author: RICE, J.

text:
    JEFF BLAND LUMBER & BUILDING CO. v. RAILROAD COMMISSION OF TEXAS.
    (No. 5883.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 31, 1917.
    Rehearing Denied April 17, 1918.)
    1. Railroads <@=j54 — Abandonment of Track.
    A railroad company, after having located, established, and operated its line, cannot abandon or change the location of its tracks without legislative authorization, and Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6504, authorizes a relocation for shortening the line, .or reducing the grade, only, notwithstanding the expression “or for any other lawful purpose,” which was a part of the original condemnation act, but not of the amendments.
    2. Railroads <@=357 — Abandonment of Tracks — Use of Other Tracks — Order of Commission.
    The railroad commission is not authorized under Vernon’s Sayles’ Ann. Civ. St. 1914, § 6504, providing for relocation of tracks to shorten lines and lessen grades, to make an order granting a railroad company the right to. enter a city over the tracks of another railway and abandon its own.
    3. Railroads <@=>9(1) — Abandonment of Tracks — Proceeding before Railroad Commission — Parties Entitled to Intervene.
    A lumber company located upon the main line of a railroad company’s track at some distance from other railroads is an interested party entitled to be heard in a proceeding before the Railroad Commission by the railroad company for permission to abandon such tracks and enter the city over the tracks of another road, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6677f, providing that dissatisfied persons or corporations may become parties to the proceedings.
    Appeal from District Court, Travis County; George Calhoun, Judge.
    Suit by the Jeff Bland Lumber & Building Company,’ a private corporation, against the Railroad Commission of Texas. From the sustaining of a demurrer to the petition, plaintiff appeals.
    Reversed and remanded.
    John C. Williams, of Houston, for appellant. B. F. Looney, Atty. Gen., and Luther Nickels, Asst. Atty. Gen., for appellee.
   Statement of the Case.

RICE, J.

This suit was brought by appellant, a private corporation, against the Railroad Commission of Texas, to set aside and cancel an order made by it granting the San Antonio & Aransas Pass Railway Company the right to change its line of railway as originally constructed through the city of Houston, so as to enter and pass partly through said city over the tracks of the Houston &' Texas Central Railroad Company and the Galveston, Harrisburg & San Antonio Railway Company, and to perpetually enjoin the Railroad Commission from granting to such company permission to abandon its main line track described in such order.

Omitting formal parts, appellant’s petition is as follows, to wit;

[ “I. That plaintiff under its articles of incorporation is a retail and wholesale dealer, having its principal place of business located within the city limits of the city of Houston, Harris county, Tex., upon the main line of the San Antonio & Aransas Pass Railroad Company, within said city, whore the plaintiff does a general wholesale and retail lumber business. That the San Antonio & Aransas Pass Railroad Company is a corporation duly and legally incorporated under and by virtue of the laws of the state of Texas, and as such owns and operates a line of railroad extending through the city of Houston, Harris county, Tex., to the city of San Antonio, Bexar county, Tex., over which it at all times transports freight and passengers for hire, and is a common carrier.
“II. That the plaintiff herein is now, and at all times mentioned herein was, the owner of block No. 2, in Blodgett addition to the city of Houston, Harris county, Tex., and has located thereon its lumber yard, from which point it has heretofore received and shipped lumber, and from which point it desires to receive and ship lumber in the transaction of its business over the main line of the San Antonio & Aran-sas Pass Railroad Company. That for more than 30 years the San Antonio & Aransas Pass Railroad Company has owned and operated its main line track, which is more than 25 miles in length, through the city of Houston and to the city of San Antonio, as aforesaid, and its right of way of its main line railway adjoins the lands _ upon which this plaintiff’s said lumber yard is now situated, and from said main line track said railway company for many years has furnished switching connections for this plaintiff over this plaintiff’s private industrial switch track and certain unloading tracks and team tracks connected with said railroad company’s main line at the station of Blodgett, which unloading tracks. and team tracks are adjacent to this plaintiff’s said lumber yard, and were heretofore constructed and operated in connection 'with said railway .company’s main line track.
“III. That the San Antonio & Aransas Pass Railway Company is now attempting to illegally tear up, remove, and abandon that portion of its main line track running through the city of Houston between what is known as Bellaire Junction to a point east of Main street boulevard in said city, a distance of about 8 miles, and to enter the city of Houston from Bellaire Junction by way of the Houston & Texas Central Railroad Company’s lines to what is known as the H. & T. C. Junction, from which point it will use the Galveston, Harrisburg & San Antonio Railway Company’s lines through what is known as Stella Junction to a point on its own main line east of Main street in said city of Houston. As aforesaid, that portion of its main line track which it seeks to tear up, remove, and abandon is within the city limits of the city of Houston, which is an incorporated town, and in order for said company to do so it will he forced to abandon the station of Blodg-ett, which is located about 2,042 feet west of Main street boulevard in the city of Houston. That the portion of its track which it seeks to abandon is its main line track, and has been heretofore located and operated for more than 30 years as a portion of its main line track. That if said railroad company is permitted to abandon and remove that portion of its main line track, then it will have no track or right of way for a distance of more than 8 miles, extending from a point known as Bellaire Junction and that point on its main line track east of Main Street boulevard in the city of Houston, where the Galveston, Harrisburg & San Antonio Railway Company’s right of way now intersects the main line of the San Antonio & Aransas Pass Railroad Company.
“IV. That if said San Antonio & Aransas Pass Railroad Company be permitted to remove its track and abandon its main line between the point known as Bellaire Junction and the intersection of the Galveston, Harrisburg _ & San Antonio Railway Company’s main line track with the right of- way of the San Antonio & Aransas Pass Railway Company east of Main Street boulevard, such rerouting of its trains, or relocation, will not shorten its line, but in truth and in fact will lengthen its line by many miles, and such change will not reduce its grades, or any of them, but will in .fact increase the grade slightly.
“V. That on the 26th day of August, A. D. 1916, the San Antonio & Aransas Pass Railroad Company filed its petition with theRailroad Commission of Texas, alleging in substance that that portion of its main line track within the city of Houston between Bellaire Junction and its intersection with the main line track of the Galveston, Harrisburg & San Antonio Railway Company, crossed Main Street boulevard, the principal thoroughfare of the city of Houston, near Blodgett, and that it also crossed Montrose boulevard, one of the principal thoroughfares in the south end of the city of Houston. That the city authorities of said city have decided that the operation of said tracks and trains over and across said Main boulevard at grade involves grave danger to the public using said thoroughfare, and that the city would at once require- said company to separate the grades at the crossing of said boulevard, and that by the reason of the increased travel a separation of the grades of said track at the crossing of Montrose boulevard will- be required by the public interest, and that the separation of the grades at the intersection of Main street would cost said company about $250,000, and such separation at Montrose boulevard would cost said company about $100,000, exclusive of damages to the owners of abutting property, and that the interest of the public requires and will he best served by a relocation of said company’s lines within the limits of the city of Houston so as to avoid the crossing of said two highways; and praying for an order of the Railroad Commission of Texas granting its permission to abandon its main fine track between Bellaire Junction to the -west and the intersection of its track with the main line of the Galveston, Harrisburg & San Antonio Railway Company track east of Main street, as hereinabove described, being a distance of about 8 miles, which said petition was filed by the Railroad Commission and numbered 1798 on its dockets; and on the 28th day of August, 1916, said matter was set for hearing on the 12th day of September, 1916, and notice thereof was duly given to said railroad company and to this plaintiff, and to all other interested parties.
“VI. That this plaintiff was, and now is, a party at interest in this, that, as aforesaid, this plaintiff has heretofore at great cost and expense established its lumber business on block No. 2 of the Blodgett addition to the city of Houston, adjoining that portion of the main fine track which said railroad company intends to abandon, which was done by this plaintiff relying upon the permanency of the location of said railroad company’s main line track at said point, and if said railroad company is permitted to abandon and remove that portion of its main line track, then this plaintiff’s business will be destroyed by reason of the fact that this plaintiff will have no railroad connection, and no railroad located closer than two miles of its place of business over which it can receive and ship its lumber, and that it is wholly impracticable to operate its lumber yard without railroad connections with its industrial track, or within such proximity to its place of business as to enable it to receive and ship lumber over the same. That if said railroad company be permitted to abandon that portion of its main line track mentioned and described hereinabove and in said company’s petition to the -Railroad Commission of Texas, then this plaintiff’s business will be rendered unprofitable by reason of the fact that it will have no railroad near enough to its said place of business to enable it to continue in business, and this plaintiff will be irreparably damaged by the destruction of its business as aforesaid.
“VII. That this plaintiff, within due time after said hearing before the Railroad Commission was set, filed with said Railroad Commission in said cause its protest and opposition to the petition of said railroad company, and became and was a party to said hearing. That on the 11th day of September, 1916, said hearing was continued and postponed by the Railroad Commission of Texas until Tuesday, October 10, 1916, and again on October 12, 1916, said hearing was postponed and reset for hearing before the Railroad Commission at Houston, Tex., on Thursday, October 19, 1916, and again on October 18th, before said hearing was had, the same was postponed to be heard at Houston before the Railroad Commission of Texas on October 24th, and due notice thereof was issued to this plaintiff, to the San Antonio & Arkansas Pass Railroad Company, and to all other interested parties. That on the 24th day of October, 1916, at Houston, Tex., at a public hearing on said application of said railroad company, the commission heard this plaintiff and all other parties desiring to be heard with respect to said application, and heard all evidence offered, together with such arguments as were made thereon, and took the same under consideration, and on October 81, 1916, the Railroad Commission of Texas entered an order upon said matter, in substance as follows, to wit: ‘And having fully considered said application, protest, evidence, and argument thereon, on this 31st day of October, 1916, find: That the public interests require the relocation and change of the tracks of said company within said city proposed as directed in said application and the map attached _ thereto to which reference is here made. It is therefore ordered, considered, adjudged, and decreed by the Railroad Commission of Texas that the San Antonio & Aransas Pass Railroad Company be, and it is hereby, granted permission to relocate and change its line leading into the city of Houston so that it may remove its track between Bellaire Junction and Blodgett east of Main boulevard; as shown on plat filed herewith, and relocate its line under trackage rights to be acquired from the Houston & Texas Central Railway Company and the Galveston, Harrisburg & San Antonio Railway Company, so that its main line as relocated into said city of Houston will extend from Bellaire Junction under said trackage rights over the Houston & Texas Central Railway to East H. & T. C. Junction and from East H. & T. C. Junction over the line of the Galveston, Harrisburg & San Antonio Railway Company, through Stella Junction to a connection with petitioner’s present main line east of Main boulevard at Blodgett, as is more fully shown by the plat filed with said application to which reference is here made,’ which order was signed ‘Allison Mayfield, Chairman, C. H. Hurdleston, Commissioner,’ and was attested ‘E. R. McLean, Secretary Railroad Commission of Texas.’
“VIII. That this plaintiff is dissatisfied with the decision and order adopted and found by the Railroad Commission of Texas in said matter in the following particulars, to wit: First. Because the Railroad Commission of Texas was without jurisdiction to hear and determine the petition of the San Antonio & Aransas Pass Railroad Company in said cause, for the reason that the petition of said railroad company showed upon its face that it did not desire to relocate its main line track, but to abandon the -same between the points mentioned in said petition, and to use instead between said points the railways of the Houston & Texas Central Railroad Company and of the Galveston, Harrisburg & San Antonio Railway Company, whereas the law of Texas prohibits the San Antonio & Aransas Pass Railroad Company from abandoning such portion of its main line track. Second. Because the petition of the San Antonio & Aransas Pass Railway Company, together with all the facts and circumstances introduced in evidence, showed conclusively that such abandonment of that portion of its main line tracks as it sought permission to abandon, and a relocation of its lines, if samé amounted to a relocation _ of its lines, which this plaintiff denies, did not in fact shorten its line, but, on the other hand, lengthened it by several miles, and did not_ in fact reduce its grades or any of them. This plaintiff says that said order of the Railroad Commission upon said petition is without authority of law, for the reasons stated hereinabove, and that this plaintiff is a party at interest for the reasons hereinabove stated.”

