required for a statement of facts. Kimmey v. Abney, 107 S. W. 885; Newnom v. Williamson, 46 Tex. Civ. App. 615, 103 S. W. 656; Railway Co. v. Hamm, 47 Tex. Civ. App. 196, 103 S. W. 1126; San Antonio v. Ashton, 135 S. W. 758; Griffith v. Reagan, 114 S. W. 1167.

But we have concluded that it is properly classified as a pleading in the case in the nature of a confession of judgment (article 2007, Vernon’s Sayles’ Statutes of Texas), and that in such case we are only authorized to inquire as to the jurisdiction of tlie trial court, and, having done so and resolved the question in the affirmative, the cause must be affirmed; and it is so ordered.
      ^»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    GALVESTON, H. & S. A. RY. CO. v. BOOTH.
    (No. 919.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 30, 1919.
    Rehearing Denied Feb. 27, 1919.)
    1. Evidence <&wkey;244(16) — Admission by Railway Claim -Agent — Letters.
    In action against railroad for loss of cattle, a letter from claim agent of defendant stating that at a certain town on defendant’s line animals were in such bad condition that four of them were removed from the car dead was admissible as an admission by claim agent that four animals died in defendant's possession.
    2. Pleading <&wkey;ll — Matters of Evidence-Documents.
    In action against carrier for loss of stock in shipment, it was not necessary that letter from defendant’s claim agent, stating that stock died while in defendant’s possession, be pleaded in order to make it admissible.
    3. Evidence i&wkey;378(4) — Letters—Authentication.
    Where practicing attorney testified that he had a great deal of correspondence with claim department of defendant railroad, and in answer to his letters he always received letters from J. M., and signature on letter introduced in evidence was same that was on letters he received, and that he knew that such was his signature, and that he was claim agent of defendant, authentication of signature was sufficient.
    4. Railroads <&wkey;17 — Authority of Claim Agent.
    It is within general scope of authority of claim agent of railroad company to refuse or allow a claim against his principal.
    5. Evidence <&wkey;204-iADMissiON — Letters to Consignee.
    In action by a shipper against carrier for loss of cattle, letter written by defendant’s claim agent to consignee, admitting that cattle died while in defendant’s possession, was admissible in evidence.
    6. Carriers &wkey;>228(5) — Loss of Cattle in Transit — Negligence—Proof.
    Evidence of shipper that animals were strong enough to make trip, and that they died before they reached their destination, and that the car in which they were loaded was improperly bedded, and not a safe car to transport cattle, was sufficient to show carrier’s negligence.
    Appeal from Presidio County Court; H. B. Young, Judge.
    Action by E. C. Booth against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, I. L. Martin, of Uvalde, W. Van Sickle, of Alpine, and Beall, Kemp & Nagle and H. Potash, all of El Paso, for appellant.
    Mead & Metcalfe, of Marfa, for appellee.
   HIGGINS, J.

Booth recovered a judgment against appellant for the value of four cows shipped from Ryan, Tex., to Ft. Wlorth. The shipment moved from Ryan to Flatonia over appellant’s line. Ryan is near the station of Marfa.

Error is assigned to the admission in evidence of a letter from J. D. McCraney, claim agent of appellant, addressed to Geo. W. Saunders Commission Company, the consignee of the cattle. In this letter it was stated .that at Sanderson, which is only a short distance from Marfa, the animals were in such bad condition that four of them were removed from the car dead. The letter declined payment of the claim. The letter was properly admitted. It was an admission by the claim agent of appellant showing that the four animals died in appellant’s possession. It was not necessary that the letter be pleaded in order to make it admissible. A party is not required to plead his evidence. The signature of McCraney was sufficiently proven. Mr. Mead, a practicing attorney, testified that he.had had a great deal of correspondence with the claim department of appellant, and in answer to his letters he always received letters from J. D. McCraney, and the signature on this letter is the same that was on the letters he received, that he knew that was his signature, and that McCraney is the claim agent of appellant. This was a sufficient authentication of the signature to admit the letter in evidence. Ullman, etc., v. Babcock, 63 Tex. 69; Sartor v. Bolinger, 59 Tex. 411; 1 Greenleaf on Evidence, § 577; 1 Wigmore on Evidence, § 702. It is within the general scope of the authority of a claim agent of a railway company to refuse or allow a claim against his principal. The record discloses that Geo. W. Saunders Commission Company was the consignee of the cattle, which sufficiently discloses its connection with the shipment, so as to make the letter of McCraney addressed to it admissible. • These observations dispose of the various objections urged against the admissibility of the letter.

As to the first and third assignments, the evidence is sufficient to establish that the loss occurred on the line of appellant, and that the same was caused by its negligence. The. letter of McCraney shows upon whose line the cows died. The testimony of Booth shows that the animals were strong enough to make the trip to Ft. Worth, and it appears they died before they reached Sanderson, which was a short distance from the point of shipment. His testimony also discloses that the car in which they were loaded was improperly bedded and not a safe car in which to transport cattle. This was sufficient to show prima facie that the loss was due to defendant’s negligence, and, in the absence of any rebutting evidence, supports the finding that the loss resulted from negligence on defendant’s part. Railway Co. v. Scott, 4 Tex. Civ. App. 76, 26 S. W. 239; Railway Co. v. Nowaski, 48 Tex. Civ. App. 144, 106 S. W. 437.

Since there is evidence to show that the loss occurred upon appellant’s line, it follows that the fourth and fifth assignments are without merit.

Finding no error, the judgment is affirmed.
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author: HALL, J.

text:
    LANGER et al. v. AYCOCK.
    (No. 1474.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 5, 1919.)
    1. Brokers &wkey;56(3) — Compensation — PERFORMANCE OF SERVICES TIME SPECIFIED.
    A broker, whose right to sell is limited to_ a specified time, and who effects no sale within that time, is not entitled to commissions, though the owner later sells to one with whom the broker has been negotiating, provided the owner does not fraudulently terminate the contract or prevent a sale by the broker.
    2. Brokers &wkey;56(3) — Saxe Within Time Specified — Fraud .
    That the principal, after the expiration of the time to which the sale of certain land was limited, entered the broker’s office and represented himself as another, does not indicate such bad faith or fraud on his part, interfering with the right given the broker to sell within the time specified, as to permit recovery for a sale made direct with the principal after termination of agency.
    Appeal from District Court, Sherman County; Reese Tatum, Judge.
    Action by George L. Aycock against Peter Langer, Jr., and others. Judgment for plaintiff:, and defendants appeal.
    Reversed and rendered.
    W. I. Gamewell, of Stratford, for appellants.
    Tatum & Strong, of Dalhart, and J. W. Elliott, of Stratford, for appellee.
   HALL, J.

This is a suit by appellee to recover commissions alleged to be due him as a real estate broker upon the sale of two sections of land belonging to appellants.

A number of questions are presented under five different assignments, but we deem it unnecessary, as we consider the case, to set out at length the pleadings or the issues. It appears that on October 3, 1917, Peter Lan-ger, Jr., as part owner and agent for his co-owners, wrote to appellee, giving him the right to sell the two sections of land for $8,-000 each, terms net cash to the owners, and stating that no commissions would be paid out of the purchase price named. No sale was made within 30 days. On February 28, 1918, appellee wrote Langer, asking that the land be listed with him again for 30 or 60 days. On April 25, 1918, appellee wired Lan-ger as follows:

“I am closing cash deal on your recently made. Will write you fully as soon as I get home Monday and will send deeds made up.”

On the following day he wrote Langer as follows:

“When I wired you yesterday that I was closing deal on your two sections of land, I felt sure that I would be able to close yesterday; but the father of the young man who was making the purchase had concluded to look the land over personally before approving of the deal. This he has agreed to do within the next 10 days. I feel very confident that I will be able to successfully close the deal within a very short time, and inasmuch as I have already spent a great deal of money trying to close the transaction, I will ask that you kindly withhold the same from the market until the 5th of May.”

