author: BOYCE, J.

text:
    STUDEBAKER HARNESS CO. v. GERLACH MERCANTILE CO.
    (No. 1116.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 7, 1917.)
    1. Coepokations <@==>672(4, 7) — Foeeign Cor-poeation — -Doing Business.
    It was not incumbent on plaintiff foreign corporation to plead and prove that it had a permit to do business in the state, or that its cause of action did not arise in such manner as net to come within the terms of Rev. St. arts. 1314, 1318, where the record was silent as to whether it was transacting or soliciting business in the state, had a general or special office therein, or whether the indebtedness sued on arose out of a transaction of business in the state.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2647, 2648.]

      2. Garnishment <@=>171 — Sale in Bulk — Status as Creditor — Question eoe Juey.
    In garnishment proceedings against the purchaser of a debtor’s stock of goods in bulk, question whether plaintiff was a creditor of the seller at the time of the sale held for the jury.
    [Ed. Note. — Eor other cases, see Garnishment, Cent. Dig. § 312.]
    3. Judgment <@=317(11) — Judgment Against Non resident — Support by Garnishment.
    Judgment against a nonresident debtor, cited only by publication, would have been void without garnishment 'proceedings against the purchaser of the debtor’s stock of goods in bulk, because the court, in such event, would have had no jurisdiction either of defendant’s person, so as to render a personal judgment against him, or of any property, against which the judgment might be enforced.
    LEd! Note. — For other cases, see Judgment, Gent. Dig. § 33.]
    4. Judgment <@=3807— Garnishment — Jurisdiction to Establish Plaintife’s Demand Against Nonresident.
    When the property of a nonresident defendant is in the possession of the court by attachment or garnishment, the court has jurisdiction to establish by its judgment plaintiff’s demand, and to enforce its execution out of the property seized.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1431, 1432.]
    5. Judgment <@=>206 — Garnishment—Limiting Main Judgment.
    In proceedings against a nonresident defendant, wherein writ of garnishment is sued out, it is proper and usual to follow general judgment establishing the debt against defendant by a restriction limiting' its execution to the property in the custody of the court.
    [Ed. Note. — For other cases, see Judgment, Gent. Dig. § 379.]
    6. Judgment <@=>206 — Garnishment — Failure to Limit Execution — Validity.
    In suit against a nonresident debtor, wherein writ of garnishment was sued out, failure of the court to limit execution of the judgment in the main suit to the property reached by the garnishment proceedings will not render the entire judgment a nullity, which, the court having jurisdiction to enter judgment of debt for the particular purpose, will he given effect in so far as the court had power to render it, that is, to the extent of any property found to be in the hands of the court by virtue of the garnishment proceedings, since a garnishment is but a species of attachment, both conferring on the court the power to deal with the property taken into its possession, and both creating a lien on >t.
    [Ed. Note. — For other cases, see Judgment, Gent. Dig. § 379.]
    7. Evidence <@=>43(2) — Judicial Notice — Proceedings in Courts.
    While a garnishment suit is docketed separately from the main suit, it is ancillary to and a part of the main suit, and the court on appeal from judgment in the garnishment suit will take judicial notice of the proceedings in the main suit.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 63.]
    8. Evidence <@=>546 — Opinion Evidence — Qualification of Experi.
    The decision of the preliminary question of the qualification of an expert is usually within the discretion of the trial court.
    [Ed. Note. — For other cases, see Evidence, Gent. Dig. § 2363.]
    9. Evidence <@=3489 — Opinion Evidence —Value.
    In garnishment proceedings against the purchaser of a stock of goods in bulk, where the evidence indicated that the goods were bought and moved in bulk and intermingled with other goods, so that exact and accurate description and valuation might not be possible, while it also indicated that whoever bought the stock, whether the garnishee or another, got a large stock, the value of which was perhaps many times the value of the amount of plaintiff’s indebtedness, under such circumstances a' very general knowledge of values rendered one competent to give expert testimony thereon, and the court was justified in being more liberal in the admission of such testimony than in a case where the amount of recovery or the decision depended on an accurate and exact valuation.
    [Ed. Note. — For other eases, see Evidence, Gent. Dig. § 2274.]
    Appeal from Hemphill County Court; J. 'L. Jennings, Judge.
    Suit by the Studebaker Harness Company against James Margetts, wherein writ of garnishment was sued out against the Gerlach Mercantile Company. From a judgment for the garnishee, plaintiff appeals.
    Case reversed and remanded.
    See, also, 183 S. W. 431.
    Fisher & Palmer, of Canadian, for appellant. Hoover & Dial, of Canadian, for ap-pellee.
   BOYCE, J.

The controversy in this case between the appellant, Studebaker Harness Company, and the appellee, the Gerlach Mercantile Company, arose in a garnishment suit, in which the Gerlach Mercantile Company was garnishee, ancillary to a suit by the Studebaker Company against James Mar-getts. The Studebaker Company filed suit against Margetts in the J. P. court, and at the time of filing such suit sued out a writ of garnishment against the Gerlach Company. Margetts was cited by publication as being a nonresident, and judgment was entered on such citation in favor of the Studebaker Company against Margetts, for the sum of $125 principal, besides interest and costs of suit. The Gerlach Company answered in the garnishment suit, denying that it was indebted or had assets of the said Mar-getts in its possession. This answer was controverted by the Studebaker Company, it being alleged in the controverting affidavit that the said- Gerlach Company had bought and taken possession of the entire stock of goods of the said James Margetts, who was engaged at the time in the mercantile business, without complying with the Bulk Sales Law (Acts 31st Leg. c. 27), by notifying creditors, etc. The Gerlach Company replied, denying that it was a bulk sales transaction, and asserting that the corporation did not buy the goods. The garnishment case was appealed to the county court, and on the trial before a jury evidence was introduced that would justify the jury in finding that Mar-getts being engaged in the mercantile business sold Ms stock of goods to the Gerlach Company in such manner as to bring the sale witMn the provisions of the Bulk Sales Law. The court, on the trial, instructed a peremptory verdict for the Gerlach Company, the garnishee, and the appeal is from the judgment entered on this verdict.

The decision of the appellant’s assignments of error, complaining of the action of the court in giving the peremptory .instruction, presents these questions: (1) Whether, it appearing that the plaintiff Studebaker Company was a foreign corporation, it was necessary for it to plead and prove that it had a permit to transact business in Texas, or, if it had not, to show facts that would entitle it to maintain the suit, notwithstanding it did not have the permit; (2) whether there is any evidence that the goods were purchased of James Margetts by the Gerlach Company; (3) whether there is any evidence that the plaintiff was a creditor of James Margetts at the time of the sale in question; (4) whether the judgment rendered in the main case against Margetts was absolutely void as being merely a personal judgment affording no basis for the rendition of a judgment in the garnishment case.

WMle the record shows that the appellant is a foreign corporation it is silent as to whether it was transacting or soliciting business in the state or had a general or special office in the state, or whether the indebtedness sued upon arose out of a transaction of business in Texas. Under such circumstances, it was not incumbent on the appellant to plead and prove that it had a permit or that its cause of action did not arise in intrastate commerce or such manner as not to come within the terms of articles 1314 and 1318 of the Revised Statutes. Brin v.

Wachusetts Shirt Co., 43 S. W. 295; King v. Monitor Drill Co., 42 Tex. Civ. App. 288, 92 S. W. 1047; Brown v. Guarantee Savings, Loan & Investment Co., 46 Tex. Civ. App. 295, 102 S. W. 138; New State Land Co. v. Wilson, 150 S. W. 253; Adams v. Gray & Dudley Hardware Co., 153 S. W. 650; Panhandle Telephone & Telegraph Co. v. Kellogg Switchboard & Supply Co., 62 Tex. Civ. App. 402, 132 S. W. 963. So that the action, of the court in giving a peremptory instruction could not be justified on this ground, if it be conceded that this question could be raised in the trial of the garnishment case.

We think the testimony of Gerlach, president of the Gerlach Mercantile Company, taken in connection with that of its bookkeeper, Nolen, would be sufficient to justify the conclusion by a jury that Gerlach bought the. goods for the corporation, and not for himself individually.

The evidence tending to prove that appellant was a creditor of Margetts at the time of the alleged sale to the Gerlach Company is only indirect. The sale was made in July, 1913. Suit was filed by the Studebaker Company against Margetts in October, 1913. There is no direct testimony as to the time when the indebtedness in favor of the Studebaker Company against Margetts was incurred, nor as to the character of the indebtedness, the only testimony on this point consisting of a statement by one of appellant’s attorneys, that he was attorney for plaintiff in the original suit, and that “the original cause of action was in the spring of 1913,” and he did not receive any notice of the sale of the stock of goods by Margetts. While this testimony is not as direct on the issue as it might be, it is sufficient, we believe, to have entitled the plaintiff to go to the jury.

The judgment in favor of the studebaker Company against Margetts recites that service was had by publication, and is in the regular form of a personal judgment for $125, interests and costs, decreeing execution for collection thereof, and does not refer in any way to the garnishment proceedings. This judgment without the garnishment would be void, because the court, in such event, would have no jurisdiction, either of the person of the defendant, So as to render a personal judgment against him, or of any property against which the judgment might be enforced. However, when the property of a nonresident defendant is in the possession of the court by attachment or garnishment, the court has jurisdiction to establish by its judgment the demand of the plaintiff against the defendant, and enforce its execution out of the property seized by virtue of the attachment or garnishment proceedings. Berry v. Davis, 77 Tex. 191, 13 S. W. 978, 19 Am. St. Rep. 748; Goodman v. Henley, 80 Tex. 499, 16 S. W. 432; Wilson Hardware Co. v. Anderson Knife & Bar Co., 22 Tex. Civ. App. 229, 54 S. W. 928; Austin National Bank v. Bergen, 47 S. W. 1037; Gerlach Mercantile Co. v. Hughes-Bozarth-Anderson Co., 189 S. W. 789; Cooper v. Reynolds, 10 Wall. 308, 19 L. Ed. 931. That part of the judgment establishing the debt is usually in the regular form of an ordinary judgment for debt.

It is no doubt proper, and is usual in this character of cases, to follow this general judgment by a restriction limiting its execution to the property in the custody of the court. In all of the Texas eases we have cited above, except the case of Berry v. Davis, it appears that the judgment in the principal case contained such a limitation. The form of the judgment in the last-mentioned case does not appear from the opinion of the court.

But these authorities establish conclusively that the court has jurisdiction to enter a judgment establishing the debt for the purpose of enforcing it against the property in hand, and the question in this case is whether the failure of the court to limit its execution will render the entire judgment a nullity, or whether, the court having jurisdiction to enter the judgment of debt for the particular purpose, the said judgment will be given effect in so far as the conrt had the power to render it, and that part only which was entered in excess of its jurisdiction be held to he void. In the case of Barelli v. Wagner, 5 Tex. Civ. App. 445, 27 S. W. 17, where an attachment had been issued against the property of a nonresident and a general personal judgment, awarding execution was rendered, which was void, it was held that this “did not affect the validity of so much of the judgment as adjudged the amount due the plaintiff, and directed the sale of the attached property to satisfy the same.” See, also, Foote v. Sewall, 81 Tex. 660, 17 S. W. 373. A garnishment is but a species of attachment. They both confer upon the court the power to deal with' the property, thus taken into its possession, and they both create a lien on such property. In the attachment proceedings there is, of course, only one case on the docket, and the attachment lien is foreclosed in the same judgment with that establishing’ the debt. In the garnishment case there is usually no foreclosure of the lien in the judgment of debt against the principal debtor, this being effected by the execution of the judgment itself in the garnishment suit. While the garnishment suit is docketed separately, it is ancillary to and a part of the principal suit, and the court will take judicial knowledge of the proceedings in the main suit. Kelly v. Gibbs, 19 S. W. 380, 563 ; Kreisle v. Campbell, 89 Tex. 104, 33 S. W. 852. So in this case, we think the proceedings in the main suit, and in the garnishment suit, should be considered together. When so considered, it appears that the court has jurisdiction to enter judgment establishing the indebtedness, and to enforce satisfaction thereof out of any property that may be found to be in the hands of the conrt by virtue of the garnishment proceeding; and we conclude that the judgment in the principal case and such judgment as may be entered in the garnishment case, in so far as they accomplish that which the court has power to do, will be upheld.

These conclusions will result in a reversal of the judgment. We do not think that the evidence is such as to justify us in rendering judgment as insisted upon by appellant.

The questions raised by assignments as to the introduction of evidence may perhaps not arise in another trial, though we deem it proper to make some statement of the law as to the introduction of evidence establishing the value of the property alleged to have been delivered by Margetts to the Gerlach Company, as most of the assignments as to rulings on the evidence related to this subject. The decision of the preliminary question of the qualification of an expert is usually within the discretion of the trial court. Dallas Consolidated Electric Railway Co. v. English, 42 Tex. Civ. App. 393, 93 S. W. 1096; El Paso Ry. Co. v. Smith, 50 Tex. Civ. App. 10, 108 S. W. 988; Missouri, etc., Ry. Co. v. Hedric, 154 S. W. 633. Of course a witness testifying as to value must show some knowledge of the subject, and of facts which would render his testimony of assistance in determining the question in issue.

The evidence in this case indicates that the goods were bought and moved in bulk and intermingled with other goods, so that exact and accurate description and valuation might not be possible. The evidence seems also to indicate that Gerlach or the Gerlach Mercantile Company — whoever bought the stock — got quite a large stock of goods, consisting of harness, saddles, leather, shoes, etc., the value of which was perhaps many times the value of the amount of plaintiff’s indebtedness. A very general. knowledge of values might, under such circumstances, render one competent to give testimony, and the court would be justified in being more liberal in the admission of'such testimony than in a case where the amount of the recovery or decision of the case would depend on an accurate and exact valuation. Gerlach Merct. Co. v. Hughes-Bozarth-Anderson Co., supra.

The ease is reversed and remanded for a new trial.

       Reported in full in the Southwestern Reporter; reported as a memorandum decision without opinion in 84 Tex. 143.

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

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


source: Caselaw Access Project

author: SWEARINGEN, J.

license: Public Domain

text:
    LEVY v. ENGLE BROS. CO.
    (No. 5769.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 7, 1917.)
    1. Appeal and Error <@=>281(1) — Review — Preserving Questions for Review — Assignments ott Erbob.
    Under Rev. St. 1911, art. 1612, the appellate court is not authorized to consider assignments not distinctly specified in appellant’s motion for new trial.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1650-1661.]
    2. Appeal and Ebror <@=>293 — Review — Fundamental Error.
    Where the pleadings allege a cause of action justifying judgment for some amount, the fact that the judgment was for an amount less than the facts required, or was rendered for that sum because of improper evidence, presents no fundamental error which would warrant a reversal, where the error assigned was not specified in. appellant’s motion for new trial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent.. Dig. §§ 1395, 1700-1703, 1705, 1706.]
    3. Appeal and Error <@==>501(5), 704(2) — Review — Assignments oe Error.
    A cross-assignment of error in appellee’s brief assigning insufficiency of judgment will not be considered, where it does not appear by the record that appellee excepted to judgment and caused such exception to be noted on record as required by Rev. St. 1911, art. 1991, or that such assignment was filed in trial court, and no brief filed in appellate court contains trial court’s certificate that such brief is copy of brief filed in trial court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2305, 2939, 2941.]

      Appeal from Bexar County Court for Civil Cases; Jphn H. Clark, Judge.
    Action by the Engle Bros. Company against Ike Bevy. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Cordon Bullitt, of San Antonio, for appellant. Lipscomb & Lipscomb, of San Antonio, for appellee.
   SWEARINGEN, J.

This is a suit brought by appellees, Philip Engle, Jake Engle, and Max Engle, composing the firm of Engle Bros., against Ike Levy, appellant, to recover a broker’s commission. Appellees alleged an express agreement of employment and compensation of $450, performance of agreed services, and failure to pay in their first amended petition, and in their trial amendment, in the alternative, alleged an express agreement of employment for reasonable compensation. Appellant demurred to both and denied all the allegations. The cause was submitted to the court without a jury, resulting in a judgment for appellees for $350. The record contains no statement of facts, but the court filed his findings of fact and conclusions of law.

The error complained of in the first assignment was not distinctly specified in appellant’s motion for new trial, and by article 1612 of the Revised Civil Statutes the appellate court is not authorized to consider the assignment. Counsel for appellant was evidently conscious of this rule and presents the first assignment as fundamental error.-

The pleadings alleged a cause of action justifying judgment for some amount. If the judgment was for an amount less than the facts found by the court sustained, or was rendered for that sum because the court was influenced by improper evidence, no fundamental error is presented. Lone Star Ins. Union v. Brannan, 184 S. W. 691; Houston Oil Co. v. Kimball, 103 Tex. 95, 122 S. W. 533, 124 S. W. 85; Railway v. Maxwell, 104 Tex. 632, 143 S. W. 1147; Oar v. Davis, 105 Tex. 479, 151 S. W. 794.

The second assignment fails as an assignment for the same reasons given above. The error was not distinctly specified in appellant’s motion for new trial. It, too, is presented for the purpose of suggesting funda,-mental error. The error is that the pourt found as a fact that $15 of the commission had been paid by appellant to appellees, but the judgment failed to allow appellant credit for this sum. It is even admitted by appel-lees in their brief that this was error. However, it is not fundamental within the meaning of the statute authorizing the consideration of fundamental error without statutory assignments because the judgment rendered was for a greater or less amount than the evidence or court’s finding of facts warranted. We are without authority to review the cause. .

By cross-assignment of error appellees contend: The court erred in not entering judgment in plaintiffs’ (appellees’) favor for the sum of $485. It does not appear from the record that appellees excepted .to the judgment and caused it to be noted on the record in the judgment entry as required by article 1991 of the Revised Civil Statutes. Furthermore, this cross-assignment does not appear from the record to have been filed in the trial court, but is incorporated in the briefs of appellees. However, there is no brief of appellees filed in this Court of Appeals in this cause containing a certificate of the trial court showing that it is a copy of the brief filed in the trial court. Gibbs v. Eastham, 143 S. W. 323. For the reasons above stated, this court is without authority to consider the cross-assignment. The error complained of is not a fundamental error.

There is no fundamental error of record, and we are without authority to consider the assignments and cross-assignment.

