author: RASBURY, J.

text:
    TEXAS TRACTION CO. v. SCOGGINS.
    (No. 7253.)

    (Court of Civil Appeals of Texas. Dallas.
    April 3, 1915.
    Rehearing Denied May 1, 1915.)
    1. Municipal Corporations &wkey;>114 — Ordinance — Publication—Ordinance Regulating Speed of Street Cars — Statute.
    Denison City Charter (10 Laws Texas, 258) § 170, provided that an ordinance of a penal nature should be published at least 10 days in some newspaper in the city. An ordinance of the city provided that no street car should be drawn at a greater speed than six miles an hour, and that any person who should fail to comply should be deemed guilty of a misdemeanor, and, upon conviction, be fined. The continued existence of such ordinance became material in an action against a street railroad for personal injuries, and the original draft of another ordinance was found, which provided that no ear should he drawn at a greater speed than 12 miles an hour. Meld, that under the city charter the publication of such amended ordinance was a condition precedent to its validity, and must be proved by the railroad in order to avail itself of the amendment.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 263-265; Dec. Dig. &wkey;114J
    2. Municipal Corporations <§=M22 — Ordinance — Publication — Ordinance Regulating Speed of Steeet Cars — Sueficiency of Evidence.
    In an action against a street railroad for personal injuries, evidence held insufficient to justify finding by the jury that an amendment to a penal ordinance, increasing the permissible speed of street cars, had been published as required by law.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 281-289; Dec. Dig. c®=»122.]
    3. Municipal Corporations &wkey;>114 —Ordinance—Publication—Amendment.
    Where, by a city charter, publication of a penal ordinance was a condition precedent to its taking effect, an amendment to such an ordinance, regulating the speed of street cars, though in itself prescribing no penalty, was required to be published, since the amendment, when incorporated in the original ordinance, was of a penal character.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 263-265; Dec. Dig. &wkey;114.]
    4. Municipal Corporations <&wkey;110 — Ordinances — Enactment—Publication.
    Under Rev. St. 1911, art. 5502, prescribing general rules of statutory construction, where there were certain provisions in a city charter that, when ordinances were passed with certain formalities, they should thereupon become laws, and also a provision requiring all penal ordinances to be published as a condition precedent to their taking effect, the true meaning of the charter was that, when certain formalities had been observed in enacting penal ordinances, there should be the further requisite to their validity that they be published.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 239-244; Dec. Dig. <@=^110.]
    5. Street Railroads <&wkey;94 — Speed Ordinance — Violation as Negligence.
    The violation by a motorman of a city ordinance, prescribing a penalty for the running of cars above a certain speed, was negligence per se subject to the limitation that, when the motorman discovered plaintiff’s danger, he was only bound to use such care to stop his car as an ordinarily prudent person would have exercised under the same or similar circumstances to stop his ear.
    [Ed. Note. — For other cases, see Street Railroads, Cent. Dig. § 201; Dec. Dig. <&wkey;>94.]
    6. Evidence <&wkey;192 — Injury to Person — Exhibition oe Injury.
    In an action by a child of two years for personal injuries, when run over by defendant street railroad’s car, necessitating the amputation of her leg below the knee, the exhibition of the injury to the jury was proper, as tending to show the extent of the injuries.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 677; Dec. Dig. &wkey;192.]
    7. Damages <@=»132 — Verdict — Excessive Damages — Injury to Person.
    In an action against a street railroad by a girl two years old, for injuries necessitating the amputation of her leg below the knee, where the evidence supported a finding of defendant’s negligence, the bare award of $10,000 damages did not afford occasion for the exercise by the appellate court of its limited right to reverse on account of an excessive verdict.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. &wkey;132.]
    Appeal from District Court, Grayson County; W. M. Peck, Judge.
    Action by Dorothy Scoggins against the Texas Traction Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Templeton, Beall & Williams, of Dallas, and Head, Dillard, Smith, Maxey & Head, of Sherman, for appellant. Wolfe & Wood, of Sherman, and Jas. P. Haven, of Dallas, for appellee.

       writ of error pending in Supreme Court.

   RASBURY, J.

Appellee, an infant, by her father, as next friend, sued appellant for damages for personal injuries alleged to have been inflicted by appellant in negligently propelling one of its cars upon appellee while she was crossing its tracks in Denison, Tex., so injuring one of her legs as to necessitate amputation. The negligence alleged was in propelling the car which injured appellee at an excessive rate of speed and in failing to exercise care in looking out for persons about to cross its track, especially children, and in failing to exercise ordinary care to avoid the injury after discovering ap-pellee’s peril, all in violation of the provisions of an ordinance regulating the operation and speed of street railways in Denison, Tex.

Appellant conceded the injury to appellee and her youth and lack of discretion, but denied that the injuries to appellee resulted from its negligence, but from the negligence of appellee’s mother, by whom she was) accompanied at the time, and further that, after discovering appellee’s peril, it did use all meansi to avoid the injury. Further appellant urged that the ordinance it was alleged to have violated did not apply to electric cars, and was as well unreasonable, impracticable, and void.

Appellee’s father for the same cause also sued appellant for damages accruing to him individually, and by agreement the cases were consolidated. There was jury trial; two verdicts being returned, one for appellee for $10,000 and one against her father. Judgments followed the verdicts. Within the time provided by law, appellant sought a new trial in the appellee’s case, which was overruled. Nine days after said motion was overruled, appellant filed in court a motion to set aside the order overruling its motion for new trial on the ground that there was no ordinance of the city of Denison limiting the speed of cars to six miles an hour, which the trial court had assumed there was, and upon which assumption at trial instructed the jury that, if appellant was exceeding such speed at the time appellee was injured, it would in law constitute negligence. This motion was also overruled. From tlie action of tlie court in tlie particulars stated, appellant lias appealed. No appeal was taken from the verdict and judgment in the case of appellee’s father.

A statement of the essential facts pertaining to the merits of the case is not really of prime importance; but, for the sake of orderliness, we state the essential facts relating to the manner in which appellee received her injuries, which are that, just prior to the time of the injury, Mrs. Scoggins and her two children, Orville and appellee, respectively five and two years of age, were upofi the sidewalk on the south side of Hull street, in Denison, Tex., moving east towards Lamar avenue, a north and south street, intending to cross' Hull street at its intersection with Lamar. When Mrs. Scoggins reached the west side of Lamar avenue, her children had crossed Lamar avenue and were on the east side thereof, and, as we gather from the evidence, turned north and continued their progress across Lamar avenue, and, while so proceeding, the appellee was struck by one of appellant’s cars going east just as she reached the north rail of the track. The car ran over and crushed the child’s leg to such extent as to thereafter require imputation below the knee. The car was propelled by electricity, equipped with air brakes in working order, and was in charge of a conductor and motorman and approached the point of injury from the west, and was not seen by Mrs. Scoggins until it passed her. The conductor was in the vestibule of the car with the motorman and saw appellee from the time she started across Hull street, until she was struck by the car on the north track. The car was going 6 or 8 miles an hour at a point 50 feet distant from the place of injury and about 4 miles an hour when it struck appellee. Hull street, upon which the line of railway is located, is 70 feet wide and Lamar avenue 80 feet wide. At the time of the injury to appellee, there was in force in the city of Denison an ordinance passed in pursuance of authority granted the city by special charter enacted by the Twenty-Second Legislature (10 Laws Texas, 258), and retained in force and effect by subsequent special charter granted by the Thirtieth Legislature (13 Laws Texas, 332), regulating the speed of street railway cars. The ordinance, omitting unessential portions, is as follows:

“Art. 392. That the following rules and regulations concerning the running of street railway cars shall be binding upon every person, firm, company or corporation owning or operating a street railway in this city: 2. No car shall be drawn at a greater speed than six miles an hour. 6. The driver or conductor of each car shall keep a vigilant watch for all vehicles, and persons on foot, especially children, either on the track or moving towards it, .and upon the first appearance of danger to such persons or vehicles, the car shall be stopped in the shortest time and space possible.
“Art. 393. Any person or persons who shall fail to comply with or who shall violate or cause to be violated any of the provisions of the preceding sections shall be deemed guilty of a misdemeanor, and, upon conviction, shall be fined not less than two dollars, nor more than one hundred dollars.”

This ordinance was pleaded by appellee, and its violation with reference to speed, keeping a lookout, and in failing to exercise care when appellee was discovered upon its track charged against appellant. When the ordinance was offered in evidence, it was objected to on the ground that it .was irrelevant, immaterial, and not shown to be the last ordinance with reference to the operation of cars. It appears from the record that appellant, prior to trial, through various sources, assisted by the then city secretary of Denison, sought diligently to ascertain whether the ordinance had been repealed or amended, but was unable to secure any information of that fact, either from printed ordinances of the city or from the record books of the city, wherein was recorded all ordinances, and the city secretary gave it as his opinion to both counsel for appellant and appellee that the ordinance pleaded was the last ordinance. After trial, appellant, through its agents, instituted another search for some later ordinance regulating the speed of street cars, in which it was assisted by the city attorney and his assistant, which search included a re-examination of ordinance books, etc., -and again such amendment could not be found. Later, and subsequent to the overruling of appellant’s motion for new trial, the city secretary, while examining a number of old bonds and ordinances in search of a particular bond, found the following original draft amending the ordinance quoted above:

“An ordinance amending section 2, article 392 of chapter 8, of title 16, of the Revised Ordinances of the city of Denison, Texas. -
“Be it ordained by the city council of the city of Denison:
“Section 1. That section two (2) of article 392 of chapter 8, of title 16, of the Revised Ordinances of the city of Denison, be and the same is hereby amended so as to hereafter read as follows: ‘2. No car shall be drawn at a greater speed than twelve (12) miles an hour.’
“Sec. 2. At least two cars running separate, shall be run on West Denison line at the same time and on West Denison line, cars sjiall run each way every fifteen (15) minutes.
“Sec. 3. This ordinance to take effect upon and after the date of its passage and approval.”

