text:
    McKENZIE v. CONNERY et al.

    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 22, 1913.
    Rehearing Denied Jan. 10, 1914.)
    Judgment (§ 407) — Equitable Relief — Petition.
    The petition in a suit by M. against C. and others in the nature of a bill of review to set aside a judgment for C. in an action by him against M. and such others and the judgment over for such others against M. is subject to general demurrer; it relying on matters known o.f by M. at the time of, but not alleged in, his unverified motion for new trial in the original action, which was denied, namely, an agreement for continuance and perjured testimony, and giving no reason why they were not there set up; and alleging no reason for vacation of the judgment over, other than a defense to the action of C., except that M. was not served with notice, prior to the judgment, that such plea over had been filed.
    [Ed.- Note. — For other cases, see Judgment, Cent. Dig. §§ 768-771, 773, 774; Dec. Dig. § 407.]
    Error to District Court, Tarrant County; Marvin H. Brown, Judge.
    Suit in the nature of a bill of review by J. M. McKenzie against C. W. Connery and others. Suit dismissed, and complainant brings error.
    Affirmed.
    Goree & Turner, .of Ft. Worth, for plaintiff in error. Wray & Mayer, of Ft. Worth, for defendants in error.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

       Writ of error denied by Supreme Court.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   DUNKLIN, J.

J. M. McKenzie instituted this suit against C. W. Connery, N. C. Mann, J. R. Morris, and L. P. Powell in the nature of a bill of review to set aside a judgment rendered in a former suit in favor of Connery against McKenzie, Mann, Morris, and Powell for the sum of $1,682.40, and in which suit judgment was also rendered in favor of Mann, Morris, and Powell over against McKenzie for $1,500 of said amount, and in favor of Mann alone for the difference between the sum last mentioned and the amount of the judgment in Connery’s favor. A general demurrer was sustained to the plaintiff’s petition, and he having declined to amend, the suit was dismissed, and from that judgment McKenzie has prosecuted this writ of error.

According to the allegations in the petition, the former suit was instituted by Connery to recover of McKenzie, Mann, Morris, and Powell the value of a stock of drugs which had been levied on at McKenzie’s instance and sold to satisfy a debt claimed by him against one Hickey. Mann was the constable who made the levy, and Morris and Powell were sureties upon his official bond. In that suit Connery claimed in his petition that the stock of goods belonged to him and not to Hickey, and the judgment rendered in his favor against McKenzie and the constable and his sureties was for the value of the goods; that judgment was rendered November 27, 1911, during the absence of McKenzie and his counsel, the suit having been instituted February 1, 1911, and McKenzie, through his attorney, C. Nugent, having filed his original answer, consisting of a general demurrer and general denial on February 11, 1911, and Mann, Morris, and Powell having filed their plea over against McKenzie on November 25, 1911; that suit was first called for trial at the March term, 1911, and was continued by operation of law. At the April term, 1911, it was agreed by and between Nugent, representing McKenzie, and Mayer, representing Connery, that the suit would not be tried in the absence of plaintiff, nor in the absence of Nugent or McKenzie. In the negotiations terminating in this agreement, Mayer stated that Connery was absent in Europe and would not return until the first of the following year, and Nugent stated to Mayer that he was trying to dispose of all his eases in court in order that he might go to Stephenville. Prior to the rendition of the judgment, Nu-gent had removed from Ft. Worth to Stephen-ville, and McKenzie had employed C. R. Kin-chen to represent him in the suit. Kinchen was informed of the agreement between Mayer and Nugent for the continuance of the case. On November 18, 1911, Kinchen and McKenzie were compelled to go to Gaines-ville to try a ease there pending in court, and were compelled to remain there in attendance upon court until November 30, 1911, when they returned to Ft. Worth, and on the morning of December 1, 1911, they learned for the first time of the rendition of the judgment in favor of Connery. Immediately and on December 1, 1911, Kinchen filed a motion for McKenzie, asking for a new trial of the cause, which motion was upon December 2, 1911, presented to the court and overruled. The cross-plea by Mann and the sureties on his bond against McKenzie for a judgment over was filed only two days before the rendition of the judgment and during the absence of McKenzie and his attorney at Gainesville. McKenzie was never served with citation upon the cross-plea, and neither he nor his counsel had notice that it had been filed until December 1, 1911, when they learned of the judgment. McKenzie, Kinchen, and Nugent all relied upon the agreement made with Mayer that the case would not be tried during the absence of Connery or McKenzie, or his counsel, and, by reason of his reliance upon that agreement and the absence of McKenzie and his attorney at Gainesville, McKenzie was deprived of his day in court and the right to present his defenses to Connery’s suit.

According to further allegations in the petition, the judgment in that suit in favor of ■Connery was based upon the testimony of Connery and witnesses procured by him, in effect, that the stock of goods was the property of Connery at the time of the levy and sale, and was worth $1,682.40, which testimony was false in that the goods were the property of D. C. Hickey, and were not worth exceeding $300 or $350; that Connery knew said testimony to be false at the time it was given, and gave and procured the same for the purpose of defrauding McKenzie and his codefendants in said suit.

According to further allegations in the petition, at the time of the levy upon said stock of drugs the same were in the possession of Hickey, who was carrying on a retail drug business in North Ft. Worth, and who was selling the same in due course of business conducted in his own name, and who was sole manager with his name as a sign over the door of the store where the goods were exposed to sale, and the stock of goods was rendered for- taxes in the name of Hickey. Connery, with full knowledge of the manner in which said business was carried on, ac,quiesced therein, and intended that the public should deal with Hickey as the owner of the goods.

The following were the only grounds upon which McKenzie relied to have the judgment set aside, as shown in his motion for new trial: “Eirst. The principal defendant, J. M. McKenzie, nor his attorney, C. R. Kinchen, had any notice of the setting of said case for trial, and were both in Gainesville, Tex., engaged in the trial of an important litigation at the time of the setting and trial of this case in the district court of Tarrant county. Second. Defendants have a good and valid defense in said cause, in this: The plaintiff’s pretended cause of action is based upon a levy made by the defendant Nace Mann, constable of precinct No. 1, Tarrant county, Tex., at the instance of J. M. McKenzie, who held a judgment against one D. G. Hickey for the sum of $-. And the property so levied on consisted of a stock of drugs, wares, and merchandise which, prior to and at the time of said levy, purported to be in the name of and owned by the said Hickey, and the defendants had no notice whatever of plaintiff having or owning any right or title whatever in said property, even the sign on the store and the label on the goods being in said Hickey’s name, and the said Hickey having rendered said stock of goods for taxation in his own name. All of which defendants expect to and will prove upon-a trial, if this judgment be set aside and a new trial granted them. Plaintiffs further say that the judgment for $1,682 against them is excessive in this that the goods levied on were not worth more than $290,' and did not .bring more than that amount when sold. Third. The defendant J. M. McKenzie had no notice of pleadings being, filed in the case by the defendant Nace Maim asking for a,judgment over, against him for the amount sued for by the plaintiff G. W. Connery, and was surprised to learn that such a judgment had been rendered against him. Fourth. There has been no dereliction on the part of defendants or their attorneys in looking after their interests in this litigation, but the case has been on the docket of this court for a year or more, and the plaintiff had not heretofore made any effort to prosecute his said pretended cause of action 6r to have the same set down for trial until the defendants were absent from the court on important business, and were surprised to learn that the plaintiff had taken such an undue advantage of them.”

The motion was not verified, and no affidavits were attached thereto in support of the truth of the allegations therein contained. When the motion for new trial was overruled, McKenzie gave notice of appeal to' the Court of Civil Appeals, and by order of the court was granted 60 days’ time from and after adjournment of the term within which to prepare and file bills of exception and statement of facts preparatory for such appeal, but no appeal or writ of error was prosecuted, and the petition fails to allege any reason why that was not done. This suit was instituted December 11, 1912, more than one year after the above-mentioned motion for new trial was overruled.

It will be noted that' in the motion for new trial, which was not even verified, the agreement with Connery’s counsel for a continuance of the case practically indefinitely was not alleged as a ground for granting a new trial, although that agreement was known to McKenzie and his counsel at the time the motion was filed. Nor was it alleged in that motion that the judgment was procured upon perjured testimony, and the petition filed by the plaintiff in the present suit fails to allege any reason for the absence from the motion of those two grounds for setting aside the judgment. The petition in the present case was filed in the same court that rendered judgment in the former suit, and it must be presumed that the two grounds last mentioned for granting a new trial, had they been properly presented in the motion for new trial, would have appealed to the court at that'time as effectively as when presented to the same court in the present suit; and, if the same had then been improperly overruled, McKenzie might have appealed and obtained a reversal of the judgment. It will be further noted that, aside from the facts alleged to show a defense to Connery’s suit against McKenzie, no facts are alleged as a reason for vacating the judgment on the plea over against McKenzie by his codefendants, except that he was not served with notice prior to the judgment that such plea had been filed. Clearly there was no error in sustaining the general demurrer to the petition. Caperton v. Winslow, 18 Tex. 132; Vardeman v. Edwards, 21 Tex. 737; Metzer v. Wendler, 35 Tex. 378; Bryorly v. Clarke, 48 Tex. 345; Johnson v. Templeton, 60 Tex. 239; Brownson v. Reynolds, 77 Tex. 256, 13 S. W. 986; Chambers v. Gallup, 30 Tex. Civ. App. 424, 70 S. W. 1009; Avocato v. Dell’Ara, 91 S. W. 830; Kruegel v. Cobb, 124 S. W. 726 ; 23 Cyc. 983.