The judgment of the trial court is affirmed.
      É=>Eor other oases sed same topic and K13Y-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    CITY OF SAN ANTONIO v. REED et al.
    (No. 5747.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 31, 1917.
    Rehearing Denied Feb. 28, 1917.)
    1. Action <3=^13—Right to Sue—Choses of Action.
    The holder of a bare legal title to a chose in action may sue thereon, although he has no beneficial interest.
    [Ed. Note.—For other cases, see Action, Cent. Dig. §§ 76-83.]
    2. Continuance <@=>29 — Right to Sue — Choses in Action.
    . In suit by the assignee of the legal title to chose in action, where defendant by cross-examination developed the fact that plaintiff held for the equitable use of the real owner, such evidence not being admissible under the pleadings, it was not error to overrule defendant’s application to withdraw announcement of ready on the ground of surprise.
    [Ed. Note.—For other cases, see Continuance, Cent. Dig. § 95.]
    3. Assignments <©=>132 — Right to Sue — Choses in Action—Issues and Proof— Evidence.-
    In an action by the assignee of a chose in action, it was not error to admit testimony of the amounts due on the theory that there was a fatal variance between pleadings and proof, though it was shown on the trial that the assignors retained-a beneficial interest.
    [Ed. Note.—For other eases, see Assignments, Cent. Dig. §§ 227, 228.]
    4. Jury <©=>139 — Selection of Jury — Consultation.
    There is no statute prohibiting parties from consulting and acting together in exercising their challenges.
    [Ed. Note,—For other cases, see Jury, Cent. Dig. § 627.]
    5. Appeal and Error <©=>1045(1)—Harmless Error — Selection of Jury —Number of Challenges.
    In action against a city and an individual, where the individual filed a cross-bill against the city, and the subject of the cross-bill and the petition arose from the same transaction, the cross-complainant having assigned part of his claim to the plaintiff, while it was not proper to allow the plaintiff and the individual each six challenges, there was no ground for complaint where the individual and the plaintiff each exercised but three challenges.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 4124.]
    6. Abatement and Revival @=>84 — Plea in Abatement — Time eoe Piling.
    Where, after defendant had answered on the merits, it asked leave to file a plea in abatement, but failed to ask leave to withdraw its pleadings, the plea in abatement must be overruled.
    [Ed. Note. — Eor other cases, see Abatement and Revival, Cent. Dig. §§ 155, 176, 507-510; Pleading, Cent. Dig. § 212.]
    7. Municipal Corporations <@=>340 — Public Improvements — Contracts — Powers oe City Oeetcers.
    Where the city empowered the mayor to enter into a contract for street paving, the work to be controlled by the city engineer, it was beyond the mayor’s, powers to include in the contract an arbitration agreement, and the city was not bound thereby; the principle .that those dealing with an agent are bound to ascertain the nature of his authority being more strictly applied in regard to municipal corporations than private corporations.
    [Ed. Note. — Eor other cases, see Municipal Corporations, Cent. Dig. § 809.]
    8. Appeal and Error <@=>1050(1) — Harmless Err’or — Admission oe Evidence.
    But error in admitting evidence of such arbitration agreement was not prejudicial, where the findings, aside from that relating to the arbitration, were sufficient to support the judgment.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153, 4157.]
    9. Parties <@=>25 — Proper Parties — Interest.
    It is proper for all parties claiming an interest in the fund in suit to be joined in order that all. rights may be determined in one suit.
    [Ed. Note. — Eor other cases, see Parties, Cent. Dig. §§ 31, 36 — 10.]
    10. Limitation oe Actions <@=3127(13) — Amendment — New Cause oe Action.
    Where the petition as first' brought by a ma-terialman against a city was amended to set up assignments by the contractor to the material-man, the action was not barred on the theory that a new cause of action was stated.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 545; Pleading, Cent. Dig. § 688.]
    Appeal from District Court, Bexar County; S. G. Tayloe, Judge.
    Action by James M. Reed against R. G. Scott, the Texas Fidelity & Bonding Company, the< Frost National Bank, and the City of San Antonio. The Bonding Company demurred to the petition, and went out of the case without objection on the part of plaintiff ; the bank filed a disclaimer and was dismissed, and Scott filed an answer and cross-bill. Judgment for Reed against Scott and the City, and for Scott against the City, and the City appeals.
    Affirmed.
    Geo. R. Gillette, Robt. J. McMillan, and R. G. Harris, all of San Antonio, for appellant. Leo Tarleton, Ryan & Matlock, and Frank H. Wash, all of San Antonio, for appellees.
   MOURSUND, J.

James M. Reed sued R. G. Scott, the Texas Fidelity & Bonding Company, the Frost National Bank, and the City of San Antonio, to recover $549 and interest, which he claimed Scott owed him. He alleged that the sum of $417 was due him for work which he had done and teams which he had furnished for work to be done on Buena Yista street in the city of San Antonio; that the sum of $70 had originally been owing by Scott to William Small and the sum of $62 to M. D. Crowell, which claims Reed alleged had been transferred to him by said, parties, and of which he alleged he was the owner. For cause of action against the city of San Antonio he charged that the work was done by him and by Crowell and Small upon' Buena Yista street, one of the streets in San Antonio; that Scott had a contract with the city of San Antonio for grading and macadamizing Bnena Yista street, and that the city of San Antonio had retained out of moneys owing to Scott on that contract over $2,000; that the city had the right to, and should have made provision in its estimates of payments to said Scott.for, the payment of all claims.for labor and material, and that it was bound to pay, or cause to be paid, all of said claims. Therefore he claimed that he had some character of lien on said money-in the city’s hands, and asked that he recover judgment against the city for such amount as he recovered against Scott. He brought the Texas Fidelity & Bonding Company into the suit as a surety for Scott, and the Frost National Bank as claiming some interest in the funds in the city’s possession. Said Fidelity & Bonding Company urged a demurrer to the petition, which was sustained, and it went out of the case without objection on the part of plaintiff. The Frost Bank filed a disclaimer, and was dismissed from the case, leaving Reed, Scott, and the city of San Antonio the only parties remaining.

Defendant Scott filed a first amended original answer and cross-bill in the case. In this answer he denied that he owed Reed the amount of money claimed! as due to him and the amounts claimed to have been owing to Crowell and Small, but said, on the contrary, that the total amount which he owed to the plaintiff, Reed, upon all of Reed’s claims, was $410.

Having pleaded this issue of fact between himself and Reed, he then pleaded over against the city of San Antonio by way of cross-bill. In his' said cross-bill, the said Scott charged that on or about the 15th day of February, 1913, he and the city of San Antonio entered into a contract for the macadamizing of Buena Vista street between South Pinto street and South Murray street, and that the city bound itself to pay him the sum of $9,800 for the work. A copy of the contract was attached to the cross-bill. He alleged that he went to work under said contract on February 20th, and proceeded in strict accordance with the plans and specifications contained therein, and received from the city the regular payments in accordanjce with the terms thereof; that on or about May 28, 1913, the city of San Antonio took the work away from him and proceeded to complete the macadamizing of the street with its own forces; that at the time the city took the work away from him he had been complying with his contract, and that, while a number of delays, which he sets out in his cross-bill, had occurred, they were either caused by the city of San Antonio or by a strike upon the part of his men, or by such inclement weather as to make it Impossible for him to work.

Defendant Scott charged: That the city of San Antonio had failed to comply with its contract in giving him his monthly estimates in order to qnable him to pay his men, and that by reason of that fact he had had a strike upon his work which had operated to delay same. That on or about May 21, 1913, he had received from the mayor of the city of San Antonio a letter which he sets out in his cross-bill, advising that the work was not proceeding satisfactorily, and was being so delayed that it could not be finished within the time provided fon by the contract, to wit, 90 working days, and that unless he proceeded with the work with due dispatch the city would exercise its right, retained in clause 8 of the contract, to complete the work at his charge and expense. To this he responded through his lawyer, Mr. Walsh, setting out in detail the delays which he claimed to have sustained, and offered, in-event the city disagreed with him as to whether the work was properly proceeding or not, to arbitrate the matter in accordance with paragraph 5 of the contract. That in response to this letter he received one from the Mayor’s secretary, advising him that the mayor was considering the matter and would take it up with him again. That on May 28th the city of San Antonio took over the work and proceeded to complete same with its own forces. Said Scott charged that this was done in violation of the provision of the contract providing for arbitration, and, furthermore, that the city was in error in assuming that the work was not proceeding properly, and that he was proceeding with due dispatch, with proper allowances for the delays provided for in the contract.

Defendant Scott further charged that at the time the work was taken away from him it was about three-fourths completed; that according to the estimates of the city engineer he had earned $7,468.66, and that he had been paid only $5,013.60, one-fourth of such estimate having been retained by the city; that he could have completed the work, had he been permitted to do so, for the sum of $2,000, and that the city had therefore damaged him by taking the work from him, to the extent of $2,787.40. He also claimed $58 for tools and materials which he said the city-had taken, and prayed that the plaintiff Reed take judgment against him only for $409.50, and that he have judgment over against the city for the amount of his damages as alleged by him.

On November 8, 1915, Reed filed an amended petition, containing averments substantially the same as in his original petition, save that he alleged that on or about the-day of July, 1913, the defendant Scott had transferred, assigned, and set over unto him such an interest in the funds arising from the contract with the city as would pay and satisfy his, the said Reed’s, claims. This amendment was filed to meet the ruling of the trial court to the effect that there was no privity between said city and Reed, and that Reed had no direct claim upon such a fund as might be in the city’s hands.

The defendant Scott filed a third supplemental answer, and admitted that he had made such an assignment to the said Reed.

The city of San Antonio answered plaintiff’s petition by general demurrer, special exceptions, pleaded that his cause of action was barred by limitation, inasmuch as in his original suit in July, 1913, he simply charged that the city had funds of Scott’s in its hands, and that it should protect plaintiff as a labor and material man, whereas in his amended petition filed in November, 1915, he changed his cause of action against the city and set up an entirely different cause of action, claiming that he had an assignment of funds in the city’s hands. The city denied that there was any privity between it and the plaintiff, Reed, and alleged that it was under no obligation to see that the said Reed was paid, even though it had funds of Scott’s in its hands, which fact it denied. It denied that it had any dealings or transaction with plaintiff in the matter at all, and represented to the court that any cause of action which plaintiff might have was against the defendant Scott, and not against the city of San Antonio.

Answering the cross-bill of defendant Scott, the city first pleaded in abatement, charging a misjoinder of causes of action, stating that plaintiff’s .suit was originally a suit against Scott for debt, and, in effect, an attempt at garnishment against the city of San Antonio, whereas the cross-bill of the defendant Scott against the city involved a construction of the contract between him and the city, the merits of the controversy between him and the city with regard to his performance of said contract, and various questions of law and fact with reference to the city’s liability to said Scott for profits, etc. The city alleged that these were issues not involved in the original suit, and were improperly joined in this cross-bill.

The city further answered by a general demurrer, special exceptions, a general denial, and specifically denied that it had retained in its possession $2,000 belonging 'to Scott. It denied that the said Scott was proceeding to carry out his contract with due diligence and dispatch, and, on the contrary, represented to the court that he had wholly failed and refused to carry out said contract, and had made default in the performance thereof ; that he had neglected his work and failed to pay his employes, thereby creating a strike among them in such a manner as to render it impossible for him to proceed with the work; that said work was laying in a partially completed condition and rapidly deteriorating ; that the said Scott, though repeatedly warned by the city that the work was not progressing in a satisfactory manner, and though repeatedly advised that the work could not be completed in accordance with the contract in the way in which he was doing it, failed and refused to comply with his contract and to use due diligence and dispatch; that, in spite of these facts, he failed and refused to go ahead with the work, making it necessary for the city to take same over under the terms of the contract, for the purpose of completing same.

The city also denied that it had in any way caused any delay in the work, on its part, and denied that he was entitled to the lime for the many delays claimed by him for the various reasons set out by him in his cross-bill.

To this answer of the city the defendant Scott filed a third supplemental answer containing several special exceptions and a general denial.

Upon the trial of the case the city filed, with leave of the court, a first trial amendment, in which trial amendment it excepted to that portion of Scott’s original answer ih which he charged the city with having disregarded the provision for arbitration, in the contract, because the ordinance attached to said answer showed that the mayor was not authorized to enter into a contract providing for arbitration of disputes.

The city further alleged, without waiving the benefits of its exceptions, that the mayor, in entering into a contract providing for arbitration,. had exceeded the authority given him by the ordinance passed by the city council, which ordinance simply authorized him to enter into a contract providing for' the paving of the street in accordance with the plans and specifications prepared by the city engineer, and that said plans and specifications contained no provisions for arbitration, but, on the contrary, provided that the work should be entirely under the control of the city engineer.

The city of San Antonio also filed a second trial amendment, in which trial amendment it denied that said Scott had earned $7,468.66 as chargéd- by him, and denied that he had been damaged in the sum of $2,787.40, as chatged by him.'

The city then set up in detail the amount of money' which it had expended in completing the work, giving‘an itemized statement thereof, the total of which was $4,420.47. It further charged that by reason of Scott’s default in the premises it became necessary for the city to employ the time and effort of its engineer in completing said Scott’s work, and to use the services of other persons, especially one A. B. Manness, to supervise and control said work; that these parties were required to give more time to same than they would have had to give had the said Scott completed the work himself, to the city’s damage in the sum of $600.

To this trial amendment the defendant Scott replied by a fourth supplemental answer and cross-bill, in which he specially excepted to the city’s allegation with regard to having been damaged to the extent of $600 by reason of having employed its engineering force to complete this work. This special exception the court sustained, over the city’s protest. Defendant Scott also denied the allegations contained in said second trial amendment.

The pleadings are voluminous, but the foregoing statement thereof, most of which is a literal copy of the statement in appellant’s brief, will, we think, be sufficient in view of the matters complained of in the brief.

The case was submitted upon special issues, and upon the answers by the jury the court rendered judgment in favor of Reed against Scott and the city for $451 with interest, and in favor of Scott against the city for $2,786.90, from which amount it deducted the $451 awarded to Reed, leaving a judgment in favor of Scott against the city for $2,336.90, with interest thereon at the rate of 6 per cent, per annum from August 1, 1913.

By the first assignment of error complaint is ma'de because the court overruled appellant’s application for leave to withdraw its announcement of ready for trial and to continue the cause to a later date. The facts are as follows: Reed alleged that Crowell and Small had for value transferred and assigned to plaintiff their claims, and that plaintiff was the holder and owner thereof. He did not sue said parties upon any warranty or guaranty. Upon the trial it developed that Crowell and Small had only assigned the claims to Reed in order that he might sue thereon, and, if successful, collect the proceeds and deliver the same to Crowell and Small. Thereupon appellant made its application above mentioned, setting out, in substance, that it had not been apprised in any way of the fact that the real ownership of the claims remained in Crowell and Small, and had been deprived of its opportunity of testing the jury’s relationship and friendship to Crowell and Small. The court then asked the jurors some questions, in answer to which it developed that Juror Haley knew Crowell, and had at one time had him in his employ. Haley testified that this fact would not influence him in finding a verdict. Thereupon the court excused the jury from the room, and suggested to counsel that Haley be excused from the jury by agreement, to which counsel for appellant consented, but counsel for plaintiff Reed and defendant Scott refused to agree. Thereupon counsel for appellant demanded that he be excused, but the court overruled such demand. Appellant then again presented its application for leave to withdraw announcement of ready, etc., which was overruled by the court.

Our decisions sustain the right of the holder of the bare legal title to a chose in action to sue thereon, although he has no beneficial interest. Continental Oil & Cotton Co. v. Gin & Machine Works, 62 Tex. Civ. App. 422, 131 S. W. 415; St. Louis & Southwtestern Ry. v. Jenkins, 89 S. W. 1107; Wells Fargo v. Pugh, 185 S. W. 61; Cleveland v. Heidenheimer, 92 Tex. 108, 46 S. W. 30. It appears, furthermore, that in such cases, in the absence of equities against the real owner being pleaded, the inquiry as to who is the real owner is not pertinent to any issue in the case. Thompson v. Cartwright, 1 Tex. 87, 46 Am. Dec. 95; Martel v. Hernsheim, 5 Tex. 209; McMillan v. Croft, 2 Tex. 397; Grayson v. Winnie, 13 Tex. 288. In this case the appellant, on cross-examination, developed the fact that Small and Crowell were still the real owners of the claims assigned to Reed. Had Reed objected, such evidence would have been excluded, for there were no pleadings which justified its introduction. Upon the facts as disclosed by the pleadings the city found it unnecessary to interrogate the jurors in regard to their acquaintance' with Small and Crowell. Had it not introduced irrelevant testimony, the facts which caused it to regret the failure to make such inquiries would not have been developed. Under the circumstances, we fail to see any error in overruling the application. The first assignment is overruled.

By the second, assignment it is contended the court erred in admitting testimony of the amounts due because of the services of Crowell and Small, the' theory of the city being that there is a fatal variance between the pleadings and the proof, owing to the disclosure of the fact that said parties retained the beneficial ownership of their claims. The assignment is overruled upon the authority of the decisions above cited.

Complaint is made of the ruling of the court in allowing Reed and Scott each six challenges, and in permitting counsel for said parties to strike the jury together. In the case of First National Bank v. Railway, 97 Tex. 201, 77 S. W. 412, the Supreme Court held that there was no statute prohibiting parties from consulting and acting together in exercising their challenges. This decision disposes of the second objection made by the city.

Though at common law-a part'of a claim could not be assigned- without the consent of the debtor, the rule in equity, sustaining such assignments, prevails in this state. Avery v. Popper, 92 Tex. 337, 49 S. W. 219, 50 S. W. 122, 71 Am. St. Rep. 849. Partial assignments are given effect because all parties may be brought into court and protection given the debtor; but the concession is made upon the condition that the debtor be not subjected to more than one suit, and that he be not prejudiced. Harris Co. v. Campbell, 68 Tex. 22, 3 S. W. 243, 2 Am. St. Rep. 467; Harris County v. Donaldson, 20 Tex. Civ. App. 9, 48 S. W. 791. If separate suits are brought and they are consolidated, the debtor should be taxed only with costs in one. Avery v. Popper, supra. If specific sums are assigned there would be no controversy between the various owners, and they would be entitled to only six challenges jointly, but our courts have sustained assignments for a sum to be fixed by judicial inquiry. Milmo National Bank v. Convery, 8 Tex. Civ. App. 181, 27 S. W. 828; Campbell v. Grant Co., 36 Tex. Civ. App. 641, 82 S. W. 794. Of such character was the assignment obligingly made by Scott to Reed after the suit had been instituted. If courts of equity in their liberality to assignees are going to subject persons, against whom a claim is asserted, to a trial in which every assignee of a part of the alleged claim will be awarded six challenges, and all may act in concert in striking names, it cannot be said that such alleged debtor is not prejudiced by permitting such assignments to be made. It is difficult to see why he should not have as fair a chance to defeat the claim split into parts as- he would have to defeat the suit of the original claimant alone. For these reasons we are inclined to the view that if owners of claims split them up in such a manner as to create controversies between themselves and the holders of portions thereof, all of such holders should together be allowed only one set of challenges. However, the decision of such question is not necessary on this appeal, because we are required to overrule the assignment upon a ground, which, though technical, appears to be established by our decisions. The bill of exceptions fails to show any reversible error. Reed and Scott each exercised three challenges. The' city exercised four, and the jury was obtained from the regular panel. It is true that if Reed and Scott had been limited to six challenges the city would have been more free to use its two additional challenges, because there would not have been danger of having to. select from talesmen. ' However, the bill of exceptions fails to show that any objectionable juror was accepted by reason of such facts, and it may be doubted whether the city could refrain from striking the name of such a juror on the theory that jurors more objectionable might be obtained in the event talesmen were summoned. In support of the holding that the hill of exceptions fails to show reversible error we cite: Waggoner v. Dodson, 96 Tex. 6, 68 S. W. 813, 69 S. W. 993; Paris Grocer Co. v. Burks, 99 S. W. 1136; I. & G. N. v. Bingham, 40 Tex. Civ. App. 469, 89 S. W. 1113; Sweeney v. Taylor Bros., 41 Tex. Civ. App. 365, 92 S. W. 442. The third assignment is overruled.

