text:
    OSVALD v. WILLIAMS.
    (No. 123.)
    (Court of Civil Appeals of Texas. Beaumont.
    April 20, 1916.)
    1. Appearance <&wkey;9(3) — General ok Special.
    Under Rev. St. 1879, art. 1243, providing that when the citation or service thereof is quashed on motion of defendant, the case may be continued for the term, but the defendant shall be deemed to have entered his appearance to the succeeding term of court, a special appearance of defendant in motion to attack a service has the same effect as a general appearance.
    [Ed. Note. — For other cases, see Appearance, Cent. Dig. § 44; Dec. Dig. <&wkey;9(3).]
    2. Appearance <&wkey;24(l) — General ok Special.
    Although there has been no service of process upon him, or void service without the state, the appearance of a nonresident defendant operates as an appearance for all purposes at the succeeding term of the court under Rev. St. 1879, art. 1243, and confers jurisdiction over his person, although such appearance be expressly limited to urging plea to the jurisdiction over his person; and when a nonresident defendant answers to the merits solely in the event that the court shall overrule his plea to the jurisdiction, and the plea to the jurisdiction is overruled, the court acquires jurisdiction of his person.
    [Ed. Note. — For other cases, see Appearance, Cent. Dig. §§ 118, 119, 123-125; Dec. Dig. &wkey; 24(1).]
    3. Master and Servant t&wkey;6 — Actions eor Compensation-Evidence oe Contract.
    In action on a contract for compensation for services, evidence held to show that such contract was made.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 6; Dec. Dig. i&wkey;>6.]
    4. Pleading i&wkey;248(4) — Amendment — New Cause oe Action.
    A complaint, in action for services in locating timber in a certain county, is not changed to a new cause of action by an amendment alleging that the timber was to be in plaintiff’s neighborhood.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ J01-706, 708%; Dec. Dig. &wkey;> 248(4).]
    Appeal from Sabine County Court; J. B. Lewis, Judge.
    Action by M H. Williams against George Osvald. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    See, also, 169 S. W. 185.
    Hamilton & Hamilton and W. F. Goodrich, all of Hemphill, for appellant. J. W. Minton, of Hemphill, for appellee.
   BROOKE, J.

This suit was filed by Williams, plaintiff in the lower court, against the defendant, Osvald, who resided in Sabine parish, La. The allegations were that about the 1st day of January, 1912, the defendant entered into an oral contract with the plaintiff, by which the plaintiff obligated himself to assist the defendant in locating and purchasing oak trees suitable for making staves, in Sabine county, and to furnish the defendant information as to the location of oak timber suitable for making staves, and advised the defendant of the names of the owners of such oak timber, which defendant desired to purchase for the purpose of making staves, and that the defendant agreed for such services to pay the sum of 10 cents per tree to the plaintiff. Thé case was tried in the lower court, and appealed to the Court of Civil Appeals at Galveston, which reversed and remanded the case (169 S. W. 185), and upon its return, the plaintiff amended his petition, as follows:

“That on or about the .1st day of January, 1912, defendant entered into an oral contract with plaintiff, by which he obligated himself to assist the defendant in locating and purchasing oak trees suitable for making staves in Sabine county in the community in which he resided (italics ours), and to furnish the defendant' with information as to the location of oak timber suitable for making staves, and to advise the defendant of the names of the owners of such oak timber, in the neighborhood in which he resided (italics ours), etc., for which defendant agreed with plaintiff to accept such service and pay therefor the sum of 10 cents per tree to the plaintiff, for all the oak timber purchased by the defendant in the neighborhood in which plaintiff resided.”

The ease was tried before the court, and resulted in a judgment for the plaintiff, M. H. Williams, for the sum of $123.50. From this judgment appellant has perfected his appeal. However, it may be observed that a writ of attachment was sued out in the beginning of the suit, and levied on property of the defendant found in Sabine county, Tex.; that upon a flnal trial in the county court of Sabine county, the attachment was quashed. The defendant appeared, filed a motion to quash the attachment, and answered by general and special exceptions, and general denial, and cross-action, asking judgment against the plaintiff in the sum of $125 for the illegal suing out of the attachment.

By his first assignment, appellant challenges the action of the court below in forcing him to answer after the writ of attachment had been quashed, contending that the court only had jurisdiction over the person of defendant by reason of the attachment writ. It has been held when the defendant appeared and excepted to the jurisdiction of the court, and moyed to quash the attachment, stating that he appeared for the purposes expressed therein alone, and in his other answer, he stated that it was filed without any intention of waiving his other plea, and that he thus answered to the merits only in the event they should be overruled, that this pleading of the defendant entered his appearance and gave the court jurisdiction over his person, Grizzard v. Brown, 2 Tex. Civ. App. 584, 22 S. W. 252. Article 1243, Revised Statutes 1879, provides:

“When the citation, or service thereof, is quashed, on motion of the defendant, the case may bo continued for the term, but the defendant shall be deemed to have entered his appearance to the succeeding term of the court.” York v. State, 73 Tex. 651, 11 S. W. 869.

Under this act it is held that it gave to a special appearance of defendant, for the purpose of objecting to the service of citation upon him, the effect of a general appearance to the succeeding term of the court. I. & G. N. Ry. Co. v. Brett, 61 Tex. 483-486; Jones v. Keith, 22 S. W. 773; Texas, etc., Ry. Co. v. Childs, 40 S. W, 41, 42. This statute introduced a change in the practice of this state. It gave to a special appearance of defendant, made in his motion attacking the service, the same effect as would have followed a general appearance, prior to its enactment. Ætna Life Ins. Co. v. Hanna, 81 Tex. 487, 17 S. W. 35.

It was also held that it is not the fact that the motion to quash the citation of service is sustained or overruled which operates as an appearance, but it is the fact that a defendant appears and asks an adjudication, which makes the appearance. Fairbanks & Co. v. Blum, 2 Tex. Civ. App. 479, 21 S. W. 1009.

It has also been held that whenever the service of a proper process will clothe the court with jurisdiction over the person of the defendant, then that which is deemed in law an appearance by the defendant will confer on the court a like power. York v. State, 73 Tex. 651, 11 S. W. 869.

Although there has been no service of process upon him, or void service upon him without the state, the appearance of a nonresident defendant operates as an appearance for all purposes at the succeeding term of the court, and confers jurisdiction over his person. Schneider v. Gray, 7 Tex. Civ. App. 25, 26 S. W. 640; Penfield v. Harris, 7 Tex. Civ. App. 659, 27 S. W. 762; Loeb v. Crowe, 15 Tex. Civ. App. 537, 40 S. W. 506; Cassidy v. Willis, 33 Tex. Civ. App. 289, 78 S. W. 40; Lucas v. Patton, 49 Tex. Civ. App. 62, 107 S. W. 1143; Evans v. Breneman, 46 S. W. 80.

The rule applies, although such appearance be expressly declared to be limited to the sole purpose of urging plea to the jurisdiction of the court over his person, and when a nonresident defendant answers to the merits solely in the event that the court shall overrule his plea to the jurisdiction, and the plea to the jurisdiction is overruled, the court acquires jurisdiction of his person. Liles v. AVoods & Co., 58 Tex. 416; Piedmont Life Ins. Co. v. Fitzgerald, 1 White & W. Civ. Cas. Ct. App. § 1345; Pace v. Patter, 20 S. W. 928.

In the case of Green v. Hill, 4 Tex. 465, plaintiff sued out an original attachment, but did not pray for personal service. The court having quashed the attachment on motion, the defendant, who had come in without service, and filed an answer to the petition, first, for general denial of all matters and things in the petition, and, second, set-off in reeonvention, moved the court to dismiss the suit, held that, had the defendant not filed his answer, the motion should have been sustained, but, as it was, the motion was properly refused.

It was also held that, where the plaintiff and defendant were nonresidents, and the suit was commenced by attachment, the defendant having appeared and answered to the merits and obtained a continuance, after-wards the attachment was quashed, and the defendant moved to dismiss the suit for want of jurisdiction, he had submitted to the exercise of jurisdiction over his person. Campbell v. Wilson, 6 Tex. 379; Primrose v. Roden, 14 Tex. 1.

We are of the opinion that there was no error in the court’s action, and that it had jurisdiction over the person of the defendant.

The third, fourth, fifth, sixth, seventh, and eighth assignments complain of the action of the court in its findings on the facts. We have examined the record closely, and find that there is evidence to support the findings of the court, and we are not disposed to disturb the same. Therefore these assignments are overruled.

The ninth assignment complains that the court committed error as a matter of law in allowing AVilliams commission on the 1,035 oak trees at 10 cents per tree, together with $20 attorneys’ fees and costs of suit. There is testimony to support both findings, and this assignment is therefore overruled.

By the eleventh assignment of error, the action of the lower court is assailed in rendering judgment against the defendant for the sum of $103.50, together with.interest and attorney’s fees, because it is contended that the evidence was that the minds of the parties did not meet in mating the contract, as alleged. The testimony of M. H. Williams, which was corroborated by Robert Williams, who was present when the alleged contract was made, was to the effect: That one Sebastian Cinkovic came to his house and told him he was the agent of Mr. George Osvald, and wanted to buy for Mr. Osvald all the oak trees suitable for making staves that he could get, and told him .that he .would give him 10 cents per tree for all the trees he could buy and work up into staves in the neighborhood where he lived, and asked if he would help and assist them in buying the timber and let them have the timber he had under contract, and he told them that he would accept that proposition, and help them, and let them have what timber he controlled. That he made a trade for Mr. Wright’s timber, and Mr. Osvald bought it; that is, marked it up and paid him 10 cents per tree. That he also traded for some timber for Mr. Osvald for Mr. Neal, Mr. Alford, and Mr. Reeves, and that he was paid his commission promptly, ten cents per tree. That he heard later that they had cut more of Mr. Reeves’ timber than he had received commission on. In making this trade with Mr. Osvald it was understood that if he bought any oak trees from Williams, he was not to pay the commission of 10 cents per tree, and that he did buy some trees from him; that is, on his land. That they also bought the timber on 286 acres of land, a part of the James Mason league, about iy2 miles from where Williams lived, from Mr. W. W. Lawson, and worked up the trees into staves, but did not pay him his commission; and that he waited some time and met Mr. Osvald and asked him if he .was going to pay him for the Lawson trees, and also asked him how many trees they had worked up, and that Osvald said there were 400 trees worked up on the Lawson tract; and that Mr. Sebastian Cinkovic would be over the next week and pay him, but that he was not paid; and that he went and got Jeff Vickers; and that he and Vickers counted the trees that had been worked up, and they had cut I,035 trees; and that he considered he owed him under the trade and contract the sum of $103.50; and that he brought suit in the justice court of precinct No. S, Sabine county, Tex. That he employed Mr. J. W. Minton to bring this suit, and would have to pay him.

The testimony of J. W. Minton .was as follows:

“I made legal demand upon the defendant for plaintiff more than 30 days before the filing of the case in the justice court of precinct No. 8 in Sabine county for the amount sued for here, as required by law in such cases. Twenty dollars is a reasonable fee for representing the plaintiff in this case.”

It is impossible for us to know what was in the minds of the parties, except from statement of the witnesses. From the testimony of the Williamses, father and son, which the court that tried the case seems to have relied upon, the contract was plain and simple, and no apparent reason exists why any ordinary mind should not comprehend the terms of the agreement. Therefore, as the trial court gave credence to the testimony, and as the witnesses were present, and it being its province to pass upon their credibility, we are unwilling to disturb its findings. This-assignment is therefore overruled.

More than two years elapsed from the time of the filing of the original petition, and the first amended original petition, and it is earnestly insisted that the first amended original petition set up a new and different cause of action. It will be noted that the only difference practically between the allegations of the original and the first amended original petition is the additional allegation that the timber was not only to be in Sabine county, but that it was to be in the neighborhood in which plaintiff resided. We do not believe that either the authorities or sound reason sustain the contention of the appellant.. Instead of a new and different cause of •action, the first amended original petition was between the same parties, for the same consideration, and in all respects identical save and except as above set out. Therefore we are constrained to hold that it was not a new and different cause of action from that pleaded in the original petition. We are not unmindful of the opinion handed down by the Court of Civil Appeals at Galveston in this case, reported in 169 S. W. 185, and we do not understand that there is any conflict between the principles announced in that case and the principle here announced. The court in that case says:

“It is well settled that facts not alleged, though proved, cannot form the basis of a judgment, * * * and that a judgment not responsive to the pleadings will be set aside.”

The proof.in that case was identical as here; that is, the contract embraced oak timber in Sabine county and in the neighborhood where plaintiff lived.

In deference to appellant’s able brief and argument, we have carefully considered all matters raised by appellant’s assignments, and while the testimony is, perhaps, lacking in some respects, still, as before said, we are not willing on this account alone to disturb the judgment of the lower court.

Believing that no reversible error has been committed in the trial of this case, the appellant’s assignments of error are overruled, and the judgment is, in all things, ‘ affirmed. It is so ordered.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: CONLEY, C. J.

license: Public Domain

text:
    HAMLET v. LEICHT.
    (No. 90.)
    (Court of Civil Appeals of Texas. Beaumont.
    April 27, 1916.
    1. Appeal and Ebrob <&wkey;797(3) — Record on Appeal — Motion to Dismiss — Time eoe Filing.
    _ Under rule 8 (142 S. W. xi), as to waiver of objections to informalities, if motion to dismiss for failure to file briefs in time is not filed within 30 days after filing tbo transcript, it is too late, and will be overruled.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3153; Dec. Dig. <&wkey;>797(3).]
    2. Descent and Distribution &wkey;>119(l)— Liability oe Heirs — Note oe Decedent.
    The surviving wife of the deceased maker of a note is not personally liable 'thereon, but the creditor should proceed against the property of the decedent in her hands to establish a lien thereon.
    [Ed. Note. — For other eases, see Descent and Distribution, Cent. Dig. §§ 224, 433, 434, 438, 439; Dec. Dig. &wkey;M19(l).]
    3. Descent and Distribution &wkey;jl4G — Liability oe Heirs — Note oe Decedeni>-Ac-tions — Petition—Subeicien oy .
    A petition seeking recovery on a note of decedent as against his surviving wife is insufficient if it fails to show what specific property of the estate was received by her, or that the estate was solvent, or fails to seek foreclosure of a lien on specific property of the estate.
    [Ed. Note. — For other cases, see Descent and Distribution, Cent. Dig. §§ 508-510; Dec. Dig. <&wkey;146.]
    Error from Jefferson County Court; D. P. Wheat, Judge.
    Action by George H. Leicht against Mrs. Pauline Hamlet. From a personal judgment by default against defendant, she brings error.
    Reversed and remanded.
    J. Y. Fleming and J. W. O’Neal, both of Beaumont, for plaintiff in error. David E. O’Fiel, of Beaumont, for defendant in error.
   CONLEY, C. J.

We are confronted with a motion to dismiss this appeal, for the reason that briefs of plaintiff in error were not filed within the time prescribed by law. The rules require motions of this character to be filed within 30 days after the filing of the transcript in the Court of Civil Appeals. Rule 8 (142 S. W. xi). The transcript was filed in this court November 30, 1915. The motion to dismiss the appeal, for the reason above stated, was not filed until February 23, 1916. The motion, having been filed too late, is overruled.

This suit was originally instituted in the county court at law of Jefferson county by George H. Leicht, defendant in error, against Pauline Hamlet, a feme sole, plaintiff in error. The cause of action was on a promissory note executed by W. R. Hamlet, deceased husband of the plaintiff in error, and delivered to George H. Leicht by him during his lifetime. The petition of defendant in error alleged the execution of the note and its delivery by W. R. Hamlet, and the liability and obligation of said W. R. Hamlet to pay the same, according to the face thereof, that since the execution and delivery of the note the said W. R. Hamlet had departed this life, without leaving any lawful heirs of his body, or any other heir at law than Mrs. Pauline Hamlet, that there had been no administration and no necessity therefor, there being no other debts or obligations against the said estate, that Mrs. Pauline Hamlet was in possession of and controlling and managing all the properties of the estate; that the note was past due, and that the said Pauline Hamlet had refused to pay the same, and prayed for personal judgment against her for the amount of said note. The plaintiff in error, Pauline Hamlet, filed an answer, consisting of a general demurrer and general denial.

The case was tried before the court without a jury, and resulted in a personal judgment by default against Mrs. Pauline Hamlet for the amount of the note sued on, principal, interest, and attorneys’ fees, and costs of court. From this judgment she has perfected a writ of error to this court, and the judgment is now before us for revision.

The first assignment of error attacks the court’s action in rendering judgment in personam against her, and in not sustaining the general demurrer to the petition. This assignment is well taken, and will be sustained.

The plaintiff in error is not personally liable on said note. Heirs, devisees, and legatees who receive property belonging to an estate against which unpaid claims exist do not thereby become personally liable to the claimants for the value of the property so received; the remedy being to enforce a lien against the property in their hands. In a case of this kind the petition should show what specific property came into the hands of the plaintiff in error, so that a lien may be fixed, if other conditions exist which authorize it, on such property, and that a proper judgment might be entered for the foreclosure of such lien. Blinn v. McDonald, 92 Tex. 604, 46 S. W. 787, 48 S. W. 571, 50 S. W. 931.

The petition in this case does not set out any specific property received by the plaintiff in error from the estate of her deceased husband, nor does it in terms allege that she received any property of any kind, nor the value of same, nor that said estate was solvent, nor does it seek to fix or foreclose a lien on such property, but prays for a personal judgment against the plaintiff in error for the full amount of the note. It is wholly lacking in the essentials necessary to authorize a suit of this character against plaintiff in error.

Although the petition alleges that W. R. Hamlet died intestate, leaving Mrs. Hamlet as sole heir, that there had been no administration on his estate, and no necessity therefor, and that the debt sued on was the only-debt against the estate, yet in the trial of this cause the defendant in error introduced the deposition of Mrs. Hamlet, in which she testified, among other things:

“W. B. Hamlet departed this life November 17, 1913. * * * W. B. Hamlet left a will at his death which made me the executrix and sole or partial devisee of all of his estate. He did not have a home at the time of his death, nor did he have any land at the time. * * * I cannot toll what debts were due by W. E. Hamlet or this estate, except from the memorandum contained in the inventory. * * * Mr. Hamlet did not leave an estate perfectly solvent, and in value amounting to more than sufficient to have discharged any and all indebtedness owed by him, without taking into account the exemptions claimed by myself as the surviving widow.”

It is therefore to be seen that even such allegations as were made in the petition are not sustained by the proof.

The judgment will be reversed, and the cause remanded; and it is so ordered.
      cS&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    McDONALD v. ÆTNA LIFE INS. CO. OF HARTFORD, CONN.
    (No. 7182.)

    (Court of Civil Appeals of Texas. Galveston.
    May 25, 1916.
    Rehearing Denied June 29, 1916.)
    1. Appeal and Error <&wkey;1066 — Harmless Error — Instructions.
    Where the beneficiary gave a receipt in full of two life policies which recited that she voluntarily made and understood the settlement for one-half their face value, the question whether her relatives, who negotiated the compromise, were her authorized agents, is immaterial, so that an instruction that they were her agents, oven if erroneous, is harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. <&wkey;>1066.]
    2. Insurance &wkey;>579 — Liee Insurance — Compromise — Good-Faith Controversy.
    All that is required to validate a compromise on a life policy is that the beneficiary understand the settlement and that the insurer act in good faith in disputing the claim, and the ground of dispute need not be brought home to the beneficiary.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1417, 1419; Dec. Dig. &wkey;>579.]
    3. Appeal and Error &wkey;H066 — Harmless Err or — Instruction s .
    Where the beneficiary gave a receipt in full of two life policies which recited that she voluntarily made and understood the settlement for one-half their face value, the question whether the controversy between the insurer and her relatives as to the cause of insured’s death was to be considered as if between herself and the insurer was immaterial, and an instruction that it should be so considered was without prejudice.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. <@u^lOG6J
    Appeal from District Court, Galveston County; Eobt. G. Street, Judge.
    Action by Mrs. Minnie E. McDonald against the .¡Etna Life Insurance Company of Hartford, Conn. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    King & Hughes, of Galveston, Harry Tom King, of Abilene, and H. C. Hughes and E. L. Pillow, Jr., both of Galveston, for appellant. Baker, Botts, Parker & Garwood and Jno. C. Townes, Jr., all of Houston, and W. T. Armstrong, of Galveston, for appellee.

      Application for writ of error pending in Supreme Court.

   PLEASANTS, C. J.

This suit was brought by appellant against the appellee to recover upon two insurance policies for the sum of $S,750 each issued by appellee, and by which it insured appellee’s deceased husband, John C. McDonald, against death by accidental means in the sums named in said policies.

The plaintiff’s original petition set up the policies ^nd set up the death of the insured on the 8th day of December, 1914, by accidental means, to wit, from gas asphyxiation. Said petition gave credit for one-half of the principal sum paid to the plaintiff, and asked judgment for the ’balance, $8,750, together with 12 per cent, penalties and an attorney’s fee of $2,500.

Defendant in its first amended original answer admitted the issuance of the policies and the death of the insured, 'but denied the cause of the death, alleging that same was not due to an accident, but to natural causes. It also set up the insurer’s right to an autopsy, the failure of the plaintiff to permit an autopsy, and the forfeiture of the policies thereby, and further alleged, among other defenses, that they had paid $8,750 in full and final settlement of all claims due under the policies as a compromise thereof, and' that there was nothing due from the defendant to the plaintiff on account of said settlement and adjustment, attacking a release to the answer which recited full settlement of the two policies for the sum of $S,750, said release being dated January 4, 1915, and in that connection set up that the negotiations leading up to the settlement were carried on by P. B. Eyler, representing the defendant, and J. W. Carson and Capt. Bobert-son, representing the plaintiff; that said parties were.agents of the plaintiff authorized to represent her in said negotiations; that the agent of the defendant, after investigating the facts surrounding the death of Mr. McDonald, reached the conviction that he did not die from accidental causes, and urged said defense prior to the making of said settlement in good faith believing it to be a substantial defense or a doubtful question; that a dispute or controversy as to the liability of the defendant company was raised; and ithat said controversy was bona fide, and was maintained in good faith upon the part of said Eyler and the said defendant. They also set up the intemperance of the deceased.

Plaintiff by first supplemental petition set up the facts in regard to the autopsy, which, however, was not made an issue in the trial of the case. She denied that there was any good faith in the contention that her husband had not died from accidental means or that said defense was bona fide or set up in good faith. She further denied that Robertson and Oarson were her agents, and stated that they were not directed or appointed by her to make any settlement with the insurance company; that she was never at any time informed' as to what took place between Robertson, Carson, and Eyler, and could not and did not ratify the transaction between them and Eyler. She admitted that she signed a release, but set up that the amount due her was a liquidated demand, and that the insurance company was at the time of said settlement and at all times due her $17,500, and that the $8,750 was simply a payment upon same, and that there was no consideration for said release.

By first supplemental answer defendant denied the matters and things set up in the foregoing pleadings of the plaintiff, and especially denied that the plaintiff was without knowledge of the negotiations between Eyler, representing the defendant, and Mr. Robertson and Mr. Oarson.

The cause was submitted to a jury in the court below upon the following special issues:

“(1) Did John O. McDonald die from gas asphyxiation? Answer ‘Yes’ or ‘No.’
“If you answer the foregoing interrogatory ‘No,’ you need not answer further.
“(2) Was there any good-faith controversy between the parties as to the cause of his death at the time of settlement? Answer ‘Yes’ or ‘No.’
“(3) At the time the settlement was made, or during the negotiations with Mr. Robertson or Mr. Carson leading up to same, was the contention of Mr. Eyler to the effect that Mr. McDonald’s death was not due to gas asphyxiation made by the said Eyler in good faith in the belief that his contention was well founded or in the belief that it presented a doubtful question? Answer ‘Yes’ or ‘No.’
“If you answer either of the second or third interrogatories ‘Yes,’ you need answer no further.”

The jury answered “Yes” to first and second questions, and upon the return of such verdict judgment was rendered in favor of the defendant.

The following facts were shown by the evidence:

On the night of December 8, 1914 (while the policies in question were in force and effect), John O. McDonald died suddenly, in the bathroom of his home, in Galveston, Tex. There was no one present when Mr. McDonald was stricken, and he was in an unconscious and dying condition when discovered by members of the household.

J. A. Robertson, a relative of Mrs. Minnie E. McDonald, the widow, prepared proofs of death for her signature, and attended to transmitting them to the company. The proofs of death showed the contention of Mrs. McDonald to be that her husband had been accidently asphyxiated by gas. Four or five days after the proofs of death were transmitted to the insurance company, its chief adjuster, Mr. P. E. Eyler, went to Galveston for the purpose of investigating the claims and ascertaining, if possible, the cause of death. Upon Mr. Eyler’s arrival in Galveston he was taken to the home of deceased by the said J. A. Robertson, where, after meeting Mrs. McDonald, he, in the presence of Mr. Robertson and one of the ladies of the household, made tests of the gas heater. Mr. Eyler interviewed the doctors that had been called to see Mr. McDonald on the occasion of his death, and after completing his investigation informed the said Mr. Robertson that he did not believe that the death of the deceased was due to gas asphyxiation or other accidental cause, and that his investigation had lead him to believe that death was probably due to apoplexy or other disease.

Mr. Robertson, assisted by Mr. J. W. Oar-son, son-in-law of the widow, and administrator of the estate of the deceased, endeavored to secure from Mr. Eyler payment of the policies in full. Mr. Eyler refused to pay the policies for the alleged reason that he did not 'believe the death was due to violent, external, and accidental means. Mr. Eyler further contended, in discussing the claims with Mr. Robertson and Mr. Oarson, that the insurance company was entitled to an autopsy upon the body of the deceased, and that it was his purpose to demand that same be held; there being a provision in the policies providing therefor.

Mr. Robertson began negotiations for a settlement with Mr. Eyler, and the matter of compromise, was discussed a number of times between Mr. Eyler, Mr. Robertson, and Mx*. Carson, with the result that Mr. Eyler finally agreed to pay $8,750 in settlement of the controversy. Mr. Robertson and Mr. Oar-son then took the matter up with the widow, and the claims were settled on the basis mentioned, under date of January 4, 1915. Before the payment to appellant of the $S,-750 she executed the following release:

“Galveston, Tex., January 4, 1915.

“Received from the ¿Etna Life Insurance Company, Hartford, Conn., the sum of eight thousand seven hundred and fifty dollars ($8,-750.00), which I hereby and now do accept in full compromise settlement and discharge of all claims I now have or may hereafter have, under accident policies Nos. B. 246360 and 785885, issued by said company on the life of my deceased husband, John C. McDonald, who died December 8, 1914, at his home in the city of Galveston, Tex.
“I clearly understand that by the acceptance of this settlement I am relinquishing to said company one-half (%) of my claim as made and presented for payment under the foregoing numbered policies.
“I have not been approached by any representative of the ¿Etna Life Insurance Company concerning this settlement, having relied upon my son-in-law, Mr. J. W. Carson, who has negotiated this settlement with your adjuster, P. B. Eyler, for me.
“I hereby surrender the above numbered policies to said company for cancellation.
“Minnie E. McDonald.
“Witnesses:
“J. W. Carson. .
“J. A. Robertson.”

The amount agreed upon by way of com-1 promise was promptly paid to appellant and! was accepted and retained by her, and has never been tendered back to the insurance company. Neither Mr. Eyler nor any other agent of the insurance company discussed the matter of compromise with the widow personally, nor was any one representing the insurance company present at the time the release was signed; all of the negotiations being had between Mr. Eyler, for the insurance company, and Mr. Robertson and Mr. Carson, acting in behalf of the widow. There is ample evidence to sustain each of the findings of the jury above set out.

The first assignment of error presented by appellant complains of the following paragraph of the charge given the jury:

“Xou are instructed that in so far as Messrs. Carson and Robertson acted in Mrs. McDonald’s behalf in negotiating the settlement with Mr. Eyler, the company’s 'agent, they were authorized by Mrs. McDonald to do so. And whatever ■statements Mr. Eyler as such agent made to them having relation to his refusal to pay the full amount of the policies are notice to her the same as if made to her personally.”