The court sustained a general, demurrer to appellant’s petition, and judgment was entered against it in accordance therewith, from which it prosecutes this appeal.

Opinion.

If the commission was authorized to make the order complained of, or if appellant had no such interest in the subject-matter in controversy as would authorize it in resisting the making thereof, then, in either event, the ruling is correct, and the case should be affirmed. But it is strenuously insisted on the part of appellant, first, that the appellee had no right to enter the order granting the railway company the right' to remove its track and enter the city over the tracks of the other railways mentioned; and, second, that appellant had such .an interest in the matter in controversy as would authorize it to resist the enforcement of such order. So that it becomes necessary for us to take up, discuss, and determine both contentions of appellant.

The rule seems to be well settled, not only in Texas, but elsewhere, that a railway company, after having once located, established, and operated its line of railway, has no right to abandon and change its location, unless specially authorized so to do by legislative enactment. See Sugarland Ry. Co. v. State, 163 S. W. 1047, and cases there cited. The appellee insists that it was specially authorized to pass the order complained of under article 6504, Vernon’s Sayles’ Revised Civil Statutes of Texas, which reads as follows:

“If any railroad corporation shall at any ■timo be unable to agree with the owner for the purchase of any real estate, or the material thereon, required for the purposes of its incorporation or the transaction of its business for its depots, station buildings, machine and repair shops, for the construction of reservoirs for the water supply, or for the right of way, or for new right of way for change or relocation of roadbed to shorten the line, or any part thereof or to reduce its grades, or any of them, which is hereby authorized and permitted, or for any other lawful purpose connected with or necessary to the building, operating, or running its road, such corporation may acquire such property in the manner provided in this chapter; provided, that the limitation in width prescribed in article 6484, shall not apply to real estate, or any interest therein, required for the purposes herein mentioned, other than right of way, and that real estate, or any interest therein, to' be acquired for such other purposes or any of them need not adjoin or abut on the right of way; provided, further that no change of the line through any city or town, or which will result in the abandonment of any station or depot, shall be made, except upon wiütten order_ of the Railroad Commission of Texas, authorizing such change; and provided, furthei-, that no railroad corporation shall have the right under this act to condemn any land for the purposes mentioned in this article situated more than two miles from the right of way of such i‘ailroad corporation.”

Pretermitting a discussion of the contention urged by appellant to the effect that the amendments to this statute, which were originally passed in 1876, were unconstitutional, in that they did not comply with section 35, article .3, thereof, requiring that no bill shall contain more than one subject, which shall be expressed in its title, still we think that it was the intent of the legislature, as clearly expressed in said act, to limit the railroads’ right of relocation to the two purposes mentioned in the statute, to wit, to shorten the line, or to reduce the grades. It appears from the averments bf the petition in this case that neither of such results would follow, but, on the contrary such change would lengthen its line and increase the grades; and these averments are to be taken as true in passing upon the demurrer.

The expression “or for any other lawful purpose” is not a part of any of the amendments to such statute, but was contained in the original act as passed in 1876 (see page 146, Session Acts of 1876; page 982, vol. 8, Gammel’s Haws of Texas, § 21), which was a condemnation act limited to the purposes therein mentioned, and therefore could not be construed, as appellee contends, to grant such right of relocation, notwithstanding the fact that it might lengthen the line or increase the grades; such expression, therefore, must be limited to the purposes mentioned in the original act, and cannot be construed to extend to the purposes mentioned in the amendments, or to any other purpose. In addition, we also hold that this statute did not authorize the commission to make the order in question, because there was no change or relocation of the roadbed contemplated thereby nor granted therein, but only the right to enter the city of Houston over the tracks 'of other railways, for which no authority is contained in the statute. This being true, we think the right to make the change is forbidden by. article €550, vol. 4, Vernon’s Sayles’ Civil Statutes, and that the case is ruled in this respect by the case of Sugarland Ry. Co. v. State, supra. ,

We think the second question must also be resolved in favor of appellant. Article 6677f, vol. 4, Vernon’s Sayles’ Civil Statutes, referring to orders made by the Railroad Commission, reads:

“If any such person, association or corporation or other party at interest (italics ours) bo dissatisfied with any decision, rate, charge, toll, rule, order, act or regulation adopted by the commission., such dissatisfied person, association, corporation, or party may file a petition setting forth the particular cause or causes of objection to such decision, rate, charge, toll, rule, order, act or regulation, or to either or all of them, in a court of competent jurisdiction in Travis county, Texas, against such commission as defendant,” etc.

The petition in this case discloses that appellant was the owner of a lumber business that would be materially affected if the order of the commission should go into effect. He was therefore a party at interest, and it is made to appear from the averments of the petition that he was dissatisfied with the order made herein, which gave him, we think, the right to have the same reviewed, as he is here undertaking to do. While not questioning the rule announced in the case of M., K. & T. Ry. Co. v. Colburn, 90 Tex. 230, 38 S. W. 153, we think it is not applicable here, but that the plain terms of the statute justify the course pursued on the part of appellant.

Believing that the court erred in sustaining the demurrer, its judgment is reversed, and the cause remanded.

Reversed and remanded.
      <Ss»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: TALBOT, J.

license: Public Domain

text:
    SLAUGHTER et ux. v. OAKES et al.

      (No. 7936.)
    (Court of Civil Appeals of Texas. Dallas.
    April 20, 1918.
    Rehearing Denied May 18, 1918.)
    1. Venue <@=>31 — -Habeas Corpus — Fraud as Basis of Action.
    Habeas corpus to recover possession of petitioners’ grandchild, of which petitioners allege they were wrongfully deprived by fraudulent representations to the grandchild, inducing her to leave the state, is not a suit in which the fraud alleged is the gist of the action, within the seventh exception of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830, as to venue, so as to permit suit in a county other than that of defendant’s residence.
    2. Appeal and Error <@=1040(13) — Wrong Ground of Decision.
    AVhere suit -is brought in wrong county, overruling plaintiff’s exceptions to pleas of privilege, even if the pleas are defective in failing to allege that fraud was charged in the petition for the fraudulent purpose of conferring jurisdiction, is not ground for reversal; the proper result having been reached.
    Appeal from District Court, Dallas County ; W. F. Whitehurst, Judge.
    Habeas corpus by W. B. Slaughter and wife against C. E. Oakes and others. From judgment for defendants, plaintiffs appeal.
    Affirmed.
    John W. Pope, of Dallas, for appellants. Spence, Haven & Smithdeal, of Dallas, and Reeder & Reeder and J. B. Dooley, all of Amarillo, for appellees.
   TALBOT, J.