While we have not copied it, it appears on the face of the amendment that the amendment was enacted in the manner and form provided by the city charter.

When the amendment was found, appellant promptly filed a motion to set aside the order of court overruling its original motion for a new trial, and in the said motion sought another trial upon the same grounds alleged in its original motion. In addition to what we have already related concerning the diligence of all parties to discover the amendment, it was shown upon further investigation that the amendment was not recorded in the book designated for criminal ordinances, but instead was recorded in a book designated for the recording of civil ordinances. Based upon numerous affidavits of witnesses familiar with the procedure in such cases, it was shown that it was practically the unvarying custom of the city authorities, in reference to penal ordinances, to paste by the side of the ordinance in the book containing same the printed copy of the ordinance clipped from the newspaper publishing same. No such clipping was pasted by the side of the amended ordinance in question. Nor was the ordinance recorded in the penal ordinance book among those required by the charter to be published. On the contrary, it was recorded among the civil ordinances which are not required to be published. Nor was there anywhere in the records of the city of Denison anything evidencing such publication, nor were any extraneous facts shown indicating or tending to show that either the city or appellant had been acting upon the amended ordinance.

It is urged that the court erred in overruling appellant’s motion to set aside the order overruling the original motion for a new trial; several reasons being assigned in support of the contention, the controlling one being the action of the district judge in instructing the jury that appellant was guilty of negligence, as matter of law, if the car which injured appellee was exceeding the limit of speed prescribed by said original ordinance at the time of the injury, for the reason that, by the provisions of the amended ordinance, it was lawful for appellant to propel its cars at a speed of 12 miles an hour. Conceding the soundness of the legal proposition on the facts related, appellee challenges its application here on the ground that the amended ordinance was not a valid and subsisting one, because, as shown by the evidence, it was never published as required by the charter of the city of Denison in force at the time of its enactment, and hence not the law of the case. The charter of the city of Denison, in force at the time the amended ordinance was enacted, provided that:

“All ordinances of a penal nature shall be published at least ten days in some newspaper in the city of Denison.” 10 Laws Texas, 258, § 170.

The first inquiry in view of this provision of the charter is: Is the amended ordinance a penal one? And that it is we conceive to be beyond intelligent controversy, since all ordinances, like the statutes of the state or nation, are penal when they prohibit an act and impose a penalty for the commission of it. By the provisions of the ordinance under discussion, running street cars at a speed in excess of 12 miles an hour was a misdemeanor, punishable, on conviction, by fine of not less than $2 nor more than $100. Being then a penal ordinance and one required by the Legislature in granting the charter to the city of Denison to be published, the weight of authority is that the validity of same is dependent on at least a substantial observance of such requirement. By one authority it is said that:

“An ordinance, being a law, must be published in some way in order to give notice to those affected thereby of its existence. It is generally required by law that the ordinance shall be published, and the statutory or charter regulations on this point should be closely followed in order to .avoid any question as to the validity of the ordinance.” 1 Mod. Law Mun. Cor. § 571, p. 482.

The same author quotes approvingly from Pitts v. District of Opelika, 79 Ala. 527, the expression that:

“A reasonable opportunity must be given to the people within the corporate limits to be informed as to the ordinances they are commanded to obey, before they can be punished for their violation.”

And he concludes his own views by the further statement that:

“When the charter or general law requires publication, it must be made according to the requirement, else the ordinance will be void and no penalty can be enforced under it.”

Another authority says:

“It is a just and salutary principle which requires the legislative action of a municipal body to be promulgated or published in some manner before it can become effective.”

Such publication “may be required by charter or statutory provisions and to be made by some designated officer charged with this particular duty, and a failure to exercise the authority in the manner thus prescribed is fatal.” 2 Abbott, Mun. Corp. § 528, p. 1331.

Another respected authority, after reciting that much confusion and discord has arisen in American courts on the question as the result of hesitating between the common-law rule that publication is not necessary to the validity of municipal ordinances and the intuitive and reasimable aversion of a free people to considering as law anything not generally known or officially formulated and promulgated, states the rule to be that:

“When the Legislature has prescribed the nature and mode of publication, none other is sufficient to give validity to the ordinance.” 28 Cyc. 360, 361.

While we have been unable to find a fact case by our own courts, yet it has been said, concerning the enactment of ordinances by municipalities fixing charges for the cost of improvements against the property of citizens, that:

“Each act required to be done is essential to the exercise of the jurisdiction, and each must be rigidly performed. The courts cannot say that the omission of some requirement is unimportant,' or that an act different from that directed is substantially as good. The effect of the proceeding being to charge the property of the citizen with a burden for the public benefit, the requirements of the law as to the exercise of the power should be deemed mandatory.” - Flewellin v. Proetzel, 80 Tex. 191, 15 S. W. 1043.

To the same effect by analogy is Am. Cons. Co. v. Seelig, 104 Tex. 16, 133 S. W. 429; Southwestern Tel. & Tel. Co. v. City of Dallas, 104 Tex. 114, 134 S. W. 321.

If the directions of the Legislature in reference to the enactment of ordinances levying a tax against the property of citizens are to be rigidly observed, there is as much or more reason for the application of a similar rule when life or liberty is involved. Hence we conclude that publication of the ordinance, as amended, was necessary to its force and validity, under the provisions of the charter of the city of Denison. That it was not published we think quite certain, in view of the facts stated in this opinion. Those facts not only fail to show that the ordinance, as amended, was published, but nearly conclusively show that it was not. Certainly the facts recited would not support a finding by the jury that the ordinance was published. Such being the condition of the evidence, there was no error on the part of the district judge in refusing to set aside the order overruling the motion for new trial, and from which it results that we are without authority to disturb his action in that respect.

But it is urged incidentally to the main question that, even though it be conceded that it was necessary to publish the original ordinance, it Was not necessary to publish the amendment thereto, because such amendment declared no penalty. We believe the contention unsound. Obviously the amendment was not and did not purport to be a complete ordinance. On the contrary, it was and purported to be an amendment of the original ordinance. When legally adopted, the amendment and the original ordinances with the change would have constituted the whole law on the subject. The penalty being expressly retained by the provisions of the amendment, it was, of course, a penal ordinance, the validity of which depended upon its publication as directed by the Legislature.

It further urged, in effect, that the provision of the charter with reference to publication is merely directory, since it nowhere appears in the charter that publication is made a condition precedent to the taking effect of the ordinance, and because it is provided in the charter that “all ordinances shall take effect from passage, unless otherwise therein expressed,” and because it is further provided therein, in effect, that all ordinances, when enrolled, compared, and formally indorsed as directed, shall become law, unless the mayor shall veto same within the time allowed, for that purpose, provided it may be passed over the mayor’s veto, etc. 10 Laws Texas, 258, §§ 171, 174. These provisions do appear in the charter. In short, there are provisions in 'the charter reciting that, when ordinances are passed with certain formalities, they shall thereupon become laws. There is also the other provision in the charter requiring all penal ordinances to he published at least ten days in some newspaper. Keeping in view the rule of construction prescribed by article 5502, R. S. 1911, we think it clear that it was the intention of the Legislature that all penal ordinances enacted by the city of Denison should be published in order that the citizens might have notice thereof. The declaration in the charter that, when certain formalities had been observed in the enactment of ordinances, same should thereupon become laws, is but declaratory of the successive steps necessary to be taken in order to enact valid laws under the charter rather than that other provisions in the charter in reference to promulgation or publication of penal ordinances is not also to be observed. Any other conclusion would be to construe as meaningless the mandatory provision to publish and to ignore as well the plain intention of the Legislature. The appropriate time to publish is truly when the law has been matured in the manner and form prescribed by the statute for the enactment of lawful ordinances, and, until so enacted, their publication -would be a use- , less proceeding. Accordingly we conclude that, notwithstanding the quoted provisions of the charter, it was necessary to publish all penal ordinances after passage in order to make them operative.

It is next urged that the court erred upon trial of the case in charging the jury that a violation of the several provisions of the speed ordinance relating to speed, keeping a lookout and a failure to stop the car in the shortest time possible after the appearance of danger to appellee, would be negligence on the part of appellant, because such a charge was upon the weight of the evidence. There was no error in the respect pointed out, for if, as we have concluded, the original ordinance was in force at the time of the trial, it imposed upon appellant the precise duty given in the court’s charge, and the violation of its provisions would be negligence per se, subject, of course, to the limitation that, when appellant’s motorman discovered appellee’s danger, he was only bound to use such care as an ordinarily prudent person would have exercised under the same or similar circumstances to stop his car. This limitation of the provisions of the ordinance was carefully observed by the district judge in his charge. Further, on this same issue, the court, at the request of appellant, after grouping the facts in reference to the time when appellant’s motorman first discovered appellee’s danger, specially instructed the jury, if thereupon and then appellant’s employés “exercised ordinary care to stop the car and slacken its speed and used all the means they had at hand to stop the car and slacken the speed and avoid striking and injuring the said Dorothy Scoggins, you will find for the defendant.” It thus appears that the law of the case as developed was given, and that appellant has in that respect suffered no injury.

It is next urged that it was error to permit appellee’s father to exhibit to the jury appellee’s limb at the point of amputation. It is well settled that such exhibition of injuries is permissible on the theory that they tend to show the true extent of the injuries. St. Louis & S. F. Ry. Co. v. Mathis, 101 Tex. 342, 107 S. W. 530; M., K. & T. Ry. Co. v. Moody, 35 Tex. Civ. App. 46, 79 S. W. 857; Texas Midland Railroad v. Brown, 58 S. W. 44; M., K. & T. Ry. Co. v. Lynch, 40 Tex. Civ. App. 543, 90 S. W. 513.

It is finally urged that the verdict is grossly excessive, and for that reason should be set aside. Appellee was a girl of two years, and her injuries resulted in the loss of a leg. The evidence supports the finding of the jury that it was due to the negligence of appellant. The verdict was for $10,000. Such being the record, and our right to reverse on the ground assigned being limited, the naked fact that $10,000 was awarded as damages does not afford sufficient excuse for the exercise of that limited authority.