The judgment is affirmed.


source: Caselaw Access Project

author: SPEER, J.

license: Public Domain

text:
      L. GRIEF & BRO. v. TEXAS CENT. R. CO.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 13, 1913.
    Rehearing Denied Jan. 17, 1914.)
    1. Courts (§ 122) — Amount in Controversy —Amended Pleadings.
    The filing of an amended petition entirely supplants the original petition, and it cannot thereafter be looked to, to ascertain whether the amount in controversy is sufficient to give the court jurisdiction.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413, 427; Dec. Dig. § 122.]
    2. Courts (§ 122) — State Courts — Texas— Jurisdiction oe County Courts.
    In an action against a railroad company for the value of goods, the petition alleged the goods to be of the value of $186, and also claimed interest and attorney’s fees amounting to nearly $80. Exceptions to the items of interest and attorney’s fees were sustained, and they were stricken. Held, that the county court properly dismissed the petition; the sustaining of the exceptions having reduced the amount in controversy to less than $200.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413, 427; Dec. Dig. § 122.]'
    3. Courts (§ 122) — Pleas in Abatement>Time oe Filing.
    Where plaintiff, after exceptions had been sustained to some items of damage laid in its original petition, filed an amended petition, alleging greater damages, defendant may then plead in abatement that plaintiff fraudulently misstated the amount of the damage to give the court jurisdiction, notwithstanding its previous answer to the- original petition.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413, 427; Dec. Dig. § 122.]
    4. Abatement and Revival (§ 81) — Pleas in Abatement — Time eor Filing.
    As parties cannot, by consent, confer jurisdiction, where it otherwise does not exist, a plea in abatement that plaintiff in his amended petition had fraudulently stated the amount of the damage at such an amount as would give the court jurisdiction will be sustained, even though it was not presented seasonably after the filing of the amended petition.
    [Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 10, 22, 175-177, 225, 499-504, 506; Dec. Dig. § 81.]
    5. Abatement and Revival (§ I) — State, Courts — Texas — County Courts — Dismissal.
    Where the amount in controversy is below jurisdiction of the county court, the action will be dismissed upon the plea in abatement of only one of the defendants that plaintiff fraudulently misstated the amount so as to give the court jurisdiction.
    [Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. § 1; Dee. Dig. § 1.]
    Appeal from Jones County Court; Joe C. Randel, Judge.
    Action by L. Grief & Bro., a copartnership, against the Texas Central Railroad Company, the Mallory Steamship Company being later brought in as a defendant. From a judgment dismissing the petition, plaintiffs appeal.
    Affirmed.
    S. J. T. Smith, of Anson, for appellants. W. T. Andrews, of Stamford, and R. O. Chambers and Chapman & Ooombes, all of Anson, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   SPEER, J.

B. Grief & Bro., a copartnership, filed this suit in the county court of Jones county to recover from the Texas Central Railroad Company the value of a box of goods shipped by freight on September 30, 1910, over defendant’s line of railway from Hamlin, Tex., to plaintiffs at Baltimore, Md. In their original petition plaintiffs alleged that the box of goods was of the value of $186.50, which it was sought to recover, together with interest in the sum of $27.?7, and an attorney’s fee, under the statute, of $50. The defendant filed its original answer, setting up general and special exceptions, general denial, and especially asking that the Mallory Steamship Company be made a party defendant After this the plaintiffs filed their amended original petition, in substance the same as the original, except they alleged their damage for loss of goods at $250, with interest at $50 and attorney’s fee at $50. The defendant Mallory Steamship Company filed an answer, and the defendant Texas Central Railroad Company filed its amended original answer, excepting to the items of interest and attorney’s fee, and pleading specially that plaintiffs had fraudulently alleged the amount of the damage at a sum sufficient to give the court jurisdiction. The trial court, after hearing the evidence, sustained the plea to its jurisdiction, dismissed the cause at plaintiffs’ cost, and they have appealed.

Appellants’ first assignment of error attacks the ruling of the court in dismissing the cause of action because they say their original petition declared on an amount exceeding $200, and that, therefore, the court had jurisdiction. A sufficient answer to this, however, is that the original pleading was entirely supplanted by the amendment voluntarily filed by them. But if not, and if for any reason the original petition could be looked to in determining the jurisdiction, still the trial court sustained special exceptions to the items of interest and attorney’s fee, to which ruling there is no assignment of error, and with these items stricken out, the petition showed a cause of action below the jurisdiction of the county court and the court was right in dismissing it. Haddock v. Taylor, 74 Tex. 216, 11 S. W. 1093.

It is next complained that the court erred in sustaining the plea in abatement after appellee had filed its answer, including general demurrers, general denial, etc., in the cause many months prior to the time it presented its plea in abatement. As we understand the record, however, there was no necessity from appellee’s standpoint for interposing a plea to the jurisdiction until the filing by appellants of their amended original petition, which declared the value of the box of goods to be $250. The plea appears to have been seasonably presented after appellant’s amendment. But if it had not been, we are yet not prepared to hold that appellee could not present the matter of a fraud on the jurisdiction of the court involving the subject-matter of the controversy at any time. Parties cannot by consent confer jurisdiction where it otherwise does not exist, nor could the delay, we think, of a defendant in presenting such defense have that effect. The court very clearly finds the facts to be that appellants falsely alleged the value of the box of goods to be more than $170 for the fraudulent purpose of conferring jurisdiction on the county court, and there is no exception to this finding.

Under the facts shown the court correctly dismissed the action, even though the other defendant, the Mallory Steamship Company, did not join in the plea of fraud. Eor if the court had no jurisdiction as to the one defendant, neither did it have as to the other.

The judgment of the county court is affirmed.


author: HUFF, C. J.

text:
    CORNELIUS v. HARRIS.
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 3, 1914.
    Rehearing Denied Feb. 7, 1914.)
    1. Appeal and Error (§ 745) — Assignments op Error — Filing in Trial Court.
    Under Rev. Civ. St. 1911, art. 1612, as amended by Acts 33d Leg. c. 136, providing that appellant or plaintiff in error shall in all cases file with the clerk of the court below all assignments of error, distinctly specifying the ground on which he relies, but that, when a motion for a new trial has been filed, the assignments therein shall constitute the assignments of error and need not be repeated by the filing of the assignments, and that all errors not distinctly specified are waived, rule 101 (159 S. W. xi), as amended, providing that the appellant or plaintiff in error shall file his assignments in the trial court as provided by article 1612, and rule 101a (159 S. W. xi) providing that, in all cases in which a motion for a new trial is filed, the assignments contained therein shall constitute the assignments of error, and that all errors not distinctly specified in such motion or in the assignments of error when motion for a new trial is not filed shall be waived, where there is no motion for a new trial, assignments of error may be filed in the trial court and brought up in the transcript.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3039, 3042; Dec. Dig. § 745.]
    2. Appeal and Error (§ 294) — Reservation op Orounds op Review — Conclusions op Fact and Law.
    Under Rev. Civ. St. 1911, art. 1991, providing that it shall be sufficient for the party excepting to the conclusions of law or judgment to cause it to be noted on the record of the judgment entry that he excepts thereto and that such party may thereupon take his appeal without a statement of facts or further exceptions in the transcript, but that the transcript in such cases shall contain the special verdict and conclusions of fact and law and the judgment thereon, a party excepting to the judgment may appeal on a statement of facts without having conclusions of fact and law filed, and may attack the sufficiency of the evidence as matter of law to support judgment.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1724, 1725, 1727-1735; Dec. Dig. § 294.]
    3. Vendor and Purchaser (§ 105) — Rescission — Effect—By Vendor.
    Where a vendor refused to convey, he could not, in an action by the purchaser for damages, set aside his election to retain the land and recover a judgment for the money due under the contract with a foreclosure of the vendor’s lien thereby reserved.
    [Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. §§ 183-187; Dec. Dig. § 105.]
    4. Vendor and Purchaser (§ 353) — Breach by Vendor — Actions—Judgment.
    A purchaser, suing for .damages for his vendor’s breach of the agreement to convey, has no lien, equitable or otherwise, for his damages where he has placed no improvements on the land and has discharged no lien, and hence, in such an action, a foreclosure was improperly feranted except for the amount of taxes paid by the purchaser.
    [Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. § 1060; Dec. Dig. § 353.]
    5. Appeal and Error (§. 934) — Review — Questions of Fact.
    In a purchaser’s action against a vendor for breach of his agreement to convey, where the evidence was conflicting whether the purchaser was able, ready, and willing to comply with the contract on his part when the vendor refused to do so, the evidence should be viewed in the light most favorable to the judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3777-3781', 3782; Dec. Dig. § 934.]
    6. Vendor and Purchaser (§ 343) — Breach by Vendor — Remedies op Purchaser.
    Where a vendor refused to convey according to his agreement, the purchaser could either sue for specific performance or for damages; he being then ready, able, and willing to comply with the contract.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 1023-1029; Dec. Dig. § 343.]
    7. Vendor and Purchaser (§ 170) — Breach by Vendor — Tender by Purchaser — Necessity.
    Where a vendor refused to convey, the purchaser, who was ready to perform his part of the contract, was not bound to tender performance.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 344-348; Dee. Dig. § 170.]
    8. Appeal and Error (§ 1073) — Harmless Error — Relief Not Asked by Pleading.
    In a purchaser’s action against a vendor for damages from the vendor’s refusal to convey, in which the petition asked for the cancellation of a note given in part payment or for damages in the amount thereof, the vendor was not prejudiced by the cancellation of a mortgage securing such note, though the petition did not ask a cancellation thereof, since the mortgage was but an incident of the debt and was discharged when debt was canceled.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4240-4247; Dec. Dig. § 1073.]
    Appeal from District Court, Armstrong County; Jas. N. Browning, Judge.
    Action by C. H. Harris against R. L. Cornelius. Judgment for plaintiff, and defendant appeals.
    Reformed and affirmed.

      Hugh L. Umpires, of Amarillo, and Fay-ette Ratliff, of Panhandle, for appellant. J. S. Stallings, of Olaude, and Synnott & Underwood, of Amarillo, for appellee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HUFF, C. J.

The judgment in this case was rendered April 17, 1913, and assignments of error filed July 15, 1913. The case was tried before the court without a jury. There are no conclusions of fact and law filed by the trial judge, and no motion for new trial filed in the court below. The ease is in this court on a statement of facts, pleadings, judgment, and assignments of error thereon. The appellant excepted to the judgment of the court, and had the same entered in the judgment, and gave notice of appeal.

The appellee has filed his motion to strike out the assignments of error which were filed in this court more than 30 days after the record was filed herein, and also objects to the assignments in the brief because no motion for new trial was filed in the trial court.

The judgment and appeal herein were taken after article 1612, R. S. 1911, was amended by the Thirty-Third Legislature, c. 136, p. 276, and which took effect April 4, 1913. As amended, the article reads: “The appellant or plaintiff in error shall in all cases file with the clerk of the court below all assignments of error, distinctly specifying the grounds on which he relies, before he takes the transcript or record from the clerk’s office: Provided, that where a motion for new trial has been filed the assignments therein shall constitute the assignments of error and need .not be repeated by the filing of the assignments of error: And provided further, that all errors not distinctly specified are waived, but an assignment shall be sufficient which directs the attention of the court to the error complained of.” On the 25th day of June, 1913, the Supreme Court amended the rules. Rule 101 (159 S. W. xi): “The appellant or plaintiff in error shall file his assignments of error in the trial court as provided by article 1612 of the Revised Civil Statutes of 1911, as amended by chapter 136 of the Acts of the Thirty-Third Legislature,” etc. — and added rule 101a (159 S. W. xi): “In all cases in which a motion for a new trial is filed the assignments contained in such motion or amended motion as finally ruled upon by the trial court shall constitute the assignment of error. All error not distinctly specified in such motion, or in the assignments of error when motion for a new trial is not filed, shall he waived.” (Underscoring ours.) Certainly there can be no doubt that the Legislature, as well as the Supreme Court, recognized that, where there is no motion for new trial, assignments of error can be filed in the trial court and brought up in the transcript. It is urged that rule 71a (145 S. W. vii), added to the rules as amended January 24, 1912, required a motion for a new trial before appeal. The rule in part is: “A motion for a new trial shall be filed in all cases where parties desire to appeal from a judgment of the trial court, * * ⅝ except in such cases as the statute does not require a motion for a new trial.” The statute, as amended, permits assignments to be filed when there is no motion for new trial, as we interpret the statute and" the amended rules above set out.

Article 1991, R. S. 1911: “It shall be sufficient for the party, excepting to the conclusions of law or judgment of the court, to cause it to be noted on the record in the judgment entry that he excepts thereto; and such party may thereupon take his appeal or writ of error without a statement of facts or further exceptions in the transcript; but the transcript shall in such case contain the special verdict or conclusions of fact and law aforesaid and the judgment rendered thereon.” If the party excepts to the judgment entry he is entitled to appeal and may take the case upon a statement of facts and is not required to maintain his right of appeal to have filed conclusions of fact and law. The statute gives the right of appeal upon the proper exception being noted. The appellant in this case excepted to the judgment and had the same entered in the judgment. Greer v. Featherston, 95 Tex. 654, 69 S. W. 69. In the above case the Supreme Court said, in answer to certified questions from the Second district: “No motion for new trial is necessary to authorize the attorneys and the court to make up and sign the statement of the facts upon which the judgment is based; and, when the facts are thus stated, the record is sufficiently complete to enable the appellate court to decide whether, under the most favorable view of the facts, the successful party was entitled to the judgment entered. The question propounded to us may be expressed thus: Upon this statement of facts, should the court have instructed the jury to find a verdict for the defendant? This presents a question of law, and there .could not possibly be any reason to make a motion for a new trial, because the court must have passed upon every phase of the evidence that could arise.” As we gather from the report of that case in 95 Tex. 654, 69 S. W. 69, a.nd 68 S. W. 48, there was no conclusion of facts and law filed in the trial court. This case we also think established that, upon excepting to the judgment, the aggrieved party had the right of appeal upon a statement of facts.

Whatever may be the construction placed on rule 71a for the district courts (145 S. W. vii) and rules 24 and 25 for Courts of Civil Appeals (142 S. W. xii) as to the assignments of error, we think, under the present statute and rules heretofore quoted, assignments of error may be filed when there is no motion for new trial. Under Greer v. Featherston, supra, appellant may, we think, assail the judgment rendered on the ground that, as a matter, of law, the evidence is not sufficient to support the same. The Supreme Court sáid, in the case of Railway Co. v. Beasley, 165 S. W. 183, that that court could not by a rule set aside the statute, and the rules must be construed to harmonize with the statute and the former decisions of the Supreme Court. We believe that in the holding that assignments filed where there is no motion for new trial, calling in question the sufficiency of the evidence as a matter of law, may be considered and is in harmony with the statute and the decisions of the Supreme Court. Telegraph Co. v. Mitchell, 89 Tex. 441, 35 S. W. 4; City of Austin v. Forbis, 99 Tex. 234, 89 S. W. 405. We have therefore concluded it to be our duty to consider such assignments which may properly call in question the judgment of the court.

This is a suit brought by C. H. Harris, the appellee, against R. E. Cornelius, appellant, in the district court of Armstrong county, alleging a breach of the contract and for damages. The contract entered into between the parties is as follows: “This memorandum of agreement made this October 31st, 1911, by and between R. L. Cornelius of Panhandle, Texas, party of the first part, and C. H. Harris of Groom, Texas, party of the second part, witnesseth: Party of the first part, for and in consideration of the premises hereinafter contained, has this day bargained, sold and agreed to deliver to party of the second part, and by these presents does hereby agree to sell and convey to the party of the second part, the following described land and real estate, situated in Armstrong .county, Texas, and described as survey No. 81, in block B3, in said county, and located by certificate No. 15 — 3317, H. & G. N. Railroad Company original grantee, and containing six hundred and forty acres of land, more or less. (1) In consideration of the above-named conveyance, party of the second part covenants and agrees to pay to the party of the first part the sum of $500 on or before the 1st day of March, 1912, or to execute and deliver to said party of the first part in lieu therefor a good bankable note for said amount to be approved by party of the first part. (2) Said party further agrees to pay $2,700.58 on or before September 1st, 1912, as the second payment. As the third payment said party of the second part agrees to pay $1,600.29 on the 1st day of September, 1913, and $1,600.29 on the first day of September, 1914, all of said respective amounts to bear interest at the rate of - per cent, per annum interest payable annually. For said last two amounts party of the second part agrees to execute and deliver to said party of. the first part his vendor’s lien notes. Party of the second part further agrees to thresh and deliver to said party of the first part two-thirds of his one-third part of sorghum now growing on said land, or the proceeds of same, as soon as same can be threshed. Party of the second part finally agrees to pay all back taxes on said land including the tax for the year 1911, to settle all attorney’s fees now due and owing to one Fayette Ratliff in bringing and prosecuting a suit of foreclosure against said land in the district court. It is further agreed that said party of the first part shall execute and deliver deed conveying the afore-described land on the first day of September, 1912, provided party of the first part has in all things complied with his part of this contract, otherwise, this contract shall become null and void, and all amounts heretofore paid by party of the second part shall be forfeited as liquidated damages. In witness whereof, we have hereunto set our hands this the 31st day of October, A. D. 1911.”

The petition in this case, after setting out the terms of the contract, alleged the breach of thé same in that the appellee had performed all the conditions of the contract required of him, and that the appellant refused to perform his contract by making the conveyance of the land, as stipulated in the contract, and that he (appellee) was ready, able, and willing to pay the money, execute the notes required of him by the contract, and demanded the execution of the contract, but that the appellant refused to do so. He alleges that he had theretofore executed a note for the sum of $500, with approved security which appellant had accepted on the contract, and that appellant still retained and held .the same; that he had paid certain taxes, attorneys’ fees, and certain other moneys unnecessary to mention, which the appellant retained, and also further alleged that he had been damaged in certain amounts, and prayed for judgment for such damages in the sums of money so paid by him, and the cancellation of the note which had been theretofore turned over to the appellant on the trade. The appellant, as defendant, denied generally the allegations of the petition, and also alleges that the appellee had utterly failed at all times to comply with the contract, and that he was unable to pay the sums of money contracted to be paid, and had already failed to pay the note which he had executed and had failed to pay the sum of $2,700, which under the contract was to have been paid September 1, 1912, and he asked to have a foreclosure of his lien on the land for the purchase money.

The court rendered judgment for the plaintiff for the amount of $1,385 and foreclosed the lien on the land for said amount, and also rendered a judgment canceling the note that had been given by appellee to appellant for the sum of $500, and a certain mortgage which had been given to secure that note.

The appellant, by his first assignment of error, complains that the court did not foreclose the vendor’s lien on the land for the payment of the purchase money agreed to-be paid according to the terms of the contract. As evidenced by the judgment of the court, he must have found that appellant had renounced the contract and thereby breached it. After breaking the contract and renouncing, appellant could not reinvigorate the contract by asking the court to determine whether it was an option contract or an executory contract, and, if the latter, give him a judgment for money due thereon with foreclosure. After committing a wrongful breach and forcing appellee thereby into court to obtain his rights, appellant was in no position then to say he was ready to perform according to the terms of the contract. By his action he retained the land, refusing to deed it, and also sought a foreclosure. Having once elected to hold the land, he will not be permitted thereafter to set aside his election and do what he had theretofore wrongfully refused to do. Under the findings of the court, a judgment of foreclosure was properly refused. Railroad Co. v. Richards, 152 Ill. 59, 38 N. E. 773, 30 L. R. A. 33; Kelly v. Short, 75 S. W. 877.

Appellant’s second assignment of error is to the effect that there was error in declaring a lien on the land for the sum of $1,385, damages found due appellee, and decreeing a foreclosure of the lien against the land. The pleadings in this case ask for damages for the breach of the contract. The damages sought to be recovered were for a note of $500 delivered to appellant under the contract as earnest money or the first payment on the land, also attorneys’ fees paid to a certain attorney by appellee for appellant for $5Q, taxes $55, and $100 paid as rent by mistake, and the difference between the contract price and the market value of the land at the time of the breach. We do not think the pleadings in this case show an implied equitable lien or, as for that matter, any other sort of a lien, except it be for the taxes paid by the appellee on the land. If he paid the taxes, perhaps the court was warranted in fixing the lien on the land for that amount and foreclosing it. The other items set up, by no rule of equity or law that we are familiar with, fixed a lien on the land. If appellant damaged appellee by failing to deed the land as he agreed to do, we do not see how such wrong fixed a lien on the land. There were no improvements placed on the land under the contract or the discharge of any lien, either equitable or legal, except the taxes against* the land. It is a suit for damages on a plain breach. The authorities cited by appellant we do not regard as applicable to the facts in this case. McOaghren v. Baleh, 152 S. W. 680.

Appellant assigns error to the judgment of the court by the third, fourth, sixth, seventh, eighth, ninth, tenth, twelfth, fourteenth, and fifteenth assignments, which we think may be treated together. These several assignments, in different form, present the proposition that, before appellee could recover, the evidence must show that he tendered the money due on the contract, and that he was then ready and able to pay the same, and that the facts wholly fail to show his ability to pay, or that he made a tender of payment in accordance with the contract. In this ease we think the evidence sufficient to support the judgment of the court that the appellant renounced liability on the contract. and refused to carry it out as he had agreed to do. The facts support the judgment that the note for $500, with security, was executed in lieu of the cash payment called for in the contract and was accepted by appellant. It further shows that both parties, in dealing under the contract, extended the time for the payment of the $2,700. ' There were negotiations between them on foot for some time with reference to trades by which appellant was to take other land for the $2,700, but this appellant declined to do, and thereupon appel-lee made arrangements to pay the money, and, when he announced his readiness to complete the contract and pay the money, appellant refused to deed the land to him or to complete the trade according to the terms of the contract. The evidence is conflicting on this point. The appellee’s testimony shows he was, at the time he demanded the deed, able, ready, and willing to pay the money and execute the other notes called for in the contract. The court having found he was so ready, able, and willing, even though there may be circumstances throwing doubt on his ability and readiness, yet the fact having been resolved in his favor by the trial court, we think the evidence should be viewed in the light most favorable to the judgment, and, so viewing it, we find it sufficient to support the judgment.

When appellant announced he would not complete according to the agreement, appellee had either of two remedies: To sue for specific performance or for damages. His cause of action arose when the appellant refused to deed the land and comply with the terms of the contract, and, when appellant showed his readiness and ability at that time to perform his part of the agreement and a willingness to do so, he was entitled to recover his damages, occasioned by the breach. Brown v. Binz, 50 S. W. 483; Greenwall v. Markowitz, 97 Tex. 479, 79 S. W. 1071, 65 L. R. A. 302; Kilgore v. Educational Society, 90 Tex. 139, 37 S. W. 598; Supreme Council v. Batte, 34 Tex. Civ. App. 456, 79 S. W. 629 ; 9 Cyc. 635 and 724.

It is insisted by appellant herein that the appellee did not make a legal tender of the money to appellant due. on the contract, and therefore he could not recover in this case. The case of Cook v. Doggett, 2 Allen (Mass.) 439, cited by appellant, we think states the rule governing this case. “It is very clear,” says that court, “on the authorities, that the judge, at the trial, correctly instructed the jury that, if the defendant refused to perform his part of the contract, the plaintiff could maintain this action by showing he was ready to perform his part, without showing a tender. According to the contract, concurrent acts were to be done by the parties; the defendant to execute the deed, and the plaintiff to pay money. In such case, if one party refuses to do what he had engaged to do, the other party need not do, nor formally offer to do, what he had engaged to do; readiness to do it being all that he needs to allege or prove.” The above assignments are each and all overruled.

The appellant, by his fifth assignment, assails the judgment in canceling a certain mortgage given to secure the $500 note executed by appellee under the contract for the first payment, because there was no allegation in the petition ashing that the mortgage be so canceled. The appellant sues for damages in the amount of this note or to cancel the note. The court did not give damages in the amount of the note but canceled the same. It seems the judgment also cancels a mortgage on certain property which was given to secure the note. The mortgage was but an incident of the debt, and, when it was canceled, that discharged the mortgage. Canceling the mortgage by the judgment did not in any way injure the appellant, as the court canceled the note and was authorized to do so by the pleadings and evidence.

The eleventh assignment of error is overruled. We think the court adopted the proper measure of damages. The evidence as to the value of the land supports the amount found by the court.

The judgment, we think, should be reformed so as to foreclose a lien against the land for the sum of $55 only, the amount paid by appellee on the taxes due against the land, and that there should be only a personal judgment for the balance of the amount found, by the court, to wit, for the sum of $1,330 against appellant. The judgment as reformed will be affirmed, with costs against appellee.


author: HALL, J.

text:
    RANDLEMAN et al. v. CARGILE et ux.
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 24, 1914.)
    1. Homestead (§ 162) — Abandonment.
    The abandonment of a homestead is a question of intention.
    [Ed. Note. — Eor other eases, see Homestead, Cent. Dig. §§ 315-319; Dec. Dig. § 162.]
    2. Homestead (§ 181½) — Estoppel to Claim.
    The question of estoppel to claim a homestead is one of fact which is ordinarily for the jury.
    [Ed. Note. — For other eases, see Homestead, Cent. Dig. § 401; Dec. Dig. § 181½.]
    3. Homestead (§ 163) — Abandonment.
    If a husband and wife remove from their homestead after the execution of a conveyance thereof by the husband alone, with the fixed intention not to again return to it as a home, they thereby abandoned it as a homestead, irrespective of whether they have since acquired another homestead.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 320-326; Dec. Dig. § 163.]
    Appeal from District Court, Dickens County; Jo. A. P. Dickson, Judge.
    Action by D. S. Cargile and wife against T. A. Randleman and another. From a judgment for plaintiffs, defendants appeal.
    Reversed and remanded.
    R. S. Holman, of Spur, and Dalton & Russell, of Plainview, for appellants. B. G. Wors-wick, of Dickens, and B. D. Glasgow, of Spur, for appellees.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HALL, J.

The appellees, D. S. Cargile and wife, filed this suit in the'district court of Dickens county on April 8, 1913, against T. A. Randleman and J. F. Vernon, alleging that on April 30, 1912, they were the owners of lot 9 in block 35, in the town of Spur, in Dickens county, and were on said date, and long prior thereto, occupying said premises as their family homestead. They alleged ejectment by appellant'on said last-named date, and that the rental value of said property was $250 per annum; that on or about April 30, 1912, D. S. Cargile, without the knowledge or consent of his wife, entered into an agreement with T. A. Randleman to exchange said property for 160 acres of land in New Mexico, belonging to the said Randleman; that the difference in the values of the two pieces of property was $300, for which difference the appellee Cargile executed his certain promissory note in the sum of $50, and in addition thereto was to deliver to appellant a certain vendor’s lien note for $250, secured by land in Stovall county, executed by one Durrett, payable to the order of said Cargile; that D. S. Cargile executed a deed, conveying the Spur property, which deed, together with the two notes above described, constituted the consideration for the purchase price of the 160 acres of land situated in New Mexico, claimed by the said Randleman; that on the last-mentioned date the two deeds, together with the notes, were delivered to the defendant J. F. Vernon, to be held by him pending the approval by the plaintiff D. S. Cargile of the said exchange of property; that both of said deeds, together with the two notes, were placed in the hands of the defendant J. F. Vernon, with the express and distinct understanding by the parties that the said Vernon should in no event turn over to the said Randleman the deed and notes until he (the said Vernon) should be advised by the said Cargile that the 160 acres of land in New Mexico was as the said Randleman had represented it to be. Plaintiff further alleged that, as an inducement to the plaintiff to enter into the arrangement for the exchange of property, the defendant Randleman represented to him that there was a government section adjacent to said 160-acre tract that was subject to lease or purchase from the United States, and that water could be easily piped from said 160 acres to the said section, and as a further inducement for said exchange the said Randleman represented to the said Cargile that the said 160 acres was not sandy but was tight, valley land and would not blow; that it was highly productive and was good farming land. It was further represented by said Randleman that said 160 acres were on a rural mail route. It is further alleged that plaintiff believed each of said representations to be true and relied and acted on the same; that they were material representations and induced plaintiff to enter into the arrangement for the exchange of property; that plaintiff would not have entered into said exchange but for said representations, and that each and ali of the representations were false, and known to be false by the said Randleman at the time they were made; that the 160 acres of land was located over 200 miles from where plaintiff lived, and he had no opportunity before the execution of the deed and notes to investigate for himself; that immediately after the execution of the deeds and notes, and after they were deposited with the defendant Vernon, plaintiff left the town of Spur for the purpose of investigating the character and situation of the 160 acres and found that the land was sandy, the soil had blown and was poor and unproductive, there was no government section adjoining it which could be leased or purchased, and that the rural route was- more than half a mile from the land; that the plaintiff immediately wired to the defendant J. F. Vernon not to deliver the deed and notes to Randleman, and at the same time wrote to the said Vernon the trade did not suit him, and instructed him not to turn over any of said notes or deed to the said Randleman; that, in violation of the instructions, defendant Vernon did deliver the deed and notes to Randleman; that the deed has been recorded in Dickens county and the notes have been collected by Randleman and the proceeds thereof appropriated to his own use; that the deed from Randleman to plaintiff is in the possession of said J. IP. Vernon; that on or about the 1st day of September, 1912, in consideration of the premises, plaintiff demanded of the said Randleman that said exchange of property be rescinded and that said two notes be returned to him, all of which the said Randleman refused to do, to plaintiff’s damage in the sum of $2,000; that on said last-named date plaintiff demanded of the defendant Vernon the return of the two notes to him hereinbefore described, which the said Vernon refused to do, to plaintiff’s damage in the sum of $300. There is a prayer for the cancellation of the deed and for writ of possession, and that the defendant Vernon be directed to turn over to Randleman the deed executed by Randleman to him and for judgment against the said Vernon for $300 and interest. The prayer is further for rents and damages to the Spur property, and for costs of suit.

The defendant Vernon answered by general and special exceptions, by general denial', and specially that the deed from plaintiff to defendant Randleman was placed in the defendant Vernon’s hands, together with the notes, with instructions that, when defendant Randleman procured certain papers necessary to complete his record of title to said land in New Mexico, and tendered them to the said Vernon, then the said Vernon was to turn over to the said Randleman the deed and notes, and said Randleman did procure and tender to the defendant all of said papers, in accordance with the instructions, whereupon the defendant Vernon was compelled under said instructions to deliver the deed and notes to the said Randleman; that one of said notes, to wit, the $50 note referred to in plaintiff’s original petition, was paid by the plaintiff long after said papers were turned over to the said Randleman, and that said payment was voluntarily made; that the possession of the said $250 note by the said Randleman was never ques--tioned by plaintiff, nor was his right to collect the same ever questioned by plaintiff, up to the time the note was collected, which was long after said papers were delivered by Vernon to Randleman, and long after the land had been inspected by plaintiff, and long after plaintiff had returned to Dickens county after inspecting the said land in New Mexico. The defendant Vernon, by cross-action, seeks to recover of Randleman and his sureties upon an idemnity bond, alleged to have been given Vernon to indemnify him “against all costs, charges, damages, and suits that might be incurred by the said Vernon by reason of the delivery of said papers.” The amount sought to be recovered on this bond is $100 attorneys’ fees and costs, to which he might be subjected in this suit.

The defendant Randleman answered the petition by general and special exceptions and general denial, and alleged that plaintiff and defendant each by said written contract of exchange agreed that, in the event either party failed from any cause to comply with the contract, such party failing should forfeit to the other party the sum of $50, and that each party had made his personal check payable to the other party, in the sum of $50, and placed said contract and checks in escrow with the Spur National Bank, with instructions to said bank that, in the event either party failed to comply with the terms of said contract, the said bank was to pay each of said checks to the other party. The answer further sets up the fact of the execution of the two deeds and notes and their deposit with J. F. Vernon; that plaintiff, at the time he made and executed his deed to defendant, stated that he did not claim the Spur property as his home, and that he owned other and different land which he claimed as his home, and that it was not necessary for his wife to execute said conveyance; that plaintiff immediately after the execution of said deeds, with his wife, moved all of their household and kitchen furniture and other personal effects from the property in Spur to the 160-acre home in the state of New Mexico; that he demanded of the defendant Randleman, before leaving for New Mexico, a certificate and order, showing that Randleman had sold his 160 acres in New Mexico to Cargile; that Cargile and his wife had abandoned their home, if such it was, in Spur, Tex., with the then intention of never returning and using it as a home, with the fixed intention of permanently abandoning the same; that, as part of the consideration for the Spur property, the defendant Randle-man had assumed the payment of two-thirds of a vendor’s lien note due on the Spur property, and on December 8, 1912, had paid the interest then due on the same; that long after they had returned from New Mexico, and nearly one year after they had abandoned their home in Spur, being fully ae--quainted with all the conditions regarding their trade, and without protest or objection, they voluntarily paid to the defendant the balance of the purchase price for the 160 acres in New Mexico, thereby ratifying and confirming the sale.

The defendant Randleman demurred generally to the cross-action of the defendant Vernon and specially excepted because the pleadings of the said Vernon showed that the defendants Randleman and his sureties bound themselves to Vernon in the sum of $1,000, conditioned that Randleman would well and sufficiently indemnify and keep said Vernon harmless from all costs, charges, and damages, etc., and because said cross-action failed to show that Randleman had failed to do so, and showed no equitable or legal reason for the employment of an attorney before said bond had been breached, and because the cross-action failed to show that any fixed amount had been ascertained or adjudged against Vernon as damages by reason of his having delivered the papers to Randleman, and further failed to show that defendant Randleman and his sureties on the indemnity bond had failed or refused to comply with the same, or that they were insolvent and unable to do so.

The court instructed the jury peremptorily to find for the plaintiffs as prayed for in. their petition and for the defendant Vernon, and judgment was rendered accordingly.

Under several assignments the propriety of the peremptory instruction is challenged. The statement of facts shows that testimony was introduced upon practically all of the issues raised by the pleadings of the parties, and we are at a loss to know upon what theory the court took the case away from the jury and instructed a verdict.

Abandonment of a homestead is a question of intention and, under the facts of this case, should have been submitted to the jury. Bowman v. Watson, 66 Tex. 295, 1 S. W. 273; Scheuber v. Ballow, 64 Tex. 166.

The question of estoppel to claim the homestead is also one of fact to be submitted to the jury. Equitable Mortgage Co. v. Norton, 71 Tex. 683, 10 S. W. 301; Haswell v. Eorbes, 8 Tex. Civ. App. 82, 27 S. W. 566; Moore v. Price, 46 Tex. Civ. App. 304, 103 S. W. 234. There is a further serious question raised by the pleadings and evidence, and that is as to the right of the plaintiffs to rescind on account of fraud and misrepresentation, and whether or not that right had been waived by the doing of certain things which might be taken as a confirmation of the contract. Burke-Mobray v. Ellis, 44 Tex. Civ. App. 21, 97 S. W. 321; Cooper v. Lee, 75 Tex. 114, 12 S. W. 483; Texas, etc., Ry. v. Jowers, 110 S. W. 946; Dawson v. Sparks, 1 Posey, Unrep. Cas. 735; Phillips v. Herndon, 78 Tex. 384, 14 S. W. 857, 22 Am. St. Rep. 59; Grabenheimer v. Blum, 63 Tex. 369; Carlock v. Sweeney, 82 S. W. 469.

If the plaintiffs removed from their Spur homestead after the execution of the deed by D. S. Cargile alone, with the fixed intention never again to return to and use it as a home, they must be held to have abandoned it, whether another home has since been acquired or not. This question of fact should have been submitted to the jury (Republic G. & S. Co. v. William Cameron, 143 S. W. 317 [writ of error denied by Supreme Court]), and the deed by the husband previously executed became effective (Marler v. Handy, 88 Tex. 421, 31 S. W. 636; Shields v. Aultman, 20 Tex. Civ. App. 345, 50 S. W. 222; Anderson v. Carter, 29 Tex. Civ. App. 240, 69 S. W. 80; C. & U. S. Mortgage Co. v. Thetford, 27 Tex. Civ. App. 152, 66 S. W. 104).

Because the court failed to submit the questions of fact to the jury and peremptorily instructed a verdict for appellees, the judgment is reversed, and the cause remanded.


author: FLY, C. J.

text:
    COLE v. STATE ex rel. COBOLINI.

    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 21, 1914.
    Rehearing Denied Feb. 18, 1914.)
    1. Quo Warranto (§ 60) — Nature of Remedy — Statutory Provisions.
    In quo warranto by the state under Rev. Civ. St. 1911, arts.- 6398-6404, the only judgment permitted is of ouster from office and the installation of the relator therein, while the contest of an election by an individual under articles 3046-3078 may result in the contestant obtaining a certificate of his election or in a declaration of the illegality of the election and the ordering of another.
    [Ed. Note. — For other cases, see Quo War-ranto, Cent. Dig. § 71; Dec. Dig. § 60.]
    2. Quo Warranto (§ 32) —Parties Plaintiff.
    The relator in quo warranto under Rev. Civ. St. 1911, arts. 6398-6404, is the real plaintiff, and the state is merely a nominal party.
    [Ed. Note. — For other cases, see Quo War-ranto, Cent. Dig. § 39; Dec. Dig. § 32.]
    3. Quo Warranto (§ 60) — Proceeding — Judgment.
    In quo warranto by the state on relation of an individual under Rev. Civ. St. 1911, art. 6402, defining the judgment to be rendered therein, the district court could oust defendant from the office of mayor without attempting to install the relator therein.
    [Ed. Note. — For other cases, see Quo War-ranto, Cent. Dig. § 71; Dec. Dig. § 60.]
    4. Abatement and Revival (§ 4) — Another Action Pending.
    The rule of the common law that a suit pending between two parties on a certain cause of action would be cause for abating a second suit between the same parties on the same cause of action in courts of the same jurisdiction is not the rule in Texas.
    [Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 25-28; Dec. Dig. § 4.]
    Appeal from District Court, Cameron County; W. B. Hopkins, Judge.
    Quo warranto by the State of Texas, on relation of Louis Cobolini, against A. B. Cole. From a judgment ousting defendant from
    office, he appeals.
    Affirmed.
    G. R. Scott and Boone & Pope, all of Corpus Christi, and R. B. Creager, J. A. Graham, and Renfro & Cole, all of Brownsville, for appellant. John I. Kleiber, of Brownsville, James R. Dougherty, of Beeville, and Harbert Davenport and Jas. B. Wells, both of Brownsville, for appellee.

      For other cases see‘same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

       Writ of error pending in Supreme Court.

   FLY, C. J.

This is a quo warranto suit instituted by the state of Texas, through the district attorney, upon the relation of Louis Cobolini, against appellant to oust him from the office of mayor of the city of Brownsville. By amendments the state of Texas set up the invalidity of the election and asked that it be declared null and void. Upon the trial of the cause the court held that the election was null and void, and set it aside.

The pleadings of appellee consist of an original petition and a number of trial amendments and supplemental petitions, and together with the pleadings of appellant cover 188 pages of the typewritten transcript. The parties should have been compelled to replead their case so as to have avoided the great volume of the pleadings, as well as the useless confusion naturally arising from such manner of pleading, and which entail an unnecessary amount of labor upon the appellate court. The agreement of the parties to waive all objections to the informalities in-the pleadings does not lessen the labor of this court, nor obviate the difficulties attending the investigation of the pleadings.

This is a ease instituted by the state of Texas, and the only authority given for such suit is found in title 114, Rev. Stats. 1911, in which the judgment that can be rendered is distinctly defined. In article 6402 of the title named, it is provided: “In case any person or corporation against whom any such proceeding is filed shall be adjudged guilty, as charged in the information, the court shall give judgment of ouster against such person or corporation from the office or franchise, and may fine such person or corporation for usurping, intruding into or unlawfully holding and executing such office or franchise, and shall also give judgment in favor of the relator for costs of the prosecution.” No other judgment in a quo war-ranto case is prescribed or authorized by the laws of this state. The sole authority to bring a suit conferred upon the state in connection with elections is to oust an intruder from an office unlawfully held by him and to fine him for his usurpation. Chapter 8, tit. 49, Revised Statutes of 1911, has reference to contested elections, and the authority to proceed thereunder is given to the citizen claiming an office, and no power is conferred upon the state in connection therewith. In that chapter is given the only authority in the law of Texas to a court to declare an election void and direct the proper officers to order another election. Article 3063. “A proceeding by information in the nature of quo warranto has for its primary •object contesting the correctness of the result ■of the election as declared. Its secondary purpose is to remove the intruder, and install the person rightfully entitled to the office.” State v. Thompson, 88 Tex. 228, 30 S. W. 1046. In the case of State v. De Gress, 53 Tex. 387, it is held: “Our opinion is that the statute in effect but provides for a civil suit in the name of the state to oust one who holds an office in violation of law, or a corporation exercising franchises which it has forfeited.” In that case the distinction is made between actions by quo warranto and proceedings in contested elections, and the same distinction is made in the 'case of McAllen v. Rhodes, 65 Tex. 348.

In the case Uf Williamson v. Lane, 52 Tex. 335, Ghief Justice Moore thus states the difference between a suit for an office and a contest of an election: ‘‘In one case, the immediate right of the plaintiff to the office and its fees and emoluments is the purpose and direct subject-matter of the suit; while, in the other, the right to the office may result as a consequence from the contest, but is not its primary object, and may not follow from it although the contestant may prove successful. The primary and direct purpose and effect of the contest is to pass upon and determine ⅜ ⅜ * whether the contestant was in fact justly entitled to the certificate of election. The power of the officer or tribunal before whom the contest is conducted is limited to the mere award of the certificate of election to the successful contestant, or of ordering another election.” In other words, a contest of an election by an individual may result in his obtaining a certificate of his election or in a declaration of the illegality of the election and the ordering of another, while in a case by quo warranto the only judgment permitted is one of ouster from the office and the installation of the relator therein. The proceeding in quo war-ranto is governed in this respect by the statute on that subject, and courts have no power thereunder not conferred by the statute. Williams v. State, 69 Tex. 368, 6 S. W. 845. “The two remedies are distinct, the one belonging to the elector in his individual capacity, as a power granted, and the other to the people, in the right of their sovereignty.” McCrary Elections, § 395.

In the original petition filed by the district attorney, and verified by the affidavit of the relator, the prayer was that appellant be ousted from the office and relator declared entitled to the same, and the court granted leave to file the same, stating in his order that the petition was to the effect that appellant had usurped the office of mayor. That petition and order were in strict compliance with the statute. The first amendment, which is styled a trial amendment, although filed two months before the trial, is not in accord with the original petition, nor is the second trial amendment. After the trial had been in progress for over two. months, a third trial amendment was filed, in which it was asked that relator be declared duly elected, “or, if this cannot be done, then that said election be declared null and void.” The district attorney and relator seem to have dissolved connection with each other at this stage of the proceedings, and the latter did not join in asking for an order nullifying the election, an object totally foreign to the design of the suit allowed by the court to be filed.

The Supreme Court, while, in the instances hereinbefore cited, seems to sustain the position that a quo warranto proceeding cannot do more than oust the usurper and install the relator, in other instances it has treated a quo warranto just as it would a contested election case. There is much confusion in such cases in Texas, even to the extent that at times the exclusive jurisdiction of Courts of Civil Appeals given by statute is recognized (State v. Thompson, 8S Tex. 228, 30 S. W. 1046), and then again the Supreme Court, by refusing or granting writs of error, assumes jurisdiction over county and city elections (Griffin v. State, 147 S. W. 328; Pease v. State, 155 S. W. 657). The Griffin-State Case was a quo warranto proceeding in regard to the office of commissioner of the city of Corpus Christi. A writ of error was applied for and refused. The Pease-State Case was a proceeding by quo warranto to oust Pease from the office of mayor of Corpus Christi. This court sustained the trial court in ousting Pease, and the Supreme Court granted a writ of error. Article 1591, Rev. Stats., gives Courts of Civil Appeals final jurisdiction in all contested election cases of every character, except for state officers, when the validity of a statute is not attacked. In the case of State v. Thompson, 88 Tex. 228, 30 S. W. 1046, a proceeding in the nature of quo warranto to oust a man from the office of county clerk, Judge Brown said: “The validity of no statute is attacked in this case; and if the office in question is not a state office, and this is any character of case for contesting an election, the jurisdiction of the Court of Civil Appeals is final, its judgment is conclusive, and this court has no jurisdiction to grant a writ of error from that judgment.” The election eases in which writs of error were either refused or granted were passed on before the enactment of the law of 1913 which, although ostensibly passed to relieve the Supreme Court, by decreasing its jurisdiction, is a dragnet that seems to give that court jurisdiction of all cases decided by the Courts of Civil Appeals under the guise that they have “erroneously declared the substantive law of the case,” whatever that may mean.

Not only has there been confusion as to the jurisdiction of the Supreme Court in election cases, but also in regard to the office of a quo warranto, and the position occupied by the state in such proceedings. In the case last cited, it was held that a proceeding in the nature of quo warranto was a proceeding to contest an election, although the power under such a proceeding is limited to first determining “the result of the election as declared,” and then “to remove the intruder, and to install the person rightfully entitled to the office.” The power to declare an election void and set it aside is not recognized therein.

In the case of McAllen v. Rhodes, 65 Tex. 348, it was held that: “The relator in quo warranto proceedings is the real plaintiff, and the position of the state is that of a nominal party. Practically, the state’s attorneys take no part in the proceeding, and the plaintiff’s side of the case is represented by the relator’s counsel alone.” That is our conception of the law, and yet in the case appealed to this court the attorney for the nominal party took control and placed himself in direct antagonism to the relator.

In the cases of Hunnicutt v. State, 75 Tex. 233, 12 S. W. 106, and Mathews v. State, 82 Tex. 577, 18 S. W. 711, the MeAllen-Rhodes Case seems to have been ignored, although cited, and it was held that the state’s attorney has exclusive control of quo warranto proceedings.

Although the district court may not have had the authority to set aside the election, it had the statutory power to oust the intruder from the office of mayor, and this the judgment did, without attempting to install the relator therein. The reasons given were that neither of the parties was elected, but those reasons, whether sound or not, should not affect the ouster of the usurper of the office of mayor. Upon a careful reconsideration of the evidence, we conclude that the court was justified in finding that the facts showed that appellant was not elected to the office of mayor and was not entitled to hold it.

The evidence indicates that a number of officers were voted for at the same time that the election for mayor was held, and, if the judgment declaring the election void as to the mayor should be upheld, it would have the effect of ousting all of the officers from their positions, without giving them a hearing, and, not providing for another election, the city government would be destroyed, unless the officers had been re-elected and could hold over until their successors were elected and qualified. The office of mayor has been properly vacated by the court, and, although a new election was not provided, it is the duty of the city council to call an election for mayor at once. It must be presumed that the council will perform its duty; but, if not, the citizenship of Brownsville can compel a compliance with that duty.

The first and second assignments present error in the court refusing to abate this suit, the abatement being sought on the ground that another suit was pending when this was instituted, it being a suit in which the same issues were involved and between the same parties. The pleas in abatement were properly overruled. The rule of the common law that a suit pending between two parties on a certain cause of action would be cause for abating a second suit between the same parties on the same cause of action in courts of the same jurisdiction is not the rule in Texas. Garza v. Piano Co., 126 S. W. 906; Liberty Milling Co. v. Continental Gin Co., 132 S. W. 856. The plaintiff in the suit could elect which of the two suits he would try. Pullman Co. v. Hoyle, 52 Tex. Civ. App. 534, 115 S. W. 318. The trial of the second suit, if the two suits were between the same parties on the same cause of action, would amount to an election to abandon the first suit. In the first suit, however, Cobolini and Cole were the parties, and in the latter the state of Texas, upon the relation of Cobolini, brought the suit.

The third, fourth, fifth, sixth, and seventh assignments of error are overruled. The facts were sufficiently alleged in the petition in regard to the ballots, voting booths, and the elections in the first, second, and third wards.

We have never known of a more flagrant disregard of the rights of electors than that which characterized the election in question. The secrecy of the ballot was destroyed, and the adherent of the different factions was forced to proclaim the ticket he would vote by wearing the colors of his clan, and then they were let into the voting booths, one at a time, first from one company and then from another. Large numbers were disfranchised by not being provided with sufficient voting boxes, or by having officers of election who time and again halted the voting to engage in unseemly wrangling and disputes. It may have been a custom to hold elections as this was held, but the court properly decided that such custom could not be entertained to justify acts that made the rights of voters a plaything for election officers, and rendered the election a solemn farce. If such mode of election is the customary one in the city of Brownsville, the day is ripe for a change. Pactions should not be allowed to tag their followers with red or blue ribbons, but the voters should come to the polls when they so desire and east their ballots without proclaiming to the world for whom they intend to vote. There can be nothing akin to purity and fairness of election under what appellant sought to show was a system approved by time and custom in Brownsville.

Our former opinion is withdrawn, our former judgment set aside, and the judgment of ouster of appellant is affirmed.


author: RAINEY, C. J.

text:
    SUMNER v. SWINK.
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 24, 1914.
    Rehearing Denied Feb. 14, 1914.)
    1. Principal and Surety (§ 101) — Claim Bond — Release ox Surety — Alteration ox Instrument.
    Where a constable, after receiving a claim bond, erased the name of one of the sureties thereon, and substituted another, such act was a mere spoliation by a stranger to the bond, and did not relieve the surety whose name was erased.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 169-180; Dec. Dig. § 101.]
    2. Execution (§ 185) — Claim Bond —Acceptance by OXXI CEE.
    Where a constable received a claim bond without objection, his act amounted to an approval of the sureties therein, and he had no authority to subsequently erase the name of one of such sureties, and substitute another.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 552-556, 558; Dec. Dig. § 185.]

      Appeal from Hill County Court; J. D. Stephenson, Judge.
    Action by A. D. Swink against J. F. Sumner. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    F. B. McKee, of Hillsboro, for appellant. N. J. Smith, of Hillsboro, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   RAINEY, C. J.

A. D. Swink procured a judgment against Jim Vessells in the justice court, precinct No. 1, Hill county, for $115.60, interest and costs, by virtue of which an execution was issued and levied on property, which property was claimed by Ed Vessells, who filed claimant’s oath and bond under the statutes, with J. D. Pounders and J. F. Sumner as sureties on the bond which was delivered to the constable, one McDaniel, who, after receiving the bond, and without the knowledge of Sumner or Swink, erased the name of Pounders from the bond, and substituted the name of W. L. Fair, who consented to such alteration. The constable then approved the bond, and filed it with the justice of the peace. Upon the trial of the rights of property, Sumner resisted liability on the ground of change of the bond, as above stated, and which change in the bond, as above stated, was established by the evidence. The justice of the peace rendered judgment against Ed Vessells and the sureties, Sumner and Fair, from which Sumner appealed to the county court. A trial in the county court resulted in a judgment against the same parties for $160 and costs, and Sumner appeals to this court.

One proposition only is presented by the appellant, Sumner, and that is, that the bond having been altered by the constable in the manner stated, without the knowledge or consent of Sumner, relieves him of all liability thereon. It is held that, where the parties to an instrument alter it in any particular without the consent of another party thereto, as to the party not consenting such instrument becomes inoperative, and this is the rule as to the erasure and substituting of a surety. When, however, the alteration is made by a stranger to the instrument, or the name of a surety is changed, as in this instance, it will not relieve the surety whose name is erased, nor affect the validity of the instrument, and a recovery can be had upon the instrument as originally made. Such an alteration is regarded as a spoliation by a stranger.

The evidence in this case shows the bond had been delivered to the constable. When he made the alteration it was in his custody, and was made without the knowledge of Sumner or Swink. Pie had no authority-to erase the name of Pounders, nor make any change. If he did not wish to approve the - bond with Pounders as surety, he should have declined to' receive it. His receiving the bond without objection was, in effect, an approval, and his subsequent act of erasing Pounders’ name without notice to the parties was unauthorized, and his act was that of a stranger, and the liability of Sumner was not affected thereby. State v. Berg, 50 Ind. 496; Robinson v. State, 60 Ind. 26; Peveler v. Peveler, 54 Tex. 53; Harrison v. Turbeville, 2 Humph. (Tenn.) 242; 2 Cyc. 155.

“It is now the law that an instrument is avoided by a material alteration made by the person claiming under it. But,, where the change is made by a stranger, without the consent of the person claiming under the instrument, it is usually designated a spoliation or mutilation and the instrument may still be enforced, so long as its original character is susceptible of proof.” Bingham v. Shadle, 45 Neb. 82, 63 N. W. 143.

Under the circumstances the trial court did not err in holding Sumner liable, and the. judgment is affirmed.


text:
    JOYCE v. HAGELSTEIN et al.
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 14, 1914.
    Rehearing Denied Feb. 18, 1914.)
    1. Courts (§ 121) — Jurisdiction — Amount oit Claim — Cross-Action.
    Though the amount of plaintiff’s claim, $500, is insufficient to give the district court jurisdiction of the action, defendant’s cross-action for a greater amount gave it jurisdiction.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413-426, 428, 450, 45¾ 458, 459, 466; Dec. Dig. § 121.]
    2. Vendor and Purchaser (§ 336) — Defects in Title — Waiver.
    Plaintiff waived right to recover, because of any defect in the title of the land, the earnest money paid by him on a contract for purchase of land; he, with knowledge of the state of the title, claiming his option, and endeavoring to sell it, and not objecting to the title when refusing to consummate the contract.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 984; Dec. Dig. § 336.]
    3. Vendor and Purchaser (§ 336 — Assignment oe Contract by Vendor — Waiver oe Objections.
    Any right of one having a contract for purchase of land to recover the earnest money paid by him thereon, because of the vendor’s selling the contract to others, was waived; he knowing of and acquiescing in it.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 984; Dec. Dig. § 336.]
    4. Trusts (§ 191) — Trustees with Power oe Sale — Conveyances.
    A will devising half the property to testator’s children and half to his wife, making her an independent executrix, and providing that all transfers made by her to the children or any other person by way of bargain and sale shall be good and effectual, without the orders or intervention of any court or authority, constitutes her a trustee with power of sale of any or all the property, so that a conveyance thereof by her alone gives good title.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. § 243; Dec. Dig. § 191.]
    5. Vendor and Purchaser (§ 335) — Breach by Purchaser — Measure oe Damages.
    The earnest money which, by a contract of sale of land, the purchaser agrees to forfeit if he does not comply with the contract is the measure of damages for his failure to comply ■with it.
    [Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 981-983; Dec. Dig. § 335.]
    Error from District Court, Bexar County; J. L. Camp, Judge.
    Action by A. D. Joyce against George Ha-gelstein and others, There was a judgment that neither party recover anything,' and plaintiff brings error, and defendants make cross-assignments of error.
    Affirmed.
    Frank H. Booth, of San (Antonio, for plaintiff in error. Teagarden & Teagarden, of San Antonio, Penix & Eberhart, of Mineral Wells, and Templeton, Brooks, ¡Napier & Ogden, of San Antonio, for defendants in error.

      Ror other, cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      Fsr other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   FLY, C. J.

Plaintiff in error, hereinafter designated as plaintiff, sued George Hagel-stein, Cicero Smith, Mollie Wylie, and Mamie B. Hagelstein, individually, and as independent executrix of the estate of Chris Hagel-stein, deceased, the defendants in error, herein designated defendants, to recover §500 and interest, deposited with them as earnest money on' certain land contracted for by plaintiff and one McDonnell, who sold his interest to plaintiff. It was alleged that a contract was executed wherein it was stipulated that defendants would deliver to .plaintiff “a good, sufficient, and clear title to said property,” but failed to make such title, and refused to return the §500 deposited as earnest money. It was further alleged that, after the contract was made with George Hagelstein, Chris Hagelstein, and Cicero Smith, they transferred an interest in it to Mollie Wylie and R. K. Wylie, and that they obligated themselves to pay the §500 to plaintiff. Mollie Wylie alleged that B.. K. Wylie, her husband, had died, and she had since married Anson Hazlewood, and they, together with Cicero Smith, filed a cross-action against plaintiff for the sum of §8,000 for a breach of the contract, and against the Ha-gelsteins for §1,325. The cause was tried without a jury, and judgment rendered that nothing be recovered by appellant in his suit, or by the defendants in their cross-action.

The district court did not have jurisdiction of the suit brought by plaintiff. Erwin v. Blanks, 60 Tex. 583; Betterton v. Echols, 85 Tex. 212, 20 S. W. 63; Type Foundry v. Taylor, 6 Tex. Civ. App. 732, 26 S. W. 226; Lazarus v. Swafford, 15 Tex. Civ. App. 367, 39 S. W. 389;. Martin v. Jeffries, 153 S. W. 658. But, when defendants sought by their cross-action to recover the sums therein set forth, they conferred jurisdiction upon the court, and the matter is only mentioned because the question is presented in the briefs of defendants. Hardeman v. Morgan, 48 Tex. 103; Phelps v. Parker, 30 S. W. 365.

We adopt the findings of the trial judge as our conclusions of fact. Plaintiff. agreed to forfeit the §500 earnest money if he did not comply with his contract, and he willfully breached it. No objection was ever made to the title until after this suit was instituted, and plaintiff, after being fully acquainted with the title to the land, ratified the contract, and found no defects in the title. The evidence clearly indicates that the question of title did not enter into his refusal to consummate the contract, but that it was a matter brought forth after the suit was instituted to justify his breach of the contract The contract was made in 1907, and as late as March 24, 1909, plaintiff claimed an option on the land, although months before that he had placed his claim in the hands of attorneys for collection. It is significant that he claimed his option when he thought⅜ he had a purchaser for the land out of whom he expected to realize a large profit. The title was not troubling him at that time. A deed to the land and full abstract of title were sent to a bank in Kansas City, where plaintiff and McDonnell lived, and they were notified by the bank that the papers were there, but refused to call for them. The contract was deliberately breached without any just cause therefor. Plaintiff must have known in 1909 that the alleged defect was in the title, because that is the only ground upon which he could base his right to recover the .earnest money, and he had in 1908 placed claim to the earnest money in the hands of an attorney. Knowing the state of the title, he not only claimed his option on the land, but endeavored to sell it to one of his Nebraska friends.

The sale of the contract, by the Hagel-steins to Smith and others was made known to and acquiesced in by plaintiff, and he is not in a position to object to such transfer at this time. Plaintiff did not base his right of action on the transfer of the contract, but on the defect in the title alone. He recognized the validity of the transfer, and’ sought to recover from the transferees. He has waived the right to complain of the transfer.

One of the clauses of the will of Samuel A. Maverick, which forms a link in the chain of the title to the land on which plaintiff held the option, devised his estate to-his wife, Mary, and his children, one half to the wife, and the other to the children “in fee simple.” In a succeeding clause the wife was made independent executrix, and it was provided that “all transfers made by my said wife to the children or to any other person-by way of bargain and sale, shall be good and effectual, without the orders of intervention of any court or authority.” One-half of the property was devised to the children; but the wife was constituted a trustee with power of sale of any or all of the property, and there is no repugnancy in the two clauses of the will. Dulin v. Moore, 96 Tex. 135, 70 S. W. 742; Wiess v. Goodhue, 98 Tex. 274, 83 S. W. 178. We are of opinion, therefore, that Mary Maverick was authorized to convey the property, and that there was no defect in the title of the land sold to plaintiff. Defendants offered plaintiff a “good, sufficient, and clear title” to the property.

There is no merit in the cross-assignments of error. The earnest money was evidently the measure of damages for a breach of the contract contemplated by the parties.

The judgment is affirmed.