author: FLY, C. J.

text:
    CARTER-MULLALY TRANSFER CO. v. BUSTOS et al.
    (No. 5674.)

    (Court of Civil Appeals of Texas. San Antonio.
    May 24, 1916.
    Rehearing Denied June 21, 1916.)
    1. Appeal and Error <&wkey;1060(l) — Review-Harmless Error — Burden op Siiowinu Prejudice.
    In an action for personal injuries, error of plaintiff’s counsel in asking two jurors, who did not serve, if they represented an insurance company, was harmless, where the bill of exceptions fails to show that the question was asked in the presence and hearing of persons who afterwards served on the jury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. <&wkey;> 1060(1).]

      2. Appeal and Error <&wkey;104S(6) — Review— ' Parties Entitled to Allege Error.
    In an action for personal injuries, where plaintiff unintentionally elicited the information on cross-examination of defendant’s witness that defendant was insured and there was nothing in the record tending to show that the plaintiff had any ground for anticipating what the -witnesses would testify, the error was not reversible.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4145; Dec. Dig. <&wkey; 1048(6).]
    Appeal from District Court, Bexar County ; W. F. Ezell, Judge.
    Action by Adolfo Bustos, by his father and next friend, Joseph Bustos, against the Carter-Mullaly Transfer Company. From a judgment for plaintiff Adolfo Bustos and against plaintiff Joseph Bustos, defendant appeals.
    Affirmed.
    Hertzberg, Barrett & Kercheville, of San Antonio, for appellant. T. H. Ridgeway, of San Antonio, for appellees.

      Application for writ of error pending in Supreme Court.

   FLY, C. J.

This is a suit for damages instituted by Joseph Bustos, for himself, and as the father and next friend of his minor son, Adolfo Bustos; said damages alleged to have occurred by an automobile belonging to appellant running into and dragging the said minor, who was riding a bicycle at the corner of Houston and North Flores streets in San Antonio. The cause was tried by jury and resulted in a verdict .against Joseph Bustos, but in favor of Adolfo Bustos for the sum of $1,000.

The evidence shows that Adolfo Bustos was injured through the negligence of the driver of appellant, and that he was damaged in the sum found by the jury.

The first and second assignments of error are grouped, and are the only assignments presented for the consideration of this court. The first assignment complains of the action of appellees’ counsel in asking two jurors whether they represented an insurance company, and the second is that the court erred in permitting appellees to ask witnesses Thomas H. Wade, Miss A. N. Goodenough, and Dr. Redmond “as to what man they talked to after the accident, and, when one of the witnesses answered that he talked to F. M. Coleman, the appellees persisted in asking who F. M. Coleman was, and the answer was that he was an insurance agent.” The only proposition is:

“Where there is a persistent effort by counsel for plaintiff, in a personal injury suit, to convey to the jury a suspicion or surmise that defendant holds a policy of insurance in a company not a party to the suit, which will protect the defendant from loss in case a verdict is rendered against it, this is sufficient cause for reversal.”

The first assignment of error is supported by a bill of exceptions which fails to- show that the question propounded to the two jurors was asked in the presence and hearing of the persons who afterwards served on the jury, and if it be error to permit such a question to be asked, as has never been held by this court, the contrary having been held by other Courts of Civil Appeals, no harm seems to have come- to appellant on account thereof. ’ Neither of the persons to whom the question was directed served on the jury. If any court has held that the mere mention of an insurance company in a personal injury or death case is sufficient to reverse a judgment whether or not such mention had any effect on the case, it is best not to follow it, and to return to the domain of common sense and reason.

In connection with the second assignment of error, the record fails to disclose that any witness was ever asked who F. M. Coleman was, or that any witness ever stated that he was an insurance agent. No such statements are found in bills of exception or statement of facts, and the assignment has no basis in fact upon which to rest. No bill of exceptions was taken to what Dr. Redmond swore, and the word “insurance” is not mentioned in the statement of facts. No such witness as Wade testified, but we will take it for granted that Wayne was meant. A discussion of any issues sought to be raised by appellant might be pretermitted, as there is no basis in fact for the assignment; but we think the questions raised are of such vast importance, in view of the extended business done by casualty and accident insurance com-, panies, that we have concluded to give expression to the views of this court in connection with references in a personal injury or death case to the fact that the defendant was insured.

There is nothing in the record that tends to indicate that appellees, either knew that Wayne would answer that he had talked to “the insurance people,” or that Miss Goodenough would, in response to the question, “Did you make a written statement?” reply:

“Yes, sir; some one came there, I think they was from the insurance company, wanting to settle the case, and asked me the extent of his injuries.”

Certainly the last part of the statement was not responsive to the question, but was volunteered on the part of the witness. No effort was made on the part of appellant to show that appellees had talked to the witness, knew of what she would swear, or had instructed her as to what her answer should be in reply to the question. The witnesses were both placed on the stand by appellant, and both answers of which complaint is made were elicited on the cross-examination. Is it not more probable that appellant knew what the witnesses would swear than that the adverse party would? Appellant had consulted with the witnesses, had placed them on the stand, and had drawn out their testimony. There is not one thing in the record tending to show that ap-pellees had any ground for anticipating what the witnesses would testify. In the absence of such testimony, it would he going to dangerous lengths to hold that an irresponsible witness has it in his power to volunteer testimony that would destroy the case made by the plaintiff. Such ruling would place it in the power of any defendant, in cases of the same class with this, to absolutely render it impossible for a plaintiff to obtain a judgment, however just his claim might be. Ap-pellees should not be held responsible for wrongs not emanating from, nor committed by, them, and no judgment in a case like this should ever be reversed merely upon a showing that a witness had given an answer disclosing a second defendant in the case.

We think the proposition that the judgment in any personal injury or death case will will he reversed, if it is disclosed by accident or otherwise that an insurance company is interested, is not based upon a sound rule, and we think there are few, if any, decisions so holding. No rule should ever be enforced absolutely that can be made the means of wrong and oppression, and certainly the rule in question places a dangerous instrument in the hands of every defendant. There is no intimation that it has been so used by the appellant in this case, for the record does not disclose any such state of affairs, nor does it show that appellees have deliberately disclosed the fact of insurance on the part of appellant, in order to gain or increase a verdict. It can as readily be held that it was inadvertently done, as that it was conceived by ap-pellees and put into execution. In such a state of the record, we are not willing to extend the rule laid down on the subject, but will confine it strictly, when we enforce it at all, to cases in which it -is made to appear that the plaintiff deliberately and persistently labored to inject an issue not made by the pleadings in order to gain a verdict or influence the amount of it.

Without committing this court to the policy of never reversing a judgment in which it is shown that a defendant is insured against accidents, still it appears almost farcical, in these days, when it is known to every man almost, qualified to sit on a jury, that most corporations dealing with the public, and many individuals, are insured in certain sums against liability for accidents, to hold that such insurance is a mystery from which the veil of secrecy should never be lifted, and that, if it is whispered to the jury that such insurance has been obtained, no valid verdict can be returned or valid judgment rendered. Not only is it known that most corporations and many individuals are insured, but it is also known to most intelligent, well-informed men that there is a clause in every accident policy which provides for the insurer furnishing its attorneys and conducting the defense for the insured. It may be that the insured could compromise for a lower sum than the amount of his insurance, still he must surrender his rights into the hands of the insurer and run the risk of having a larger judgment than the amount covered by his insurance rendered against him, and, while he is the one put forward to receive the buffetings of a trial, it must not be whispered that he is not the true defendant in the case. It would seem just, reasonable, and proper that if the insurance company is conducting the defense, as every reasonable man connected with the trial knows that it is doing, it should not be an act of extreme impropriety to mention the fact. Another and more sensible policy than that heretofore prevailing should be adopted by the courts in such cases. It should never be improper to disclose the true defendant in the case, and draw into the open the real rather than the fictitious party. This court is merely entering its protest against the policy that has been followed in Texas, but recognizes that the decisions of the state must be followed until it is settled differently by the court of last resort. In the meantime there will be no forced or strict interpretation of the facts, but they will be confined within the spirit as well as the letter of the law. It is puerile and absurd to continue to reverse judgments on account of the disclosure of matters to juries which in all probability they already knew. Reason seasoned with justice, common sense leavened with experience, should be the standard in the administration of the laws of the state and the enforcement of rules for the courts. It is not claimed in this case that the verdict is excessive, or that there is any evidence of passion or prejudice on the part of the jury. The naked proposition is that, independent of any injury that may have resulted to appellant by mention of an insurance company, that disclosure will work a reversal of a judgment against which no complaint is, or could be, urged. We do not think this course should be followed by this court.

The facts of this case, if the version assumed by appellant is the true one, show 1;hat an insurance company was active in approaching the witnesses, in getting statements from them, and counseling and advising with them while the trial was in progress, and, if the plaintiff dared to inquire into such conduct, a protest is made, and an appeal taken from a judgment of which no complaint is made, and a reversal is asked because a rank outsider who had been approaching appellees’ witnesses had been exposed. The facts of this case show the extent to which the rule as to not exposing insurance companies can be carried, and it is full time to call a halt.