This suit was instituted by Mr. and Mrs. W. B. Slaughter, husband and wife, in the district court of Dallas county, Tex., against Mr. and Mrs. C. E. Oakes, husband and wife, and Mrs. Eloise Slaughter, in which the plaintiffs seek by writ of habeas corpus to recover possession of Dorothy Corine Slaughter, a girl about 11 years of age. The plaintiffs are the paternal grandparents, the defendants, Mr. and Mrs. Oakes, are the maternal grandparents, and the defendant, Mrs. Eloise Slaughter, is the mother of the child. The plaintiffs resided in Dallas county, Tex., and the defendants, who had the custody of the child when the suit was instituted, resided in Potter county, Tex. The petition, among other things, alleged that Coney Slaughter, the father of the child, did not reside in the state of Texas, and that his whereabouts were unknown to the plaintiffs; that when the child, Dorothy Corine Slaughter, was only months'of age, it was given and turned over to plaintiffs by both its father and mother; that plaintiffs then took possession of Dorothy and carried her to their home; that from the time she was turned over to plaintiffs they, at the special instance and request of her parents, had actual and exclusive control, custody, maintenance, and rearing of Dorothy until on or about January 4,1916; that on or about that date, while the said child was in the lawful custody of plaintiffs in the city and county of Dallas, in the state of Texas, and whilst attending school, “it was fraudulently seized, taken possession of, and surreptitiously and clandestinely conveyed and spirited away from the lawful custody and possession of the relators and out of the state of Texas, and into the city of Ardmore, state of Oklahoma,” by its mother, the said Mrs. Eloise Slaughter, and its said maternal grandmother, Mrs. C. E. Oakes; that this seizure and taking away of Dorothy was the. result of a conspiracy entered into by and between her mother, Mrs. Eloise Slaughter, and her maternal grandmother, Mrs. C. E. Oakes; that in furtherance and consummation of said conspiracy said defendants came to the city of Dallas, Tex., and without the knowledge of plaintiffs went to the school where Dorothy was a student, and “fraudulently and falsely” represented to her that her sister was ill in the state of Oklahoma and that it was necessary to carry her to the bedside of her sick sister in all possible haste, and that Dorothy, without knowing that such representations were false, and in obedience to the command of her mother, went with her, and was thence rapidly carried out of Dallas county, Tex., and into the state of Oklahoma. The petition further alleges that shortly after reaching Oklahoma Dorothy’s mother left her in the custody of her maternal grandmother, Mrs. Oakes, and that both of them have refused to redeliver the custody of Dorothy to plaintiffs; that the plaintiff Mrs. W. B. Slaughter filed suit in the district court of Carter county, Okl., in which all of the defendants herein were made parties, to recover possession of the said child, and that final judgment was rendered in said suit, awarding the custody of the child to plaintiff Mrs. W. B. Slaughter, but that notwithstanding said judgment said defendants, Mrs. Eloise Slaughter and Mr. and Mrs. C. E. Oakes, are yet unlawfully withholding the possession of said child from plaintiffs, and refuse to return her to plaintiffs. It is further alleged that the defendants “are temporarily located in the city of Amarillo, Potter county, Tex., and are living in the same house together, and by concert of action are unlawfully holding the custody of the said child in their possession.” On the 5th day of February, 1917, the appellees, Mrs. O. E. Oakes, Mrs. Eloise Slaughter, and C. E. Oakes, filed their pleas of privilege in this cause, alleging that they and each of them resided at the date of the institution of this suit in the county of Potter, state of Texas; and the appellees Mrs. O. E. Oakes and Mrs. Eloise Slaughter, in addition to their allegation that they and each of them resided in the county of Pother, Tex., denied specifically the conspiracy and fraud as charged in the petition or application of the appellants for writ of habeas corpus, and prayed for the custody of the said minor child. Whereupon the appellants filed their replication to the said pleas of privilege, excepting to the legal sufficiency thereof. Upon the pleadings so made up, and upon the issues presented by them, the court, on the 5th day of February, 1917, heard and considered the replication of the appellants, and overruled the same, and then heard and considered the said pleas of privilege of the appellees, and, after hearing the evidence, such as was introduced as shown by the statement of facts in this cause, and after hearing the argument of counsel, sustained the said pleas of privilege, and ordered the said cause transferred to the district court of Potter county, Tex., to all of which rulings and orders of the court appellants excepted, and gave notice of appeal.

The appellants present three assignments of error. The'first is, in substance, that the district court erred in overruling the exception of appellants to the pleas of privilege of the appellees on the specific ground that they, nor either of them, allege that the charge of fraud and conspiracy averred in appellants’’ petition was so averred for ,the fraudulent purpose of conferring jurisdiction on the court in the county where the suit was brought.

The second assignment is to the effect that for the same reason the trial court erred in sustaining said pleas of privilege. The proposition advanced under these two assignments is as follows:

“Where a petition contains fraudulent allegations of fact which, if true, would bring the case under one of the exceptions of the statute which authorizes a defendant to be sued out of the county of his residence, then the defendant must plead in limine to the jurisdiction, getting forth the true facts of the case, and allege that the allegation that the fraud was perpetrated in the county where the suit was brought was inserted in the petition for the fraudulent purpose of conferring jurisdiction, and a plea of privilege, not containing such a charge, is insufficient.”

In support of this proposition appellants cite the cases of Watson v. Baker, 67 Tex. 48, 2 S. W. 375, Sanders v. Dunn, 158 S. W. 1041, and Pearce v. Wallis, Landis & Co., 124 S. W. 496.

Watson v. Baker was a suit by Watson to rescind a parol contract alleged to have been induced' by Baker’s fraudulent representations made in the county where the suit was brought, and the rules of law which govern in cases where a defendant is sued in a county other than that of his residence are clearly stated. Baker pleaded to the jurisdiction of the court on the ground only that he was sued out of the county of his residence, which Watson had alleged was Franklin county, Tex. No action was taken on the plea to the jurisdiction of the court, but after the trial on the merits, the court dismissed the case for want of jurisdiction, the statute not then authorizing a change of venue to the county of the defendant’s residence. In reviewing this action of the trial court the Supreme Court, after stating that whenever it becomes apparent to a court, at any stage in the progress of a cause, that it has no authority under the law to adjudicate the issues presented, it becomes its duty to dismiss it, held that the right of a defendant to plead to the jurisdiction of the court, when sued out of the county of his residence, was a personal privilege, which, if not exercised at the proper time and in a proper manner, did not take away the authority of the court to hear and determine the case made against him; that jurisdiction as to the subject-matter must be determined in the. first instance by the petition, and where its allegations show a case within the power of the court to decide, the suit will be entertained, unless it subsequently appears that the jurisdictional facts have been fraudulently alleged for the sole purpose of conferring the jurisdiction; but that, when the evidence shows clearly that the court has no power to determine the real case developed, and that the jurisdictional allegations were fraudulently inserted, the court will dismiss of its own motion. The court, however, further held that if the evidence merely shows that the court has no jurisdiction over the person of the defendant, the rule stated is not applicable; that when the defendant is sued out of the county of his residence, and the plaintiff fraudulently alleges facts which would bring the case under one of the exceptions to the general rule laid down in the statute, he must plead in limine to the jurisdiction of the court, and must in his plea set forth the true facts of the case and allege the fraudulent purpose of the petition. Manifestly, Watson v. Baker, which is cited and followed in Sanders v. Dunn, supra, a suit similar in its facts, is authority for the proposition that in a suit in which the fraud alleged is the gist of and constitutes the plaintiffs’ cause of action, the defendant in his plea of privilege to be sued in the county of his residence “must set forth the true facts of the case and allege the fraudulent purpose of the petition.” But a habeas corpus proceeding to recover the possession of a child is a civil suit, and, like any other such action, the proper venue is ordinarily the county of the defendant’s residence; and, where fraud is alleged to bring the case under the seventh 'exception of article 1830, Vernon’s Sayles’ Civil Statute, the fraud must be the gist or basis of the action. So that if the conduct of Mrs. Eloise Slaughter in regaining possession of her child under the circumstances of this case could be regarded as fraudulent within the meaning of our statute, such fraud is not the gist or basis of appellant’s action. Sheffield v. Rousey, 153 S. W. 653. As was similarly said in the case here cited, their cause of action rests upon the fact that they probably have been unlawfully deprived of the possession and custody of their minor granddaughter, and, in so far as their right of recovery is concerned, it is immaterial that the appellees surreptitiously and without the knowledge of appellants secured possession of the child and by false and fraudulent representations made to it induced the child to accompany them without complaint or resistance. The decision made in the cited case is clearly grounded upon the proposition that the fraud alleged therein was not the gist of and did not constitute the plaintiffs’ cause of action. What is said in the court’s opinion to the effect that the testimony showed that, when the child was carried from Brown county, the plaintiff voluntarily went with it; and that the proof fails to show that his possession and right to control the child were interfered with by either of the defendants until they reached the home of the child’s grandparents in Pecos county, should be, in our opinion, regarded as mere argument, and not as expressing facts which materially affected and induced the decision made. The decision based upon the ground stated was, we think, correct, and yet it occurs to us that the facts of that case presented stronger reasons for holding that the case came under the seventh exception of article 1830 of the statute than do the facts of the case at bar. There the alleged fraud was perpetrated and operated directly upon the father of the child, and the existence of the alleged facts constituting the fraud was shown. Plere no representation is charged to have been made by either of the appellees to either of the appellants for the purpose of obtaining possession of the child, Dorothy Corine Slaughter. The charge, in substance, is that in pursuance of a conspiracy the mother and maternal grandmother of the child came to the city of Dallas, and, without apprising the appellants of the presence or design surreptitiously went to the school where the child was a student and took her away. The substance of the allegations of false and fraudulent representations are that the mother stated to Dorothy, when she found her, “that her sister was ill in the state of Oklahoma, and that it was necessary to carry her to the bedside of the said sick sister in all possible haste.” The testimony offered in support of these allegations, so far as the record shows, is that of little Dorothy. She testified that her mother told her “that Glady’s blue veins were still showing, and she was going to take her to the doctor, and she wanted me to come along with her.” She further testified:

“Gladys is my little sister. I then went on over to the school, whei’o I talked with Mrs. Morgan, the- teacher, and then X went on over to the house, and my mother took me from my home. My grandmother, Mrs. W. B. Slaughter, was not there at the time.”

She further said:

“X did go and see my sister. She was sick— her veins were showing. I saw my sister at the Interurban Station, and also saw my grandmother Oakes there.”

The facts alleged in appellants’ petition and the evidence adduced being insufficient to bring the case under the seventh exception to the venue statute — that is, the fraud alleged not being the gist or basis of appellants’ action — the overruling of appellants’ exceptions to the pleas of privilege of the appellees, even if said pleas were defective in failing to allege that the matters of fraud charged in appellants’ petition were inserted therein for the fraudulent purpose of conferring jurisdiction, furnishes no ground for a reversal of the case, as the proper result has been reached, and no harm done appellants by that specific ruling.

The third assignment of error is to the effect that the trial court erred in sustaining appellees’ pleas of privilege, because the testimony adduced upon the hearing of said pleas establishes the fact, which is uncon-troverted, that the subject-matter of this suit was secured, acquired, and removed out of the possession, control, and custody of the appellants by fraud perpetrated by appellees in Dallas county, Tex.; hence the court erred in sustaining said pleas. This assignment is disposed of against appellants hy our discussion of their first and second assignments. Both the allegations and the proof show that the fraud alleged “is not the gist of and does not constitute the appellants’ cause of action,” but, as said before, their cause of action is founded upon the fact that they have been and probably are unlawfully deprived of the possession and custody of their grandchild, and the fraud alleged, in so far as their right of recovery is concerned, is immaterial.

For the same reason the ninth- exception to the general rule laid in the statute on the ground of crime cannot be invoked, which in fact is not done by the pleadings, as authorizing the maintenance of the suit in Dallas county.

The case of Finney v. Walker, 144 S. W. 679, is cited in support of the contention of appellants. That case is not in conflict with Sheffield v. Rousey, cited above to 'sustain the conclusions we have reached in this case.

The judgment of the district court is affirmed.
      <@coFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    ELLERD v. NEWCOM.
    (No. 7974.)
    (Court of Civil Appeals of Texas. Dallas.
    May 11, 1918.)
    1. Justices oe the Peace &wkey;>174(26) — Evidence Admissible under Pleadings.
    In an action tried first in the justice court, and later, on appeal, in the county court, evidence as to a written contract was admissible, although written contract was not pleaded, no pleadings being required by statute in the justice court or on appeal in the county court.
    2. Justices oe the Peace &wkey;»174(23) — Judgment — Notice to Defendant.
    Where it is apparent, from a judgment for the plaintiff in the justice court, that it was founded on a written contract, such judgment shows that such contract must have been pleaded in that court, and is notice to the defendant, in an appeal action in the county court, that plaintiff is seeking to recover on a written contract.
    3. Pleading <&wkey;403(3) — Deeects—Cube bt Pleadings oe Adverse Party.
    Where defendant’s pleading denies the existence of a written contract, such denial raises the issue of whether such contract ever existed, although contract was not pleaded by plaintiff, and evidence tending to show whether it existed is competent.
    4. Contracts <&wkey;29 — Question for Jury-Existence oe Contract.
    Question of whether a certain written contract ever existed is for the jury.
    5. Appeal .and .Error1 <&wkey;1050(4) — Secondary Evidence — Harmless Error.
    The introduction of a copy of a letter in evidence, without notice to produce the original, was harmless error, where such letter did not contradict evidence of the adverse party.
    6. Appeal and Error <&wkey;1056(l) — Harmless Error — Exclusion of Evidence.
    The refusal to permit a witness to testify that plaintiff did not effect a compromise in a lawsuit, if error, was harmless, where witness testified that he effected compromise through 1 correspondence with the opposing attorney, such evidence excluding the idea of plaintiff assisting in the settlement.
    7. Contracts <&wkey;29 — Execution — Jury Question.
    Where there is a material difference between the terms of a contract as testified to by plaintiff and as testified to by defendant, it was reversible error for the'court to refuse to submit to jury the issue of whether contract as testified to by plaintiff was executed and delivered.
    Appeal from Dallas County Court; T. A. Work, Judge.
    Action by W. J. Newcom against J. J. Ellerd and another. Judgment for plaintiff, and defendant named appeals.
    Reversed, and cause remanded.
    Ellis P. House and Bern Wilson, both of Dallas, and Ocie Speer, of Ft. Worth, for appellant. Pierson & Thomas and Marcus M. Parks, all of Dallas, for appellee.
   RAINEY, C. J.

“W. J. Newcom filed suit in the justice’s court, precinct No. 1, Dallas county, against J. J. Ellerd and Reuben M. Ellerd, to recover $200, the notation of the pleadings upon the justice’s docket being: ‘Suit upon debt for $200.00, of date -, due -, interest -r per cent., attorney’s fees- per cent.’ The defendants answered by a plea of privilege to be sued in Hale county, Tex., the county of their residence, and otherwise joined issues. The plaintiff dismissed in the justice’s court as to defendant R. M. Ellerd,' and recovered judgment against defendant J. J. Ellerd for the amount sued for. The defendant J. J. Ell-erd filed his appeal bond to the county court of Dallas county, at law. The record does' not disclose any pleading by the plaintiff in the county court of Dallas county, at law, other than the pleadings in the justice court. The defendant filed an amended original answer, expressly subject to his plea of privilege, and, besides the general issue, pleaded non est factum and failure of consideration as to the instrument declared on. The case was submitted to a jury on special issues and judgment entered for the plaintiff against defendant and his bondsmen for the sum of $211, with interest.” Defendant perfected appeal to this court.

The error assigned is taken from appellant’s amended motion for new trial, which is as follows: •

“The court erred in permitting plaintiff to-testify, over the objection of defendant, that the defendant entered into a written contract with him (plaintiff), and that said contract had been lost; that said agreement was written on a small card, and that John H. Gaston and Charles O. Hodges and others saw agreement; that said agreement read as follows: ‘I promise to pay W. J. Newcom $200.00 in the city of Dallas, if a certain lawsuit now pending between Ellerd Brothers and Charles O. Hodges is settled out of court. [Signed] J. J. Ellerd.’ Defendant objected to the introduction of this testimony on the ground that no pleadings were filed alleging the execution of such a contract by defendant, and no notice was given to defendant that plaintiff was seeking to recover on such a contract; that plaintiff’s suit was not brought upon a written contract, but all of the pleadings filed in the case, including the citation served upon defendant, showed that plaintiff was seeking to recover on an open account for debt and not upon a written contract; that the evidence showed entirely new cause of action from the one brought in the justice court. That defendant had no notice that plaintiff was seeking to recover on a written contract such as testified to, and had. no notice that plaintiff claimed to have lost said contract, no affidavit or written pleading having been filed putting defendant upon notice of the contents of said instrument, and that said instrument had been lost, as is required by law. Defendant further objected to said testimony for the reason that, if in truth and in fact such a contract had been executed, it showed upon its face that there was no consideration for the execution of same.”

Under the foregoing assignment appellant presents two propositions as follows:

(1) “There was no pleading by the plaintiff alleging a written contract by defendant to pay in Dallas county, and the evidence objected to was therefore not admissible.” (2) “There being no written amendment to plaintiff’s pleadings filed in the county court of Dallas county at law, setting forth the new matter relied on, ..that defendant had executed a written promise to pay plaintiff in Dallas county, the evidence objected to was not authorized by the pleading, and was therefore improperly admitted over defendant’s objection.”

Relative to the first proposition, we will say that under our statute written pleadings are not required in the justice court, arid the same rule applies on an appeal to the county court. ' Such being the ease, it was not necessary for appellee to plead whether his claim was evidenced by a written instrument or by parol. The judgment in the •justice court shows that it was founded on a written contract, which shows that it must have been pleaded in that court. We conclude that appellee had notice of the contract sued on in the county court. Briggs-Weaver Co. v. Pratt, 184 S. W. 732.

As to the second proposition under this assignment, we think the testimony was properly admitted. The writing was lost. Its existence was denied by appellant, which raised the issue of it ever having existed and its contents. The testimony objected to was pertinent as a circumstance to show whether or not it did exist, and while the witness could not say that the signature was that of appellant, and could not identify it as having been written by him, it was for the jury to determine that fact. In other words, the evidence' was conpetent, and the weight to be given to it is the only matter to be considered by the jury.

The second assignment complains of the admission in evidence of a copy of a letter written by appellee to appellant, which in general terms refers to the money due him, and of placing him in an embarrassing position in submitting to Hodges a proposition of compromise and settlement between appellant and Hodges. The ground of objection is that no notice to produce the original had been given to appellant. While technically this is a good objection, we think, under the circumstances of this case, it was harmless and had no influence with the jury. The appellant swore to having given appellee a written contract for the payment of $200 if appellee effected a compromise of a suit between Hodges and appellant, but containing terms different from those sworn to by ap-pellee, "one of which was as to the place of payment of the contract. The letter does not mention the terms of the contract; therefore its admission was harmless.

The third assignment complains of the court’s refusal to admit the testimony of witness A. H. Carrigan to the effect that appellant had nothing to do with effecting a compromise of the suit between the Ell-erds and appellee, and that he had nothing whatever to do with the settlement. The witness Carrigan was permitted to testify at length as to how the compromise and settlement was made; that he, as attorney for the Ellerds, and P. M. Etheridge, as attorney for Hodges, effected the settlement; that P. M. Etheridge wrote him a letter suggesting a compromise; that they took up the matter and effected a compromise. This testimony excludes the idea of appellant being present or assisting in the settlement; therefore the exclusion of the evidence complained of was harmless and was not prejudicial to appellant.

The fourth assignment complains of the court’s action in failing to submit to the jury the following issue: “Did.the defendant J. J. Ellerd execute and deliver to the plaintiff, W. J. Newcom, the following written agreement: T agree to pay to W. J. Newcom $200.00 should he bring about a compromise of the Ellerds v. Hodges Case before court.’ ” Appellant submits this proposition: “Defendant’s special issue No. 1 should have been given because the same pertinently and affirmatively presented defendant’s version and theory, and such issue was nowhere submitted in the court’s charge.” There is a difference between the terms of the contract sworn to by appellee and that pleaded by appellant. The terms of the contract on which appellee sought to recover were embraced in an issue submitted to the jury, except as to whether or not the place of payment was embodied therein. These issues were sharply contested, and should have been submitted to the jury, which was not done by the court. The appellant having denied the contract as sworn to by appellee, and having pleaded a contract as set out as a defense of the contract mentioned, he was entitled to have the issue passed upon by the jury. This issue was raised by the appellee, and the court should have affirmatively presented it to the jury. Railway Co. v. McGlamory, 89 Tex. 635, 35 S. W. 1058; Pullman Co. v. Moise, 187 S. W. 249; Railway Co. v. Casseday, 92 Tex. 525, 50 S. W. 125.

For tlie error indicated the judgment of the court below is reversed and the cause remanded.
      <g=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARxNGEN, J.

text:
    INTERNATIONAL & G. N. RY. CO. v. REED.
    (No. 6029.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 1, 1918.)
    1. Limitation of Actions <&wkey;127(ll) — Statute of Limitations — Amendment—Change from Joint to Individual Cause of Action.
    Change in the cause of action from a joint to an individual one, made by amendment of the • petition, is not the filing of a new suit, and to determine whether the cause is barred by the statute of limitations it will be considered as filed on the date of the original petition.
    2. Carriers <&wkey;227(l) — Carriage of Live Stock — Pleading — Common-Law Liability.
    Where the shipper of cattle suing the carrier for damages in transit alleged that the carrier received the cattle for shipment, received the reward in payment for the services, and caused damage by its negligence, there was a sufficient allegation of the common-law liability of the carrier, which was alleged to be a common carrier.
    3. Appeal and Error &wkey;»1051(l) — Harmless Error — Evidence.
    Where, on trial without a jury, there was sufficient evidence properly admitted to prove the common-law liability of defendant carrier, which was pleaded, on which pleading and proof judgment against it was based, the improper admission of other evidence was harmless.
    4. Depositions &wkey;>96 — Admissibility — Amendment — Elimination of Issue.
    In an action against a carrier for damage to cattle in transit, the trial court did not err in permitting plaintiff to read excerpts from depositions taken before another party was dismissed from the cause as plaintiff and joint owner of the cattle and amended petition filed, alleging individual ownership, though when the depositions were offered in evidence there was no issue of joint ownership, as there was when they were taken, but only ownership by plaintiff.
    5. Carriers <&wkey;229(2) — Carriage of Live Stock — Negligence—Measure of Damage.
    The amount of damage sustained by a shipper of cattle from the carrier’s negligence in transit, plus 6 per cent, interest from the date of the loss, is the correct measure of the shipper’s damage at the date he recovers judgment against the carrier.
    Appeal from Jim Wells County Court; L. Broeter, Judge.
    Suit by J. P. Reed against the International & Great Northern Railway Company. From a judgment for plaintiff, defendant appeals.
    Reformed and affirmed.
    See, also, 189 S. W. 997.
    Greer & Hamilton, of Laredo, and Wilson, Dabney & King, of Houston, for appellant. Dougherty & Dougherty and H. S. Bonham, all of Beeville, for appellee.
   SWEARxNGEN, J.

J. P. Reed, the appel-lee, and W. A. Reed brought suit against the International & Great Northern Railway Company, appellant, and against the Texas-Mexican Railway to recover damages arising from negligence in handling cattle and delay in transportation. Judgment was rendered in favor of appellee against appellant for $455.50, being the amdunt of the damages without interest from the date of the injury to the date of the judgment.

The cause of action originally alleged was that the cattle shipped belonged jointly to J. P. Reed and W. A. Reed. The evidence introduced upon the first trial proved that there was no joint ownership in the cattle, but. that some of the cattle belonged to J. P. Reed and some to W.' A. Reed. W. A. Reed was thereupon dismissed from the case and judgment was rendered in favor of J. P. Reed for the damages to the cattle that belonged to him. The evidence upon that first trial proved that no damage was caused by the Texas-Mexican Railway Company. The first judgment therefore decreed that J. P. Reed recover nothing by his suit against the Texas-Mexican Railway Company. Upon an appeal by the International & Great Northern Railway Company from the first judgment, this court held that the petition alleged joint ownership, whereas the evidence and judgment appealed from established individual ownership, and that therefore there was no pleading to support the judgment. No appeal was taken from the part of the judgment in favor of the Texas-Mexican Railway Company, which part of the decree was undisturbed by us. This court reversed the judgment against the International & Great Northern Railway Company and remanded the cause for new trial. The opinion is found in volume 189 S. W. 997.

Appellee, J. P. Reed, filed a second amend-. ed petition alleging the same cause of action set forth in the original petition except individual ownership of the cattle damaged was alleged. The Texas-Mexican Railway Company pleaded res adjudicata, which was sustained, from which no complaint is made. The International & Great Northern Railway Company by special exception and special plea urged that the second amended original petition alleged a new cause of action from that presented in the original petition, and that the new cause was barred by the statute of limitation. Upon the trial appellant objected to the introduction in evidence by appellee of depositions taken before the filing of the second amended original petition, presenting the new cause of action. The objection was overruled, the depositions introduced, all of which is presented for review and is supported by a proper bill of exception.

Under its first assignment of error appellant submits the following proposition:

“The plaintiff having sued jointly with W, A. Reed for the shipment of cattle, alleging the-date of the shipment to have been April 26, 1914, and the cause having remained as a joint cause of action until the filing of plaintiff’s amended petition herein, the same made a new and different cause of action from that to which defendant was cited to appear and answer, and therein and thereby the same became, was, and is barred by the statute of limitations of two years.”

The rule of law here invoked as applied to facts of the present case has been clearly announced several times by our Texas Supreme Court and by the Court of Civil Appeals. The rule -is that the change in the cause of action from a joint to an individual one, made by the amendment, is not the filing of a new suit. The cause of action thus changed by amendment will be considered as filed on the date of the original petition, up to which date only will the time be computed for the purpose of determining whether the cause is barred. Baker v. G., C. & S. F. Ry. Co., 184 S. W. 257; Foster v. Railway, 91 Tex. 631, 45 S. W. 376; Thompson v. Swearengin, 48 Tex. 560. The decisions above cited render further discussion of appellant’s first proposition unnecessary. The first assignment is overruled.

The fifth assignment presents a similar ■question and for the above reasons is also •overruled.

- The contention made by the second assignment is that the court erred in overruling appellant’s exception to appellee’s second amended original petition. The substance of the exception is that no cause of action was alleged against the appellant. An examination of the said second amended original petition discloses that appellee alleged that appellant received the cattle for shipment, received the reward in payment for said service, and that appellant caused the damage by its negligence. This was a sufficient allegation of the common-law liability of appellant, which was alleged to be a common carrier. The exception was overruled. We overrule the second assignment.

The third assignment complains of the admission of testimony. There was no jury. If the admission of the evidence objected to was error, it is harmless error, for there was sufficient evidence properly admitted to ■prove the common-law liability of appellant, which was pleaded, upon which pleading and proof the judgment was based.

, The third assignment is overruled, and •also the sixth assignment, which involves a similar question.

The fourth assignment, submitted as a ■proposition, is as follows:

“The court erred in permitting the plaintiff to read excerpts from depositions, over defendant’s objections; that were taken before W. A. Reed was dismissed from this cause, and before this cause was reversed by the Court of Civil Appeals.”

We understand, as stated by appellee:

“Appellant’s sole complaint, as already stated, seems to be that when the depositions were taken there was in the case the issue of joint ownership, but that when the depositions were offered in evidence at the last trial of the case there was no issue of joint ownership, but only ownership by J. P. Reed.”

The trial court did not err in its ruling admitting the depositions. Kothman v. Faseler, 84 S. W. 390; Houston Co. v. Dunn, 176 S. W. 634. The following authorities cited by appellee also are relevant: Baker v. G., C. & S. F. Ry. Co., 184 S. W. 257; St. Louis, B. & M. Ry. Co. v. Green, 196 S. W. 555; Texas Midland R. R. Co. v. Cardwell, 67 S. W. 157; Thompson v. Swearengin, 48 Tex. 560; Portis v. Hill, 30 Tex. 529, 98 Am. Dec. 481. The fourth assignment is overruled.

Appellee submits the following cross-, assignment: j

“The court having found that plaintiff, J. P. | Reed, had been damaged by reason of the negli-t gence of the defendant, International & Great: Northern Railway Company, in the sum of; $445.50, and that such damage was sustained on; the 29th day of April, 1914, erred in refusing td render judgment in plaintiff’s favor for interest on said sum of $445.50 at the rate of 6 per centum per annum from the. said 29th day of April, 1914.”

The trial court found it to be a fact that the damage was caused to appellee’s cattle on the 26th day of April, 1914. The court further found that the negligence of appellant caused the cattle to sell for $3.30 per head less than the market price, and found that there were 135 head of cattle so damaged. This damage amounted to $445.50 on the said April 26, 1914. A correct measure of appellee’s damage at the date of the judgment is the $445,50 plus 6 per cent, interest from the date of the loss. Watkins v. Junker, 90 Tex. 584, 40 S. W. 11; Steger et al. v. Barrett, 58 Tex. Civ. App. 331, 124 S. W. 174; Houston Car Wheel & Machine Co. v. Smith, 160 S. W. 435; Texas & Pac. Ry. Co. v. Erwin, 180 S. W. 662; Ft. Worth & R. G. Ry. Co. v. Montgomery, 141 S. W. 813; Sayles’ R. S. art. 1985. We sustain appellee’s cross-assignment.