On April 27, 1918, appellee wired Langer as follows:

“I can close sale on survey 132, contingent upon lease for immediate use your survey 140 as it stands, including water plant and house; lease to run one year at a time. Absolute state definite lease rate. Wire answer to-day.”

On April 29th appellee again wired Langer;

“Have showed land again and am only able to close on section 132 at price and terms quoted in previous correspondence, conditioned on leasing to them section 140, as outlined in my message of yesterday. Please wire me authority to close. Wire answer.”

On April 29th, Langer wired appellee as follows:

“Parties owning section 132 will sell for $8,-OOO net cash. Section 140 same price. Offer expires May 5th. Will not lease.”

These letters and telegrams constitute the contract between the broker and the principal, and clearly limit the agency of the broker to May 5th; and it is equally clear that the owners will not lease section 140, but that the broker is authorized to sell either or both sections at $8,000 cash, net to the owners. We- have reviewed the record, read the statement of facts, and have concluded that upon two grounds the judgment should be reversed and rendered.

First, the rule is well settled that when, by the contract, the broker’s right to sell is limited to a time certain, he is not entitled to commissions if no sale is effected within that time, even though the owner sells to one with whom the broker has been negotiating, unless the owner has fraudulently terminated the contract or prevented a sale by the broker within the time specified. No such fraud is shown in this case. The owner is under no obligation to extend the time in favor of a prospective purchaser found by the broker. 9 C. J. 606, § 22; 4 R. C. D. 251, § 8; Hodde v. Malone, 196 S. W. 347; Hardesty v. Cavin, 149 S. W. 367; Hancock v. Stacy, 103 Tex. 219, 125 -S. W. 884; Neal v. Lehman, 11 Tex. Civ.App. 461, 34 S. W. 153.

The only fact proven in any way tending to show fraud is that Peter Langer ■came to Texas from his home in Wisconsin after the 5th day of May, and on the 13th day of May entered appellee’s office and introduced himself as Mr. Peterson from Wisconsin. No bad faith or fraud on his part, interfering in any way with the right given appellee to sell prior to May 5th, was shown.

Upon this ground ’the judgment must be reversed and rendered; and there is a further ground, which we think precludes appel-lee from recovering. The letters and 'telegrams above set out show an express contract of sale (Overshiner v. Palmer, 185 S. W. 387); and in this case, as in that, the terms given were net to the owner. Appellee has failed to show that Breakey, the proposed purchaser, ever at any time prior to the 5th of May agreed to purchase the land upon the terms listed.

Reversed and rendered.
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author: BOYCE, J.

text:
    KENTZ v. KENTZ.
    (No. 1467.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 5, 1919.)
    1. Judgment <&wkey;303, 355 — Amendment and Vacation.
    Independently of Rev. St. 1911, arts. 2915, 2016, the court, during the term at which a judgment is rendered, has plenary power over it, and may vacate, modify, or correct it at discretion, not only as to clerical mistakes, hut mistakes as to rights of parties, provided the intervention of a jury is unnecessary, or that it does not involve! the entry of judgment against the verdict.
    2. Judgment &wkey;>394 — Vacation—Correction as to Whole or Part.
    During the term at which a judgment is rendered the court has jurisdiction to hear additional testimony in regard to any part of the proceedings to which he might entertain doubt, and to open all or part of the judgment for such purpose.
    3. Divorce &wkey;>149, 301 — • Custody of Children — Effect of Verdict.
    The verdict of the jury is unnecessary on the issue of the custody of children in a divorce suit, and its verdict is merely advisory, in view of Rev. St. 1911, art. 4641.
    4. Divorce <&wkey;303(3) — Opening Decree — Notice.
    On opening a decree in a divorce suit during the same term at which it was entered in order to modify provisions as to custody of children, notice to the opposite party is not a necessary prerequisite, the case being still pending during the term, and the parties having notice that the judgment is during- such time subject to annulment and modification.
    5. Appeal and Error &wkey;>982(l) — Discretion of Court — Modification of Decree.
    The power of the trial court to open and modify a judgment entered at the same term is reversible for abuse of discretion.
    6. Attorney and Client &wkey;>76(4) — Termination of Employment — Expiration of Term.
    While ordinarily the employment of attorneys terminates on the rendition of final judgment, a judgment does not become final until at expiration of term at which it is entered, and in the absence of a special agreement between attorney and client, the employment lasts until the expiration of term as far as modification of judgment and notice thereof is concerned.
    7. Divorce <&wkey;312 — Custody of Children— Appeal — Presumptions.
    On appeal from judgment modifying judgment as to custody of children, it may be presumed, in aid of the judgment, that evidence was offered as to the circumstances of defendant’s leaving the state and the employment of her attorneys, as hearing upon whether such attorneys continued to represent her, and were therefore authorized to receive notice of the proceedings to modify.
    Error from District Court, I-Iempliill County; W. R. Ewing, Judge.
    Suit by T. L. Kentz against Alice Kentz for divorce. Decree for plaintiff in part was vacated on his motion and modified so as to award custody of children to plaintiff, and defendant brings error.
    Affirmed.
    H. E. I-Ioover and Newton P. Willis, both of Canadian, for plaintiff in error.
    Sanders & Jennings and Frank Willis, all of Canadian, for defendant in error.
   BOYCE, J.