The judgment is affirmed.
      ig^jFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§moFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: CONNER, C. J.

license: Public Domain

text:
    HUGHES v. UNDERWOOD TYPEWRITER CO.
    (No. 8365.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 22, 1916.)
    Justices of the Peace i&wkey;202(2) — Review-Certiorari — Proceedings to Procure — Affidavit.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 742, 745, providing that certiorari shall not issue to a justice court, unless the applicant, “or some person for him having knowledge of the facts,” shall make affidavit setting forth sufficient cause, a petition for certiorari purporting to be that of the applicant’s next friend, signed by a third party, together with a verification thereof by the third party stating only that he “believed the facts set forth above to be true and correct,” was insufficient.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 781-788; Dec. Dig. &wkey;202(2)J
    Appeal from Wichita County Court; Harvey Harris, Judge.
    Action by the Underwood Typewriter Company against J. R. Hughes. From a judgment of the county court refusing application of defendant by next friend for cer-tiorari to review judgment for plaintiff in justice court, defendant appeals.
    Affirmed.
    W. F. Weeks and Harry C. Weeks, both of Wichita Falls, for appellant. Bonner & Bonner and Joseph R. Ogle, all of Wichita Falls, for appellee.
   CONNER, C. J.

On February 10, 1915, appellant, D. A. Smith, as next friend of an alleged minor, J. R. Hughes, applied to the county judge of Wichita county for a writ of certiorari to bring up for review a certain cause in the justice court of precinct No. 1 of that county, in which judgment had been rendered in favor of the Underwood Typewriter Company against the said Hughes for the sum of $161.91. The application was granted, but on April 6, 1915, upon motion of the Underwood Typewriter Company the certiorari was dismissed and a writ of proce-dendo ordered. From such judgment of dismissal this appeal has been prosecuted.

The principal grounds set up in the petition for certiorari were that said Hughes was a minor and as such was entitled to disaffirm the promissory note upon which the suit in the justice court was predicated. It was further alleged that the judgment, without notice to or the consent of the defendant, had been rendered on a day other than had theretofore been agreed upon as a day for the trial. In the motion to dismiss the writ of certiorari the Underwood Typewriter Company set up some 11 grounds in support of the motion, including an objection that the petition for certiorari had not been properly verified. It will not, we think, be necessary to notice further than we have done the application for the writ, inasmuch as it seems very clear that the application was not supported by a sufficient affidavit, and hence that the judgment of the county court in dismissing the application was correct on this ground.

The petition for certiorari purported to be that of D. A. Smith, as next friend of J. R. Hughes, alleged to be a minor, and was signed “W, F. Weeks,” to which signature was subjoined the following verification:

“I, W. F. Weeks, being duly sworn, on my oath, state that I believe the facts set forth above to be true and correct.
“Witness my hand this 10th day of February, 1915. W. F. Weeks.
“Sworn to and subscribed before me, by W. F. Weeks, this 10th day of February, 1915. A. F. Kerr, Dist. Clerk in and for Wichita County, Texas. [Seal.]”

Article 742, title 21, of Vernon’s Sayles’ Texas Civil Statutes, provides that:

“After final judgment in a court of a justice of the peace, in any cause, except in cases of forcible entry and detainer, the cause may be removed to the county court by writ of cer-tiorari.”

But it is particularly specified in article 745 following that:

“The writ shall not be granted unless the party applying for the same, or some person for him having knowledge of the facts, shall make affidavit in writing, setting forth sufficient cause to entitle him thereto.”

It is evident that the affidavit above set forth is not in compliance with the statute and is wholly insufficient. The party filing the petition for certiorari and making the affidavit fails to show his relation to the case, nor does it appear that he has knowledge of the facts embodied in the petition for certiorari. It has been held that when an affidavit is-made in the course of a judicial proceeding by one person in behalf of another, his authority should be made to appear from the record. Cherryhomes v. Carter, 66 Tex. 166, 18 S. W. 443. In this respect the affidavit under consideration is wholly wanting. Moreover, in the verification no fact alleged in the petition for writ of certiorari is stated to be true within the knowledge of the affiant. It may have been true that W. F. Weeks, who made the affidavit, “believed” that the facts alleged in the petition were true, and yet such facts may have been wholly unfounded. The case of Spinks v. Mathews, 80 Tex. 373, 15 S. W. 1101, is one in which the petition for certiorari was signed by an agent and followed by the general statement under oath that “the allegations are true and correct, to the best of his knowledge and belief.” On appeal from an order dismissing the petition, our Supreme Court held that the affidavit quoted was too general to constitute a substantial compliance with the law, citing the case of Graham v. McCarty, 69 Tex. 323, 7 S. W. 342, to the effect that an affidavit “to the best of affi-ant’s knowledge and belief” is fatally defective. In 1 Ruling Case Law, page 770, par. 15, it is stated:

“An affidavit should always be made by one having actual knowledge of the facts, if possible, and its allegations sbonld be full, certain, and exact, for to be used as evidence an affidavit must state facts positively and not merely upon information and belief; a bare statement of one’s belief being absolutely immaterial unless the case is one where an affidavit as to belief only is required”

—the author citing Dyer v. Flint, 21 Ill. 80, 74 Am. Dec. 73; Leigh v. Green, by the Supreme Court of Nebraska, 61 Neb. 533, 90 N. W. 255, 101 Am. St. Rep. 592.

We conclude that the county court properly dismissed the writ of certiorari herein, and the judgment is accordingly affirmed.
      (gs^For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    CLOPTON v. CALDWELL COUNTY.

    (No. 5683.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 31, 1916.
    Rehearing Denied June 21, 1916.)
    1. Accobd and Satisfaction &wkey;>ll(l) — Acceptance as Full Payment — Effect of PROTEST.
    A contractor’s acceptance and cashing, under protest, of a road warrant, stated to be in final settlement of his claim, operated as an accord and satisfaction.
    LEd. Note. — For other cases, see Accord and Satisfaction, Cent. Dig. §§ 75, 79-82; Dec. Dig. &wkey;ll(l).3
    2. Accord and Satisfaction <&wkey;10(l) — Un-liquidated Claims — What Constitutes.
    A road contractor’s claim for work done, including an additional item, for supervision, is unliquidated where the supervising item is without basis.
    [Ed. Note. — For other cases, see Accord and Satisfaction, Cent. Dig. §§ 67-72; Dec. Dig. &wkey;10(l).]
    3. Accord and Satisfaction <&wkey;26(3) — Evidence — Sufficiency.
    A finding that a road contractor knew that certain warrants were given him in full payment is sustained, where he appeared before the authorities and protested against such limitation before cashing the warrants.
    [Ed. Note. — For other cases, see Accord and Satisfaction, Cent. Dig. §§ 164, 165; Dec. Dig. &wkey;26(3).3
    4. Accord and Satisfaction <&wkey;5 — Consideration.
    The compromise of an amount due a road contractor is sufficient consideration to support an accord and satisfaction.
    [Ed. Note. — For other cases, see Accord and Satisfaction, Cent. Dig. §§ 40-45; Dec. Dig. <&wkey;5.]
    Appeal from District Court, Caldwell County; Frank S. Roberts, Judge.
    Action by A. M. Clopton against Caldwell County. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Page & Jones, of Bastrop, and O. Ellis & Graves, of Lockhart, for appellant. E. B. Coopwood, E. R. Yellott, and J. B. Hatchitt, all of Lockhart, for appellee. '

      Application for writ of error pending in Supreme Court.

   FLY, C. J.

This suit was instituted by appellant to recover a balance of $1,829.43 alleged to be due appellant by appellee, on a contract between the parties whereby appel-lee bound itself to pay appellant for his services “in the supervision and construction of roads, bridges, and culverts in the different precincts of Caldwell county,” 10 per cent, of the actual cost of the construction of said roads, bridges, and culverts. The cause was tried without a jury, and judgment rendered that appellant take nothing by his suit.

The court found, in substance, and this court approves his findings, that precinct No. 1, of Caldwell county, had been organized as “road district No. 1,” under the laws of Texas ; that, by a vote of the people, bonds had been issued for the purpose of constructing and improving roads therein, among which were the roads for work on which appellant sought to recover compensation. On January 14, 1914, the commissioners’ court of Caldwell county entered into a contract with appellant for the supervision of the construe-, tion of three roads, namely, Prairie Lea, Silent Valley, and Niederwald, and agreed to pay him for his services 10 per cent, of the contract price in case bids'were accepted, and actual expense if all bids and estimates were rejected. In pursuance of the terms of the contract, bids were received by the court and one for the Prairie Lea road was accepted ; the bids on the other roads were rejected. Afterwards, the vote on the other roads was reconsidered, and contract was made with appellant to construct the other two roads. On a final estimate of the cost of the two roads, the commissioners’ court disputed the right of appellant to 10 per cent, commissions and also claimed a credit of $118 on the account. It was shown that, at the time the contract to construct the two roads was approved, the appellant agreed not to charge the county 10 per cent, on the contract price; and the order awarding the contract was made on the agreement and understanding that he would not charge the county the 10 per cent, demanded by him in this suit. The commissioners’ court deducted the 10 per cent, and $118 from the account for $3,838 and paid him only $1,992.49, and on the face of the two warrants given for that sum was written “as final settlement for road work * * * on R. & B. No. 1 fund.” The warrants were tendered to appellant in full settlement of all claims by him under the contract and were received and cashed by him. He had knowledge that the warrants were issued to him as a full settlement of all claims, but, knowing such fact, he received and cashed the warrants.

The court decided the case in favor of appellee on the ground of accord and satisfaction, and we think the decision is correct. Where an offer of a part of a claim is made as full payment of the whole claim, and is accepted by the claimant, though under protest, it is a bar to the recovery of the balance. Daugherty v. Herndon, 27 Tex. Civ. App. 175, 65 S. W. 891; Bergman v. Brown, 172 S. W. 554; Hollinger v. Llano Granite Co., 173 S. W. 603; Fuller v. Kemp, 138 N. Y. 232, 33 N. E. 1034, 20 L. R. A. 785. As said by the Court oí Appeals of New York, in tlie last-cited case, under similar facts to those in the present ease:

“The tender and the condition could not be dissevered. The one could not be taken and the other rejected. The acceptance of tlie money involved the acceptance of the condition; and the law will not permit any other inference to be drawn from the transaction. Under such circumstances, the assent of the creditor to the terms proposed by the debtor will be implied, and no words of protest can affect the legal quality of his act.”

The first assignment is overruled. There is no substantial difference between the finding of the judge and what appellant contends he should have found. No matter how erroneous the finding may have been, which is not conceded, it • could not have had any weight in causing the conclusion of law of the," trial judge.

The second and third assignments of error present nothing material to a decision of this case and they are overruled. However, the statement of facts supports the finding as to tlie $118.

The fourth assignment of error complains of a finding of the court that the final account of appellant was an unliquidated demand. The amount due appellant by appellee was unsettled, undetermined in amount, and consequently was unliquidated. If there had been any basis for the claim for 10 per cent., that may have been liquidated; but it had been fully agreed by and between the parties, before the contract was awarded, that the 10 per cent, should not enter into the contract. It would seem to be preposterous to pay a contractor a percentage of the contract priee to supervise his own work. It is argued that, because it was known what appellant claimed as his percentage, the whole claim became liquidated, but that part of the account had no foundation and appellant accepted payment of the other part of the account.

The fifth, sixth, and seventh assignments of error go to the sufficiency of the evidence to sustain certain findings, and are fully answered by our conclusions of facts. They are overruled. Appellant, before he collected the warrants, went before the commissioners’ court with his attorney and protested against its order and endeavored to have the order rescinded, which was refused. He then went out and collected the amount of the warrants, and yet it is contended that a finding that appellant knew the warrants were tendered him in full payment is not supported by thé facts.

The eighth, ninth, tenth, eleventh, twelfth, thirteenth, and fourteenth assignments of error are fully met herein and are overruled. The evidence is sufficient to sustain the finding of accord and satisfaction. The compromise of a debt was a sufficient consideration. As said by this court, through Justice Neill, in Powers v. Harris, 42 Tex. Civ. App. 250, 94 S. W. 136:

“Among the numerous modifications and exceptions, none, however, is better established than that if the claim, though evidenced by a bill or note, is in dispute an agreement, by way of compromise, to receive a part payment of the disputed claim in settlement of the whole demand, when performed, will discharge it.”

See, also, Hunt v. Ogden, 58 Tex. Civ. App. 443, 125 S. W. 386; Cristler v. Williams, 62 Tex. Civ. App. 169, 130 S. W. 608; Fire Association v. Wickham, 141 U. S. 564, 12 Sup. Ct. 84, 35 L. Ed. 860.

There is no merit whatever in tlie fifteenth assignment of error. The testimony objected to did not tend in any way to vary the terms of the warrants, but was in perfect accord with a recitation in the warrants that they were given as a “final settlement for road work.” The case was tried by the court, and it will be presumed that he tried it on legal testimony, and he so states in approving the bills of exception.

The sixteenth assignment of error is overruled. There was no attempt to vary the order of the commissioners’ court, but to explain it.

The seventeenth assignment of error is a repetition of other assignments on the question of accord and satisfaction, and that subject has been fully considered. It is overruled.

The judgment is affirmed.
      <S&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    KING et al. v. HARDIN LUMBER CO.
    (No. 594.)
    (Court of Civil Appeals of Texas. El Paso.
    May 25, 1916.
    Rehearing Denied June 22, 1916.)
    1. Assignments &wkey;>12 — Future Earnings Unbee Existing Contracts.
    A building contractor may assign an indebtedness which is to accrue in his favor under his contract, since the fund has a potential existence. • »
    [Ed. Note. — For other cases, see Assignments, Cent. Dig. § 20; Dec. Dig. <&wkey;>12.]
    2. Assignments <&wkey;58 — Equitable Assignments— Orber on Particular Funb.
    An order by a building contractor to the owners to pay a materialman a certain sum operates without acceptance as an equitable assignment of the fund to accrue in favor of the contractor.
    [Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 121-123; Dec. Dig. &wkey;58.]
    3. Assignments <&wkey;131 — Actions—Pleabing.
    In actions by assignee to enforce payment of the fund assigned, the alleged invalidity of the assignment due to restriction in assignor’s contract against assignment is defensive matter which defendant must plead and prove.
    [Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 220-226; Dec. Dig. &wkey;131.]

      Appeal from Harris County Court; Clark C. Wren, Judge.
    Action by the Hardin Lumber Company against I. H. King and others. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    A. B. Wilson and Cole & Cole, all of Houston, for appellants. Ross & Wood, of Houston, for appellee.
   Statement of Case.

HIGGINS, J.

By contract dated June 13, 1914, I. H. King agreed with H. R. Byars, B. L. Vineyard, and John G. Logue, owners, to remodel a building. King was to furnish all material and labor, for which the owners were to pay him $6,925. This sum was payable to King as follows:

“Such an amount every Saturday morning during the progress of the work as is estimated by the architects to be the amount of the pay roll then owing by the contractor for said week and in addition thereto forty (40) per cent, of the amount of the plumbing contract, when said plumbing work has been roughed in, tested and approved, and forty (40) per cent, of the wiring contract, when said work has been roughed in, tested and approved, the balance of said contract price to be paid by the owners to the contractor within thirty (30) days after the work is completed, finished and accepted, save and except ten (10) per cent, of the contract price, which shall be retained by the owners until after the lapse of thirty (30) days from the time when said work has been finally completed and delivered to and accepted by the owners, but the owners shall have the right to refuse to pay over the balance of said contract price until satisfactory evidence has been furnished to them by the contractor of the payment of all claims on the part of laborers, mechanics, materialmen and subcontractors, and all claims of every kind which may be, or constitute a lien against said building or premises, it being the intention of the parties that the contractor shall deliver said building to the owners free from all claim and lions of any kind, and the owners reserve the right, in any event, to retain at least twenty-five (25) per cent, of the contract price until the final completion of said work and the acceptance thereof by them, and in the event, during the progress of the work, any claim of any kind shall be made against the owners on the part of laborers, materialmen, mechanics, or subcontractors, or any one else, the owners shall have the right to retain out of any payments tljpn due or thereafter to become due the contractor, an amount sufficient to completely indemnify them against such claim or claims.”

The remodeling was to be completed on or before August 20, 1913. If not so completed, King was to pay the owners as liquidated damages $5 per day for each day that the work should remain unfinished after said date. The contract provided that if King should fail to prosecute the work with promptness and diligence, the owners might terminate the employment of King and complete the work at his cost. King agreed to execute and deliver to the owners and did execute and deliver to them a bond in sum of $2,500 to guarantee performance of his contract.

The Hardin Lumber Company agreed to furnish King the materials for the perform- | anee of his contract. It also paid for King’s j account to a bonding company a in-emium of $69.25 for the bond which King gave the owners and a premium of $50 on casualty insurance taken out by King on the work, making a total of $119.25 of such premium paid by the Hardin Lumber Company for King’s account.

On June 14, 1913, King executed and delivered to said company this instrument:

“Vineyard & Byers, City — Please pay Hardin Lumber Co. the sum of $1,169.25 (eleven hundred sixty-nine and 25/100 dollars), same being for material to be furnished to me amounting to $1,050.00 and cash furnished for bonds amounting to $119.25. Also please pay for all extra material I may use, and deduct said amount from my contract price with you. For value received I hereby assign the above amount to them. Accepted. I. H. King.”

On the same date it was presented by the company to Logue, who, it seems, was making the disbursements for himself, Vineyard & Byars to King. He refused to accept same, but stated he would see that appellee got-its money. The value of material furnished by appellee to King for remodeling the building aggregated $1,164.75. King, it seems, delayed the completion of the contract and the owners terminated his employment and completed the same. The evidence does not disclose when they terminated his employment. There was a delay of 52 days in the completion of the contract and the owners charged $5 for each of said days as provided by the contract, totaling $260. This item of $260, together with the other amounts paid by the owners for material and labor to complete the building, aggregated $583.53 in excess of the contract price. In other words, they paid $278.53 for material and labor in excess of the contract price which, added to the item of $260, made $583.53 due the owners by King. The owners paid to the appel-lee the said sum of $1,164.75 to cover the material furnished by it to King and refused to pay the item of $119.25 covering bond premiums paid for King’s account. This suit was brought by appellee to recover this item against King and the owners. The ease was tried without a jury, and judgment rendered in favor of appellee. Findings of fact were not filed by tne trial court, and in the absence thereof it is presumed that all issues of fact were resolved in favor of aiipellees. The owners prosecute this appeal.

Opinion.