The ground of the complaint is that the evidence was conflicting upon the question of whether Robertson and Carson were the agents of appellant in negotiating the settlement with appellee, and it was therefore error for the court to instruct the jury that they were such agents. Both Robertson and Carson testified that they were not the authorized agents of appellant in the negotiations carried on by them in effecting the settlement of appellant’s claim, but were volunteers acting in the matter because of their friendly interest in appellant’s welfare, and that in discussing the matter with appellee’s agent they told him they were not authorized to make any settlement. This evidence is uncontradicted, but the uncontra-dicted evidence further shows that when the offer of $8,750 was made by appel-lee to Robertson and Carson they reported the offer to appellant, and she agreed to accept it, and they then returned to appellee’s agent and accepted the offer for appellant, and brought her the receipt above set out, which she signed, and upon the execution of which the money was paid to her. Plaintiff testified as to the final settlement as follows:

“When Mr. Robertson and Mr. Carson came back they told me that they had had up the question of settlement of the accident policy with Mr. Eyler, and that Mr. Eyler had told them to say to me that the company would pay .$8,750 on account of the accident policies, and no more; that it was a lawsuit; take nothing ■or take $8,750. That was the effect of what Capt. Robertson told me. I said in reply that, ‘If that is all he will give me. if that is all they will give me, while I am entitled to all of it, if that is all they will give me, I guess I will have to take it.’ Capt. Robertson and Mr. Carson then left, and later they brought back settlement papers for me to sign and I received the draft .and signed the papers.”

Upon these facts we fail to see how the question of whether Robertson and Carson were especially authorized to discuss and negotiate with appellee’s agent the settlement of the claim has any bearing upon the validity of the compromise of the claim, or is in any way material in determining appellant’s right to recover, and, if it be conceded that the charge is erroneous, the error was clearly immaterial and harmless. The receipt before set out recites that in making the settlement and compromise appellant relied upon her son-in-law, Mr. Carson, who had negotiated the settlement for her. There is no allegation nor proof that the receipt was obtained by fraud, or that appellant did not fully understand all of its recitals, and knew that appellee was paying her $8,750 as a compromise of her claim.

Counsel for appellant insist that, unless the claim of appellee that appellant’s husband did not die from accidental means was made to appellant or her authorized agent, there could have been no good-faith controversy between the parties, and the payment of one-half of the amount due on the policies cannot be regarded as a binding compromise or settlement of a disputed claim. We know of no such rule of law. All that was required to make the settlement binding was that appellant should understand that the money was paid to her in compromise of her claim, and that appellee, in claiming that it was not liable on the policies, acted in good faith. The receipt recites that the money paid by appellee was in compromise of appellant’s claim. She knew that appellee had refused to pay more than one-half of the amount of the policies, and that unless this amount was accepted she would have to resort to a suit to collect ahytliing on the policies. Now can it be said, under these facts, that appellant did not know when she accepted the $8,750 that appellee was claiming it was not liable on the policies? If notice to appellant of the specific grounds upon which appellee denied liability on the policies was necessary to make the settlement binding, we think the evidence as a whole leads irresistibly to the conclusion that she had such notice, and she does not deny in her testimony that she knew that appellee claimed that her husband died from natural causes.

The testimony as to the cause of the death of appellant’s husband was conflicting, and, while the finding of the jury that he died from gas asphyxiation is sustained by the apparent preponderance of the evidence, there is ample evidence to sustain the finding that appellee’s claim that he died from natural causes was made in good faith. There is no merit in the assignment, and it must be overruled.

The second assignment complains of the following special charge given at the request of appellee:

“In answering issue No. 2 submitted to you by the court you are instructed that a controversy, if any there was, between the agents of defendant and Mi-. Oarson and Capt. Robertson as to the cause of the death of Mr. McDonald, shall be considered by you as a controversy between the parties to this suit.”

■What we have said in discussing the first assignment disposes of this assignment. The evidence shows conclusively that appellee denied liability on the policies and offered the sum of $8,750 in compromise of the claim, and that appellant, with full knowledge of the fact that the offer was made in compromise of a disputed claim, accepted the amount offered in compromise and released appellee from all further liability. The evidence being amply sufficient to sustain the finding of the jury that appellee’s denial of liability was made in good faith, which includes a finding that there was no fraud, misrepresentation, or concealment on the part of appellee in obtaining the compromise and settlement of the claim, the question of whether the controversy between Robertson and Oarson and appellee’s agent should be considered a controversy between appellant and appellee was wholly immaterial. The charge complained of could not possibly have affected the finding of the jury upon the good faith of appellee in denying liability on the policies, and, as the recitals in the receipt and appellant’s own testimony conclusively show that she knew when she accepted the $8,750 that it was paid her in settlement of a disputed claim, the controversy between Robertson and Oarson and appellee’s agent could not affect the character of the settlement as a voluntary compromise of her claim. We think the undisputed evidence brings the case within the rule announced in the case of Gilliam v. Alford, 69 Tex. 267, 6 S. W. 757.

The third and fourth assignments are without merit and are overruled without discussion.

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

Affirmed.
      (gsoPor other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    KEELS v. ASHWORTH.
    (No. 121.)
    (Court of Civil Appeals of Texas. Beaumont.
    April 20, 1916.)
    !. PARTNERSHIP @=>296(3)— LIABILITY OE REMAINING Partner on Note.
    On the issue of liability of a remaining partner who assumed the debts of the firm on a note executed by a withdrawing partner, whether $5.50 of the proceeds thereof was used to pay firm debts was immaterial; it appearing that the note was known by the partners at time of dissolution to be part of the firm indebtedness.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 662, 673; Dec. Dig. @=3296(3).]
    2. Partnership @=3239(1) — Retirement—Dissolution Agreement.
    A dissolution agreement obligating the remaining partner to pay all the firm debts, he was liable on a note, although signed by the partner who had withdrawn, since all but $5.50 of the proceeds of the note wont to pay for a car of flour used by the firm and the remaining partner knew of the note at the time of dissolution.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. § 495; Dec. Dig. @=>239(1).]
    Appeal from District Court, Trinity County; S. W. Dean, Judge.
    Action by the First National Bank of Groveton against J. C. Keels and another. Defendant R. Ashworth answered and set up a cross-action against the named defendant. From a judgment for defendant Ash-worth on his cross-action, the named defendant appeals.
    Affirmed.
    R. E. Minton, of Groveton, for appellant. Poston & Dotson, of Groveton, for appellee.
   BROOKE, J.

This was a suit upon a note instituted by the First National Bank of Groveton, against J. C. Keels, appellant, and R. Ashworth, appellee, who at the time the note sued upon was executed composed a trading partnership. The note was executed in the firm name by R. Ashworth. Ashworth answered and set up a cross-action against his codefendant, Keels, alleging a partnership dissolution -agreement by reason of which Keels assumed the payment of all obligations and indebtedness owing and due by the firm of Keels & Ashworth, and alleging that the note was such character of indebtedness, and asking for a judgment against his codefend-ant, Keels. Keels answered, denying the execution of the note by himself or by any one duly authorized by him, pleaded the want of consideration, and that said note was without the knowledge or consent of appellant, given in renewal of the note, executed by R. Ashworth individually, and further answering that, when the note sued upon was brought to his knowledge, he repudiated it. Appellant further answered that appellee, Ashworth, was given credit, as capital stock of the proceeds of the original note executed by Ashworth individually, and that said note given in the firm name was not within the contemplation of the partnership settlement, and was understood by appellant and appellee to be an individual indebtedness of R. Ashworth. Judgment was rendered in favor of plaintiff bank, against the defendants jointly and severally, and in favor of appellee, Ashworth, over against appellant. No complaint is made in this appeal of judgment in favor of plaintiff, the First National Bank of Groveton, the complaint being limited to that portion of the judgment in favor of appellee, Ashworth, against the appellant, J. C. Keels.

By the first assignment of error, complaint is made that the court erred in its fifth finding of fact, wherein it finds that the balance of said money so received by the said Ashworth on said note, to wit, the sum of $5.50, was used by the said Ashworth to pay other debts of the said firm of Keels & Ashworth, and claiming that there was no evidence to support the said finding. The view we take of this case, we do not think it a material matter whether the finding of the court on this proposition was correct or incorrect. To say the least, it was a part of the outstanding indebtedness of the firm of Keels & Ashworth, and was known so to he at the time of the dissolution of the partnership. The articles of dissolution are substantially as follows: On the 2d day of January, A. D. 1915, Keels and Ashworth entered into a contract in writing dissolving the said partnership of Keels & Ashworth, whereby the said Ashworth bargained, sold, and delivered to the said J. 0. Keels all of the goods, wares, and merchandise, furniture, accounts, and fixtures, and all property, real, personal or mixed, wheresoever situated, belonging to the firm of Keels & Ashworth, and all the interest in said property, whether real, personal, or mixed, belonging to the said K. Ashworth, and in consideration for said sale the said Keels, among other things, assumed all the obligations and indebtedness owing and due or to become owing and due of the firm of Keels & Ashworth, and said J. O. Keels agreed to bind and obligate himself to pay off and satisfy all outstanding indebtedness of said Keels & Ashworth, as said indebtedness might become due and payable, and release the said K. Ashworth from liability on account of any of the indebtedness of said firm, and agreed and bound himself to protect said R. Ashworth from liability on any indebtedness and obligation of said firm. The note sued upon by the bank was a firm debt, of said Keels & Ashworth. The larger part of said note, by the undisputed evidence, went to pay for a car of flour used by the said firm. Therefore, as said above, while the testimony is very meager and circumstantial as to what became of the $5.50, which wab the excess amount in said note over that expended for the car of flour, still, for the purposes of this suit,- it might be presumed, as found by the court, that the said $5.50 was used to pay other debts of the firm of Keels & Ashworth. This assignment is therefore, overruled.

By the second assignment, the action of the lower court is challenged in finding that the original note executed by Ashworth and the second note given in renewal of the first were each indebtedness of the firm of Keels & Ashworth, as between the members of the firm, and was an obligation of the firm, within the contemplation of the dissolution contract, and such as the appellant agreed to assume the payment of by such contract. There is no question that the record shows that appellant was aware, at the time of the dissolution contract, that this note, which was first given by Ashworth, and which was afterwards renewed by the signing of the firm name', was an outstanding indebtedness of the firm. The finding of the court that the same was so considered as between the members of the firm and within the contemplation of the dissolution contract is supported by the evidence. There was no pleading of any contract or special agreement between Keels and Ashworth, alleging that Ashworth agreed not to execute the note for or in the name of Keels & Ashworth, or any allegation that Ashworth had agreed not to borrow money on credit of the firm. The terms of the dissolution agreement, according to the ordinary signification of the words used therein, are broad enough to cover and include the note sued on.

The third assignment assails the action of the court below in its finding of fact, wherein it concludes that Ashworth had authority to execute the notes in question. There is no question that the said finding is correct, as a matter of law, and under the evidence in this case. The assignment is therefore overruled.

In his fourth assignment of error, it is complained that the court erred in its findings of fact, wherein it concludes that Keels assumed the payment of the debt upon which this suit was brought, and is liable therefor as between himself and Ashworth. As said above, the dissolution agreement itself supports the finding, and we see no reason, from a careful inspection of this record, that would justify us in finding otherwise. The assignment is therefore overruled.

The appellant has, indeed, filed a most able, ingenuous, and plausible brief and argument in support of his contention, but after a careful examination of the entire record, we are of opinion that the case was correctly tried, and no such error is found that would authorize us to disturb the action of the court below.

The case is, in all things affirmed; and it is so ordered.
      @=>For other cases see same topic.and KEV-NUMBER in all Key-Numbered Digests and Indexes


text:
    PEVITO v. SOUTHERN GAS & GASOLINE ENGINE CO.
    (No. 118.)

    (Court of Civil Appeals of Texas. Beaumont.
    April 20, 1916.
    Rehearing Denied July 8, 1916.)
    Appeal and Error <&wkey;1191 — Failure to I-Iave Mandate Issued — Refusal to Reinstate.
    Where a cause was reversed and remanded by a Court of Civil Appeals, and no mandate issued within a year, the trial court, a district court, properly dismissed the cause and refused to reinstate it.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4646; Dec. Dig. &wkey;Jll91.]
    Appeal from District Court, Orange County; A. E. Davis, Judge.
    Action by S. H. Pevito against the Southern Gas & Gasoline Engine Company. From a judgment dismissing and refusing to reinstate the action, plaintiff appeals.
    Judgment affirmed.

      Holland & Holland, of Orange, for appellant. L. R. Bryan, of Houston, for appellee.

      Application for writ of error pending in Supreme Court.

   BROOKE, J.

This is an appeal from a judgment of the district court of Orange county, dismissing and refusing to reinstate this cause, because of the failure to have a mandate issued within one year from the Oourt of Civil Appeals for the Eirst District, wherein the cause was reversed and remanded. In resisting the dismissal and in support of motion to reinstate, appellant presented a statement of facts found by the trial court to clearly entitle him to the relief, and the trial court dismissed the cause and refused to reinstate the same, on the expressly limited ground that the statute was mandatory, and that the court was without discretion in the matter. The sole question to be determined is whether or not, where on appeal a cause has been reversed and remanded, and no mandate has been issued within one year, the trial court has the power to refuse to dismiss the cause, or reinstate the same upon good cause shown therefor.

The first assignment of error challenges the action of the lower court in dismissing the cause and refusing to reinstate the same, and appellant’s proposition is that, where no mandate has been issued within one year after a cause has been reversed and remanded, it is within the power of the trial court to refuse to dismiss, or, after dismissal, to reinstate the cause for trial, for sufficient cause shown therefor.

The appellant filed the certificate of the clerk of the Court of Civil Appeals at Galveston in this language:

“Court of Civil Appeals, Eirst Supreme Judicial District, Galveston, Texas.

“I, H. L. Garrett, clerk of the Court of Civil Appeals, Eirst Supreme Judicial District of Texas, do hereby certify that on June IS, 1912, cause No. 6026, Southern Gas & Gasoline Engine Company v. S. H. Pevito, on appeal from district coux't of Orang'e county, was reversed and the cause remanded by said Court of Civil Appeals; and I further certify that on October 11, 1912, the motion for rehearing in said cause theretofore (to wit on July 1, 1912) filed in said Court of Civil Appeals was in all things overruled;
“I further certify that the costs of said appeal were taxed against the said S. H. Pevito, and that the same have not been paid, and X further certify that on account of said nonpayment of costs no mandate has oven been issued in said cause. I further certify that the year allowed by the statute within which costs may be paid and mandate issued has expired, the final’order in said cause being the order overruling motion for rehearing, which order, as aforesaid, was entered on October 11, 1912.
“In testimony whereof, I have hereunto set my hand and affixed the seal of court, this October 14, 1913. H. B. Garrett, Clerk Court Civil Appeals, First Supreme Judicial District of Texas, at Galveston. [Seal.]”

Appellant filed verified plea, resisting the motion to dismiss, and, in the event of the cause being dismissed, then he moved in the verified plea that the cause be reinstated. The trial court filed its findings of fact and conclusions of law, as follows:

“Findings of Fact.

“(1) This suit was for damages on account of injuries to a growing rice crop, brought by plaintiff against the defendant in this court, in which a trial on the issues was, at a prior term of this court, had resulting in a judgment in favor of the plaintiff, from which an appeal was taken by the defendant to the Court of Civil Appeals at Galveston, and on said appeal judgment was entered, reversing and remanding said cause.
“(2) No mandate was issued in said cause within one year after the final judgment therein rendered was entered.
“(3) After said cause had been reversed and remanded, this court, by agreement of the parties acting through their attorneys and upon request of the defendant’s attorney, entered continuances in said cause.
“(4) For some months prior to the time the year within which the mandate should have been issued by the Court of Civil Appeals expired, until the expiration of said year the plaintiff was continuously confined to his bed with sickness, unable to attend to any character of business, and not in touch with any of the proceedings of this court, and not able physically to attend to any character of business, and was almost continuously confined to_ his bed with sickness, and was continuously ill during all of said time.
“(5) Plaintiff was never acquainted with the fact that provision had to bo made for the costs of appeal before the mandate was. returned; no execution was over presented to him for said costs; no demand was ever made upon him for said costs; and he at no time was acquainted with the fact that he was required to. pay appeal costs to preserve and protect his rights in said cause. He never received any demand for costs or notice that any costs were due by him.
“(6) This action is barred by the statute of limitation, should the- same be dismissed, and no suit could be maintained upon a new action brought because of the bar of said statute, and the dismissal of this cause will result in depriving plaintiff of substantial rights of considerable value, for which he will have no redress.
“(7) The failure to have the costs paid or an affidavit in lieu thereof made and to have said mandate issued was not'through any neglect or fault or carelessness on the part of the plaintiff, and he has never had an opportunity to have said costs paid and mandate issued, and he has, since ascertaining that it was necessary to pay said costs, continuously offered to pay said costs and obtain a mandate, and his offer so to do is continuous up to the present time.
“Conclusions of Law.
“The statute controlling this question is in mandatory language. It has never been passed upon by the courts, so far as I have been able to ascertain. By its language it requires this cause shall be dismissed. It says nothing, nor do I find anything, applying to the motion to reinstate. Upon a statute somewhat similar, to wit, the article of the statute requiring that failure to give a cost bond in a pending cause when motion has been made that same should be given shall result in a dismissal, and that said cause shall be dismissed upon a failure to give such cost bond by the first day of the term following the granting of the order requiring tne bond, it has been held that this statute, although mandatory in its language, is directory only, and that upon the showing of any reasonable excuse the court is not of necessity bound to dismiss the cause, or that the cause may be reinstated after having been dismissed. I am of the opinion that this is the nearest authority applicable to the question here presented, but on account of the fact that the question has never been passed on by the appellate courts within my knowledge, and that a retrial of the issues in the cause would be expensive and of no avail to the parties should it be held that this court is without discretion in the matter and without power to reinstate the cause, and solely upon that ground I hold that the cause should be dismissed and not reinstated and so enter judgment.
“A. E. Davis, District Judge Presiding.”

We do not understand why there should be any misconception of the holding of the Supreme Court of this state on the identical proposition, for the question was certified to the Supreme Court, and in an opinion delivered December 18, 1902, by Mr. Justice Williams, in Scales v. Marshall, 96 Tex. 140, 70 S. W. 945, was decided. It was certified from the Fifth district, as follows:

“Texana Scales, joined by her husband, brought suit in the district court of Johnson county against Elizabeth Marshall, in trespass to try title, to recover a tract of land situated in said county. A trial resulted in a judgment in favor of the defendant, and the plaintiffs appealed to this court, where on November 24, 1900, the judgment was reversed and the cause remanded; the costs of appeal being taxed against the appellee. Scales v. Marshall, 60 S. W. 336. A motion for rehearing was filed by the appellee, and was overruled on January 5, 1901. No further action was taken by either party until June 30, 1902, when the appellants paid the costs of appeal, and the mandate was issued on the same day at their instance and request. The mandate was filed in the trial court on July 4, 1902. On September 17, 1902, the appellee, Elizabeth Marshall, filed a motion in this court, setting up the facts above stated, and praying for the recall of said mandate. The motion was based upon article 676a, c. 54, Acts 1901. which reads as follows; ‘No mandate shall be taken out of the Supreme Court, or Courts of Civil Appeals, and filed in the court wherein said cause originated, unless the same is so taken within the period of twelve months after the rendition of final judgment of the Supreme Court, or Courts of Civil Appeals, or the overruling of a motion for rehearing. The provisions of this act shall only apply to cases which are by the Supreme Court, or Courts of Civil Appeals, reversed and remanded, and if any cause is reversed and remanded by said Supreme Court, or Courts of Civil Appeals, and the mandate is not taken out within twelve months as hereinbefore provided, then upon the filing in the court below of a certificate of the clerk of the Supreme Court, or Courts of Civil Appeals, that no mandate has been taken out, the case shall be dismissed from the docket of said lower court: provided, that in any cause which has heretofore been reversed and remanded by the Supreme Court, or the Courts of Civil Appeals, the mandate in all such eases shall be taken out within twelve months from and after the passage of this act, and not thereafter.’ The contention is that the statute cited applies to cases of this character, and that, as the mandate was not applied for until more than 12 months after the passage of said act, the period of limitation was complete, and the mandate was therefore illegally issued. The appellants waived service of the motion and filed an answer. The appellee did not apply to the clerk of this court for the certificate provided for by said article until after the mandate had been issued and had been filed in the district court.
“Question No. 1. Does the said act apply to a case like this, where the plaintiff in the trial court has been cast in the suit, and has appealed and secured a reversal of the judgment against him; the cost of appeal being taxed against the other party?”