It may be said in passing that these decisions, as well as the difficulty of showing on motion for new trial that controversies were simulated, illustrate the difficulty courts will have in protecting alleged debtors, if each assignee is awarded six challenges.

Appellant also complains of the overruling of its motion for leave to file a plea in abatement after the trial had begun, in which plea appellant contended the evidence disclosed that the sums claimed by Reed had been fraudulently exaggerated for the purpose of giving jurisdiction to the district court. As appellant did not ask leave to witlidraw its pleadings, we cannot assume that such was its intention, and it is well settled that the plea in abatement should be overruled unless filed prior to pleas to the merits. Appellant relies upon the case of Hoffman v. Bldg. Ass’n, 85 Tex. 409, 22 S. W. 154, but it does not appear that it brought itself within the terms of the rule therein announced.

The fifth assignment of error reads as follows:

“The court erred in taking into consideration, or permitting the jury to take into consideration, in this case, the paragraphs in the contract with regard to arbitration, over the objections raised by the city by special exception and by special plea and by requested special charge, because the mayor of the city of San Antonio exceeded his authority in inserting- said provisions for arbitration in the contract, the city council having only authorized him to enter into a contract with the said Scott for the paving of Buena Vista street in accordance with specifications prepared by the city engineer, which specifications provided that the work should be under the control of the engineer. and contained absolutely no provisions for arbitration.”

The charter provided that no contract on the part of the city shall be made or authorized otherwise than by ordinance. The ordinance authorizing the mayor to enter into a contract with Scott provided that the mayor is authorized to enter into a contract in accordance with the plans and specifications prepared by the city engineer and with the proposal of R. G. Scott. Scott’s proposal was to macadamize Buena Vista street in accordance with the plans and specifications prepared by the city engineer for the sum of $9,-800; time required, 90 working days. The so-called plans and specifications contained provisions to the effect that the subgrade was to he rolled to the satisfaction of the -city engineer; that limestone rock, eight inches thick, after being rolled to the satisfaction of the city engineer, shall then be placed on sub-grade; that the work is to be entirely under control of city engineer; that he may, by written notice, require the removal from the premises of any material worked or unwork-ed, not in accordance with the specifications; that the city will always withhold 25 per cent, of amount due as a guaranty of satisfactory completion of the work, and total amount will be paid after the completion of the work.and final acceptance by the mayor upon recommendation of city engineer, “provided said macadam shall he found in sound and satisfactory condition and free from any defect.” A copy of the plans and specifications was attached to the contract made by the mayor with Scott. In said contract it is provided:

“In case of any dispute in relation to construction or completion of the work or material, or the quantity or quality of the work or material, or the interpretation of the plans and specifications bearing on the _ work, such dispute shall be referred to a disinterested competent third party selected by the mayor and said Scott as umpire, and should they not agree on such selection, then the mayor and said Scott shall each appoint an arbitrator, and these two shall select a third. The decision of such umpire or of a majority of said arbitrators (as the case may be) shall, on all points of dispute, he final.”

Speaking of the power of public agents or officers to make contracts, Mr. Dillon, § 775 (5th Ed.) says:

“Public corporations may by their officers and duly authorized agents make contracts within the scope of their legislative powers the same as individuals and other corporations, in matters that appertain to the corporation; being artificial persons, they cannot contract in any other way. Public officers or agents are held more strictly within their prescribed powers than private general agents; and a contract made by a public agent within the apparent scope of his powers does not, if there be no estoppel, bind his principal in the absence of, actual authority. A distinction has been held to exist in certain' cases at least between the acts of an officer or agent of a public municipal corporation and those of an agent for a private individual. In cases of public agents the public corporation, it is said, is not bound unless it manifestly appears that the agent is acting within the scope of his real and lawful authority, or he is held out by the authorized and proper officials or body of the municipality as having authority to do the act, or is employed in his capacity as a public agent to make the declaration or representation for the government.”

We believe that the legal rights of the parties under the arbitration clause above set out differ from those which follow from the provisions contained in the so-called plans and specifications mentioned in the ordinance and attached to the contract. Dillon on Municipal Corporations (5th Ed.) §§ 823, 813. The principle that those dealing with an agent are bound to ascertain the nature and extent of his authority is more strictly applied in regard to municipal corporations than private corporations. Dillon on Municipal Corporations, § 777. The ordinance constituted the grant of power to the mayor to make a contract, and limited his power to the provisions of the “plans and specifications.” In so far as he exceeded such authority he did not bind the city, and we believe lie bad no authority to insert the arbitration clause, and thus materially change the terms he was directed to embrace in the contract. Appellant does not indicate in the brief in what way it was injured by the rulings so complained of. The following facts were "found by the jury in answer to special issues: That, at and prior to the time the city of San Antonio took over said work, defendant Scott was proceeding with the same with such speed and diligence as would have enabled him to have completed the same in accordance with the terms of his contract; and, had the city of San Antonio not taken charge of said work, he could and would have performed and completed the same in compliance with his contract; that Scott would have been required to expend $2,000 to have completed said work; that the reasonable value of the work performed and material furnished by Scott on said work up to the time the city took over the same was $7,469.33; that the cost and expense to Scott of the work performed and material furnished on said work, up to the time the city took over the same, was $6,300: that the city spent $4,420.47 in the completion of the work covered by the contract; that the entire sum so expended was not reasonable and necessary; that $2,425.17 of said amount was reasonably and necessarily spent in the completion of said work; that Scott owed plaintiff Reed $323.50 for the services of himself and his teams; that Scott owed $70 on the William Small claim, and $57.50 by reason of the Crowell claim; that the city did not take possession óf any of the tools belonging to Scott described in paragraph 44 of his first amended original answer, filed October 24, 1913; nor any material of value described in said paragraph; that the city refused to submit to arbitlation matters in dispute arising under the contract; and that Scott did not abandon his contract, prior to the time that the city took charge of this work.

The findings, other than the one relating to arbitration, are amply sufficient to support the judgment, and demonstrate that the facts did not exist which would, under the contract, have authorized the city to take over the completion of the work. Had the jury found in favor of the city on such other issues, Scott would have been compelled to contend that regardless of such findings the city had no right under the contract to take charge without first submitting to arbitration. No contention is made that any of said findings are not supported by evidence, and so far as is disclosed by the appellant’s brief, they may be overwhelmingly sustained. We do not believe that we are required to read a statement of facts of 247 pages to see if testimony relating to failure to arbitrate is probably prejudicial in view of testimony on other issues, and thus determine whether the court should have eliminated all references to arbitration in pleading and excluded all evidence relating thereto. The assignment does not show any reversible error.

Appellant’s sixth assignment complains of the overruling of its demurrers and plea in abatement charging misjoinder of causes of action. We overrule this assignment because our decisions indicate that it is proper for all parties claiming an interest in the fund to be joined, in order that all rights may be determined in one suit.

Appellant contends that the court erred in not holding Reed’s cause of action to be barred by limitation, such contention being based on the theory that by amending and claiming an interest in the fund by assignment a new cause of action was set up. After such amendment plaintiff was merely seeking to recover from the city a part of a debt alleged to be due Scott by the city. If the city could not defeat Scott’s claim by pleading limitation it is clear that Reed’s claim for part of the fund is not barred by limitation. The seventh assignment is overruled.

There is no merit in the remaining assignments and they are overruled.

The judgment is affirmed.
      esjPor other, oases see same topic and KRY-NUMBER in all Key.-Numbered Digests and Indexes

      «gszoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    STRINGFELLOW v. PATTERSON.
    (No. 1099.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 24, 1917.
    Rehearing Denied Feb. 21, 1917.)
    1. Banks and Banking- &wkey;49(6) — Stockholders’ Liability — Legal Character —Statute.
    The liability of a bank stockholder, imposed by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 552, is legal in character, not merely equitable, so that the commissioner of banking can maintain a suit thereon against one stockholder without bringing all others before the court.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 76.]
    2. Banks and Banking <&wkey;49(7) — Stockholders’ Liability — Primary Character-Statute.
    The liability of a bank stockholder under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 459, 552, is a primary, not a secondary liability limited to the payment of the debts and liabilities of the bank at the time it became insolvent, so that, in the 'bank commissioner’s suit against a stockholder to enforce the liability, it is not necessary to allege and prove the amount of the insolvent bank’s indebtedness.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 77.]
    3. Appeal and Error <&wkey;1043(3) — Harmless Error — Denial oe Motion to Quash.
    Refusal to consider motion to quash an attachment was harmless, where the motion was without merit.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4117.]