The indebtedness which was to accrue in King’s favor under the contract between himself and the owners had a potential existence when the instrument in favor of appellee was given, and the fund having such potential existence, it was properly subject to equitable assignment. The instrument given to appellee by King constituted an equitable assignment of $1,050 of the fund applicable to the payment of materials to be furnished by appellee and a like assignment of $119.25 (¿hereof applicable to the payment of the bond premium items paid by appellee for King’s account.

The application by the owners of the mon-' ey accruing to King under the contract between them is shown by the following statement:

Statement of I. H. King Contract for Remodeling of Faith Home under Contract with Vineyard, Byars & Logue.

October 11, 1913. Contract price, $6,925.00.

June 21, 1913. $ 110 25

28, 1913. 85 80

July 3, 1913. 94 70

12, 1913. Modern Plumbing Company 877 60

12, 1913. 129 75

19, 1913. 152 40

19, 1913. Modern Plumbing Company 150 00

26, 1913. George Gardiner. 35 00

26, 1913. 215 60

30, 1913. George Gardiner. 25 00

Aug. 2, 1913. 60 00

2, 1913. 183 20

9,1913. George Gardiner. 65 00

9, 1913. 21115

16, 1913. George Gardiner. 65 00

16, 1913. 203 70

23, 1913. George Gardiner. 65 00

23, 1913. 113 00

30, 1913. G. W. Miller. 122 50

Sept. 1, 1913. George Gardiner. 65 00

6, 1913. George Gardiner. 90 00

6, 1913. G. W. Miller. 77 85

13, 1913. George Gardiner. 80 00

13, 1913. G. W. Miller. 77 30

13, 1913. E. Rudnick.-. 3 15

20, 1913. George Gardiner. 40 00

20, 1913. L. F. Campbell. 7 88

20, 1913. Mack Gibson. 1 20

Oct. 10, 1913. John Lloyd and N. Scott.... 12 00

10, 1913. J. Hedricks. 16 00

11, 1913. L. F. Campbell. 10 50

(Above accounts all paid to I. H. King in person, except where otherwise noted.)

Total . $3,444 53

Amount due Vineyard, Byars & Logue, account delay, 52 days at $5.00 per day. 260 00

Grand total . $3,704 53

Amount due I. H. King under contract.... $3,220 47

Claims against the job:

Hardin Lumber Company. $1,284 00

Modern Plumbing Company... 1,53140

C. L. & Theo. Bering. 240 05

Louis Seline . 110 00

Hartwell Iron Works. 3 35

Barthold & Casey. 63 60

James-Bute Co. 33 53

G. W. Miller. 65 00

G. W. Gardiner. 329 12

J. Hedricks . 194 25

Max Gibson . 6 50

C. L. Dwyer. 17 50

John Burney . 1 50

Total . $3,878 25

Excess of claims over balance due $657 78

Logue made all payments, and he testified that he paid to the defendant King, upon the certificates of the architect according to the contract provisions, the weekly pay roll as he was required to do under his contract; otherwise the contract could not have been carried out. “We did not pay the defendant King any money except upon certificates issued by the architect as required by the contract, which I was compelled to do as the contract required us to do.” He further testified that the amounts shown in the statement were all paid to King, except where it is otherwise indicated therein as having been paid to other parties. It therefore appears that $1,559.55 was paid to King direct subsequent to the execution of the assignment and notice thereof given to the owners. Under the authority of the decisions to which appellants refer, it may be assumed that these payments were rightfully made as nee-cessary in order to enable King to complete his contract. It may be assumed that this right to make these payments to enable the completion of the contract was a right valuable to appellants and of which they could not be deprived by the assignment. But eliminating this amount of $1,559.55, it appears that up to October 11, 1913, the sum of $1,884.98 was paid to other parties out of the fund, and some time subsequent to that date $2,594.25 was paid to other parties having “claims against the job.” The dates these later payments were made does not appear, nor does it appear whether the labor and material was furnished before or after the termination of King’s employment under the contract. It is true Mr. Logue testified that the items aggregating these two sums were paid no parties who had furnished material and labor in remodeling the building. But this fact alone would not give >the claims of such parties precedence over the assignment held by appellee. There is nothing in the record to show that the claims were secured by lien or had precedence otherwise. The mere fact that material and labor was furnished to King did not fix a lien in favor of such parties or right of precedence. In the condition of this record, the cases to which appellant cite us have no application, and we cannot say the court erred in holding them liable for the items for which appellee sued. Youngberg v. El Paso Brick Company, 155 S. W. 715.

It is insisted that the assignment is invalid for want of consent thereto of the architect as required by a clause in the contract between King and the owners, which stipulates :

“The contractor shall not let, assign or transfer this contract, or any interest therein, without written consent of the architects.”
The architects’ want of consent was affirmative defensive matter, which it was incumbent upon appellants to plead and prove. Ginners, etc., v. Wiley & House, 147 S. W. 629, and cases there cited. It was pleaded, but no proof.thereof offered.

In view of what has been said, it becomes unnecessary to pass upon the remaining assignment.

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


text:
    TEXAS BLDG. CO. et al. v. COLLINS et al.

    (No. 8353.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 15, 1916.
    Rehearing Denied May 27, 1910.)
    1. Appeal and Error &wkey;>197(2) — Parties Entitled to Allege Error — Error Invited by Objecting Party — Issues.
    Where a railway company and its contractor litigated with a subcontractor’s creditors the amount due such subcontractor, they cannot urge upon appeal, for the first time, that the issue was not presented by the pleadings.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. &wkey;>197(2); Pleading, Cent. Dig. §§ 1428-1441.]
    2. Contracts <&wkey;2S7(l) — Construction — Compensation — Amount.
    Under contracts providing that the amount due from a railway company to a subcontractor should be fixed by an estimate signed and certified by the railway company’s chief engineer, held that an unsigned and uncertified instrument was not the contemplated final estimate.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1308; Dec. Dig. &wkey;287(l).]
    3. Contracts <&wkey;350(2) — Evidence oe Agreement — Sufficiency.
    Testimony that a subcontractor did not challenge bills charging it certain sums for railway equipment hire, and that such bills were computed from a contract with the subcontractor, is insufficient to establish an express agreement to pay _ such sums as against the subcontractor’s creditors.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1820, 1821; Dec. Dig. &wkey;350(2).]
    4. Contracts" <&wkey;234 — Construction—Compensation-Deductions.
    A contract provision between a railway contractor and a subcontractor held to authorize the contractor to pay only such claims against the subcontractor as might become liens on the railway.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1099, 1100; Dec. Dig. &wkey;234.]
    5. Contracts &wkey;>234 — Construction—'Compensation — Deductions.
    A railway company held authorized, by various contract provisions, to pay for posts used by its subcontractor and for which a lien might be filed against the railway, and to charge such cost to the subcontractor, irrespective of his creditors’ claims to any amount due him.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1099, 1100; Dec. Dig. &wkey;234.]
    6. Interpleader <&wkey;35 — Costs — Persons Entitled — Stakeholder.
    In a suit by certain employés and mate-rialmen against a railroad subcontractor, the railway company and the contractor are not entitled to attorney’s fees as stakeholders, where they did not pay into court, but contested, the amount found due from them to the subcontractor.
    [Ed. Note. — For other cases, see Interpleader, Cent. Dig. § 76; Dec. Dig. <&wkey;>35.]
    7. Appeal and Error &wkey;>1073(l) — Harmless Error — Judgment.
    It was not prejudicial error to order personal judgments against a railwáy company in favor of a subcontractor’s creditors, where the decree relieves it from liability upon payment of the amount due from it to the subcontractor.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4240; Dec. Dig. 1073(1).] .
    8. Railroads <&wkey;159(4) — Liens — Persons Entitled to — Statute.
    Yernon’s Sayles’ Ann. Civ. St. 1914, art. 5640, giving a lien to mechanics, laborers, and operatives on railway construction work, applies to copartners who work themselves and employed about 30 teams on grading work, especially where no profit was made on the job.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 489, 490; Dee. Dig. i&wkey;Í09(4).]
    9. Appeal and Error <&wkey;1171(2) — Disposal —Reversal—Trivial Excess — Assi gnment oe Errors — Specification — Particularity.
    An assignment of error to an allowance of $172.55, of whicli $34 was possibly erroneous, will be entirely overruled when the $34 deduction would make no appreciable difference in the result, especially where there is no assignment specifying the $34 item.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4547, 4548; Dec. Dig. <&wkey;> 1171(2).]
    10. Railroads <&wkey;l59(4)— Liens —Persons Entitled to — Statute.
    Yernon’s Sayles’ Ann. Civ. St. 1914, art. 5640, giving a lien to mechanics, laborers, and operatives on railway construction work, applies to a subcontractor’s foreman or superintendent earning $200 per month and doing an appreciable amount of manual labor.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 489, 490; Dec. Dig. &wkey;159(4).]
    Appeal from District Court, Tarrant County; Marvin H. Brown, Judge.
    Action by J. E. Collins and others against the Texas Building Company and others. Judgment for plaintiffs, and certain defendants appeal.
    Affirmed as modified.
    D. E. Decker, of Quanah, and I-I. A. Turner,- of Ft. Worth, for appellants. J. C. Wilson, Thompson & Barwise, rsi'yan, Stone & Wade, and W. C. Blalock, all of Ft. Worth, for appellees.

      Application lor writ oí error pending in Supreme Court.

   CONNER, C. J.

In September, 1912, the Quanah, Acme & Pacific Railway Company, a corporation, duly organized under the laws of the state of Texas, contracted with the Southwestern Construction Company, another corporation duly organized under the laws of the state of Texas, to do all the work and furnish all of the material necessary to the construction of the roadbed and to lay the track for a line of railway from Padu-cah, in Cottle county, Tex., to a. point in Motley county, Tex., a distance of approximately 40 miles. The construction company in turn sublet the contract to the Texas Building Company, another corporation, and the latter company in turn contracted with various firms and individuals to do all the grading, clearing, grubbing, excavating, and embankment work on specified miles of the contemplated road, and some of these firms and individuals later in turn sublet portions of the work that they had contracted to do. The contracts referred to in a general sense may be said to be interdependent, and for the gradation work payment was provided in a fixed sum per square foot for grubbing and clearing, and a fixed sum per cubic yard for the moving of dirt and rock. It appears that the work was completed in October, 1913, and that soon thereafter one W. B. Drake instituted a suit against the Texas Building Company to recover an amount alleged to be due him for services or material furnished in the construction of the road, and garnished the construction company, alleging that there was reason to believe that the construction company had funds of the building company in its possession. At a later period, it appears that J. E. Collins and several others, who had performed labor hereinafter to be more particularly mentioned, instituted suit against the Texas Building Company to recover sums alleged to be due them. These several suits, upon motion duly made, were consolidated, and the railway company and the Southwestern Construction Company answered that there was a balance due from the railway company to the construction company, under the contract between them hereinbefore referred to, of $27,-480.48, which had been retained under the terms of the contract, and this sum the railway company and the construction company, by their answers, tendered into court. These companies also set up that there were numerous other specified parties who had claims against the Texas Building Company; and it was prayed that they might be required to intervene and set up their rights to the fund in question. Numerous parties thereafter did intervene and set up claims, as will hereinafter more particularly appear. The garnishment suit of W. B. Drake against the Texas Building Company was later dismissed on the ground of the notorious insolvency of the building company. So that, in the final form of the litigation, this contest is one between the Quanah, Acme & Pacific Railway Company and the Southwestern Construction Company on the one side, and J. E. Collins and numerous others on the other side. As against the railway company and the construction company, Collins and other laborers and materialmen, asserting claims, substantially alleged that a greater sum than $27,480.48 as tendered was due from the railway company to the construction company, under the terms of the contract between them. The several claimants, however, as among themselves set up priorities of right to the fund referred to and of lien upon the railroad as alleged.

The trial was before the court without a jury, and the court’s conclusions of fact and law' are before us. The court found and adjudged that the total amount of the funds remaining in the hands of the railway and construction companies due under the contracts was $32,185.98, which the judgment of the court required these corporations to deposit in the registry of the court. The' claimants were divided into classes A, B, C, and D. In class A were some 13 claimants, in whose favor the court found sums severally aggregating $28,538; three of the claimants were included within class B, the total of class B’s claims amounting to $2,553.45; there were some five of class O’s creditors, whose claims aggregated $3,310.30. The court found and adjudged that the creditors in class A were entitled to recover of the railway and construction companies their several claims and to a first lien upon the railway, after which the creditors in class B were entitled to a like judgment with foreclosure of lien for their several claims, and that, after the satisfaction and payment of the claims in classes A and B, then what fund remained should be ratably paid to the creditors specified in class C. No lien was found in favor of the creditors in classes O and D. It was adjudged that the creditors in class D take nothing, and, as they are not represented on this appeal, it will be unnecessary to further notice the claims of this class.

The railway and construction companies have prosecuted an appeal from the judgment against them, and one of the creditors in class O has likewise appealed from the court’s judgment, complaining of the adjustment of the priorities.

The record before us is very voluminous, and the numerous briefs and conflicting claims of the parties have rendered the case one somewhat difficult of disposition. It seems manifest that we cannot within reasonable limits state or discuss at length all of the details of the case. We think we can but briefly, though perhaps irregularly, dispose of such of the questions presented as we deem material to our final disposition, and, so proceeding, we will first attempt to dispose of the appeal of the railway and construction companies.

Appellants, the railway and construction companies,, insist that the court erred in rendering judgment against them in excess of the sum of $27,480.48, for the reason, as alleged, that none of the interpleaded parties deny the correctness of the sum so tendered, and for the further reason that there is evidence that the sum so tendered was the correct amount. In the interest of brevity, we will not undertake to set out the pleadings of the several interveners relating to the subject; but such pleadings have been examined and we find that several of them allege that “they are without sufficient information to enable them to affirm or deny the allegations of the first paragraph (the paragraph of the answers setting forth the amount due under the railway contracts as claimed by appellants), except that they are informed, and so charge, that the said construction company was at the time complained of, and is now, indebted to the building company in the sum stated, or a greater sum than stated.” Another allegation of the intervening creditors is to the effect that in computing the amount due from the construction company to the Texas Building Company, the former charged certain amounts “for rent or lease of construction material or construction equipments, and other such items which the construction company was not entitled to charge against the building company, and which, if deducted, would make the construction company owe the building company a greater sum than $27,480.48.” Yet another answer of an appellee alleges that “it has not sufficient knowledge to enable it to form a belief as to the amount owing by the construction company on the building company’s contract, and demands strict proof as to all of said facts.”

The trial seems to have proceeded upon these allegations; the several parties presenting evidence pro and con tending to fix the true amount of the indebtedness of the railway and construction companies to the Texas Building Company, and no objection appears to have been offered to any of this evidence on the ground of a want of pleadings ; and such ground will not now be adopted by us as a sufficient cause for disturbing the judgment in respect to the 'total amount found and adjudged by the court to be due from the construction company to the Texas Building Company, and which is made available for distribution among the claimants of the fund.

Another principal contention of appellants in this connection is that the amount due the building company should have been limited by the court to the amount tendered, for the reason that the amount tendered is the amount shown in the final estimate of the railway company’s engineer. It is true, as appellants insist, that the contracts between the railway company and the construction company, and between the construction company and the building company, provide for a final estimate on the part of the railway company’s engineer, and in legal effect as between these companies make such reports conclusive; but appellants’ failure in this respect consists in the fact that the court has found that no final estimate of the engineer was proven. Appellants offered in evidence an instrument relied upon by them as such final estimate, but it was unsigned and uncertified to by the railway company’s engineer, as the contracts provide should be done; and the court found that it was but a mere memorandum and not entitled to the legal effect of a final estimate, and this finding on the part of the court we feel unable to disturb.

Nor, after an examination of all of the evidence, are we able to say that the court’s findings and judgment as to the true amount due, excexit to the extent hereinafter stated, is in other respects unsupported by the evidence. In arriving at the true amount due, the trial court disallowed, some wholly and others in part, certain charges made by the construction company against the Texas Building Company, and which the construction company, in its statement of the account, had deducted from the total amount due the building company. One of the principal of these items was a charge by the railway company of $15,341.37 for the rent of cars by the building company from the railway company, during the progress of the work at the rate of $1 per day. The court found from the evidence that 45 cents only should have been charged for the rent of those cars. Complaint is made of this; but we think we cannot disturb the court’s conclusions in this respect. There was evidence tending to show that 45 cents per car was a reasonable and customary charge at the time, and -appellants rely only upon an asserted agreement on the part of the Texas Building Company to pay $1 per car. It is true that an auditor or bookkeeper testified that the charge of $1 per day had been made in accordance with an agremeent between the construction company and the building company ; but he acknowledged that he had not seen the agreement and no such agreement was offered in evidence. Nor do we think that the mere fact that from month to month the rental charge for cars appeared in unchallenged statements of the construction company to the building company is conclusive as against appellees, the claimants to the fund. As seen, there is no sufficient proof that the cars were furnished upon a written agreement for $1 per day; and all that appears, from which any other agreement could be implied, is that it is not affirmatively shown that the Texas Building Company objected to the charge so made. No specific agreement between the construction company and the building company, either before the cars were furnished or later, appears to have been, made, and we do not see sufficient reason for disturbing the finding of the court stated, to the effect that appellees were not precluded in any way from contesting the item mentioned.

Another charge of $50 against the building company for a payment of that amount to a Mexican as damages for personal injuries received during the work was wholly rejected by the court; and, while it is true, as will be a little later more fully shown, that the contract between the construction company and the building company authorized the construction company to pay claims against the building company, we think the contract related to only such claims as might constitute a lien against the railway; and it is not pretended that the claim of the Mexican could be enforced by such a lien. Indeed, there seems to be no serious contention before us that this claim was improperly rejected.

The court further rejected an item of $460.50 of which ruling appellants complain. As to this item the record shows that one Schraeder in August, 1913, shortly before the completion of the road, shipped to his own order to Paducah, Tex., “Notify Texas Building Company,” two cars of posts; that these posts, without the consent of Schraeder or of the transportation company, were obtained by the Texas Building Company, and used by it in the construction work on the appellant company’s railroad, after which the appellant railway company paid Schraeder $460.50 for the posts, and charged the payment to the account of the Texas Building Company. The trial court held that appellants were not authorized to do this, and charge the same against the funds in its hands; basing his ruling upon the ground that at the time of this payment the claim of Schraeder had not been assigned to the railway company, and that the payment had been made after due notice to the railway company of the claims of the various parties in this cause who have been awarded liens by the judgment, and upon the further ground that the claim for 'the posts had not been filed in the manner required by law to entitle it to a place in class B relating to the claims of materialmen. The following is one of the paragraphs of the contract between appellant railway company and the appellant construction company:

“Eleventh. Should there be any unsatisfied claims for damages to persons or property at the time of the completion of the work, the chief engineer of the company shall have the right to estimate and finally determine the amount of such damages and pay the same to the proper parties, and all such sums so estimated and paid shall be deducted from what is due the contractors.”

Paragraphs 18 and 20 of the contract between the construction company and the Texas Building Company read as follows:

“Eighteenth. Before final payment shall be required to be made by company (the construction company) under this contract, the contractor (the Texas Building Company) shall acknowledge and . deliver, under their hands and seals, a release and discharge of and from any and all claims and demands for and in respect of all matters and things growing out of or connected with this contract or the subject-matter thereof, and of or from all claims and demands whatsoever.”
“Twentieth. It is finally covenanted and agreed by and between the parties hereto for themselves, the subcontractors, executors, administrators, successors, and assigns, that this contract in all of its terms and provisions shall be binding upon them, and each and every one of them, and that the work covered by this contract and all the money due thereunder, shall be free from and not liable to any liens or charges at law or in equity, or under the mechanics’ lien act of this state.”

It is perhaps to be implied from the fact that Schraeder shipped the posts to his own order that the sale of the posts was intended as a cash sale, and that, the Texas Building Company having obtained possession of the same without the consent of the railway agent, Schraeder was in position and possibly threatening to repossess himself of the posts;’ whereupon, the posts being already in place upon the construction work of the railway company, the latter paid Schraeder’s bill, as stated. At all events, by reference .to Vernon’s Say les’ Texas Civil Statutes, article 5623, Schraeder was a materialman having the right under the statute to fix a lien upon the railroad for the value of the posts used in its construction; and, whether this lien had been actually fixed or not by giving written notice to the railway company as provided for in that statute, we think, under the terms of the paragraphs of the contracts which we have quoted, that it was the clear right of the railway company to relieve itself under the circumstances from the claim of Schraeder by the payment of his claim, and no authority has been cited by appellees, and we have found none, that would deny the appellant railway company the' right to charge this payment in its settlement with the building company, merely because at the time of the payment some one or more of the creditors in classes A and B had already given the railway company notice of their claims. We accordingly hold that from the sum of $32,1S5.98, found by the court to be due from appellants, there should be deducted the said sum of $460.50, with legal interest thereon from the date of its said payment in August, 1913; and the judgment below will be so reformed as to so show. In other respects the judgment of the court fixing the sum due from appellants to the Texas Building Company will be affirmed.

Another contention of appellants is that the court erred in taxing the costs of the court below against them, and in not allowing them reasonable attorney’s fees, the insistence being that appellants are merely in the .attitude of stakeholders of the fund contended for by appellees, but we think the contention must be overruled. Appellants are not in the position of mere stakeholders tendering into court the amount due the Texas Building Company. As we have seen, appellants were contestants upon this issue. They combated the contention that more than the amount tendered in their pleadings was due, and they in fact did not tender the true amount due as found by the court, nor indeed did they follow the tender made in their pleadings by an actual deposit of any sum into the registry of the court.

Another contention of the appellant railway company is that the court erred in rendering a personal judgment against it for “any amount”; it being urged that the appellee creditors were only entitled to .liens against the railroad as adjudged by the court; but we find no substantial merit in this contention. The appellant railway company confessed its possession of a large fund to which the appellee creditors were entitled. To the extent at least of the fund as so confessed, the railway company was in the position of a stakeholder, and liable in personam ; and the court’s decree specifically acquits both appellants from all liability of whatever kind, upon the payment into the registry of the court of the amount found by the court to be due from them. It may also be said in answering this contention that confessedly the creditors in classes A and B, who alone were awarded liens upon the railroad, are entitled to enforce such liens; and there is no evidence indicating that the value of the property upon which the liens are so fixed is insufficient to pay off all claims of creditors in those classes. Nor is the personal judgment in favor of the creditors in class 0 made to operate beyond the surplus left, if any, after payment of the preferred claims in classes A and B. No prejudicial effect of the personal judgment, therefore, is apparent.

The appellant railway company also attacks the court’s findings and judgment in favor of a number of the creditors specified in class A; hut, inasmuch as like attacks are more particularly made by the appellant Du-pont De Nemours Powder Company, an in-tervener below, and one of the creditors of the Texas Building Company placed by the court in class C, we will undertake to dispose of these contentions in answering the brief of the latter appellant.

As stated, the appellant Dupont De Nemours Powder Company was placed by the court in class 0, that is to say, as among the creditors of the Texas Building Company, who had furnished material for the construction of the railroad, but who had not fixed liens’thereon in accordance with the statutes; and it will be seen by a mere arithmetical computation that the fund directed by the court to be paid into its registry by the appellants, the railway company and the construction company, will be sufficient to satisfy the claims of all creditors in classes A and B to whom are awarded liens, and yet leave a surplus to be divided pro rata among the creditors in class C. In order, therefore, to lessen the number of priorities of claims, and thus increase the amount to be apportioned to creditors in class O, the Dupont De Nemours Powder Company attacks numerous claims specified in class A. Thus it is insisted that the Gaines Bros., a firm composed of Frank Gaines and J. II. Gaines, who are specified among the creditors in class A and who are adjudged to be entitled to recover $1,679.21, are not entitled to priority over the creditors specified in class C, including the Dupont De Nemours Powder Company, on the ground that:

“Ttiere was no proof sufficient to establish a lien in favor of said Gaines Bros., against the railway company or the Southwestern Construction Company, or said fund of $32,185.98.”

The evidence shows that Gaines Bros, had a written contract with the Texas Building Company to do all of the gradation work on mile 19 of the Quanah, Acme & Pacific Railway; that they worked in fulfillment of their contract an average of 30 teams forabout 117 days; the Texas Building Company agreeing to make payments to them at prices set forth in the contract, being so much per square foot and per cubic yard for the different character of work done. The Gaines Bros, also had a contract with one D. R. Morris, a subcontractor under the Texas Building Company, to do all of the gradation work on mile 9, and a few stations on mile 10, at the same prices stipulated in their contract with the Texas Building Company. Prank Gaines testified that there was a balance due on their contract with the Texas Building Company of $870.40, and a balance due on the contract with D. R. Morris of $808.74. The Gaines Bros, sought to recover these balances, alleging that they were due them for personal labor and for the use of their teams and tools in the construction of the railroad. The witness further testified that they averaged about 30 hired men per day, and that all of the laborers employed by them had been paid; that they owned all the tools, wheelers, scrapers, and teams used by them; that the witness drove teams, was foreman part of the time, and did just anything there was to do.; that his father, J. H. Gaines, cleared and grubbed and drove teams most of the time; that J. H. Gaines was not a foreman, that he just worked on the grade —actual labor; that he cleared and grubbed and drove teams, all but a few days, between October, 1912, and March 6, 1913. He ploughed, or cleared, or grubbed, and did any other manual labor as a laborer during all the time he was there. That the full amount paid to the firm of Gaines Bros, by the building company for their work and the work of Morris was $13,877.76, all of which was paid out in wages to the men and for expenses in feeding the men and for supplies and for the costs of feeding teams; that there was no “profit in that job”; that if they got all the money it would not make wages for themselves and their teams; that the reasonable market value for the use of such teams and tools as Gaines Bros, had about that kind of work per day was about $4.50 a day and 10 per cent, for their tools; that the value of the personal services of J. I-I. Gaines was about $2 per day.

D. R. Morris testified that he did not think that Gaines Bros, made wages out of the contract he made with them, and the finding of the court was that “none of the persons named in class A earned the respective amounts found to be due as contractors or subcontractors,” but earned the same by reason of having performed labor or worked with tools, teams, or otherwise, in the construction of the railroad. Our statute on the subject, Vernon’s Sayles’ Texas Civil Statutes, article 5640, reads:

“All mechanics, laborers, and operatives, who may have performed labor, or worked with tools, teams or otherwise, in the construction, operation, or repair of any railroad locomotive, car, or other equipment of a railroad, and to whom wages are due or owing for such work, or for the work of tools or teams thus employed, or for work otherwise performed, shall hereafter have a lien prior to all others upon such railroad and its equipments for the amount due him for personal services, or for the use of tools or teams.”

We are of opinion that the evidence above stated fairly brings the firm of Gaines Bros, within the purview of the statute we have quoted. In the case of Ft. Worth & Denver City Ry. Co. v. Read Bros. & Montgomery, decided by this court on February 1,, 1913, and reported in 154 S. W. 1027, and in which a writ of error was refused, we held upon a very similar state of facts that laborers who have performed labor or worked with tools, teams, or otherwise, in the construction of the road, and-to whom wages were due for such work, or for the work with tools and teams thus employed, were entitled, under the statute, to the lien therein specified, and that the right was not destroyed by the fact that the laborers claiming such lien had contracted with the general contractors to move dirt and rock at a specified price per cubic yard and to clear land at a specified price per acre. In the case before us, the Gaines Bros, were not mere contractors, dependent alone upon the profits of a contract and, hence, unprovided for by the statute, but were in a very important sense also actual laborers, and also very clearly worked with teams and tools owned by them in the construction of the road and therefore, especially in view of the fact that they received no profit under the contracts fairly within both the terms and beneficial purposes of the statute, which we think should receive a liberal construction, and hence were entitled to recover the amount due them shown to be the reasonable value of the work done in person and with teams and tools. The court, therefore, as we think, committed no error in so finding and in awarding a lien upon the railway to secure the payment of the sum due the Gaines Bros.

Appellant Dupont De Nemours Powder Company also assails the finding of the court in favor of contractors Breeding and Green, who were awarded the sum of $758.96, with foreclosure of a lien upon the railway, and like findings of the court in favor of W. R. Parmer for the sum of $4,551.76; in favor of D. R. Morris for the sum of $5,980.14; in favor of the assignee of the firm of Owens Bros., composed of J. A. Owens, Jr., and E. M. Owens, for the sum of $2,184.97: in favor of J. O. Oupp for the sum of $1,16S.51; in favor of \V. 0. Oglesby for the sum of $79S.75; in favor of H. B. Ashburn for $172.55 and of O. E. McClelland for the sum of $590; in favor of T. O. Kennedy and O. W. Kennedy for the sum of $2,552.40; in favor of B. B. Brown for the sum of $590; and in favor of J. E. Collins for the sum of $1,647.65. The persons and firms last named were all placed by the court in class A of the creditors of the Texas Building Company, and the evidence relating to these several claims is so nearly similar and so substantially the same as that given by us in disposing of the attack upon the finding in favor of the Gaines Bros, that we think our conclusions relating to that claim sufficiently disposes of the numerous attacks of the Du-pont De Nemours Powder Company last above named, except perhaps we should note that, of the claim of $172.55 found by the court in favor of H. B. Ashburn, $34 was charged for hauling and placing pipe in the streets of Paducah, and not shown to have any connection with the construction of the railroad. Objection is made to the allowance of this $34 in one of the propositions under the assignment attacking the findings in favor of H. B. Ashburn, and possibly a proper deduction of the $34 should have been made; but the item is so small that a deduction of this amount would make such an inappreciable difference in the final results that we have concluded to overrule the assignment altogether, particularly in view of the fact that the assignment attacks the finding in favor of Ashburn as a whole, there being no specific assignment objecting to the inclusion of the $34 in his claim.

Appellant Dupont De Nemours Powder Company’s second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, and twelfth assignments of error are therefore all overruled for reason assigned in disposing of the first assignment relating to the finding in favor of the Gaines Bros.

The appellant also attacks the court’s finding in favor of C. J. Larimer for the sum of $646 to secure which the lien upon the railway was adjudged. Larimer is also one of those named by the court in class A of the creditors of the Texas Building Company. The evidence shows that Larimer was employed by the Texas Building Company in connection with the construction of the railroad at a salary of $200 per month and expenses. He owned none of the teams, tools, or appliances engaged in the construction of the road, but acted as a foreman. Larimer testified that his work on the road was that of a foreman “laborer and anything else”; that he spent about an hour a day manual work, that the reasonable value of his services to work an hour a day at such work would be all the way from $1.25 to $1.75 per day; that he was sometimes addressed in communications from the Texas Building Company as “superintendent” and sometimes as “foreman”; that in signing pay checks he designated himself on some of them as “foreman,” that he looked after the commissary department when he did not have a commissary clerk, and also looked after collections ; that he had an office in Paducah most of the time and had a stenographer; that be hired teams for the building company, and had authority to discharge men; that he advised the company when men were needed, and did whatever was necessary to be done as a superintendent. He further testified: -

“The first work I did on that extension, I had charge of the grading and concrete work. I worked at that particular time from the 7th or 12th of October, 1912, until the next March or April, then I quit. I went back to work there in June, about June 20th, and was there until October 5th. I do not remember everything in the way of work that I did. I directed the work part of the time. I handled the shovel and filled in as extra brakeman, and tightened bolts on bridges and repaired fences, and did pretty near everything that a man could do on a job of that kind; I loaded steel and unloaded steel. I was doing those things, just one and then the other during the entire time. I was working for the Texas Building Company in the construction of the line of x'oad up there. The balance due me for July and August and September and five days in October is $646.02, for my services alone, actually performed on that work, being 97 days at $6.66 per day, and an expense account of $177.70. The price of $6.66 per day was not reasonable for the services which I performed. The character of work which I performed on that construction work, it was not enough; it was below reasonable.”

He also testified that he went out as a brakeman two or three times to comply with the full-crew law; that he assisted in coaling the engine once or twice; that he went out and repaired fences; that he actually performed some of the labor in repairing fences; that he assisted in tightening bolts on the bridge; that he helped handle teams in repairing the bridge over Salt Creek; that he helped handle sand for ballast; and that he performed some manual labor nearly every day.

Numerous authorities have been considered in passing upon the claim of Larimer. They are by no means uniform in their holdings, but we have finally concluded to sustain the court’s finding in favor of Larimer, and overrule the assignment which attacks such finding upon the authority of Texas & St. Louis Ry. Co. v. Allen & Humphreys, by our old Court of Civil Appeals, and reported in White & W. Civ. Cas. Ct. App. §§ 568-569. A material question in that case was whether one of the Allens, who performed services as a foreman or superintendent of laborers was entitled to the statutory lien in payment therefor. The court, after quoting in part the statute, which in so far as now here pertinent was then the same as the one we have quoted, say:

“Were the services performed by appellee Allen those of a mechanic, laborer, or operative, within the meaning of the statute? The evidence shows that, under a contract with one Bussey, who was a subcontractor of appellant, Allen performed services as the foreman or superintendent of laborers engaged in the construction of appellant’s road, furnished certain tools and teams to carry on the work of construction, and sometimes used the tools himself, and at other times directed their use by the laborers. The court below adjudged him to be a mechanic, and based its decision upon the definition of that word given by Webster. We do not think he was a mechanic within the usual and common acceptation of that word, nor within the meaning and intent of the statute. Neither was he an operative. If he is entitled to claim the benefit of the statute at all, it is as a laborer. It has been held that a timekeeper and superintendent in the employ of a contractor is not a laborer. Missouri, K. & T. Ry. Co. v. Baker, 14 Kan. 563. But we are not disposed so to hold. We think the foreman or superintendent of a company of laborers, who remains with them directing their work, and sometimes working himself, is within the meaning and intent of the word ‘laborer,’ as used in the statute. While he may not actually work with the shovel, scraper, plow or other implement, he performs a laborious and necessary part of that work by overlooking and directing it, and is as indispensable to the construction of the road as the man who actually uses the tools. We think, therefore, that ap-pellees were entitled to their lien to the extent of the labor thus-done and performed upon appellant’s road.”

We have not found where the case, from which we have just quoted, has been disturbed by any subsequent decision of our courts, and conclude, in view of the liberal construction that we thihk should be given to our statute, that it is our duty to follow and apply the opinion quoted. Appellant Du-pont De Nemours jcowder Company’s thirteenth assignment is, accordingly, overruled.

Other questions presented in the briefs of the parties we think have been sufficiently disposed of in what we have said, and in the trial court’s findings. The trial court’s findings of fact and law, with exception only as hereinabove noted, are accordingly approved, and the judgment reformed and affirmed, with the costs of the appellant railway and construction companies on appeal adjudged ^in their favor; the costs in other respects and as to other parties to be taxed as usual.
      (&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND,' J.

text:
    Ex parte GARCIA. GAZELL et al. v. GARCIA.
    (No. 5663.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 31, 1916.
    Rehearing Denied June 22, 1916.)
    1. Habeas Ookpus &wkey;>83 — Abatement—Necessity oe Plea.
    Where, in habeas corpus involving the right to custody of a child, respondents filed no plea in abatement' to the' jurisdiction of the court, but merely set up that the court had no jurisdiction to change the custody of the child because a decree of divorce whereby custody of the child was awarded was still in force, such pleading is not equivalent to a plea in abatement setting up the pendency of another suit involving the same matter, but raises only the question whether the court in which habeas corpus was brought has jurisdiction over the subject-matter involved in suit.
    [Ed. Note. — Eor other cases, see Habeas Corpus, Cent. Dig. § 75; Dec. Dig. &wkey;>83.]
    2. Habeas Corpus <&wkey;46 — Custody of Child.
    Where the custody of an infant child is illegally withheld from a parent, the district court has jurisdiction to issue habeas corpus upon application of the complaining parent and in such proceeding to determine the right to the custody of the child.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 36; Dec. Dig. &wkey;>46.]

      3. Divoece <&wkey;303(3) — Proceedings — Judgment— Conclusiveness.
    Where in a divorce suit the custody of children is awarded, such judgment is conclusive as to the facts and circumstances then existing, but is not a conclusive adjudication preventing subsequent proceedings for the custody of infant children of the marriage, where circumstances and conditions have changed.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. § 734; Dec. Dig. &wkey;303(3).]
    4. Divorce <&wkey;303 (3) — Custody oe Children — Exclusive Jurisdiction oe Supreme Court.
    Where a district court on granting a divorce awarded the custody of a minor child, such district court does not, the statutes providing for an absolute decree, have exclusive jurisdiction over the custody of minor children of the marriage so as to prevent a court of another district upon change of conditions and circumstances from reviewing the question of the custody of such children; this being true though the court granting the divorce attempted to reserve to itself exclusive power over the matter.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. § 794; Dec. Dig. &wkey;>303(3).]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Petition by Frank H. Garcia for writ of habeas corpus on behalf of the infant, Ivy Garcia, against Mrs. Frank Gazell, in which Bridget Garcia, under the name of Lillie Wilcox, was permitted to intervene. From a judgment awarding custody of the infant to petitioner, defendant and intervener appeal.
    Affirmed.
    A. E. Heilbron and C. L. McGill, both of San Antonio, for appellants. W. R. Camp and Don A. Bliss, both of San Antonio, for appellee.
   MOURSUND,' J.

On August 14, 1915, Frank H. Garcia filed in the district court of Bexar county, Thirty-Seventh judicial district, a petition for a writ of habeas corpus in behalf of the infant, Ivy Garcia, alleging that on February 6, 1911, in a divorce suit between said Frank H. Garcia and Bridget Garcia, the district court of Bexar county in and for the Fifty-Seventh judicial district had awarded the temporary custody of Ivy Garcia to Mrs. Frank Gazell on certain conditions; that said conditions had been violated; that the child had been subjected to influences most undesirable in her rearing, the facts being set out; that petitioner’s financial circumstances had changed and he was well situated to have the care and custody of the child. The writ of hhbeas corpus having been duly issued and served, Mrs. Frank Gazell filed her original answer to said petition on September 29, 1915, wherein she replied to the allegations in the petition, and contended that conditions had not changed since the rendition of the judgment of divorce.

Bridget Garcia, under the name of Lillie Wilcox, was permitted to intervene, and she pleaded that the decree in the divorce suit between herself and Frank Garcia contained the following provision:

“It is further ordered by the court that for the time being, and subject to the further order of the court, the custody and possession of the child of plaintiff and defendant be and is hereby placed in Mrs. Gazell, the- maternal grandmother of said child, provided, however, that the custody and possession of said child be and is hereby given to Frank H. Garcia, the father of said child, for a period of one week in every sixty days, provided that said Frank H. Garcia is to go to the home of said Mrs. Gazell and get the child, and, after keeping the child one week, said plaintiff is to return said child to the said home of Mrs. Gazell.”

She then alleged:

“That the decree of said court is still in full force and effect, and that this court has no jurisdiction to change the custody of said child.”

She answered further by adopting the allegations of her mother, Mrs. Frank Gazell, relating to the conditions to be taken into consideration in determining the merits of the controversy.

The relator, in reply to the pleadings of respondent and intervener, reasserted that the conditions had changed since the divorce decree had been rendered, setting out fully the facts relied upon. Respondent and in-tervener filed a general demurrer to his answer and denied all the allegations therein contained. We deem it unnecessary to state the allegations of the parties relating to the merits of the controversy. Appellants do not contend) that the relator’s pleadings were not sufficient, nor that the evidence does not sustain the findings of fact filed by the trial court, which amply justified his conclusion that conditions had so changed that the best interests of the child required that her custody should be awarded to her father.

The judgment of the court awarding the custody of the child to relator is only attacked upon the theory that because of the existence of, and the wording of, the divorce decree, the district court of the Thirty-Seventh district erred in hearing and passing upon the issues of fact raised by the pleadings and the evidence. We have stated the contention cautiously and therefore broadly, because of the wording of the assignments of error. By the assignments appellants contend the court erred in “overruling appel-^ lants’ plea in abatement to the jurisdiction of' the court.” This statement is subject to the construction that appellants relied upon a plea in abatement, when in fact no such plea was filed, and the only pleading from which it can be inferred that objection was made to the right of the court to proceed is the statement contained in intervener’s pleading, which reads as follows:

“That the decree of said court is still in full force and effect, and that this court has no jurisdiction to change the custody of said child.”

We therefore conclude that there is no basis upon which appellants can rest any contention with reference to a plea in abatement, and that the inquiry must be restricted to the sole issue, whether the district court of the Thirty-Seventh district had jurisdiction of the subject-matter involved in this suit.

The trial court in his conclusions of law submitted two reasons in support of his holding that he had such jurisdiction. They are as follows:

“(2) It was not intended by the said decree of the district court of Bexar county, for the Fifty-Seventh judicial district of Texas, to reserve to itself the exclusive jurisdiction of the custody of said child for all time; but said decree meant merely that the respondent should have the custody of said child temporarily until conditions should so change that the best interests of said child would require its custody to be awarded to some other person.
“(3) But even if it should be conceded that said decree should be construed as an attempt to reserve to the district court of the Fifty-Seventh judicial district of Texas the exclusive jurisdiction to hear and determine any controversy that might arise in the future as to the custody of said child no matter where said child might be at the time and no matter how much conditions might have changed, then said court had no power to assume such exclusive jurisdiction, and any such attempt would not prevent any other court of competent jurisdiction of the subject-matter from exercising jurisdiction.”

It is well settled that the district court has jurisdiction to issue the writ of habeas corpus upon the application of the parent complaining that such parent’s infant child is illegally withheld from the parent, and has the power in such proceeding to decide to whom the custody of the child rightfully belongs. Legate v. Legate, 87 Tex. 248, 28 S. W. 281; Ex parte Will Reeves, 100 Tex. 617, 103 S. W. 478. It is therefore evident that, had there been no prior adjudication respecting the custody of Ivy Garcia, the district court of the Thirty-Seventh district would have had jurisdiction to entertain and determine this cause. To what extent is this jurisdiction affected by reason of the proceedings had and judgment entered in the divorce suit in the district court of the Fifty-Seventh district? It is well settled that such judgment is res adjudicata as to the facts and conditions existing prior to its rendition, and will be given full force and effect so long as the circumstances remain as they were at the time the decree was award'ed, but is not binding if the conditions have changed, after the award of such judgment, to such an extent as to require an inconsistent award of custody in the interest of the welfare of the child. We come then to the vital question, whether all subsequent proceedings relating to the custody of the child must be brought in the court which rendered the divorce decree and therein made provision for the custody of the child. Has such court exclusive jurisdiction to adjudicate all future controversies concerning such custody? It is well established in this state that such is not the case when the judgment is entered by a court of another state and the child becomes domiciled in this state. Wilson v. Elliott, 96 Tex. 472, 73 S. W. 946, 75 S. W. 368, 97 Am. St. Rep. 928. We are unable to find any Texas case which has de-decided what the rule is when the judgment was entered by another Texas court, instead of a court of another state.

There are expressions in the opinion in the case of Plummer v. Plummer, 154 S. W. 597, which tend to sustain the theory that the court which awards the custody of minor, children in a divorce suit has a continuing jurisdiction over such minors and that they are the wards of such court. The authorities cited in support of these expressions are all based upon statutes which authorize provision to be made for the support of the children and expressly provide for modification of the decree with respect to support and custody. We can appreciate the force of the contention that, when the power is expressly vested in a court to change its decree from time to time, the necessary implication is that such decree shall be conclusive until changed in the tribunal which is given the power to change it. But we find no provision in our statute authorizing the court to provide for the support of the children in the divorce decree, and no provision authorizing the court to modify or change its decree from time to time. Our Legislature did not see fit to give the district court such power, and the statute contemplates a judgment in the case which finally disposes of the custody of the children upon the facts before the court — a decree which is conclusive in that court or any other court with regard to the custody as long as the conditions remain unchanged. Our statute provides for the division of the property, and contemplates that a final decree with respect thereto shall be made. The judgment in a divorce suit with respect to division of property and custody of the children is as conclusive under our statute as in any other case, and we find no warrant for the theory that the court exercises a continuing supervision over the children and their custody. It adds nothing to a decree to say that for the time being the custody of the children is awarded to one party, and the court has no power to decree that it reserves to itself the exclusive right to determine in the future whether the custody shall be changed. The custody is conclusively adjudicated upon the facts then existing, and a new suit must be brought in that court or some other court of competent jurisdiction in order to change such custody. If it could be held that the court had a continuing jurisdiction, it seems to us it would necessarily follow that such court at a subsequent term could, without the conditions having changed, arbitrarily set aside its judgment and change the provision with respect to the custody of the children. It may be argued that it is unnecessary for us to decide whether the jurisdiction of the court which grants the divorce is a continuing one as to the custody of the child, for the reason that no plea in abatement was filed in this case, based upon the theory that a ease involving the very question was then pending in another court. We think, however, that if it can be deduced that the jurisdiction is a continuing one it might as well be admitted that it is exclusive, for such deduction would necessarily be based on the theory that the child became the ward of that court, and no other court should take away or destroy such wardship. It has been stated by our courts that minors interested in a suit are the wards of the court, and undoubtedly they are to the extent that it becomes the duty of the court to protect and care for their interests in such suit, but not to the extent that a wardship over the persons of the minors continuous in its nature is created, even in a case involving the custody of the minors.

The question in this case is one of great importance, and it would, perhaps, be better to vest the exclusive jurisdiction, with respect to custody of minors, in the court which decrees the divorce; but we believe that the Legislature has not so decreed, and we therefore hold that the trial court had jurisdiction to enter the judgment appealed from.

Judgment affirmed.
      <§=^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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