The Supreme Court, in answering this question, says:

“The case stated is clearly included in the language of the act, and the courts are not at liberty to make an exception to the rule declared, where the Legislature has made none. The broad declaration that ‘no mandate shall be taken out,’ etc., with the proviso that the act shall apply only to cases which are reversed and remanded, is equivocal to saying that no mandate shall be issued in any cause in which the judgment has been reversed and the cause remanded, after the expiration of the prescribed time. As, under other provisions, either party is allowed to take out the mandate, no impossible condition is imposed.”

In the case of Watson v. Boswell, 73 S. W. 985, the court says:

“This is an appeal from a judgment dismissing the cause of action. It appears that in April, 1900, appellees recovered judgment against appellant on a plea in reconvention and for costs of suit, and a supersedeas bond was given, and the judgment was, on February 13, 1901, reversed by this court, and the cause remanded; costs being taxed against appellees. The costs were not paid by appellees, nor was any affidavit of inability to pay costs made by them. On July 14, 1902, appellant paid the costs of appeal, and a mandate was issued by the clerk of this court. Upon motion of appellees the cause was dismissed because no mandate was issued within 12 months from the date that judgment was rendered in the Court of Civil Appeals.”
The court, after reciting the law, which is the act of the Twenty-Seventh Legislature, page 122, continues:
“The law in question went into effect on July 10, 1002, more than 12 months thereafter. The law declares ‘that no mandate shall be taken out of the Supreme Court or Courts of Civil Appeals’ unless within the period of 12 months after rendition of judgment of the overruling of a motion for rehearing, and the mandate was therefore issued by the clerk of this court, not only without warrant of law, but in the very face of the statute, and should not have been filed in the trial court. It does not matter against whom the costs were taxed. The law is mandatory that the mandate shall not issue after 12 months in causes in which the judgment is reversed and the cause remanded, and it is made the duty of the trial court to dismiss the cause from the docket upon a certificate showing that a mandate was not issued in 12 months. The mandate issued in this cause, showing on its face that it was issued more than 12 months from the passage of the act, formed a sufficient basis for the judgment of dismissal. The statute deprived appellant of no vested right, and does not violate any provision of the Constitution. It provides, in terms, that, in causes in which judgment had been reversed and causes remanded before the passage of the act, the 12 months should begin to run from and after the passage of the act. • The issuance of a mandate is merely a remedy, which may be altered, and there can be no vested right in any particular remedy. De Cordova v. Galveston, 4 Tex. 470; Treasurer v. Wygall, 46 Tex. 447. The state is bound to afford adequate process for the enforcement of rights, but is not tied down to any particular mode of procedure. Worsham v. Stevens [60 Tex. 890 17 S. W. 404. It does not matter against whom the costs were adjudged. Appellant was the one to be benefited by the issuance of the mandate and the duty devolved upon him to have the mandate issued within 12 months from the passage of the law, and it was right and proper that the costs of the lower court should be taxed against him when his cause was dismissed.”

In the ease of Aspley v. Hawkins, 88 S. W. 289, the court says:

“This writ of error is prosecuted from the judgment of dismissal. The case had been tried before, and on appeal was in part affirmed and in part reversed and remanded. The judgment of the appellate court was rendered in June, 1894, and the motion to dismiss was filed in 1903. No mandate from the appellate court has been filed in the court below and that fact was made one of the grounds upon which the motion to dismiss was predicated. The act of 1901, requiring the mandate in reversed and remanded cases to be filed within 12 months after the rendition of final judgment by appellate courts, authorizes a dismissal of the suit when it is made to appear that no mandate has been issued within the time stated. We think that act is applicable to this case, and therefore the judgment is affirmed” (citing Scales v. Marshall, supra, and Watson v. Boswell, supra).

In view of the above expressions from the higher courts, which have directly passed upon the provision of the statute with reference to the issuance of mandates,-there seems to be no question that the action of the lower court was correct in dismissing the suit and refusing to reinstate. The authorities cited by appellant, in view of the fact that the question has been directly passed upon, the matter of statutory construction, need not be gone into, and in the event that it were necessary to do so, and it was still an open question in our state, we are persuaded to believe that the result would be the same, and that the higher courts would hold as they have already held upon this question.

Therefore we are of the opinion that it was not error in the court below to dismiss and refuse to reinstate the case, and the action of the lower court is, in all things, affirmed. It is so ordered.
      @=>Eor other cases see same topic and KEY-NUMBEIt in all Key-Numhered Digests and Indexes • • ■


author: McMEANS, J.

text:
    LEAGUE et al. v. BRAZORIA COUNTY ROAD DIST. NO. 13 et al.

    (No. 7224.)
    (Court of Civil Appeals of Texas. Galveston.
    June 2, 1916.
    Rehearing Denied June 29, 1916.)
    1. Injunction &wkey;M39 — Authority of Special Judge.
    A special district judge of one court has no authority to grant a temporary injunction returnable to any other court, and an injunction so granted is without legal authority and void.
    [Ed. Not?.. — Eor other cases, see Injunction, Cent. Dig. § 311; Dec. Dig. <&wkey;>139.]
    2. Appeal and Error <&wkey;742(l) — Bill of Exceptions — Statement—Sufficiency.
    Assignments of error, not followed by the statement required by the rules, cannot be considered on appeal.
    [Ed. Note. — Eor other eases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <&wkey;>742(l).]
    3. Highways <&wkey;90 — Establishment—Validity — Motives of Petitioners.
    The determination of the area of a road district, the sufficiency of the petition for the establishment of such district, and other prerequisites to the establishment of a valid road district are matters within the discretion of the commissioners’ court, and the motives of the petitioners cannot be considered in determining the validity of the action establishing such road district.
    [E'd. Note. — For other cases, see Highways, Cent. Dig. §§ 301, 302; Dec. Dig. <@^>90.]
    4. Highways <&wkey;90 — Road Districts — Bonds.
    In an action to enjoin the issue of bonds of a road district, a petition, attacking the qualification of the signers of the petition, merely alleging that some petitioners had paid no poll tax and that others had not returned their property for taxation, hold not sufficient, since the nonpayment of poll tax does not negative a petitioner’s qualifications as a voter, nor does his failure to render his property for taxation indicate that he is not the owner of taxable property.
    [Ed. Note. — For other cases, see Highways, •Cent. Dig. §§ 301, 302; Dec. Dig. <§=^90J
    5. Highways <&wkey;90 — Road Districts — Bonds —Unoonstitutionality of Statute.
    Injunction will not lie to restrain the holding of an election under an unconstitutional law, for the issuance of bonds of a road district, because the holding of such election is not an invasion in a legal sense of the property rights of complainant, because if the law be unconstitutional the proceedings are void and complainants have an adequate remedy at all times, and because the election is a political proceeding not subject to judicial control.
    [Ed. Note. — For other eases, see Highways, Cent. Dig. §§ 301, 302; Dec. Dig. <S=w90.]
    6. Highways <&wkey;90 — Road Districts — Bonds.
    The holding of an election for the purpose of authorizing the issue of road bonds is a political proceeding, and not subject to interference by way of injunction by the courts.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 301, 302; Dec. Dig. &wkey;90.]
    Appeal from District Court, Brazoria County; Sami. J. Styles, Judge.
    Action by J. C. League and others against the Brazoria County Road District No. 13 and others. Judgment for the defendants, and plaintiffs appeal.
    Affirmed.
    Gaines & Corbett, of Bay City, R. C. Gaines, of Angleton, and Claude Pollard and E. H. Crenshaw, Jr., both of Kingsville, for appellants. Munson, Williams & Munson, of Angleton, for appellees.

      Application lor writ of error pending in Supreme Court.

   McMEANS, J.

August 19, 1915, plaintiffs, J. C. League and others, appellants here, brought this suit against the county judge and county commissioners of Brazoria county and the presiding judge and the judges of election appointed by the commissioners’ court, to enjoin and restrain the holding of an election by the qualified voters in road district No. 13 of Brazoria county to determine whether the bonds of said road district in the sum of $150,000 should be issued for the purpose of constructing, maintaining, and operating macadamized, graveled, or paved roads in said district, and whether a tax should be levied upon the property subject to taxation in said district, for the purpose of paying the interest on said bonds, and to provide a sinking fund for their redemption at maturity. The petition was presented to Hon. J. W. Woods, special judge of the Sixty-First judicial district court of Harris county, the regular judge of the district court of Brazoria county being inaccessible at that time, and the said special district) judge granted a temporary injunction returnable to the district court of Brazoria county on the beginning of its September term, to wit, September 6, 1915. No appeal was prosecuted from the order granting the temporary injunction. September 23, 1915, Frank Andrews, as receiver of St. Louis, Brownsville & Mexico Railroad Company, intervened as party plaintiff, and the original plaintiffs filed an amended petition, both parties praying for a permanent injunction, and on the same day the defendants filed an amended answer, containing a general demurrer and special exceptions to the amended petition and plea in intervention. Thereafter, the case coming on to be heard at a regular term of the district court of Brazoria county, and the parties having announced ready upon the questions of law raised by the demurrer and special exceptions, the court, after due consideration, sustained the general demurrer and all special exceptions and dissolved the temporary injunction theretofore granted by Special District Judge Woods, and, aa no relief other than an injunction was sought, dismissed the case. From this action of the court the plaintiffs have appealed.