The judgment is affirmed.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RICE, J.

license: Public Domain

text:
    FREEMAN et al. v. W. B. WALKER & SONS.
    (No. 5396.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 18, 1915.
    On Motion for Rehearing, March 24, 1915.
    On Second Motion for Rehearing, May 5, 1915.)
    1. Abatement and Revival <©=345 — Grounds of Abatement — Termination of Receivership.
    The discharge of a receiver of a railroad company by the court appointing him, pending an action against him for damages to a shipment, operated as a complete bar from further liability against him, and it became the court’s duty, when his discharge was shown, to dismiss the action against him.
    [Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 226-236; Dec. Dig. <©=>45.]
    2. Justices of the Peace <©=150 — New Trial in County Court — Defenses—Availability.
    In an action against the receiver of a railroad company brought in justice’s court and tried de novo in the county court, he could defend in the county court on the ground that he had been discharged by the court appointing him, though such defense was not pleaded in the justice’s court.
    [Ed. Note — For other cases, see Justices of the Peace, Cent. Dig. §§ 508-515; Dec. Dig. ISO.]

    S.Appeal and Error <©=31073 — Harmless Error — Erroneous Judgment.
    The error in rendering judgment against the receiver of a railroad company, notwithstanding his discharge by the court appointing him was not rendered harmless by a recital in the judgment that execution should issue only against his codefendant; such judgment being final against him notwithstanding such provision.
    [Ed. Note. — For other cases see Appeal and Error Cent. Dig. §§ 4240-4247; Dec. Dig. <@=3 1073.]
    4. Justices of the Peace <©=3152 — Appeals —Bringing in New Parties.
    Under Const. art. 5, § 16, providing that the county court shall have exclusive jurisdiction in all civil cases, when the matter in controversy shall exceed in value $200 and not exceed $500, and appellate jurisdiction in cases of which justice’s courts have original jurisdiction when the judgment appealed from shall expeed $20, and section 19 giving justices of the peace jurisdiction in civil matters where the amount in controversy is $200 or less, and providing that appeals to the county court shafl be allowed where the judgment is for more than $20, and Rev. St. 1911, arts. 1767, 2291, containing similar provisions, where, in an action against the receiver of a railroad company for damages to a shipment, he pleaded in the county court that the railroad’s property and franchises had been sold, and that he had been discharged, plaintiff had a right to bring in the purchaser of such property and franchises as a defendant, though the amount in controversy would not have given the county court original jurisdiction; such purchaser having become liable to plaintiff under Rev. St. 1911, arts. 6624, 6625, relative to the liability of purchasers of the property and franchises of railroad companies.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 516-519; Dec. Dig. ®=>152.]
    5. Limitation of Actions <@=>55 — Computation of Period of Limitation.
    Where an action for damages to a shipment was brought against the receiver of a railroad company within two years after the cause of action accrued, and a purchaser of the railroad company’s property and franchises, which became liable for the damages, was made a party to the action and served with process within two years from the time of its purchase, the action was not barred as against it, assuming that the two years’ limitation applied.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 299-306; Dec. Dig. <©=355.]
    6. Limitation of Actions <©=>13 — Estoppel to Plead Limitations.
    Where the delay in filing suit was occasioned by reason of a promise of payment on the part of a defendant, which promise was based on plaintiff’s forbearance to sue, such defendant was estopped from pleading limitations.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 56-58; Dec. Dig. <©^> 13.]
    On Motion for Rehearing.
    7. Justices of the Peace <©=44—Jurisdiction — Amount in Controversy — Interest.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2322, providing that, when a claim or demand is lodged with a justice of the peace for suit, it shall be his duty to issue a writ or citation for the defendant, the succeeding article providing that the citation shall state the nature of plaintiff’s demand, and article 2326 providing that the pleadings shall be oral, except where otherwise specially provided, but that a brief statement thereof may be noted on the docket, though where a suit is brought for damages, and interest is .sought to be recovered from the time of the injury, the interest is a part of the damages and may be so considered in determining the jurisdiction, where the claim lodged with the justice of the peace showed that plaintiff sued for $185.24, with $10 as attorney’s lees, no interest being mentioned, the citation issued by the justice described the action as one to recover the sum specified, and slated that plaintiff prayed judgment for such amount, with “legal interest,” attorney’s fees, and costs, and a citation issued from the county court to a party brought in as defendant described plaintiff’s claim as a claim for damages for $185.24, it affirmatively appeared that plaintiff sought only to recover interest on the judgment and not as a part of the judgment, and hence that the amount in controversy was within the jurisdiction of the justice’s court, though the judgment entered in each court included interest on the amount of the damages, and was for an amount in excess of $200, especially as any doubt should be resolved in favor of the jurisdiction of the court, and also in view of the fact that defendants below contended that the justice’s court did have jurisdiction, and that the county court therefore had no jurisdiction to bring in a new defendant.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 157 — 172; Dec. Dig. <@=^44.]
    On Second Motion for Rehearing.
    8. Justices of the Peace <§=44t — Jurisdiction-Amount in Controversy — Excessive Judgment.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2291, providing that justices of the peace shall have original jurisdiction in civil matters where the amount in controversy is $200 or less, exclusive of interest, and article 2391 providing that any party to a final judgment in the justice’s court may appeal therefrom to the county court, where such judgment or the amount in controversy shall exceed $20, exclusive of costs, where the claim filed with the justice, together with the citation and notation on the justice’s docket, showed that the suit was for less than $200, with h prayer for interest on the judgment from the time of its rendition, and not for interest as a part of the damages, the justice’s court and the county court on appeal had jurisdiction, though the judgments entered were for more than $200, and such judgments were not void, as the judgment must conform to, and be controlled by, the pleadings.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 157-172; Dec. Dig. <@=»44.]
    Appeal from Travis County Court; Wm. Von Rosenberg, Jr., Judge.
    Action by W. B. Walker & Sons against Thomas J. Freeman, Receiver of the International & Great Northern Railway Company, and another. From a judgment for plaintiffs, defendants appeal.
    Affirmed in part, and in part reversed and rendered.
    See, also, 175 S. W. 455.
    Fisher & Fisher and Robert L. Thompson, all of Austin, and Wilson, Dabney & King, of Houston, for appellants. F. C. Morse and A. S. Phelps, both of Austin, for appelles.
   RICE, J.

This suit was originally brought in the justice’s court by appellees against Thomas J. Freeman, receiver of the International & Great Northern Railway Company, to recover damages to a shipment of syrup from Taylor to Austin, over said road.

The receiver replied by general denial and a plea of. two years’ limitation. On trial ap-pellees recovered judgment for the amount sued for, being the value of said syrup, together with $5 freight charges thereon, as well as $10 attorney’s fee, from which an appeal was taken to the county court. There said receiver, on August 8, 1913, filed an amended answer, setting up, besides the defenses urged in the justice’s court, a plea in bar, alleging his appointment and subsequent discharge by the United States Circuit Court for the Western District of Texas as receiver of the International & Great Northern Railway Company, and the sale and conveyance by him during such receivership of all the properties, rights, and franchises of said company, and also a plea urging that the loss, if any, to the shipment of syrup was due to its fermented condition at the time of shipment.

Thereupon appellees filed their motion to make the purchaser, the International & Great Northern Railway Company, a party defendant, which motion was granted, and said company, having been served with citation, appeared at the next term and filed its motion' to quash same, which motion was overruled. It then filed its plea in abatement, urging want of jurisdiction in the county court as to it, for the reason that it had not been made a party defendant in the justice’s court, and that the amount in controversy was less than the original jurisdiction of said county court. This plea in abatement, together with the plea of discharge of defendant Freeman, was overruled. Thereupon the railway company filed its original answer, containing a general demurrer, special exceptions under the two and four years’ statutes of limitation, and likewise pleaded limitation of two and four years, and that the fermented condition of the syrup at the time of its shipment caused the loss.

Trial before the court resulted in a judgment against both defendants for the entire amount sued for, with a stipulation that execution should issue only against the International & Great Northern Railway Company, from which judgment both defendants have appealed.

We think the court erred in overruling the receiver’s plea in bar. The discharge of the receiver by the federal court pending litigation operated as a complete bar from further liability against him as such, and it became the duty of the court, upon pleading and proof showing said fact, to dismiss the proceedings against him. See Fordyce & Swanson, Receivers, v. Dubose, 87 Tex. 78, 83, 26 S. W. 1050; Brown v. Gay, 76 Tex. 446, 13 S. W. 472; Ryan v. Hays, 62 Tex. 47; Howe v. St. Clair, 8 Tex. Civ. App. 101, 27 S. W. 801; Tex., etc., Ry. Co. v. Watson, 24 S. W. 952. And this is true although the receiver did not plead his discharge in the justice’s court. The trial being de novo in the county court, it was proper to make such defense on appeal. See R. S. 1911, arts. 759, 760, 1950; Curry v. Terrell, 1 White & W. Civ. Cas. Ct. App. § 239; Blanton v. Langston, 60 Tex. 149, approved in White Dental Mfg. Co. v. Hertzberg, 92 Tex. 529, 50 S. W. 122. See, also Davis v. Morris, 52 Tex. Civ. App. 184, 114 S. W. 684; Y. M. C. A. v Schow Bros., 161 S. W. 931. Nor was this error rendered harmless by the recital that execution should only issue against his coappellant, because such judgment was final against the receiver, notwithstanding such provision. See Bludworth v. Poole, 21 Tex. Civ. App. 551, 53 S. W. 719; vol. 1, Black on Judgments, p. 8, § 4; 23 Cyc. 669.

It is urged on the part of the railway company, however, that it could not be made a party defendant to this proceeding while the case was pending on appeal in the county court; and that therefore the court erred in not sustaining its plea setting up want of jurisdiction on the ground that the amount in controversy, exclusive of interest, did not exceed the sum of $200, wherefore it was entitled to the benefit of a trial first in the justice’s court, and could not lawfully be required to answer originally in the county court. By virtue of articles 6624, 6625, Revised Civil Statutes of 1911, the property and franchises purchased by appellant company from the receiver of said company passed to the latter, charged with and subject to the payment of all subsisting liabilities and claims against same in the hands of the receiver, where the same were not barred by. limitation, as therein provided. So that the company in this case, by reason of said purchase, took said property subject to this particular claim. This being true, appellees had the right, we think, to enforce payment of such claim against it. Appellant company cites, in support of its contention, Constitution of Texas, art. 5, §§ 16, 19; Rev. Stats. 1911, arts. 1767, 2291; Mo. Pac. Ry. Co. v. Wallis, 29 S. W. 1123; Butler v. Holmes, 29 Tex. Civ. App. 48, 68 S. W. 52; Land Mortgage Bank v. Voss, 29 Tex. Civ. App. 11, 68 S. W. 732; Gulf, etc., Ry. Co. v. Ford, 3 Willson, Civ. Cas. Ct. App. § 147; 2 Cyc. 784, 785.

On appeal from the justice to the county court, the case must be tried de novo, just as if originally brought in that court. The necessity for making appellant a party did not arise until the receiver filed his plea in abatement, whereupon the appellees immediately responded, asking that appellant railway company be made a party. This court, in the ease of Marshall v. Stubbs, 48 Tex. Civ. App. 158, 106 S. W. 435, in an opinion delivered by Mr. Chief Justice Fisher, held that, on appeal from the county court to the district court in a probate proceeding, new parties might be made pending the appeal. See, also, Davis v. West Texas Bank & Trust Co., 116 S. W. 393; Grayson v. Hollingsworth, 148 S. W. 1135; Mo. Pac. Ry. Co. v. Smith (Sup.) 16 S. W. 803. In Davis v. West Texas Bank & Trust Co., supra, it was expressly held that on appeal to the county court from a judgment in garnishment proceedings before a justice, in which an attempt was made to bring in other claimants to the fund garnished than the judgment debtor, the county court might allow the intervention of such claimants. Cyc., in discussing this question, says:

“As a general rule, on appeal from a judgment of the justice of the peace the issues cannot be changed, as by setting up a new cause of action, but the cause must be tried in the appellate court upon the same issues that were presented in the court from which the appeal was taken. The rule, however, does not apply to new matter, such as payment, release, and what may have arisen after the trial below.” 24 Cyc. 724b, and notes to cases from many states.

The same author further says:

“The cases, even those in the same jurisdiction, are greatly at variance as to the extent to which amendments as to parties may be allowed on appeal from justices of the peace. As a general rule, however, the appellate court may, in its discretion, and to promote the ends of justice, allow such amendments as to parties as do not change the cause of action. But, where a new party defendant is brought in by amendment, the court can acquire no jurisdiction to render judg-, mont against him without due service of summons or an authorized appearance.” 24 Cyc, 733, 734, and cases noted.

Our statute does not prohibit the making of new parties on appeal; the law abhors a multiplicity of suits. The refusal to permit the making of new parties in some instances would defeat the ends of justice, as where limitation might run in the meantime, if a new suit had to be filed, as contended by appellants. We believe in the instant case that justice is best subserved by holding that appellant company was properly made a party defendant, and therefore overrule its assignment complaining of the action of the court in this respect.

With reference to the plea of two years’ limitation, we find that the suit was brought against the receiver in 1911, before the statute of limitation had run; and appellant company, by reason of its purchase from the receiver, assumed whatever liability there might be attached to the property at the time of its purchase and the receipt thereof, which occurred on the 16th of September, 1911. The pleading making it, a party was filed on the 8th of August, 1913, and service had thereon on the 11th of said month, which was within less than two years from the time of its purchase, so that said plea is not well taken. This action, however, was based on a bill of lading, and arose from failure to deliver part of the syrup, which was lost on account of the alleged negligence of appellant; and in such cases the four years’ statute of limitation, instead of the two, seems to apply. See Williamson & Co. v. Tex. & Pac. Ry. Co., 166 S. W. 692; Elder, Dempster & Co. v. Railway Co., 105 Tex. 628, 154 S. W. 975. Besides this, the facts show, and the court found, that the delay in filing suit was occasioned by reason of a promise of payment on the part of appellant for the damages sustained, and this promise was based on appel-lees’ forbearance to sue, for which reason the court below held that appellant was es-topped from setting up the plea of limitation. See Davies v. Texas Cent. Ry. Co., 133 S. W. 295; Smith v. Dupree, 140 S. W. 367. See, also, Holman v. Omaha & Council Bluffs Ry. & Bridge Co., 117 Iowa, 268, 90 N. W. 833, 62 L. R. A. 395, 94 Am. St. Rep. 293. We think the evidence showed that the syrup wa s in good condition when shipped, and that its loss was occasioned by reason of the negligence of appellant, in failing to properly fasten the barrels, so as to prevent them from knocking together.

We think the facts show that the claim for attorney’s fees was properly allowed under the act of March 13, 1909. See Acts 31st Leg. p. 93, e. 47. The remaining assignments have been considered and are regarded as without merit.

Believing, for the reasons stated, that the case should be reversed and judgment here rendered in behalf of the receiver, it is so ordered; but finding no error justifying a reversal as to the International & Grfeat Northern Railway Company, the judgment as to it is in all things affirmed.

Affirmed in part, and in part reversed and rendered.

On Motion for Rehearing.

By inadvertence, the opinion heretofore rendered in this case was numbered 5395, whereas it should have been numbered 5396.

Counsel for appellants have presented an able and ingenious motion for rehearing, reviewing all the questions discussed in our original opinion, and in addition thereto assert that the court committed fundamental error in not reversing the judgment and dismissing the case, because they insist that it is apparent of record, from the judgments entered in said case in both the justice and county courts, that both the amount sued for at the time said action was begun, as well as the amount .recovered.therein, was in excess of $200, hence not within the original jurisdiction of the justice’s court, nor the appellate jurisdiction of the county court. The justice court judgment, in so far as it is deemed material to the point here involved, omitting formal parts, reads:

“That the court, after hearing the pleadings, evidence, and argument of counsel, took the case under advisement, * * * and, after fully considering the matters at issue, the court is of opinion that plaintiffs should have judgment as prayed for. It is therefore ordered and adjudged by the court that the plaintiffs W. B. Walker & Sons, a partnership composed of W. B. Walker, J. O. Walker, W. D. Walker, and T. B. Walker, do have and recover of and from T. J. Freeman, receiver of the International & Great Northern Railroad Company, the sum of $185.24, with interest from March 26, 1908, at the rate of 6 per cent, per annum, $10 attorney’s fees, and all costs of this suit, for which let execution issue.”

The county court judgment, omitting formal parts, after reciting that the case was tried before the court without a jury, proceeded, “Who, after having heard the pleadings, evidence, and argument of counsel thereon, and after considering the same, is of the opinion that the law is with the plaintiff, and that the plaintiff is entitled to judgment for the full amount sued for,” then rendered judgment against both Freeman, as receiver of the International & Great Northern Railroad Company, and the defendant the International & Great Northern Railroad Company, “for the sum of $185.24, with interest thereon at the rate of 6 per cent, per annum from March 26, 1908, together with $10 additional for attorney’s fees, and for all costs of suit in this court and in the justice court, from -which the case was appealed.”

Counsel for appellants have also moved the court to grant a writ of certiorari to bring up the original citation issued in the justice court, a certified copy of which is attached to this motion, which we presume, of course, to be correct. If said judgments are to be regarded as controlling, then appellants’ contention would be correct, because where a suit is brought for damages, and interest is sought to be recovered from the time of the injury, then the authorities are to the effect that the interest becomes a part of the damages and may be so considered in determining the jurisdiction. See Pecos & N. T. Ry. Co. v. Rayzor, 172 S. W. 1103; Schulz v. Tessman, 92 Tex. 488, 49 S. W. 1031; Chicago, R. I. & G. Ry. Co. v. Crenshaw, 51 Tex. Civ. App. 198, 112 S. W. 117; Ft. Worth & R. G. Ry. Co. v. Mathews, 169 S. W. 1052. But we are of opinion that this matter should be determined, not alone by the judgment, but by an inspection of the whole record, and in so doing we should consider the plaintiffs’ claim lodged with the justice when the suit was filed, as well as the citations issued and the notation made by the justice on ids docket. The claim lodged with the justice shows that plaintiffs sued for $185.24, together with $10 as attorney’s fees, amounting to the sum of $195.24 in all; no interest being mentioned in said account. The citation issued by the justice, omitting formal parts, reads:

“You are hereby commanded to summon T. J. Freeman, receiver of the International & Great Northern Railroad Company, to be and appear before me at my office in Austin, Travis county, Tex., at the next regular term of said court on the last Monday in March, A. D. 1911, at 10 o’clock a. m., to answer to the complaint of-W. B., W. D., T. B., and J. C. Walker, under the firm name of W. B. Walker & Sons, in an action to recover of defendant the sum of $185.-24, as damages on shipment of molasses from Austin to San Marcos, 4/6/08, as per demand on file herein. Plaintiffs pray judgment for said amount, with legal interest, $10 attorney’s fees, and costs of suit,” etc.

Article 2322 of Vernon's Sayles’ Civil Statutes provides that, when a claim or demand is lodged with the justice of the peace for suit, it shall be his duty to issue forthwith a writ or citation for the defendant. Tlie succeeding article provides, among other things, that such citation shall state the names of all the parties to the suit and the nature of the plaintiff’s demand (which, as we understand, embraces, among other things, the amount of the claim). It appears that the justice of the peace complied with the law in this respect, and issued his citation corresponding with the claim of plaintiff for $185.24, stating that the plaintiff prayed judgment for said amount, with legal interest and $10 attorney’s fees. Article'2326, Id., provides that the pleadings in justice court shall be oral, except where otherwise specially provided, but a brief statement thereof may be noted on the docket. The notation made by the justice merely shows that the suit was for $185.24, without stating interest or giving date of the claim.

It further appears from the record that, after pleas were filed showing that Thos. J. Freeman had been discharged as receiver by the federal court, plaintiff was granted leave in the county court to make the International & Great Northern Railway Company (the purchaser of the property from the receiver) a party defendant pending appeal. Thereupon citation was issued from' the county court against the International & Great Northern Railway Company, in which plaintiffs’ claim is recited to be a claim for damages for $185.24. Thereafter said company, through its counsel, filed a plea in abatement, which, after giving style and number of the case, reads as follows:

“And now comes the International & Great Northern Railway Company and says that it appears from the plaintiffs’ petition or demand herein that the cause of action, if any, upon which said company is cited to answer, and which is sought to be established against it, is less in amount than $200, and is therefore not within the jurisdiction of this court as to said company, either by virtue of the amount involved or by virtue of its not having been made a party defendant in the justice court and before appeal to this court, or both. Wherefore the said International & Great Northern Railway Company says that no judgment can be rendered against it in this proceeding, and prays judgment of the court that this suit abate as to said company, and that it go hence with its costs.”

Plaintiffs’ claim, as filed with the justice, was, we think, for an amount less than $200; the citation issued in the justice’s court was for $185.24 as damages to a shipment of syrup. The prayer was for judgment for said amount, with legal interest, $10 attorney’s fees, and costs. We think this citation, as well as that issued from the county court, affirmatively showed that the suit was for an amount within the jurisdiction of the justice’s court, and that the notation on the docket of said court is corroborative thereof. In Pecos & N. T. Ry. Co. v. Rayzor, supra, where an effort was made to defeat the jurisdiction of the county court on the ground that the plaintiff sought recovery for more than $1,000, where the allegations were that the suit was brought for $975, concluding with a prayer as follows:

“Wherefore plaintiff prays that the defendants be cited to answer this petition, and that on the trial hereof he have judgment for his said damages in the sum of $975, with legal interest thereon, for costs of suit, and for general relief”

■ — and where it appeared that the interest from the time of the injury, which was stated in the pleading, if added to. said amount* would exceed the jurisdiction of the county court, Mr. Justice Phillips, in discussing a similar question, in effect holds that where it affirmatively appears that plaintiff seeks interest as a part of the judgment, and not as; interest on the judgment, and the aggregate-amount of both exceeds the jurisdiction of the court, then such court would have no jurisdiction; hut where the allegation left it in doubt, as in the ease then under consideration, whether interest was sought as a part of the damages or as interest upon the-judgment, that such doubt should be resolved in favor of the jurisdiction of the court, cit■ing in support thereof Dwyer v. Bassett, 63 Tex. 274.

So it seemsi that if, from the whole record, we should conclude that the question of jurisdiction was doubtful, it would be our duty, under the case last cited, to hold in favor of such jurisdiction. But is this question doubtful ? It was not raised in the-justice’s court or county court, nor was it presented here in the briefs of appellants, but is now urged for the first time in the motion for rehearing. Counsel appearing here for-appellants likewise appeared in both of the lower courts for the receiver, as well as for the appellant company; and since they participated in such trials in the court below,, where they ..urged a plea in abatement, contending that the justice’s court did have jurisdiction of the amount in controversy, we are not prepared to disagree with them in this conclusion, and therefore overrule-the motion for rehearing.

Believing, however, that the court below erred in rendering judgment for interest from March 26, 1908, the same is now here so reformed as to render judgment for appellees for $185.24 and $10 attorney’s fees, together-with 6 per cent, interest on the whole amount,, from the 23d day of January, 1914, the date such judgment was rendered, and, as thus-reformed, said judgment will be affirmed; cost of appeal taxed against appellees.

Motion overruled.

On Second Motion for Rehearing by the-International & Great Northern Railway Company.

A second motion for rehearing by the International & Great Northern Railway Company, appellant, has been filed, predicated chiefly on the contention that, since the judgments of both the justice and county courts were for amounts in excess of $200,. said courts did not have jurisdiction, and therefore their judgments are void, and hence this court erred in reforming and affirming said judgment. This view, if maintained, leaves out of consideration what, in fact, may have been the amount in controversy, and gives controlling effect to the amounts as stated in the judgments themselves. We think the mere fact that such judgments were rendered for a greater amount than was in fact in issue will not have such effect, but that, in order to determine whether the court had jurisdiction, we must look to the entire record to ascertain what was the amount in controversy, irrespective of what amounts were 'recovered, as shown by the judgments themselves.

In 24 Cyc. 464, subd. 2, we find this language:

“As a general proposition, the amount claimed or in controversy in an action before a justice of the peace is the test by which his jurisdiction is to be determined.”

Again, on page 645 in the same work, it is said:

“In most of the states the amount actually claimed or in controversy, or the value of the property in dispute, is the criterion by which the jurisdiction of the appellate court is to be determined, irrespective of the verdict or judgment in the justice’s court” (italics ours)

—citing various cases in support of the text, among others Grooms v. Atascosa County, 29 S. W. 73; Horton v. McKeehan, 1 White & W. Civ. Cas. Ct. App. § 465.

Our own Constitution and statute on this subject is that:

“The courts of justice of the peace shall, in addition to the powers and duties elsewhere provided for, have and exercise original jurisdiction in civil matters of all cases where the amount in controversy is $200 or less, exclusive of interest.” Vernon’s Sayles’ Civ. Stats, art. 2291; Constitution, art. 5, § 19.

Article 2391, Vernon’s Sayles’ Civ. Stats., provides that:

“Any party to a final judgment in a justice’s court may appeal therefrom to the county court where such judgment, or the amount in controversy, shall exceed $20 exclusive of costs, and in such other cases as may be expressly provided by law.”

The rule is elementary that the judgment must conform to and be controlled by the pleadings.' In the instant case, since it appears from the entire record that the amount claimed was within the jurisdiction of the justice’s court, the county: court had appellate jurisdiction, notwithstanding the fact that tire judgment was for an amount greater than $200. If correct in our original holding that the claim filed with the justice, together with the citation and notation on the docket, showed that the suit, as originally filed in the justice’s court, was for $195, with a prayer for interest on the judgment from the time of its rendition, and not for interest as a part of the damages, then we think it is immaterial that the judgment, as entered in said court, was for more than $200, because the amount in controversy must have controlling effect. In Grooms v. Atascosa County, supra, it is held that, on appeal from the judgment in the justice’s court, the amount in controversy, and not the amount of the judgment rendered, determines the jurisdiction of the appellate court.

Believing that the amount in controversy in this case was less than $200, we hold that the justice’s court, as well as the county court, had jurisdiction of this case, notwithstanding the fact that the court rendered judgment for a greater amount; and therefore overrule the motion for rehearing.

Motion overruled.
      <§=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    GALVESTON, H. & S. A. RY. CO. v. CRAIGHEAD.
    (No. 421.)
    (Court of Civil Appeals of Texas. El Paso.
    May 29, 1915.)
    1. Appeal and Error <&wkey;1140 — Review — Verdict — Excessiveness — Reversal — Statute.-
    Rev. St. 1911, art. 1631, provides that where the Court of Civil Appeals shall be of opinion that the verdict and judgment of the trial court is excessive, and for that reason only there should be a reversal, it shall be the duty of the court to indicate to the party in whose favor such judgment was rendered, or his attorney, the amount to be remitted, and, if such remittitur be filed, the judgment shall be reformed and affirmed in accordance therewith, and, if not, reversed. A judgment was reversed without the Court of Civil Appeals indicating the excess in the verdict, and on rehearing the ap-pellee contended that such action was erroneous. Held, that the statute precluded the court from reversing and remanding only where the reversal was for excessiveness in the verdict and judgment alone, and that where the amount was so outrageously excessive as to show that the verdict was the result of passion, prejudice, or other improper influence, whereby the jury was prevented from giving' fair consideration to the primary issue of liability, and was led to allow an excessive amount of damages, the statute did not preclude the court from reversing and remanding, without giving opportunity for a re-mittitur.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4462-4476; Dec. Dig. &wkey;> 1140.]
    2. Damages <&wkey;228 — Verdict — Excessiveness — Remittitur.
    Where the verdict was so outrageously excessive as to show that passion or prejudice must have hindered the jury from fairly considering the evidence to determine the primary question of liability, the action of the trial court in requiring a remittitur of SI,500 did not cure the vice.
    [Ed. Note.—Eor other cases, see Damages, Cent. Dig. §§ 576-579; Dec. Dig. &wkey;228.]
    3. Appeal and Error <®=j750—Assignment op Error—Specification op Error—Ex-OESSIVENESS OP VERDICT.
    Where an assignment of error read, “The verdict of the jury clearly shows it is the result of prejudice and passion, and is not the result of dispassionate deliberation,” being supported by the proposition, “Where the amount of an excessive verdict evinces a disregard of the evidence by the jury, and shows that prejudice influenced their verdict, it is error for the court to allow a remittitur, but the verdict should be set aside,” the assignment of error was sufficient to raise the question whether it was proper to reverse without a remittitur.
    [Ed. Note.—Eor other cases, see Appeal and Error, Cent. Dig. §§ 3074-3083; Dec. Dig. &wkey; 750.]
    Appeal from District Court, Presidio County; W. C. Douglas, Judge.
    On motion for rehearing. Denied.
    For former opinion, see 175 S. W. 453.
    Beall & Kemp, of El Paso, and Baker, Botts, Parker & Garwood, of Houston, for appellant. Belcher & Sutton, of Marfa, and Jones & Thurmond, of Del Rio, for appellee.
   HARPER, C. J.

Counsel for appellee have filed an able motion for rehearing, and insist that under the provisions of article 1631, R. S., this court has no authority to reverse and remand this case for the error indicated in the original opinion; that we could only indicate to appellee the amount of the excess in the verdict and, judgment, and require a remittitur thereof as a condition of affirmance.

The statute noted provides that in cases where this court shall be of the opinion that the verdict and judgment of the trial court is excessive, and for that reason only, said cause should be reversed, then it shall be the duty of the Court of Civil Appeals to indicate to the party in whose favor such judgment was rendered, or his attorney, the amount of the excess and time within which remittitur thereof may be filed, and, if such remittitur be so filed, the judgment shall be reformed and affirmed in accordance therewith, and, if not, reversed.

It is apparent that we are precluded from reversing and remanding in such cases only where we are of opinion that the verdict and judgment is excessive, -and for that reason o'nly the cause should be reversed. If, in addition to the allowance of excessive damages, the verdict was otherwise improperly influenced by passion, prejudice, or other improper motives, then we think it clear that the statute does not preclude a reversal and remand of the cause. Railway Co. v. Syfan, 91 Tex. 562, 44 S. W. 1064; Railway Co. v. Swann, 127 S. W. 1164; Insurance Co. v. Herbert, 48 Tex. Civ. App. 95, 106 S. W. 421; Railway Co. v. Nicholson, 57 S. W. 693.

In this case we are of the opinion that under the facts the amount of the verdict was so grossly and outrageously excessive as to clearly show that it was the result of passion, prejudice, or other improper influence operating upon the mind of the jury, whereby it was: (1) Prevented from giving fair and impartial consideration to the primary issue of liability vel non, resolving this phase of the case against defendant without due consideration, and (2) led to allow an excessive amount of damage in compensation for the plaintiff’s injury. In such a case, it is the opinion of this court that the statute does not preclude it from reversing and remanding. Railway Co. v. Kellogg, 172 S. W. 180.

The trial court required a remittitur of $1,500, which was entered, but under the view which we have of the case the vice in the verdict was not cured thereby. For this reason it was not deemed necessary to mention the remittitur in the original opinion. It is urgently insisted that the assignments of error are insufficient.

The sixth assignment reads:

“The verdict of the jury clearly shows it is the result of prejudice and passion and is not the result of dispassionate deliberation.”

It is supported by this proposition:

“Where the amount of an excessive verdict evinces a disregard of the evidence by the jury and shows that prejudice influenced their verdict, it is error for the court to allow a remitti-tur but the verdict should be set aside.”

This we deem sufficient to raise the question upon which our decision is based.

The motion for rehearing is overruled.
      <&wkey;Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ijsoFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PHILLIPS, J.

text:
    HOUSTON OIL CO. OF TEXAS v. McGREW.
    (No. 2410.)
    (Supreme Court of Texas.
    May 5, 1915.)
    1. Public Lands <§=>173 — School Lands— Contractual Right to Purchase.
    Under Rev. St. 1895, art. 4218q, providing that the purchaser or his vendees of timber on school lands may purchase the land at <¡>2 per acre at any time within five years, the right of a purchaser of timber to so purchase the land is a contract right.
    [Ed. Noté. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. <§=173J

      2. Public Lands <§=173 — School Lands— Purchase — Aw ard .
    Where the purchaser of timber on school lands within five years made due application to purchase the land, and paid the purchase money to the state, he became invested with a right to the land without any award by the commissioner.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544^551; Dec. Dig. @=173.]
    .3. Public Lands <§=173 —Trial <§=192 — Purchase oe School Lands — Receipts— Date oe Payment.
    That the state treasurer’s receipt for the ■money paid by a purchaser of school land was dated July 13th did not controvert positive evidence afforded by an entry on the treasurer’s account that the payment was made on June 2Sth; and hence it was not error' for the court to assume, in an instruction, that payment was .made on June 28th.
    [Ed. Note. — For other cases, see Public Lands, •Cent. Dig. §§ 544-551; Dee. Dig. <@=173; Tri_al, Cent. Dig. §§ 432-434; Dec. Dig. <@=192J
    4. Appeal and Error <@=730 — Assignment oe Error — Grounds oe Objection — Instructions.
    Where an assignment of error, challenging the charge in a suit in trespass to try'title, complained only that the charge was erroneous in that it authorized computation of the limitation period from the date of the commissioner’s award of school lands purchased, an objection that the charge was erroneous in that it assumed, though the evidence thereon was conflicting, that payment of the purchase money was on a ■ certain date, could not be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3013-3016; Dec. Dig. <@= '730.]
    .5. Adverse Possession <§=100 — Acts Constituting — Improvements.
    That a part of defendant’s fence on improved land lies on another quarter section adjoining the one on which he has a residence and the remainder of his improvements does not prevent him from recovering the quarter section, on a claim of title by adverse possession in a suit in trespass to try title.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 547-574; Dec. Dig. <§= 100.]
    ■ 6. Trial <§=192 — Instructions—Assumption oe Fact.
    Where, in trespass to try title, the undisputed evidence showed defendant’s right to recover under the ten years’ statute of limitations, unless Ms occupancy was broken by an acknowledgment of tenancy, a charge that, if defendant had made such acknowledgment, he could not recover, but, if he did not agree to acknowledge such tenancy, he could recover, was not objectionable as invading the province -of the jury. v
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 432-434; Dec. Dig. <@=192.]
    Error to Court of Civil Appeals of First Supreme Judicial District.
    Action by the Houston Oil Company of Texas against William McGrew. Judgment for defendant was affirmed by the Court of Civil Appeals (143 S. W. 191), and plaintiff brings error.
    Affirmed.
    Hightower, Orgain & Butler, of Beaumont, and H. O. Head, of Sherman, for plaintiff in error. Joe W. Thomas, of Woodville, for defendant in error.
   PHILLIPS, J.

This was a suit in trespass to try title by the Houston Oil Company of Texas to recover of McGrew a 640-acie section of land in Tyler county. The defense was a limitation title to 160 acres under the statute, based upon improvements and ten years’ occupancy of a part of the section and an adverse claim to the whole of it. McGrew prevailed under this plea on the trial, and the land was partitioned under the judgment ; 160 acres, including his improvements, being set aside to him, and the remainder of the section being allotted to the oil company.

The land was originally school land belonging to the state, classified as “timber land.” The oil company claimed under a purchase from the state by V. Wiess, who in 1895, under the act of -1895, purchased the timber on the section, and thereafter, on June 28, 1899, under the act of 1895 (Acts 24th Leg. c. 47), as amended in 1897 (Acts 25th Leg. c. 129) — article 4218q, R. S. 1895, and, as re-enacted with modifications and additions, now article 5430, R. S. 1911 — made to the Commissioner of the Land Office due application to purchase the land itself at the valuation fixed by the statute, of $2 per acre cash. The account of the state treasurer showed that Wiess, on the same date of his application to purchase the land (June 28, 1899), deposited with the treasurer the full amount of the purchase money. The latter issued his receipt to Wiess under date of July 13, 1899, and it was filed in the Land Office the following day. The award was made by the Commissioner on July 18, 1899, and the patent was issued on August 15, 1899.

The evidence was undisputed that, at the time of the trial, McGrew had been living upon the section for about 21 years, with improvements upon it consisting of his dwelling house and outbuildings, and an inclosed farm of about 25 acres, cultivating, using, and enjoying the premises; and there was evidence of his adverse claim throughout that period to the entire section.

The question in the case is with respect to the date when limitation began to run in Mc-Grew’s favor, which is determined by tne time when it may be said that Wiess acquired his right to the land. The suit having been filed on July 13, 1909, the trial court instructed the jury that, in determining the question <of limitation, they would reckon the time of McGrew’s occupancy from June 28, 1899, which, as has been stated, was the date upon which Wiess made his application to purchase the section and, according to the treasurer’s account, paid the purchase money to the state — more than ten years before the institution of the suit. The oil company insisted in the Court of Civil Appeals, and maintains here, that it should have been computed from the date of the award of the land by the Commissioner, which was less than ten years before the suit was filed.

Article 4218q, R. S. 1895, under which the land was purchased by Wiess, after declaring that a purchaser of the timber on the timbered school lands of the state should have five years from the date of his purchase within which to remove the timber, concluded with this proviso:

“Provided that the purchaser or his vendees of any such timber shall have the right to purchase the land upon which such timber so purchased is situated at two dollars per acre, cash, at any time before the expiration of five years from date of purchase of timber under the provisions of this chapter.”

The effect of this statute was plainly to confer upon Wiess a contractual right, as the purchaser of the timber upon the section, to purchase the section itself at the price of $2 per acre cash at any time within five years from the date of his purchase of tho timber. Jumbo Cattle Co. v. Bacon, 79 Tex. 5, 14 S. W. 840; Hooks v. Kirby (Civ. App.) 124 S. W. 156; Wing v. Dunn (Civ. App.) 127 S. W. 1101 (writs of error refused in both cases).

With this true, it follows that when, within the five-year period, he made due application to purchase the section and paid the purchase money to the state, he became invested with a right to the land, without any award by the Commissioner, since the latter, under the statute, had no authority to refuse to make the award. Jumbo Cattle Co. v. Bacon; Burnett v. Winburn (Civ. App.) 25 S. W. 969; Watts v. Wheeler, 10 Tex. Civ. App. 117, 30 S. W. 297. If the award was required, and it was also necessary that Wiess make affidavit that the timber had not been removed, and of his sole interest in the purchase, as is contended by the oil company in its argument, the filing of such affidavits was clearly a prerequisite to a valid award. On this theory there was no valid award of the land to Wiess, and the oil company had no title upon which to maintain the suit, for the first affidavit was not filed until after the award was made, and the other does not appear to have been filed at all.

It was undisputed that Wiess made his application to purchase the section on June 28, 1899; and we agree with the Court of Civil Appeals that the evidence conclusively established that as the date of his payment of the purchase money to the state. The only evidence touching the date of payment' was the entry upon the state treasurer’s account, showing that the payment was made to the treasurer by Wiess on June 28, 1899, the same day on which he made his application to purchase, and a receipt for the money issued- by the treasurer, dated July 13, 1899. The receipt in no wise purported that the payment was made on the date of its issue. It did not profess to evidence any date as the date of the payment. It merely acknowledged the receipt of the money. It was therefore not inconsistent with the positive evidence of the payment on June 28, 1899, afforded by the treasurer’s account. It is altogether improbable that the treasurer would have charged himself with the payment on his books before the date it was actually made, whereas the issuance of a receipt for the money on a later date was perfectly consistent with the previous payment. The receipt, in other words, in no sense contradicted the entry as proof that the payment was actually made on June 28, 1899. >ve hardly see how ordinary minds could differ upon the question, and therefore conclude that it was not improper for the court to assume, as was the effect of the charge, that the payment was made on that date.

The date of the payment becomes, in fact, an immaterial question under the actual proposition advanced by the oil company in the Court of Civil Appeals and in this court, for its contention entirely repudiates it as a determining factor in the issue of limitation. Its position throughout the case has been that the date of the Commissioner’s award alone fixed the time when limitation began to run in McGrew’s favor. That was the single proposition submitted in the Court of Civil Appeals under its assignments of error challenging the charge that the jury should compute the period of McGrew’s occupancy from June 28, 1899, and is likewise the sole ground of error assigned in this court with respect to the instruction.

The fact that a part of McGrew’s cultivated field lay across one of the boundáry lines of the section did not, in our opinion, defeat his right to assert a limitation title to 160 acres of the section under the statute. His residence and improvements were entirely upon the section, and under the finding of the jury, supported as it was by sufficient evidence, his adverse occupancy of a part of the section and his adverse claim to the whole of it for the full period of ten years before the institution of the suit must be treated as established. In the state of the record, this was a sufficient basis to support the judgment in his favor. It is not disclosed how much of his field lay without the section. As remarked by Judge Reese in his opinion, it may have been a portion so small as to be negligible. Under such condi. tion of the proof, this question cannot be regarded as a material one.

McGrew was entitled to recover upon his plea of limitation, according to the undisputed evidence, unless, under the issue tendered by the oil company, the adverse character of his occupancy was broken by an acknowledgment of tenancy to it. The province of the jury was therefore not invaded by the charge of the court to that effect. The judgments of the district court and the Court of Civil Appeals are affirmed.

HAWKINS, J., dissents.
      <§=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BROWN, C. J. HAWKINS, J.

text:
    WAPLES PAINTER CO. v. ROSS et al.
    (No. 2408.)
    (Supreme Court of Texas.
    May 5, 1915.)
    Justices of the Peace <§=>129 — Judgment— Collateral Attack.
    The W. company secured against the owners of a lot of land a judgment in a justice’s court under writ of garnishment for supplies furnished contractors who had done work on such land. The owners failed to prosecute an appeal. Thereafter the contractors sought to foreclose their lien on the lot, joining the W. company as defendant, and the owners prayed that such company be enjoined from enforcing against them the judgment in the justice’s court on the ground that such enforcement might result in their paying the same claim twice. Held, that upon the owners’ failure to prosecute an appeal from the justice’s judgment against them, such judgment became final and not subject to review or setting aside in a collateral proceeding.
    [Ed. Note. — For other cases, see Justices of the Peace, Gent. Dig. §§ 408-411; Dec. Dig. <§=>129.]
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    Suit by J. W. Flowers and others to foreclose mechanics’ liens against J. W. Ross and others, in which the defendant Ross prayed that their eodefendant Waples Painter Company be restrained from the enforcement of a judgment against them recovered in the justice’s court Judgment for the defendants Ross on their cross-petition (141 S. W. 1027), and the Waples Painter Company brings error.
    Reversed and remanded.
    Stuart, Bell & Moore, of Gainesville, for plaintiff in error. W. O. Davis, of Gainesville, R. E. Thomason, of El Paso, and Gregory, Batts & Brooks, of Austin, for defendants in error.
   BROWN, C. J.

We copy from the opinion of the Court of Civil Appeals the following statement of facts:

J. W. Flowers and others filed their petition in the district court of Cooke county against J. W. Ross, Ancil II. Ross, Peter Brunson, and the Waples Painter Company, a corporation, to foreclose a materialman and mechanic’s lien against a certain lot owned by the defendants Ross. The defendants Ross prayed that their codefendant, the Waples Painter Company, should be restrained from the enforcement of a judgment recovered by it in a garnishment proceeding in a justice’s court, whereby it was sought to reach the fund, amounting to $52.50, which the Rosses admitted they owed to the contractor Brunson as a balance due for the construction of a sidewalk to their lot. The cause was tried before the court, who made and filed the following findings of fact, which we adopt:

“On November 5, 1909, there was filed in this cause an agreement signed by all the parties to this cause, both plaintiffs and defendants, admitting the following facts to be true:
“First. The county of Cooke owned the 40 acres of land mentioned in the petition, and divided the same into blocks, lots, and streets, reserving one block for courthouse and selling the remaining lots by deeds in the usual form and describing them by lot and block number, substantially as alleged in the petition, and the defendants J. W. Ross and Ancil H. Ross, as tenants in common, own lot No. 4 in block No. 4 by regular chain of deeds from Cooke county, down to themselves, said J. W. Ross being a married man and said Ancil H. Ross a single man, and for several years they and their mother, as partners, under the name of A. H. Ross & Son, have been conducting a hardware business in the two-story brick building upon said lot, said 40 acres, when so sold, having constituted the town of Gainesville, since incorporated under the general law, and now a city of about 10,000 inhabitants.
“Second. The defendant Peter Brunson, under contract with said J. W. Ross and Ancil H. Ross, constructed a cement sidewalk in front of said building for the price and in the manner alleged in petition, and the plaintiffs furnished the labor and material used in constructing said sidewalk as alleged in petition, for the price therein stated.
“Third. There was instituted in the justice court of precinct No. 1 of Cooke county, the two suits Nos. 11999 and 12000, as alleged in the petition and answer, in which suits final judgments were rendered as therein stated, and no appeal was ever prosecuted from the judgment in either case, and in the garnishment suit, the defendants J. W. Ross and Ancil H. Ross did not request or seek to have the present plaintiffs made parties, and said judgments have not been satisfied, and at the time of the filing of this suit, the Waples Painter Company was proceeding to enforce the judgment in the garnishment case by execution. In the answer to the garnishment and upon the trial, said J. W. Ross and Ancil H. Ross insisted that the debt could not be garnished, and that these plaintiffs had a lien upon the property.
“This cause was submitted to me upon said admitted facts, and none others were introduced in evidence, and I herewith adopt said admitted facts as my findings of fact herein.”

Upon these findings the trial court concluded as follows:

“First. Plaintiff is entitled to recover judgment for the amount asked for in their petition herein against the defendant, Peter Brunson; that they are entitled to recover lien on lot No. 4, block No. 4, in city of Gainesville, Cooke county, Tex., and a foreclosure of said lien on said lot of said defendants Ancil Ross and J. W. Ross.
“Second. I find that the defendants Ancil H. Ross and J. W. Ross are entitled to an injunction against Waples Painter Company, restraining said Waples Painter Company from the enforcement of the judgment in the justice court, precinct No. 1, in cause 12000 on the civil docket on said justice court. I find that the fact that the city has an easement in said street does not separate same from said lot so that improvements thereon will not occasion the creation of a lien on the whole lot subject to the easement right to the street.
“And that J. W. Ross and Ancil H. Ross cannot be made to pay the debt twice, because Lyon-Gray Lumber Company were not parties to the case in the justice court, and because that pourt could not, by any order, have defeated their right to determine the question of their lien in the district court.
“Judgment was entered according to these: conclusions, and the Waples Painter Company has appealed.”

The issue between the parties in this ease may be stated succinctly as follows:

J. W. Flowers and others, the plaintiffs in the court below, instituted this suit against J. W. and Ancil H. Ross, Peter Brun-son, and the Waples Painter Company, as above stated, to obtain a foreclosure of a materialman and mechanic’s lien upon the lot described in the petition, which was owned by the Rosses, defendants below. The Rosses applied to the district court for a writ of injunction against the Waples Painter Company, to restrain them from enforcing the judgment which they had obtained on a writ of garnishment before a justice of the peace, which garnished and appropriated the same debt for which the plaintiffs in this case prosecuted their suit and foreclosed their lien. To state the matter more definitely, the judgment obtained against the Rosses by the Waples Painter Company in the justice court upon garnishment was the same debt for which the district court foreclosed the lien in favor of Flowers and others. In the suit of Flowers and others against the Rosses, the Rosses sought and obtained an injunction in the district court to restrain the enforcement of the judgment of the justice court by which the Rosses were required to pay to the Waples Painter Company the same debt for which Flowers and others had obtained the judgment and foreclosure of a lien against the lot. The district court haying given judgment in favor of Flowers and others against the Rosses for a debt due to Flowers and others, upon which the suit was brought, a writ of injunction was granted against the enforcement of the justice’s judgment, on the ground that otherwise the Rosses would be compelled to pay the debt twice.

The issue presented by the plaintiff in error is that the district court had no jurisdiction to enjoin the enforcement of the judgment which was rendered in the justice court sustaining the garnishment in favor of the Waples Painter Company against the Rosses. The statement of the case makes it manifest that if both of these judgments should be enforced, the result would be, as claimed by the Rosses, that they would be compelled to pay the same debt twice, by writ of garnishment by one creditor of Brunson and the enforcement of a lien upon the property for the same debt by another creditor.

The issue presented by the evidence in this court is not the jurisdiction of the district court to enjoin the judgment in favor of the plaintiff in error rendered in the justice court against the Rosses, but the power of the district court to issue such injunction. However, it cannot be invoked in this ease, because the statement of the ease by the1 plaintiff in error shows the truth to be that in the justice court the Rosses contested the right of the Waples Painter Company to garnish the debt which they (the Rosses) owed to Peter Brunson, and, having been defeated in, that action, they failed to prosecute an appeal therefrom to the county court, which they might have done in order to have the errors, if any, of the justice of the peace corrected. Therefore the judgment of the justice of the peace became a, final judgment, and was not subject to review or to be set aside in a collateral proceeding like this. The Rosses, having failed to prosecute their defenses in the court to which they might have appealed, have no right to invoke the power of a court of equity to set aside the judgment which was rendered against them in the justice court, from which they failed to appeal.

It follows as a necessary conclusion of law that the judgment in favor of the Waples Painter Company against the Rosses in the justice court, having become thus final, cannot be attacked now upon grounds that existed at the time of the trial, which the Rosses failed to prosecute by an appeal to the court which had appellate jurisdiction to afford to the parties an opportunity to. present their defenses and have any error corrected.

The judgment of the justice of the peace-having thus become final against the Rosses, they are not entitled to have that judgment set aside in the district Court. The district court erred in enjoining the judgment of the justice of the peace in favor of the Waples Painter Company. The conclusion necessarily follows that the judgment of the Court of Civil Ai>peals must be reversed in so far as it enjoins the enforcement of the judgment of garnishment against the Rosses, and this casé be remanded to the district court to be tried in accordance with this, opinion.

HAWKINS, J.

(concurring). I think that the issue here relates, not to the jurisdiction or power of the district court, but to the propriety or advisability of granting the injunction, under the facts. However, I concur in the order made, reversing and remanding.
      <g=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    MATTHEWS v. STATE.
    (No. 3501.)
    (Court of Criminal Appeals of Texas.
    April 14, 1915.
    Rehearing Denied May 12, 1915.)
    1. Criminal Law ®=>1Q92, 1099 — Bill on Exceptions — Statement op Facts.
    Bills of exception and statements of facts, not presented to the trial court until more than 100 clays after adjournment, cannot be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829,, 2834-2861, 2860-2880, 2919; Dec. Dig. «=31092, 1099.]
    2. Criminal Law «=?1097 — Review—Record —Questions Presented.
    In the absence of a statement of facts, it is impossible to determine whether the issue of manslaughter in a criminal case was raised, so as to render the court’s failure to submit it erroneous.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2SG2, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. 1097.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Ernest A. Matthews was convicted of murder, and he appeals.
    Affirmed.
    A. J. Schnitzel and Y. M. Clark, both of Houston, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of murder, and his punishment assessed at 25 years’ confinement in the penitentiary.

There are but two questions presented in the motion for a new trial; one that the evidence is insufficient to sustain the verdict, and the other that the court erred in failing to submit the issue of manslaughter in his charge to the jury.

There is one bill of exceptions in the record, and it does not show to have ever been filed in the trial court. The approval of the trial judge, however, shows it was not presented to and approved by him until February 10th, more than 100 days after the adjournment of court. The statement of facts also shows to have been presented to the trial court for his approval more than 100 days after the adjournment of court for the term. Under such circumstances the motion of the Assistant Attorney General to strike them from the record must be sustained. And in the absence of a statement of facts it is impossible to determine whether or not the issue of manslaughter was raised by the testimony.

The judgment is affirmed.
      <&=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    RYAN v. STATE.
    (No. 3528.)
    (Court of Criminal Appeals of Texas.
    April 28, 1915.)
    Larceny <®^-33 — Elements oe Offense — Indictment — Requisites.
    An indictment for larceny which does not allege from whose possession the stolen property was taken is fatally defective.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 93; Dee. Dig. <®=^33.]
    Appeal from District Court, Polk County; L. B. Hightower, Judge.
    Cleveland Ryan was convicted of theft, and he appeals.
    Reversed and prosecution ordered dismissed.
    Campbell & Campbell, of Livingston, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of theft of hogs, and his punishment assessed at two years’ confinement in the state xieniten-tiary.

The indictment in this case charged that;

Appellant “did unlawfully and fraudulently take two head of hogs, the same being the corporeal personal property of Guy Sutton, without the consent of the said Guy Sutton, and with the intent to deprive the said Guy Sutton of the value of the same, and to appropriate it to the use and benefit of him, the said Cleveland Ryan, against the peace and dignity of the state.’’

No motion was made to quash the indictment in the trial court, and the question of the sufficiency of the indictment is raised for the first time in this court; it being contended that the indictment alleges possession in no one, and does not allege that the hogs were taken from the possession of Guy Sutton or any other person. It appears to be the. unbroken rule of decision in this court that an allegation of the possession from whom the stolen property was taken is necessary ; the statutory definition of theft makes it a necessary ingredient, and such allegation must be proved as made. Littleton v. State, 20 Tex. App. 168; Case v. State, 12 Tex. App. 228; Hall v. State, 22 Tex. App. 632, 3 S. W. 338; Watts v. State, 6 Tex. App. 263; Gadson v. State, 36 Tex. 350; and other cases cited in section 1483, White’s Ann. renal Code, and section 785, Branch’s Grim. Law.

There being no allegation of possession in any one the indictment is invalid, and the judgment is reversed, and the prosecution is ordered dismissed.


text:
    SMITH v. STATE.
    (No. 3538.)
    (Court of Criminal Appeals of Texas.
    April 28, 1915.)
    Criminal Law <§^>]167— Refusal to Quash Count in Indictment — Prejudicial Error.
    Where accused was found guilty under the-second count of an indictment, charging an offense, it was not prejudicial error to refuse to-quash the first count, which was defective, and under which no evidence was admissible that was not admissible under the second count on the first being quashed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3101, 3103-3106; Dec. Dig. ®=»11G7.]
    Appeal from Criminal District Court, Travis County; A. S. Fisher, Judge.
    Leonard Smith, alias Eli Jackson, was convicted of passing a forged instrument, and he appeals.
    Affirmed.
    C. C. Parker and W. J. Crider, both of Austin, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State. •
   HARPER, J.

The indictment against appellant contained two counts; one charging him with forgery, and the other with passing a forged instrument. When tried, he was found guilty under the second count in the indictment, the one charging him with passing a forged instrument, and his punishment assessed at' two years’ confinement in the penitentiary.

In the first count in the indictment, a motion to quash the indictment would show it charged that appellant did mate a false instrument in writing, purporting to he the act of Robert Lundell, while the alleged false instrument is set forth in the indictment and is alleged to be signed Robert Londell. No such variance, if variance it he held to he, appears in the second count in the indictment ; the second count reading:

“And the grand jurors aforesaid, upon their oaths aforesaid, in said county and state, at said term, do further present to said court that Leonard Smith, alias Eli Jackson, in said county and state, on or about the 4th day of January, in the year of our Lord nineteen hundred and fifteen, did then and there willfully, knowingly, and fraudulently attempt to pass as true, to one L. E. Shelby, a false and forged instrument, in writing, which had theretofore been made without lawful authority, and with intent to defraud, and was then of the tenor following: •
“ ‘Austin, Texas, 1/4/1915. No.
“ ‘The Austin National Bank
“ ‘511
“‘Pay to elie Jackson.Or Bearer $9.00
nine .Dollars
“ ‘Robert Londell.’
“Indorsed on margin of check: ‘U. S. Government Depository.’
“And which said instrument in writing the said Leonard Smith, alias Eli Jackson, then and there well knowing to be false and forged, he (the said Leonard Smith, alias Eli Jackson) did attempt to pass the same as true, with intent to injure and defraud, against the peace and dignity of the state.”

If the court erred in refusing to quash the first count in the indictment, it would not present reversible error, as appellant was found guilty under the second count in the indictment, which is a good count. Whether there had been a count charging forgery or not, it would have been necessary to introduce evidence that the instrument appellant passed was a forgery, before he could be convicted of passing it under the second count in the indictment. In the case ■of Vincent v. State, 55 S. W. 819, it was held that refusal to quash the second count in the indictment is harmless error, where the conviction was applied by the court to the first count in the Indictment. In this case the jury specifically found appellant guilty under the second count in the indictment, and, as refusal to quash the first count rendered no ■evidence admissible that would not have been admissible had the court sustained the motion, the bills present no error. Lafferty v. State, 41 Tex. Cr. R. 606, 56 S. W. 623; Butler v. State, 43 S. W. 992; Crook v. State, 39 Tex. Cr. R. 252, 45 S. W. 720.

As appellant made his motion to quash the first count before announcing ready for trial, a more difficult question would be presented, if the refusal to quash it rendered admissible testimony which would otherwise not have been admissible.

But we have no such case before us, and the judgment will therefore be affirmed.
      (g^oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    Ex parte YOUNG.
    (No. 3531.)
    (Court of Criminal Appeals of Texas.
    April 28, 1915.)
    Criminal Law <§=>576 — Continuances by State-Right to Discharge.
    That the state continued the case twice is no ground for the discharge of accused, where the time covered by both continuances did not cover over two months from the time of the arrest.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1297-1304; Dec. Dig. <@=>576.]
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    Habeas corpus by Charlie Young for his discharge from custody under an indictment charging crime. From a judgment fixing bail bond, but refusing a discharge, he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Relator was indicted, charged with robbery by the use of firearms. In his application for habeas corpus he shows that he was arrested on or about the 29th day of January, 1915, and his case set for trial on the 26th day of February; that, on account of the absence of a witness named Lon Willis, the case was postponed by the state until the 13th day of March, and on that day continued for the term by the state on account of the absence of said witness; that on both of said' days relator announced ready for trial, and demanded he be tried, but over his protest the case was continued. On the 18th day of March he sued out a writ of habeas corpus before Judge Crawford. The case was heard! on March 31st, and Judge Crawford granted him bond in the sum of $2,500, but refused to discharge him. From this order he prosecutes this appeal to this court. There is no evidence in the record to show or suggest that relator could not give bond in this sum if he desired to do so, and certainly the fact the state had continued the ease twice furnishes no ground for his discharge, when the period of time covered by both continuances did not cover over two months from the time he was arrested.

The judgment is affirmed.