      4. Banks and Banking <&wkey;47(l) — STOCKHOLDERS’ Liability — Assessment by Commissioner.
    Whore the commissioner of banks assessed the stockholder of an insolvent state bank, on her statutory liability, at the rate of 100 per cent., the assessment created a debt, certain in its amount, which was a primary and not a secondary obligation.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ (32, 64, 65, 68, 341.]
    5. Attachment i&wkey;25 — Nonresidence — Personal Service — Statute.
    That personal service of citation had been made upon defendant did not prevent the issuance' of an attachment predicated upon the fact of her nonresidence, under Yernon’s Say les’ Ann. Civ. St. 1914, art. 240.
    [Ed. Note — For other cases, see Attachment, Cent. Dig. §§ 61-72.]
    Appeal from. District Court, Potter County; Hugh L. Umphres, Judge.
    Action by John S. Patterson against Nannie T. Stringfellow. From a judgment for plaintiff, defendant appeals.
    Judgment affirmed.
    Cooper & Merrill, of Houston, and W. E. Gee, of Amarillo, for appellant. Yeale & Lumpkin, of Amarillo, for appellee.
   HALL, J.

Appellee, Patterson, in his rep-i-esentative capacity as commissioner of insurance and banking for the state of Texas, brought this action to recover from appellant the sum of $7,000, claimed as the amount for which she was liable under the Texas banking laws, as a stockholder in the First State Bank of Amarillo, which has become insolvent. It is alleged that the bank became insolvent about the 4th day of April, 1914, and that the then commissioner of insurance and banking of the state of Texas, on the 7th day of April, A. D. 1914, had assessed the stockholders of said insolvent bank under their statutory liability at the rate of 100 per cent, and that appellant had failed to pay said assessment and. brought this suit to recover the same, together with interest from the 7th day of April, 1914, allowing a credit of $5.14, being the amount of money on deposit belonging to appellant in said bank at the time its doors were closed.

Appellant’s original answer, filed March 20, 1916, consisted, of a plea in abatement for the want of proper parties, a general demurrer, numerous special exceptions, general denial, and specially answered that if any liability arose against defendant, it was limited to such just and equal assessments against the stock owned and held by her as would, with the collection of such equal assessments from other insolvent stockholders, discharge and pay off the indebtedness of said bank and that 100 per cent, was not a just and equal assessment to 'discharge and pay off the indebtedness; that there were assets in the hands of the commissioner of banking at the timé said bank was closed which, if handled in the ordinary and usual manner of handling such assets, would have paid all the obligations and debts of said bank, and that if they were insufficient to do so, it was because of the negligence and failure of the receiver; that said bank, at the time of the trial of this cause, did not owe exceeding $24,000, and that an assessment of 20 or 25 per cent, of the par value of the stock owned by the stockholders of said bank, together with the assets then in the hands of the receiver of said bank, would fully pay off and discharge all of the indebtedness of said bank. Plaintiff filed a general demurrer and special exceptions to this answer. On the 7th day of January, 1916, plaintiff caused a wilt of attachment to be issued in the case, which was placed in the hands of the sheriff of Potter county and levied by him the same day, on a large amount of real estate situated in said county. The writ was duly returned January 15, 1916. On March 27, 1916, appellant filed her motion to quash the attachment, and, before announcement of ready for trial by either of the parties, presented it to the court, which the court refused to consider for the reason that it was not presented and urged at the first week of that term of court. On that day there was a trial, which resulted in an instructed verdict in favor of the plaintiff for the sum of $7,S22.58. Judgment was'entered accordingly, with a foreclosure of the attachment lien on the property described.

The, first and second assignments go to the action of the court in not sustaining the defendant’s plea in abatement, or misjoinder of parties defendant. The propositions urged under this assignment are that the liability of a stockholder in a state banking corporation, imposed by article 552 of Vernon’s Say les’ Civil Statutes, is enforceable only in equity, and no suit can be maintained therefor without bringing all of the stockholders before the court, since persons materially interested, either legally or beneficially, in the subject-matter of a suit, are necessary parties, either as plaintiffs or defendants. In support of this contention we are cited to the cases of Rehbein v. Rahr, 109 Wis. 136, 85 N. W. 315; Finney v. Guy, 106 Wis. 256, 82 N. W. 595, 49 L. R. A. 486; Booth v. Dear, 96 Wis. 516, 71 N. W. 816; Gianella v. Bigelow, 96 Wis. 185, 71 N. W. 111. These cases arose under a statute by the terms of which the stockholders of insolvent banks were made liable to the creditors of the bank, and under which the right of the receiver to file the suit seems to have been denied. It is provided that the stockholders should be liable ratably, and the court held, we think properly, that the duty of inquiring into the affairs of the bank to ascertain the amount of its assets and its liabilities, and the consequent amount to be assessed against each stockholder in proportion to the amount of stock owned, was a subject for the consideration of a court of equity. The language of the statute itself is not quoted in the opinions to which we have been referred, but we infer from the holding of the court that its provisions are materially different from those of the Texas statute, even where the power of collecting from the stockholders the amount of their assessments is not vested in a superintendent of banks or a commissioner of banking. It is held that where suit is filed against the several stockholders to recover the full amount of their liability the suit is cognizable in a court of law. Rankin v. Miller (D. C.) 207 Fed. 602; Kennedy v. Gibson, 8 Wall. 498, 19 L. Ed. 476; Casey v. Galli, 94 U. S. 673, 24 L. Ed. 168; Hale v. Allinson, 188 U. S. 56, 23 Sup. Ct. 244, 47 L. Ed. 380.

The third assignment of error is that the court erred in overruling defendant’s general demurrer to the plaintiff’s alleged cause of action, and it is insisted under this assignment that a stockholder’s liability under article 552, Vernon’s Sayles’ Civil Statutes, is a secondary liability, limited to the payment of the debts and liabilities of the bank at the time it became insolvent; that such ’liability is to be fixed in connection with the liability of all other solvent stockholders, for which reason appellee’s pleading should have alleged facts showing such liability. We think the provisions of articles 552 and 459, Vernon’s Sayles’ Civil Statutes, made the liability of stockholders primary rather than secondary. Article 552 is:

“If default shall be made in the payment of any debt or liability contracted by any bank * * * each stockholder of such corporation, as long as he owns shares therein, and for twelve months after the date of a transfer thereof, shall be personally liable for all debts of such corporation existing at the date of such transfer, or at the date of such default, to an amount additional to the par value of such shares so owned or transferred, equal to the par value of such shares so owned or transferred.”

Article 459 is:

“The commissioner may, if necessary to pay the debts of such state bank, enforce the individual liability of the stockholders.”

In Collier et al. v. Smith, 169 S. W. 1108, we followed the holding in the case of Kennedy v. Gibson, supra, in which it is held under the National Banking Act that it was for the comptroller to decide when it was necessary to institute proceedings against stockholders to enforce their personal liability, and whether the whole, or a part, and, if only a part, how much should be collected; that these questions were referred to his judgment and discretion, and his determination of them was conclusive. Writ of error has been denied by the Supreme Court (176 S. W. xv) in that case, and since the facts in this case show that the assessment was made by the commissioner for the full amount of appellant’s liability, the .question raised under this assignment is settled adversely to appellant’s -contention in the Collier-Smith Case, supra, and need not be again discussed. Appellant’s brief contains a great many assignments which simply raise the issues which were presented to this court in the Collier-Smith Case, and which have been decided against the contention made here.

In our opinion, it is not necessary to allege and prove the amount of the insolvent bank’s indebtedness. When it is shown that default is made in the payment of any of its debts, the right of the commissioner to take charge of the bank and proceed to enforce the liability of the stockholders is complete.

The appellant complains because the court erred in refusing to permit the presentation of a motion to quash the attachment. The bill of exceptions, as qualified by the trial judge, shows that the ground of the court’s refusal was that at the beginning of the term the court announced that the first week thereof would be set aside for the purpose of arguing and disposing of all pleas, exceptions, and dilatory matters which did not go to the merits of the case; that one of the attorneys representing appellant was present, and that all the preliminary matters and exceptions, save the motion to quash the attachment, had been passed upon and the orders entered during said first week; that the motion herein was not filed until after the expiration of 'that week; that the case was on the jury docket, and no offer was made to present the motion until just before announcement of ready for trial. Under rule 22 for the district courts (142 S. W. xix) we doubt the right of the trial judge to require the disposition of all motions, dilatory pleas, and preliminary matters during the first week of the term, The rule requires the court to set apart a particular day each week of the term when motions, previously made, in which proper notice had been given, should be determined, unless for good cause they should be postponed to a subsequent day or continued by consent to the next term. Nor do we think that the appellant waived its motion to quash the attachment because not presented earlier. Osborn v. Schiffer, 37 Tex. 434; Wallace v. First National Bank, 95 Tex. 103, 65 S. W. 180.

Without deciding these questions authoritatively, we are of the opinion that the motion to quash was itself without merit, and the refusal of the court to consider it, if error, was harmless. The grounds set up in the motion are: (1) Because the obligation sued upon was not a debt; (2) because the action was upon a statutory contract of surety-ship, and it is not alleged what debt, if any, the First State Bank Of Amarillo is due and owing; (3) because the ■ action is predicated upon an unknown, uncertain, and unliquidated demand; and (4) because the attachment is without authority of law, personal service being bad upon the defendant in tbe state of Texas, ber nonresidence being no grounds for tbe issuance of an attachment Tbe first three grounds present, in different form, matters already decided.

We think the assessment by the commissioner created a debt certain in its amount, and that it was a primary and not a secondary obligation.

As to the fourth ground, the fact that personal service of citation had been made upon appellant did not prevent the issuance of an attachment predicated upon the fact of her nonresidence, under Vernon’s Sayles’ Civil Statutes, art. 240.

Eor the reasons here given and announced by us in the Collier-Smith Case, all of appellant’s assignments are overruled, and the judgment is affirmed.
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author: PLEASANTS, C. J.

text:
    HOUSTON ELECTRIC CO. v. PEARCE.
    (No. 7275.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 18, 1917.
    Rehearing Denied Feb. 8, 1917.)
    1. Carriers <&wkey;318(3) — Negligence —'Evidence-Sufficiency.
    Evidence in a street car passenger’s action for personal injuries, held sufficient to sustain a finding that defendant was guilty of negligence.
    [Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 1307, 1308.]
    2. Daicages <&wkey;216(2) — Instructions—Medical Services.
    In an action by a street car passenger for personal injuries, testimony of physician that he made five or six visits to plaintiff, and that $200 was a reasonable charge therefor, is sufficient to warrant an instruction to find for plaintiff the reasonable value of medical services.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 548.]
    3. Appeal and Error &wkey;>1053(4) — Carriers— Harmless Error.
    In an action against a street car company for personal injuries to a passenger struck by a brake handle, admission of testimony that there were other and more efficient brakes than the gooseneck brakes, held harmless in view of instructions that jury was not to consider the brakes of an obsolete kind, and that defendant was not required to use the newest and safest appliances.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4180.]
    4. Appeal and Error <&wkey;>302(6) — Motion for New Trial — Specification of Errors — Sufficiency.
    An assignment in a motion for new trial that jury was caused to increase amount of award because of seeing plaintiff in a swoon or faint after retiring to deliberate, in the absence of a claim and showing that the verdict was excessive, is insufficient to warrant reversal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1749-1752.]
    5. New Trial <&wkey;44(3) — Misconduct of Jury —Discretion.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2021, providing that if the misconduct of the jury is proven, or the testimony received, or the communication made be material, a new trial may be granted in the discretion of the court, the refusal of a new trial is not an abuse of discretion, even though it appears that after the jurors had retired to deliberate they saw plaintiff while in a swoon carried to a carriage, and one of their number made the remark that he knew plaintiff and that she was injured as she claimed to be, where jurors testify that they considered only evidence adduced at trial in arriving at their verdict.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 82-84.]
    6. Carriers <&wkey;319(3) — Damages—Excessive Verdict.
    Where the evidence in a personal injury suit by street car passenger tended, to show that her injuries were permanent, a verdict of $12,000 is not so large as to indicate that it was the result of passion or prejudice.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1344, 1345.]
    Appeal from District Court, Harris County ; Henry J. Dannenbaum, Judge.
    Action by Eula M. Pearce against tbe Houston Electric Company. Judgment for plaintiff. Defendant’s motion for a new trial
    denied, and it appeals.
    Affirmed.
    C. R. Wharton and R. C. Patterson, both of Houston, for appellant. Guynes & Colgin, of Houston, for appellee.
   PLEASANTS, C. J.

This is a suit to recover damages for personal injuries, brought by the appellee against the appellant.

The petition alleges, in substance, that plaintiff was injured by being struck by a brake handle on one of defendant’s street cars in the city of Houston on which she was a passenger and from which she was proceeding to alight at the time she received said injury; that the brake by which she was injured was what is known as a goose-neck brake, and was deficient, worn-out, and obsolete, and not the safe kind of brake that was used by the defendant and other street car companies; “but on the contrary, was an obsolete brake, completely or partially worn-out, which would not stay or remain fastened when set, and which had an unnecessarily long and dangerous handle, liable to injure passengers passing within its reach in making their exit, and it would become loose and fly around with great force and violence, which it had often done theretofore, and which had often failed to perform its functions and services prior to said accident, all of which was well known to said defendant, or could have been known by the exercise of reasonable diligence. Plaintiff further alleges that said brake was deficient and dangerous in other respects unknown to her, and for which reason she is unable to set same out with particularity or otherwise” ; that the defendant well knew that the brake was defective, obsolete, and dangerous, and not the safest that had been used and tried by it as well as other street railway companies; and that the defendant was guilty of negligence in using this dangerous brake, and in permitting tbe passengers to make tbeir exit near it.

By way of alternative pleading, tbe plaintiff avers that tbe motorman was guilty of negligence in stopping tbe car on a considerable grade, and setting tbe brake so as to permit it to swing loose with great force, and negligently failed to take tbe proper precaution in setting tbe brake.

Tbe defendant answered, denying that tbe brake equipment was old, obsolete, or defective, and alleging that its machinery and appliances, including tbe brake, were in good condition; that they bad been carefully installed and carefully inspected; and that tbe accident of which tbe plaintiff complains was not due to any negligence' on its part, but rather was an unfortunate and unavoidable accident.

Tbe trial in tbe court below with a jury resulted in a verdict and judgment in favor of plaintiff in tbe sum of $12,000.

Tbe evidence shows that plaintiff, as alleged in her petition, was injured by being struck by a brake handle on one of defendant’s ears upon which she was a passenger and from which she was making her exit at tbe time of her injury. Tbe brake bad just been set by tbe motorman, and as plaintiff passed it, as.she bad to do to get off tbe car at tbe end from which she made her exit, it came loose and tbe handle flew around and struck plaintiff on her back and side. A gooseneck brake, which was tbe kind by which plaintiff was injured, is operated by an upright windlass with a crooked or goose-neck handle on tbe top and with which tbe windlass is turned. A chain connects tbe windlass with tbe brake proper, and the brake is set, that is, applied to the wheels of tbe car, by turning tbe windlass which winds tbe chain and pulls tbe brake against the wheels. "When tbe brake is wound up if tbe handle is released tbe weight of tbe brake pulling on tbe chain will cause tbe windlass to revolve and tbe handle flies around with it. To prevent this a small wedge-shaped piece of iron called a “dog” is fastened to the floor of tbe car on a pivot near tbe bottom end of tbe windlass which has cogs attached to it. When tbe brake is wound up if tbe operator pushes tbe “dog” into one of tbe cogs on tbe bottom of tbe windlass tbe handle can be released and- there will be no movement of tbe windlass. If neither the cog nor tbe dog is worn or defective and tbe dog is properly placed in tbe cog before tbe handle of tbe windlass is released tbe windlass cannot revolve, and there can be no movement of tbe handle unless tbe cog or tbe dog should break. If tbe dog is properly placed in tbe cog tbe brake could only be released by a very bard blow, unless tbe pressure was released by using tbe brake handle.

The motorman who set tbe brake in question testified:

“I brought the car to a full stop by winding up my brake. Before this accident I had no trouble with tbe car. I do not know how long that particular brake that was on the car at the time of the accident had been on it;’ it had been on there all the time I run the car. They had not changed brakes on the car while I was running it. During the time I run the car I did not have any trouble with the brakes; they were in good condition. The brake equipment on this car was in good condition before the accident. I had no trouble with it. I stopped the car and opened the exit door and wound up my brake. I opened the door after the car was standing still. When I wound up the brake I opened the exit door, then I wound it up tighter to turn up my register. I wound it up and turned the register, and then walked back and turned my back toward the exit door, and then I looked around, and .just then tbe brake got loose. When I got through winding up the brake and turned around to go to the register I thought the dog was in. I turned the brake handle loose, and the dog seined to hold because I took my hand off the handle. When I took my hand off the brake did not fly against my hand or against me; it was standing still. When I went in to turn the register I had not gotten to the register when it flew loose. I had not gotten very far away from the brake when it flew around. I do not know what caused the dog to come out of the ratchet; it had never come out before. I run that car after that accident, but it never came loose on me after that. I did not say to the conductor after the accident that I had reported the brake several times.”

Plaintiff introduced a witness who testified that on the day after the plaintiff was injured witness rode on this car with the motorman who set the brake by which plaintiff was injured, and the motorman showed-witness how the brake was worn; that he saw the motorman use the brake to stop the car four or five times; and that he kept his foot against the “dog” while the brake was set.

Plaintiff testified that just after the brake struck her the conductor asked the motorman how it happened, and why he did not tell him of the trouble, and the motorman replied that “the brake flew loose and hit her in the back,” and that he “had reported it to the company two or three times before that.”

She further testified:

“I did not touch the brake myself in any way when I started to pass out.”

E. L. Baker, witness for plaintiff, testified in part:

“If the brake was set up by the motorman, for say a minute, it would not come loose only on a grade and the brake was worn, that is, if both the ratchet and the brake — the ratchet and the dog was worn, unless the pin gave way, and then of course the ratchet would turn round. * * * I spoke about the dog being worn there. As I use that dog by kicking it in and out of place, it may wear sharper on the point.”

I. D. Rainey, witness for plaintiff, testified in part:

“I think it is possible to set this brake on the edge of these cogs so that a jar would bring it loose. If the car was standing on a slant or any other position, and it was shaken by people coming off the ear, in my opinion, if the brake wasn’t properly set, it would not only be possible, but it would be probable, that the brake would come loose, and more so, if these ratchets here were worn and the dog was worn,, and the brake wasn’t properly set.”

The court instructed the jury that there was no evidence to sustain the allegations that the brake was obsolete, and they should disregard all such allegations in the petition. The portion of the charge submitting the issue of negligence to the jury is as follows:

“You will inquire from the evidence if these allegations are true, and in this connection you are charged that the defendant, as a common carrier, is not an insurer of the safety of its passengers, and that it was not incumbent upon the defendant to use the newest and safest appliances, but that it was incumbent upon it to use such appliances as a very cautious, competent or prudent person would have used under the same or similar circumstances, and if you find from a preponderance of the evidence that the defendant negligently equipped or used on said car a brake which was deficient or dangerous, or that the defendant’s agents, servants and employes operating said car carelessly and negligently set the brake of said car, or let go said brake after having wound the same, without setting it, and if you further find, from a preponderance of the evidence, that all or either of said acts, if you find the existence of all or either of them, were or was, as the case, may be, the proximate cause of the alleged accident, then let your verdict be for the plaintiff.”