T. D. Kentz, defendant in error, sued Alice Kentz, plaintiff in error, for divorce. She answered by general and special denials, and in a cross-action also sought a divorce. There were two children of the marriage, aged six and three years, respectively, and cacli of the parties sought to have awarded to them the custody of such children. The jury returned a verdict for plaintiff, T. L. Kentz, on the issue of divorce, and recommended “that the children be placed in the custody of the mother only so long as the court knows that they are being reared under moral and Christian influences.” Judgment was entered by the court on August 17, 1918, granting the plaintiff divorce, and awarding the custody of said children to the mother. On August 29, 1918, plaintiff filed a motion to vacate and sqt aside that part of the judgment which awarded the custody of the children to the mother, in which motion it was alleged that the court erred in awarding the custody of said children to the mother, for that it necessarily appeared from the findings of the jury on the issue of divorce that she was not a proper person to have the care and custody of the children; that said defendant, before and since the trial and judgment, had been guilty of specific acts of immorality and misconduct, set out in detail, which showed that she was not a fit custodian for the children; that the said defendant, having heard of plaintiff’s intention to attempt to secure some action in reference to the custody of said children, based on such new acts of misconduct, had left the state and gone to California with said children, in an attempt to defeat the jurisdiction of the court. It was prayed that the court might hear such additional evidence as he might desire on such hearing, and that the said former judgment in the respect mentioned be vacated, and judgment entered awarding the custody of the children to the plaintiff. An order, setting aside that portion of the judgment in reference to the custody of the children and awarding such custody to the plaintiff, T. L. Kentz, was entered on August 31,1918. These proceedings were all had at the same term of the court at which the judgment was entered. No notice of the hearing was had upon the defendant, so far as appears from the transcript, and she did not appear at the trial. The attorneys who had represented her in the case prior thereto appeared at the trial and filed an answer as amicus curise.

The grounds relied on to sustain this writ of error are variously expressed, but are all in substance stated in the first assignment as follows:

“The district court having rendered final judgment in said cause on the 17th day of August, 1918, had no power, authority, or jurisdiction to thereafter and at the. same term of court, without notice to the defendant, and during her absence from the state, vacate the judgment so rendered and render a different judgment in said cause.”

It is well settled that the court, during the term at which a judgment is rendered, has plenary power over it, and may vacate, modify, correct, or change it at discretion. This power extends not only to matters of clerical mistake, but the court, if it concludes that a mistake as to the rights of the parties has been committed, may vacate the judgment rendered and render such judgment in its stead as he may conclude is proper, provided, of course, that the intervention of the jury is not necessary and it does not involve the entry of a judgment against the verdict of the jury. The term in respect to the control of the court over the judgment is regarded as a unit, and the court does not, during such time, lose control of his power to act in the case, so that, in one sense at least, the judgment may not be said to be final until the end of the term at which it was rendered. Blackburn v. Knight, 81 Tex. 326, 16 S. W. 1075; Cohen v. Moore, 101 Tex. 45, 104 S. W. 1053; Williams v. Huling, 43 Tex. 120; and authorities cited in Michie’s Digest, vol. 11, p. 99, et seq.; Black on Judgments, § 153; Cyc. vol. 23, p. 901.

This power is independent of the provisions of articles 2015 and 2016, B.ev. St. Under this view of the judgment we take it also that the court would have jurisdiction during the term to hear additional testimony in regard to any part of the proceedings a» to which he might entertain doubt and ope» up all or part of the judgment for such purpose. The determination of the custody, of the children was one for the decision of the court, and not the jury, and the verdict of the jury was not necessary on such issue, and is to be regarded as merely advisory. Kev. St. art. 4641; Wright v. Wright, 50 Tex. Civ. App. 459, 110 S. W. 159. So we do not doubt the jurisdiction or power of the court to take such action as was taken in the premises.

It appears, also, that notice to the opposite party of the proposed action of the court is not a necessary prerequisite thereto; that is considered as a matter of jurisdiction. The ease during the term is still pending and the parties have notice of the fact that the judgment is subject to annulment or modification by the court, either on-its own motion or that of the opposing party. Carothers v. Eange, 55 S. W. 581; Studebaker Bros. v. Hunt, 38 S. W. 1135. Of course this is a power that may be abused, and in cases of abuse of discretion in such matter the judgment would be reversed on; appeal or writ of error. Williams v. Hu-ling, supra. The trial courts should proceed cautiously in such matters, and, particularly in eases where additional testimony is to be offered, fairness would suggest that notice of such proceeding ought to be given to the opposing party; and it seems to us that the question on this appeal is not whether the court had power to act in the premises, but whether it abused that power ■ by proceeding to exercise it without notice to the defendant. No statement of the facts proven; either on the original hearing or on hearing of the motion, is brought up, and we must indulge in every reasonable presumption in favor of the judgment. We are not informed of the character of evidence that was offered on the hearing of the motion, though we suppose it is to be presumed that some evidence was offered, since it is recited in the judgment that it was rendered after hearing of the motion and evidence offered-in support thereof. So we cannot determine whether the court, on reflection and reconsideration, changed his mind as to his first ruling and entered the modified judgment on this account. The court may have found that, as alleged in the motion, the defendant had learned of the plaintiff’s intention to take proceedings in this matter and had clandestinely left with the children to evade service of notice of such proceeding, and may have also concluded that notice to the attorneys who had theretofore represented her in the case was under the circumstances sufficient. The answer filed by such attorneys as amicus curise stated that they appeared only as amicus curise, and that their connection with said case terminated after the trial of said cause in the court at a former day of the term. This answer consisted of pleas to the jurisdiction of the court to hear said motion, general and special exceptions, and a general denial.

Ordinarily, the attorney’s employment by defendant terminates upon the rendition of final judgment, but, as we have seen, the judgment does not become final until the expiration of the term, and unless there is some special agreement between the attorney and the client terminating the employment sooner, it would be held to include representation in proceedings of this kind taken at the same term in reference to the judgment. C. J. voi. 6, Attorney and Client, §§ 161, 184. The attorneys appear to us to have been laboring under a mistake of the law, if we have correctly announced it, as to the power of the court to proceed at all to alter or change the judgment during the term; it being in effect asserted by them that such power is limited to making such corrections and amendments as would make the judgment speak the truth as to what was actually done, or intended to be done, thereby. The same mistaken view as to the finality of the judgment may have led the attorneys to the mistaken conclusion that their employment had terminated upon its rendition, and the court may have so found and have concluded that so far as notice is concerned they ought to be held to have continued to represent the defendant in such case.

We may presume, if such presumption will sustain the judgment, that evidence was offered ' as to the circumstances of the defendant leaving the state and the'terms of the employment of the attorneys. Gerlach Mercantile Co. v. Hughes, Bozarth-Anderson Co., 189 S. W. 792.

We do not think the record is sufficient to show an abuse of the discretion of the court in this matter, and therefore affirm the judgment.

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