The judgment of the trial court will be reformed by adding thereto that appellee recover of appellant the sum of $445.50, together with interest at the rate of 6 per cent, per annum from the 28th day of April, 1914, up to the date of the judgment, and interest at the rate of 6 per cent, per annum on the amount of principal and interest on the date of the judgment from that date until the said sum is paid.

As thus reformed, the judgment is affirmed,
      ■g- — .For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    BAKER et al. v. COLE.
    (No. 5889.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 27, 1918.
    Rehearing Denied April 17, 1918.)
    Appear and Error <5&wkey;20, 493 — Jurisdiction —Record.
    Although it appears from the record that the case originated in justice court for an amount less than $200, where there is no transcript of the record from justice court, no final judgment of that court and no appeal bond from justice to county court, it is not made to appear that the county court had jurisdiction, and appeal will be dismissed, since if the county court had no jurisdiction Court, of Civil Appeals is without appellate jurisdiction.
    Appeal from Bell County Court; M. B. Blair, Judge.
    Suit between Bluford Baker and others and Geo. W. Cole, Jr. From a decree of county court on appeal from justice court the former appeal.
    Appeal dismissed.
    G. M. Felts, of Belton, for appellants.
   JENKINS, J.

There is enough in the record in this case to show that it originated in the justice court for an amount less than $200, but there is no transcript in the record from the justice court, no final judgment of that court, and no appeal bond from the justice court to the county court. For these reasons, it is not made to appear that the county court had jurisdiction to try this case, and, that court having no jurisdiction, we are without appellate jurisdiction.

For the reasons stated, the appeal in this case is dismissed.

Appeal dismissed.
      (g^jPor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    HARLAN et al. v. ACME SANITARY FLOORING CO. et al.
    (No. 812.)
    (Court of Civil Appeals of Texas. El Paso.
    April 11, 1918.
    Rehearing Denied May 16, 1918.)
    1. Appeal and Error <&=722(1) — Assignments op Error.
    Acts 83d Leg. c. 136 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1612), providing that assignments in the 'motion for new trial shall constitute the assignments of error, held to preclude the consideration on appeal of assignments that are not correct copies of the corresponding paragraphs in the motion.
    2. Appeal and Error <@=>231(9) — Preserving Exceptions — Statement of Grounds— Charge to the Jury.
    ‘ Acts 33d Leg. e. 59, providing that parties shall present 'their objections to a charge before it is read to the jury, construed to mean that the particular grounds of objection shall be presented, and an objection without such grounds being specified is insufficient to entitle objection to be reviewed on appeal.
    3. Appeal and Error <@=>525(3) — Record-Preserving Exceptions.
    Compliance with Acts 33d Leg. c. 59, providing that a party who objects to a charge shall present grounds of objection before charge is given, requires that the particular objections be specified in the record, and a failure to do so is fatal to a review of such objection on appeal.
    4. Appeal and Error <@=>212 — Questions Review able — Peremptory Instruction — Fundamental Error.
    The giving of a peremptory instruction is not fundamental error so apparent on record that it will be reviewed despite failure to object to such instruction as required by Acts 33d Leg. c. 59.
    5. Appeal and Error <@=>753(2) — Fundamental Error — Assignments of Error.
    Where thero are no fundamental errors that need riot be assigned to be reviewed and no assignments of error presented in compliance with statutory requirement, the judgment must be affirmed.
    Appeal from District Court, El Paso County ; .Ballard Coldwell, Judge.
    Action between Lee Harlan and others and the Acme Sanitary Flooring Company and others. Judgment for the latter and the former appeal.
    Affirmed.
    Seymour Thurmond and Edwards & Edwards, all of El Paso, for appellants. C. W. Croom and Jones, Jones, I-Iardie & Gram-bling, all of El Paso, for appellees.
   HIGGINS, J.

This is an appeal from a judgment rendered upon an instructed verdict. Two assignments of error are presented in the brief complaining of the peremptory instruction. The assignments set forth the reasons why it was contended the peremptory charge was improperly given. Neither of the assignments presented in the brief are true copies of any paragraph of the motion for new trial. They are ’presented in a reconstructed form.

By chapter 136, Acts 33d Legislature, page 276 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1612) it is provided that the assignments in the motion shall constitute the assignments of error. We have no authority to disregard the plain meaning of this legislative provision, and it has been repeatedly held that the courts will not consider assignments which have been reconstructed, or are incorrectly copied in the brief. For the reasons indicated, the assignments cannot be considered. Edwards v. Youngblood, 160 S. W. 288; Mfg. Co. v. Walcowich, 163 S. W. 1054; Dees v. Thompson, 166 S. W. 56; Overton v. K. of P., 163 S. W. 1052; Smith v. Bogle, 165 S. W. 35; Coons v. Lain, 168 S. W. 981; Watson v. Patrick, 174 S. W. 632; Oil Co. v. Crawford, 184 S. W. 728; Irrigation Co. v. Buffington, 168 S. W. 21; Ruth v. Cobe, 165 S. W. 530.

Another reason which precludes consideration of the assignments upon their merits is the failure to observe the provisions of chapter 59, Acts 33d Legislature. This act requires that before the charge is read to the jury, the parties shall present to the court -their objections. This plainly means that the parties shall pres'ent to the court the reasons why they object to the charge, or any part thereof. The record here simply discloses that the parties objected to the charge before it was given.1 It fails to show that they presented the grounds of their objection. If it were held that it is sufficient for a party to simply state that he objects to a charge,- then the statute would be deprived of all efficacy. The objections must be distinctly stated so that the trial court then and there may be advised of the error, if any, which the charge contains. Railway Co. v. Thomas, 175 S. W. 822; Steele v. Dover, 170 S. W. 809. The record failing to show what objections were urged against the charge, the act was not complied with. Compliance therewith is imperative. Railway Co. v. Dickey, 108 Tex. 126, 187 S. W. 184.

The giving of a peremptory instruction is not fundamental error, and, if it is, the same is nevertheless waived by a failure to comply with the act last mentioned. Hendrick v. Lbr. Co., 200 S. W. 171; Needham v. Cooney, 173 S. W. 979; Railway Co. v. Wheat, 173 S. W. 974; Loeb v. Railway Co., 186 S. W. 378; Pearce v. Supreme, etc., 190 S. W. 1156; Heidenheimer v. Railway Co., 197 S. W. 886; Commonwealth, etc., v. Bryant, 185 S. W. 979.

We have carefully examined this entire record to ascertain if it presents any fundamental error requiring reversal, without being properly assigned,. and find none. The judgment must therefore be affirmed. Riggs v. Baleman, 198 S. W. 813, and cases there cited. This court always regrets the necessity of disposing of appeals except upon their merits, but it cannot disregard plain statutory provisions.

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


author: FLX, C. J.

text:
    ALAMO TRUST CO. v. CUNNINGHAM.
    (No. 6030.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 24, 1918.
    On Motion for Rehearing, May 16, 1918.)
    1. Vendor and Purchaser <§=>239(9) — Deeds —Duty to Record.
    The vendor is under no duty to record his deed to preserve his vendor’s lien thereunder from loss by. another’s innocent purchase in reliance on a deed forged by the vendee.
    2. Vendor and Purchaser <§=>239(9) — Forgery— Effect.
    A forged deed is void and ineffective, and reliance upon it by a purchaser cannot affect the rights of the owner of the property.
    3. Pleading <§=3291(4) — Affidavit of Forgery-Burden oe Proof.
    When a deed was attacked by an affidavit of forgery, the burden then rested on the party relying on the deed to show that it was a genuine instrument.
    4. Appeal and Error <§=>1064(3) — Harmless Error — Instructions.
    While the statute requires that instructions be in writing, failure to give a written charge is immaterial, where, under the facts, no other verdict could have been properly rendered.
    5. Appeal and Error <@=>742(1) — Assignments of Error — Sufficiency.
    An assignment of error which is neither a proposition of law in itself, nor is followed by a proposition of law, may be disregarded.
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Suit by J. L. Cunningham against F. T. Alexander, the Alamo Trust Company, and others. Judgment for plaintiff, and defendant Alamo Trust Company appeals.
    Affirmed.
    Ryan & Matlock, of San Antonio, for appellant. W. H. Penix, of Mineral Wells, for ap-pellee.
   FLX, C. J.

This suit was instituted by ap-pellee against F. T. Alexander, W. O. Scott, Herman Harms, H. E. Bahr, and appellant to recover 40 acres of land in Cameron county, and in the alternative to recover on seven promissory notes executed by Alexander to W. O. Scott for part of the purchase money of the 40 acres of land. It was alleged that the vendor’s lien was retained on the land, and that the notes were transferred by Scott to appellee together with the lien and that payment was guaranteed by Scott. It.was alleged that Bahr, Harms, and appellant were setting up some claim to an interest in the land. Appellant, Bahr, and Harms filed a general demurrer, general denial, and specially pleaded that the trust company had loaned Alexander $1,700, and had taken a deed of trust on the 40 acres of land sued for by appellee to secure a note given by Alexander to evidence the loan; that this occurred on September 10, 1912, after a thorough search of the records of Cameron county failed, to disclose any claim against said land; that Alexander defaulted in payment of the note, and the land was sold by the trustee on July 1, 1913, and purchased by appellant, and afterwards, on March 7, 1914, appellant, for a valuable consideration, sold said land to Herman Harms, and on March 16, 1914, Harms sold the land to H. E. Bahr; that these different purchases were made in good faith without notice of any adverse claim to the land and for a valuable consideration. It was further alleged that the deed from Scott to Alexander was a full warranty deed, no lien of any kind being reserved therein, and no record was made of any transfer of the notes and lien to appel-lee from Scott, and appellant Harms and Bahr had no notice of the same. A plea of not guilty was filed as a trial amendment.

In a supplemental petition, which was verified by affidavit, appellee alleged .that the deed from Scott to Alexander, which failed to recite a lien on the land, was, a forgery, and that the real deed recited a vendor’s lien to secure the purchase money, and retained the superior title to Scott in the land. A trial was held by jury, and a verdict instructed for appellee, which was accordingly returned, and judgment was rendered in favor of appellee as against Scott and Alexander in the sum of $5,370.10, and foreclosing the vendor’s lien on.the land, and that the lien of the deed of trust given by Alexander to appellant be made second to the vendor’s lien.

The evidence in this case shows beyond controversy that the deed recorded in Cameron county, which purported to be a warranty deed without the reservation of a lien or mention of purchase-money notes, was a forgery, and was not executed by W. O. Scott and wife to F. T. Alexander on July 6, 1912, or any other time. The deed made by Scott and wife conveyed 40 acres of land in Cameron county to F. T. Alexander for a nominal cash consideration, and seven promissory notes for $500 each, which were described in the deed, and a vendor’s lien retained to secure them. The real deed was not recorded, and in the forged deed there was no mention of notes or lien, but the consideration recited was $6,000 in cash. The real deed was typewritten, a part being on one page, and a part with the signatures of the vendors and the acknowledgments on another page. The evidence showed, without contradiction, that the first page of the real deed had been detached and another and forged page attached in its place. Alexander did not testify. He had disappeared before the trial, and his whereabouts could not be ascertained. , He left his wife and family in Texas, where he disappeared. Appellant loaned Alexander $1,700, and to secure the money took a deed of trust on the.40 acres of land; the forged deed on record showing that the title to the land was in Alexander. Appellant bought the land at the trustee’s sale and he and his vendees, Harms and Bahr, bought in good faith without knowledge of the forgery.

It did not devolve upon the vendors of the land to record the deed to Alexander, and the failure to record could not ha!ve deceived or misled any one, for as long as it was unrecorded the feeord title to the land was in the vendors, and it became the duty of a person who desired to lend money to a person in possession of the land without a deed to investigate his right to hold possession. The laws of Texas do not require that a vendor should have his deed to his vendee recorded before delivery, and after delivery he could not, if he would, have the deed recorded. It is then in the hands of the vendee, and subject to his control. Most vendees desire the record of their deeds, for it is a protection to them against a subsequent sale by the vendor to an innocent purchaser, without notice. The duty to record the deed rested on Alexander, and not on Scott, and the lattter cannot be held responsible for the failure of Alexander to record the deed executed by Scott and wife.

This case must be considered exactly as though no deed from Scott and wife was upon record, and appellant occupies the same position that it would have occupied had the forged deed not been recorded. That instrument was a nullity, and its record could not and did not give it vitality. The forged deed could not affect the title to the land, and was therefore not entitled to record. The provisions of the statutes as to deeds being void as to subsequent purchasers, without notice, if not recorded, have no application to forged deeds. Reliance on a recorded forged deed may bring loss on him who so relies, but it cannot affect the rights of the owner of the properly. A man cannot be deprived of his property by a forged deed, no matter in what good faith the party acted who claims under it. The forged instrument is as absolutely void and ineffective as though it had never existed. Devlin on Real Estate, § 726; Smith v. Markland, 223 Pa. 605, 72 Atl. 1047, 132 Am. St. Rep. 747; Abee v. Bargas, 65 S. W. 489; Loring v. Jackson, 43 Tex. Civ. App. 306, 95 S. W. 19; Green v. Eddins, 167 S. W. 196.

When the deed that was recorded in Oameron county, which purported to be the deed of-W. O. Scott and wife, was attacked by an affidavit of forgery, the burden rested upon appellant to show that it was a genuine instrument. Storey v. Flanagan, 57 Tex. 649; Houston Oil Co. v. Kimball, 114 S. W. 662; West v. Houston Oil Co., 56 Tex. Civ. App. 341, 120 S. W. 228; Village Mills v. Houston Oil Co., 186 S. W. 785; Rudolph v. Hively, 188 S. W. 721. In this case no effort seems to have been made to show the genuineness of the deed, and almost the whole brief is directed at the failure of the vendor to have vendee’s deed recorded. The failure to record did not rest upon the vendor, but, if it had so rested, that could not possibly make a purchaser under a forged deed an innocent purchaser. The superior title to the land still remained with the vendor in spite of the record of a forged deed. The proof offered by appellee, which he was not compelled to offer, led to the irresistible conclusion that the deed pleaded as a muniment of title by appellant was a forgery of the rankest and crudest character. Of all men in the world, Alexander was most interested in the trial of the cause, for his reputation was at stake; but when the supreme moment came he had disappeared, so that even his wife did not know where he had gone. Appellant did not even' offer in evidence the forged deed, upon which it was forced to depend for a recovery.

The court verbally instructed a verdict for appellee, and while the statute requires the law of the ease to- be charged in writing, under the facts of this case no' other verdict could have properly been rendered, and therefore the failure to give a written charge is utterly immaterial. Schwartzlose v. Mehlitz, 81 S. W. 68; Wallace v. Shapard, 42 Tex. Civ. App. 594, 94 S. W. 151. Appellant requested a special instruction, and at the time verbal charge was given made no objection. The first objection urged was two days after the trial in the motion for new trial.

The special charge requested by appellant was an instruction to find for appellant, and was based on a false premise that while the superior title to the land was in appellee, still he held it subject to the lien created by the deed of trust given by Alexander to appellant. By that charge the nullity of the forged deed was recognized, for if it had been valid appel-lee would .not have held the superior title to the land. The assignment which attempts to assail the action of the court in refusing the special charge is not a proposition of law in itself, nor is it followed by a proposition, and might well have been disregarded. However, it has been considered, and is overruled.

The judgment is affirmed.

On Motion for Rehearing.

This court stated that appellant bought the land at the trustee’s sale, and based the finding on the testimony of Hertzberg, its attorney, and Albers, its vice president and secretary. The latter said:

“When we bought the property in, we either had to carry it on the books as real estate, or carry it in the way of loan. We then made a deed to Mr. Harms, and took his note for $3,000, as a matter of convenience for carrying it on the books as a loan instead of carrying it as real estate.”

Again, he swore in regard to the pretended sale to Harms:

“The property still belonged to the Alamo Trust Company.”

He also stated that neither Harms nor Bahr had any interest in the land. This court was mistaken in stating that Harms and Bahr bought in good faith. It seems that they did not buy at all. That conclusion is not objected to by appellant, but the conclusion that appellant bought in good faith at trustee’s sale is objected to, and we withdraw that finding, which leaves appellant in the attitude of claiming that a deed of trust given by a vendee on land for which the purchase money has not been paid, and on which is held a valid vendor’s lien, is superior to that vendor’s lien. Of course no authority is or could be offered to sustain such a proposition. To so hold would destroy a line of precedents dating back to the foundation of the Texas Republic.

The motion for rehearing is overruled.
      ®=»Por other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY; C. J.

text:
    ROBINSON v. McGUIRE et al.
    (No. 5894.)
    (Court of Civil Appeals of Texas. Austin.
    March 19, 1918.)
    1. Homestead <@==>181(3) — Abandonment — Sufficiency of Evidence.
    In trespass to try title evidence held insufficient to show that defendant wife had abandoned her homestead right in the property in controversy.
    2. Homestead <@=>181(3) — Abandonment — Sufficiency of Evidence.
    Evidence held to support jury finding that defendant wife had formed no intention not to return to homestead awarded her by partition decree and had not at any time thereafter intended to reside permanently in another state.
    3. Homestead <@=>154t — Loss of Right.
    When a homestead has been acquired it remains such until it has been abandoned or another homestead acquired.
    4. Homestead <@=>181(1) — Abandonment — Bub den of Peo of.
    When it is shown that a homestead once existed the burden rests upon those who contest its continuance to show that it has beeD abandoned. „
    5. Homestead <@=>162(1) — Abandonment — What Constitutes.
    To constitute abandonment it is not sufficient to show a mere .discontinuance of the use of the property as a residence, but it must also be shown that such discontinuance was accompanied by an intention never, to resume its use as a homestead.
    6. Homestead <@=>163 — “Abandonment” — What Constitutes.
    That for several years defendant and her family did not reside upon the lot in question, but upon other property owned by her, and that during a part of that time she and her husband resided in another state, does not necessarily disclose . an abandonment of defendant’s homestead rights in lot.
    [Ed. Note. — Por other definitions, see Words and Phrases, Pirst and Second Series, Abandonment.]
    7. Homestead <@=»164 — “Abandonment” — What Constitutes.
    A mere acquisition and occupancy of a home in another governmental subdivision, whether it be another county or another state, is not conclusive proof of abandonment of a homestead, when it is shown that such was not the intention of the person claiming the homestead right.
    Appeal from District Court, Travis County; Ireland Graves, Judge.
    Trespass to try title by A. Robinson, trustee, against Mrs. M. V. J. McGuire and husband. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Hart & Patterson, of Austin, for appellant. Warren W. Moore, of Austin, for appellees.
   KEY; C. J.

Appellant brought this suit against appellees, Mrs. M. Y. J. McGuire and her husband, C. H. McGuire, to recover about 62 acres of land situated in Travis county; the petition .being in the usual form of trespass to try title. The defendants’ answer included a general demurrer, general denial, and plea of homestead. There was a jury trial, which resulted in a verdict and judgment in favor of the defendants, and the plaintiff has appealed.

The proof shows that the property in question was the homestead and community property of W. B. Barr and appellee Mrs. McGuire, on December 31, 1902, at which time W. B. Barr died. After her husband’s death, Mrs. Barr bought a house and lot in the city of Austin, which she moved to and occupied with her children for several years, when she sold it and bought another house and lot in the same city, which she subsequently sold; and thereafter she and her present husband, C. H. McGuire, went to Denver, Colo., where they purchased a house and lot which they occupied as a home for about three years. After Mrs. McGuire moved to Austin she married a man by the name of Westfall, but was subsequently divorced from him and thereafter married her present husband, Mr. McGuire. When Mr. Barr died he and his wife had three living children; and in 1905, in a partition suit, a depree was rendered vesting title to the land in controversy in Richard Everett Barr, subject to the homestead right of his mother, who is now Mrs. McGuire, and one of the appellees in this case. Thereafter, Richard Everett Barr was adjudged a bankrupt, and A. Robinson, the appellant in this case, was appointed trustee of the bankrupt estate; and, as heretofore stated, he instituted this suit to recover the property from Mrs. McGuire and her husband, his contention being that the homestead right which was vested in Mrs. McGuire by the partition decree referred to had been abandoned, and therefore she was not entitled to the possession and use of the premises.

The trial court submitted the case to the jury upon two special issues, which were as follows:

“Question No. 1. Has the defendant, Mrs. M. Y. J. McGuire, at any time since the 19th day of October, 1905 (the date of the partition decree above referred to), had or formed an intention not to return to the property known as the home place at Sprinkle, for the purpose of using and occupying same as her home?”
“Question No. 2. At the time of the removal of the defendant to the state of Colorado, or at any time thereafter, has there been an intention on the part of the defendant Mrs. McGuire to reside permanently in Colorado?”

The jury answered both of those questions in the negative; and thereupon judgment was rendered in favor of the defendants.

It is not necessary to set out in detail the several assignments of error presented in appellant’s brief, the main contention being that the proof shows that Mrs. McGuire had abandoned her homestead right to the property. Mrs. McGuire testified, and submitted other testimony, tending to the same effect, that she never intended to permanently abandon the property in question, but always intended at some time in the future to return and use it as her home. She stated that she moved into Austin for the purpose of educating her children; and that she went to Colorado upon the advice of a physician, hoping to improve the condition of her health. The proof shows that after she and her husband arrived in Denver, Colo., he was offered a position as’teacher in one of the schools there, and as there was doubt about his securing the position he had formerly held in a school in Austin, he accepted that employment, and taught there up to the time of the trial of this case. He stated that it was not the intention of himself or wife to remain permanently in Colorado, but that they intended to return to Texas. Mrs. McGuire testified that their reason for buying the house and lot in Denver was because it was for sale so cheap that they regarded it as a good investment, because they could pay for it by monthly installments and save paying rent. The proof also shows that in order to render property a homestead in the state of Colorado, it is necessary to have the clerk where the deed is recorded make an entry upon the record book, showing that the property is claimed as homestead; and this was not done by the McGuires, and Mr. McGuire testified that they did not do so because they claimed the property involved in this suit as their homestead. It was also shown that on one occasion, while in Colorado, Mrs. McGuire voted at an election, but it was not shown that her husband did so. The proof also shows that after moving into Austin, Mrs. McGuire rented .the property in controversy, and that she frequently returned to it, and sometimes remained there for days at a time, and that she used the rental obtained for it for the purpose of supporting her children and herself. She testified that their residence in Colorado was never intended to be permanent, and that she had always intended to return to the property in controversy, though no definite date for such return had ever been fixed.

We have not undertaken to set out the language used by the witnesses, but the foregoing statement is substantially correct. Other and disinterested witnesses testified to having heard Mrs. McGuire state, while residing in Austin, that she intended to return to her home at Sprinkle, which is the property in controversy; and our conclusion is that the testimony supports the findings of the jury, and that the undisputed facts and the findings referred to support the action of the trial court in rendering judgment for appellees.

Counsel for appellant have cited some authorities in other jurisdictions.tending to show that when the owner of a homestead •removes to and acquires a home, or exercises rights of citizenship in another state, he thereby loses all homestead rights in property in the state from which he has moved; but, in so far as we have been able to ascertain, that rule does not prevail in Texas. As we understand it, the prevailing doctrine in this state is that, when a homestead has been acquired, it- remains such until it has been abandoned, or another homestead acquired; and that, when it is shown that the homestead once existed, the burden of proof rests upon those' who contest its continuance to show that it has been abandoned; and that, in order to constitute an abandonment, it is not sufficient to show a mere discontinuance of the use. of the property as a residence, but it must also be shown that such discontinuance was accompanied by an intention never to resume its use as a homestead.

In the present case, the undisputed proof shows that for several years Mrs. McGuire and her family have not resided upon the property in question, but upon other property owned by her; and that during part of that time she and her husband have resided in another state. But those facts do not necessarily disclose an abandonment of Mrs. McGuire’s homestead right in the property, because such abandonment did not exist unless she acquired another homestead, or at some time during her absence from the property there was formed in her mind an intention not to return and use it as her homestead. That was the only question in the case about which the testimony left any room for contention or difference of opinion, and, therefore, the trial court very properly restricted the jury to a consideration of that question.

As to the contention that appellees’ removal to another state, and the acquisition of a home therein, constituted an abandonment of their homestead rights in this state, ■even though they may not have acquired a homestead in Colorado and may have intended to return to the property in controversy and use it as a homestead, our conclusion is that such contention is not supported by sound reason. We are unable to perceive why the crossing of a governmental boundary line, whether it be county, state, or national, and the acquisition of a home there, should be given conclusive effect in determining the question of abandonment of a homestead right, in the absence of a statutory or constitutional provision declaring that such effect should be given to it. Of course, such circumstances constitute evidence tending to show abandonment of the homestead right, and if it be shown that the newly acquired home was acquired or used with the intention of making it a homestead, then, whether it be located in another state, or in the same state, the former homestead right will be lost, because no one can have two residence homesteads at the same time. But the mere acquisition and occupancy of a home in another governmental subdivision, whether it be another county or another state, ought not to be held conclusive proof of an abandonment of the homestead, when it is shown that such was not the intention of the person claiming the homestead right. In support of our decision upon this point we copy rrom the opinion of the Supreme Court in Graves v. Campbell, 74 Tex. 576, 12 S. W. 238, as follows:

“The second assignment is that ‘the court erred in the third paragraph of his charge, in this: He tells the jury, “If defendants, W. S. Campbell and wife, Adelia, when they moved away from said property, did not intend not to return to said property, and use it as a homestead, or if they did intend and still intend to return and so use said property and occupy it as a homestead, and that neither of them has ever acquired any other homestead since they went away from the property in controversy, then, in such case, such property was not subject to forced sale, and you will find for defendant.” ’ There was evidence which made such a charge proper, and we understand the law to be as therein stated. There was no controversy as to the fact that the property was at one time the homestead of Campbell and his family, but he and family had been absent from it for some time, as claimed, and the great weight of the evidence tended to show, because it was necessary for him to remain in the state of Missouri under treatment by a specialist for a dangerous disease, but with intent at all times to return to it as soon as his condition would permit. So being the evidence, the court, in connection with other proper and relevant charges, instructed the jury that, ‘in order for the plaintiff to recover on the grounds of abandonment, you must be satisfied by preponderance of evidence that W. S. Campbell, at the time of leaving the state, did so with the intent to abandon his said homestead, or that since leaving he determined to abandon the same.’ Appellant claimed that Campbell had changed his domicile from Texas, where it is shown once to have been, to the state of Missouri, and the great burden of his brief is to establish the proposition that Campbell had changed his domicile and become a citizen or resident of the state of Missouri, without intent to return to his home in Texas. If he had established that proposition to the satisfaction of the jury, under the charge of the court, the verdict would have been in his favor on the question of abandonment. One having acquired domicile does not lose it without removal from it with intent not to return, and the same is true as to abandonment of a homestead once acquired. The burden of proof in either case rests upon the person asserting the affirmative of the proposition. One may wrongfully exercise such powers or privileges as can be exercised lawfully only by an actual citizen of the state in which they are exercised, and this will be evidence of the fact that he is a citizen of the state in which he assumes to exercise rights which pertain only to citizenship, but not conclusive evidence of that fact.”

In addition to the case quoted from, the following are cited in support of our decision: Lumpkin v. Nicholson, 10 Tex. Civ. App. 108, 30 S. W. 568; Aultman & Co. v. Allen, 12 Tex. Civ. App. 227, 33 S. W. 679; Farmer v. Hale, 14 Tex. Civ. App. 73, 37 S. W. 164; Gaar, Scott & Co. v. Burge, 49 Tex. Civ. App. 599, 110 S. W. 182. See, also, authorities collated in Harris’ Constitution of Texas, beginning on page 853, and similar collation by Judge Speer in the last edition of his excellent treatise on Marital Rights in Texas, on pages 536 and 537. In the last case cited, the Galveston Court of Civil Appeals reviews Trawick v. Harris, 8 Tex. 315, Jordan v. Godman, 19 Tex. 273, and Smith v. Uzzell, 56 Tex. 316, and shows that certain expressions of the court in those cases, concerning the effect of removal to another state, do not establish the law that in this state such removal ipso facto destroys pre-exist-ing homestead rights. In Aultman & Co. v. Allen and Farmer v. Hale, supra, it is held that the ownership and use of another home does not necessarily constitute abandonment of a pre-existing homestead right.

The other questions presented in appellant’s brief have been considered, and are decided against him.

It will be noted that this case does not involve any controversy between creditors of one claiming a homestead and such claimant. In the instant case the controversy is between the representative of the creditors of Richard Everett Barr and his mother, whose title to the property is fixed by a decree of court, which vests the fee-simple title in the son, subject to the homestead right of the mother. Of course, the creditors of Richard Everett Barr can assert no claim to the property, as against his mother, which could not be asserted by him; and, whether or not that distinguishes this from the class of cases in which the question of abandonment of homestead rights has been considered, we have not undertaken to and do not decide.

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

Affirmed.
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