No grounds of negligence other than those stated in this paragraph of the charge were submitted to the jury.

The first three assignments of error assail the charge above set out on the ground that there was no evidence to sustain a finding that defendant was guilty of negligence in any of the respects stated in the charge. None of the assignments can be sustained. We think the evidence before set out conclusively shows that the brake got loose because of the worn and defective condition of the “dog” or “cog,” or because of the motorman’s failure to put the “dog” in the “cog” before releasing the handle, or performed that dut.* in such a careless and negligent manner that the “dog” failed to catch in the “cog” and prevent- the windlass from turning after the handle was released. This is necessarily true, because the undisputed evidence shows that the brake got loose and the handle struck the plaintiff, and that it could not have gotten loose if the “dog” and “cog” had been in no way defective and the motorman had properly adjusted them before releasing the handle, unless the “dog” had been struck a very hard blow or the pin holding it to the floor of the car had broken, and the evidence shows that neither of these things- occurred. We think the evidence is clearly sufficient to sustain the finding of negligence upon either of the grounds submitted by the charge.

The fourth assignment of error complains of a paragraph of the charge in which the jury are authorized to find for plaintiff the reasonable value of medical services rendered by the physician who treated her for her injuries, because there is no evidence that the amount charged by the physician, $200, was the. reasonable value of such services. The statement submitted under this assignment shows that the physician testified that he made five or six visits to plaintiff, and that the $200 charged plaintiff was a reasonable charge for the treatment she had received from him.

In view of this statement, we cannot understand how appellant’s counsel can contend that there is no evidence of the reasonableness of the charge.

The fifth, sixth, and seventh assignments of error complain of the ruling of the court in admitting the testimony of several witnesses introduced by the plaintiff to the effect that there were other kinds of brakes which were superior and moré efficient than the “gooseneck” brake.

If it be conceded that this evidence was inadmissible, its admission was harmless, because the court instructed the jury not to consider the allegations in the petition that the brake in question was of an obsolete kind, and further instructed them that the defendant was not required “to use the newest and safest appliances.” We do not think the testimony objected to could have possibly affected the findings of the jury upon the issues submitted by the court’s charge.

The eighth assignment is as follows:

“The verdict of the jury and the judgment rendered thereon should be set aside because after the jury had retired to consider its verdict the plaintiff, who was weak from having been unnecessarily kept in attendance on the trial, fell in some kind of swoon or faint. She was carried from the courthouse to a carriage, and as she was borne away she was in view of a window to a room in which the jury was deliberating. The attention of the jury was called to the fact that she was being carried to the carriage or autompbile, and the jury reached the conclusion that she was very badly injured and erroneously attributed to this circumstance as evidence of a very grave physical condition. The jury was taken deliberating as to their verdict, and thereafterwards members of the jury, impressed by what they had seen, were caused to increase the amount for which they were willing to allow recovery, and because of having seen this members of the jury agreed to a larger amount than they would have agreed on otherwise, and it had the effect on members of the jury to cause them to vote for and to urge a larger verdict, and the result of it was that the jury did, because of this influence, increase the size of the verdict that would have otherwise been rendered.”

TMs assignment presents no sufficient ground for reversing the judgment of the trial court, because neither the assignment nor the statement thereunder raises the question of excessiveness in the verdict. If it be conceded that some of the jurors, because of having seen the plaintiff in the distressed condition stated in the assignment, gave her a larger verdict than they would had they not seen her in this condition, we would not be authorized to disturb the verdict on that account in the absence of a claim and showing that the verdict is excessive. But the assignment cannot be sustained for another reason. . On the hearing of the motion for a new trial all of the jurors save one were examined under oath, in open court under the provisions of article 2021, Yernon’s Sayles’ Civil Statutes. It was agreed on this hearing that neither party should he prejudiced by the failure to obtain the testimony of the absent juror. Two of the jurors testified that they did not see plaintiff as she was being carried from the courthouse to the carriage. These jurors and six others testified positively and unequivocally that they were not influenced in the least in fixing the amount of their verdict by knowledge of the fact that plaintiff had fainted, after the jury had retired from the courtroom, and had been carried away in an unconscious condition, and that in reaching their verdict they considered nothing but the evidence adduced upon the trial. Three other jurors, Hirsch, Boggs, and Rudell, each testified in substance, the first two on direct examination by defendant’s counsel, that he saw the plaintiff taken to the carriage in the manner and under the circumstances stated in the assignment, and that the matter was discussed by the jury, and the effect on the witness was to cause him to vote for a larger verdict than he otherwise would. On cross-examination by plaintiff’s counsel, Hirsch testified:

“Before I became a juror I swore that I would render a fair and impartial verdict according to the law and the evidence. It is a fact that I had fully'seen her condition here in the courtroom before I wont to the jury room. I saw her leaning on that table in almost fainting condition before we went out. I heard the doctors’ testimony that she was badly hurt; seriously and permanently hurt. I had a full opportunity to observe her condition as she was sitting there in full view of. the jury. I said that Mr. La-monte said she ought to have $30,000 because she was just as badly hurt as she claimed to be; that is what he said. He told somebody that we could see that she was just as badly hurt as she claimed to be in her petition, and that she ought to have the full amount she was suing for. When I saw that girl borne down there I didn’t know who was carrying her to the automobile; I just went to the window and peeped out. I stated that the incident was not discussed very much in the'jury room; it was slightly discussed. The testimony given on the witness stand was what was mainly discussed in the jury room, in arriving at our verdict we discussed the evidence heard here in this case; that is what controlled me in giving the sum of $12,000 — the evidence and testimony I hpard in this case.”

On cross-examination Boggs testified:

“I said the fact that I saw her carried out there in the automobile influenced my verdict. I heard the testimony in this case and paid attention to it. I knew from the testimony of the doctors that she was very badly and seriously hurt; I believed that was true. I saw her at the table here just before we left for our deliberations in the jury room. I never noticed then that she was practically in a faint before we left for that jury room. I saw her leaning over on the table there, and saw from her appearance that she was in very bad condition, in a really bad condition. It is a fact that when I went in that jury room and arrived at a verdict I did so from the testimony that was given in> this case, from the doctor’s testimony, and also from her appearance as I saw her in the courtroom here. It is a fact that that is the sole reason I gave her that sum of money we did give her by that verdict, but if I would not have seen that out there I might not have come up that high. I had seen her condition in the courtroom already, and when I seen her out there it affected me still more because from the way they was carrying her there she seemed to be in a bad condition.”

Rudell testified:

“It is a fact that her fainting influenced me to a certain extent. That fainting incident was discussed in the jury room. I didn’t see the plaintiff sitting here at the end of that table in a fainting condition during the trial. At times I thought she was in bad condition when she was sitting there, but I didn’t see her faint in here. I heard the testimony of doctors here and other witnesses that she had been seriously hurt, and that is what I went by. It is a fact that I was guided by that testimony and controlled by that testimony that I heard here. * * * I was the man that was fighting the rest of the bunch all the time. I didn’t want to give her the $12,000; not at the start. I voluntarily did it after awhile. I told them I would meet them half way. There was some up to $25,000, and some was $18,000, and I was way below that, and I told them I would meet them half way, and well, they figured it out then at $12,500, and I told them I wouldn’t go higher than $12,000. It is a fact that I am a man of strong determination and strong will power. It is very seldom things can swerve me from what I make up my mind to do if I see things right. I always try to have my own mind about things. It depends on what happens and what occurs as to whether it takes a very unusual thing to eur-ry me away from my own mind. It is a fact that the incident of that woman being carried out there in the automobile influenced me. I will take up for a woman any time when I see a woman in misery or needing help, or anything like that.”

We think this testimony authorized the trial court to find that none of the jurors were guilty of improper conduct, and none of them were improperly influenced by the occurrence mentioned in the assignment. The determination of these questions is left by the article of the statutes before cited, to the sound discretion of the trial judge, and we cannot hold, upon the evidence before stated, that the judge abused his discretion, and we are bound by his finding. Kalteyer v. Mitchell, 102 Tex. 393, 117 S. W. 792, 132 Am. St. Rep. 889; Fox v. Railway Co., 186 S. W. 852; Railway Co. v. Gray, 137 S. W. 731; Railway Co. v. Pingenot, 142 S. W. 93; Railway Co. v. Gray, 105 Tex. 42, 143 S. W. 606.

The ninth assignment, which predicates error upon the refusal of the court to set aside the verdict because one of the jurors after the retirement of the jury stated to the jury that he was acquainted with plaintiff and knew she was hurt just as bad as she claimed to be, is overruled for the reasons given for overruling the eighth assignment. All of the jurors testified that they only considered the evidence adduced upon the trial in arriving at their verdict.

The tenth assignment of error assails the verdict on the ground that it is excessive.

There was some conflict in the evidence as to the permanency of plaintiff’s injuries, but there is sufficient evidence to sustain the finding that she was suffering from traumatic neurasthenia, from which she would never entirely recover. Upon this evidence we cannot hold that the verdict of the jury is so large as to indicate that it was the result of passion or prejudice, or was caused by any improper motive, and the assignment must be overruled.

Erom the conclusions before expressed upon the questions presented by appellant’s assignments of error it follows that the judgment of the court below should be affirmed, and it has been so ordered.

Affirmed.
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