Appellants’ second assignment of error complains of the action of the court in sustaining the exception of defendants to the effect that the temporary injunction granted by Special Judge Woods was a nullity, for the reason that a special judge of a district court is without power to grant an injunction returnable to any other court.

While we regard this action of the court as immaterial, in view of the fact that the case was up for a hearing at a regular term upon amended pleadings which prayed only for a permanent injunction, the temporary injunction having in the meantime, served the purpose for which it was sought, whether valid or not, we will say, in passing, that it seems to be well settled that a special district judge of one court has no authority to grant a temporary injunction returnable to any other court, and that therefore the injunction granted in this case by Judge Woods was without lawful authority and void. Wynn v. Edmonson, etc., Co., 150 S. W. 310.

The third, fourth, fifth, sixth, and ninth assignments are not followed by statements such as required by the rules to authorize their consideration, and for this reason appellees object to our considering them, and the objection must be sustained.

There was no error in sustaining the seventh special exception to the sixth and seventh paragraphs of plaintiff's petition. These paragraphs attack the motives of the persons by whom the petition for the election was alleged to have been gotten up. The determination of the area of the district, the sufficiency of the petition, and other prerequisites to the establishment of a valid road district was a matter peculiarly committed to the commissioners’ court, and the motives of the persons who set the machinery in motion leading to the creation of the district cannot control nor be taken into consideration.

The eighth assignment complains of the action of the court in sustaining defendants’ special exceptions to the eighth paragraph of the amended petition, which is as follows:

“The tax rolls of Brazoria county, Tex., for the year 1914 show that of the 77 persons whose names are signed to the petition for election to determine the question of said bond issue, the following named 29 persons paid no poll tax for the year 1914, viz.: Edward Biggs, J. R. Mitchell, J. F. Guger, A. J. Lundgren, G. K. Kohlman, P. J. Krause, G. D. Prewitt, S. H. Mack, G. G. Bootner, Henry BaJlows, James Brown, Zebze Brown, Asa Ishmore, Andrew Mills, William Hill, J. O. Connock, D. J. Og-burn, W. Houston, Henry Hanson, Sam Gas-ton, H. Pink, Collin Campbell, A. Mithers, Joseph Reynolds, Pete Davis, John Scott, Lee Coleman, Jackson Davis, Jasper York. That of the persons whose names are signed to said petition for said election order, Houston Williams lives at West Columbia, and not in said district No. 13. That petitioners are informed and believe, and, so believing, eharg'e, C. A. Seaborn renders personal property for the year 1915, valued on the county tax roll at $115_, resides in the town of Columbia and. not in said district; that the name of J. O. Lindquist, another of the signers of the said petition, is on the nonresident roll for 1914 and renders no property for taxes for 1915. That the following named persons, whose names are signed to said petition, do not render any property for the year 1915: H. P. Hopkins, J. Rhodes Wright, A. J. Lundgrun, G. K. Kohlman, A. N. Nack, E. Yivla, James Brown, Zebze Brown, J. Connack, Elmer Krause, Henry Hanson, Henry Howard, Dan Gaston, L. T. Patton, Isam P. Cannell, Joseph Reynolds, John Scott, Robert Smith, Will Williams, and J. W. Watson, and that Walter Crain, Jr., one of the signers, resides at Sweeny and not in said district, and in consequence of all of which the said petition for election so ordered is not signed by the number of voters required by article 3, § 52, of the Constitution of the state, and article 628 of Sayles’ Civil Statutes, and the commissioners’ court of Brazoria county was without authority to order said election.”

We think there was no error in sustaining the special exception. The allegation attacking the qualification of the signers of the petition, which merely alleges that some of such signers had not paid their poll tax, and that certain others of them do not render any property for taxes, is insufficient to show their disqualification, or to show that a requisite number of qualified voters had not signed the petition. The allegation that a person had not paid his poll tax does not negative that he is a qualified voter, for there is a large class of persons who are exempted by law from the payment of such taxes; nor does the allegation that a person has not rendered his property for taxation negative that he is the owner of taxable property.

We shall not discuss the remaining assignments of error in detail. We think that the injunction was properly refused, for the reasons: Eirst, that the holding of the election did not, of itself, create any liability upon the appellants, nor operate as an in-cumbrance or charge upon their property, or in any way interfere with their property rights, and therefore they could not have been harmed in the slightest by permitting the election to be held; second, that if the law under which the election was sought to be held is unconstitutional, as appellants contend, then it is void, and any proceedings had thereunder would be void, and could be successfully attacked by appellants at any time (Parks v. West, 102 Tex. 11, 111 S. W. 726; Cohen v. Houston, 176 S. W. 814); and, third, that the election sought to be enjoined was a political proceeding, and not subject to judicial control (Robinson & Watson v. Wingate, 36 Tex. Civ. App. 65, 80 S. W. 1067; City of Dallas v. Consolidated St. Ry. Co., 105 Tex. 337, 148 S. W. 292). The reasons why an injunction does not lie to restrain the holding of an election, such as the kind under discussion, may be summed up in the conclusion that there is in the performance of these statutory duties no invasion, in a legal sense, of the property rights of the complainants, whether the election is open to attack in other ways or not. Robinson v. Wingate, 98 Tex. 268, 83 S. W. 182. The reasons are elaborated in the clear and able opinions referred to, and further discussion here would only involve the statement of additional, or perhaps the same arguments in different form, tending to the same conclusion.

The judgment of the court below is affirmed.

Affirmed.
      <2^>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SPILLER v. W. J. MANN & CO.
    (No. 99.)
    (Court of Civil Appeals of Texas. Beaumont.
    March 9, 1916.)
    1. Chattel Mortgages <&wkey;117— Crops — Interest in Rents.
    A mortgage of crops to be grown on certain places during a certain year by mortgagor, or those in his employ or under his control, and of the rent note on one of the places for that year covers all interest of the mortgagor in the rents for that year on that place.
    [Ed. Note. — Eor other cases, see Chattel Mortgages, Cent. Dig. § 202; Dec. Dig. <&wkey;> 117.]
    2. Chattel Mortgages <&wkey;48 — Crops—Description op Premises.
    Description of the premises in a mortgage of the crops to be grown on the “Lewis place” owned by the mortgage in a certain county, it being long and notoriously so known, is sufficient to be notice.
    [Ed. Note. — Eor other cases, see Chattel Mortgages, Cent. Dig. §§ 93-95; Dee. Dig. <&wkey;> 48.]
    Appeal from Montgomery County Court; W. M. Williams, Judge.
    Action by W. J. Mann & Co. against Charles Spiller and others. Erom judgment for plaintiff, the named defendant appeals.
    Affirmed.
    W. B. Browder, of Willis, for appellant. A. L. Kayser, of Conroe, for appellee.
   BROOKE, J.

There is practically an agreement between the parties as to the facts in the case. The suit is by W. J. Mann & Co., appellee, against J. E. Johnson, one of the defendants, upon his promissory note of date November 24, 1913, for the sum of $737, due October 1, 1914, said note being executed for the purpose of obtaining goods and supplies furnished by Mann & Co. to Johnson, and the note was secured by a chattel mortgage of even date upon the crops of cotton and corn grown upon said tracts of land, rent for the year 1914, as set out in said chattel mortgage, appellee claiming by virtue thereof a lien upon said crops to secure payment of said note.

The appellant, Spiller, it is alleged, converted to his own use nine bales of said cotton, with notice of the lien thereon which appellee claimed and held against the cotton. The cotton was alleged to be of the value of $00 per bale. Spiller denied that appellee had a lien against the cotton, and claimed ownership of the same under a rent note executed on the 29th day of January, 1914, by James Johnson to J. F. Johnson, due the 1st day of October, 1914, for rent for the year 1914 of about 100 acres of cleared land belonging to the said J. E. Johnson, and situated about two miles northwest of the town of Willis, said note being for the sum of $300.

It was shown that Jesse Campbell, to whom J. F. Johnson originally rented the place for the year 1914, and who executed said original rent note, never went upon the farm, the Lewis place, and did not grow any crops of cotton or corn on said place during the year 1914, but that the cotton grown on said Lewis place during the year 1914 was raised by James Johnson, who rented the land after Campbell failed to go upon the same, and who gave his rent note for $300 to J. E. Johnson on January 29, 1914, due October 1, 1914, as above set out, and that said note was transferred on February 12, 1914, to one E. A. Lichter, who thereafter transferred the same to appellant Spiller.

Trial was had before the court, which resulted in judgment against the defendant J. E. Johnson in the sum of $701.09, and against the defendant Spiller for $314, the value of the rent cotton raised on the Lewis place during the year 1914.

There is no controversy over the value of the nine bales of cotton, and the only question necessary to be decided is whether or not the mortgage given by the defendant J. F. Johnson to appellee covered this cotton. The mortgage is as follows:

“The State of Texas, County of Montgomery.

“Know all men by these presents: That whereas, I, J. F. Johnson of above state and county of Montgomery, own 100 aeres of J. W. Bird place, 127 acres Lewis place, 90 acres of Cook place, situated in justice’s precinct No. -in said county; 87 acres of said land is cultivated and to be cultivated by me during the year 1914; said land is to be planted in corn and cotton, about 62 acres in cotton and .25 acres in corn.
“And whereas I, the said J. F. Johnson, do desire to obtain advances in goods, provisions, etc., during the year 1913, to enable me to make a crop on 'said promises, W. J. Mann & Co., successors to Smith & Mann, merchants of Willis, Tex., have agreed to make, to an amount of $10 ‘Dollars’ more or less, as the same shall from time to time be required by me and agreed to by said W. J. Mann & Co., successors to Smith & Mann.
“Now, therefore, in consideration of the premises, and the further consideration of' the sum of $1 to me in hand paid by the said Smith & Mann and • to secure the payment of said advances, and also the payment of my promissory note for the sum of seven hundred thirty-seven and no/100 dollars, dated November 24, 1913, with interest thereon at the rate of 10 per cent, per annum from the 1st day of October, 1914, I have this day bargained and sold and by this instrument do bargain and sell and convey unto the said W. J. Mann & Co., successors to Smith & Mann, their heirs and assigns and legal representatives, all the crops of cotton and corn now planted or hereafter to be planted and grown on said premises, by me or those in my employ or under my control, during the year 1914, aforesaid. Also, I do by these presents, for the consideration above named, and in addition to said crops hereby bargain and sell unto the said W. J. Mann. & Co., successors to Smith & Mann, their heirs, executors, administrators, and assigns tlie following described rent notes, etc., to wit: one year’s rent on the Lewis place for 1914; one year’s rent on the Lewis place for 1915. Both of the above amounts in rent note and contract given by Jesse Campbell to J. F. Johnson for 5 years, 1914, 1915, 1916, 1917, and 1918. 1 rent note given by Henry Hood and Julia McPherson for $200 on the J. W. Bird place, to have and to hold the same, all and singular, forever: Provided, however, that if the said indebtedness above mentioned shall be fully paid and discharged on or before the 1st day of October, 1914, then this conveyance shall be null and void. But. if the said indebtedness, or any part thereof, is not paid and discharged as above stipulated, the said W. J. Mann & Co., successors to Smith & Mann, their heirs or assigns or legal representatives shall have the right, with or without any legal process, to take possession of the above-described property, wherever the same may be found, or any part thereof, wherever such may be found, and for that purpose to enter upon the above-described premises, or any other premises occupied by me, the said J. F. Johnson, upon which said property or any part thereof may be found. And the said W. J. Mann & Co., successors to Smith & Mann, their heirs or assigns, or legal representatives, having taken said property in possession, shall have the right and they are hereby fully authorized and empowered to sell the same in the manner that personal property may by law be sold under execution, and apply tlie proceeds of said sale to the payment of the expense of said sale and the taking possession of said property, and 10 per cent, additional of the amount due for attorney’s fees, and to the payment of said indebtedness, or any part thereof that may remain unpaid, to the extent that the proceeds of said sale will pay, and the surplus, if any, pay over to the person entitled thereto.
“It is further agreed that the indebtedness secured by this instrument is due and payable in Willis, Montgomery County, Texas. And it is further agreed that if any default is made in the payment of either the note or account which this mortgage is given to secure, then 10 per cent, attorney’s fees are to be added if said note or account is collected by suit.
“AVitness my hand on this the 24th day of November, A. D. 1913.
“[Signed] J. F. Johnson.
“Attest:
“E. A. Watson.
“M. G. Powell.”
Indorsed:
“No. 147. Yol. S, page'32.
“$10.00.
“Note, $737.00.
“J. F. Johnson.
“Montgomery Co.
“W. J. Mann & Co., successors to Smith & Mann. Mortgage.
“Filed for registration January 14, 1914, at 9 o’clock a. m.
“W. F. Griffin, Co. Clerk,
“Montgomery Co., Tex.”

It will be seen that the said mortgage was of record in Montgomery county before tlie $300 note was executed.

The court filed the following findings of fact and conclusions of law:

“Findings of Fact.
“I find that the defendant, J. F. Johnson, is indebted to the plaintiffs in the amount set out in their petition upon the promissory note executed by him on the 24th day of November, 1913, and due on the 1st day of October after its said date, and payable to plaintiffs as in their petition alleged; that there is now due, owing, and unpaid, on said indebtedness principal, interest, and attorney’s fees the sum of $701.90.
“I find that, at the time of execution and delivery of said note, the defendant, J. F. Johnson, made, executed, and delivered, for the purpose of securing the same, a certain chattel mortgage and assignment, of even date with said note, wherein and whereby the plaintiffs, W. J. Mann & Company, were given a lien upon all crops of corn and cotton grown upon the ‘Lewis Place’ for the year 1914, by the said Johnson or those in his employ or under his control, as well as all rent upon said place for said year, this being the place upon which said Johnson resided, and being located about a mile or a mile and a half northwest of tlie town of Willis in Montgomery county.
“I find that the place mentioned in said instrument aforesaid as the ‘Lewis Place’ is notoriously known in that community and that vicinity and has been known for the past 24 years as such; and that the said J. F. Johnson resided thereon during the years 1913 and 1914.
“I find as a fact that it was the intention of the parties to said mortgage contract, aforesaid, that said mortgage should and that the same did cover all of the interest of the said J. F. Johnson in and to the crops of corn and cotton to bo grown on said ‘Lewis Place’ for the year 1914, including all rent due said Johnson as landlord from any person renting said place or part thereof from said year 1914. Mortgage aforesaid was duly registered in the chattel mortgage records of Montgomery county, Texas, on the 14th day of January, 19Í4.
“I find that the defendant, J. F. Johnson, leased to James Johnson on the 29th day of January, 1914, all or nearly all of said Lewis place upon which he then lived, describing it as ‘about 100 acres of cleared lands of said J. F. Johnson at his home place about one mile northwest of the town of Willis for the year 1914. This does not include in said cultivated lands the dwelling house and other houses used in connection therewith and about 20 acres of land next to dwelling house on north side of branch of creek through the field,’ taldng the note of the said James Johnson in the sum of $300 to cover said rent on said place for said year 1914; that said note was indorsed and transferred to -Lichter, it being due the 1st of October, 1914, and was by said Lichter indorsed without recourse and was in the latter part of September, 1914, acquired by the defendant, Charles Spiller.
“I find that Dr. Charles Spiller acquired the James Johnson rent note from Lichter at a discount, crediting Lichter upon a pre-existing debt then due the said Spiller by Lichter.
“X further find that the mortgage above referred to from the defendant J. F. Johnson to the plaintiffs, W. J. Mann & Company, of date November 24, 1913, was sufficient in point of description of property and the interest of the mortgagor sought to be covered for the registration thereof to carry constructive notice to all parties subsequently dealing with the said defendant J. F. Johnson, with reference to the crops grown on said Lewis place by the defendant J. F. Johnson, or those in his employ or under his control, and also all rent due on said premises for the year 1914, and that the defendant Spiller had notice of plaintiff’s claim at the time he acquired the note from Lichter.
“And I further find that said mortgage aforesaid discloses sufficient facts upon its face to put an ordinarily prudent person upon inquiry, and that such inquiry prosecuted with ordinary diligence would have disclosed all the facts as to said transaction between the defendant J. F. Johnson and the plaintiff, W. J. Mann & Company.
“I find that the Lewis place mentioned in the mortgage aforesaid and the premises mentioned in the rent note held by the owner thereof and residpd thereon during the years 1913 and 1914; that the defendant Spiller has resided within five miles of said place practically all his life, and that during the years 1913 and 1914, among other things, he was engaged in furnishing farmers goods and supplies with which to make a crop.
“I further find that the nine bales of cotton sued for were grown upon said premises, being the premises mentioned in the mortgage aforesaid, which are the same premises mentioned in the James Johnson rent note held by the said Spiller, during the year 1914, the same being cotton due the landlord or his assignee, under the rent contract made by the said Jas. Johnson with the defendant, J. P. Johnson, on the 29th day of January, 1914; and I find that this was the cotton covered and intended to .be covered by the mortgage given by the defendant J. P. Johnson to the plaintiffs, W. J. Mann & Co., on the 24th day of November, 1913, and duly registered on the 14th day of January, 1914.
“I further find that said nine bales of cotton were converted by defendant Spiller and appropriated by him, and sold on the open market, and cannot now be found, substantially alleged in plaintiff’s petition, and that at the time of such conversion same' was of the reasonable market value of $314.
“I further find that the defendant Spiller was not an innocent purchaser of the James Johnson rent note for value and without notice of plaintiff’s claim.
“Conclusions of Law.
“X conclude that the defendant J. P. Johnson is indebted to the plaintiffs in the sum of $701.-90, principal, interest, and attorney’s fees, upon his certain promissory note of date November 24, 1913, duo October 1st thereafter, for which amount they were entitled to judgment against him.
“I conclude as a matter of law that the plaintiffs had a valid, subsisting, and unsatisfied lien against the nine bales of cotton sued for, which was prior to any claim or lien of the defendant Spiller thereon, and of which he was charged with notice, and that the plaintiffs are entitled to recover the value of said nine bales of cotton so converted and appropriated by the said defendant Spiller in the sum of $314.
“I further conclude that, as the said defendant Spiller was not a purchaser for value of the said Jas, Johnson rent note, the plaintiffs are entitled to recover the value of said cotton, regardless of the question of notice of their claim.”

The view we take of the case is that the mortgage, upon its face, was intended, to cover and did cover all interest that J. P. Johnson had in the rents for the year 1914 on the Lewis place, and that the said instrument, was notice to all the world of that fact. It would be useless and would serve no good purpose to go into detail as to how said conclusion has been reached, because the instrument speaks for itself; and the only reasonable construction of which it is capable is that a lien had been given, upon all of the rent due for the year 1914, the said J. P. Johnson upon said Lewis place. The conclusions reached by the trial court are, in our judgment, correct, and the appellant’s first assignment of error, to the effect that the description of the property and premises in said mortgage is too general, vague, and indefinite to be notice, is without merit, and same is overruled.

Appellant’s second to sixth assignments of error raise the question with reference to the sufficiency of the evidence, and what we have heretofore said disposes of said assignments. They are therefore overruled.

There being no error shown in this record to have been committed by the trial court, the judgment is in all things affirmed, and it is so ordered.
      (g^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes