text:
    JEFFERSON, County Clerk, v. McFADDIN.
    (No. 6932.)
    (Court of Civil Appeals of Texas. Galveston.
    May 25, 1915.
    Rehearing Denied June 30, 1915.)
    1. Appeal and Error <&wkey;758 — Briefs—Rules of Court.
    A brief of appellant not complying with that part of rule 29 for the Courts of Civil Appeals (142 S. W. xii) providing that the assignments, as presented in the brief, shall be numbered consecutively, or with rules 24 and 25 (142 S. W. xii), relating to assignments of error and specifications of error, does not call for consideration.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3093; Dec. Dig. <&wkey;>758.j
    2. Drains &wkey;?14 — Establishment of District-Recovery of Deposit.
    Plaintiff who did not sign a petition for the establishment of a drainage district, but who, at the request of signers thereto, deposited with the clerk of the commissioners’ court the $200 required by Rev. St. 1911, art. 2602, to be deposited on the filing of the original petition, to be held until the result of the election, and, if the result be in favor of the establishment of a district, to be returned to the signers of the original petition or their agent or attorney, after an election in favor of establishing the district was entitled to its return; and the fact that plaintiff was attempting to have the election set aside, and to prevent the issue and sale of the bonds authorized thereby, so as to make it impossible for the district to pay the costs incurred by it to the clerk, was no excuse for the clerk’s diversion of the deposit to the payment of costs incurred by the district.
    [Ed. Note. — For other cases, see Drains, Cent. Dig. §§ 5, 6; Dec. Dig. &wkey;jl4.]
    3. Injunction <&wkey;l — Purpose of Writ.
    The purpose of a writ of injunction is to enforce the performance of a duty clearly defined by law.
    [Ed. Note. — For other eases, see Injunction, Cent. Dig. § 1; Dec. Dig. <&wkey;>l.]
    4. Manbamus <&wkey;105 — Subjects of Relief-Acts of Public Officers.
    Mandamus is the proper remedy to compel a public officer to perform an act enjoined in the manner required by law, and lies to compel the clerk of the commissioners’ court to return a deposit made with the original petition for the establishment of a drainage district, in accordance with the provisions for its return; and the fact that the depositor had a legal remedy at law to recover it, or that he had a remedy upon the official bond of the clerk, did not necessarily require him to resort to such remedy.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. § 223; Dec. Dig. &wkey;105.]
    5. Mandamus <&wkey;151 — Acts of Public Officers — Clerk of Commissioners’ Court-Return of Deposit.
    Rev. St. 1911, art. 2602, provides that, when the original petition for the establishment of a drainage district is filed with the county commissioners’ court, it shall be accompanied by $200 deposited with the clerk, to be held until after the r.esult of the election for the creation of the district has been declared, and, if the election is in favor of the establishment of the district, to be returned to the signers of the original petition or to their agent or attorney. The petition in mandamus to compel the clerk to return such deposit alleged that certain named persons were the signers of the petition for the establishment of the district, and that the deposit was made by plaintiff at their request and for them, but did not allege that he was their agent or attorney, and the answer alleged that the deposit was the property of the signers of the petition. Held, that mandamus to compel its return, as provided by statute, would not lie, where the signers to the original petition for the establishment of the district were not joined as respondents, as the court, in their absence, could not adjudicate, so as to protect the clerk against any demand which they might thereafter make against him.
    [Ed. Note. — For other cases, see Mandamus, Gent. Dig. §§ 291, 292; Dec. Dig. &wkey;151.]
    Appeal from District Court, Jefferson County; John M. Conley, Judge.
    Mandamus by W. P, H. McFaddin against J. R. Jefferson, County Clerk. Judgment for plaintiff, and defendant appeals.
    Reversed .and remanded.
    Barry & Burges, of Beaumont, for appellant. F. J. & C. T., Duff and Herbert W. Reed, all of Beaumont, for appellee.
   LANE, J.

On or about the 15th day of October, 1913, Ivy James and other citizens of Jefferson county, Tex., filed a petition with the commissioners’ court of said county, praying for the establishment of a drainage district. Upon said petition, on the 10th day of February, 1914, an election was duly ordered and thereafter held, and resulted in the establishment of said district, known as drainage district No. 4. The original petition for said election was filed with J. R. Jefferson, county clerk of Jefferson county, and ex officio clerk of the commissioners’ court of said county, as required by law. When said petition was filed with said clerk, W. P. H. McFaddin deposited $200 in cash with him to meet the requirements of article 2602, Revised Statutes of 1911, which is as follows;

“All expenses, debts, and obligations, after the filing of the original petition, necessarily incurred in connection with the creation, establishment and maintenance of any drainage district organized under the provisons of this chapter, shall be paid out of the construction and maintenance fund of such drainage district, which fund shall consist of all money received by said district from whatever source, except such portion of the tax collection necessary to be applied to the sinking fund and payment of interest on the drainage bonds; Provided, that should the proposition of the creation of such drainage district and the issuance of bonds be defeated at the election called to vote upon the same, then all expenses up to and including said election shall be paid in the following manner: When the original petition praying for the establishment of a drainage district is filed with the county commissioners’ court, it shall be accompanied by two hundred dollars in cash, which shall be deposited with the clerk of said commissioners’ court, and by him held until after the result of the election for the creation of said drainage district has been declared and entered of record by the commissioners’ court, as hereinbefore provided, and, should the result of said election be in favor of the establishment of said district, then the said two hundred dollars shall be by said clerk returned to the signers of said original petition or their agent or attorney; but should the result of said election be against the establishment of said drainage district, then the said clerk shall pay out of the said two hundred dollars, upon vouchers signed by the county judge, all costs and expenses pertaining to the said proposed drainage district up to and including the said election, and shall return the balance, if any, of said two hundred dollars to the signers of said original petition or their agent or attorney.”

After said election had been held, which resulted in the establishment of said district No. 4, and after said commissioners’ court had duly entered an order declaring the result of said election as favoring the establishment of said district, etc., W. P. H. McFaddin requested and demanded of said clerk the return to him of the said $200 so deposited by him with said clerk, which request and demand said clerk at all times refused.

On the 29th day of August, 1914, appellee McFaddin presented his application to the Honorable John M. Conley, judge of the Sixtieth judicial district court, praying for a writ of mandamus, to compel said clerk to deliver to him (said McFaddin) the said $200 so deposited by him with said clerk.

It is alleged in plaintiff’s petition that Ivy James, W. A. Coward, S. E. Broussard, and others, by name, were the signers of said petition for the establishment of said drainage district No. 4, and that at the instance and request, and for the signers of said petition, he had deposited the said .$200 in question with the said clerk. Upon the presentation of plaintiff’s said petition to Judge John M. Conley, he made the following order, to wit:

“State of Texas, County of Jefferson.
“The above and foregoing petition for writ of mandamus having been presented to me, and I having duly considered the same, order that said application for said writ of mandamus be set down for hearing before me, at the courthouse in Jefferson county, Texas, at 10 o’clock a. m., Tuesday, September 1, 1914, at which time and place the defendant J. R. Jefferson is required to appear and show cause, if any he has, why said writ should not be granted as prayed for. The clerk of the district court is directed to issue notice to the defendant herein of the order herein made.
“Beaumont, Texas, August 29, 1914.
“John M. Conley, Judge.”

On September 14, 1914, after notice of the court’s order had been served upon j; R. Jefferson, defendant herein, he filed his answer and therein excepted to plaintiff’s petition as being insufficient in law to entitle him to the relief prayed for, because it is made to appear therefrom that said Ivy James, W. A. Coward, S. E. Broussard, and others were the petitioners for said drainage district; that said McFaddin was not one of said peti-‘ tioners; and that there is no allegation in said petition that said McFaddin is the agent or attorney of or for said James and others, and that it appears from said petition that said Ivy James and others are the owners of said $200, and that said McEaddin is not the owner thereof.

Answering the merits of plaintiff's petition, defendant says that said $200 deposited with him was a deposit by the petitioners for the drainage district, and that, in making said deposit, the said McEaddin acted in the capacity of agent or messenger for said signers of said petition, and not for himself, and that his agency extended no further tnan to make such actual deposit; that, if McFaddin advanced said money to said signers, it was a loan or advancement to said signers and not to defendant, and that defendant does not know McFaddin in the transaction; ^that plaintiff can in no event recover said $200 so iSfgosiied, because he (defendant) has paid all ,. of the same on’costs incurred in establishing ; said drainage district; that he has good reason to believe that the signers of said petition for said drainage district do not desire that said $200 he paid out by him until after the sale of the bonds of said district; that he has good reason to believe McFaddin contemplates attempting to prevent the sale of the bonds of said district; that he is contending that the election creating said district was illegal, and that bonds issued thereunder are not lawfully issued and cannot be sold, etc.; and that, if said bonds are not sold, defendant will suffer a loss of $200 without fault on his part. He further alleges he and his sureties are solvent, and that, if McFad-din is entitled to the $200 so deposited with him, he can recover same by suit at law, and is therefore not entitled to the equitable relief grayed for. There are also further matters of defense alleged not necessary to be stated.

Plaintiff McFaddin by supplemental petition pleaded: (1) General demurrer; (2) special exception to all parts of defendant’s answer wherein it is alleged that defendant has paid out said $200 deposited with him, and that it is not now in his possession, and to so much of said answer as alleges that the signers of said petition for said drainage district did not want the said $200 paid to plaintiff, and to so much of said answer as alleges what the said McFaddin intended to do in an attempt to have said election declared void, and to so much of said answer as alleges that defendant has paid out and expended the said $200 deposited with him.

The court overruled all demurrers and exceptions of defendant to plaintiff’s petition and sustained all the special exceptions of plaintiff to defendant’s answer.

Upon trial before the court the following judgment was rendered:

“And it further appearing to the court that the McFaddin, Wiess & Kyle Land Company has intervened and agreed and consented that the $200 deposited by relator, may be paid and returned to relator, W. P. H. McFaddin, and it further appearing to the court that the said Ivy James, W. A. Coward, S. E. Broussard, Thomas Lytle, C. H. Spurlock, H. C. Jones, P. H. Teal, and C. F. Jackson, signers of the •original petition, praying for the establishment of drainage district No. 4, have no interest in or title to the $200 in controversy, and described in relator’s petition, it i£ therefore considered by the court that the said W. P. H. McFaddin is entitled to the money in controversy, to wit, $200, deposited with the clerk and described in relator’s petition; and it is further considered that the said J. R. Jefferson, county clerk of Jefferson county, Tex., and ex officio clerk of the commissioners’ court of said county, respondent, ought to pay over the same to relator. It is therefore ordered, adjudged, and decreed as follows: That J. R. Jefferson, county clerk of Jefferson county, Tex., and ex officio clerk of the commissioners’ court of said county, pay over and return to the relator, W. P. H. Mc-Faddin, the sum of $200, and that the costs of this suit be assessed against the said J. R, Jefferson, county clerk of Jefferson county, Tex., and ex officio clerk of the commissioners’ court of said county, for which the clerk of this court may have his execution.”

As an explanation of the first section of the judgment of the court copied above, we make this further statement: After the trial had begun, the evidence disclosed that plaintiff. McFaddin was president and general manager of the McFaddin, Wiess & Kyle Land Company, and that the $200 deposited with defendant by McFaddin was money belonging to said company. Whereupon said company was permitted to intervene and did intervene in the suit and, without alleging any interest in the money so deposited, agreed that such deposit might be paid to W. P. H. McFaddin.

The brief of appellant does not comply with that part of rule 29 for the Courts of Civil Appeals (142 S. W. xii) which provides that:

“The assignments as presented in the brief shall be numbered from the first to the last in their consecutive order.”

Nor does it comply with mies 24 and 25 for said courts (142 S. W. xii), and for these reasons should not call for consideration. However, we will consider the matters complained of without undertaking to follow the assignments in the form in which they are presented in appellant’s brief.

The undisputed facts show a petition for drainage district No. 4 in Jefferson county, Tex., by Ivy James and others, and that W. P. H, McFaddin, appellee, was not a signer of said petition; that, at the request of said signers of said petition, said McFaddin deposited $200 of the funds of the McFaddin, Wiess & Kyle Land Company, of which company he was president and general manager, with J. R. Jefferson, appellant; that such ’deposit was made for the signers of said petition to meet the requirement of article 2602, supra; that said Jefferson was clerk of the commissioners’ court of Jefferson county and accepted such deposit for the signers of said petition in his official capacity; that an election was duly and legally ordered and held under said petition and resulted in favor of the establishment of the drainage district petitioned for; that plaintiff McFaddin, after the result of said election had been declared by the commissioners’ court, requested and demanded of said ■ J. R. Jeiferson that he repay to him the $200 so deposited with him by said MeFaddin, and that said Jefferson refused to repay said money.

From the foregoing findings it is clearly apparent that appellant Jefferson was in possession of the $200 deposited with him by MeFaddin in his official capacity, and under the provisions of article 2602, supra, he is required to return the same to the signers of the petition for the drainage district, or their agent or attorney; that he had no right or authority to expend it for any purpose, except as provided by law; and that in contemplation of law he still has it on hand and cannot be heard to say that he has expended it for any purpose, except as provided by said article 2002. It is also clear that the contention of appellant that MeFaddin was attempting to have the election set aside, and to prevent the issuance and sale of the bonds authorized by said election, and thereby make it impossible for said drainage district to pay the costs incurred by it to appellant, furnishes no excuse for appellant’s unlawful attempt to divert the $200 ■ deposited with him to the payment of the costs incurred by said drainage district, which was largely due to him. The law has provided how such costs shall be paid, and appellant is not authorized to seize money deposited with him to secure the payment of such costs only in the event the result of the election held was against the establishment of said drainage district.

We are therefore clearly of the opinion that, in contemplation of law, appellant still has said $200 in his possession, and, when proper demand is made upon him, he will be required to pay same to the parties entitled thereto under the law. But the real and only material questions presented by this appeal are: First. Can the owner of the $200 deposited with appellant recover said money by mandamus proceedings, or must he bring suit in a court of competent Jurisdiction to recover same? Second. Since it is provided by said article 2602, Revised Statutes 1911, that the money so deposited with said clerk shall be “returned to the signers of the petition, their agent or attorney,” can McFaddin, who actually made the deposit, recover said money by proceeding by mandamus without bringing the signers of the petition before the court so as to have them bound by the judgment rendered, or without alleging and showing that he sues as agent or attorney for said signers?

The purpose of the writ of mandamus is to enforce the performance of a duty clearly defined by law; and where a positive official duty is enjoined by law upon an officer, as in this ease, mandamus is the proper remedy to compel such officer to do and perform the act enjoined in the manner required by law. That the owner of the money deposited has a legal remedy at law to recover said money does not necessarily require that he must resort to such remedy.

“Ministerial officers may be compelled to exercise their function according to law by mandamus, even though the party has another remedy against them by action for neglect of duty. And, as a development of this rule, it is held by the weight of authority that mandamus will lie, although the party may have also a remedy upon the official bond of a ministerial officer.” 26 Cyc. 172; Bailey v. Aransas County, 46 Tex. Civ. App. 547, 102 S. W. 1159; 26 Cyc. 161; State v. Renick, 157 Mo. 292, 57 S. W. 713; Bell v. Thomas, 49 Colo. 76, 111 Pac. 76, 31 L. R. A. (N. S.) 664; Fremont v. Crippen, 10 Cal. 211, 70 Am. Dec. 713.

We think the authority of the trial judge to issue the writ of mandamus to compel appellant to pay the $200 deposited with him to those entitled to same as provided by law is supported by the great weight of authority, and therefore the first question should be answered in the affirmative, but the second question presents a more serious matter.

The law requires the clerk to return the money deposited with him, as in this case, to the signers of the petition for the election, or to their agent or attorney. This is the ministerial duty enjoined upon him by law which the signers of the petition may enforce by mandamus, either in person or by their agent or attorney; but where, as in this case, appellee has alleged in his petition that Ivy James and other persons named therein were the signers of the petition, and that the deposit of the $200 was made by him at their instance and request and for them, and nowhere alleges that he is the agent or attorney for them, but sues in his own right, without making said signers parties to the suit, and where appellant has answered, alleging that the money so deposited by appellee is the property of the signers of the petition, who are not parties to the suit, and not the property of appellee, the writ of mandamus should not have been issued, and we think the court erred in not sustaining appellant’s general exception to appellee’s petition. Where it is alleged by both plaintiff and defendant, as in this ease, that some third person, not a party to the suit, is adversely interested in the subject-matter, to plaintiff, which adverse interest might be affected by the judgment to be entered, such third person must be joined as respondent in a mandamus proceeding, without regard to 'the validity of their claim, which the court cannot, in their absence, adjudicate, so as to protect defendant against any demand which might thereafter be made by. said third person against him. City of Austin v. Cahill, 99 Tex. 189, 88 S. W. 542, 89 S. W. 552; Chappell v. Rogan, 94 Tex. 492, 62 S. W. 539; Powell et al. v. People ex rel. Hedrick, 214 Ill. 475, 73 N. E. 795, 105 Am. St. Rep. 117, 2 Ann. Cas. 551; Horton v. Crawford, 10 Tex. 382.

What has been said disposes of all the issues presented by this appeal; and for the error of the court in refusing to sustain appellant’s exception to appellee’s petition on the grounds that it appears therefrom that Ivy James and others were the signers of the petition for the election, that the plaintiff was not a signer thereof, that the money was deposited at the instance, request, and for said signers, and that said signers were not parties to the suit, and that plaintiff was suing in his own right and not as agent or attorney of and for said signers, we think the judgment of the court below should be reversed, and the cause remanded; and it is so ordered.

Reversed and remanded.
      &wkey;>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


source: Caselaw Access Project

author: LEVY, J.

license: Public Domain

text:
    PARKER v. WATT.
    (No. 1483.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 28, 1915.
    Rehearing Denied June 24, 1915.)
    1. Justices of the Peace &wkey;>119 — Exceeding JURISDICTION — AMOUNT—'EXCESS.
    A judgment of a justice of the peace, showing on its face that the value of property on which a chattel mortgage was foreclosed exceeded his jurisdiction, was void and unenforceable.
    [Ed. Note. — For . other cases, see Justices of the Peace, Cent. Dig. §§ 373-376; Dec. Dig. 139.]
    2. Justices of the Peace <&wkey; 147 — Appeal— Jurisdiction — Void Judgment.
    Under Const, art. 5, § 16, providing that the county courts shall have jurisdiction of appeals from justices’ courts, and Rev. St. art. 1950, providing that on appeal from inferior courts there shall be a trial de novo, the appellate jurisdiction of the county court attaches only where the justice might legally try the case; so that, on appeal from a judgment of the justice’s court, void because in excess of jurisdiction, the county court was only authorized to .order the dismissal of the appeal from the docket.
    [Ed. Note.' — For other cases, see Justices of the Peace, Cent. Dig. §§ 493-501; Dec. Dig. <&wkey;> 147.]
    3. Justices of the Peace <&wkey;128 — Void Judgment — Injunction.
    The remedy of a defendant against a judgment of a justice’s court, void on its face for want of jurisdiction, is by injunction when such, judgment is sought to be enforced or any benefit claimed under it.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent Dig. §§ 402-407; Dec. Dig. <&wkey;>128.]
    4. Costs <&wkey;232 — Apeeal—Losing Party.
    Appellant, attempting to appeal from a judgment of a justice’s court not legally ap-pealable to the court for want of jurisdiction of the justice, upon dismissal thereof, became the losing party irt the appeal so as to entitle the appellee to his costs of appeal, not including the costs of the justice’s court, but the costs after the filing of the appeal bond in the justice court, including a transcript therefrom; and, under Rev. St. art. 2038, allowing the court in its discretion to give or refuse costs on motion to dismiss, the county court was authorized to enter judgment awarding the costs to appellee.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 877-883; Dec. Dig. &wkey;232.]
    5. Justices of the Peace <&wkey;163 — Void Judgment — Effect of Appeal Bond.
    Where proceedings in a justice’s court were a nullity because in excess of jurisdiction and afforded no ground for the county court’s appellate jurisdiction, the filing of an appeal bond in the justice court did not avoid the judgment of the justice court, as it is only when an appeal is properly taken from a judgment of a justice’s court in a case where it had original jurisdiction that the perfecting of an appeal avoids the judgment.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. § 606; Dec. Dig. <@=>1G3.]
    6. Justices of the Peace <&wkey;166 — Void Judgment — Dismissal — Construction of Order.
    Where an appeal bond did not operate to vacate a judgment of a justice’s court in excess of its jurisdiction, and the county court had no appellate jurisdiction, an order of the county court, declaring “that said cause be, and the same is hereby dismissed,” would_ be construed merely as a dismissal, or a striking from the docket of the appeal as such.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig*. §§ 638-646; Dec. Dig. &wkey;166.]
    7. Appeal and Error <&wkey;3.033 — Party Entitled to Complain — Costs.
    The fact that the county court, on dismissing an appeal from a void judgment of a justice’s court, awarded such costs as “each” party incurred in the appeal was an adjudication favorable to that extent to appellant, of which he could not complain.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. &wkey; 1033.]
    Appeal from Van Zandt County Court; C. L. Stanford, Judge.
    Action by W. W. Watt against E. F. Parker and others. Judgment in the justice’s court for plaintiff, and defendants appealed, and, from a judgment of the county court dismissing the appeal and awarding costs against defendant Parker, he appeals.
    Affirmed.
    The appellee sued the appellant in the justice court for $99.10 as the balance due on an account, and to foreclose a mortgage lien on certain personal property given by the appellant to secure the indebtedness. Appel-lee, subsequent to the filing of the original suit, made the Eustace Mercantile Company and Jim Brewer parties defendant, alleging that they had converted a part of the mortgaged property, and asking for judgment against them for its value. Appellant, Parker, in his answer denied a portion of the account, and tendered the amount of money claimed by him to be all that was owing on the account. The other defendants denied purchase of the mortgaged property. Upon these issues the case went to trial before a jury in the justice court. The verdict of the jury was in favor of the plaintiff for $79.10, and with foreclosure of the mortgage lien on the property. The judgment of the justice court reads, omitting formal parts, as follows:

      “It is therefore ordered, adjudged, and decreed by • the court that the plaintiff, W. W. Watt, do have and recover of the defendants the said stím of $79.10 and all costs of this suit; and, it appearing to the court that the plaintiff has a mortgage lien on one horse, $75, and four bales of cotton of the value of $234, the jury found plaintiff is entitled to a foreclosure, it is further ordered, adjudged, and decreed by the court that said mortgage lien be, and the same is hereby, foreclosed, and said property is hereby ordered sold to satisfy said sum of $79.10 and cost of suit, and if there is an excess, the same shall be paid over to defendant or his attorney, and if said property is not sufficient to satisfy the sum of $79.10 and cost, let execution issue for the shortage, and order of sale issue to sell said property.”
    A motion for new trial being overruled, the defendants appealed the case to the county court. The case was continued for one term of the county court. At the second term of the county court the defendants, appealing the ease from the justice court, filed the following motion:
    ‘■Now come the defendants in the above entitled and numbered cause and represent to the court that this is an appealed case from justice precinct No. 2, Van Zandt county, Tex., and that the judgment below recites that it is a suit in that court to foreclose a mortgage lien on certain personal property, which is set out and described in the judgment, and that the value of the property upon which the mortgage was foreclosed shows to be over $300 and beyond the jurisdiction of the justice court, and defendants plead to the jurisdiction of this court and ask that the cause be dismissed for want of jurisdiction.”
    Appellee, admitting the want of jurisdiction, asked the court, by motion therefor, to tax the costs, which had been incurred since the filing of the appeal, against the defendant Parker. The county court granted the motion for dismissal, and in the order of dismissal, for reasons stated at length therein, awarded and imposed costs against each the plaintiff and the defendant Parker as incurred by them, respectively. The defendant Parker has appealed from the judgment requiring him to pay costs, and assigns error in respect thereto. Omitting the formal parts of the order of dismissal, and omitting the reasons stated by the county court for apportioning costs, the language of the order is:
    “It is therefore ordered, adjudged, and decreed by the court that said cause be and the same is hereby dismissed. And it appearing to the court that the reason for taxing the costs as prayed for are true and in part sufficient in this, * * * it is therefore ordered, adjudged, and decreed by the court that the officers of this court do have and recover of and from the plaintiff, W. W. Watt, and the defendant E. F. Parker, respectively, the costs incurred by them, for which let execution issue.”
    E. P. Miller, of Athens, and Wynne, Wynne & Gilmore, of Wills Point, for appellant. B. M. Lively and M. G. Sanders, both of Canton, for appellee.
   LEVY, J.

(after stating the facts as above). The contention of appellant, predicated .upon his assignment of error, that the county court erred in awarding and apportioning against him, as done, the costs which were incurred by him in appealing the case from the justice court, must, we conclude, be overruled in all matters.

The record here admits that the justice court did not have original jurisdiction over the subject-matter because the- admitted value of the mortgaged property exceeded $200, and - that such lack of jurisdiction affirmatively appeared in the face of the justice’s judgment. This being so, then there was no issue of fact respecting jurisdiction to be passed on by the county court in order to reach the conclusion that it had no jurisdiction. Therefore, as the judgment of the justice court was, as affirmatively shown on its face, void, as a matter of law, for want of jurisdiction over the subject-matter, it was, under sound fundamental principles of law, in all respects a legal nullity and unenforceable. Cooley’s Con. Lim. (7th Ed.) p. 575; Mitchell v. Runkle, 25 Tex. Supp. 133.

And in this clear condition of the record respecting jurisdiction of the justice court, the pertinent question is as to the power of the county court in respect to the appeal to it from such void judgment of the justice court. By the law of this state the object of an appeal from the justice court to the county court, and the extent of the authority of the county court in such appealed case, is to try the case anew on its merits, and not to review errors. Article 5, § 16, Const.; article 1950, R. S.; Carlisle v. Coffee & Price, 59 Tex. 391; Railway Co. v. Lemons (Civ. App.) 152 S. W. 1189. And, thus limited in its jurisdiction, as the county court is on appeal, to trial of the case anew on its merits, the jurisdiction of the county court can be invoked and attaches only in cases that the justice court may legally try, and cannot be invoked and cannot be acquired by appeal, as firmly settled, in cases where the justice court did not have original jurisdiction over the subject-matter. Aulanier v. Governor, 1 Tex. 653; Baker v. Chisholm, 3 Tex. 158; Davis v. Stewart, 4 Tex. 224; Wise v. Omalley, 60 Tex. 590; Heard v. Conly (Civ. App.) 50 S. W. 1047. Consequently, as the void proceedings of the justice court afforded no ground for jurisdiction, by appeal, in the county court, the county court would not have authority to pass on the judgment of the justice court and set it aside or adjudicate respecting it, and could only, as within its authority by an order in that particular, strike or dismiss the appeal from the docket. Able v. Bloomfield, 6 Tex. 263 ; Horan v. Wahrenberger, 9 Tex. 314, 58 Am. Dec. 145; Roeser v. Bellmer, 7 Tex. 1; Dazey v. Pennington, 10 Tex. Civ. App. 326, 31 S. W. 312.

It is therefore plain that, as the county court had no jurisdiction to entertain the appeal in this case, no appeal lies in this case -to the county court, and that the remedy of the appellant against the void judgment, appearing so on its face, of the justice court does not necessitate an appeal, but was by injunction, when such judgment is sought to- be enforced, or any benefit claimed under it. Chambers v. Hodges, 23 Tex. 110; Cooke v. Burnham, 32 Tex. 129; Smith v. Deweese, 41 Tex. 595; Glass v. Smith, 66 Tex. 548, 2 S. W. 195; Tucker v. Williams (Civ. App.) 56 S. W. 585; Harrison v. Lokey, 26 Tex. Civ. App. 404, 63 S. W. 1030; Railway Co. v. English (Civ. App.) 109 S. W. 424; Supply Co. v. Freeze, 96 Tex. 513, 74 S. W. 303; 1 Freeman on Executions (3d Ed.) § 20.

And attempting, as appellant did, to invoke the remedy of removing a ease by appeal from the justice court to the county court that was not legally appealable to the county court for want of authority in the county court to entertain the appeal, and the consequent dismissal, by operation of law, from the county court of such unauthorized and ineffectual appeal, has the result, in fact and in legal effect, of making the appellant the losing and unsuccessful party in the proceeding of the appeal. He is in the same attitude in the particular proceeding as would be a plaintiff taking a nonsuit, or a plaintiff bringing an action in a court that has no original jurisdiction to try it, and is as much so an unsuccessful party regarding liability for the costs therefor. And it is the view in this state that when the county or district court dismisses an appeal to it for want of power to try the same, the successful party, as the legal result or effect of the adjudication in that particular, is entitled to his costs of appeal, and that the court has the authority, as an incident of the power to dismiss the appeal, to enter judgment awarding them to him. Roeser v. Bellmer, 7 Tex. 1; Wadsworth v. Chich, 55 Tex. 241; Baines v. Mensing, 75 Tex. 200, 12 S. W. 984; article 2038, R. S. The costs, however, it may be here intimated, that could be imposed in the county court, as within the authority of the county court, would be limited to the costs of the appeal, and cannot include the costs of the justice court as of hearing in that court. And to be explicit as affecting this record, the costs of appeal would include all such costs as were incurred from and after the filing of the appeal bond in the justice court, including transcript from the justice court, and would not include any costs involved in the hearing of the case in the justice court before and up to the time of filing the appeal bond.

The phraseology of the judgment of the county court, and the assumption that the effect of filing the appeal bond in the justice court was to avoid the judgment of the justice court, seems to be a reason for the insistence that such judgment should be reversed. And the construction that should properly be given the county court judgment is therefore involved. As the proceedings of the justice court were a legal nullity, and afforded no ground for jurisdiction, by appeal, in the county court, the filing of the appeal bond by appellant in the justice court did not, and necessarily so, operate to avoid the judgment of the justice court. It is only when an appeal is properly taken from the judgment bf a justice court in a case that it had original jurisdiction to adjudicate that the perfecting of an appeal under the statutes operates to avoid the judgment of the justice court. Bender v. Lockett, 64 Tex. 566; Moore v. Jordan, 65 Tex. 395; Tel. Co. v. McKee Bros. (Civ. App.) 135 S. W. 658; Martin v. Butner, 54 Tex. Civ. App. 223, 117 S. W. 442. But, as held in Roberts v. McCamant, 70 Tex. 743, 8 S. W. 543:

“If, however, it be a case, which cannot be appealed, or if the law for perfecting appeals be not complied with, we are of the opinion that the judgment remains in force, and upon a dismissal by the county court on the ground that it has not acquired jurisdiction of the case, it is the duty of the justice to issue execution upon the original judgment at the instance of the party in whose favor it is rendered.” Cariker v. Dill (Civ. App.) 140 S. W. 841.

Since the appeal bond did not in itself operate to vacate the justice’s judgment, and as the county court, by appeal, had no jurisdiction, under the statute, over the case or the void judgment of the justice, the county court could only enter such judgment order as was within its authority to do. Consequently the order of decree will be construed so as to uphold the authority of the county court and its obvious intent. According to the record and the recitals in its judgment order the county court was intending in fact to pass judgment only on the motion of appellant to dismiss the appeal for want of authority to entertain it. And the verbiage of the judgment order “that said cause be, and the same is hereby, dismissed” must be considered, in view of what precedes it, as intending and having the effect simply as a dismissal or striking from the docket of the appeal as such. The word “cause,” in view of what precedes it, is sufficiently comprehensive to include and truly represent the action of the court in dismissing the appeal.

The fact that the county court awarded such costs as “each” party incurred in the appeal is an adjudication favorable to that extent to appellant, and of which he cannot well complain. It was proper for appellee to complain, which he does not do, that all the costs of the appeal, rather than a portion, were not taxed against the defendants attempting the appeal.

The judgment of the county court is affirmed.
      <&wkey;>Por other cases see same topic and KEY-NUMBER in. all Key-Numbered Digests and Indexes


text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. VAUGHAN.
    (No. 1465.)

    (Court of Civil Appeals of Texas. Texarkana.
    June 22, 1915.
    Rehearing Denied July 1,1915.)
    CaRRiehs <&wkey;287 — Personal Injury —Taking up Passengers.
    A carrier is bound to provide a safe and convenient mode of access to its cars and to stop a sufficient time to receive passengers at proper places; but, where it provided a reasonably safe way and afforded plaintiff ample time to board its car, and had not misled plaintiff as to its method of leaving the station or as to when and where he should board the car, it was not liable for injury to plaintiff in attempting to board the train at a different place after it had started.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1154-1159, 1161-1166; Dec. Dig. &wkey;287.]
    Appeal from District Court, Rains County.
    Action by J. D. Vaughan against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Reversed, and judgment rendered for defendant.
    This is an action brought by appellee to recover damages for personal injuries received by him while attempting to get upon a moving train of appellant’s for the purpose of taking passage thereon. Considering the trial amendment in connection with the petition, the appellee alleged, by intendment, the negligence to consist in stopping the passenger coach at a point below the platform of the station, in deviation of its usual custom, misleading appellee in regard to where he was expected to get on board, and in so operating the train, as appellee attempted' to board it, as to cause a sudden jerk forward, throwing him from the steps of the train onto the ground.
    The local train, consisting of ten freight cars, a caboose, and a passenger coach, arrived at Emory on the day of January 11, 1913, on its regular east run to Mineóla. It remained at Emory for about 35 minutes. When the train reached and made its stop at Emory the passenger coach rested at a point between 20 and 30 feet from the end of the platform of the depot building, a public road intervening between the west end of the platform and the east end of the passenger coach. As soon as the train stopped there the conductor placed the step box in position by the steps of the coach, and discharged from the coach two passengers for Emory and received several passengers outbound, and a trunk was loaded into the coach as baggage. The train remained there between two and three minutes. The conductor then took up the step box from the ground and placed it on the platform of the coach, and the train was backed west just far enough for the coach and caboose to clear and leave unobstructed the public road. The engine and freight ears were detached from the coach and caboose and pulled forward. Freight for the station was then unloaded, and a car placed at the-stock pen, distant between 80 and 90 yards-from the depot building. After finishing all work for the station the engine and freight cars were coupled to the coach and caboose, and the conductor, standing on the depot platform, signaled the engineer to proceed to leave the station on final departure. Ap-pellee had cóme to Emory from Alba on a previous train, and had a return ticket, and was to take this train to his home. Appellee arrived at the depot while the conductor was discharging and receiving the passengers, but did not see, as he says, passengers getting on and off the train, but did 'see the conductor, between 20 and 30 feet from-the end of the depot platform, take up the step box and place it on the platform of the coach. Ap-pellee says he did not notify the conductor, or any agent there of the appellant, that he-wanted to get on the coach, nor did he go to the coach or to the conductor and offer to get on the coach; for, as he says, “I in my own mind knew that it was going to the depot before it left.” But appellee does not say or claim that he obtained this information from the conductor or from any agent of appellant’s, nor did he make any inquiry of the conductor or of any agent of appellant’s in regard to whether passengers would or would not be received or the passenger coach be placed at any other place. Appellee testified:
    “When they spotted that car at the stock pen-I went over there to look at a cow that was in that car; I had been looking at the stock. When I first heard the train or found it was starting to move east I was between the stock pen and the depot; I was about ten steps from the stock pen; and when I heard that I broke and run towards the east end of the depot. I saw the conductor board the train up opposite-the door of the station, and I was right at the end of the platform when the conductor caught it. * * * The train was going east. I turned around and took a few steps after the train, and I caught with my right hand the corner rod of the caboose; I never did get hold with my left hand ; I never did get but one hand hold of it; I never did get on the step- of the car; I missed the step, or jerked loose before I got to it. * * * I didn’t run along after I got hold of that handhold; I just caught it and it jerked me off the ground — jerked loose from me.”
    There is no evidence of any jerk unusual to the ordinary movement of a mixed train. Appellee in his depositions in evidence explains his fall as follows:
    The train “was going more than as fast again that I thought. When I come to think about it, from where it started it had a right smart little start; and it is a little bit down grade there,”' and I “misjudged the speed of the train” and “missed the steps of the train, and the weight of my body jerked my hand loose.”
    The evidence of the record is entirely consistent, and not in any way inconsistent with the explanation given by appellee in his depositions as to the cause of his fall and: consequent injury. The invariable rule and custom, it was shown, when the local arrived at Emory, was to first either stop the coach at the public road or tbe depot platform and discharge and receive passengers and then back the coach and caboose west across the public road and leave them there while freight was being unloaded, and after unloading all freight to couple the freight cars and engine back to the coach and caboose and immediately leave the station and not stop at the platform. No evidence appears to the contrary. It was shown without dispute that the public road next the platform was a safe and easily accessible place to passengers alighting from and embarking on the train.
    Chas. C. Huff, of Dallas, for appellant. J. M. McLeod, of Greenville, O. H. Bodes, of Emory, and T. E. Ragsdale, of Greenville, for appellee.

       Writ of error pending in Supreme Court.

   LEVY, J.

(after stating the facts as above). Appellant by its second assignment of error predicates error upon the insufficiency of the ■evidence to support a finding of negligence, proximately causing injury, on appellant’s part. And concluding, as we have, that this ■assignment should be sustained, it becomes unnecessary to consider the other assignments.

Carriers of passengers are bound to provide safe and convenient modes of access to their cars, and to stop a sufficient time to receive passengers at proper places. But that there was no evidence from which the jury could properly have found that the appellant failed to perform these duties which it owed ■appellee is in this case, we think, quite clear. The place at which the passenger coach was stopped does not by any evidence appear in the least way to be unsafe, inconvenient, or improper. Passengers, it appears, got off and on there witliout inconvenience, and easily and safely; and the place where the coach stood and the entry thereto were easy of access, it appears, to passengers. It is not contended that appellee did not have ample time to enter the coach in thé usual way while it was at the point where the passengers were being discharged and received at the time. Appellee had his ticket, and was not hindered by the conductor, or by any one, from getting on the coach at the time. Appellee did not go into the coach at the time, simply for the reason that he believed, as he said, that the coach would be brought to the depot platform for passengers to board it. There is an utter absence of any evidence, though, to show that appellee was induced by any act •or statement or practice or custom of the agents of appellant to believe that such stop was not for the regular and usual purpose of receiving passengérs and that the coach would be brought to the depot platform for the purpose, which was between 20 and 30 feet distant from where it was at the time. According to the record it was the invariable rule and custom at that station, after passengers had been discharged and received, to back the coach and caboose west across the public road, and not thereafter stop it at the platform to receive and discharge passengers. Therefore, the evidence showing, as it does, that the company had provided a reasonably safe way and afforded appellee ample time to get into the coach, and had established and used only one mode and rule for its train to leave the station after discharging and receiving passengers, and there being no deviation from the visual custom of final departure of the train from the station after discharging and receiving passengers, misleading appellee as to when and where he should board the train, and appellee seeing that passengers were being discharged and received at the place where they were being so discharged and received, appellant would not be responsible, by reason of any negligence on its part, for the consequences of appellee’s voluntarily using another way, of his own choosing, in attempting to board the train. The facts of this case, in essential points, distinguish it from the case of Mills v. Railway Co., 94 Tex. 242, 59 S. W. 874, 55 L. R. A. 497.

The judgment is reversed, and here rendered in favor of appellant, with costs of the district court and of this appeal.
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author: McMEANS, J.

text:
    BEAUMONT WHARF & TERMINAL CO. v. McFADDIN.
    (No. 6908.)
    (Court of Civil Appeals of Texas. Galveston.
    May 26, 1915.
    Rehearing Denied June 30, 1915.)
    Adverse Possession <&wkey;57 — Five-Year Statute — Evidence or Occupancy.
    Evidence in trespass to try title held to warrant a finding of continuous occupancy by defendant, through tenants, for such time as to complete the bar of the five-year statute.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 277, 278, 655, 667, 687; Dec. Dig. <&wkey;57.]
    Appeal from District Court, Jefferson County; W. H. Davidson, Judge.
    Action by the Beaumont Wharf & Terminal Company against W. P. H. McFaddin. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Terry, Cavin & Mills, of Galveston, and F. J. & C. T. Duff, of Beaumont, for appellant. Greer, Nall & Bowers, of Beaumont, for appellee.
   McMEANS, J.

The Beaumont Wharf & Terminal Company brought this suit against W. P. H. McFaddin in trespass to try title for the recovery of four acres of land in the city of Beaumont. The defendant answered by general denial, plea of not guilty, and by special pleas of the statute of limitations of three, five, and ten years. A trial before a jury resulted in a verdict and judgment for defendant, and plaintiff has appealed.

It was admitted upon the trial that the. record title was in plaintiff; and that it was entitled to recover the land unless the defendant had acquired the title thereto under the statute of limitation of five years. The only question raised by appellant’s assignments of error going to the merits of the case that we shall discuss is whether the evidence is sufficient to warrant the finding in favor of defendant on the issue of title under the statute of limitation of five years. The evidence in the record justified the following fact conclusions:

McFaddin purchased the land in controversy in January, 1903, and his deed was regular and at once duly recorded. Thereafter he paid all taxes on the land each year up to the filing of this suit, which was on September 20, 1910. In April, 1903, he inclosed a tract of about 20 acres, which included the 4 acres in controversy; the inclosure being made in part by a new fence then constructed, and by joining the same to other fences existing on some of the boundary lines. The inclosure thus made was, with the exception of a few immaterial intervals, continuously kept up by McFaddin and his tenants up to the trial. While the evidence as to actual occupancy of the inclosed land is not as clear as it might be, we think it was sufficiently so to raise the issue of actual adverse possession of McFaddin for a period longer than five years before the filing of the suit, and in deference to the verdict of the jury we so find. On this issue it was shown by the testimony of McFaddin that after he inclosed the land in April, 1903, he permitted the owner of horses to use the land for a pasture, and that afterwards he permitted another party to use it for pasturage of beef cattle. Just how long each of these persons so used it is not shown by his testimony, nor is it shown what interval of time elapsed between the leaving of the one and the coming of the other of these tenants. It was shown that in spring or early summer of 1905, Mc-Faddin leased the inclosed land to one B. J. Andrus, and that Andrus used it for a pasture; that when Andrus went upon the land he built a dwelling house upon it, and lived therein; that when he went out of possession McFaddin permitted a negro to take possession, and that the negro lived in the house and also used the inclosed land for a pasture ; and that when the negro left McFad-din leased it in the fall of 1907 to one Allen Smart, who immediately took possession and used the inclosed land for pasture up to the time of filing this suit. Smart testified:

“I worked for the Wilson Hardware Company four years before I began pasturing cattle on this land in 1907, and during that four years old man Andrus and those people were using that land. They continued using it, and were using it, during the time I was working for the Wilson Hardware Company. After they left, I used the pasture, and pastured cattle for Mr. McFaddin.”

We think that this testimony warranted the finding that the land had been continuously occupied by the tenants of McFaddin for four years prior to its occupancy by Smart in 1907, and the evidence leaves us in no doubt that Smart continuously thereafter occupied it for such length of time as to complete the bar of the five-year statute of limitations, and that therefore the verdict and judgment in favor of McFaddin for the title and possession was properly returned and entered.

The remarks of counsel for appellee, which are complained of by appellant, are not shown to have been upon any material issue involved upon the trial, and, even if improper, we cannot say that they probably caused the rendition of an improper judgment.

The charge of the court is full and fair, as applicable to the facts proved, and it is our opinion that there was no error in the charge in the respects complained of by appellant in its assignment of error, or that the court erred in refusing to give the special charges requested by appellant, as complained in other assignments.

We are of the opinion that the judgment of the court below should be affirmed, and it has been so ordered.

Affirmed.
      <§^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LANE, J.

text:
    HERGIST v. STAUTBERG.
    (No. 6961.)
    (Court of Civil Appeals of Texas. Galveston.
    June 16, 1915.)
    Bills and Notes <&wkey;523 — Actions—Evidence — Sufficiency.
    In trespass to try title where defendant asserted tide by virtue of an assignment to him of notes reserving a vendor’s lien, evidence held insufficient to show that the notes had ever been transferred to defendant.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1822-1825; Dec. Dig. <&wkey;> 523.]
    Appeal from District Court, Harris County ; John A. Read, Judge.
    Action by Frank H. Stautberg, Jr., against W. H. Hergist. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    N. C. Abbott, of Houston, for appellant.
   LANE, J.

This suit was originally instituted by Frank H. Stautberg, Jr., against T. H. McGregor, I. D. Eagan, A. B. Carr, Travis Jones, and W. H. Hergist, in the ordinary form of trespass to try title to certain lots in the city of Houston. By his second petition he dismisses his suit against defendants T. H. McGregor and I. D. Eagan, and continued his suit against the other defendants only. Defendant Hergist answered: First, by general denial and plea of not guilty; second, that prior to the 26th day of October, 1896, Frank Stautberg, Sr., was the owner of the property sued for, and that on said date he entered into an agreement in writing with defendant Frank Stautberg, Sr., by the terms of which it was agreed that, in consideration of $5 cash paid by said Jones to said Stautberg, and tbe execution and delivery by said Jones of 45 promissory notes each for tbe sum of $5 to said Stautberg, tbe said Stautberg was to execute and deliver to said Jones a deed of conveyance by wbicb be was to convey to said Jones said property involved in tbis suit; that said cash was so paid and said notes were executed and delivered, and that on tbe 26tb day of May, 1897, said Stautberg did so convey said property to said Jones; that a vendor’s lien was retained by said Stautberg in said notes and deed to secure tbe payment of all of said notes; that all of said series of notes from Nos. 12 to 45, 34 in number, were transferred to appellant, W. H. Hergist, by tbe agent of Stautberg in about tbe year 1900; that all of said notes became due and were wholly unpaid, and that thereafter, to wit, on the 19th day of December, 1901, Hergist brought suit upon said notes in tbe district court of Harris county, and in said suit judgment was rendered in bis favor for $260.12, tbe aggregate sum due on said notes, and for a foreclosure of bis lien upon tbe property in question; that said judgment and lien has been kept alive by tbe issuance of executions or orders of sale, and the same are still a valid subsisting judgment and lien; that appellant is tbe owner of said judgment and lien; and concludes with a prayer: (a) For title to tbe property; (b) that tbe court ascertain what amount is still due him on bis said judgment; (c) that bis lien be established and preserved; and (d) that if it be found by tbe court that he has no title to tbe land under his former judgment, the same be ordered sold under a decree entered in tbis cause, and tbe proceeds be first applied to tbe payment of bis said former judgment. Appellee by supplemental petition denied each and all tbe material defensive matters pleaded by appellant, and further averred that on January 23, 1897, Frank Stautberg, Sr., sold tbe lots in question to defendant Jones; that in part payment therefor Jones executed and delivered the 34 notes claimed by appellant to have been transferred to him; that said notes were never paid by Jones to Stautberg, Sr., and that Stautberg, Sr., has never transferred tbe same to any one; that said Jones never went into possession of said lots, but abandoned tbe same; that said lots stood vacant and unfenced until March 13, 1906, at wbicb time Stautberg, Sr., rescinded tbe sale made by him to Jones and conveyed tbe property in question to Frank Stautberg, Jr., ap-pellee in this case; that Frank Stautberg, Jr., took possession of said property in 1906 and erected a fence around tbe same; and that be then became tbe owner of said property and is now such owner. As tbe other parties to tbis suit have not appealed from tbe judgment entered, it is unnecessary, for tbe proper disposition of them, to state tbe nature of their pleas.

Upon tbe issues joined between appellant and appellee as above stated, tbe case was submitted to tbe jury upon special issues, only two of wbicb need be here stated for a disposition of tbe matters presented to this court. These two issues were as follows:

“Did or did not the defendant, William H. Hergist, purchase the unpaid purchase money notes executed by Travis Jones substantially as alleged in his answer?”
“Did or did not Frank Stautberg, Sr., authorize J. M. Coleman to dispose of the Travis Jones notes for him?”

Both of these questions were answered by tbe jury in tbe negative. Thereupon judgment was entered for the appellee, Frank Stautberg, Jr.

By appellant’s third assignment in bis brief be thus states tbe issue, and tbe only issue, for tbe consideration of tbis court:

“The only question presented in this case is whether the verdict is supported by the evidence.”

Being conceded that tbis is tbe only issue, we shall confine tbis opinion to that issue alone. It being conceded that tbe notes claimed by appellant to have been transferred to him were originally tbe property of Frank Stautberg, Sr., it becomes necessary, if appellant is to recover in any manner in this suit, for him to show that said Staut-berg, Sr., bad, in person or by agent, transferred said notes to him. These issues were clearly submitted to tbe jury and, upon evidence which we think would support tbe findings of the jury, tbe jury found that Frank Stautberg, Sr., bad never in person nor through J. M. Coleman transferred tbe notes in question to appellant, Hergist, and that said Hergist never purchased said notes nor ever became tbe owner thereof. Frank Staut-berg, Sr., testified positively that be did not in person transfer said notes to Hergist or to any one else, except one Brown, for tbe purpose of securing him as a bondsman, which transfer has been released; nor did be authorize J. M. Coleman to transfer said notes to any one as bis agent, and we think that there were other facts and circumstances shown by tbe evidence wbicb would authorize and warrant tbe jury in its finding that tbe title to said notes has never passed from Frank Stautberg, Sr., to appellant Hergist.

Therefore, we find that tbe judgment of tbe court is amply sustained by tbe evidence, and overrule appellant’s assignment of error, and tbe judgment of tbe court below is in all things affirmed.

Affirmed.
      <i&wkey;For other cases see same topic anfl KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    J. B. FARTHING LUMBER CO. v. GALVESTON, H. & S. A. RY. CO.
    (No. 7063.)
    (Court of Civil Appeals of Texas. Galveston.
    June 24, 1915.)
    1. CONTRACTS &wkey;j57 — TRAFFIC CONTRACT — Consideration — Mutual Promises.
    A contract, consisting of a letter from defendant lumber company to the agent of plaintiff railroad relative to a side track to a lumber .yard which the defendant was about to purchase, stating that approximately 99 per cent, of the freight arriving at the yard would come over plaintiff’s rails and be an exclusive haul, that defendant would bridge a ditch beside the track, build its own unloading facilities, and do the grading work for the extension, and the plaintiff’s reply that the side track would be put in order for use, that it would deliver thereon all freight consigned to defendant over its own lines, that no cars over other lines or from points outside the state would be so delivered, except upon an additional charge of $5, plainly intending that if the defendant established its lumber yard plaintiff would construct the siding and make deliveries thereon, was supported by the mutual promises of the parties.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 345, 352, 353; Dee. Dig. &wkey;57.]
    2. Action &wkey;>53 — Single or Entire Cause of Action — Breach of Contract.
    IVhere the railroad repudiated its contract to establish a siding for a lumber company, and notified the lumber company thereof before the time for performance, the repudiation was a breach of the contract in its entirety and gave the lumber company only one cause of action to recover all the damages sustained by the breach, as the only effect of permitting it to treat the contract as continuing would be to enable it to split up its cause of action and bring numerous ■suits when it could in one suit recover all the -damages sustained by it.
    [Ed: Note. — For other cases, see Action, Cent. Dig. §§ 549-551, 553-623; Dee. Dig. &wkey;53.]
    3. Injunction c&wkey;26 — Subjects—Vexatious Suits.
    A court of equity has power to enjoin the bringing of separate suits to vex and harass by .a multiplicity of actions when plaintiff’s demand can be completely litigated in one suit.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 24-49, 54-61; Dec. Dig. &wkey;26J
    Appeal from District Court, Harris County; John A. Read, Judge.
    Suit for injunction by the Galveston, Harrisburg & San Antonio Railway Company against the J. B. Farthing Lumber Company. ■Order granting temporary injunction, and defendant appeals.
    Affirmed.
    D. E. Garrett and Kahn & Williams, all of Houston, for appellant. Baker, Botts, Parker & Garwood, Lane, Wolters & Storey, and Paul Kayser, all of Houston, for appel-lee.
   PLEASANTS, C. J.

This appeal is from .an order of the district court for the Sixty-First district, granting a temporary injunc-tion upon the application of appellee in a suit in said court brought by appellee against appellant.

The case made by the pleadings and evidence is in substance as follows: In June of 1914, the appellant, a lumber company engaged in the sale of lumber in the city of Houston, purchased a lumber yard situated near the tracks of defendant railway company in said city. Before 'making this purchase, appellant began negotiations with Mr. Dunlap, the traffic manager of appellee railway, for the purpose of securing an agreement by the railway company to extend a side track which adjoined the lumber- yard and deliver all cars of lumber purchased by appellant upon said side track. The nature and result of these negotiations are sufficiently shown by the following letters:

“Houston, Texas, June 13, 1914.
“Mr. C. K. Dunlap, Traffic Manager. Sunset-Central Lines, City — Dear Sir: Referring to our personal conversation regarding a side track on your Blodgett line at the intersection of W. Alabama Ave., beg to advise that we are now negotiating with the property owners for the block of ground now occupied by the Lumber Supply Yard, at this point, conditioned that satisfactory traffic arrangements can be made.
“With reference to handling freight arriving over other lines, beg to say that at no time will there be more than 10 per cent, of the freight consumed at this point arrive over other lines, and that as a whole the writer believes that 1 per cent, would cover such items.
“However, just at present, as stated to you, we have about 20 or 25 cars bought that will move to Houston over the I. & G. N. rails that will have to be unloaded at that point, which, during the time this is being handled, would represent possibly 25 per cent, of the traffic.
“With this exception, we are quite sure that 99 per cent, of the traffic can be handled over your rails, the large per cent, of which would be an exclusive haul.
“We will be agreeable to bridge the ditch you now have beside the track, and build all of our own unloading facilities. Also, do all necessary grading work for the extension of the siding, which will not be to exceed 150 feet. The writer understood from your conversation that this would be a portion of the work which you would require us to do.
“It will be necessary for us to have an immediate reply to this, as our negotiations with the property owners will have to be brought to a close Monday morning.
“Your immediate attention will very much oblige, Yours very truly,
“J. B. Farthing Lumber Company,
“B. F. Greenwood, V-President.”
“June 24, 1914.
“Messrs. Farthing Lumber Company, Houston, Texas — Gentlemen: With reference to your conversation with Mr. Dunlap: It is understood that the side track on our right of way near the Montrose Lumber Company will be put in order for use, and that we will deliver on that track all freight consigned to you when it arrives over the rails of any of the Sunset-Central Lines; that is, the G. H. & S. A., T. & N. O., H. & T. C., or H. E. & W. T. No cars received at Houston via other lines from points outside of the state of Texas will be delivered on this track, and none from points in the state of Texas except at a charge of $5.00 per car in addition to the freight rate.
“Yours truly, J. R. Christian.”

Upon receipt of the letter last above copied, and relying upon the agreement therein expressed, appellant claims that it purchased the lumber yard, paying therefor the sum of $20,000. The appellee, after having its engineer make a survey of the siding and adjacent tracks and streets, determined that it would not make the proposed extension and would not deliver cars upon said siding, and on June 27th informed appellant that the agreement theretofore made would not be complied with. In reply to this notification, appellant wrote the following letter:

' “Houston, Texas, June 27, 1914.
“Mr. J. R. Christian, G. E. A., Sunset-Central Lines, City — Dear Sir: Referring to your letter of June 24th, No. 2002 — 32, confirming our agreement with Mr. Dunlap regarding the installation of unloading facilities on block 10, Lockhart-Connor-Barziza addition, beg to advise that we were to-day informed by Sir. I. A. Cottingham that a decision had been reached by the officials to the effect that we would not be supplied with unloading facilities at the point mentioned, as per our agreement with Mr. Dunlap.
“We have to-day written a letter to Mr. Cot-tingham, and for your information inclose herewith a copy of same, which fully sets out our position in the matter. For your further information, please be advised that we are now being forced to handle cars at that point, by team, from your unloading tracks at Blodgett, at an average expense of $20.00 per car, as compared with an average unloading expense of $5.00 per car when tracks shall have been arranged as per our agreement. We shall esteem it a great favor if you will kindly go into this matter in detail, and advise us at your very earliest convenience just what your attitude is, and what we may expect at your hands.
“Awaiting an immediate reply, we remain, “Yours very truly,
“J. B. Farthing Lumber Company,
“B. F. Greenwood, V-President.”

Appellee has persisted in its refusal to recognize said contract and to make delivery of cars of lumber upon -said siding, and as a result thereof appellant has been put to the expense of hauling all of its lumber from a siding on appellee’s road some distance from the lumber yard.

In December, 1914, appellant brought suit against appellee in the county court of Harris county for damages in the sum of $609.65, alleged to be the amount expended by it, up to the date of the filing of said suit, for drayage or hauling of lumber to appellant’s lumber yard, and which it would not have been forced to expend but for the failure of appellee to comply with its contract to deliver the lumber upon the siding at appellant’s yard. Appellee answered in said suit and joined issue with appellant, but the case has never been called for trial and still stands on the docket of said court. After the institution of the above-mentioned suit, the appellant instituted a suit against the appel-lee in the justice court of precinct No. 1 of Harris county, for the sum of $19.16, alleged to be expense incurred by appellee, subsequent to the filing of the previous suit, for hauling lumber to its yard from ears which appellee refused to deliver on the siding at appellant’s yard in accordance with its said contract. The appellee answered in this suit, and a trial in the justice court resulted in a judgment in favor of appellant for the full amount claimed and all costs of suit. This judgment has been paid by appellee. Thereafter, on February 2,1915, appellant filed suit against appellee for $18.79 in the justice court for said precinct No. 1, presided over by W. T. McDonald, and on April 8th, 10th, and 13th, filed suits in said court against appel-lee for $7.92, $10.20, and $8.75, respectively, and afterwards on May 16th, 18th, 19th, 25th, and 26th, respectively, filed suits in the justice court for said precinct, presided over by J. M. Ray, for the respective sums of $9, $13.34, $7.82, $8.50, and $10.55. Each of these suits is based upon an alleged breach of the contract for the extension of the siding at appellant’s lumber yard, and the delivery of cars of lumber thereon.

Appellee’s petition for injunction contains the following allegations:

“Plaintiff further alleged that said siding crossed West Alabama street, and that said street was a thoroughfare continually used by vehicles, and that the placing of cars on said siding would greatly obstruct the view of any approaching train to persons using said West Alabama street, and that the placing of cars on said siding was a menace to the safety of those using, said street, and that for this reason, _ if there was an agreement between the parties, the same was void and unenforceable, as against public policy. Plaintiff further alleged that there was no consideration for the alleged agreement, and that the lumber company did not promise and bind itself to do anything in consideration of said agreement, and that the charge of $5 per car was the usual switching charge' charged for switching all cars that arrived in the city over any other than the lines of plaintiff and its associate lines, and that said charge is the uniform charge required by the. railroad commission of Texas for the rendition of a like service, and is the same charge that is made for the placing of cars oh this, as well as any other, switch track in the city of Houston, and that at the time said alleged, agreement was made the railway company was receiving, and had always received, the same charge for switching cars to the team track, about 7% blocks distant from, the lumber yard. Plaintiff alleged that this contract was nudum pactum and unenforceable.
“Plaintiff further alleged: That, if the alleged agreement was a binding obligation, the same was completely repudiated and breached in its entirety, and that it had refused to put said track in condition, and refused to deliver any car upon said siding, and had completely repudiated said contract and notified the lumber company of such repudiation; that in cause No. 21422, in the justice court, between the parties, judgment had been rendered in favor of the lumber company, against the railway company, in the sum of $19.16 and costs of' court; that said judgment had been rendered for damages for the broach of said alleged contract, and that the same had been fully paid and satisfied, and that said judgment was res, adjudicata of the right of the lumber company to recover in all of said suits, and that the same-was a bar to the institution of further suits growing out of said contract; that; because of' the institution of these successive suits on the dates as set forth in said petition, the plaintiff believed, and upon such belief alleged, that it was the intention of the lumber company to institute- a separate suit for the expense of hauling the lumber from each car that was consigned to it and not placed by the railway company on the siding adjacent to its lumber yard, as it contended the same should be done under its alleged contract with the railway company, and that these suits were instituted for the purpose of harassing the railway company, and to thus force a compliance with the alleged contract, and that, if the lumber company had any cause of action for the breach of the alleged agreement, the same was one cause of action, and properly determinable in one suit, and that the lumber company was thus splitting up said alleged cause of action, and filing separate suits for the purpose of vexing and harassing this plaintiff.
“Plaintiff alleged that, unless the lumber company was restrained from instituting and prosecuting these separate suits, the plaintiff would be subjected to the vexation, expense, and trouble of defending these separate suits, when, in fact, all of the matters should properly be determined in toe suit, and that plaintiff would be deprived of its right of an appeal and the determination of the issue as to the existence and construction of the alleged agreement by a court whose judgment would be reviewable by the appellate courts of the state, when in truth and in fact the amount in controversy was sufficient to confer appellate jurisdiction upon the highest court in the state, and that, unless the lumber company was restrained, this plaintiff would suffer great and irreparable loss, and that plaintiff has no adequate remedy at law.
“Plaintiff asked for a temporary writ of injunction, restraining the lumber company from further prosecuting the suits in the justice court, and from filing further separate suits growing out of the controversy as to the right of the lumber company to have cars of freight placed upon the siding adjacent to its lumber yard, and that upon a final hearing said injunction be made permanent or perpetual, or until such time as the case then pending in the county court might be tried and final judgment rendered, and for such other relief, both special and general, to which plaintiff might be entitled. This petition was duly sworn to as required by law.”

Conceding that the letter of June 13th from appellant to appellee’s agent, and the letter of reply thereto of June 24th, which we have before set out, constituted a binding contract, the repudiation of such contract by appellee and its failure and refusal to perform any part thereof was a breach of the contract in its entirety, and the damages sustained by appellant because of such breach can and should be settled and recovered in one suit.

This being true, appellee was entitled to an injunction restraining the appellant from prosecuting the various suits filed by it in the justice court for recovery of damages for alleged separate breaches by appellee of said contract, and from bringing additional suits based upon the continued failure of appellee to comply with said contract.

The contract does not require the appellee to construct and maintain a side track or spur adjacent to appellant’s lumber yard and deliver cars thereon for any definite length of time, nor does it bind appellant to maintain and operate its lumber yard for any length of time; but, from the nature of its subject-matter, it was plainly the intention ■of the parties that, if the appellant established its lumber yard adjacent to appellee’s railway and had the lumber purchased by it shipped over appellee’s lines, appellee would construct the siding and continue to make deliveries thereon as long as appellant continued to perform its contract obligation.

The promise of appellant to establish its lumber yard adjacent to appellee’s railway and to ship a large portion of the lumber purchased by it over the railway lines of appellee was' the consideration for the promise of appellee to construct and maintain the spur or side track and deliver the lumber shipped to appellant on said track. These reciprocal promises furnished the one for the other sufficient consideration to support the contract. If, as claimed by appellant, it purchased the property and established its lumber yard in reliance upon the promise of appellee to construct the side track and deliver thereon all cars of lumber shipped to appellant, appellee should be held liable for the damages caused appellent by its failure to comply with its contract. But, appellee having repudiated its contract and notified appellant of that fact before the time for performance by it, such repudiation was a breach of the contract in its entirety, and appellant can in one suit recover all the damages sustained by reason of such breach. The rule that when one party to a contract breaches it the other party may at his option consider the contract at an end or may refuse to accept such breach as a termination of the contract and treat it as still in force for his benefit should not be applied in this case, because the only effect of permitting appellant to treat the contract as continuing would be to enable it to split up its cause of action and bring numerous suits when it could in one suit recover all the damages sustained by it.

The cases of Richmond v. Railway Co., 33 Iowa, 492, and Richmond & Jackson v. Railway, 40 Iowa, 264, cited by appellant in support of its contention that it was not required to treat the repudiation of the contract by appellee as a breach of the contract in its entirety, do not sustain such contention. In the cases cited, the contract, which by its terms was to continue in force for 15 years, was not breached in all of its provisions. The railway company from time to time breached certain provisions of the contract ; but other of its provisions, which were beneficial to the plaintiff, were performed by the railroad, and plaintiff continued to perform all of his obligations under the contract. In such case, it is apparent that the plaintiff would be entitled to sue for damages for each separate breach of the contract as it occurred and was not required to treat the first breach of one of the provisions of the contract as an entire breach and recover in the suit brought for the first breach all damages that he might sustain by subsequent breaches of the contract. We think the facts of these cases distinguish them from the instant case.

The case of Howe v. Harding, 84 Tex 74, 19 S. W. 363, also cited by appellant, does not sustain its contention. That case arose upon the following facts': The plaintiff Harding granted to a railroad company a right of way over his land in consideration of the agreement of the railway company to erect and maintain á water tank on plaintiff’s land to be supplied from a spring on the land. The railway company was to use this water and pay appellee as much per month therefor as it might pay any other person on its line for like privilege. The company took possession of the right of way, erected the tank, and used the water from the spring as contemplated in the contract from July, 1S85, to July, 1887, when defendant Howe, receiver for the railroad, removed the tank and ceased to use the spring and refused to make plaintiff any further payments. Plaintiff brought a suit and recovered the amount due him under the contract up to the date of the filing of the suit. He thereafter brought a second suit and recovered the amount due under the contract from the filing of the first suit up to the filing of the second. The court held that the judgment in the first suit was not res adjudicata of the cause of action set up in the second. The opinion upon this question is as follows:

“The facts show that the appellant is reaping the benefits of this contract by continuing the use and enjoyment of the right of way. This the railway company nor he has ever surrendered. The consideration for this right of way is the compensation agreed to be paid to appellee for the privilege and use of the water by the company. The failure of the appellant to use the water does not relieve him of bis obligation to pay for the right of way so long as be continues to use it. This amount agreed upon as consideration for the right of way is a sum equal to that paid per month to any other person on the line of road engaged in furnishing water to the company. The evidence in this case shows that others for like service are receiving $50 per morith. We do not think that the appellant in refusing to use the water and in removing the tank can escape its liability to pay this sum agreed upon so long as he enjoys the use of the right of way. If there had been a breach of the contract to the extent of abandoning not only the use of the water but also the right of way, then an action to recover the damages resulting from this entire breach would have been conclusive of the rights and liabilities of the parties in a second controversy. We do not think the judgment rendered in the former suit was res adjudicata.”

We think it clear that this ease does not sustain appellant’s contention.

The power of a court of equity to enjoin the bringing of separate suits to vex and harass a defendant by a multiplicity of actions, when plaintiff’s demands can all be litigated in one suit, was recognized and exercised by our Supreme Court in the case of Railway Co. v. Dowe, 70 Tex. 5, 7 S. W. 368.

We think the trial judge was authorized to grant the temporary injunction, and his order granting same is affirmed.

Affirmed.
      <g^>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    MISSOURI, O. & G. RY. CO. OF TEXAS v. WEBB.
    (No. 1471.)

    (Court of Civil Appeals of Texas. Texarkana.
    May 19, 1915.
    Rehearing Denied June 6, 1915.)
    1. Evidence @=528 — Opinion Evidence-Admissibility.
    In a personal injury action, a medical expert may testify that plaintiff’s weak and irregular heart-beat might have been caused by the injury.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 2335-2337; Dec. Dig. @=528.]
    2. Appeal and Error @=1052 — Review— Harmless Error.
    In a personal injury action, where there was no contention that the verdict was excessive, the erroneous admission of evidence that an injury to the heart could have resulted from the accident was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4171-4177; Dec. Dig. @= 1052.]
    3. Witnesses @=286 — Evidence — Admissibility.
    Where plaintiff stated on cross-examination that he would not submit to a physical examination by certain doctors, it was not improper for the court to exclude questions whether plaintiff would consent to being examined by physicians appointed by the court and to permit plaintiff to testify on redirect examination that he would consent to being examined by physicians agreed on by his own and defendant’s , counsel.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 930, 994-999; Dec. Dig, @= 286.]
    4. Appeal and Error @=1170 — Review-Harmless Error.
    In such case, where plaintiff’s injured leg and foot as well as .the uninjured one were exhibited to the jury, the errors were not reversible within rule 62a for the Court of Civil Appeals (149 S. W. x), prohibiting reversals for nonprejudicial errors.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098,. 4101, 4454, 4540-4545; Dec. Dig. @=1170.]
    5. Trial @=352 — Special Questions —. Weight op Evidence.
    In an action by a railroad employé injured in attempting to elevate part of a bridge with a track jack, the questions whether, while the employs was engaged in the duties he was told to perform, the jack gave way and whether the jack gave way because it was not strong enough for the work, were answered in the affirmative. I-Ield, that a question that, if the jury found that plaintiff was injured, then to state if his injuries were caused directly and proximately on account of the jack being too light for the work being done with it, which was also answered in the affirmative, was not erroneous as assuming that the jack gave way or fell.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 840-842, S44, 845; Dec. Dig. @=352.]
    6. Appeal and Error @=231 — Review— Presentation of Grounds.
    An objection that the charge was not a submission of the case to the jury on special issues as requested, but was a submission partly on the general charge and partly on special issues, and failed to confine the jury exclusively to questions of fact, and was confusing and misleading, is too general to be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1299, 1352; Dec. Dig. @= 231.]

      Appeal from District Court, Grayson County ; W. M. Peck, Judge.
    Action by W. H. Webb against the Missouri, Oklahoma & Gulf Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Jno. T. Suggs, of Dennison, and Head, Smith, Maxey & Head, of Sherman, for appellant. Jas. P. Haven, of Dallas, Wolfe & Wood, of Sherman, and McPherren & Cochran, of Durant, Okl., for appellee.

       Writ of error pending in Supreme Court.

   WILLSON, C. J.

Appellee adopts as correct the statement of the nature and result of the suit in appellant’s brief. The statement is as follows:

“Appellee, plaintiff in the court below, instituted this suit to recover damages for injuries alleged to have been sustained by him on or about October 17, 1912. He alleged that, while employed as a member of a bridge gang, he was engaged in assisting to jack up the track and part of the structure of a bridge, using a device known as a track jack; that while so employed a part of the jack broke or gave way, permit-ting_ the jack and timbers to fall or be forced against his leg, inflicting various injuries. The negligence alleged was that appellant failed to furnish an adequate jack for the work; that the one furnished was too light; that the foreman ordered him to use an unsuitable appliance; that a screw jack should have been used instead of a track jack; and that the foreman was negligent in directing him to work at the time and place and in the manner that was done, plaintiff being an inexperienced man. Appellant denied its alleged negligence in each of the matters complained of, the gravity of the injuries, and the damages alleged. It pleaded contributory negligence on the part of plaintiff ; that plaintiff was engaged in interstate commerce and had full notice in advance of the alleged injuries of the matters complained of, and assumed the risk of injury, and prayed that he recover nothing. In reply, appellee filed a general demurrer and general denial. Trial was had before a jury on special issues, and upon their findings judgment was rendered in favor of plaintiff for $2,500.”

On special issues submitted to them, the jury made findings as follows: (1) That on October 17,1912, appellee, then an employé of appellant, working under the direction of its foreman J. S. Probus, was injured while assisting in raising a portion of a trestle with a track jack. (2) That the jack was selected by Probus, who determined that it was sufficient for the use being made of it at the time appellee was injured. (3) That Probus ordered appellee to place the jack under the timbers of the trestle for the purpose of raising same. (4) That while appellee was working as directed by Probus the jack gave way or fell because it was not sufficiently strong for the work being done with it. (5) That the injury appellee sustained was due directly and proximately to the fact that the jack was too light for the work. (6) That appellant was guilty of negligence in furnishing appel-lee the jack “for use in performing the work of raising said portion of said trestle.” (7) That appellee was not guilty of negligence which contributed to cause the injury he suffered. (8) That the risk -appellee incurred in assisting in the work was not one he assumed. (9) That as a result of the injury to his person appellee was damaged in the sum of $2,500. The correctness of the findings, nor any of them, is not challenged by appellant; nor is it contended that the findings did not authorize judgment.

Dr. Pate testified that he visited appellee professionally in January after he was injured in October, and found him to be suffering from a “very weak and irregular heart-beat.” Over appellant’s objection thereto on the ground that same was “too remote, prospective, speculative, involving possibilities, and immaterial and irrelevant,” the court permitted the witness to say, in reply to a hypothetical question based on testimony already before the jury, that he (the witness) thought the heart trouble could have been caused by the injury appellee had suffered. We are of opinion the court did not err when he permitted the witness to answer the question (Railway Co. v. Harris, 172 S. W. 1131); and if we thought otherwise we would regard the error as -harmless, in view of the fact that the testimony was material only to the question as to the amount, if any, appellee, was entitled to recover, and it is not pretended that the judgment is excessive.

Appellee claimed that the jack used in raising the trestle was not strong enough for the purpose, and that as a result of its breaking the trestle fell on and crushed and mashed his left leg and foot. He testified as a witness. Cross-examining him, appellant asked appellee this question:

“Are you willing to permit Dr. J. F. Jones and Dr. Neathery of Sherman to make an examination of your foot and leg?”

Appellee answered in the negative. Afterward appellant asked him if he was “willing to submit to an examination by two physicians appointed by the court for that purpose.” An objection to the question, on the ground that “the court had no legal right to appoint any one to examine plaintiff and further that the question was prejudicial and harmful,” was sustained. Oh his redirect examination by his own counsel appellee testified that on three different occasions claim agents of appellant had talked to him about the case, and that no one of them, nor either of the attorneys representing appellant, had ever asked him outside of the courthouse “to be examined by any physician.” Over appellant’s objection on the ground that “same was self-serving, irrelevant, and immaterial in view of the witness’ answer, and leading,” the court then permitted appellee to testify that he had no objection “to being examined by any physician or physicians that may be agreed upon between his attorneys and the attorneys representing the railroad company.” Appellant insists that the court erred when he refused to require appellee to say whether he was willing to be examined by physicians appointed by him (the court) or not, and also erred when he permitted appellee to say he had no objection to being examined by physicians agreed upon by Ms own and appellant’s attorneys. We are inclined to tbe opinion tbe court did not err in ruling as be did; but, in view of tbe fact that appellee’s injured leg and foot, and also Ms uninjured leg and foot, were exhibited to tbe jury, if tbe‘court did err, we tbink tbe error, or errors, did not amount to “sucb a denial of tbe rights of tbe appellant as was reasonably calculated to cause, and probably did cause, tbe rendition of an improper judgment in tbe case,” within tbe meaning of rule 62a for tbe government of Courts of Civil Appeals (149 S. W. x). Therefore tbe assignments presenting tbe contentions are overruled.

Of tbe questions propounded to tbe jury, tbe seventh, eighth, and ninth, and tbe answers thereto, were as follows:

“Question 7: WMle plaintiff was engaged in performing- tbe duties be was told to perform by tbe said Probus, did said jade give way or fall? Answer: Yes.
“Question 8: Did said jack give way and fall because it w-as not sufficiently strong for the work which was being done with it at the time? Answer: Yes.
“Question 9: If you have answered that plaintiff was injured, then state if plaintiff’s injuries were caused directly and proximately on account of the jack being too light for tbe work which was being done with it at that time? Answer: Yes.”

Appellant urges that tbe Mntb question was “on tbe weight of tbe evidence, in that it assumed that tbe jack gave way or fell, and assumed that said jack was too light and insufficient for tbe work being done by it.” Tbe contention is believed to be without merit when tbe question criticized is considered in connection with those preceding it, set out above, and others not set out, submitted to the jury at tbe same time. Railway Co. v. Stalcup, 167 S. W. 285.

In bis charge to tbe jury tbe court defined “ordinary care,” “negligence,” “contributory negligence,” and “assumed risk,” instructed them as to tbe burden of proof and measure of damages, told them not to allow appellee anything as damages if they believed be was injured as tbe result of a risk be bad assumed, even if they also believed appellant “was guilty of negligence in connection with bis said injuries, if any,” and then propounded 19 questions which be instructed them to answer. Tbe charge as a whole was objected to “because,” quoting:

“It is not a submission of the case to the jury on special issues as requested by defendant, but is a submission of the case to the jury partly on the general charge and partly on special issues, and submits to the jury questions of law for their determination, instead of confining the charge to the submission of issues of fact with such explanation and definitions only of law as necessary to enable the jury to arrive at a verdict on issues of fact, and because same is confusing, misleading, and deprives defendant of its right upon request to have the jury in their consideration confined exclusively to questions of fact.”

Specific portions of tbe charge were objected to on similar grounds and also because same, as is contended, advised the jury as to tbe legal effect of their findings of fact and authorized them to return a general verdict. This court bad occasion, in Railway Co. v. Casey, 172 S. W. 733, to consider an objection, based on substantially tbe same grounds, urged to tbe charge given in that case. Tbe reasons why we tbink tbe contention now made should be overruled are sufficiently stated in.the report of that case, and will not be repeated here.

There is no error in tbe judgment, and it is affirmed.
      @=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes